Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, App. No. 53600/20 (Apr. 9, 2024)

Nature of the Case

A public interest non-profit and four senior Swiss women sued the State of Switzerland in the European Court of Human Rights for failing to mitigate the effects of greenhouse gas (GHG) emissions, which had adverse effects on their health. After developing a novel legal test through which an individual or association may establish standing to sue a State for acts or omissions related to climate change, the Court held not only that the non-profit had standing to sue, but that Switzerland reneged on their positive duties under international law to mitigate the effects of climate change and violated the non-profit’s right to a fair trial.

Enforcement of the Decision and Outcomes

Following the case’s outcome, Swiss authorities will now be overseen by the Committee of Ministers, who will supervise the State to confirm it is complying with its obligations under the Convention. This establishes a precedent for potential future cases regarding government inaction toward climate change mitigation. Other Member States to the convention will likely need to reinterpret their own climate change policies to ensure compliance and avoid similar lawsuits.

On the same day this case was published, the Court also dismissed two other climate-related cases (Carême v. France and Duarte Agostinho and Others v. Portugal and 32 others), but on mainly procedural grounds. Carême was dismissed for failing to meet the same “victimhood” test as is detailed in KlimaSeniorinnen, and Duarte Agostinho was dismissed due to failure to exhaust domestic remedies in Portugal and for lack of extraterritorial jurisdiction as to other states. While the Duarte Agostinho decision did not touch the merits, it did acknowledge that many points made by applicants may be admissible once domestic remedies are exhausted.

However, two months after the Court decided KlimaSeniorinnen, Swiss Parliament’s lower house voted by a wide margin to disregard the ruling, on the grounds that the European Court of Rights overstepped their jurisdictional bounds and engaged in impermissible judicial activism. Moreover, in August of 2024, the Swiss Federal Council claimed without evidence in a press release that Switzerland was already in compliance with its climate policy obligations, while criticizing the “broad interpretation” the European Court of Human Rights gave to the Convention. The Council then claimed they would comply with the ruling by closing loopholes in existing and forthcoming climate regulation.

Amnesty International condemned Swiss inaction in spite of KlimaSeniorinnen, accusing the Swiss Federal Council of “sending a dangerous signal to the Council of Europe . . . that the Court’s rulings are not binding and that climate protection measures can be taken à la carte.” Amnesty International further called on Switzerland to comply with its international climate obligations, and claimed the closing of regulatory loopholes was “not enough to address human rights violations.”  Even so, Switzerland submitted an October 2024 action report to the Committee of Ministers for the Council of Europe, detailing plans to further revise the CO2 Act and readjust their nationally determined contribution in light of KlimaSeniorinnen.

Significance of the Case

Several member States of the Convention intervened in this case, fervently urging the Court not to rule in the applicants’ favor. To these intervenors, the application constituted a “far-reaching expansion of the Court’s case-law on admissibility and merits of Articles 2 and 8,” as Ireland put it. The Court reinterpreted Article 8 to encompass the “serious adverse effects of climate change” on the “life, health, well-being and quality of life” of individuals within each individual State’s jurisdictions. This ruling puts teeth on what had previously been relatively under-enforced international law and gives the Court the ability to become more involved in European domestic affairs related to mitigating climate change.

KlimaSeniorinnen represents the first time a transnational court has enshrined climate protection as a human right. This decision follows several domestic court and international body rulings that such a right exists and is litigable. The opinion reads like a step-by-step manual on everything a potential litigant must consider when forming such a complaint, particularly with regard to victimhood and standing. The implication of the tests KlimaSeniorinnen promulgates is that it will likely be easier for associations to file such suits than for individual applicants.

KlimaSeniorinnen’s holding on Article 6 also reveals the Court’s inclination to directly engage with scientific evidence and chastise domestic courts for failing to adequately consider such evidence. This indicates that domestic courts may be required to engage in the actual merits of climate change cases, as Switzerland failed to do in KlimaSeniorinnen, before dismissing such suits as actio popularis.

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.