Pioneering Verdict: How 100 Senior Women’s Climate Lawsuit Advances Human Rights and Environmental Protection
Can “100 senior women” save the world from climate change? In Verein Klimaseniorinnen Schewiz And ORs v Switzerland, they certainly made an important step.
Background
The claim was brought by a group of elderly women. They claimed that, because of their age, they were at particular risk from the impacts of climate change. They argued that Switzerland had failed to discharge its obligations to them under Articles 2 and 8 of the ECHR because it had not made a sufficient contribution to combating climate change. When the Swiss courts denied the admissibility of their claim, they also argued a breach of Articles 6 and 13.
Before the ECtHR, the Swiss government argued that:
- The Claimants lacked “victim status” under Article 34 ECHR because they were insufficiently impacted;
- The Claimants had, alternatively, failed to establish a causal connection between the harm they suffered and any breach of their rights; and
- In any case, the Swiss government had discharged any positive duty to respond to climate change.
The Court’s Decision
On the question of admissibility, the Court acknowledged the “Catch-22” context of climate change claims, whereby individuals are collectively impacted by climate change but it is often difficult for any single individual to bring an arguable case. In this context the Court acknowledged the necessity of allowing “associations” to bring cases on behalf of the victims of climate change. It identified a particular test for determining whether an “association” had standing in a climate change context:
the association in question must be: (a) lawfully established in the jurisdiction concerned or have standing to act there; (b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and (c) able to demonstrate that it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention.
The Court concluded that the individual claimants had not demonstrated sufficient “intensity” of exposure to the harm caused by climate change. The Klimaseniorinnen group, however, met the required standard:
Given the membership basis and representativeness of the applicant association, as well as the purpose of its establishment, the Court accepts that it represents a vehicle of collective recourse aimed at defending the rights and interests of individuals against the threats of climate change in the respondent State…
On the substance of the claim, the Court identified a positive duty to protect citizens from climate change flowing from Article 8. The duty has five limbs:
(a) adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;
(b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;
(c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub- paragraphs (a)-(b) above);
(d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and
(e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.
The Court concluded that Switzerland had failed to discharge this duty:
- Relying on IPCC calculations (to which it gave particular weight), if the Paris Agreement target of keeping global heating to 1.5% was to be achieved, industrialised states like Switzerland are required, inter alia, to cut their emissions by 25-40% from 1990 levels by 2020.
- The Swiss governments own evidence admitted that this target had been missed.
- Moreover, while Switzerland had targets in place for further cuts to emissions to 2050, there were no practical measures in place to achieve these.
The Court also upheld the Claimant’s complaint on Article 6(1) on the basis that, while the domestic court’s decision that the claim was inadmissible pursued a legitimate aim (preserving the separation of powers by not allowing the courts to delve into issues which are properly for the legislature), it was not a proportionate means of doing so in this instance.
Comment
This is a significant advance in both human rights and climate change law, recognising that the collective impact of climate change has a justiciable impact on individual rights. It identifies clear positive obligations in respect of climate change and specifies a mechanism by which citizens can hold their governments to account for failures. For the first time, it gives citizens a direct legal mechanism to hold governments to account for failures to live up to their Paris Agreement obligations.
Sam Fowles is a member of the Cornerstone Climate group. Sam brings his expertise in judicial review, planning, human rights, regulatory law, information law, and public policy to his climate practice, equipping him to deal with all dimensions of climate litigation. His work includes both advising and representing policy-makers, NGOs, activists, local government, and national agencies.
