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On 9 April 2024 the European Court of Human Rights delivered its first judgment concerning climate change in the case VEREIN KLIMASENIORINNEN SCHWEIZ AND OTHERS v. SWITZERLAND (coe.int). ClientEarth acted as a third party intervener in this historic case.
This was the first ever climate case to be decided by an international human rights court anywhere in the world. ClientEarth is proud to have acted as a third party intervener and to have assisted the Court with its expertise in this landmark case. The Court found Switzerland to have violated two of the fundamental rights guaranteed by the European Convention on Human Rights. The Court found that Switzerland breached not only the right to private and family life, but also and the right to access to court. The European Court of Human Rights’ judgment here is an encouraging indication of how other international and regional courts will approach the problem of the climate crisis and insufficient action by states.
The applicants in the case were an association for the prevention of climate change whose members are women with an average age of 73 and, separately, four elderly women who complain of health risks, exacerbated by climate change (specifically heatwaves). The applicants complained to the European Court of Human Rights that Switzerland has failed to fulfil its obligation to protect their health and life and to ensure respect for their private and family life. They argued that Switzerland has failed to introduce suitable legislation to put in place appropriate and sufficient measures to fight climate change. They also argued that Switzerland denied them access to the national courts to make such claims.
The role of ClientEarth’s third party intervention was to assist the Court by providing information on the following issues:
(i) the present and future effects of global temperature increases on human health
(ii) the duties of States under international climate change law
(iii) the implications for climate policy and legislation and the due diligence standard under the Convention.
Switzerland’s defence, in its submissions to the Court, made the familiar argument that there’s not much individual states can do to affect a global problem like climate change. In its judgment, the Court rejected what it called Switzerland’s ‘drop in the ocean’ argument, i.e. that one country alone cannot make much of a difference to global heating. Instead the Court upheld the principle that each state is responsible for its contribution to the crisis.
The Court also highlighted the importance of intergenerational burden-sharing both regarding the different generations of those currently living and future generations. The Court also explicitly insisted upon the right to judicial review of climate inaction – especially given the aggravated climate risks for future generations who are deprived of the opportunity to take part in present political processes. Here is what the judges said:
“future generations are likely to bear an increasingly severe burden of the consequences of present failures and omissions to combat climate change and at the same time, they have no possibility of participating in the relevant current decision-making processes…”
The Court further underscored this, with the following words:
“the risk inherent in the relevant political decision-making processes, [… is] that short-term interests and concerns may come to prevail over, and at the expense of, pressing needs for sustainable policymaking, rendering that risk particularly serious and adding justification for the possibility of judicial review.”
Switzerland has violated the right to private and family life
In its reasoning for finding a violation of the right to respect for private and family life, the Court elaborated standards which are binding on all 46 Member States of the Council of Europe. These standards concern both climate mitigation obligations and climate adaptation obligations.
In the area of climate mitigation obligations, the Court stipulated that in order to be effective, the regulatory frameworks of each Member State must limit national greenhouse gas (GHG) emissions through a carbon budget or other quantifiable measures.
In another, very important conclusion, the Court made explicit that Member States cannot evade their lack of a national carbon budget, by pointing towards their Nationally Determined Contributions, or NDCs, under the Paris Agreement. Being a signatory to the Paris Agreement, according to the Court, is not enough for States to dispense with their human rights obligations.
With respect to this and future climate cases before it, the Court said that it “will examine whether the competent domestic authorities, be it at the legislative, executive or judicial level, have had due regard to the need to:
(a) adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;
(b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;
(c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub-paragraphs (a)(b) above);
(d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and
(e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.
The Court also found that states’ duties cover all emissions impacts of activities within their jurisdiction, explaining that ‘extraterritorial’ emissions emitted in other countries are also in principle covered by states’ obligations under the Convention – these would include for example ‘embedded’ or ‘consumption’ emissions related to the manufacture of products that are consumed in the state in question or ‘exported’ emissions from the use of a state’s exported fossil fuels.
The court also stressed that the adaptation obligations of states to protect individuals from climate harms are also of key importance. Such adaptation measures need to be taken in accordance with the best available evidence, and must be aimed at alleviating the most severe or imminent consequences of climate change, taking into account any relevant particular needs for protection.
Switzerland has violated the right to access to court
With respect to the right of access to a court of the complainant association, the court found that it was “restricted in such a way and to such an extent that the very essence of the right was impaired.” The Court emphasised “the key role which domestic courts have played and will play in climate-change litigation” and highlighted the importance of access to courts to challenge insufficient climate action of states.
In another groundbreaking conclusion, the Court also expanded the legal standing of NGOs to take climate human rights-based cases before it. The Court formulated certain criteria that associations wishing to lodge such cases before the Court. According to these criteria, the associations must be:
“(a) lawfully established in the jurisdiction concerned or have standing to act there;
(b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and
(c) able to demonstrate that it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention.
In this connection, the Court will have regard to such factors as the purpose for which the association was established, that it is of non-profit character, the nature and extent of its activities within the relevant jurisdiction, its membership and representativeness, its principles and transparency of governance and whether on the whole, in the particular circumstances of a case, the grant of such standing is in the interests of the proper administration of justice.”
In terms of execution of the judgment, the Committee of Ministers of the Council of Europe (which is comprised by the Foreign Affairs Ministers of each member State) will supervise the adoption by Switzerland of measures to comply with the court’s judgment, in line with the usual process followed by the Court.
This case will certainly not be the last climate case to come before an international and regional court. This case, which ClientEarth was delighted to able to support, sets an important precedent for other international and regional courts, as well as for future decisions whether by the European Court of Human Rights or by national courts in signatory states.