Justiciability of Climate Change Legislation: Case Study of KlimaSeniorinnen v. Switzerland

Authors
  • Rok Glavan

The enforceability of climate change targets on states is a particularly pressing topic right now. Despite virtually all states agreeing and signing various global cooperation pacts and passing national legislation regarding them, it is a very heated legal conversation, especially given the urgent nature of the issue, whether individuals can hold their states accountable when their actions are not sufficient to achieve the set goals. At the beginning of April this year, the European Court of Human Rights (from here on: the Court) decided in three very high profile cases concerning this question, but only one of them managed to convince the Court – the case of Verein Klimaseniorinnen,[1] a Swiss association of climate activists who sued Switzerland for not taking sufficient action in fighting climate change in accordance with the internationally set target in the Paris Agreement and consequently breaching their rights under Articles 2 and 8 of the European Convention on Human Rights (from here on: ECHR). In a lengthy judgement which contained a plethera of divisive opinions by legal experts and other states who are parties to the ECHR, the Court found that Switzerland violated the aforementioned rights. In this essay, I will first present the factual and legal background of the case; the disputed legislation, the domestic legal proceedings and the application to the Court. Secondly, I will recount the Court’s reasoning and its decision in more precise systematic form. Lastly, I will analyise the judgement and look at what it could mean beyond solely recognising a violation of human rights under the Convention in Switzerland’s conduct and reflect on how this decision, which has been hailed as a landmark case,[2] has the potential to initiate substantial change in climate litigation and its enforceability. 

Factual and Legal Framework

The application was filed in the Court by a Swiss non-profit organization whose aim is, in their own words, to promote and implement effective climate protection on behalf of its members, the majority of which are elderly women who are especially vulnerable to effects of rising temperatures.[3] The applicants were rejected by a number of Swiss governmental and administrative bodies after compelling them to take necessary and appropriate measures in order to prevent the increase of global temperature. A direct consequence of rising temperatures were unprecedented heatwaves during which the members of the associastion suffered several health issues and had to radically adapt their lifestyles. In their opinion, the legislation in place in Switzerland to combat increase in temperatures was insufficient, unconstitutional and incompatible with the Convention and international law.[4] The main argument from the authorities was that the applicants did not meet certain procedural conditions, namely the provision that the legislation in place (against which they were fighting) affected their rights or obligations in accordance with article 25.a of the Swiss Federal Act on Administrative Procedure.[5] They were also rejected before the Swiss judiciary, which held on three different levels that since climate change affected all the persons in the population, there was not sufficient proximity between the legislation and the individual rights of the applicants and regarded to the action as an actio popularis, which was inadmissable.[6] The Federal Supreme Court (Bundesgericht) ultimately rejected the claim on the grounds of it not being a justiciable matter; they claimed that proposals for shaping policy should in principle be pursued by way of democratic participation and not through judicial enforcement. 

In their application to the Court, the applicants argued that Switzerland violated their rights under articles 2, 6, 8 and 13 of the ECHR. Regarding Article 2, they argued that the Swiss state did not provide an adequate legislative and administrative framework in the so-called CO2 Act of 2011[7] to offer deterrence against threats of the right to life.8 The government was under such an obligation because the heatwaves, which are a direct consequence of increasing temperatures, presented a known, serious, and also immediate risk to life which has been demonstrated by sufficient scientific evidence. In combination with Article 2 the applicants further claimed that the state had violated their rights under Article 8 (right to private and family life), claiming that the changes in their daily routine that they have had to make as a result of the heatwaves and the health-issues they are suffering are violating their right to personal autonomy and their right to age with dignity; they claimed that the heatwaves were not a normal part of everyday life and the extreme consequences obliged the state to fight climate change in a more head-on way. They summed up the failures of the CO2 Act in three points: (i) the legislation in place was not adequate to meet the emissions midterm reduction targets for 2020 to reach the standards set out in the Paris Agreement; (ii) the proposed targets for 2030 were inadequate to reach the standards set out in the Paris Agreement; (iii) the proposed targets for 2050 were not adequate to bring Switzerland’s domestic emissions to a net-zero level.[8] The applicants rejected the notion that states enjoyed a wide margin of appreciation regarding climate change legislation; rising temperatures are an urgent issue and there was a need to implement proper measures to fight their further escalation. 

The Swiss government rejected their claim; they recognized climate change as an urgent issue and that there was a need to implement proper measures to fight it; nevertheless, they claimed that individual application to the Court was not an appropriate mean to achieve the desired effects because of the principle of subsidiarity[9] and that the proper way to go about it was through democratic participation. They argued that the applicants had no standing to submit the application – the association itself could not claim to be the victim of a violation of the right to life and the individual applicants did not show a sufficient, direct link between the increasing temperatures and the effects on their health, arguing that they were in a specific position because of their age and that all the population was affected by the heatwaves. Regarding the alleged violation, the state claimed there was no sufficient link between the suposedly inadequate legislation and the applicants’ right to life and quality of life. Several states and international bodies. intervened and provided their views; Austria claimed that meeting the provisions of the Paris Agreement was an obligation of conduct, not of result; Portugal similarly argued that the Paris Agreement established no sanctioning or enforcement mechanism and thus the Court’s jursidiction was at the very least questionable. But other, non- state actors, agreed with the applicants – notably, the UN High Commissioner for Human Rights argued that the fact that a large segment of the population was affected by climate change did not preclude the applicants from being individually affected.[10]

Another complaint in the application was regarding violations of Articles 6 and 13. The applicants claimed that Switzerland violated their right of access to court since the domestic courts did not do a substantive analysis of their complaints, avoiding examination of the critical questions, such as those relating to the applicants’ vulnerability to extreme heatwaves.[11]  Dismissing the action as an actio popularis meant that citizens would be unable to challenge the state’s decisions regarding fighting climate change, which would be an unacceptable consequence in light of the extreme possible effects. 

The government insisted on their view that such requests were not justiciable, since they did not fall under the definition of a dispute over a “civil right” of the applicants (as is the wording in Article 6 of the ECHR),[12] and furthermore that the applicants indeed had access to domestic judiciary, which analyzed their complaints properly and rightly ruled against them in accordance with Swiss law.

Reasoning of the Court

In its assessment the Court firstly accepted that climate change was an urgent issue that put states under a positive obligation to act on it immediately in order to ensure the protection of rights under the ECHR. The Court cited international standards, the decisions of domestic courts and the conclusions of reports and studies by relevant international bodies, such the IPCC (the findings of which had not been called into doubt by Switzerland or intervening States). Interpreting the Convention in harmony with other rules of international law (in this case the Paris Agreement), made the complaint admissable. Regarding the rights of an association, even though usually the Court held such bodies cannot claim a right to life, there are “special cosniderations” when such an association represents individuals, such as the present one; an excessively formalistic intepretation would make protection of the rights under the ECHR “ineffectual and illusory”.[13] The Court considered that in the climate change context, a special approach to victim status was warranted, reasoning that there exists a causal link between State actions or omissions (meaning exacerbating or failing to address climate change) and the harm affecting their citizens.[14] While in the case of individual complaints that were part of the application the Court found they were not sufficient to establish victim status, it offered an activist argument regarding the victim status of the association itself; such bodies may be “the only mean[s] available to certain groups of applicants”,[15] so they represented a “vehicle of collective recourse aimed at defending the rights and interests of individuals” against the threats climate change posed in Switzerland.[16]

With standing confirmed, the Court moved to reviewing the alleged violations. It held that states have a positive obligation to put in place the relevant legislative and administrative framework to provide effective protection of human health and life and to ensure effective use of this framework in practice. In principle, states enjoy a margin of appreciation, but the Court can asses whether the matter was approached with due dilligence and considered all competing interests – for this case, the question was about the adequacy of the decision-making process. In context of climate change, the Court noted that climate protection carries considerable weight in light of any competing interests. It was the 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.”[17] uch action needed to be immediate and adequate, specifically when setting reduction goals to achieve net neutrality; in the present case, the Court found it was not.

It set out five principles to check whether a state has fulfilled its obligations (paragraph 555); (i) setting out a timetable with targets for achieving carbon neutrality; (ii) setting out interim targets for reducing emissions; (iii) implementig these targets consistently and appropriately; (iv) updating targets when necessary; (v) providing evidence that they have complied with the targets.

In applying the principles to the present case, it held that Switzerland’s legislative network was not adequate to meet reduction targets for 2020, and furthermore that there were several legal gaps (lacunae) in legislation, since there were no targets and means in place to achieve the goals for the periods until 2030 and 2050. The current legislation for the plan until 2020 was not appropriate to met the set targets agreed upon in the Paris Agreement, while the plan for periods until 2030 and 2050 which advocated for a reduction of GHG emissions “as far as possible”, was found by the Court to not lay out a sufficient plan for action. It was too broad, vague and general and did not include any concrete measures to achieve the objectives but rather left it them to deal with for future generations (the wording: “in good time”). Specifically, it did not attempt to qualify Switzerland’s remaining carbon budget for these periods, which would have been the crucial information is assessing appropriate measures – thus, the state failed to protect the individuals within its jurisdiction from the adverse effects of climate change on their life and health.[18] Since climate change (and the heatwaves it triggered) posed a real and imminent risk to life with irreversible consequences, Switzerland, through an inadequate current legislation and no clear objectives set out for the future in order to lower its GHG emissions to meet the internationally agreed upon standards, violated the applicants’ rights under Article 2 and Article 8 of the ECHR. 

Regarding the alleged breach of Articles 6 and 13, the Court held that, in context of climate change, the object of the proceedings can be broader; it did not need to be a specific claim-right arising from the legislation which was not adequately protected. While it noted the importance of the separation of powers as a legitimate counterargument, the specific nature of the applicants’ domestic request to the authorities was “hybrid” in nature.[19] While it was mainly outside the scope of Article 6, the part that was seeking to vindicate the right to life and protection of physical integrity in context of inadequate legislation, could not have been automatically considered an actio popularis. There was a pressing need to ensure the legal protection of human rights and the domestic courts’ failure to address the issues raised by the applicants, together with the administrative bodies’ similar omissions to deal with the substantial claims, was sufficient to establish a violation of Article 6 of the ECHR. Since Article 13 was a lex generalis in relation to Article 6, it was also violated. 

Critical Assessment

The decision sparked a heated legal debate on what it could mean for the future of climate litigation. The proceedings ecieved widespread positive media attention, but opinions by legal scholars, governments and the general public varied greatly. The general public welcomed the decision as a necessary step in fighting climate change efficiently; on the other end, national governments have accused the Court of judicial overreach and expressed concern that such understanding of the role of the judiciary could be detrimental for further climate protection. The Swiss People’s Party even called the decision unacceptable and called for Switzerland to leave the Council of Europe.[20] The dissatisfaction was mostly about the limits of what the Court, especially as a supranational one with jurisdiction only over ECHR violations, can and cannot do; the decision, namely, dealt in great part with the separation of powers between the legislator and the judiciary and what was the role of the judiciary in enforcing human rights. As mentioned before, Switzerland’s claim was that the questions about the adequacy of its climate plan were to be dealt with in the process of democratic participation. But as the Court clearly states in paragraph 412, it does not see itself as replacing the legislator in this role – it merely holds to power of oversight, in accordance with the well established system of checks and balances. In a matter as pressing as climate change, this is ever more important, since there is a “risk inherent in the […] political decision-making processes, namely that short-term interests and concerns may come to prevail over, and at the expense of, pressing needs for sustainable policy-making”.[21] 

In her review of the judgement, Blattner[22] argues that given the Swiss government’s past statements about climate protection measures “being an excessive burden on the national economy”, this is of special importance. The Court’s opinion on a “different margin of appreciation” regarding climate change legislation, namely it being narrower, was necessary for proper protection of the right to life and states had an obligation to provide a legislative framework in accordance with the aforementioned 5-step test. In Blattner’s opinion, the Court did not overstep, since it did not burden Switzerland with specific requirements about its deficient legislation apart from it not being in compliance with the principles from the test, such as setting out specific GHG emissions goals for the country. For example, in paragraph 548, the Court held that in order for the state to effectively respect the rights protected by Article 8, all that is required is a “substantial and progressive reduction” of GHG emissions.

Supporters of the Court’s decision have hailed the case as being the crucial next step in climate change litigation. This is not the first case where a state has been found in violation of the right to life regarding its insufficient climate change action – that would be the Dutch case of State of the Netherlands v Urgenda Foundation,[23] in which the Supreme Court of the Netherlands held that the Dutch government violated human rights protected under Articles 2 and 8 of the ECHR by noy meeting scientifically established emission reduction goals. However, that case was national – the KlimaSeniorinnen case is the first time the Court itself, as a supranational one with jurisdiction over (almost) all European countries, found a state violated human rights by not taking sufficient climate change action. While the Court did not impose any sanctions on Switzerland (because it had no power to do so and the applicants did also not ask for any financial compensation for the breach), its reasoning in the 230-page judgement as to why the state violated human rights by not taking appropriate action means a clear step forward in ensuring governments stay committed to fulfilling their obligations in the global fight agains climate change. 

Sulyok, in her analysis, identified two more distinct steps forward the Court made in the judgement. Firstly, it put an emphasis on future generations, swapping the previously accepted “inter-generational equity” for “inter-generational burden sharing” in paragraph 410; it held that future generations cannot be left alone to deal with the aftermath of climate change, but that the current generation is obliged to take all the necessary steps in reducing it. Sulyok claims that through the argument of intergenerational burden sharing, the Court justifies its finding that Switzerland is “not doing enough” or “as much as it should be given its share of the burden”. Secondly, the judgement recognises universally accepted scientific knowledge and enforces it as a standard across all of Europe – the Court accepts the rigorously proven scientfic objectives as “fact” in paragraph 436, albeit for the purposes of its own assessment. Nevertheless, it is an important statement that an international body was ready to explicitly declare this, standing assured that the plethera of counter-arguments are, in fact, myths used to preclude responsibility of states in fighting climate change. It also sets the standard for future actions before the Court itself (the 5-step test), although also stating that failiure to meet any of the steps would not automatically mean a violation of the ECHR (paragraph 551), but each time an overall assesment of the national legislative framework would be carried out.

The ECHR offers limited space for judicial activism, and in recent years the Court has been careful with applicability. With the KlimaSeniorinnen case, the Court recognised the need for a wider interpretation, incorporating current scientific views on the grave possible effects of climate change. In climate litigation, the urgency of the situation is the most common, but also the most reasnoable argument and, in my opinion, the Court was right to use it as the basis of their decision that the margin of appreciation enjoyed by states needs to be narrowed when deciding on climate litigation and that the judiciary (national and supranational) indeed has the power of review over the suitability and compatibility of it with the law. This case did not attempt to establish a new competence of the Court, but merely tried to find the delicate balance between the authority of the government/legislator and the judiciary. The Court provided an extensive analysis, taking into account a plethera of different views and in the end offered a sufficient, rational and legally acceptable explanation. In the current state of affairs, urgent action is needed, and while the argument to include other aspects to ensure a just transition carries considerable weight, there is no time and space to leave only to the national governments to decide on “appropriate” steps. he role of the Court is the protection of human rights of citizens of all member states, and in the KlimaSeniorinnen case, it seems like it protected them sufficiently. Most notably, the 5step test will become precedent in ensuring equal and appropriate climate legislation across all countries in the Council of Europe, meaning nearly the entire continent. While it is unlikely that the ruling is to become a reference for courts elswhere, the prestige and international reputation of the ECHR and the Court could prove to be useful in guaranteeing not only a improved European, but global protection of human rights regarding states’ positive obligations to protect their citizens from effects of climate change, and thus ensuring distributive justice in the context of the just transition, making certain that nobody is left behind.

One possible crticism of the decision is the Court’s understanding of “victim status”. The Court dismissed the individual applicants as to having it, thus not making any progress on the issue of individual standing. Hefti[24] argues that the Court seems worried about opening the floodgates to an unlimited number of climate related applications, which is a plausible concern. A possible solution the author offers is the concept of intersectionality (overlapping inequalities concerning an individual), which could be used to establish victim status under the ECHR. While the Court dismissed the individual complaints in the application, it might have decided differently had it considered the age and gender of the applicants (elderly women), and not solely their confirmed medical issues, which it deemed insufficient to grant them victim status. Hefti claims that intersectionality would have particularly well described the KlimaSeniorinnen applicants, because their age and gender created the “high risk” the Court requires in order to confirm victim status. Nevertheless, the Court glanced over this issue and the general public seemed satisfied with the decision in favour of the organisation. Although it was an important win, the decision leaves many questions unanswered. Climate change litigation is already particularly difficult to reach for individual victims (that is why they mostly file complaints via groups), and in this matter the Court should be more open to broadening the concept to allow individual complaints. Otherwise, it will close the door on a huge number of violations and leave victims with no effective remedy against the state.

In conclusion, Klimaseniorinnen is in many ways a landmark case in the evolution of climate change litigation. The Court made a crucial step forward in recognising its role in enforcing and encouraging climate protection; in light of the urgency it returned to judicial activism and thus opened the door for more effective climate litigation in the future. It addressed many disputed views on the role of the judiciary and the possibility of holding governents accountable for not taking sufficient actions regarding climate change. It set out the minimum standards of national legislation that the state needed to take into account when deciding within its margin of appreciation. And although many important issues regarding climate litigation were not resolved in this decision, most notably that of individual standing, it is still a landmark case with the potential to become an important reference, not solely in Europe, but also elsewhere and therefore help provide more effective protection of climate- related human rights all over the world.


Bibliography

Blattner, Charlotte: Separation of Powers and KlimaSeniorinnen, published on the Sabin Center for Climate Change Law (Columbia Law School) blog, 30 April 2024 [last accessed on 24 May 2024, available at: https://blogs.law.columbia.edu/climatechange/2024/04/30/separation-of-powers-andklimaseniorinnen/] 

Bubola, Emma; Kwai, Isabella: In Landmark Ruling, European Court Faults Switzerland; published on The New York Times online edition, 9 April 2024 [last accessed on 17 May 2024, available at: https://www.nytimes.com/2024/04/09/world/europe/climate-human-rights.html] 

European Convention on Human Rights [simplified text available at: https://70.coe.int/pdf/convention_eng.pdf] 

Francis, Ellen; Harlan, Chico: European Court Rules Switzerland Climate Inaction

Violated Human Rights; published in The Washington Post online edition, 9 April 2024 [last accessed on 19 May 2024, available at: https://www.washingtonpost.com/climateenvironment/2024/04/09/europe-climate-change-court-cases-switzerland-portugalfrance/] 

Hefti, Angela: Intersectionality and Standing in Climate-Related Human Rights Cases, pubslihed on the Human Rights Program (Harvard Law School) website [last accessed on 26 May 2024, available at: https://hrp.law.harvard.edu/intersectionality-standingand-climate-change-and-human-rights/] 

Spano, Robert; Collins, Stephanie; Romanelli, Alexa: European Court of Human Rights

Rules on the Positive Obligations of Convention States in the Face of the Climate Crisis

– Key Takeaways, published on the Gibson Dunn website [last accessed on 24 May 2024, available at: https://www.gibsondunn.com/european-court-of-human-rights-ruleson-positive-obligations-of-convention-states-in-the-face-of-climate-crisis-keytakeaways/] 

Sulyok, Catalin: What does the European Court of Human Rights’ KlimaSeniorinnen

Judgment Mean for Future Generations? Some Quick Reflections, pubslihed on the

Center for Environmental Law of University of Auckland website [last accessed on 24 May 2024, available at: https://www.auckland.ac.nz/en/law/our-research/researchcentres/new-zealand-centre-for-environmental-law/opinion-and-analysis/What-doesthe-european-court-of-human-rights-klimaseniorinnen-judgment-mean.html] 

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, Application no. 53600/20, The European Court of Human Rights, 9 April 2024 [last accessed on 25 May 2024, available at: https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001233206%22%5D%7D] 

Violations of the European Convention for failing to implement sufficient measures to combat climate change, press release by The European Court of Human Rights, 9 April

2024 [last accessed on 21 May 2024, available at: https://hudoc.echr.coe.int/engpress#%7B%22itemid%22:%5B%22003-7919428-11026177%22%5D%7D] 


[1] Verein Klimaseniorinnen and Others v. Switzerland (Application no. 53600/20)

[2] E.g. Bubola, Kwai: In Landmark Climate Ruling, European Court Faults Switzerland (in The New York Times, April 9, 2024)

[3] Judgement, p. 11

[4] Judgement, p. 16

[5] Verwaltungsverfahrensgesetz, VwVG, AS 2010 3267

[6] Judgement, p. 19

[7] The Federal Act on the Reduction of CO2 Emissions of 23 December 2011, RS 641.71 8 Judgement, p. 134

[8] Judgement, p. 139

[9] Specifically, they argued there was no “right to a healthy environment” within the Convention

[10] Judgement, p. 155

[11] Judgement, p. 212

[12] Article 6 of the ECHR states: “In the determination of his civil rights and obligations […], everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

[13] Judgement, p. 185

[14] Spano et. al., p. 3

[15] Judgement, p. 187

[16] Judgement, p. 199

[17] Judgement, p. 204

[18] Judgement, p. 210

[19] Judgement, p. 225

[20] Das Strassburger Urteil ist inakzeptabel – die Schweiz muss aus dem Europarat austreten, posted on the SVP website on 9 April, 2024 

[21] Judgement, p. 168-169

[22] Blattner: Separation of Powers and KlimaSeniorinnen 24 Judgement, p. 204

[23] ECLI:NL:HR:2019:2007. Judgment, Supreme Court of the Netherlands, December 20, 2019. 26 Sulyok: What does the European Court of Human Rights’ KlimaSeniorinnen Judgment Mean for Future Generations?

[24] Hefti: Intersectionality and Standing in Climate-Related Human Rights Cases

Authors
  • Rok Glavan