On 9 April the Grand Chamber of the European Court of Human Rights (ECtHR) held in a judgement that Switzerland violated Article 8 (right to respect for private and family life) and Article 6 § 1 (access to the courts) by failing to perform positive climate change obligations under the European Convention on Human Rights (ECHR).
The case concerned Verein KlimaSeniorinnen Schweiz (VKSS), a Swiss association founded to “promote and implement” climate change protection for the benefit of its members (older women) and four individual applicants who were members of VKSS. The four individual applicants were all over the age of 80 and suffered from various health problems, which they alleged were significantly worsened by heatwaves. This in turn, negatively affected their living conditions and quality of life. In 2016, both the individual applicants and VKSS submitted to various Swiss environmental and energy authorities that Switzerland had failed in numerous ways to mitigate or prevent climate change. They also contended that Switzerland would likely fail to meet their 2030 obligations under the 2015 Paris Climate Agreement and sought a decision on the actions to be taken. In 2017, the Federal Department of the Environment, Transport, Energy and Communications (DETEC) found the submission inadmissible as the applicants’ rights had not been directly affected so they could not be regarded as victims. The DETEC also stated that they believed the only way to achieve the applicants' request would be a global reduction in CO2 emissions, which was not something that Switzerland had any control over. The applicants appealed the decision, but the Federal Administrative Court dismissed the appeal in 2018 as women over 75 are not the only ones who are affected by climate change, so there was nothing to show that the applicants' rights had been affected in a different way from the rest of the population. An appeal was made to the Federal Supreme Court, but it was dismissed.
On appeal to the ECtHR, the Grand Chamber held that Article 8 of the ECHR (right to respect for private and family life) encompasses a right to state protection from the “serious adverse effects of climate change on lives, health, well-being and quality of life”. The Court held that States have a positive duty to adopt and apply regulations designed to mitigate existing and future potentially irreversible effects of climate change. This duty arises because the purpose of the ECHR is to ensure the effective protection of human rights. This purpose is severely hampered by the harsh effects of climate change. In this case, specifically, the ECtHR held that not only had Switzerland failed to put in place a regulatory framework to quantify its current greenhouse gas emissions, but historically, it had also failed to meet its greenhouse gas reduction targets. However, despite this ruling, the court held that of the applicants, only VKSS had standing, as the individual applicants did not fulfil the victim criteria under Article 34.
Under Article 34, the ECtHR held that to show standing for climate change-based applications, applicants must show that they are “personally and directly affected by governmental action or inaction”. To meet this threshold, applicants must prove two things: a high intensity of exposure of the applicant to the adverse effects of climate change, and a pressing need to ensure the applicant's individual protection. As the ECtHR imposes such a high threshold for standing when it comes to climate change cases, none of the individual applicants had standing. When it comes to the standing of applicants who are associations, the ECtHR was inclined to lower the high bar. The Court is generally willing to allow associations to take climate change-based public interest applications because of the special position of climate change as a “common concern of humankind”. Thus, it was held that VKSS had standing to make the complaint.
Regarding Article 6 § 1 (access to the courts) the ECtHR held that the domestic rejection of VKSS’ application by both the national courts and DETEC constituted an interference with the right of access to the courts. The ECtHR pointed to the fact that the national courts had failed to consider the proffered scientific evidence about climate change and had failed to take the application seriously. As VKSS had exhausted all other possible remedies and there were no other legal safeguards, the ECtHR held that there had been a violation of Article 6 § 1.
Historically, courts all over the world have been reluctant to recognise personal enforceable environmental rights. However, this case comes when courts seem more willing to find enforceable environmental rights. This is demonstrated by the fact that in March, the Inter-American Court of Human Rights found that there was a substantive right to a healthy environment. But even with these two victories, climate change-based litigation will continue to be an uphill battle. In speaking about the decision, renowned climate activist Greta Thunberg stated, “This is only the beginning of climate litigation... This means that we have to fight even more, since this is only the beginning”.
Click here for the judgement in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland.