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On 26 November 2020, the non-governmental organization KlimaSeniorinnen (or ‘Association of Swiss Senior Women for Climate Protection’) and four senior women (as individual applicants) collectively submitted an application to the European Court of Human Rights (ECtHR), alleging that the Swiss government had violated their human rights under the European Convention on Human Rights (ECHR, or “Convention”) due to its failure to take action in relation to the climate crisis.[1]
In March 2021, the application was accepted by the ECtHR[2] and on 29 April 2022, the ECtHR announced that the case would be heard before the Grand Chamber.[3] Thus, the competent Chamber had relinquished jurisdiction over the case in favor of the Grand Chamber, thereby placing the KlimaSeniorennin case on the fast track at the ECtHR. This decision is significant as it means that this case will become the first climate case before the ECtHR. Given that the ongoing climate disaster continues to impact the enjoyment of a wide range of human rights, greenhouse gas (GHG) emissions continue to reach dangerous levels affecting weather patterns and ecosystems, and State governments continue to miss targets set under the UN Paris Climate Agreement, this case will likely set an important precedent in both Europe and around the world.
Overview of the Swiss Climate Case
In 2016, KlimaSeniorinnen filed an administrative petition against several state (government) agencies in Switzerland, alleging that these agencies had neglected to uphold their obligations under the Swiss Constitution and the ECHR due to their failure to implement policies, rules, and legislation which would place Switzerland on an emissions reduction trajectory consistent with its global commitments.[4] In this context, legal action is being brought specifically against the Federal Council, the Federal Department of the Environment Transport, Energy, and Communications (DETEC), as well as the Federal Office for the Environment, and the Federal Office for Energy.[5]
In its original petition, the NGO alleged that the Swiss government had violated Articles 10 (right to life), 73 (sustainability principle), and 74 (environmental protection) of the Swiss Constitution, as well as Articles 2 (right to life) and 8 (right to respect for private and family life) of the ECHR.[6] KlimaSeniorinnen requested that the relevant Swiss agencies develop a regulatory approach to several sectors that would achieve GHG emission reductions of at least 25% below 1990 levels by 2020, and at least 50% below 1990 emissions levels by 2050. The petition argued that the (1) targets currently discussed by parliament; as well as the (2) measures by which the government would pursue those targets, were insufficient.[7]
In 2017, the petition was dismissed by DETEC, which alleged that the applicants lacked standing because the women’s individual legal rights were not directly affected, as required under the Administrative Procedure Act.[8] Later, in 2018, the Swiss Federal Administrative Court rejected the appeal brought in relation to this matter.[9]
The Court found that Swiss women over the age of 75 years did not fall within a category of people exclusively affected by the impacts of climate change. Thus, their individual rights were not specifically affected and as such, they lacked standing. In 2020, the Swiss Supreme Court rejected another appeal, which was also brought by KlimaSeniorinnen on the same grounds. Adopting similar reasoning to that of previous bodies, the Court found that the plaintiffs’ asserted rights had not been affected with “sufficient intensity,” and consequently, the remedy sought must be achieved through political (e.g., legislative) means rather than legal means.[10]Having exhausted all domestic remedies, KlimaSeniorinnen submitted its application to the ECtHR in November 2020.
Application to the European Court of Human Rights
Upon bringing their application to the ECtHR, the KlimaSeniorinnen applicants requested that the case be treated with importance and urgency, in accordance with Rule 41 of the Rules of the Court.[11] In sum, the applicants alleged the following: (1) that Switzerland failed to set climate targets in line with international climate law and the best available science; (2) that Switzerland’s climate targets for 2020 and 2030 both failed to meet even the outdated 2-degree Celsius limit, let alone the State’s Paris Agreement commitments of limiting temperature rise to well below 2 degrees, while pursuing efforts to limit the temperature increase to 1.5 degrees; and (3) that Switzerland failed to implement and enforce any measures to meet its target (albeit an inadequate target).[12]
The applicants primary complaint is that the action – or inaction – on the part of the State has consequently violated their rights to life under Article 2, as well as their right to private life under Article 8 of the Convention.[13] However, due to the inadequacy of domestic proceedings and the failure of the Swiss courts to address the merits of the applicant’s domestic request for protection the application before the ECtHR contains arguments regarding the violations of the right to effective access to a court under Article 6, as well as the right to an effective remedy under Article 13. [14]
Since its submission in late 2020, the application has moved quickly, especially when considering the usual timeline of the ECtHR which is often slow in nature. The Court has indicated that it is impossible to communicate the length of any proceeding before the Court. However, the Court maintains that it aspires to deal with cases within three years from the time they are brought, but the examination of some cases can take longer.[15]
The Court preliminarily accepted the case and assigned it priority status, as requested by the applicants. Furthermore, the Court required Switzerland to file its response by 16 July 2021. On 13 October 2021, the applicants replied to the State’s response. On 26 April 2022, the Chamber of the ECtHR relinquished its jurisdiction and as a result, the case will now be examined by the ECtHR’s Grand Chamber consisting of 17 judges on the basis that the case raises a serious question in relation to the interpretation of the Convention pursuant to Article 30 (Relinquishment of jurisdiction to the Grand Chamber).
Admissibility and Victim Status
As the first climate change case to be heard by the Court, it raises key questions about the future application of the Convention. Specifically, the application challenges the Court’s traditional approach to standing or victim status. If the court were to divert from existing case-law on the issue of standing to complain to the Court, all victims, including victims of human rights abuses due to climate change would ultimately have greater access to justice and recourse.
In this regard, the Court’s findings will shape the future of human rights protections positioned at the intersection of climate change. Such findings will have a widespread impact not only on European Member States but also on other domestic, regional, and international mechanisms and their approach to climate and human rights protections. Whatever the Court’s decision, domestic courts, and international mechanisms will likely replicate this Court’s approach to climate litigation heard in their courtrooms.
As mentioned above, given the complexity and novelty of this case (i.e., a climate case), the applicants have unique procedural as well as substantive hurdles to overcome. One of the key admissibility issues is victim status. Article 34 of the Convention states that the Court“may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties […].”[16]
The admissibility thresholds enshrined in the ECHR prevent applications that are unable to demonstrate a genuine link between the State and the individual victim from being submitted. Applications must concern violations of the ECHR allegedly committed by a Contracting State that directly and significantly affected the applicant.[17]
Victim status does not necessarily require the individual have already suffered damages (i.e., “prejudice” or “detriment”), it may also include risk of harm or foreseeable harm.[18] Nevertheless, it is necessary that the violation or measure complained of is applied with respect to the applicant, thus, precluding applications of actio popularis (or, generalized grievances).[19] In certain specific situations, the Court has accepted that an applicant may be a potential victim and that they too may face a reasonable risk of harm.[20]
For example, in such cases the applicant has been faced with extradition or expulsion to a third-party state government and risk being subjected to torture or death if turned over to the third-party state. Most cases in which the Court has found a reasonable risk of harm involve situations falling under Article 2 (right to life) and Article 3 (prohibition of torture).[21] In order to claim that one is a victim in such a situation, an applicant must produce reasonable and convincing evidence of the likelihood that a violation affecting him or her personally will occur; mere suspicion or conjecture alone has been deemed by the Court to be insufficient.[22]
The KlimaSeniorinnen applicants have alleged both current and future harm; more specifically, they argue that the respondent’s climate policies place them at risk of serious health impacts including death, namely, due to their vulnerability to future heat waves caused by climate change. Furthermore, the application stresses the fact that the individual applicants are also direct victims, as they are already experiencing adverse impacts due to increased temperatures.[23]
The issue of potential or direct victimhood is a question the ECtHR is clearly concerned about, having invited the parties to submit their comment on this issue.[24] The Court specifically asked the parties to address –
- Can the applicant association (first Applicant) and Applicants nos 2 to 5 (natural persons) be considered actual or potential victims, within the meaning of Article 34 of the Convention as interpreted by the Court, or a violation of one of the Convention rights invoked in this case due to the failure of the Swiss authorities to effectively protect them from the effects of global warming?
- In particular, have the Applicants suffered, directly or indirectly and seriously, the alleged consequences of insufficient action or inaction by the Respondent State?
Whether the Court will allow claims from “potential” victims of climate impacts requires a determination that such individuals are “directly concerned by the situation and have a legitimate personal interest in seeing it brought to an end,” in order to avoid allowing actiones populares claims, which fall outside the scope of Article 34 and victim status.[25]
For instance, in Cordella v Italy, an environmental case from 2019, the ECtHR affirmed that the Convention does not guarantee the general protection of the environment. In this particular case, 180 applicants from the municipality of Taranto (Italy) complained about the effects of toxic emissions from the steel plant in Taranto on both environment and health claims, as well as the ineffectiveness of domestic remedies.
The Court held that applicants are victims under Article 34 in situations where environmental damage has resulted in the violation of their individual rights.[26] In the context of climate litigation, the argument that the impacts of climate change amount only to a “generalized grievance” constitute a commonly used defence by States in rights-based climate litigation. Thus, in these types of cases, it is important to allege specific and concrete harms.
In the case at hand, the Court will have to rely on the best available science in relation to the clear risks to public health as well as the health risks to specific vulnerable populations.[27] Tracing the unique harms to vulnerable populations, like the elderly Swiss women, is on par with the precedent set in Cordella. These women, as outlined in the application, are at risk of experiencing discrete harm from heat waves caused by climate change, which differs from the harm experienced by other parts of the population. The Swiss Federal Office for Public Health has confirmed that those most affected by heatwaves are people aged over 65.
To substantiate these claims, there was a reference to the heatwave in the Summer of 2003, which caused 975 premature deaths in Switzerland and over 70,000 in Europe, such figures demonstrate that the mortality rates in this group increased steeply.[28] Additionally, according to the World Health Organisation, women are more at risk than men.[29]
When delving into assessments regarding potential victims, it is also necessary to look into the substantive issues of law and the positive obligations the State-respondent has failed to uphold. Positive obligations are relevant when there is (1) a foreseeable and significant risk concerning the enjoyment of a right, and (2) a possibility for the State to prevent or limit the risk or remedy its consequences. A preliminary and necessary condition is that the State knew, or ought to have known, of the existence of a real and immediate risk to a significant right. [30]
Thus, to determine if there was an actual omission and whether the applicants have been affected by it, it is first necessary to determine what measures would have been required. Professors Véronique Boillet and Evelyne Schmid, as third-party intervenors, submitted a comprehensive brief on the inter-connection between assessing victim status and substantive issues of law in omission cases.[31]
The intervenors point out that, in this case, Articles 2 (right to life) and 8 (right to respect for private and family life) would be interpreted in light of Switzerland’s international climate commitment, including commitments under the Paris Agreement and the best-available science.[32] The complexity of climate change cases, including the KlimaSeniorinnen case, requires simultaneous analysis of the issue of victim status and the substance of the applicants’ complaints.
Merits and Substantive Rights Issues
The ECtHR has requested that the parties also submit responses to the following question:
- If question no. 1 is answered in the affirmative, has there been a violation of Articles 2 and 8 of the Convention in this case?[33]
The applicants have alleged that given the real and serious risk of harm posed by climate-induced heatwaves to senior women, Articles 2 (right to life) and 8 (right to respect for private and family life) are indeed applicable. The State respondent is alleged to have failed to fulfill its positive obligations under the aforementioned articles to protect the applicants from the risk of harm posed by heatwaves because Switzerland has not adopted the appropriate regulations to do its share to prevent a global temperature increase of more than 1.5 degrees Celsius.
The respondent’s climate strategy has never been in line with the 1.5°C limits, nor are there any plans to be in line with this in the future. In light of the best available science as well as international environmental law and principles, the respondent’s nationally determined contributions (“NDC”)[34] as well as its long-term climate strategy, fall short of meeting the 1.5-degree Celsius limit necessary to protect the applicants.
As noted above, the Court has recognized the positive obligations placed on States to protect against a variety of threats to human rights, this includes the positive obligation to protect against more widespread threats via the implementation of legislation and policies that effectively protect the rights enshrined in the ECHR. Specifically, the Court has held that this “entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.”[35]
In the context of dangerous industrial activities, this means that they must “govern the licensing, setting up, operation, security, and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks,” including by ensuring access to information. [36] These obligations are part of the “positive duty to take reasonable and appropriate measures to secure an applicant’s rights.”[37]
Conclusion
Although not the only climate case pending before the Court, the KlimaSeniorinnen has been set on the fast track and will be the first climate case heard by the Grand Chamber of the ECtHR. Oral hearings at the Court in Strasbourg are likely the next step.
Meanwhile, the timeframe to address climate change continues to narrow. According to the UN Intergovernmental Panel on Climate Change (IPCC), “CO2 emissions [must] start to decline well before 2030” if the 1.5°C target prescribed by the Paris Agreement is to be achieved.[38] However, according to the International Energy Agency (IEA), such emissions reached a “historic high” in 2018.[39] In 2020, global CO2 emissions declined by 5.8% in 2020 – the largest ever decline.[40] Yet, in 2021 global energy-related CO2 emissions are projected to rebound and grow by 4.8% as demand for coal, oil, and gas rebounds with the economy.[41]
The UN High Commissioner for Human Rights, Michelle Bachelet has stated that “[t]he world has never seen a threat to human rights of this scope” as that posed by climate change.[42] Additionally, the former UN Special Rapporteur on extreme poverty and human rights, Philip Alston, indicated that “human rights might not survive the coming upheaval” if climate change continues on its current course.[43] Whether or not the existential threat posed by climate change is avoided depends on the extent to which law can serve as a tool to oblige State government to reduce greenhouse gas emissions.
An opinion in the KlimaSeniorinnen case could set a human rights standard for emissions reduction targets and objectives that will, according to the best available science, actually prevent climate change, redress human rights infringements, and protect human rights for generations to come.
The Court now has the opportunity to shape climate human rights in Europe – as well as around the world. Additionally, with the unique procedural and substantive rights issues that climate cases present, this case also has the potential to evolve ECtHR jurisprudence in the face of climate change and its devastating impacts. Thus, whatever the Court holds, this case will have lasting implications on the future of climate change litigation and the ECtHR overall.
Amanda Misasi is an attorney with experience in international criminal law, international human rights law, and climate change litigation. She has served as a Law Clerk in Chambers of the United Nations Mechanism for International Criminal Tribunals and is presently serving as a Visiting Professional in the Office of the Ombudsperson at the Kosovo Specialist Chambers. She holds a Juris Doctor degree from DePaul University College of Law, and is currently an LLM student at Leiden University.
[1] Verein Klimaseniorinnen Schweiz and Others v Switzerland App no 53600/20 (ECHR, Communicated Case, 17 March 2021), http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2020/20201126_Application-no.-5360020_application.pdf.
[2] Ibid.
[3] Press Release, Relinquishments in favor of the Grand Chamber of the case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (29 April 2022), https://hudoc.echr.coe.int/eng-press?i=003-7322460-9989782.
[4]Verein KlimaSeniorinnen Schweiz v. Bundsrat, No. A-2992/2017 (2016), https://klimaseniorinnen.ch/wp-content/uploads/2017/05/request_KlimaSeniorinnen.pdf.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Order of Dismissal (KlimaSeniorinnen Unofficial Translated Version of Juridical Relevant Part), https://klimaseniorinnen.ch/wp-content/uploads/2017/11/Verfuegung_UVEK_Abschnitt_C_English.pdf.
[9] Federal Administrative Court [of Switzerland], Section 1 Judgment A-2992/2017 of 27 November 2018, Verein KlimaSeniorinnen Schweiz v. Bundsrat (Unofficial Translated Version), https://klimaseniorinnen.ch/wp-content/uploads/2019/02/Judgment-FAC-2018-11-28-KlimaSeniorinnen-English.pdf.
[10] Federal Supreme Court [of Switzerland], Public Law Division I Judgment 1C_37/2019 of 5 May 2020, Verein KlimaSeniorinnen Schweiz v. Bundsrat (Unofficial Translated Version), https://klimaseniorinnen.ch/wp-content/uploads/2020/06/Judgment-FSC-2020-05-05-KlimaSeniorinnen-English.pdf.
[11] Verein Klimaseniorinnen Schweiz and Others, supra note 1, at 1.
[12] Ibid.
[13] Ibid. at 8.
[14] Ibid. at 10.
[15] European Court of Human Rights, The ECHR in 50 Questions, p. 9, https://www.echr.coe.int/Documents/50Questions_ENG.pdf.
[16] European convention on human rights, Article 34.
[17] See European Court of Human Rights, Practical Guide on Admissibility Criteria (April 30, 2019) [“Practical Guide on Admissibility”], p. 10, https://www.echr.coe.int/Documents/Admissibility_guide_ENG.pdf: In order to be able to lodge an application in accordance with Article 34, an applicant must be able to show that he or she was “directly affected” by the measure complained of (Tănase v. Moldova [GC], § 104; Burden v. the United Kingdom [GC], § 33; Lambert and Others v. France [GC], § 89). This is indispensable for putting the protection mechanism of the Convention into motion (Hristozov and Others v. Bulgaria, § 73), although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (Micallef v. Malta [GC], § 45; Karner v. Austria, § 25; Aksu v. Turkey [GC], § 51).
[18] Practical Guide on Admissibility, p. 13.
[19] Practical Guide on Admissibility, pp. 13, 14. It is only in exceptional cases that the Court will accept measures of general nature that have not yet been applied to the detriment of the applicant, and can thus give rise to victim status. See ECtHR 6 September 1978, Klass a.o. v Germany, no 5029/71, para. 33; ECtHR 22 October 1981, Dudgeon v the United Kingdom, no 7525/76; ECtHR 7 July 1989, Soering v United Kingdom, no 14038/88.
[20] ECtHR 22 May 1984, De Jong, Baljet and van den Brink v the Netherlands, nos. 8805/79, 8806/79, 9242/81, para 41.
[21] Such situations have included, for example: where the applicant was not able to establish that the legislation he complained of had actually been applied to him due to the secret nature of the measures it authorised (See ECtHR 6 September 1978, Klass a.o. v Germany, no 5029/71, para. 33; ECtHR 22 October 1981); where an alien’s removal had been ordered, but not enforced, and enforcement would have exposed him in the receiving country to treatment contrary to Article 3 and Article 8 of the Convention (Dudgeon v the United Kingdom, no 7525/76; ECtHR 7 July 1989); or, where a law punishing homosexual acts was likely to be applied to a certain category of the population, to which the applicant belonged (Soering v United Kingdom, no 14038/88).
[22] Practical Guide on Admissibility, p. 13. See ECtHR 10 March 2004, Senator Lines GmbH v. fifteen member States of the European Union, no. 556672/00.
[23] See generally Verein Klimaseniorinnen Schweiz and Others, supra note 1.
[24] Verein KlimaSeniorinnen Schweiz et al. v. Switzerland, Comments of the Swiss Government on admissibility and the merits, Application no. 53600/20 (16 July 2021), https://www.greenpeace.ch/static/planet4-switzerland-stateless/2021/08/30b1c8c0-stellungnahme-schweiz-en.pdf.
[25] Vallianatos and Others v Greece, (2014) 59 EHRR 12, para 49, https://hudoc.echr.coe.int/fre?i=001-128294.
[26] Cordella and Others v Italy [2019] ECHR 78, para 100; see also Paul Clark, Gerry Liston and Ioannis Kalpouzos, Climate Change and the European Court of Human Rights: The Portuguese Youth Case, EJIL:Talk! Blog (6 October 2020), www.ejiltalk.org/climate-change-and-the-european-court-of-human-rights-the-portuguese-youth-case/.
[27] Paris Climate Agreement (adopted 12 December 2015, entered into force 4 November 2016) UNTS 3156, Articles 2(a), 4, https://unfccc.int/sites/default/files/english_paris_agreement.pdf.
[28] UNDRR, Human Costs of Disaster: An overview of the last 20 years (2000-2019), p. 18.
[29] World Health Organization (WHO), Gender, Climate Change and Health (Geneva: World Health Organization, 2011).
[30] Osman v. United Kingdom (GC), 1998, para 116 (“. . . it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.”).
[31] Verein KlimaSeniorinnen and others v. Switzerland App no. 53600/20, Third party intervention under article 44(3) of the Rules of Court, Evelyne Schmid and Véronique Boillet (17 Sept 2021), https://serval.unil.ch/resource/serval:BIB_13D7442359A6.P001/REF.
[32] Paris Climate Agreement, supra note 25, Art. 4.
[33] Comments of the Swiss Government on admissibility and the merits, supra note 22.
[34] UNFCCC, Nationally Determined Contributions (NDCs), https://unfccc.int/process-and-meetings/the-paris-agreement/nationally-determined-contributions-ndcs/nationally-determined-contributions-ndcs.
[35] Öneryıldız v Turkey (2004) 39 EHRR 12, para 89.
[36] Ibid., at para 90; Brincat v Malta [2014] ECHR 900, para 101.
[37] Di Sarno and Others v Italy App no 30765/08 (ECHR, 10 January 2012) para 105; López Ostra v Spain (1995) 20 EHRR 277, para 51; Powell and Rayner v UK (1990) 12 EHRR 355, para 41.
[38] IPCC, 2018: Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [Masson-Delmotte, V., P. Zhai, H.-O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T. Waterfield (eds.)]. Cambridge University Press, Cambridge, UK and New York, NY, USA, pp. 3-24, doi:10.1017/9781009157940.001.
[39] International Energy Agency (2022), Global Energy & CO2 Status Report The latest trends in energy and emissions in 2018, www.iea.org/geco/emissions/.
[40] International Energy Agency (2022), Global Energy Review (2021), https://www.iea.org/world.
[41] Ibid.
[42] Office of the UN High Commissioner for Human Rights (9th September, 2019). Global update at the 42nd session of the Human Rights Council Opening statement by UN High Commissioner for Human Rights Michelle Bachelet, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24956&LangID=E.
[43] Alston, P. (25th June 2019). Knox. J (1st February, 2016). Climate change and poverty: Report of the Special Rapporteur on extreme poverty and human rights. UN Human Rights Council (A/HRC/41/39), para. 87.