10 questions on the Verein Klimaseniorinnen Schweiz judgment of the ECtHR of 9 April 2024
- Séphora Kermabon
- Jul 11, 2024
- 7 min read
Updated: Jul 15, 2024
The European Court of Human Rights (ECtHR or Court) has drawn a link between respect for human rights and the impacts of climate change.
With this ruling, the ECtHR has established a legal link between respect for human rights and the consequences of climate change. Here are 10 questions to understand why this is essential for future climate litigation.
1. Who were the applicants?
The case was brought in 2020 by four Swiss women aged over 80. It was also filed by a Swiss association called Verein Klimaseniorinnen Schweiz, which aims to promote and implement effective climate protection measures on behalf of its members, which include more than 2,000 older women.
2. Who did they claim against?
The applicants filed their application against the Swiss State. Applications can only be made to the ECtHR against States which have ratified the European Convention on Human Rights (hereinafter the Convention). Conversely, the ECtHR does not have jurisdiction in cases (i) involving disputes between private individuals or legal entities, (ii) or to challenge national court decisions as such.
3. What did the applicants request from the ECtHR?
The applicants argued that Switzerland was not taking sufficient measures to mitigate the effects of climate change (including heatwaves), which adversely affect their health and living conditions as elderly women, on the basis of their rights and freedoms guaranteed by the Convention.
The ECtHR only examines allegations of violations by States parties of human rights as set out in the Convention and its protocols.
The applicants and the NGO argued that Switzerland had failed to respect:
Article 2 of the Convention – Right to life: The applicants claimed that Switzerland had not taken the necessary measures to reduce emissions to comply with the 1.5°C warming limit, thereby putting their lives at serious risk due to rising temperatures. They argued that even in the absence of imminent danger, the State's obligation to protect life applies where there is a known and serious risk to life, and invoked the precautionary principle to justify this approach.
Article 8 of the Convention – Right to respect for private and family life, including their home: The applicants argued that the Swiss authorities, despite their obligations under the Convention, had not taken sufficient measures to mitigate the effects of climate change, nor had they adopted appropriate legislation coupled with adequate and sufficient measures to achieve climate change targets, as required by their international obligations.
Article 6§1 of the Convention – Right to a fair trial and effective remedy: They denounced the lack of adequate access to justice and effective remedy under domestic law against the State's insufficient actions against the effects of climate change (Article 8 of the Convention).
Article 13 of the Convention – Right to an effective remedy: They did not have an effective domestic remedy for their grievances under Articles 2 and 8 of the Convention.
4. Is the Court competent to rule on the consequences of climate change?
Yes, under certain conditions. The Court considers that it can only intervene on climate change within the limits of its jurisdiction, which is to ensure that Member States comply with their obligations under the Convention. However, the Court considers that State failure to address climate change exacerbates risks to human rights, risks that are supported by scientific evidence. It recognises the existence of anthropogenic climate change and links this serious threat to the human rights protected by the Convention. It also states that current measures are insufficient to limit warming to 1.5°C and that the consequences of inaction today could severely affect future generations.
5. How did the Court rule on the standing of the individual applicants and the association?
For an application to be declared admissible by the Court, the applicants must meet the criteria for victim status (Art. 34 of the Convention). A high threshold has been set for claiming victim status in cases related to climate change. Individual applicants must:
Demonstrate that they have been personally and directly affected by the action or inaction of public authorities.
Meet demanding criteria such as intense exposure to the adverse effects of climate change and a compelling need for individual protection.
However, the ECtHR found that the four individual applicants did not meet these criteria. It therefore declared their applications inadmissible.
Nevertheless, in a significant development, the ECtHR held that the association Verein Klimasoniorinnen Schweiz was entitled to bring proceedings on behalf of the individuals concerned by the threats of climate change in Switzerland. The Court recognised the need to allow NGOs to litigate in the field of climate change due to its critical nature for humanity and the need to promote intergenerational burden sharing.
This is an important point as the ECtHR has not previously allowed public interest litigation.
6. What are the violations recognised by the ECtHR?
The ECtHR ruled that Article 8 was applicable in the context of the NGO's application. Consequently:
Article 2 of the Convention - Right to life: The ECtHR considered that there was no need to rule on Article 2, although it noted that the principles developed under Article 2 are broadly similar to those stated under Article 8.
Article 8 of the Convention - Right to respect for private and family life, including their home: The ECtHR found that Switzerland had failed to fulfill its positive obligations to protect against the effects of climate change under Article 8 of the Convention. Article 8 establishes the right to effective protection against the adverse effects of climate change on the life, health and well-being of the individual. States are obliged to implement regulations and concrete measures to mitigate these effects in accordance with their international commitments and scientific information provided by organisations such as the Intergovernmental Panel on Climate Change (IPCC). The Court found serious deficiencies in Switzerland's domestic legislation, including the absence of quantified national emission ceilings and the failure to meet emission reduction targets.
Article 6 of the Convention - Right to a fair trial and effective remedy: The ECtHR ruled that Article 6 § 1 of the Convention applied to the association's complaint regarding the effective implementation of the mitigation measures provided for in the applicable law, emphasising the importance of collective action against climate change. It concluded that the dismissal of the association's complaint constituted a violation of the right of access to a court, as the domestic courts had not adequately considered the scientific evidence on climate change or seriously considered the association's complaints.
7. What Switzerland must do in practice following this judgment?
In some cases, the Court considers it useful to specify the types of individual and/or general measures that the State concerned could take in order to put an end to the problem.
However, this is not the case here, given the complexity and nature of the matter. The ECtHR has determined that Switzerland, having been found responsible for a violation of the Convention, must take general and/or individual measures, under the supervision of the Committee of Ministers, to put an end to the violation established by the Court.
8. Great Chamber, great significance?
This judgment sets a precedent of considerable importance for disputes linking respect for human rights and the effects of climate change. There were many signals pointing to its prominent role:
The Chamber decided to give priority to this application on the basis of Article 41 of the Rules of the ECtHR.
The original chamber relinquished jurisdiction in favour of the Grand Chamber (no longer just three judges, but the entire panel of 33 judges hearing the case).
This case was assigned to the same Chamber as two other climate-related cases, which were decided on 9 April 2024: Carême v. France (application no. 7189/21) and Duarte Agostinho et al. v. Portugal and 32 others (application no. 39371/20).
This ECtHR decision marks a significant step forward in recognising the role of associations in combating climate change, while at the same time emphasising the need for a high threshold for granting victim status in such cases.
9. What are the implications for future litigation?
The ECtHR opens the door to litigation linking climate issues and respect for human rights on the basis of its Convention.
Moreover, the Court states from the outset that climate change is one of the most pressing issues of our time.
The Court considers that it "must also take into account the fact that the past inadequacy of State action to combat climate change, a widely recognised inadequacy, is having the effect worldwide of aggravating the risks of adverse effects and threats - already recognised by States throughout the world - deriving from the enjoyment of human rights".
From now on, the ECtHR recognises a causal link between climate change and human rights, acknowledging the established existence of anthropogenic climate change as a serious threat to human rights guaranteed by the Convention.
The Court also notes the specificity of the climate issue, which is "polycentric and global":
for which "the intergenerational distribution of effort is of particular importance, both for the different generations of people living today and for future generations".
for which it would be "neither satisfactory nor appropriate to directly transfer existing environmental jurisprudence to the field of climate change". Indeed, environmental litigation tends to be localised, whereas the causes and consequences of climate change are global (with greenhouse gas emissions at the forefront).
Genuine expertise in climate change and human rights will be needed to address future litigation.
10. How to bring a climate case to the ECtHR?
One of the main criteria is that the applicant must have "exhausted all domestic remedies in the Member State concerned". In other words, as in the present case, the application must begin in the courts of the applicant's state, with a qualified lawyer in that state. Only when the highest level of a State has ruled on the application can the ECtHR be approached. If justice takes a long time, this allows for real procedural and substantive progress, which can then inform climate litigation in every state party to the Convention.
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