On 26 November 2020, Verein Klimaseniorinnen Schweiz (“the applicant association”), an association registered under Swiss law, and four Swiss nationals, all members of the said association, presented an application before the European Court of Human Rights (“the Court”) against the Swiss Confederation.
The applicants alleged that the Swiss authorities committed certain omissions regarding climate change mitigation. They based their allegations on articles 2, 6, 8 and 13 of the Convention.
Verein Klimaseniorinnen Schweiz, is a non-profit association with the objective of promoting effective climate protection. In this respect, the main commitment of the applicant association is to reduce greenhouse gases (“GHG”) in Switzerland on behalf of not only its members, but also the general public and future generations. The applicant association achieves this purpose via educational activities and also pursuing legal action in the interest of its members with regard to the effects of climate change. Currently, the association has more than 2500 members, all of whom are women living in Switzerland, with an average age of 73.
The second to fifth applicants are all members of the applicant association, who alleged that as a result of climate change, heat waves affected their health negatively, making it nearly impossible for them to enjoy their daily lives.
Before examining the alleged violations of Articles 2 and 8 of the Convention, the Court notes, as its introductory remarks, that under certain circumstances various articles of the Convention may overlap or be absorbed by one another. In the environmental context, Article 2, the right to life, and Article 8, the right to respect for private and family life, largely overlap. Similarly, the interests protected under Article 8 encompass the procedural safeguards afforded by Article 6, the right to a fair trial. Moreover, the Court’s established case-law shows that the requirements of Article 13, the right to an effective remedy, are covered by those of Article 6 (FU QUAN, s.r.o. v. the Czech Republic [GC], no. 2487/14, § 85, 1 June 2023). These considerations are particularly important, as the Court does not always find it necessary to examine every alleged violation separately. It is also worth noting that neither the Convention’s articles nor its additional protocols explicitly regulate environmental protection. The Court addresses environmental problems only insofar affecting the Convention rights (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96 ECHR 2003-VIII).
The Court notes that the present case contains unique characteristics which raise unprecedented issues. Its existing case-law on environmental matters typically involves specific sources of harm, which in turn facilitate the identification of injured individuals (Taşkın and Others v. Turkey, no. 46117/99, § 113, ECHR 2004-X). In other words, the source of harm, an injured group of people and the nexus between these two are more or less clear. Furthermore, in such cases, the Court is even able to identify the measures taken or omitted for the mitigation of said damages.
That being said, in the context of climate change, the matter is significantly more complex. First, there is no single or specific source of harm. GHG emissions arise from an innumerable number of sources, irrespective of national borders. Most of these sources are part of our daily life, including industry, energy, transport, housing, agriculture etc. Secondly, these emissions produce harmful effects only in high concentrations and as a result of a complex chain of reactions. Thirdly, this chain of reactions is incredibly unpredictable. High levels of GHG give rise to global warming and climate change, which in turn cause extreme weather phenomena such as excessive heatwaves, droughts, excessive rainfall, storms etc. which in turn result with wildfires, floods, landslides, and avalanches. Currently, it is impossible to predict precisely when and where these effects will manifest. Finally, mitigation measures cannot be limited to a single sector. States have a positive obligation to adopt the necessary measures in a variety of fields.
Furthermore, the Court underlines a specific aspect in the context of climate change: intergenerational burden-sharing. As mentioned before, the effects of climate change are complex, and often materialize over long periods. In this respect, under the United Nations Framework Convention on Climate Change, states parties undertake the obligation to protect the climate for both present and future generations.
The Court also acknowledges that while climate change is a global phenomenon, the mitigation efforts rest on the principle of common but differentiated responsibilities and respective capabilities of states. As can be seen from article 2.2 of the Paris Agreement, paragraph 23 of the Glasgow Climate Pact and paragraph 12 of the Sharm el-Sheikh Implementation Plan, this is a well-established principle within the framework of environmental protection.
Finally, while examining the scope of its assessment, the Court remarks that climate change possesses an urgent threat and is a common concern of humankind. Therefore, while its authority is limited to ensuring that the Convention is complied with, the interpretation and application of the rights provided for under the Convention cannot be made independently from relevant legal instruments or facts on the subject. As its case-law suggests, in order to improve or reform its jurisprudence the Court must maintain a dynamic and evolutive approach. (Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, § 167, 17 January 2023). This can be interpreted as an approach in which conventions related to climate change mitigation would lay a more significant role in the interpretation of the Convention.
Ultimately, this case marks a pivotal moment in the Court’s approach to climate change, where the boundaries of human rights law and environmental protection blur, signalling a new era of accountability and intergenerational responsibility in the face of an urgent global crisis.
