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Protection against Climate Change as a Human Right: The Swiss “KlimaSeniorinnen” Case

By Alexander Lüthi

Alexander Lüthi is a Master Student at Ritsumeikan University, Kyoto..

On April 9, 2024, the European Court of Human Rights (ECtHR) delivered a landmark ruling in favour of the association KlimaSeniorinnen Schweiz and against the state of Switzerland, concluding that the state was infringing on the groups human rights by not doing enough to combat climate change.[1] While the ruling caused a significant uproar in national and global media, what happened next is less remarkable and can be seen as an example of how, in recent years, states have been more and more prone to ignore certain rulings of the ECtHR, calling into question whether rulings by the court still carry much weight. This essay explores the details of the ruling, analyses the Swiss government’s reaction, and discusses the future of the ECtHR and the implementation of its rulings.

European Court of Human Rights

The European Court of Human Rights (ECtHR) is an international court established by the European Convention on Human Rights (ECHR) in 1959. Its main objective is to oversee the implementation of the Convention by ECHR member states and ensure the protection of fundamental rights and freedoms. Today, the court has 46 members, which are also part of the Council of Europe (not to be confused with the European Union). including Switzerland, the UK, and other non-EU states. The Court has jurisdiction to hear complaints from individuals, groups, and states that want to allege violations of the civil and political rights set out in the Convention. It is often seen as the last step for cases that have exhausted national remedies. The judgments of the court are binding[2] and have an erga omnes effect—meaning they create binding obligations also on other member states.[3] However, recent cases show that states do not always abide by the binding nature of the rulings.[4]

Verein Klimaseniorinnen

The association KlimaSeniorinnen Schweiz was founded by a group of 40 retired women in 2016, and has since gained 2500 members aged 64 and over in 2024, united by concerns that the Swiss government was not taking sufficient action to meet the goals of a climate change law passed in 2011. They argue that the government’s failure to take sufficient action against climate change exposed them to health risks, particularly to heatwaves exacerbated by global warming.[5] Recent estimates suggest that over 60,000 heat-related deaths occured in Europe in 2022 alone, with elderly women most affected.[6]

Before bringing the case to the ECHR, the association went through different levels of the Swiss judicial system, with the final case being dismissed by the country’s Federal Court in 2020. The court argued that the plaintiv’s rights were not sufficiently infringed, and that action should be taken on the political rather than on the legal level. Throughout this process, the gorup was helped by Greenpeace, which provided legal backing.[7] After exhausting all national remedies, the KlimaSeniorinnen filed a lawsuit against the Swiss Confederation at the EctHR, with a total of four individual and one joint complaint. The applicants claimed that Switzerland’s inadequate measures to combat climate change violated their rights under Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention on Human Rights.[8]

The Ruling

Climate change litigation has become increasingly significant, with cases more than doubling since 2015.[9] As climate change effects become more evident, the number of related cases is expected to rise. The case of Klimaseniorinnen and Others v. Switzerland stands out as the first climate change-related case heard by the European Court of Human Rights (ECtHR), setting a precedent for future cases. On April 9th, 2024, the court released its highly anticipated ruling, addressing several critical issues:

  • Victim Status: The court established criteria for the victim status of individual applicants and the standing of associations in climate change contexts. While the four individual applicants did not meet the threshold for victim status, the association met the criteria to act on behalf of its members.
  • Positive Obligations under Article 8: The court recognized that climate change adversely affects individuals’ lives, health, well-being, and quality of life, which are protected under Article 8. It emphasized states’ positive obligation to implement measures to combat climate change, including regulations to reduce greenhouse gas (GHG) emissions. The court found gaps in the Swiss regulatory system and a failure to meet GHG targets, thus violating Article 8. Consequently, it did not examine the case under Article 2, as the issues were similar.
  • Access to Court under Article 6 § 1: The court found that Swiss domestic courts did not seriously engage with the applicants’ action and failed to provide convincing reasons for not examining the merits of their complaints, impairing their right of access to court. This highlights the critical role of domestic courts in climate change litigation and the importance of access to justice.
  • Execution of Judgment: Due to the complex nature of the subject, the court did not specify measures but instructed Switzerland to assess appropriate measures with the assistance of the Committee of Ministers to comply with the ruling under Article 46.[10]

Following the judgment

The ruling is seen as highly influential for climate change action, setting a precedent for future litigation. Member states now need to review their laws and policies to comply with this ruling. Reactions in Switzerland were mixed. KlimaSeniorinnen and Greenpeace celebrated the ruling[11], while the right-wing SVP party, who has the highest electoral share at the moment,  found it unacceptable and called for Switzerland’s exit from the European Council.[12]

The EctHR parallely also addressed two other climate change cases: Duarte Agostinho v. Portugal [13] and Carême v. France[14], which were dismissed. However, with the growing tangible effects of climate change and this landmark ruling, more cases are expected despite a slight decrease in their growth rate.[15]

In the following weeks, both chambers of the Swiss Parliament have expressed reluctance to comply with the ruling, believing that Switzerland is already taking sufficient measures to mitigate climate change.[16] This reluctance is consistent with Swiss politics’ neutral stance and resistance to international institutions’ influence on domestic affairs. KlimaSeniorinnen has threatened further action if the government does not take more effective measures[17] , which as of now seems seems inevitable. 

This case is not isolated; non-compliance with international decisions is a recent trend in Europe.[18] A further example is the Burmych and Others v. Ukraine ruling from 2017, where Ukraine has yet to comply with payment obligations.[19]

Going Forward 

This ruling creates significant challenges for Switzerland and potentially other member states of the ECtHR. For Switzerland, the ruling leaves open several options. The most desirable would be for the government to choose to comply with the court’s directives by strengthening its climate policies and regulations. If we look at the last years there have already been steps taken in this direction. In 2023 the electorate of Switzerland voted in favor of a “Climate and Innovation Act”. This act sets to law that Switzerland aims for carbon neutrality by 2050. [20] However this act may not be going far and fast enough, and further action should be taken, such as setting clear emission targets and incorporating more climate-change related subjects into the educational system. 

The second option is to resist the ruling, and potentially face further legal and political challenges. It is, as it stand for now, the more probable way forward. This inaction in turn may also encourages other actors, such as NGOs and civil society groups, to pursue climate litigation as a means of compelling government action. Thus the fight for climate justice for the the Verein Klimaseniorinnen will probably continue for several years to come. 

Internationally such non-compliance however also threatens the integrity of the Convention system and the effectiveness of international human rights law in general and leads to the question of whether the enforcement of the rulings from the ECtHR is still strong enough. Enhancing the mechanisms for enforcing ECHR judgments by, for example, providing greater oversight and sanctioning powers for the Committee of Ministers could be a first step to ensure that states comply with their obligations.[21] Furthermore, clearer guidelines and frameworks for integrating climate change considerations into human rights protections need to be developed to ensure states are on the same page when addressing this ever more important topic.               In the larger context, the reluctance of Switzerland to comply to the ruling poses a threat to climate-change action and the protection of human rights. What was set out to be a precedent for climate change justice, could result in the opposite with states ignoring their responsibility to protect their citizens. With the excuse would be that they are already doing enough. 

Conclusion                                                                                              

The Verein KlimaSeniorinnen Schweiz and Others v. Switzerland case underscores the vital role of the ECtHR in addressing climate change through human rights. It emphasizes the interconnectedness of climate action and human rights and signals a shift towards holding states accountable for the environmental impact of their policies on human rights grounds. This case also sets a precedent for future climate litigation, potentially leading to a wave of new cases that could push states to take more aggressive action against climate change. However, it also raises questions about the court’s competencies. While the ruling marks significant progress, enforcement and compliance challenges remain. Strengthening enforcement mechanisms and integrating climate change into human rights frameworks are essential steps to protect individuals from climate change’s adverse effects and uphold the European Convention on Human Rights.

Photo by Li-An Lim on Unsplash

[1] Verein Klimaseniorinnen Schweiz and Others v. Switzerland, No. 53600/20 (ECtHR [GC] April 9, 2024).

[2] “The European Court of Human Rights – Council of Europe Office in Georgia – Www.Coe.Int,” Council of Europe Office in Georgia, accessed June 27, 2024, https://www.coe.int/en/web/tbilisi/europeancourtofhumanrights.

[3] Laurence R. Helfer and Erik Voeten, “International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe,” International Organization 68, no. 1 (January 2014): 77–110, https://doi.org/10.1017/S0020818313000398.

[4] Andreas Von Staden, Strategies of Compliance with the European Court of Human Rights: Rational Choice Within Normative Constraints (University of Pennsylvania Press, 2018), https://doi.org/10.9783/9780812295153.

[5] “KlimaSeniorinnen Schweiz,” KlimaSeniorinnen Schweiz, accessed June 27, 2024, https://en.klimaseniorinnen.ch/.

[6] Joan Ballester et al., “Heat-Related Mortality in Europe during the Summer of 2022,” Nature Medicine 29, no. 7 (July 2023): 1857–66, https://doi.org/10.1038/s41591-023-02419-z.

[7] Smithsonian Magazine and Margaret Osborne, “Swiss Seniors Are Suing Over Climate Change’s Threat to Their Health,” Smithsonian Magazine, accessed June 26, 2024, https://www.smithsonianmag.com/smart-news/swiss-seniors-are-suing-over-climate-changes-threat-to-their-health-180982676/.

[8] Verein Klimaseniorinnen Schweiz and Others v. Switzerland.

[9] Setzer, Joana, and Catherine Higham. Global Trends in Climate Change Litigation: 2023 Snapshot. London: Grantham Research Institute on Climate Change and the                  Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science, 2023.

[10] Verein Klimaseniorinnen Schweiz and Others v. Switzerland.

[11] “Sieg für Klimaseniorinnen – EGMR: Schweiz verletzt Menschenrechte bei Klimafragen,” Schweizer Radio und Fernsehen (SRF), April 9, 2024, https://www.srf.ch/news/international/sieg-fuer-klimaseniorinnen-egmr-schweiz-verletzt-menschenrechte-bei-klimafragen.

[12] “Das Strassburger Urteil ist inakzeptabel – die Schweiz muss aus dem Europarat austreten,” SVP Schweiz (blog), accessed June 26, 2024, https://www.svp.ch/aktuell/publikationen/medienmitteilungen/das-strassburger-urteil-ist-inakzeptabel-die-schweiz-muss-aus-dem-europarat-austreten/.

[13] Duarte Agostinho and Others v. Portugal and 32 Others (dec.), No. 39371/20 (ECtHR [GC] April 9, 2024).

[14] Carême v. France (dec.), No. 7189/21 (ECtHR [GC] April 9, 2024).

[15] Global Trends in Climate Change Litigation: 2023 Snapshot.

[16] “Schweizer Parlament lehnt EGMR-Urteil ab: Klimaschutz-Massnahmen reichen,” Neue Zürcher Zeitung, June 12, 2024, sec. Schweiz, https://www.nzz.ch/schweiz/erklaerung-gegen-klima-urteil-nationalrat-schliesst-sich-dem-staenderat-an-ld.1834699.

[17] “Klima-Urteil aus Strassburg – Klimaseniorinnen wollen Schweiz bei Europarat anprangern,” Schweizer Radio und Fernsehen (SRF), May 29, 2024, https://www.srf.ch/news/schweiz/klima-urteil-aus-strassburg-klimaseniorinnen-wollen-schweiz-bei-europarat-anprangern.

[18] Von Staden, Strategies of Compliance with the European Court of Human Rights.

[19] Veronika Fikfak, “Non-Pecuniary Damages before the European Court of Human Rights: Forget the Victim; It’s All about the State,” Leiden Journal of International Law 33, no. 2 (June 2020): 335–69, https://doi.org/10.1017/S0922156520000035.

[20] Federal Office for the Environment FOEN, “2050 Net-Zero Target,” accessed July 10, 2024, https://www.bafu.admin.ch/bafu/en/home/themen/thema-klima/klimawandel-stoppen-und-folgen-meistern/massnahmen-der-schweiz-zur-verminderung-ihrer-treibhausgasemissionen/ziele-der-schweiz-zur-verminderung-ihrer-treibhausgasemissionen/indikatives-ziel-2050.html.

[21] Helen Keller and Cedric Marti, “Reconceptualizing Implementation: The Judicialization of the Execution of the European Court of Human Rights’ Judgments,” European Journal of International Law 26 (November 1, 2015): 829–50, https://doi.org/10.1093/ejil/chv056.