Swiss ruling could set precedent for EU and UK climate accountability
Companies, as well as governments, should take note of the ECHR decision that Switzerland has violated the European Convention on Human Rights by failing to take sufficient measures to combat climate change
A group of older women, known as KlimaSeniorinnen Schweiz (Swiss Senior Women for Climate Protection), has successfully challenged the Swiss state on its policy making on climate change.
In a landmark ruling, the European Court of Human Rights found that the women’s right to respect for private and family life, as well as their right of access to court, had not been upheld by Switzerland’s climate policy and regulations.
There had been “critical gaps” in the domestic regulatory framework to quantify national greenhouse gas emissions limitations, through a carbon budget or other means, said the court.
While emphasising that state authorities have “wide discretion” when it comes to national legislation and rule-making, the court ruled that Switzerland had not implemented relevant climate measures in time and in an appropriate way.
The ruling constitutes the first time that the ECHR has established a clear link between human rights and accountability for climate action.
“There was a strong affirmation of the importance of science-based targets to comply with human rights obligations under the 1950 European Convention on Human Rights,” says Joie Chowdhury, a senior attorney at the Center for International Environmental Law.
Given that the 1950 convention is recognised by 46 European countries, including the UK, the ruling is expected to set a precedent for how other European signatories could be held accountable for their climate actions in relation to human rights.
“As this court ruling is binding, signatory states now have a clear legal duty to ensure their climate action is sufficient to protect human rights, and judges across Europe will have to apply these new principles to the growing number of climate cases before them,” says Vesselina Newman, fundamental rights lead at legal non-profit ClientEarth.
Generational solidarity
While the climate litigation grassroots movement see Verein KlimaSeniorinnen Schweiz and Others v. Switzerland as a major win, the EHCR ruled two other cases that were also heard on April 9 as “inadmissible”.
In Carême v. France, a complaint by a French citizen against France’s climate track record, was deemed inadmissible because the citizen did not succeed in proving his “victim status” under the convention.
Additionally, the lawsuit brought by six Portuguese youth, in Duarte Agostinho and Others v. Portugal and 32 others, was also ruled as inadmissible by the ECHR, which said the claimants had not exhausted all domestic legal avenues. The youth had argued that heatwaves and wildfires exacerbated by climate change were impacting their quality of life, with states not taking sufficient measures to curb emissions.
As this court ruling is binding, signatory states now have a clear legal duty to ensure their climate action is sufficient to protect human rights, and judges across Europe will have to apply these new principles to the growing number of climate cases before them
Catarina dos Santos Mota, one of the six, said in a statement: “Today’s judgement is a win for solidarity between young and old and recognises the existential threat of climate change.”
Sofia Oliveira, another youth claimant, said the most important element was for the court to have established in the Swiss case that states must cut their emissions to protect human rights. “I really think their win is a win for us too, and a win for everyone,” she said.
Generational climate lawsuits and the rights of future generations with regard to the impacts of climate change have been gaining momentum in courts globally.
This trend was also highlighted by the ECHR. It said in its Swiss ruling that while states’ legal obligations under the convention apply to individuals alive today, “it is clear that future generations are likely to bear an increasingly severe burden of the consequences of present failures and omissions to combat climate change”.
Further ramifications
The Swiss ruling is likely to trigger further lawsuits, affect current litigation and influence legal thinking on states’ climate obligations, including climate advisory opinion processes in several international courts.
These include the Inter-American Court of Human Rights working on an advisory opinion to clarify the scope of state obligations in responding to the climate emergency, and the International Court of Justice, which deals with disputes between states, formulating an advisory opinion on the obligations of states with respect to climate change. The latter was triggered by a resolution spearheaded by Vanuatu, which was adopted at the UN general assembly.
The International Tribunal for the Law of the Sea is also expected to publish an advisory opinion soon, on countries’ obligations to protect the world’s oceans from climate change. This opinion would be especially important to many island nations suffering from the existential threat of rising sea levels.
While the focus of the ECHR ruling and advisory opinions is on states’ obligations towards their citizens regarding climate change, some experts suggest companies should also take note of the outcome.
Climate cases against governments can impact corporate players when governments adopt new laws or more ambitious climate policies that cascade down the economy to companies, as well as when states’ human rights obligations shape corporates’ “duty of care” obligation, which sets out reasonable diligence and prudence rules under national law, biodiversity and climate risk lawyer Zaneta Sedilekova says on LinkedIn.
The 2021 Milieudefensie v Shell case, being heard on appeal, cited the Dutch government’s duty of care to protect its citizens from climate change to interpret Shell’s corporate duty of care along similar lines, Sedilekova says.
In that instance, Shell was ordered to reduce its emissions by at least 45 per cent by the end 2030, relative to 2019 levels.