A contribution from Dr. Julia Jungfleisch, LL.M.*
A. A week ago…
…the European Court of Human Rights in Strasbourg ruled for the first time on the human rights implications of climate change and the resulting state obligations.[1] The Court’s possible interpretation of the relevant matters had already been the subject of much discussion prior to the decision[2] and the judgment itself has already received a great deal of commentary since it was handed down.[3] As is so often the case, the categorisations range from praising the judgment as “breaking new ground”[4] on the one hand to “a failure for global climate justice”[5] on the other. The aim of this article is to illustrate the strengths and weaknesses of the judgment and to make clear what could and what could not be expected from the Court’s judgment.
B. The three rulings of the ECtHR on 09 April 2024 – One successful and two inadmissible applications
The Court ruled on three applications on the same day, of which only that of the KlimaSeniorinnen was accepted as (partially) admissible and well-founded, whereas the other two applications were dismissed as inadmissible.[6] The adolescents and young adults who took action against Portugal and 32 other Council of Europe member states in the Duarte Agostinho and Others case failed, albeit unsurprisingly,[7] due to the failure of the applicants to exhaust domestic remedies[8] and the lack of extraterritorial jurisdiction of the respondent States (except for Portugal) under Art. 1 ECHR.[9]
The applicant Carême, who in his application argued that France had violated his human rights by failing to adequately fulfil its obligations with regard to combating climate change, was unable to sufficiently prove that he was a victim of human rights violations in the eyes of the Court, because inter alia he no longer lived in France.[10]
In the case of the KlimaSeniorinnen, the applicants had argued that Switzerland had violated their human rights because, in particular, it had not sufficiently fulfilled its obligations with regard to the fight against climate change.[11]
The Court accepted the application as admissible, at least insofar as it was brought by the association.[12] The individual applicants were, however, unable to sufficiently prove to the Grand Chamber that they had been victims of a human rights violation.[13] To exclude an actio popularis, the application was therefore dismissed as inadmissible in this respect.[14] The association, in turn, had standing to bring an application as it fulfilled the three requirements developed by the case law of the European Court of Human Rights:
”(a) lawfully established in the jurisdiction concerned or have standing to act there;
(b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and
(c) able to demonstrate that it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention.”[15]
The association’s application was also well-founded and the applicant´s rights under Articles 8 and 6 ECHR were violated.[16] In this respect, the ECtHR emphasised the positive obligations arising from Art. 8 ECHR[17] (taking into consideration the principles stemming from Art. 2 ECHR without deciding on Art. 2).[18] Specifically, Art. 8 ECHR contains the obligation:
“In line with the international commitments undertaken by the member States, most notably under the UNFCCC and the Paris Agreement, and the cogent scientific evidence provided, in particular, by the IPCC, the Contracting States need to put in place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, notably the right to private and family life and home under Article 8 of the Convention.”[19]
The Court also shows an awareness for the judgment’s implications on intergenerational solidarity when it recognises a duty under Art. 8 ECHR that in order “to avoid a disproportionate burden on future generations, immediate action needs to be taken and adequate intermediate reduction goals must be set for the period leading to net neutrality.”[20]
The Court is particularly cautious with regard to reviewing the margin of appreciation; due to the principle of subsidiarity, it only assesses whether the respondent State has remained with the margin to determine by examining whether the competent authorities have had due regard to the need to:[21]
“(a) adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;
(b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;
(c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets;
(d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and
(e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.”
These regulatory obligations must also be procedurally safeguarded, the underlying information must be publicly accessible and a legal remedy must be available to ensure access to this information. Public participation in the decision-making process and the design of measures is also necessary.[22]
Switzerland has not met these aforementioned standards:
“there were 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. Furthermore, the Court has noted that, as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets (see paragraphs 558 to 559). By failing 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, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context.”[23]
According to the Grand Chamber, Switzerland also violated Art. 6 § 1 ECHR:
The national courts had dismissed the association’s claims as inadmissible without a decision on the merits,[24] thus violating the right to access to justice under Art. 6 § 1 ECHR. The ECtHR held in this context that:
“[…] in the face of the threats posed by the allegedly inadequate and insufficient action by the authorities to implement the relevant measures for the mitigation of climate change already required under the existing national law, this kind of action cannot automatically be seen as an actio popularis or as involving a political issue which the courts should not engage with.”[25]
Also, and even more importantly:
“[…], the existing evidence and the scientific findings on the urgency of addressing the adverse effects of climate change, including the grave risk of their inevitability and their irreversibility, suggest that there was a pressing need to ensure the legal protection of human rights as regards the authorities’ allegedly inadequate action to tackle climate change.”[26]
This would have at least required the national courts und national bodies for complaints to discuss the standing of an association and not dismiss the case without further examination.[27] For the Grand Chamber, it is important to bear in mind that due to the “key role” of domestic courts in climate-change litigation, the right of access to court is of particular importance,[28] all the more since the role of the ECtHR in this respect is merely subsidiary.[29]
With regard to the measures under Art. 46 ECHR, the Court did not set out any precise instructions in view of the complexity of the matter and the wide margin of appreciation, but instead ordered Switzerland, in cooperation with the Committee of Ministers, to develop measures that lead to the fulfilment of the obligations and the elimination of human rights violations.[30]
The decision was reached by 16 votes to one. Judge Eicke voted against a violation of Art. 8 ECHR and his dissenting opinion already begins sharply:[31]
”The disagreement is of a more fundamental nature and, at least in part, goes to the very heart of the role of the Court within the Convention system and, more generally, the role of a court in the context of the unique and unprecedented challenges posed to humanity (including in but also across our societies) by anthropogenic climate change.”[32]
In his view, the Court had unnecessarily created a new right in connection with Art. 8 and Art. 2 ECHR[33] and disregarded or rather overstretched its own principles for the assumption of victim status.[34] For Judge Eicke, the European Court of Human Rights therefore went too far in its decision and ”tried to run before it could walk”, which on the one hand raised false hopes that the judgment could not fulfil and on the other hand, and much more seriously, the majority of the Grand Chamber risked that the Member States would refuse to follow the Court and that there would be problems in implementing the judgment.[35] It also had remained unclear to what extent the judgment would help to develop effective measures due to its general statements in Art. 46 ECHR.[36]
C. A judgment between ”ground breaking” and ”a failure for global climate justice”
There is no doubt that the KlimaSeniorinnen judgment is the first of its kind for the ECtHR and lays the foundation for the future assessment of complaints related to climate change.[37] In it, the Court made it clear that non-compliance with the Paris Agreement[38] can also lead to a violation of the rights guaranteed by the Convention and established an initial framework of human rights obligations in connection with climate change.[39] Like the German Federal Constitutional Court in its climate decision,[40] the Court links the disregard of obligations under international environmental law with the guarantee of human rights and makes it clear that there is a need for action by Member States, particularly with regard to future generations.[41]
While the judgment is largely praised and described as ”VERY sophisticated”[42] or ”innovative”,[43] some commentators also share the criticism expressed in the dissenting opinion. The main points of criticism are, as in the dissenting opinion, that the ECtHR exceeded its competence on the one hand and created false expectations regarding the effects and consequences of its judgment on the other.
However, the criticism that the Court went too far is unjustified in this case. The Court itself repeatedly emphasises the wide margin of appreciation as well as its own subsidiarity.[44] Or, as Milanovic puts it: ”the Court’s own approach is ultimately proceduralist and modest.”[45] It is true that the Court´s approach to the standing of associations is new and ”innovative”.[46] But it is not limitless, the Court’s requirements for the standing of associations are still quite high and not easy to meet[47] so that the introduction of an actio popularis under the Convention´s system was clearly avoided.[48]
It is therefore more a matter of the usual discussion: where are the limits to the progressive development of the Convention by ECtHR, what is still covered by the concept of a ”living instrument” and where does the Court disregard the Convention States’ margin of appreciation and the principle of subsidiarity that the Protocol No. 15 has expressly added to the preamble of the ECHR?[49]
Pedersen also emphasises that with regard to the material requirements that the Court derived from Art. 8 ECHR it ultimately was an instance of ”the classic environmental due diligence obligation with a climate change top-up”,[50] i.e. that the Court further developed its existing case law. This approach necessarily follows from the nature of the Convention as a ”living instrument”.[51] However, by no means did the Court create a completely new right.[52]
The criticism raised against the judgment that it does not achieve what it set out to do and that it raises false hopes[53] also in the end does not hold true. Of course, the Court cannot solve the climate crisis on its own, but should it therefore remain inactive? The fact that countries such as ”China, Russia or the Arab world” are not affected by the decision may be true,[54] but should Europe therefore do nothing to enforce international obligations entered into by European States?
Although the judgment is only directly binding for Switzerland, it is nevertheless likely to have a ”signal effect” for the other Member States of the Council of Europe.[55] After all, it is true that the guidelines set by the Court are extremely vague with regard to the measures to be taken.[56] However, it is also true that the direction is clearly defined: compliance with the requirements and achievement of the objectives of the Paris Agreement, a treaty binding under international law.[57] The inadequate implementation of this agreement by one of them affects all Member States of the Council of Europe to a greater or lesser extent.[58]
It is true that the consequences of climate change are currently less severe in the global North than in the global South.[59] Also, the linking of effective control over the victim of the human rights violation instead of effective control over the cause of climate change as a connecting factor for the assumption of jurisdiction might lead to a situation where bringing cases to the court from outside the CoE Member States will be unsuccessful because victims outside Europe will not be covered by the Convention States’ extraterritorial jurisdiction pursuant to Art. 1 ECHR.[60] In view of the global nature of climate change and its consequences, this is not satisfactory.[61] At the same time, a regional court cannot be expected to develop an effective global solution.[62] The judgment of the European Court of Human Rights will certainly be taken into account by the other (international) courts dealing with legal principles in connection with climate change[63] and may therefore have an indirect impact beyond Europe.[64]
In order for this judgment to have an effect, all the M Convention States are now called upon to implement the judgment, not only Switzerland, because the Court formulated obligations under the ECHR that are addressed to all of them, even though only Switzerland is directly obliged under Art. 46 (1) ECHR. But also the international community of States as a whole must fulfil its obligations under international law in the fight against climate change and, without being bound by the judgment or the ECHR, review and question its own implementation of the obligations under the Paris Agreement and adapt them where necessary.[65] It is true that it remains to be seen whether this will work. However, the Court cannot be criticised for having done what it could to curb climate change.
*Dr. Julia Jungfleisch, LL.M. ist Rechtsreferendarin und arbeitet als wissenschaftliche Mitarbeiterin am Europa-Institut der Universität des Saarlandes.
[1] Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], judgment of 9 April 2024 (Appl. No. 53600/20). The legal summary can be found here.
[2] See, e.g.,Reich, Hausmann, Boss, VerfBlog 16.05.2022; Boillet, VerfBlog 17.05.2022; Sußner, VerfBlog 20.04.2023; Schmid, EJIL:Talk! 30.04.2022; Pedersen, EJIL:Talk! 04.04.2023; Arling, Taghavi, EJIL:Talk! 06.04.2023.
[3] Milanovic, EJIL:Talk! 09.04.2024; Sicilianos, Deftou, EJIL:Talk! 12.04.2024; Pedersen, EJIL:Talk! 11.04.2024; Nolan, EJIL:Talk! 15.04.2024; Letvin, EJIL:Talk! 17.04.2024; Arntz, Krommendijk, Verfblog 09.04.2024; Wegener, VerfBlog 11.04.2024; Kring, LTO 09.04.2024; Schayani, Völkerrechtsblog 15.04.2024; Buser, EJIL:Talk! 16.04.2024; Humphreys, EJIL:Talk! 12.04.2024.
[4] Sicilianos, Deftou, EJIL:Talk! 12.04.2024.
[5] Sicilianos, Deftou, EJIL:Talk! 12.04.2024.
[6] Decision of 9 April 2024, Duarte Agostinho and Others v Portugal and 32 Others (Application no. 39371/20) and decision of 9 April 2024, Carême v France (Application no. 7189/21).
[7] Pedersen, Fn. (2); see also: Giegerich, Jungfleisch, Jean Monnet Saar Expert Paper; see also: Milanovic, EJIL:Talk! 09.04.2024.
[8] Duarte Agostinho Fn. (6), paras. 215-228.
[9] The Court explicitly held that extending the extraterritorial jurisdiction of respondent States in such cases would turn the “Convention into a global climate-change treaty”, Duarte Agostinho Fn. (6), para. 208.
[10] Carême v France (Application no. 7189/21), para. 81ff.
[11] Verein KlimaSeniorinnen and others v Switzerland, Fn. (1), para. 573.
[12] Ibid., paras. 521-526.
[13] In particular, they were unable to prove a causal link between their diseases and climate change, Verein KlimaSeniorinnen and others v Switzerland, Fn. (1), paras. 533ff.
[14] Ibid., paras. 460, 481ff.
[15] Verein KlimaSeniorinnen and others v Switzerland, Fn. (1), para. 502; As expected, the Grand Chamber referred back to the Aarhus Convention, see Pedersen, Fn. (2).
[16] See operative part of the judgment, para. 657.
[17] Verein KlimaSeniorinnen and others v Switzerland, Fn. (1), paras. 538, 546ff.
[18] Ibid., para. 536f.
[19] Ibid., para. 546.
[20] Ibid., para. 549.
[21] Ibid., para. 550.
[22] Ibid., para. 554.
[23] Ibid., para. 573.
[24] Ibid., para. 630.
[25] Ibid., para. 634.
[26] Ibid., para. 635.
[27] Ibid., para. 636f.
[28] Ibid., para. 639.
[29] Ibid.
[30] Verein KlimaSeniorinnen and others v Switzerland, Fn. (1), para. 657.
[31] Verein KlimaSeniorinnen and others v Switzerland, Fn. (1), p. 233ff. (Dissenting opinion).
[32] Dissenting opinion (Fn. 31), para. 2.
[33] Ibid., para. 59ff.
[34] Ibid., para. 22ff.
[35] Dissenting opinion (Fn. 31), para. 68ff.
[36] Ibid., para. 69.
[37] Pedersen, EJIL:Talk! 11.04.2024; Sicilianos, Deftou, EJIL:Talk! 12.04.2024.
[38] Paris Agreement adopted at the UN Climate Change Conference (COP21) in Paris on 12 December 2015, UNTS vol. 3156, p. 79.
[39] Pedersen, EJIL:Talk! 11.04.2024.
[40] BVerfG, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18 (english translation available).
[41] see on this awareness of the intergenerational dimension of the decision: Nolan, EJIL:Talk! 15.04.2024.
[42] Milanovic, EJIL:Talk! 09.04.2024.
[43] Letvin, EJIL:Talk! 17.04.2024.
[44] Verein KlimaSeniorinnen and others v Switzerland, Fn. (1), e.g.: paras. 420-436, 449ff.; Sicilianos, Deftou, EJIL:Talk! 12.04.2024.
[45] Milanovic, EJIL:Talk! 09.04.2024.
[46] Letvin, EJIL:Talk! 17.04.2024.
[47] Sicilianos, Deftou, EJIL:Talk! 12.04.2024.
[48] See Sicilianos, Deftou, EJIL:Talk! 12.04.2024.; critically on this Letvin, EJIL:Talk! 17.04.2024 who fears that the Court created a ”’loophole‘ for associations in climate change cases”.
[49] See on the living instrument doctrine and its limits in general Angelika Nussberger, The European Court of Human Rights, Oxford 2020, p.76ff.
[50] Pedersen, EJIL:Talk! 11.04.2024; see likewise Letvin, EJIL:Talk! 17.04.2024.
[51] See also Arntz, Krommendijk, Verfblog 09.04.2024.
[52] Pedersen, EJIL:Talk! 11.04.2024.
[53] Dissenting opinion, Fn. (31), para.69; see also Wegener, VerfBlog 11.04.2024.
[54] Wegener, VerfBlog 11.04.2024.
[55] Kring, LTO 09.04.2024.
[56] Wegener, VerfBlog 11.04.2024.
[57] Verein KlimaSeniorinnen and others v Switzerland, Fn. (1), para. 546.
[58] For the situation in Germany for example: BVerfG, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18.
[59] Schayani, Völkerrechtsblog 15.04.2024; see also Wegener, VerfBlog 11.04.2024.
[60] Schayani, Völkerrechtsblog 15.04.2024; Buser, EJIL:Talk! 16.04.2024 sees a starting point for future cases where extraterritoriality is accepted, because in the Duarte Agostinhos decision ”embedded emissions” are accepted as a possible human rights violation.
[61] Humphreys, EJIL:Talk! 12.04.2024.
[62] Arntz, Krommendijk, Verfblog 09.04.2024 point to the possible fear of the Court of ”opening the floodgates” otherwise.
[63] See, e.g., the Request For Advisory Opinion transmitted to the International Court of Justice pursuant to General Assembly resolution 77/276 of 29 March 2023; see on the connection e.g. Kring, LTO 09.04.2024.
[64] See also Arntz, Krommendijk, Verfblog 09.04.2024.
[65] This is at least partly already being done on the national level, see Pedersen, EJIL:Talk! 11.04.2024 with reference to Germany and the Netherlands; see also Milanovic, EJIL:Talk! 09.04.2024 who sees in the decision ”the hope of the Court” that domestic courts will ”bring real impetus” on the state´s fight against climate change; see also Sicilianos, Deftou, EJIL:Talk! 12.04.2024.
Suggested Citation: Jungfleisch, Julia, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland – Starting Point for the Future Climate Protection in Europe, jean-monnet-saar 2024.
DOI: 10.17176/20240418-183401-0
Funded by the Deutsche Forschungsgemeinschaft (DFG, German Research Foundation) – Project No.: 525576645
