What does the Senior Women for Climate Protection Switzerland ruling mean for the UK?

On 9 April, the European Court of Human Rights handed down its landmark judgment in the case of Verein Klimaseniorinnen Schweiz v Switzerland, alongside two other rights-based climate change claims (Carême v. France and Duarte Agostinho and Others v. Portugal and 32 Others).  

The case was brought by an association called Verein Klimaseniorinnen Schweiz, or Senior Women for Climate Protection Switzerland. This non-profit organisation represents more than 2,500 women, mostly aged over 65. The association was established to promote and implement climate protection for its members as “older women are particularly susceptible to intense and frequent heatwaves”. The members of Verein Klimaseniorinnen Schweiz have described the impacts that climate change has had on them, including the worsening of existing medical conditions. 

The organisation brought the case on the grounds that the Swiss authorities had failed to ‘mitigate climate change, and in particular the effects of global warming, including a lack of access to a court in that connection.’ The women relied on Articles 2, 6, 8 and 13 of the European Convention on Human Rights, the right to life, the right to a fair trial, the right to respect for private and family life, and the right to an effective remedy. 

Before reaching the European Court of Human Rights, the Verein Klimaseniorinnen Schweiz made unsuccessful bids for compensation through the Swiss Federal Administrative Court, and then the Swiss Federal Supreme Court. The case was lodged in the European Court of Human Rights on 26 November 2020.

Causation and climate change

The court recognised the gravity of climate change at the outset: ‘climate change is one of the most pressing issues of our times. While the primary cause of climate change arises from the accumulation of greenhouse gases in the Earth’s atmosphere, the resulting consequences for the environment, and its adverse effects on the living conditions of various human communities and individuals, are complex and multiple’. The court went on to state that climate change does and will continue to pose a severe threat to the enjoyment of human rights guaranteed under the Convention; the impact of which will be felt by society’s most vulnerable.

Despite the gravity of the issue, and the accompanying threat to the rights within the convention, the court was tasked with navigating an incredibly complex legal landscape. In referencing other cases of environmental litigation, the court noted ‘the causal link between the acts or omissions on the part of state authorities in one country, and the harm, or risk of harm, arising there, is necessarily more tenuous and indirect compared to that in the context of local sources of harmful pollution.’ Switzerland questioned the capacity of individual states to bear responsibility for a global phenomenon, but the court rejected this argument, making clear that while collective global effort is undoubtedly required, this does not remove the responsibility, and therefore potential liability, at an individual state level.

In one of the most critical sections of the judgment, the court made clear that a claimant would not need to prove that 'but for’ the state’s failing or omission, the harm would not have occurred. Instead, a claimant only needed to show “reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm.” The court went on to say that states cannot avoid responsibility by pointing to the responsibility of other states and/or the scale of the problem. Crucially, for the claimants (and indeed in setting precedent) the court rejected the ‘drop in the ocean’ argument, stating that the law does not require a claimant to show that the outcome would have been different if it were not for the Respondent’s action or inaction.  

Who can bring a claim?

The court first considered the complexity of climate change issues against the strict procedural requirements of meeting “victim” status in Article 34 of the Convention. The court was clear that the argument put forward by the older women, who said they faced risks of “heat-related mortality and morbidity”, did not sufficiently prove they individually were directly, or potentially, affected by the effects of climate change. The Verein Klimaseniorinnen Schweiz did not meet the legal requirements of Article 34. As the effects of climate change vary the threshold remains high in establishing victim status for individuals in climate change-based claims.  

When assessing the legal standing of Verein Klimaseniorinnen Schweiz to bring the claim, the court noted the novelty of climate change, and through the “common concern of humankind and the necessity of promoting intergenerational burden-sharing" the legal standing for associations was found. The judgment reflected on the reality that as more climate-change policies are implemented by states worldwide, the challenges to such policies are usually brought by civil society. The court acknowledged that as associations become a “vehicle of collective recourse aimed at defending the rights and interests of individuals against the threats of climate change in the respondent State.” The association was also legally qualified to represent individuals, so they met the requirement of being able to successfully represent the elderly women’s complaints before the court.

Through embedding the language surrounding the association’s legal action in one of burden-sharing, and the shared interests amongst peoples in mitigating climate change’s effects, the court assumes the need to combat climate change and scrutinise state policies where domestic remedies fall short and may inhibit full enjoyment of human rights. 

The climate change context and reduced margins of appreciation  

The court then considered whether Article 2 and 8 of the Convention could be applied in the case (namely, the right to life and the right to private and family life). The claimants’ case turned on whether Switzerland had an obligation to protect its citizens from climate change. The court agreed, relying mostly on Article 8’s case law to justify its decision.  

The European Court of Human Rights has previously affirmed a state duty in environmental cases. Like in Lopez Ostra v Spain, Spain had an obligation to provide access to essential environmental information, enabling individuals to assess the risk to their lives. However, for the first time the court places the climate emergency at the centre of their argument for why states should pro-actively assess their climate mitigation policies and refer to existing scientific knowledge that affirm the effects of climate change on people. The court speaks of the commitments under the Paris Agreement to reduce greenhouse gas emissions, and if states failed to limit global temperature increases, they would risk people’s ability to enjoy their human rights. Under the European Convention of Human Rights, there is a margin of appreciation afforded to states in that they have the discretion to decide how the rights apply to matters of their country. However, according to the court’s line of argument this discretion was justified to be reduced when states implement domestic climate policies.  

Switzerland had not quantified their climate policies under their Climate Act which required greenhouse gas emissions to be reduced “as far as possible” by 2050, and a 75% reduction of greenhouse gas emissions by 2040 as compared to 1990 levels. The court said this was insufficient, as under this regulation, Switzerland would technically exhaust its carbon budget by 2034. The court found that Switzerland’s measure failed their duty to protect its citizens as it was not aimed at reducing greenhouse gas emissions practically and equally - Switzerland’s margin of appreciation was therefore reduced.  

The significance of Verein Klimaseniorinnen Schweiz v Switzerland for the UK?  

British European Court of Human Rights judge Tim Eicke KC argued that the majority was incorrect in reducing the discretion afforded to states when it came to implementing domestic climate change policies. He stated the judgment would create “false hope” in applicants who may see rights-based climate change litigation as the answer and continue challenging state policies and regulations. This may cause states to be overwhelmed by litigations rather than focusing efforts on tackling climate change.

While Judge Eicke appreciated the urgency of climate action, this may hint to the potential resistance of UK legal culture to adopt principles that mirror rulings by the European Court of Human Rights. This has been the case for earlier English cases where organisations have sought to bring human rights-based claims to challenge the Government’s climate policies, like in Plan B Earth & Others v The Prime Minister & Others [2021] EWHC 3469. Here, the court dismissed that Plan B was a “victim” under the Human Rights Act 1998 and asserted that obligations under the Paris Agreement do not form part of UK domestic law.  

Nevertheless, the judgment of Verein Klimaseniorinen Schweiz is a positive outcome for strategic litigators and non-governmental organisations that want to bring human rights-based claims in the UK, given their legal standing is now validated by the European Court of Human Rights case law. Furthermore, potential claimants should feel encouraged that, despite Brexit, the UK remains a party to the Convention and has, for now, abandoned the pursuit of the British Bill of Rights, so that people can still invoke the European Court of Human Rights through the Human Rights Act 1998.