Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (Application no. 53600/20)

The applicants were an association of over 2,500 senior women from Switzerland (the Senior Women for Climate Protection Switzerland (Verein KlimaSeniorinnen Schweiz)), and several individual senior women, who complained that their age and gender made them particularly vulnerable to the effects of heatwaves linked to climate change. The applicants unsuccessfully filed requests to a number of Swiss authorities and unsuccessfully appealed to the Federal Court of Switzerland. 

Before the ECtHR, the applicants alleged that the Swiss Government had taken inadequate climate change mitigation action and failed to comply with its positive obligations to effectively protect life (Article 2) and respect private and family life and home (Article 8). They also alleged that that the Swiss Courts failed to respond seriously to their requests, in violation of the right to access the courts (Article 6.1).

What did the ECtHR rule?

Breach of Article 8 (right to respect for private and family life) and Article 6.1 (right to access the courts)

• The ECtHR held that Article 8 encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life. This imposes a positive duty on the Swiss Government to effectively apply in practice domestic procedural safeguards, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change. The Court held that the Swiss Government had violated Article 8 by failing to quantify national GHG emissions limitations (through a carbon budget or otherwise), meet its GHG emissions reductions targets and act in an appropriate and timely manner regarding the development and implementation of a climate change legislative and administrative framework. Specifically it noted that “there were some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations” [573]. 
• The ECtHR also found that the Swiss Government had violated the applicants’ right to access the courts due to the domestic courts’ failure to engage seriously or at all with the applicant association’s claims. The domestic courts failed to consider compelling scientific evidence concerning climate change and examine the applicant association’s legal standing. The ECtHR emphasised domestic courts’ key role in climate change litigation and of access to justice. 

 Admissibility 

The ECtHR set separate specific criteria for establishing standing under the ECHR for individual applicants (victim status) and associations acting on behalf of individuals in climate change related matters. 

• The threshold for fulfilling the individual victim status criteria (under Article 34) requires the individual to demonstrate that they have been personally and directly affected by the impugned failures of the State to combat climate change (as the ECHR does not admit general public-interest complaints). This threshold was not fulfilled by the individual four applicants in this case and their claims were declared inadmissible.
• The ECtHR held that the threshold for legal standing of representatives in the context of climate change requires special consideration, to reflect that climate change is an issue of common concern for humankind and there is a need to promote intergenerational burden-sharing and, as a result, the need for NGOs to have wide access to justice in matters concerning environmental protection (as this may be the only accessible means to defend particular interests in this context). KlimaSeniorinnen fulfilled the relevant criteria as it is lawfully established, pursues a dedicated human rights purpose against threats from climate change and is genuinely qualified to act on behalf of those individuals that claim to be subject to the specific threats to their rights protected under the ECHR. 

What does Switzerland have to do now?

The ECtHR’s judgment is directly binding on Switzerland; however, the ECtHR does not itself have powers of enforcement, and it is the role of the Council of Europe Committee of Ministers to supervise the adoption of domestic measures to stop the violations of Articles 6.1 and 8 found by the ECtHR and to ensure that the domestic authorities and their policies comply with the positive obligations imposed by the ECHR. This is on the basis that the State (with proper supervision) is “better placed than the Court to assess the specific measures to be taken” to give effect to the ECtHR’s judgment. The ECtHR’s judgment is final and cannot be appealed. 

On this point, the ECtHR directly addressed its own subsidiary role, the States’ margin of discretion and competence to rule with respect to climate change litigation given the complex intersection between law and policy in this context, stating in its judgment that “this subject matter is no longer merely an issue of politics or policy but also a matter of law having a bearing on the interpretation and application of the [ECHR]” [450] and “given the necessity of addressing the urgent threat posed by climate change, and bearing in mind the general acceptance that climate change is a common concern of humankind…there is force in the argument put forward by the UN Special Rapporteurs that the question is no longer whether, but how, human rights courts should address the impacts of environmental harms on the enjoyment of human rights” [451].

What can we expect in a post - Verein KlimaSeniorinnen Schweiz world?

Under the supervision of the Council of Europe’s Committee of Members, the judgment will compel Switzerland to look to ensure it meets its GHG emissions reductions targets and implements adequate climate change legislation. It is clear that the climate mitigation steps taken by Switzerland going forward will be subject to particular scrutiny. 

Further, on the basis of the living instrument doctrine (i.e. the ECtHR interprets the ECHR, in light of present day conditions and in accordance with developments in international law) the ECtHR’s finding here should be considered by all Contracting States when looking at their own adherence to the ECHR and, specifically, the adequacy of the climate mitigation frameworks those States have in place including the reduction targets and pathways to meet the overall national GHG reduction goals within the relevant time frames. Given the discussion in the KlimaSeniorinnen judgment, the processes around the setting of and compliance with carbon budgets is likely to be an area ripe for litigation going forward. 

The judgment is also likely to impact pending climate change-related claims in the ECtHR, as well as the deliberations of the Inter-American Court of Human Rights, the International Court of Justice and the International tribunal for the Law of the Sea who are currently considering advisory opinions. 

More broadly, the ECtHR’s verdict in Verein KlimaSeniorinnen Schweiz to impose positive obligations on States to mitigate climate change (and its direct consideration of the intersection of human rights and climate change) is likely to inform the extent to which human rights should be considered as part of climate change policy development – not just by contracting States, but globally.  

We note that domestic courts in the Netherlands (see Urgenda Foundation v. State of the Netherlands), France (see Notre Affaire à Tous and Others v. France) and Germany (Neubauer, et al. v. Germany) have ruled on cases brought against the state on similar grounds, but this first decision of the ECtHR will be looked to by the global stage when considering potential challenges to climate inaction. We understand that the KlimaSeniorinnen were inspired by the Urgenda case and this is what led them to bring their initial claim to the domestic courts indicated the (very real) domino effect these cases can have. 

And while the cases discussed above relate to action taken against States, it is important to note that these and similar human rights-based arguments are being used to hold private companies to account for failure to take adequate climate mitigation action. Of particular note is the landmark 2021 case of Milieudefensie et al. v. Royal Dutch Shell plc in the Netherlands, where Shell was ordered to reduce its global carbon emissions by 45% by 2030 compared with 2019 levels (currently under appeal). The ongoing case of Smith v Fonterra in New Zealand is another apt example and we can only expect this to increase.

It is clear that the intersection between climate change and human rights is complex and shifting, and so it will be important for companies to keep abreast of clarifications made and judgments given by European and other courts as a way of looking to predict future trends in strategic climate litigation in Australia and to go some way to understanding and engaging with stakeholder expectations in this area, particularly in circumstances where arguments made against States in relation to the setting of (and adherence to) carbon budgets might to be used against private enterprises in the future. This knowledge and understanding should then inform the policies, procedures and risk management frameworks that organisations has in place to address the challenges (and opportunities) that climate change is posing.