Verein KlimaSeniorinnen Schweiz and Others v Switzerland – Application no. 53600/20, Grand Chamber (European Court of Human Rights, Strasbourg) (9 April 2024)

Introducción

In April 2024, the European Court of Human Rights (ECHR) issued a landmark judgement in Verein KlimaSeniorinnen Shweiz and Others v Switzerland determining that inadequate government climate policies violated fundamental human rights protected under the European Convention on Human Rights (the Convention). It is the first time the ECHR addressed legal questions raised by climate change. Identificación. at para. 414.

Sitting as Grand Chamber, the Court found that Switzerland’s failure to take timely and sufficient action on climate change is a human rights violation. The Court acknowledged that “climate change is one of the most pressing issues of our times”. Identificación. at para. 410. Moreover, according to the ECHR’s Grand Chamber, 

While the legal obligations arising for States under the Convention extend to those individuals currently alive who, at a given time, fall within the jurisdiction of a given Contracting Party, it is clear that future generations are likely to bear an increasingly severe burden of the consequences of present failures and omissions to combat climate change and that, at the same time, they have no possibility of participating in the relevant current decision-making processes.

Id. at para 420. 

In essence, the decision is a key precedent for future European climate litigation. The questions for the ECHR in this case were summarised as:

how and to what extent allegations of harm linked to State actions and/or omissions in the context of climate change, affecting individuals’ Convention rights (such as the right to life under Article 2 and/or the right to respect for private and family life under Article 8), can be examined without undermining the exclusion of actio popularis from the Convention system and without ignoring the nature of the Court’s judicial function, which is by definition reactive rather than proactive.

Id. at para. 481.

Background of the Case (Facts)

In late 2020, four elderly Swiss women nationals and the Verein KlimaSeniorinnen Schweiz, an association registered under Swiss law, initiated proceedings against Switzerland before the European Court of Human Rights. Id. at para. 10. Domestic challenges under Swiss constitutional and legislative law and the Convention had previously failed before administrative authorities and domestic courts at two levels of jurisdiction. Identificación. at para. 22-63.

The applicants made submissions about the impact of climate change on their lives and argued that their various health issues heightened their vulnerability to its effects. Id. at para. 11-21. Moreover, the individual applicants contended that they constituted a particularly vulnerable group based on their age and gender. Id. at para. 24. Applicants relied on several substantive and procedural provisions of the Convention, especially arts. 2, 6, 8 and 13. Identificación. at para. 3.

There were several third-party interveners including 8 governments, UN Special Procedures, civil society organisations, and academia. Identificación. at para. 6 – 7.

Relevant documents and evidence

The decision compiles and is based on relevant framework and practice, highlighting Switzerland’s legal instruments and case-law, as well as international and comparative law and materials. Identificación. at para. 121-272.

The ECHR relies on studies and reports by relevant international bodies, and highly regards reports prepared by the Intergovernmental Panel on Climate Change (IPCC). Id. at para. 429. In its assessment, the Court presumes that 

…there are sufficiently reliable indications that anthropogenic climate change exists, that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States are aware of it and capable of taking measures to effectively address it, that the relevant risks are projected to be lower if the rise in temperature is limited to 1.5°C above pre-industrial levels and if action is taken urgently… 

Id. at para. 436. 

Preliminary issues: scope of the complaint, jurisdiction and compliance with the six-month time-limit

The ECHR addressed the question of whether “embedded emissions” [as the applicants labelled those generated through the import of goods and their consumption] were within the scope of the complaint. The Court noted that, given that “…the GHG emissions attributable to Switzerland through the import of goods and their consumption form a significant part (an estimate of 70% for 2015) of the overall Swiss GHG footprint…”, “…it would therefore be difficult, if not impossible, to discuss Switzerland’s responsibility for the effects of its GHG emissions on the applicants’ rights without taking into account [these] emissions…” Identificación. at para. 279-280.

The Court dismissed the respondent Government’s objection in that respect and concluded that the applicants’ complaint regarding “embedded emissions” fall within the scope of the case, without prejudice to the examination of the actual effects of these emissions on the State’s responsibility under the Convention. The objections concerning the alleged lack of jurisdiction and applicant’s failure to comply with the six-month time limit were also dismissed. Identificación. at 288 and 290.

The role of the Judiciary in the climate context

Recalling that the Court can only deal with issues arising from climate change within the limits of the exercise of its jurisdiction, the Grand Chamber stressed the importance of the measures that “must be adopted by the legislative and executive branches of government”. Id. at para. 411-412. For this reason, the ECHR found that the role of the Judiciary is complementary to democratic processes and that of ensuring “the necessary oversight of compliance with legal requirements”. Identificación. at para. 412. 

The Court also distinguished its environmental case-law from the case at hand because the precedents involved situations where environmental damage emanated from specific sources. Id. at para. 415. It emphasised that climate damage does not relate to a single or specific source of emissions, and the substance primarily involved is not toxic in itself, or even related only to activities that would be classified as dangerous. Id. at paras. 416 and 418. The Tribunal thus indicated that it was inspired by the principles established in previous jurisprudence, but also sought to develop an approach more suited to the climate context. Identificación. at para. 422.

Regarding the particularity of the issue of causation, the decision also states that “the causal link between the acts or omissions on the part of State authorities in a country, and the harm, or risk of harm, arising there is necessarily more tenuous and indirect compared to that in the context of local sources of harmful pollution”. Identificación at para 439. Thus, “the essence of the relevant State duties in the context of climate change relates to the reduction of the risks of harm for individuals”. Id. at para. 439. Further, the Court has recognized that States should not evade their responsibility by pointing to the responsibility of other states. Identificación. at para. 442.

The ECHR also stressed the key role which domestic courts “have played and will play in climate-change litigation”, recalling that it is primarily the responsibility of national authorities, including the Judiciary, to ensure that obligations under the Convention are fulfilled. Identificación. at para. 639.

Whether the substantive Convention provisions (Articles 2 and 8) were violated

1. Victim status and Standing

The Court merged the question of victim status and standing with the assessment of the applicability of Articles 2 and 8 of the Convention. Id. at para 459. The ECHR determined that the climate crisis requires a special approach to victim status given that its “consequences are not limited to certain identifiable individuals or groups but affect the population more widely”. Identificación. at para. 479. 

Highlighting the necessity of promoting intergenerational burden-sharing, the Court considered that, in certain conditions, associations can have standing as representatives of the individuals whose rights are or will allegedly be affected by the climate crisis. Identificación. at para. 498. An eligible association must be:

1. “lawfully established in the jurisdiction concerned or have standing to act there;
2. 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
3. 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.” Identificación. at para. 502.

The Court thus concluded that granting standing to the Verein KlimaSeniorinnen Schweiz was in the interests of the proper administration of justice. Identificación. at para. 523.

Regarding the individual applicants, the ECHR did not grant them victim status and, thus, declared their complaints inadmissible. Identificación. at para. 535. The Convention prohibits actio popularis matters, that is, complaints about a national law provision on the grounds that it contravenes the Convention without the complainant being directly affected by the provision. Identificación. at para. 460 – 461. Although applicants belonged to a group which is particularly susceptible to the effects of climate change, the Court found that, for individuals to satisfy the victim status in the climate change context, two criteria must be met: high intensity of exposure to the adverse effects of climate change; and a pressing need to ensure the applicant’s individual protection. The threshold for fulfilling the criteria is especially high and it was not met according to the Court. Identificación. at para. 527, 531 and 533.

2. Violation of Articles 2 and 8

According to the complaint, Article 2 was triggered by Switzerland’s failure to take necessary steps to reduce emissions in line with the 1.5°C limit. Identificación. at para. 312. In addition, the applicants argued that the serious threat to their health, well-being and quality of life posed by climate change engaged Switzerland’s positive obligations under Article 8. Identificación. at para. 316. 

On the merits, the ECHR held that Article 2 would apply to complaints of State action and/or inaction in the context of climate change if present a “real and imminent” risk to life – understood as referring to “a serious, genuine and sufficiently ascertainable threat to life, containing an element of material and temporal proximity of the threat to the harm complained of by the applicant.” Identificación. at para. 513. Further, the Court found it appropriate to examine the association’s complaint under Article 8 alone as it considered that the principles developed under Article 2 closely resemble those under Article 8. Identificación. at para. 537 and 538.

Relying on the principle of subsidiarity, the Court considered that “the nature and gravity of the threat and the general overall GHG reduction targets in accordance with the Contracting Parties’ accepted commitments to achieve carbon neutrality, call for a reduced margin of appreciation for the States” Identificación. at para. 541 and 543. On the other hand, the Court points out that States have a wider margin of appreciation in relation to their choice of means and policies “adopted in order to meet international anchored targets and commitments in the light of priorities and resources”. Identificación. at para. 543.

The Court set that the State’s obligation under Article 8 in the climate change context is “to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change.” Identificación. at para. 545. However, “each individual State is called upon to define its own adequate pathway for reaching carbon neutrality . . .” Identificación. at para. 547. 

The Court explains:

In this context, in order for the measures to be effective, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner.

Moreover, in order for this to be genuinely feasible, and to avoid a disproportionate burden on future generations, immediate action needs to be taken and adequate intermediate reduction goals must be set for the period leading to net neutrality. Such measures should, in the first place, be incorporated into a binding regulatory framework at the national level, followed by adequate implementation. The relevant targets and timelines must form an integral part of the domestic regulatory framework, as a basis for the general and sectoral mitigation measures. …

Identificación. at paras. 548-549.

Per the ECHR, the important and sufficient factor to engage the state’s responsibility is that reasonable measures that the authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm. The Court ascertained that failure to comply with the duty to mitigate would suffice for the Court to conclude that the State failed to comply with its positive obligations under Article 8. Identificación. at para. 444 and 555. 

Ultimately, ECHR found critical gaps in the Swiss authorities’ enactment of the relevant regulatory framework and noted the State’s failure to meet its past GHG emission reduction targets. The Court concluded that Switzerland had exceeded its margin of appreciation and neglected its positive obligations. Identificación. at para. 573. The Court expounds:

In these circumstances, given the pressing urgency of climate change and the current absence of a satisfactory regulatory framework, the Court has difficulty accepting that the mere legislative commitment to adopt the concrete measures “in good time”, as envisaged in the Climate Act, satisfies the State’s duty to provide, and effectively apply in practice, effective protection of individuals within its jurisdiction from the adverse effects of climate change on their life and health.

Identificación. at para. 567.

In these circumstances, while acknowledging that the measures and methods determining the details of the State’s climate policy fall within its wide margin of appreciation, in the absence of any domestic measure attempting to quantify the respondent State’s remaining carbon budget, the Court has difficulty accepting that the State could be regarded as complying effectively with its regulatory obligation under Article 8 of the Convention.

Identificación. at para. 572.

Based on this, the Court found a violation of the right to respect for private and family life. Id. at para. 574.

Whether the procedural provisions (Articles 6(1) and 13) of the Convention were violated

As regards to Art 6(1), the applicants complained of lack of access to a court in relation to Switzerland’s failure to take necessary action to address the impacts of climate change. The Court initially defined the scope of the right under the provision to include the right to institute proceedings and the right to obtain a determination of the dispute by a court. Identificación. at para. 629.

ECHR found a limitation on the right to access a court, and subsequently assessed whether the limitation was proportionate and whether it operated to restrict access to a court to such an extent that the essence of the right was impaired. Identificación. at para. 630.

The Court further notes that the domestic courts did not address the issue of the standing of the applicant association, an issue which warranted a separate assessment irrespective of the domestic courts’ position as regards the individual applicants’ complaints. The domestic courts did not engage seriously or at all with the action brought by the applicant association.

What is more, before resorting to the courts the applicant association, and its members, had raised their complaints before various expert and specialised administrative bodies and agencies, but none of them dealt with the substance of their complaints.

Identificación. at paras. 636-637.

Moreover, the ECHR was not persuaded by the domestic courts’ findings that “there was still some time to prevent global warming from reaching the critical limit” because this was not based on enough scientific evidence about climate change. Identificación. at para. 635.

Consequently, the Court found a violation of Article 6(1) of the Convention. Identificación. at para. 640.

Finally, the ECHR determined that the requirements of Article 13 were absorbed by the more stringent requirements of Article 6. As such, the Court concluded that it was unwarranted to examine the complaint under Article 13 separately. Identificación. at para. 644.

Decision

The majority of the Court (16 to 1) found a violation of the right to respect for private and family life (Article 8), and access to a court (Article 6(1)). However, because of the complexity and nature of issues linked to climate change, the Court was unable to be “detailed and prescriptive as regards any measures to be implemented in order to effectively comply with the present judgement.” Identificación. at para. 657. Ultimately, the Court determined that Switzerland with the assistance of the Committee of Ministers is better placed to assess the specific measures to be taken. Identificación. at para. 656.