On 9 April 2024, the European Court of Human Rights (ECtHR) handed down judgment in three significant climate change-related cases against: (i) Switzerland; (ii) Portugal (and 32 other States); and (iii) France. This is the first time the ECtHR has considered the extent to which failure by a contracting State (Contracting State) to adequately address the risks of climate change results in a violation of the European Convention on Human Rights (ECHR). 

The cases brought against Portugal (and 32 other States) and France were ruled inadmissible on procedural grounds; however, in a landmark judgment, the ECtHR found that Switzerland had violated the ECHR by failing to have in place a framework to properly address climate change. In doing so, the ECtHR ruled, for the first time, that the ECHR imposes positive obligations on Contracting States to take adequate measures to mitigate climate change. This is a really key decision that is likely to pave the way for further legal challenges against parties to the ECHR for failure to take steps to address climate change as well as cause Contracting States to review their own adherence to the ECHR with respect to the climate change mitigation frameworks they have in place. 

Key Takeaways from the ECtHR decision

  • The ECtHR emphasised that states, including Switzerland, have a positive obligation to adopt and effectively implement regulations and measures to mitigate the existing and future effects of climate change. 
  • The ECtHR found that Article 8 (right to respect for private and family life) includes a right for individuals to effective protection by State authorities from serious adverse effects on their life, health, well-being and quality of life arising from the risks caused by climate change. 
  • In terms of legal standing, the ECtHR made clear that the threshold for individuals to bring a claim is especially high (requiring the individuals to evidence that they are directly and specifically impacted by the impugned action of the State); however, the ECtHR found that special consideration should be given to representative associations bringing climate change litigation (potentially opening the door for collective actions going forward).
  • The ECtHR emphasised the importance of intergenerational burden-sharing and that existing evidence and scientific findings on the urgency of addressing the adverse effects of climate change indicate that there is a pressing need to ensure the legal protection of human rights through authorities’ adequate actions to tackle climate change.

The role of the European Court of Human Rights

  • The ECtHR is an international court of the Council of Europe which interprets the ECHR.
  • The ECHR is an international treaty which only member States of the Council of Europe may sign. It sets out a list of the rights and guarantees which States have undertaken to respect. The ECHR establishes the ECtHR and its powers and functions.
  • The ECtHR ensures that States respect the rights and guarantees set out in the ECHR. The Court hears and determines complaints (applications) lodged by individuals, organisations or States. Where the ECtHR finds that a State has breached one or more of the rights and guarantees in the ECHR, the ECtHR delivers a judgment declaring a violation. Judgments are final (non-appealable) and binding. The State is under an obligation to comply with the judgment, under the supervision of the Council of Europe Committee of Ministers. The ECtHR is not empowered to overrule national decisions or laws.
  • The ECtHR also has advisory jurisdiction and, on request, will issue advisory opinions on questions of interpretation of the ECHR and its protocols that arise out of cases pending before domestic courts.
  • Before lodging an application to the ECtHR, an applicant must have exhausted all the remedies in the State concerned that could provide redress for the alleged violation.

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. 


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].

The six applicants (all Portuguese nationals living in Portugal) alleged that there had been a breach of Articles 2 (right to life), 3 (prohibition of inhuman and degrading treatment), 8 (right to respect for private and family life), and 14 (prohibition of discrimination) of the ECHR owing to the existing and serious future impacts of climate change in their home country and 32 other States. Specifically, the applicants complained of risks in relation to heatwaves, wildfires and smoke from wildfires, which affected their lives, well-being, mental health and the amenities of their homes. The applicants argued that Portugal was one of the European countries that would be most affected by the adverse impact of climate change and relied on relevant international documents, general reports, and expert findings concerning the harm caused by climate change to human health.

What did the ECtHR rule?

This case failed on procedural grounds, such that the ECtHR did not consider the merits of Portugal’s and the 32 other States’ allegedly inadequate climate change responses.

  • In relation to the complaint against the 32 States, the ECtHR found no basis in the ECHR to extend extraterritorial jurisdiction in the way the (Portuguese) applicants requested. The ECtHR held that extending jurisdiction extraterritorially would be equivalent to requiring States to satisfy substantive obligations under the ECHR despite not having control over the applicants or the territory where the applicants were suffering the alleged impacts. Such requirement on States could create an untenable level of uncertainty and would constitute a radical departure from established principles.
  • In relation to the claim against Portugal, on the basis that the applicants had not first brought their claims to the attention of the authorities or attempted to use any legal remedies in Portugal, the ECtHR found that the applicants had failed to take appropriate steps to enable the national courts to fulfil their fundamental role in the ECHR protection system and so dismissed the proceedings as inadmissible. 
  • In 2019, the applicant had brought a claim in his own name and on behalf of the municipality of Grande-Synthe, to ask the Council of State to annul the French Government’s refusal to take additional measures to meet the Paris Agreement objective of reducing GHG emissions by 40% by 2030.
  • The Council of State admitted the claim brought by the municipality of Grande-Synthe, but found that the applicant’s claims brought in his own name were inadmissible as they related to the risk of his property being affected by flooding, which was a hypothetical risk and insufficiently related to the proceedings.
  • In January 2021, Carême complained to the ECtHR that the Council of State erred in rejecting his claim (brought in this own capacity), as he is also exposed to climate risks caused by insufficient government action and that the authorities’ failure to act constitutes a violation of Article 8 and Article 2. 

What did the ECtHR rule?

The ECtHR found that the application was inadmissible, on the ground that the applicant had since relocated from France and could not satisfy victim status within the meaning of Article 34 (i.e. he was not personally and directly affected by the impugned failures of the State to have victim status).


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.