On the 9th of April, the European Court of Human Rights (ECtHR) delivered a decision that scholars already consider a milestone for climate litigation. There are more than 2,500 lawsuits worldwide that fall under the umbrella of climate litigation, or climate change litigation, the set, with uncertain boundaries, of cases that bring to trial issues of fact or law related to climate change. About two-thirds are from the United States, but there are at least fifty state jurisdictions involved, and new claims are filed each year.

The case of the elderly Swiss women

It was in 2016 when an association of about 800 Swiss women above 64 and another five women in their individual capacities filed, upon the initiative and with the support of Greenpeace, a lawsuit against the Federal Council, i.e. the Swiss executive, and some federal agencies with responsibilities in the fields of transportation, environment, and energy.

The KlimaSeniorinnen argued that these entities were not fulfilling their obligations under the federal Constitution and the European Convention on Human Rights (ECHR). The reduction in greenhouse emissions planned by the state was inconsistent with the goal of keeping global warming well below 2°C compared to the pre-industrial times, as laid out in the Paris Agreement. Failure to achieve the target would have resulted in greater consequences on their health than those brought about by climate change. More specifically, based on scientific studies, the plaintiffs claimed that they, as women in their senior years, carried a specific vulnerability to heat waves.

In 2017, the first instance authority rejected the appeal on procedural grounds, recognising no harm to the plaintiffs' rights and opposing an actio popularis, meaning an action to protect collective interests, which is inadmissible under Swiss federal law. Upon appeal back in 2018, the Federal Administrative Court similarly rejected the appeal on procedural grounds. The Federal Supreme Court, acting as the final instance, further upheld the lower courts' decisions in 2020. The association proceeded with legal action by filing an appeal against the Swiss state with the ECtHR, citing Articles 2 (right to life), 6 (right to a fair trial), 8 (right to respect for private and family life), and 13 (right to an effective remedy) of the ECHR.

The case of the French mayor

In 2018, Damien Carême, mayor of Grande-Synthe, a small municipality between the more famous Calais and Dunkirk, wrote a letter to the President of the French Republic, the Prime Minister, and the Minister of Ecological Transition and Solidarity, calling for mitigation actions in line with international agreements and the immediate implementation of climate change adaptation measures. He received no response, but challenged this silence, as an individual and as mayor, before the French Council of State, which ruled the appeal admissible only as far as it related to the municipality.

In 2021, the administrative court ordered the French government to take all necessary measures within a year to reduce greenhouse gas emissions and meet climate goals. Carême, no longer mayor but a member of the European Parliament in the ranks of the Greens, pursued the individual action by filing an appeal with the ECtHR, invoking Articles 2 and 8 of the Convention.

The case of the young Portuguese activists

Catarina, Cláudia, Martim, Mariana, Sofia, and André are the six young Portuguese who form the Youth for Climate Justice group, supported by the Global Legal Action Network (GLAN) and by crowdfunding in an ambitious action, to say the least: against 33 Council of Europe states before the Strasbourg Court. Some of them were between 8 and 21 years old when the action was filed in 2020, meaning some might live around the year 2100, towards which experts project worst-case scenarios.

The young Portuguese have complained about a violation by defaulting states regarding mitigation commitments of their right to life due to the effects of climate change affecting Portugal, like the increase in forest fires. Moreover, their private and family lives would be disrupted by heat waves, which prevent them from spending time outdoors, and anxiety about the uncertain future. A future in which they might live longer than the generations before them, possibly infringing on the prohibition of discrimination, in Article 14 of the ECHR.

One would have to have exhausted all legal remedies at the national level before accessing the ECtHR, but this, when multiplied by the 33 states, would have required exorbitant resources and excessive time.

The European Court of Human Rights rulings

The three cases summarised above were not explicitly linked until the decision on the 29th of June 2022 to reassign the cases to the Grand Chamber of the ECtHR, in the same composition of seventeen judges, although without bringing them together. Moreover, the cases were given priority over others and public hearings, which drew great media attention. These were the first climate appeals before the Strasbourg Court, although not the only ones.

The French appeal (Carême v. France) and the Portuguese appeal (Duarte Agostinho and Others v. Portugal and 32 other States) were declared inadmissible by the ECtHR on procedural grounds. Damien Carême no longer lives in France, while having denied the possibility of extending jurisdiction to states other than the one in which the six Youth for Climate Justice youth reside, regarding Portugal alone, the plaintiffs should have previously attempted to take legal action in the Portuguese legal system.

However, the decision that changed the outlook for climate litigation is the one in Verein KlimaSerinnen Schweiz and Others v. Switzerland. The Grand Chamber ruled by a majority (Justice Tim Eicke, the only dissenting judge, wrote a separate opinion) that there was a violation of Article 8 of the ECHR, i.e. the right to respect for private and family life, which includes, according to the Court's groundbreaking interpretation, a right to the effective protection by state authorities from the harmful effects of climate change on life, health, well-being and quality of life. The Swiss state has not acted in a timely and appropriate manner to produce and implement standards and measures for climate change mitigation.

Only the association KlimaSeniorinnen Schweiz was granted the opportunity to assert this violation in court, while the individual appeals were ruled inadmissible because the plaintiffs would not have demonstrated sufficiently intense exposure to climate change-related risks. Furthermore, the Grand Chamber unanimously ruled that there was a violation of Article 6 of the ECHR, namely the right to a fair trial and access to justice by the Swiss authorities.

The consequences

Damage claims had been filed only by the individual plaintiffs, whose appeals were ruled inadmissible. Therefore, the Swiss state will only have to cover 80,000 euros in legal fees for the association. The request to the court to order the state to take measures was not granted: it will be up to the state to choose by what means to comply with the decision.

Dr. Iur. Helen Keller, an ECtHR Judge from 2011 to 2020 and Professor at the University of Zurich, commented for Renewable Matter on the landmark decision in Verein Klimaseniorinnen Schweiz v. Switzerland: “The judgment is ground-breaking for two reasons: Fùfirstly, it establishes the link between human rights (in particular Art. 8 ECHR) and the positive obligations in climate law for the first time at the international level. It thus confirms a trend that has already emerged in many national climate judgments. Secondly, it extends the legal standing of associations and NGOs. It thus picks up on a legal development that has been evident since the Aarhus Convention came into force. Future case law will have to clarify the details in both areas. But these are two important steps for climate law, for human rights, and for NGOs.” Not all associations now have the right to act on behalf of individuals in appealing similar climate issues to the Strasbourg Court, the conditions are outlined in the Court's ruling.

Also, according to Dr. Iur. Corina Heri, a Researcher at the University of Zurich who is an expert on human rights, the ruling is “This is a landmark judgment that establishes a framework for deciding future mitigation cases at the Court and emphatically holds that individuals must have access to justice also in the context of climate change”.

These new developments will engage the climate litigation movement for months to come, as we wait to see their application to other pending appeals. However, the recognition of a citizens' right to protection from the harmful effects of climate change by states, and the ability of associations to go to court to enforce it, is an added incentive for states to not underestimate their climate commitments.

This article is also available in Italian / Questo articolo è disponibile anche in italiano

Images: © Miriam Künzli / Greenpeace