A Historic Decision on Climate Change and Human Rights: The European Court of Human Rights rules against Switzerland

09-04-2024

Burak Tahsin Bahce

International Justice and Human Rights Researcher

Global Human Rights Defence

On April 9th, 2024, the European Court of Human Rights delivered a landmark judgment concerning the States` climate change-related human rights obligations. The case has been brought against Switzerland by four older women and Verein KlimaSeniorinnen Schweiz, a Swiss association working on promoting and implementing effective climate protection on behalf of its members, who are more than 2,000 older women (the majority of whom are over the age of 70). The Court, with regard to the applicant Association`s complaint, held that Switzerland had breached Article 8 (right to respect for private life) and Article 6§1 (right to access to court) of the Convention. This presents a milestone within the Court`s case law and so the progress of international human rights jurisprudence concerning the cross-cutting issue of States` climate-related duties and human rights obligations. 

The applicants have first submitted a request, under the domestic administrative procedure, to the relevant Swiss authorities pointing out the several failings concerning climate change, and seeking a decision on actions to be taken in line with the relevant international standards such as those set by the Paris Climate Agreement. The authorities dismissed the request, finding that the applicants were not directly affected and thus could not be qualified as victims, also noting that the overall purpose of the request was reducing CO2 emission worldwide not only in their immediate surroundings. Upon subsequent appeals, the judicial authorities upheld the decision, mainly relying on the lack of direct victim status that differentiates them from the general population. Besides, the last instant domestic court, given its finding with respect to the individual applicants, left open whether it had standing to appeal at all as regards to the applicant Association`s appeal.

The case then has been brought before the European Court of Human Rights. The complaint relied on the alleged violations of Article 2 (right to life), Article 8, Article 6, and Article 13 (right to an effective remedy) of the Convention. In substance, it was mainly concerned with the right of 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 had not examined the complaint under Article 2 and Article 13, given its finding under Article 8, and the Article 6§1.

As for the rationae persona, the Court examined the victim status of the individual applicants and the right to submit an individual case of the applicant Association. In this regard, the Court emphasized that the threshold for establishing victim status for individuals in climate change cases is especially high, the Convention not admitting general public-interest complaints. It thus, having examined a number of criteria, held that the four individual applicants did not fulfill the victim status under Article 34 of the Convention, as it was not shown to a sufficient degree that they were directly and personally affected by the Government`s alleged failure. With regard to the standing of the applicant Association, the Court recalled its observations in Gorraiz Lizarraga and Others v. Spain concerning the importance of recourse to collective entities such as associations to defend the rights and interests of affected or concerned individuals, as far as issues of the environment were concerned, and referred to the Aarhus Convention which emphasized the importance of the role which non-governmental organizations played in the context of environmental protection and the EU had developed a set of legal instruments concerning its implementation. While stating that the standing of associations in the context of climate-change litigation was still a developing issue, the Court, relying on the common ground among Member States, pointed out that there was at least a theoretical possibility for environmental associations to bring a climate-change case, and in some States, the criteria for such standing had already been established either in domestic legislation or in the domestic courts’ case-law. Therefore, the Court declared inadmissible the four individuals` applications and proceeded with the examination of the applicant Association`s complaints.

With regard to the alleged violation of Article 8, the Court noted that States enjoyed a certain margin of appreciation, however, differentiated it as those regarding the State’s commitment to the necessity of combating climate change and its adverse effects, and the setting of the requisite aims and objectives in this respect, on the one hand, and those regarding the choice of means designed to achieve those objectives. In this sense, it stated that States have a reduced margin of appreciation as for the first aspect, considering the nature and gravity of the threat, the general consensus as to the stakes, and accepted commitments to achieve carbon neutrality. It has been stated that States, on the other hand, should be accorded a wider margin of appreciation concerning the choice of means. 

With regard to the States` positive obligations, the Court stated that States were obliged to adopt and practically apply regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change. As a use of living instrument doctrine, the Court noted that this flowed from the causal relationship between climate change and the enjoyment of Convention rights in line with its object and purpose so as to guarantee rights that are practical and effective. It has further referred to the international treaties, most notably the Paris Climate Agreement, and scientific advice provided, to concretize respective international commitments in this regard. When assessing whether a State had remained within its margin of appreciation the Court has set a number of criteria. It eventually found that there had been some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations. It further pointed out that the State had previously failed to meet its past GHG emission reduction targets, so had failed 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. Accordingly, the Court held, by a majority of sixteen votes to one, that Switzerland had exceeded its margin of appreciation and had failed to comply with its positive obligations under Article 8, and, therefore, that there had been a violation of Article 8.

The Court also examined the applicant Association`s complaint concerning the rejection of its application before the domestic court without its merit being assessed.  The Court reiterated the important role of associations in defending specific causes in the sphere of environmental protection and the particular relevance of collective action in the context of climate change. The Court held that the domestic authorities had not engaged seriously or at all with the action by the applicant Association. It has further pointed out that there were no convincing reasons why it has been considered unnecessary to examine the merits of appeals. Indeed, as there had been no further legal avenues or safeguards available to the applicant association, or individual applicants/members of the association, the Court found that the applicant association’s right to access to a court had been restricted in such a way and to such an extent that the very essence of the right had been impaired. It consequently held that there had been a violation of Article 6§1 of the Convention. 

This judgment presents a historical significance in international human rights jurisprudence concerning the reflection of States` climate-related obligations on human rights. Previously, the UN Human Rights Committee had opened the doors for progress in this field by handling environmental displacements affected by climate change under Article 6 (right to life) of the International Covenant on Civil and Political Rights. This judgment of the European Court of Human Rights, undoubtedly, marks a further milestone on this issue.

Sources and further readings:

Verein KlimaSeniorinnen Schweiz and Others v Switzerland [GC], Application no 53600/20 (ECHR, 09 April 2024).

Verein KlimaSeniorinnen Schweiz and Others v Switzerland [GC], Application no 53600/20 (ECHR, 09 April 2024), Legal Summary.

Violations of the European Convention for failing to implement sufficient measures to combat climate change (ECHR 087 (2024), Registrar of the European Court of Human Rights Court, 09 April 2024).

Ioane Teitiota v New Zealand, Communication No 2728/2016 (UN Human Rights Committee, 24 October 2019)