A view of Verein Klima Seniorinnen Schweiz v…

The European Court of Human Right's judgment in Verein Klima Seniorinnen Schweiz v Switzerland is going to be very important for those working in the climate change field. It is a detailed and forensic summary of the law, in places written as clearly and elegantly as any judgment of the Court.

Here is a very brief summary of the key legal issues from an initial reading:

1. Addressing climate change will depend largely on the actions of the legislature and the executive, but "democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law". Climate change litigation raises wider issues about the separation of powers (see 411-413).

2. The Court can proceed "by taking it as a matter of fact that there are sufficiently reliable indications that anthropogenic climate change exists, that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States are aware of it and capable of taking measures to effectively address it, that the relevant risks are projected to be lower if the rise in temperature is limited to 1.5oC above pre-industrial levels and if action is taken urgently, and that current global mitigation efforts are not sufficient to meet the latter target." (436).

3. The Court needs to adapt its approach to causation and positive obligations in the specific context of climate change "depending on a threshold of severity of the risk of adverse consequences on human lives, health and well-being" (437-440).

4. Article 2 (protection of life) would be engaged by a real and imminent risk to life from state action or inaction in relation climate change and "it would be possible to assume that a serious risk of a significant decline in a person’s life expectancy owing to climate change ought also to trigger the applicability of Article 2." (507-513).

5. Article 8 should "be seen as encompassing 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". However, an actual interference is dependent on showing victim status or standing for an association (514-520).

6. None of the individual applicants could show victim status because their susceptibility to heatwaves as older people was not enough on its own. "It cannot be said that the applicants suffered from any critical medical condition whose possible aggravation linked to heatwaves could not be alleviated by the adaptation measures available in Switzerland or by means of reasonable measures of personal adaptation given the extent of heatwaves affecting that country." (527-535). However, the association had standing so the application could be considered on that basis (526). The applicant association's complaint only needed to be considered under Article 8 (537).

7. The critical part stated that (548) " [E]ffective respect for the rights protected by Article 8 of the Convention requires that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades”. It added that for this to be genuinely feasible, immediate action should be taken for the period leading to net neutrality (549). These measures should be “incorporated into a binding regulatory framework at the national level, followed by adequate implementation. The relevant targets and timelines must form an integral part of the domestic regulatory framework, as a basis for general and sectoral mitigation measures.”. When assessing whether a state has remained within its margin of appreciation, the Court will examine whether the competent domestic authorities have had regard to the need to (550) the following:

“(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.”

8. Switzerland had "critical lacunae" in its domestic regulatory framework sufficient to amount to non-compliance with its positive obligations under Article 8 (555-574).

9. Further, there was a breach of Article 6 through the rejection by the national courts of the association's legal action. "To the extent that it was seeking to vindicate these rights in the face of the threats posed by the allegedly inadequate and insufficient action by the authorities to implement the relevant measures for the mitigation of climate change already required under the existing national law, this kind of action cannot automatically be seen as an actio popularis or as involving a political issue which the courts should not engage with." (634).

How will this affect domestic law in the UK? Here are a few immediate upshots:

Section 2(1) Human Rights Act 1998 requires the domestic courts to take into account judgments of the ECHR and a judgment of the Grand Chamber such as this is likely to be given significant weight.

The question of how the UK measures up against the tests laid down in 548-554 will surely be litigated. I do not express any view on how that litigation might be resolved.
Might there be claimants who can show victim status due to special vulnerabilities to climate change, and where no adaptation measures are available? Victim status could give rise to a cause of action under HRA 1998, and also a claim for damages and other relief.
The positive obligations mapped out by the Court might be relied upon by those promoting measures to reduce GHG emissions and to adapt to climate change when dealing with disputes (for example in balancing competing rights for planning and compulsory purchase purposes).

The judgment can be read here.

This article was written by Richard Turney KC.