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In a quite interesting case, the European Court of Human Rights issued its opinion and judgment in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (ECHR 087 (2024) 09.04.2024). Rather than providing a second hand summary of the summary of the ECHR action it might be worth reading the Press Release issued by the ECHR:
Violations of the European Convention for failing to implement sufficient
measures to combat climate change
In today’s Grand Chamber judgment1 in the case of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20) the European Court of Human Rights held, by a majority of sixteen votes to one, that there had been:a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights;and, unanimously, that there had been:a violation of Article 6 § 1 (access to court).The case concerned a complaint by four women and a Swiss association, Verein KlimaSeniorinnen Schweiz, whose members are all older women concerned about the consequences of global warming on their living conditions and health. They consider that the Swiss authorities are not taking sufficient action, despite their duties under the Convention, to mitigate the effects of climate change.
The Court found that Article 8 of the Convention 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.
However, it held that the four individual applicants did not fulfil the victim-status criteria under Article 34 of the Convention and declared their complaints inadmissible. The applicant association, in contrast, had the right (locus standi) to bring a complaint regarding the threats arising from climate change in the respondent State on behalf of those individuals who could arguably claim to be subject to specific threats or adverse effects of climate change on their life, health, well-being and quality of life as protected under the Convention.
The Court found that the Swiss Confederation had failed to comply with its duties (“positive
obligations”) under the Convention concerning climate change. There had been critical gaps in the process of putting in place the relevant domestic regulatory framework, including a failure by the Swiss authorities to quantify, through a carbon budget or otherwise, national greenhouse gas (GHG) emissions limitations. Switzerland had also failed to meet its past GHG emission reduction targets.
While recognising that national authorities enjoy wide discretion in relation to implementation of legislation and measures, the Court held, on the basis of the material before it, that the Swiss authorities had not acted in time and in an appropriate way to devise, develop and implement relevant legislation and measures in this case.
In addition, the Court found that Article 6 § 1 of the Convention applied to the applicant
association’s complaint concerning effective implementation of the mitigation measures under
existing domestic law. The Court held that the Swiss courts had not provided convincing reasons as to why they had considered it unnecessary to examine the merits of the applicant association’s complaints. They had failed to take into consideration the compelling scientific evidence concerning climate change and had not taken the complaints seriously.
For further information, please see these Questions and Answers on the three Grand Chamber cases
"The ECHR on Tuesday ruled that two other similar climate cases were inadmissible: one was brought by six Portuguese youths petitioning against more than 30 European governments and another was submitted by a former mayor of a French town." (A landmark ruling in Europe's top rights court delivers a watershed moment for climate litigation).
The 258 page judgment may be accessed HERE. The table of contents with links to each section follows below along with links to other filings in the case.
| Filing Date | Type | File | Summary | |||||
|---|---|---|---|---|---|---|---|---|
| 11/26/2020 | Application | Download | Application to the European Court of Human Rights | |||||
| 03/25/2021 | Order | Download | Court communication letter to the Swiss government (in English) | |||||
| 04/26/2021 | Order | Download | Subject matter of the case and questions attached to the communication letter (in French) | |||||
| 07/16/2021 | Reply | Download | Swiss Government's reply on admissibility and merits | |||||
| 09/21/2021 | Not Available | Download | Third party intervention by the International Commission of Jurists (ICJ) and the Swiss Section of the ICJ | |||||
| 09/22/2021 | Not Available | Download | Third Party Intervention by Altsean-Burma, Comisión Colombiana de Juristas (CCJ), Comité Ambiental en Defensa de la Vida (CADV), The European Center for Constitutional and Human Rights (ECCHR), FIAN International, The Global Initiative for Economic, Social, and Cultural Rights (GIESCR), Human Rights Action (HRA), The international Human Rights Clinic at the University of Virginia School of Law, Layla Hugues, Minority Rights International (MRG), Observatori DESC (ESCR observatory), The Oficina para América Latina de la Coalición Internacional para el Hábitat (HIC-AL), The Women’s Legal Centre (WLC) | |||||
| 09/17/2021 | Not Available | Download | Third Party Intervention by E. Brems of the Human Rights Centre of Ghent University | |||||
| 09/22/2021 | Not Available | Download | Third Party Intervention by ENNHRI – European Network of National Human Rights Institutions | |||||
| 09/17/2021 | Not Available | Download | Third Party Intervention by E. Schmid and V. Boillet of Université de Lausanne (english) (french version) | |||||
| 09/15/2021 | Not Available | Download | Third Party Intervention by Global Justice Clinic, Climate Litigation Accelerator and C. Voigt | |||||
| 09/21/2021 | Not Available | Download | Third Party Intervention by International Commission of Jurists | |||||
| 09/22/2021 | Not Available | Download | Third Party Intervention by S. Seneviratne and A. Fischlin of ETH Zürich | |||||
| 09/21/2021 | Not Available | Download | Third Party Intervention by United Nations High Commissioner for Human Rights | |||||
| 09/15/2021 | Not Available | Download | Third Party Intervention by UN Special Rapporteurs and UN independent expert – M. A. Orellana – D.R. Boyd – C. Mahler | |||||
| 10/13/2021 | Reply | Download | Petitioner's reply. | |||||
| 10/13/2021 | Reply | Download | Reply made on October 13, 2021 by the Swiss Women Ass'n (Part 1 - Summary) | |||||
| 10/13/2021 | Reply | Download | Reply made on October 13, 2021 by the Swiss Women Ass'n (Part 2 - Observations on the Facts) | |||||
| 10/13/2021 | Reply | Download | Reply made on October 13, 2021 by the Swiss Women Ass'n (Part 3 - Observations on the Law) | |||||
| 10/13/2021 | Reply | Download | Reply made on October 13, 2021 by the Swiss Women Ass'n (Part 4 - Request for Just Satisfaction/Request for General Measures) | |||||
| 04/26/2022 | Order | Download | Relinquishment of jurisdiction in favor of the Grand Chamber. | |||||
| 12/02/2022 | Petition | Download | Observations on the facts, admissibility and the merits by Klimaserioninnen. | |||||
| 12/05/2022 | Not Available | Download | Third party intervention submitted by the Sabin Center for Climate Change Law. | |||||
| 12/05/2022 | Not Available | Download | Third party intervention submitted by Germanwatch, Greenpeace Germany and Scientists for Future. | |||||
| 04/09/2024 | Judgment | Download | Judgment from the European Court of Human Rights. | |||||
| 04/09/2024 | Press Release | Download | Press release from the ECtHR regarding the judgment. |
CASE OF VEREIN KLIMASENIORINNEN SCHWEIZ AND OTHERS v. SWITZERLAND
(Application no. 53600/20)
JUDGMENT
Art 34 • Victim • Locus standi • Separate key criteria set out for establishing victim status of individual applicants and locus standi (representation) of associations in climate-change context • Need for effective protection of Convention rights taking into account special features of this phenomenon without undermining the exclusion of actio popularis from the Convention system • In case-circumstances victim-status criteria not fulfilled by individual applicants • Especially high threshold for fulfilling criteria not met (incompatible ratione personae) • Applicant association fulfilled relevant criteria (locus standi) and thus had standing to act on behalf of its members • Importance of collective action and intergenerational burden-sharing in climate-change context
Art 8 • Positive obligations • Private and family life • Respondent State’s failure to comply with positive obligation to implement sufficient measures to combat climate change • Art 8 applicable • Art 8 encompassing a right for individuals to effective protection by the State authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life • Need to develop a more appropriate and tailored approach as regards the various Convention issues arising in the climate-change context not addressed by Court’s existing environmental case-law • Importance of intergenerational burden‑sharing • Reduced margin of appreciation as regards State’s commitment combating climate change, its adverse effects and the setting of aims and objectives in this respect • Wide margin of appreciation as to the choice of means designed to achieve those objectives • Contracting State’s primary duty to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change • Enumeration of requirements to which competent authorities need to have due regard • Need for domestic procedural safeguards • Mitigation measures to be supplemented by adaptation measures aimed at alleviating the most serious or imminent consequences of climate-change • Existence of critical lacunae in Swiss authorities’ process of putting in place the relevant domestic regulatory framework • Failure to quantify, through a carbon budget or otherwise, national GHG emission limitations • Failure to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework • Wide margin of appreciation exceeded
Art 6 § 1 (civil) • Access to court • Applicability of civil limb concerning the effective implementation of mitigation measures under domestic law • Domestic courts’ failure to engage seriously or at all with applicant association’s action • Lack of convincing reasons for non-examination of merits of complaints • Failure to consider compelling scientific evidence concerning climate change and to examine applicant association’s legal standing • Lack of further legal avenues or safeguards • Very essence of right of access to court impaired • Emphasis on domestic courts’ key role in climate -change litigation and of access to justice in this field
Art 46 • Execution of judgment • General measures • Respondent State to assess specific measures to be taken with the assistance of the Committee of Ministers
STRASBOURG
9 April 2024
This judgment is final but it may be subject to editorial revision.
TABLE OF CONTENTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicants’ particular situation
2. The second to fifth applicants
B. Proceedings instituted by the applicants
1. The applicants’ requests to the authorities
2. Proceedings in the Federal Administrative Court
3. Proceedings in the Federal Supreme Court
II. FACTS CONCERNING CLIMATE CHANGE
A. Submissions by the applicants
1. General observations on climate change
2. The situation in Switzerland
3. Measures taken by the Swiss authorities
B. Submissions by the Government
C. Facts in relation to climate change emerging from the material available to the Court
RELEVANT LEGAL FRAMEWORK AND PRACTICE
B. Federal Act on the Protection of the Environment
E. The Federal Administrative Procedure Act
II. RELEVANT INTERNATIONAL MATERIALS
1. The system of the United Nations Framework Convention on Climate Change
(a) United Nations Framework Convention on Climate Change
3. The United Nations General Assembly
(a) Resolution on the human right to a clean, healthy and sustainable environment
(b) Other General Assembly material
4. The Secretary‑General of the United Nations
(iii) Independent expert on human rights and international solidarity
(iv) Independent Expert on the enjoyment of all human rights by older persons
7. Committee on the Elimination of Discrimination against Women
8. Committee on the Rights of the Child
9. Committee on Economic, Social and Cultural Rights
10. Office of the High Commissioner for Human Rights
1. Parliamentary Assembly of the Council of Europe
3. Council of Europe Commissioner for Human Rights
3. Case‑law of the Court of Justice and the General Court of the European Union
D. Material from other regional human rights mechanisms
(b) The Inter-American Court of Human Rights
(c) The Inter-American Commission on Human Rights
A. Relevant comparative materials concerning the Aarhus Convention
B. Overview of domestic case‑law concerning climate change
(d) Examples of orders and coercive fines imposed in climate cases
D. Compliance with the six-month time-limit
II. INTRODUCTORY REMARKS REGARDING THE COMPLAINTS RAISED IN THE PRESENT CASE
III. ALLEGED VIOLATION OF ARTICLES 2 AND 8 OF THE CONVENTION
(c) Applicability of the relevant Convention provisions
(i) Article 2 of the Convention
(ii) Article 8 of the Convention
(c) Applicability of the relevant Convention provisions
(i) Article 2 of the Convention
(ii) Article 8 of the Convention
B. The third‑party interveners
(f) The Government of Portugal
(h) The Government of Slovakia
2. United Nations High Commissioner for Human Rights
4. International Commission of Jurists (ICJ) and the ICJ Swiss Section (ICJ‑CH)
5. European Network of National Human Rights Institutions (ENNHRI)
7. The Human Rights Centre of Ghent University
8. Professors Evelyne Schmid and Véronique Boillet (University of Lausanne)
12. Our Children’s Trust, Oxfam France and Oxfam International and its affiliates (Oxfam)
14. Center for International Environmental Law and Dr Margaretha Wewerinke‑Singh
15. The Sabin Center for Climate Change Law at Columbia Law School
16. Germanwatch, Greenpeace Germany and Scientists for Future
2. General considerations relating to climate‑change cases
(c) Effects of climate change on the enjoyment of Convention rights
(d) The question of causation and positive obligations in the climate-change context
(e) The issue of the proportion of State responsibility
(f) Scope of the Court’s assessment
(g) Relevant principles regarding the interpretation of the Convention
(a) Victim status/locus standi (representation)
(ii) Victim status/locus standi in the climate-change context
(iii) Application of these principles to the present case
(b) Applicability of the relevant Convention provisions
(ii) Application of these principles to the present case
(b) The States’ positive obligations in the context of climate change
(i) The States’ margin of appreciation
(ii) Content of the States’ positive obligations
(c) Application of the above principles to the present case
(ii) The respondent State’s compliance with its positive obligations
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
(b) Applicability of Article 6 § 1 of the Convention
(ii) Applicability of Article 6 § 1 in the climate‑change context
(iii) Application of the above principles and considerations to the present case
(b) Application of the above principles to the present case
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
VI. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION
A. Article 41 of the Convention
B. Article 46 of the Convention
PARTLY CONCURRING PARTLY DISSENTING OPINION OF JUDGE EICKE
The Court’s role and evolutive interpretation
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