By Pranav Ganesan, PhD candidate at the University of Zurich
The European Court of Human Right’s (‘ECtHR’) judgment in the case of Verein KlimaSeniorinnen Schweiz and Others v Switzerland (including the partially dissenting opinion of Judge Tim Eicke) is a whopping 250 pages long, making it the longest judicial opinion on climate change to date! This judgment will likely be the subject of praise, scrutiny, criticism and debate amongst scholars and non-scholars alike for the next few months or even years. It is certainly one for the books.
This series of blogposts will summarize and present my initial analysis of this judgment. Caveat lector, these posts will be long, but their length is befitting considering the sheer length of the judgment. It will begin with some special mentions, before analysing three issues in detail, viz. admissibility of the complaints under Articles 2 and 8 of the European Convention on Human Rights (‘ECHR’) on the ground of ‘victim status’. In the second part of this series, I will analyse the Court’s findings on obligations of ECHR parties to take measures addressing climate change under Article 8 of the Convention as well as the Court’s assessment of Switzerland’s conduct. In the third and final part, I will analyse the Court’s findings as to the admissibility of the complaints and the claim regarding violations of the applicants’ right of access to court under Article 6(1) of the ECHR. I will cap this series with my reflections on what this judgment means for Switzerland.
Special Mentions
A case marked by dynamic developments in facts
After beginning with the procedural history of the case and facts arising from the domestic legal proceedings involving the applicants as per usual, the Court dedicates a considerable amount of space in the judgment in establishing the context surrounding the problem of climate change (paras 64-120). These covered, inter alia, the implications of an increase in the global average temperature by 1.5 °C, mitigation requirements needed to avoid hitting the 1.5 °C threshold, and the imperative need for rapid, deep and sustained mitigation action and accelerated implementation of adaptation measures to reduce losses and damages for humans and ecosystems. These were based on the reports of the Intergovernmental Panel on Climate Change (IPCC) and decisions taken at Climate COPs. It is interesting to note here that the Court presents the latest scientific evidence from the IPCC, including reports which were published after the legal proceedings in Switzerland and the date that the application was filed before the ECtHR. This was an early sign that the Court was not merely going to freeze the dispute as one pertaining to Switzerland’s conduct that was impugned before the Swiss courts, but also evaluate how Switzerland shaped its climate policy in response to developments in climate science.
Causation: Linking climate change and harm to individuals
A common argument that is made by states in climate change litigation is that their individual efforts (or lack thereof) to mitigate climate change cannot be causally linked with the risks of harm to individuals, flowing from the adverse impacts of climate change. This argument is typically mounted to reject the notion that individual litigants can be regarded as having been aggrieved by the State’s conduct, and to de-link the obligation to mitigate climate change from human rights. However, the Court rejected this argument noting that ‘issues of individual victim status or the specific content of State obligations cannot be determined on the basis of a strict conditio sine qua non requirement’ (para 439). The ‘special features of the problem of climate change’ make it necessary to adapt the approach to causation, and thereby, to the issue of whether the positive obligations of States to mitigate risk of adverse consequences to human lives, health and well-being will be triggered (para 440). Proof that ‘reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm’ is sufficient to engage the responsibility of the State (para 444).
Individual State responsibility for share in contributions towards climate change
The Court cited its judgment in Duarte Agostinho and Others v Portugal and 32 Others, to affirm that ‘each State has its own share of responsibilities to take measures to tackle climate change and that the taking of those measures is determined by the State’s own capabilities rather than by any specific action (or omission) of any other State’ (para 442).
‘Victim’ Status: Applicants’ Complaint under Article 2 and 8 ECHR
A novel basis for NGOs to litigate violations of Article 2 and 8 ECHR
An issue on which this judgment broke new ground was that of standing of associations of persons or NGOs (i.e. non-natural persons) to litigate as representatives of individual victims of human rights violations. The relevant part of Article 34 of the ECHR states:
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention or the Protocols thereto.
It has been clear from the Court’s jurisprudence on Article 34 that NGOs do not have locus standi to initiate litigation alleging that they themselves are “victims” of violations of Article 2 and 8 of the ECHR, as the interests protected thereunder (viz. life, health and well-being) can only be enjoyed by natural persons. However, on the separate issue of whether they may represent victims of human rights harms, the Court had held that their standing to bring such claims may exceptionally be recognized (emphasis on exceptionally, because the Court has held that the Convention does not allow actio popularis). The case where such representative locus standi was recognized for the first time was Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania. In this case, the Court exceptionally recognized the locus standi of an NGO to appear before the Court in arguing the claim that the Romanian government had violated the right of a mentally disabled young man who had been mistreated and died in a psychiatric hospital, who had no next of kin, representative or guardian who could otherwise pursue his matter. This judgment was upheld in a subsequent case, where another NGO’s standing as a de facto representative of the individual victim was upheld. The rationale for adopting a novel approach to NGO standing in this case was the ‘principle of effectiveness’ which militates against the adoption of an excessively strict approach to standing since doing so ‘would exclude applicants who would otherwise have no chance of having their rights vindicated’ (Keller and Gurash, 2023, p. 204). In a similar move, but based on an entirely different thesis, the Court concluded that the association: Verein KlimaSeniorinnen Schweiz, had standing to appear before the Courts as representatives of victims of the adverse impacts of climate change under Article 8 ECHR (para. 526).
It reasoned that “there has been an evolution in contemporary society as regards recognition of the importance of associations to litigate issues of climate change on behalf of affected persons” (para 497) and “specific considerations relating to climate change weigh in favour of recognising the possibility for associations, subject to certain conditions, to have standing before the Court as representatives of the individuals whose rights are or will allegedly be affected” (para 498). It added that the “special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context [citing para 489], speak in favour of recognising the standing of associations before the Court in climate-change cases.” It is apparent that the Court intends to limit the relevance of this novel basis for standing only to climate change litigation. To justify this finding as consistent with its position that the Convention framework does not allow actio popularis cases, the Court identified specific limiting criteria on what kind of association or NGO can benefit from this novel basis for standing in paragraph 502:
[T]he association in question must be: (a) lawfully established in the jurisdiction concerned or have standing to act there; (b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and (c) able to demonstrate that it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention.
In this connection, the Court will have regard to such factors as the purpose for which the association was established, that it is of non-profit character, the nature and extent of its activities within the relevant jurisdiction, its membership and representativeness, its principles and transparency of governance and whether on the whole, in the particular circumstances of a case, the grant of such standing is in the interests of the proper administration of justice.
An aspect of this judgment which is ripe for scrutiny is its use language that implicitly precludes environmental associations from being able to bring other environmental cases before the Court (See Keller and Gurash, 2023, who argue for NGO standing in environmental cases). Indeed, a seed for allowing such a broad approach could be found as early as 2004 in the Court’s judgment in Gorraiz Lizarraga and Others v Spain, wherein it remarked:
[I]n modern-day societies, when citizens are confronted with particularly complex administrative decisions, recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to them whereby they can defend their particular interests effectively. (para 38)
Victim status of individuals affected by climate-related harm
The Court’s approach to NGO standing in climate litigation outlined above is a head-scratcher when seen in contrast to the Court’s analysis of the victim status of four elderly women who were the individual applicants nos. 2-5 in the KlimaSeniorinnen case. The conclusion that the association has standing under the afore-described thesis, may appear to carry with it the implication that the individuals it sought to represent in this case were victims of alleged human rights violations. However, that is not the case – the individuals were held not to qualify as ‘victims’ under Article 34 ECHR.
At the outset, the Court held that its judicial function is reactive rather than proactive (para 481), and that it will not recognize the victim status of individuals whose rights are yet to be infringed. For individual climate change litigants, the Court held that two criteria need to be fulfilled for their qualification as victims:
“(a) high intensity of exposure of the applicant to the adverse effects of climate change; and (b) a pressing need to ensure the applicant’s individual protection” (para 487).
In addition to this, the Court noted that the threshold for fulfilling these criteria is ‘especially high’ and noted (what I can count as) nine factors that Court will take into consideration in assessing the fulfilment of this criteria: ‘the nature and scope of the applicant’s Convention complaint, the actuality/remoteness and/or probability of the adverse effects of climate change in time, the specific impact on the applicant’s life, health or well-being, the magnitude and duration of the harmful effects, the scope of the risk (localised or general), and the nature of the applicant’s vulnerability’ (para. 488). While intended to clarify the height of the threshold for meeting the criteria, and what goes into the calculus of ‘high intensity of exposure’ and ‘pressing need to ensure individual protection,’ these factors muddy the waters since it is unclear what relative weight each of these factors will carry in the assessment.
Based on an assessment of the materials submitted before it, the Court concluded that the individual applicants nos. 2-5 did not meet these criteria. The Court reasoned that ‘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’ (para 533). This approach to factoring the availability and access to local adaptation measures in the assessment of victim status has its own problems (Keller and Ganesan, 2023).
However, the overall position that comes through from a full reading of the Court’s assessment of the applicants’ victim status is this: In the context of climate change litigation, an association or NGO, despite not being a ‘victim’ itself, may have standing to appear before the Court in a representative capacity, and claim that human rights of individuals who themselves do not qualify as ‘victims’ have been violated. A real headscratcher. Doctrinally, squaring this circle, requires accepting that there is a unique conception of individual victims who are representees of an NGO with locus standi to appear before the Court. These representee victims need not meet the criteria that is set for individual victims under Article 34 ECHR.
Concluding Remarks
In its KlimaSeniorinnen judgment, the Court seems to be saying: the bar that we set for individuals to bring climate litigation is very high; so high that it is effectively impossible for them to bring admissible complaints of serious human rights violations linked with States’ climate inaction before it is too late to do anything to mitigate climate change. We think it is best to resolve the injustice that this high bar (that we have set) represents by allowing NGOs to applications on their behalf. One may ask, why the Court could not just bring down the high bar for individual applicants to demonstrate victim status? The answer is one based in the Court’s approach to balancing policy tensions, and there is reasonable room for debate on what role pragmatism should play in how international courts perform their function.