On April 9, 2024, in a crowded hearing room in Strasbourg, France, the President of the European Court of Human Rights (ECtHR) delivered the Court’s rulings in its first-ever climate cases. These three cases were based on different facts and brought by different parties: the KlimaSeniorinnen v. Switzerland case concerned a group of older Swiss women; the territorially and substantively ambitious Duarte Agostinho v. 32 Member States was brought by six Portuguese children and young people; and Carême v. France was brought by the mayor of a French seaside town threatened by flooding. Despite their differences, all three cases made similar arguments: they challenged the climate policies of a total 32 Member States of the Council of Europe, the continent’s leading human rights organization, arguing that the States, by failing to reduce their greenhouse gas emissions, had violated the European Convention on Human Rights (ECHR) by omission.
A Package Deal
These three cases were heard by the Court’s Grand Chamber, which is its largest possible formation of judges (a total of 17). By assigning the three cases to the same group of judges, the Court treated them as a package deal; by adjourning its other pending climate cases to await the outcome of these three, it turned them into leading cases that will shape its further case law on climate change. However, during the hearing, one case emerged as the clear standard-setter: KlimaSeniorinnen. Unlike the other two, this case was declared admissible, with the Court using it to set out new criteria for victim status in climate cases and finding two human rights violations.
The other two cases – Carême v. France and Duarte Agostinho v. 32 Member States – are each certainly interesting in their own right, and they set limits to how far the Court is willing to go in admitting climate cases. In particular, in Duarte Agostinho, the Court demonstrated that – unlike its approach to victim status – it was unwilling to rethink other admissibility criteria. This means that it will continue to reject claims against non-territorial States (the Court declined the applicants’ argument that control over their Convention “interests” should serve as the relevant test for establishing jurisdiction in the field of climate change) and require applicants to first use domestic courts before taking a case to the ECtHR in Strasbourg, thereby ensuring that the Court’s docket is not further flooded with cases but also framing climate policy (and its human rights impacts) as a largely domestic affair.
Leading Judgment: KlimaSeniorinnen
By contrast, the Court’s judgment in the KlimaSeniorinnen case contains several paradigm-shifting findings. This case was brought by a Swiss association, the Verein KlimaSeniorinnen Schweiz, and four of its individual members. The association is made up of older women, who contest the risks that climate-aggravated heatwaves pose to their living conditions and their health. Before the Court, they alleged a violation of the Swiss authorities’ positive obligations under the ECHR because of failures to take sufficient action to mitigate greenhouse gas emissions and, accordingly, the impacts of climate change on their human rights.
In yesterday’s judgment, the Court set out extensive findings on the admissibility, merits, and reparations aspects of the case. In doing so, it created several important innovations.
First, the Court’s judgment extensively reviewed the international climate regime and the findings of the Intergovernmental Panel on Climate Change (IPCC), a United Nations body that assesses climate science. It provided an extensive overview of comparative materials from other regional and international human rights bodies, the United Nations, domestic courts, and the European Union, as well as the arguments of 23 third-party interveners, including eight States. The judgment thus provides a roadmap for decision-makers engaging with similar issues, underscoring its role as a leading judgment.
Second, the Court set out special criteria for establishing victim status in climate cases, finding that a new approach was required given the special nature of climate change. In doing so, it revised its approach to representative applications by organizations. It found that – unlike the individual applicants, who were not sufficiently affected in their rights – the organization had standing to bring a climate case to the Court on behalf of its members. This is a reversal of expectations (and of the Court’s usual approach), and it is extensively discussed and justified in the judgment. The Court presented this as a way to prevent actio popularis cases while still guaranteeing proper review of climate-related impacts on rights. It also highlighted the potential of this step to ease access to justice in complex cases. Although not spelled out in the judgment, this step will also, most likely, serve to manage the Court’s docket.
Third, and moving on to the content of States’ positive obligations under Article 8 ECHR (the right to respect for private and family life), the Court held that this right protects against the adverse effects of climate change. Framing this case as essentially about failures to act, meaning omissions in legislative or regulatory frameworks, the Court explained the content of States’ obligations in this regard, including an obligation to regulate and exercise due diligence.
Drawing on climate science and the Swiss government’s own reports, it considered that the Swiss regulatory framework exhibited “critical lacunae.” It also found that ECHR Article 8, “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.” (para. 548). In doing so, the Court established that States are required to specify a timeline for achieving carbon neutrality, and an overall remaining carbon budget. They’re also required to set out intermediate emissions reduction targets and pathways.
This is a very strong finding. In addition, the Court engaged with the quality of domestic proceedings. Focusing on Article 6(1) ECHR (the right of access to a court), it found that this right had been violated with respect to the association, although not the individual applicants, because the Swiss courts failed to adequately consider its case. This may prove a powerful finding, given that domestic courts are always the first port of call for these kinds of cases and that more receptive procedures would allow for cases to be decided domestically, rather than in Strasbourg.
The Broader Significance
The Grand Chamber’s findings are final, and like all rulings of the ECtHR they are legally binding on States. Here the choice of measures for implementing the KlimaSeniorinnen judgment has been left to the Swiss government, under the supervision of the Council of Europe; this is a routine approach that allows States to exercise a margin of appreciation and manoeuvring room. It is also, however, a rejection of the applicants’ request for “general measures” (i.e. their invitation for the Court to spell out the measures to be taken, including by making a clear order that Switzerland should reach net zero by 2030). The judgment thus actively foregrounds the role of States in making the relevant decisions, reiterating the complexity of the choices to be made.
To guide States in complying with their Convention obligations, the KlimaSeniorinnen judgment provides a coherent roadmap for the Court’s further climate cases. This is a powerful initial ruling, which both recognizes that climate change is an issue of great relevance for the protection of Convention rights and also declares Strasbourg’s door open to relevant applications. In addition, it engages with fundamental underlying questions like the role of the Court and its method for interpreting human rights. It does so by creating a differentiated margin of appreciation, which is narrower for setting objectives than it is for the choice of means.
The judgment leaves some open questions (for example, the right to life is examined only tangentially), and will need to be examined further in follow-up cases, which are sure to come. In fact, half a dozen climate cases had been adjourned to await these judgments, and the examination of these cases will now be resumed by the Court. Overall, however, this judgment – in terms of its creativity, comprehensiveness, and willingness to engage with the claims – represents a landmark success not only for the Council of Europe, but for the ever-growing phenomenon of climate litigation around the world.