Swiss climate change case

Link to case: Verein Klimaseniorinnen Schweiz and Others v Switzerland

Links to media: Reuters; FT (subscription required); and ABC

On 9 April 2024, the applicant, Verein Klimaseniorinnen Schweiz, won a human rights case against Switzerland in the European Court of Human Rights (ECtHR). The applicant association has 2000 members who are all Swiss women and whose average age was 73. The applicant claimed breaches of the Convention on Human Rights, a treaty that binds the 46 members of the Council of Europe. The significance of the case is that under Art 46, a finding of a breach requires remedy by the State. Further, the decision is binding on the Council of Europe member States.

It was also significant that the applicant won standing: the ECtHR did not grant standing to individuals within the group, or to other applicants in climate change cases decided the same day. The ECtHR observed, at paragraph [299]:

According to the applicants, there was no doubt that climate change-induced heatwaves had caused, were causing and would cause further deaths and illnesses to older people and particularly women. This message had been part of the respondent State’s communication with its citizens regarding the public-health impacts of climate change.

The ECtHR also noted that there was no challenge to the scientific evidence.

Based on the ongoing failure of Switzerland to afford its members effective protection against the effects of global warming, the applicant obtained a declaration that there were breaches of Art. 6 (access to court) and Art. 8 (privacy) of the Convention and awarded 80,000 euros to the association. Further, under Art. 46, Switzerland must rectify the breaches supervised by the Committee of the Members of the Council of Europe.

Switzerland argued - alongside many other States of the Council of Europe who were intervenors - that the question of what action a member State should take to give effect to the Convention on Human Rights was a matter for its domestic institutions (at [338]) and that the mitigation of GHG emissions was a collective matter for the international community.  Switzerland raised an issue concerning its proportion of the share of global greenhouse gas emissions and its capacity to take responsibility for a global phenomenon that requires action by the community of member states.

The ECtHR held 16 to 1 that the Swiss State had breached Convention Art. 8, the right to respect from the State for privacy and family life. Breach of Art. 8 requires actual interference by the State. The ECtHR stated that it had long ago decided that the scope of protection under Art. 8 under the Convention included protection to human health, well-being and quality of life from various sources of environmental harm. It held at [548] that:

“Effective respect for the rights protected by Article 8 of the Convention requires that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades. In this context, in order for the measures to be effective, it is incumbent on the public authorities to act in good time…”

Partly dissenting, Judge Eicke said that Art 8 was about protection from a source of environmental harm with a particular geographical locus, but GHG emissions were present everywhere.

This judgment may encourage climate change litigation elsewhere based on human rights legislation.