KlimaSeniorinnen v. Switzerland – A New Era for Climate Change Protection or Proceeding with the Status Quo?

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Climate change scholars and members of the public are dedicating their attention to the European Court of Human Rights (ECtHR, the Court) in Strasbourg, where its first climate change cases are being decided. Currently, three climate cases are pending before the Grand Chamber of the ECtHR: Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20), Carême v. France (application no. 7189/21) and Duarte Agostinho and Others v. Portugal and 32 Others (application no. 39371/20). In the case of KlimaSeniorinnen v. Switzerland, the applicants have argued for a violation of Arts. 2, 8, 6 and 13 of the European Convention on Human Rights (ECHR, the Convention) concerning their rights to life, respect for private and family life, a fair trial and an effective remedy.

The question of states’ human rights obligations in reaction to climate change under the ECHR carries with it some problems relating to both the admissibility and the merits of “climate cases”. This post discusses central issues of climate protection under the ECHR on the basis of KlimaSeniorinnen v Switzerland. After a short introduction to the background of the case, we will outline some specific problems taken up by the ECtHR in its hearing on 29th March 2023. From this point, it will be possible to give an outlook on how the ECtHR will deal with the issues presented here.

Background of the Case

The KlimaSeniorinnen case deals with the effects of climate change on the elderly. The applicants consist of an association of senior women as well as four individual women over the age of 80. In their application, they argue that increasing temperatures owed to climate change result in severe health risks and increased mortality, especially for older women, including the applicants. They further describe adverse effects on their health and private and family life, i.e. losing consciousness or being confined to their homes during heatwaves. The applicants claim that Switzerland is failing to fulfil its positive obligations under the ECHR, since the state is not doing everything in its power to prevent a global temperature rise of more than 1.5°C and thereby is also failing to effectively protect the applicants.

As the Swiss courts rejected their case on the basis of lack of admissibility without examining the merits, the applicants also claim violations of their rights to effective access to a court (Art. 6(1) ECHR) and to an effective remedy (Article 13 ECHR in conjunction with Art. 2 and 8). The Swiss Federal Supreme Court as the final instance found in its judgment from 05 May 2020 that the applicants could not use the measures for the protection of individuals employed against the claimed omissions of Swiss state organs (para. 8). It also negated violations of ECHR rights based on a lack of concrete affectedness of the applicants (para. 5.4). 

Climate Protection under the ECHR

Climate protection and the ECHR are a tricky match. While the ECHR does not contain any specific environmental human rights, the ECtHR has interpreted different rights to provide for some kinds of environmental protection. Since López Ostra v. Spain, it has been clear that Art. 8 ECHR contains a duty to protect in environmental matters. The ECtHR has also found a positive obligation to take preventive measures against environmental disasters resulting from Art. 2 ECHR (see Öneryildiz v. Turkey para. 101 and Özel and Others v. Turkey para. 173). However, some specific issues present themselves when examining the failure to take measures for mitigating global climate change as violations of ECHR rights.

A central question of the KlimaSeniorinnen case is whether the applicants have victim status under Art. 34 ECHR. Firstly, a causal link between the alleged omissions of Switzerland and the effects of global warming, especially heatwaves on the applicants is required. Switzerland negated such a link due to climate change being a global phenomenon and the State’s low intensity of greenhouse gas emissions (para. 39). The applicants, on the other hand, replied that Switzerland contributes to climate change and to increasing and more intense heatwaves (para. 68, see also here). See more on the topic of victim status in this case in this post by Evelyne Schmid.

The State further argued that the negative effects on the applicants’ rights under Art. 2 and 8 ECHR were not sufficiently severe for them to be considered victims of the alleged violations (para. 55). The problem lies in the fact that climate change is occurring gradually and that a certain threshold needs to be met in order for the Court to find a violation of the ECHR (more on this here). On a more substantial level, it is questionable what exactly Switzerland’s obligations would be in terms of climate change mitigation.

The ECtHR Hearing in KlimaSeniorinnen v. Switzerland

The issues mentioned above were also taken up in the hearing before the ECtHR Grand Chamber on 29th March 2023. While a discussion of all the issues of the case is beyond the scope of this post, it is possible to highlight some important points made during the hearing.

As regards the admissibility of the case, the representatives of Switzerland argued that the claim constituted an actio popularis and that the ECHR regime was not suited to offer general protection against climate change. Furthermore, the applicants did not face a real and imminent risk, and no causal link existed between Switzerland’s emissions and the harm applicants had suffered.

On a substantial matter, the Swiss representatives also stressed that Switzerland was fulfilling its obligations under the Paris Agreement (PA). The applicants’ representative disputed that Switzerland was doing enough to aim for an increase of no more than 1.5°C in comparison to the 1990 baseline while simultaneously indicating that the Court was not being asked whether Switzerland was in breach of the PA, but only if the applicants were at harm. A question discussed rather intensively in this regard was whether emissions produced abroad through consumption and finance flows must be taken into consideration when calculating Swiss greenhouse gas emissions and corresponding obligations to reduce such emissions. Here, the applicants’ representative also stressed that Switzerland had never assessed its emission reduction obligations based on “fairness”, meaning the principle of common but differentiated responsibilities and the fair-share approach.

The Grand Chamber judges proceeded to ask questions related to the admissibility and the substance of the case. On the applicants’ victim status, one question was where to “draw the line” between those who can and cannot claim to be victims, as multiple persons may be vulnerable to climate change and global warming. The applicants’ representative replied pointing towards the increased heat-related mortality risk for elderly women and stated that others may be vulnerable as well and that the Court needed to find a solution in other respective cases. On the question of what effect an increase in its reduction target would have on the applicants, Switzerland answered that there would be none. On the contrary, the applicants’ representative ended its answers referring to state parties’ decisions holding that every state must do their bit in mitigating climate change.

Conclusion and Future Outlook

While it is difficult to estimate the outcome of the Court’s decision, the decision will likely take up the issues discussed during the hearing, which suggests that the Court will rule on the admissibility as well as the merits of the case.

According to the “living instrument” doctrine (para. 31), the ECHR must be interpreted in the light of current circumstances, including developments and accepted standards in its member states (para. 15). Against this backdrop, the judgments referred to by the applicants’ representative, namely the 2021 Klimabeschluss of the German Bundesverfassungsgericht (BVerfG) and the 2019 Urgenda judgment of the Dutch Hoge Raad, could be adduced related to the issue of the causal link between single states’ behavior and climate change. The BVerfG found in this decision that Germany could not escape its responsibilities for climate protection “by pointing to greenhouse gas emissions in other states” (para. 203). The Dutch Hoge Raad similarly did not accept the state’s defense that the Netherlands’ contribution to climate change was relatively small in global comparison (para. 5.7.7).

On the merits, however, a detailed decision regarding Switzerland’s obligations for emissions reduction is unlikely. Firstly, the hearing has shown the difficulty of calculating Switzerland’s remaining emissions budget and corresponding obligations for reduction taking into consideration international law principles such as common but differentiated responsibilities. Secondly, it is questionable whether the ECtHR wants to take on a “quasi-legislative role” and take a detailed stand on states’ obligations relating to climate change, which are regulated in other international instruments.

In the end, it can be said that irrespective of whether a violation is found or not: Once the decision has been made, a new understanding of climate change protection under the ECHR will be unavoidable.

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Claudine Bailey says

April 6, 2023

Interesting case. Looking forward to the Court's ruling. Hopefully, there will be a part 2 to this article when that happens.