European Court of Human Rights (ECHR): In a landmark decision, the 17-Judge Bench of the ECHR while considering the instant matter put forth by four 80-year old women and a Swiss association, Verein KlimaSeniorinnen Schweiz, working towards raising awareness about the consequences of global warming on older women’s living conditions and health, complaining that the Swiss authorities are not taking sufficient action, despite their duties under the European Convention on Human Rights, to mitigate the effects of climate change; the Grand Chamber of the Court with a ratio of 16:1 held that Switzerland had failed to comply with its “positive obligations” under the Convention vis-a-vis climate change. It was found that there had been critical gaps in the process of putting in place relevant domestic regulatory framework, including a failure by the Swiss authorities to quantify national greenhouse gas (GHG) emissions limitations. Furthermore, Switzerland also failed to meet its past GHG emission reduction targets.
While recognising that national authorities enjoy wide discretion in relation to implementation of legislation and measures, the Court held that the Swiss authorities had not acted in time and in an appropriate way to devise, develop and implement relevant legislation and measures in this case.
Background: The applicants in the instant case were 4 women aged over 80 and a Swiss association, Verein KlimaSeniorinnen Schweiz, which was established to promote and implement effective climate protection on behalf of its members who are more than 2,000 older women (one-third of whom are over 75). The applicants complained of their health problems which have aggravated during heatwaves, thereby significantly affecting their lives, living conditions and well-being.
The applicants complained of various failures by the Swiss authorities to mitigate the effects of climate change — and in particular the effect of global warming — which they claimed adversely affects their lives, living conditions and health. They complained that the Swiss Confederation had failed to fulfil its duties under the Convention to protect life effectively (Article 2 of the Convention) and to ensure respect for their private and family life, including their home (Article 8 of the Convention). It was further complained that the State had failed to introduce suitable legislation and to put appropriate and sufficient measures in place to attain the targets for combating climate change, in line with its international commitments.
Court’s Assessment:
17-Judge of the Court comprised of Síofra O’Leary (Ireland), President, Georges Ravarani (Luxembourg), Marko BoÅ¡njak (Slovenia), Gabriele Kucsko-Stadlmayer (Austria), Pere Pastor Vilanova (Andorra), Arnfinn Bårdsen (Norway), Pauliine Koskelo (Finland), Tim Eicke (the United Kingdom), Jovan Ilievski (North Macedonia), Darian Pavli (Albania), Raffaele Sabato (Italy), Lorraine Schembri Orland (Malta), Anja Seibert-Fohr (Germany), Peeter Roosma (Estonia), Ana Maria Guerra Martins (Portugal), Mattias Guyomar (France), Andreas Zünd (Switzerland), JJ.
The Court pointed out that it could deal with the issues arising from climate change only within the limits of the exercise of its competence under Article 19 (Establishment of the Court) of the Convention, which is to ensure the observance of the engagements undertaken by the High Contracting Parties to the Convention and its Protocols. The Court found that there are sufficiently reliable indications that climate change exists and that it poses a serious threat to the enjoyment of human rights guaranteed under the Convention, that States are aware of this and capable of taking measures to address it effectively.
Court examined individual applicants’ victim status, the applicant association’s right to submit a case to a court of law (locus standi) and the applicability of Articles 2 and 8 of the Convention. In order to claim victim status under Article 34 of the Convention in the context of complaints concerning climate change, the Court held that individual applicants need to show that they are personally and directly affected by governmental action or inaction. This depends on (a) high intensity of exposure of the applicant to the adverse effects of climate change, and (b) a pressing need to ensure the applicant’s individual protection.
Having perused the nature and scope of the individual applicants’ complaints and the material submitted by them, the degree of likelihood and/or probability of the adverse effects of climate change in time, the specific impact on each individual applicant’s life, health or well-being, the magnitude and duration of the harmful effects, the scope of the risk (localised or general), and the nature of the applicant’s vulnerability, the Court found that the four individual applicants did not fulfil the victim-status criteria under Article 34 of the Convention. The Court therefore declared their complaints inadmissible.
As regards the standing of associations The right of an association to act on behalf of its members or other affected individuals within the jurisdiction concerned is not subject to a separate requirement that those on whose behalf the case has been brought would themselves meet the victim-status requirements for individuals. The Court found that the applicant association fulfilled the relevant criteria and had the necessary standing to act on behalf of its members in this case.
Vis-a Vis Article 8 of the Convention, the Court noted that, Article 8 encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life. It was found a contracting State’s main duty is to adopt, and to apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change. This obligation flows from the causal relationship between climate change and the enjoyment of Convention rights, and the fact that the object and purpose of the Convention, as an instrument for the protection of human rights, requires that its provisions must be interpreted and applied so as to guarantee rights that are practical and effective. However, the Court emphasised that it is only competent to interpret the provisions of the Convention and its Protocols.
Taking note of international commitments especially regarding reduction of GHG emissions, the Court noted that 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 under Article 8. Effective respect for those rights requires States to undertake measures to reduce their GHG emission levels, with a view to reaching net neutrality, in principle within the next three decades. In this respect, States need to put in place relevant targets and timelines, which must form an integral part of the domestic regulatory framework, as a basis for mitigation measures.
The Court thus found that there were critical gaps in the Swiss Administration regarding drafting of a regulatory framework consistent with its positive obligations under the Convention. The Court further found that the Swiss authorities did not act in time and in an appropriate way to devise and implement the relevant legislation and measures in accordance with their positive obligations pursuant to Article 8 of the Convention, which were of relevance in the context of climate change. The Swiss Confederation therefore exceeded its discretion (“margin of appreciation”) and therefore, committed a violation of Article 8 of the Convention.
In addition, the Court found that Article 6 § 1 of the Convention applied to the applicant association’s complaint concerning effective implementation of the mitigation measures under existing domestic law. The Court held that the Swiss courts had not provided convincing reasons as to why they had considered it unnecessary to examine the merits of the applicant association’s complaints. They had failed to take into consideration the compelling scientific evidence concerning climate change and had not taken the complaints seriously.
[Verein KlimaSeniorinnen Schweiz v. Switzerland, Application no. 53600/20, decided on 09-04-2024]
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