European Court Declares Switzerland's Responsibility To Combat Climate Change To Protect Its Citizens' Human Rights

In a recent 257-page decision, the European Court of Human Rights, sitting as a Grand Chamber of 17 judges (Court), ruled that the Swiss government violated Article 8 of the European Convention on Human Rights (Convention) in failing to establish an adequate domestic regulatory framework to combat climate change.

The applicants in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland consisted of a non-profit association established to promote and implement effective climate protection on behalf of over 2,000 members consisting of largely female seniors living in Switzerland and certain individual members. Approximately 23 third-party interveners, including from various European governments, also participated in the action. The applicants complained of various failures by the Swiss authorities to mitigate climate change, which were claimed to have adversely affected the lives, living conditions and health of the applicants in violation of, among other things, Article 8 of the Convention. Specifically, the applicants argued that climate change-induced heat waves had caused, were causing and would further cause deaths and illnesses to their members, who were part of a vulnerable group owing to their age and gender. The applicants also contended that the Swiss authorities had not properly identified nor implemented sufficient protocols to establish the necessary domestic regulatory framework to address climate change, including Greenhouse Gas (GHG) emission caps, and that the State was required to establish a legislative and administrative framework to achieve those objectives.

For its part, the Swiss government argued that given the current low GHG intensity in the country, the omissions imputed to Switzerland were not of such a nature as to cause, on their own, the claimed suffering by the applicants. As a result, the Swiss government argued that there was no sufficient link between such polluting emissions and its acts or omissions. In short, the State argued that Switzerland had complied with its obligations under Article 8 of the Convention and the applicants' complaints should be declared inadmissible as manifestly ill-founded.

The Court extensively relied upon various United Nations studies and publications, together with various climate agreements such as the Kyoto Protocol 1997 and the Paris Agreement 2015, to conclude that human-induced warming had reached approximately 1°C above pre-industrial (the period of 1850-1900) levels in 2017, increasing at 0.2°C per decade, such that ambitious mitigation actions were therefore required to limit warming to 1.5°C. It noted that limiting warming to 1.5°C implied reaching net zero CO2 emissions globally around 2050 and concurrent deep reductions in emissions. Those facts do not appear to have been seriously contested by any party, resulting in the Court concluding that "Climate change is one of the most pressing issues of our times." That sentiment was previously stated, to similar effect, by the Supreme Court of Canada in the 2021 decision References re Greenhouse Gas Pollution Pricing Act, 2021, where the majority stated that "Global climate change is real, and it is clear that human activities are the primary cause." Given the complexity of the issues and related science, it is reasonable to assume that those conclusions will, at some point, be contested in future climate change litigation.

Ultimately, the Court held that all member states of the Convention need to put into place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in order to protect the right to private and family life and home under Article 8 of the Convention (see paragraph 546). The Court held that when assessing whether a country has fulfilled its obligations, the Court will examine whether the country, through its legislative, executive or judicial institutions, has had "due regard" to the need to:

1. Adopt general measures specifying a target timeline for achieving carbon neutrality
2. Set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) to meet overall national GHG reduction goals
3. Provide evidence showing whether they have duly complied or are in the process of complying with the relevant GHG reduction targets
4. Keep the relevant GHG reduction targets updated with due diligence and based on the best available evidence
5. Act with alacrity and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures

While the Court's decision is not applicable or binding in Canada, the arguments advanced may be a harbinger of future developments in private and public climate change litigation.

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