On April 9, 2024, the European Court of Human Rights (the "Court" or "ECtHR") delivered three highly anticipated and significant judgments on the application of the European Convention on Human Rights (the "ECHR"). This includes: (i) Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (App. 53600/20); (ii) Carême v. France (App. 7189/21); and (iii) Duarte Agostinho and Others v. Portugal and 32 Others (App. 39371/20). While the ECtHR dismissed Carême and Duarte Aghostinho on procedural grounds, it largely upheld the complaints in Verein KlimaSeniorinnen Schweiz.
Verein KlimaSeniorinnen Schweiz and Others v. Switzerland
The complaint: Verein KlimaSeniorinnen Schweiz, a Swiss association established to promote and implement effective climate protection on behalf of its members, and four individual claimants brought a complaint in the ECtHR against Switzerland alleging that it had not taken sufficient steps to mitigate the effects of climate change. The applicants' primary complaints were that Switzerland had breached their rights under Article 2 (right to life) and Article 8 (right to respect for private/family life) in failing to take adequate measures to mitigate climate change. They also asserted that Switzerland breached Article 6(1) (right to a fair trial) in failing to provide the applicant with a right of access to a court.
No standing for the individuals: The complaint brought by the four individual applicants was deemed inadmissible, as they were found not to have "victim status." Although the individuals were particularly susceptible to the effects of climate change, the level and severity of the adverse consequences affecting the applicants did not give rise to a pressing need to ensure their individual protection.
Standing for associations: The complaint brought by the association was admissible. The Court found that associations had standing to bring an application in relation to the adverse effects of climate change because: (i) it was lawfully established in the jurisdiction; (ii) it demonstrated that it pursues a dedicated purpose in the defense of the human rights within the jurisdiction against threats from climate change; and (iii) it was genuinely qualified and representative to act on behalf of members within the jurisdiction who are subject to threats or adverse effects of climate change.
Scope of the obligations under the ECHR: The ECtHR ultimately found that Article 8 of the ECHR encompassed a right for individuals to effective protection by the state authorities from serious adverse effects of climate change on their life, health, well-being, and quality of life. The Court found that the state's primary duty was to adopt and apply regulations and measures capable of mitigating the existing and future effects of climate change. However, the Court acknowledged that there is some level of deference afforded to states (particularly in the choice of means to pursue the objectives). Notwithstanding, the ECtHR set out some of the specific positive obligations of states. By way of example, this includes: (i) the adoption of GHG emissions reductions targets; (ii) the provision of evidence showing compliance with such targets; (iii) acting in a timely and appropriate and consistent manner when devising and implementing measures; and (iv) publicly disclosing important information relating to State measures to tackle climate change.
Findings: The ECtHR found that there was a significant gap in the Swiss authorities' process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify national GHG emissions limitations through a carbon budget or otherwise, as well as previous failures to meet its GHG reduction targets. The ECtHR also found that the rejection by the Swiss Court of the applicant association's complaint without an assessment of the merits amounted to a breach of its right to a fair trial (Article 6(1)). In addition, the ECtHR endorsed scientific consensus on climate change (with particular reference to the Intergovernmental Panel on Climate Change).
Remedies: The ECtHR did not prescribe specific measures to the state for implementation of the judgment (due to the complexity and nature of issues involved). It found that under Article 46 of the ECHR, the state is under the obligation to ensure that general/individual measures be adopted domestically to put an end to the violation. It considered that it was for the Council of Europe's Committee of Ministers to supervise the adoption of measures aimed at ensuring that the national authorities comply with the ECHR's requirements.
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