Verein KlimaSeniorinnen Schweiz and Others v. Switzerland stands as one of the pioneering cases which have played a significant role in shaping the climate change litigation. Not only this, the role of states in interpreting their role under the European Convention on Human Rights when it comes to climate change. The discussion below analyzes the legal grounds and the reasons behind the decision of this case. It will also reveal the impact of this case on the other European states as to how they will respond to climatic threats.

Starting off with the brief background of the case which was brought by around a group of over 2,000 Swiss women, represented by the association Verein KlimaSeniorinnen Schweiz who were deeply concerned about the impact of climate change on their health and well-being. They argued that the Swiss government’s inaction on climate mitigation directly affects their lives, particularly during heatwaves. It wasn’t the first time they took this matter to the authorities. Their journey for justice began in 2016 when they petitioned the Swiss authorities, highlighting what they saw as shortcomings in the country’s climate policies. They urged the government to take stronger measures to meet the goals set by the Paris Agreement. However, their initial requests were dismissed by Swiss courts, which ruled that the women weren’t substantially impacted.

Undeterred, the women persevered. In 2020, they took their case to the European Court of Human Rights (ECHR). Here, they argued that the Swiss government’s failure to adequately address climate change violated their rights to life and private life under Article 2 and 8 of the European Convention on Human Rights. Moreover, they considered the rejection of their claims on arbitrary grounds by the Swiss Federal Supreme Court as a violation of Right to Fair Trial under Article 6. Finally, they argued their Right to Effective remedy was also violated as the courts and the Swiss authorities failed to deal with the applicants’ complaints. This case marks a significant moment. It’s the first time the ECHR has considered a lawsuit against a government for inaction on climate change. The court’s decision will be closely watched, with the potential to set a precedent for future climate litigation around the world.

Article 2 and 8 of the Convention:

Coming towards the legal grounds and the approach taken by the courts, the first concern arose with regards to the Right to life, health and privacy as guaranteed by the Article 2 and 8 of the Convention. The interpretation by the ECHR creates a positive obligation for governments which arises from two key factors including the direct impact of the climate change on the ability to enjoy the fundamental human rights protected by the convention and the effective protection of rights by the Convention. It outlined the key duties of the states under Article 8 which included the adoption and implementation of effective regulations and measures to reduce greenhouse gas emissions (GHG). This included setting clear targets and timelines for achieving emission reductions, with the ultimate goal of reaching net neutrality within a reasonable timeframe. The courts did not operate in vacuum, along with acknowledging that their authority lies solely in interpreting the provisions of the Convention and its Protocols, it stressed on the International Frameworks established by Agreements like the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement. Furthermore, it recognized the weight of compelling scientific evidence provided by the Intergovernmental Panel on Climate Change (IPCC). By referencing these external sources, the Court implicitly encouraged a reading of the Convention that is informed by the broader global consensus on climate change and its urgency.

Margin of Appreciation:

European Court of Human Rights, while recognizing the competency of the local authorities of the states to formulate the most appropriate way to implement the rights and obligations, use the doctrine of Margin of Appreciation. This doctrine gives the states, some degree of discretion in fulfilling their obligations under the Convention as they are in a better place to analyze the implementation mode with respect to the internal affairs of the state as well. Judge Robert Macdonald argued in this regard that the doctrine acknowledges different countries have varying political, social, and economic contexts. However, this discretion is not limitless. The ECHR has the power to review a state’s actions (or inaction) to ensure they comply with the core principles of the Convention.

In the given case, the court recognized the overwhelming scientific consensus on the urgency of combating climate change and the nature and magnitude of the threat. This reduced the margin of appreciation for the state on the necessity of acting. The legal scholar David Boyd emphasizes on this restricted margin of appreciation by stating that, the overwhelming evidence for human-caused climate change leaves little room for states to deny the need for mitigation effort.

However, the application of this Margin of Appreciation is wide enough for the states in choosing the means to achieve climate change mitigation targets. The rationale for this wide discretion lies in the variety of approaches as there’s no single silver bullet solution to climate change. Different countries have varying economic structures, technological advancements and resources. The political and social understanding is also different in every state’s case. Judge Christine Chasing, a prominent international jurist, emphasizes that this understanding allows them to design policies with a higher chance of public acceptance and successful implementation. With reference to Verein KlimaSeniorinnen v Switzerland, the court acknowledged the varying approaches for achieving reduced emissions. They stressed on the two-pronged approach in which states retain the discretion in tackling the climate change but their actions must demonstrably protect the human rights of the citizens in the face of climate threats.

Even with the wider margin on means, the ECHR didn’t give Switzerland a free pass. Certain expectations still persisted which included the implementation of regulations that mitigate climate change and necessitated setting ambitious yet achievable greenhouse gas reduction targets grounded in the latest scientific evidence. It also expected continuous improvement with evolving scientific understanding of climate change. Moreover, the procedural safeguards were also emphasized, making sure that the state’s Margin of Appreciation did not translate into inaction or inadequate measures when it came to protecting human rights from the threats posed by the climate change as in the present case.

Admissibility and Locus Standi:

 In order for a case to be admissible in the climate context, the European Courts of Human Rights (ECHR) established a specific criterion for the individuals seeking “victim status” under Article 34 of the Convention, which presents a high threshold for the individual applicants in showing that the action or inaction of the government directly or indirectly affected them. The criterion to identify this affect depends on two factors which include:

• High intensity of exposure to the adverse effects of climate change. And
• Pressing need the court to intervene to protect them.

Along with that, it is also a set principle that a person or group cannot take an action to attain a remedy. They are termed as  Actio Popularis. In the case being discussed, the claim brought by the individuals was not entertained as they did not qualify the abovementioned criteria. However, the claim brought by the Associations on behalf of the individuals was entertained by acknowledging the unique nature of the climate change as a global issue impacting future generations. Apart from the unique nature of climate change, generally, not all associations are eligible to act on behalf of individuals, they have to satisfy the following criteria:

• The association must be legally formed and authorized to legally operate in the relevant jurisdiction.
• Its primary focus must be to defend the rights of its members or other individuals within the jurisdiction including the climate change threats.
• The association needs to demonstrate that it has the expertise and standing to represent the ones facing the specific treats or harmful consequences of climate change to their lives, health or well-being, as protected by the Convention.

The courts not only determined that the applicant Association fulfilled the criteria but also confirmed that the Article 8(Right to private and family life) applied to their complaint. This case sets a precedent for the climate change litigation before the ECHR and provide a clear framework for coping up with the challenges in this domain. However, the high bar for individual claims might limit access to justice for those who may be experiencing the initial impacts of climate change but haven’t yet reached the court-defined threshold of “high intensity” exposure.

In contrast to it, another case was brought by the former Mayor of the French town of Grande-Synthe in 2019, in which the applicant did not qualify the victim status since he was not living in France at that time and moved to Brussels.

Right to Fair Trial and Effective Remedy:

Another Contention by the Applicants was interference with their Right to Fair Trial which was efficiently dealt by the Court. While acknowledging the victim status of the Association, they applied the Article 6 § 1 of the Convention to their complaint as well. This Article guarantees everyone the right to Fair trial and public hearing in the determination of their civil rights and obligations. The Swiss Courts’ dismissal of the Association’s complaint without adequately examining the merits was deemed an interference with their Right to Access to the court. It was noted that no justifiable reasons by the National courts were provided, in order to convince that examination on the merits of the case was not essential. This decision also added weight to the significance of the role of National Courts in Climate change litigation and in upholding the human rights within their jurisdiction. 

What next?

One of the key challenges that emerge once a decision is made, particularly arise in terms of its practical execution and in case of the decisions by the European Courts of Human Rights, Article 46 of ECHR clearly ensures that the court rulings translate into concrete actions. Following a finding of a Convention violation, the state in question is tasked with selecting appropriate measures, both general and/or individual, to address the identified breach. These measures are implemented within the state’s domestic legal system. The Committee of Ministers, another key body within the European human rights framework, oversees this process to ensure compliance. In this specific case, court reflected on the principle of subsidiarity which recognizes that national authorities are often better positioned to understand the specific context and design targeted solutions and considered Swiss Confederation with the assistance of Committee of Ministers, better placed to assess the specific measures to be taken.

Beyond the state’s obligation to rectify the violation, Article 41 of the Convention allows for the possibility of “just satisfaction.” This may include awarding compensation to the individual or group who brought the original case. In this specific instance, the Court awarded the applicant association a sum of 80,000 euros to cover their legal costs and expenses. However, since no claim for damages was submitted, no additional compensation was granted on that account.

Global Impact:

This landmark case has sent shockwaves through the world of environmental litigation and the judgement has the potential to be a gamechanger, paving the way for surge in climate lawsuits against governments and corporations worldwide. The United Nations Environment Programme (UNEP) stated that,

“The Swiss case highlights the growing trend of using human rights law to address climate change. We can expect more such cases in the future, urging governments to step up their efforts.”

This case extends its influence beyond Switzerland. Six other climate lawsuits filed with the Strasbourg court, including a challenge to Norway’s continued oil and gas exploration in the Arctic, will likely be re-evaluated in light of the Swiss decision. The Strasbourg court has essentially provided a roadmap for future climate litigation, as Ruth Delbaere of Avaaz aptly states that the Swiss case offers a blueprint for holding governments accountable for climate failures.

This blueprint is already inspiring action around the globe. Courts in countries as diverse as Australia, Brazil, and India are dealing with human rights-based climate lawsuits. Even nations outside the European sphere, like India, are recognizing the fundamental right of citizens to be shielded from the devastating impacts of climate change. If we talk about Pakistan, recently, the Supreme court calls for the reports on the climate change challenges faced by the country and the initiatives being taken to mitigate them. It has given a very little timeframe for the establishment of climate change Authority. The fight for a sustainable future necessitates a global and coordinated effort.