A new European Court of Human Rights ruling has established a vital new precedent

The judgement shows litigation can be used to hold governments to account on their climate ambitions – but much will depend on policy outcomes.

Expert comment
Published 18 April 2024 3 minute READ

The European Court of Human Rights (ECtHR) has set an important precedent through its 9 April judgment in the Verein KlimaSeniorinnen Schweiz and Others v. Switzerland case. 

In its ruling, the Court states that Switzerland has a responsibility under the European Convention for Human Rights (ECHR) to combat climate change effectively to protect the human rights of their citizens – and as a result can be held accountable for inadequate climate policies and mitigation measures.

The judgment drew on existing national and international human rights instruments on climate change, including domestic jurisprudence in countries who are signatories to the European Convention on Human Rights (ECHR).

The decision developed important principles for climate change cases which domestic courts of ECHR members can consider, strengthening legal pathways that can and should be used strategically to bring accountability in the fight against climate change.

A pivotal case for rights-based litigation  

The case saw KlimaSeniorinnen Schweiz (an association representing over 2,000 elderly Swiss women) and four women seek remedy for the Swiss government’s inadequate measures to combat climate change, which it argued failed to protect its members’ health from risks associated with excessive heat.

The ruling means that, in effect, positive obligations under Article 8 of the Convention include a right to protection by the state’s authorities from adverse effects of climate change on lives, health, well-being, and quality of life.

The court identified critical gaps in the Swiss authorities’ processes of establishing a relevant domestic regulatory framework to tackle climate change. 

These included a failure to quantify any national Greenhouse Gas (GHG) emission caps through a carbon budget (or similar means), or to meet past GHG emission reduction targets for 2020. 

The ECtHR also found that Swiss national courts’ inability to substantively engage with scientific evidence on climate change, or to provide remedy to the association and with no legal avenues left, breached the applicant’s right of access to courts (ECHR Article 6).

The scope of the judgement

The Court’s ruling significantly develops jurisprudence on human rights and climate change. It outlines that, where there is an alleged breach of human rights provisions due to climate impacts, it will assess whether state authorities can demonstrate:

  • Measures that indicate a specific target timeline to achieve Net Zero and carbon budget, or equivalent methods;
  • Intermediate greenhouse gas emission targets and pathways; 
  • Evidence showing compliance to greenhouse gas reduction targets;
  • Updates to greenhouse gas reduction targets with due diligence and best available evidence;
  • Acting in good time in an appropriate and consistent manner when devising and implementing climate change legislation and measures.

The ruling does not prescribe remedies beyond these requirements. Implementation is left to domestic courts and legislators, as ‘better placed to assess the specific measures to be taken’.  

The court recognized that subjecting acts and failures of state authorities to strict scrutiny is not appropriate due to the complexity of the climate transition. 

This case demonstrates that expert evidence on climate science will increasingly have a role to play in future climate litigation.

Instead, countries are given considerable latitude on how they choose to address greenhouse gas emissions. 

But this margin is narrower when legislative and administrative policy to achieve carbon neutrality are not set out (in the form of climate legislation and carbon budgets, or other means of setting emissions targets).

Advancements in climate science also help localize the risks and vulnerability from a changing climate. This case demonstrates that expert evidence on climate science will increasingly have a role to play in future climate litigation.

The decision sends a strong signal and recognizes that, as part of their obligation to protect Article 8 of the ECHR, all forty-seven ECHR member states  must ‘put in place the relevant legislative and administrative framework designed to provide effective protection of human health and life’. 

Therefore, national courts will need to consider climate impacts and this judgement in any future claims.

The challenges to come

As there is a breach of the ECHR, Switzerland is required to, with the supervision of a Committee of Ministers, select the measures that must be adopted domestically to remedy the breach to fulfil their article 46 obligation. A just satisfaction fine for costs and expenses needs to be paid to the applicant association.  

Upcoming cases can also become more sophisticated, being more attentive to who can bring such cases.

Switzerland needs to find necessary policy coherence across legislative targets, interim targets, and resulting emission pathways. 

To meet their 2030 target of a 50 per cent reduction in emissions compared to 1990s, a 35 per cent cut in emissions is needed in the next year. So far, there has been 20 per cent emissions reduction – a target set for 2020 and missed back then.

From now on, domestic courts in Switzerland will have a substantive role in how the law develops. Upcoming cases can also become more sophisticated, being more attentive to who can bring such cases, admissibility, and most importantly how the ECHR applies to climate impacts on individuals.

Article 2nd half

Existing mechanisms must be adapted to address climate change, as the ECtHR has done. Effective policies for climate change need to be designed domestically and negotiated in international policy forums – such as UNFCCC’s Conference of Parties. However, where governments fail to deliver on progress, increasing use of human rights law can be expected.

The  case has also shown that rights-based litigation, used strategically, has a mobilization power that extends beyond an individual case, capable of strengthening public awareness of the need for greater action on climate change.  

It increases governments’ understanding that they can and will be held responsible for inaction on climate change – and helps legal institutions better understand how to engage with climate change cases.

However, while the court has established a vital precedent, the ultimate success will be determined by whether it can incentivise discourse and policy outcomes in Switzerland and other ECHR member states.