Our key takeaway: The news coming out from the European Court of Human Rights – and its Grand Chamber – in Strasbourg this week is hugely significant, for governments, companies and individuals alike. Does government inaction on climate change violate human rights? The answer is: Yes. Do governments now legally have to take science-based actions to limit global warming to 1.5°C as set out in the 2015 Paris Agreement? Yes. And the legal grounding for this is: international human rights law. Do companies need to revisit projects and activities that may be legal but that are not aligned with the 1.5°C pathway? Yes. Do companies need to up their game on their climate transition plans to ensure that they equip the company to reach net zero by 2050 in a science-based way? Yes. And do companies need to connect their human rights due diligence to the latest climate science as well as their climate change impacts and actions? Again, the same answer: Yes. This human rights judgment will shape governments and companies actions and activities for years to come. To find out more how, see our full briefing here.
On 9th April 2024, the European Court of Human Rights (the ECtHR, the Court or the European Court) delivered its decision in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland:
- The context: The case relates to a complaint by (1) a Swiss association, Verein KlimaSeniorinnen Schweiz (The association of the Swiss Senior Women for Climate Protection) and (2) four women members of the association. (The case brought by the four women was declared inadmissible.) Verein KlimaSeniorinnen Schweiz is an association under Swiss law established to promote and implement effective climate protection on behalf of its members, who are over 2,000 older women (one-third of whom are over 75). In 2016, the applicants submitted a request to the Swiss authorities calling on the authorities to take the necessary measures to limit global warming to 1.5°C as set out in the 2015 Paris Agreement. The Swiss authorities (the administrative authorities and two national courts) rejected the case. The applicants lodged the complaint with the European Court on Human Rights on 26 November 2020. They complained of various failures by the Swiss authorities to mitigate the effects of climate change – and in particular the effect of global warming – which they claimed adversely affects their lives, living conditions and health and therefore violates the European Convention on Human Rights (the Convention).
- The findings: The European Court found that inadequate State action to combat climate change exacerbated the risks of harmful consequences and subsequent threats to the enjoyment of human rights – threats already recognised by governments worldwide. The judges noted that the current situation therefore involved compelling present-day conditions, confirmed by scientific knowledge, which the Court could not ignore in its role as a judicial body tasked with the enforcement of human rights. The Court found that there are sufficiently reliable indications that anthropogenic climate change exists and climate change poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention. States are aware of the threat to human rights that climate change poses and are capable of taking measures to address climate change effectively. The relevant risks to people’s human rights are projected to be lower if the rise in temperature is limited to 1.5°C above pre-industrial levels and if action is taken urgently. While the legal human rights obligations extend to those currently alive, 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. When reviewing the Swiss authorities’ actions against the European Convention (and in particular, the right to ensure respect for private and family life, including of home (Article 8)), the European Court found that the Swiss authorities had violated Article 8. Effective respect for rights requires States to undertake measures to reduce their GHG emission levels, with a view to reaching net neutrality, in principle within the next three decades. The Court found that there had been critical gaps in the process of putting in place the relevant domestic regulatory framework, including a failure by the Swiss authorities to quantify, through a carbon budget or otherwise, national GHG emissions limitations. The Court further noted that Switzerland had previously failed to meet its past GHG emission reduction targets. The Swiss authorities had not acted in time and in an appropriate way to devise and implement the relevant legislation and measures. (The Court also delved into some other matters, such as standing to sue and access to a court that we do not delve into here).
- The consequences: The judgment is legally binding on the Swiss authorities, and Grand Chamber judgments are final and cannot be appealed. Therefore, under this judgment, the Swiss Confederation has a legal obligation to identify the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress the situation. In addition, the Court’s judgment is significant for other Council of Europe Member States since it opens the door in all of these countries to similar applications by similar associations based on similar human rights and climate change grounds. National courts will now consider the European Court’s decision as they decide on these cases. Therefore, the ripple effect of this judgment on national court systems (the judiciary) is significant. This case will also impact changes made by the other two branches of government in Council of Europe Member States (the executive and the legislative) as well as ongoing cases in front of the European Court. Beyond the Council of Europe, this case will influence court cases globally, as well as cases in front of international and regional bodies. There are three major repercussions for companies of the Verein KlimaSeniorinnen Schweiz case. First, this judgment confirms that a company needs to think about how it can meet its responsibility to respect human rights within a changing climate context. Second, the way in which governments will respond to this judgment will in turn shape companies’ regulatory environment related to its GHG emissions. Third, lawsuits that connect human rights and climate change – that involve company activities – will increase.
