Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (Application No. 53600/20) Judgment 9.4.2024 [GC]

In a landmark ruling in climate change jurisprudence, the European Court of Human Rights held, in a 260-page judgment, that Switzerland had violated Article 8 by failing to comply with its positive obligation to combat climate change.

The applicants brought the case on the basis that the Swiss government had failed to take measures to mitigate climate change which had adversely affected their lives and health. The applicants also complained of a violation of Article 6.

Standing

The applicants were the Swiss association ‘Verein KlimaSeniorinnen Schweiz’ – a group of over 2,000 older women concerned about the consequences of climate change on their health – as well as four individual women aged over 80 who stated their health problems were exacerbated during heatwaves.

The court’s caselaw on victim status emphasises the existence of a direct impact, or real risk thereof, of the impugned action or omission on the applicant. In recognition of the fact that this could encompass a vast number of persons in the climate change context, the court set out two criteria: (1) the applicant must be subject to a high intensity of exposure to the adverse effects of climate change; and (2) there must be a pressing need to ensure the applicant’s individual protection.

Upon careful consideration of the nature and scope of the four individual applicants’ complaints, the court held they did not fulfil the victim-status criteria as it was not apparent that they were exposed to the effects of climate change with the sufficient degree of intensity.

In respect of the standing of the women’s association, the court emphasised the importance of recourse to collective entities to defend the rights and interests of affected individuals. For an association to have standing in such a climate change case, the court held that three criteria had to be fulfilled by the association. It must be:

1. lawfully established in the jurisdiction concerned;
2. have a dedicated purpose to defend the human rights of its members, including against threats arising from climate change; and
3. genuinely qualified and representative to act on behalf of its members.

In addition, the court would consider whether on the whole, in the particular circumstances of a case, the grant of such standing was in the interests of the proper administration of justice. It held that the applicant association in this case fulfilled the relevant criteria and thus had the necessary legal standing.

Interestingly, the case not only considered the greenhouse gas emissions directly produced in Switzerland, but also those emissions generated abroad attributable to Switzerland through the import of goods for household consumption. Whilst this contained an ‘extraterritorial aspect’, the issue of responsibility for those emissions should be examined in relation to the merits of the complaint; it did not raise an issue of Switzerland’s jurisdiction in respect of the applicants.

The ECtHR’s Ruling

The court’s assessment was conducted against the background that it was a matter of fact that climate change existed, that it posed a serious current and future threat to the enjoyment of human rights, and that states were aware of it and capable of taking measures to effectively address it.

Importantly, the court stated that Article 8 encompassed a right for individuals to effective protection by the state authorities from serious adverse effects of climate change on their life, health, well-being and quality of life.

The court drew a distinction between the margin of appreciation afforded to states in their commitment to combating climate change and setting requisite aims to do so, and the choice of means used to achieve those aims. There was a reduced margin of appreciation for the former, but states should be afforded a wide margin of appreciation in the operational policies adopted to tackle their emissions.

Bearing in mind commitments to the United Nations Framework Convention on Climate Change (UNFCCC) and other international agreements, states needed to put in place the necessary measures aimed at preventing an increase in emissions to such a level capable of serious and irreversible adverse effects on human rights under Article 8.

In assessing whether a state is complying with its primary duty to adopt regulations and measures capable of mitigating the effects of climate change, the court would consider the following:

• the adoption of measures that indicate a specific target timeline to achieve a specific reduction and/or net zero carbon emissions;
• the state’s intermediate greenhouse gas emission targets;
• whether there is evidence showing compliance with these targets;
• updates to targets based on best available evidence; and
• the need to act in good time and in an appropriate and consistent manner.

Applying these to the present case, the court found there was a ‘critical lacunae’ in the Swiss authorities’ implementation of the relevant domestic regulatory framework. They had failed to quantify national emissions limitations, failed to meet past emission reduction targets, and failed to act appropriately regarding the devising, development and implementation of the relevant framework. Accordingly, it had exceeded its margin of appreciation and failed to comply with its positive obligations under Article 8.

The court also held there had been a violation of Article 6, finding that the domestic courts had not engaged seriously or at all with the action. Domestic appeals had been dismissed on the basis that the applicants had not shown their rights had been affected by climate change in a way that was different to the rest of the population.

Impact of the Ruling

The court was not prescriptive in regard to any measures that should be implemented by the Swiss authorities to comply with their judgment.

Subsequently, Switzerland’s parliament has voted to reject the court’s ruling on the basis that it has an effective climate change strategy. However, the Swiss government is yet to make a final decision as to whether to comply with the judgment of the ECHR.

Whilst the impact in Switzerland remains to be seen, this case sets out important guidance, on both standing and merits, for cases concerning climate change and its impact on individuals’ rights, particularly those brought by collective associations. It demonstrates that commitments made by states to protect their citizens from climate change are not merely aspirational, but may be enforceable where authorities fail to implement measures to achieve such aims.