By Pranav Ganesan, PhD candidate at the University of Zurich
This blogpost is the second in a three-part series summarizing and analysing the judgment of the European Court of Human Rights (‘ECtHR’) in the case of Verein KlimaSeniorinnen Schweiz and Others v Switzerland (click here for part 1, on admissibility). Here, I will analyse the Court’s findings on States’ climate obligations under Articles 2 and Article 8 of the European Convention of Human Rights (ECHR), and Switzerland’s (non-)compliance with the latter.
Applicability of Articles 2 & 8 ECHR
In its case law, the Court has consistently held that Article 2 of the ECHR would be applicable if the applicant proves a “real and imminent risk” to life. In KlimaSeniorinnen, the Court held that a serious risk of significant decline in a person’s life expectancy owing to climate change could trigger the applicability of Article 2 ECHR (para 513). As for Article 8 ECHR, it held that the provision ‘must be seen as encompassing a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life’ (para 519, emphasis added). However, the Court held that the applicability of the provision to the case depends on the ‘assessment of similar criteria’ to those relevant to the assessment of victim status of individual applicants elaborated by the Court in an earlier part of the judgment (para 520).
After explaining the law on applicability of the two provisions, the Court summarily concluded that it was not necessary to assess the applicability of Article 2 ECHR. The reason it gave for this was that Article 8 of the Convention was applicable in this case without any doubt (para 536). One may question whether such an approach is fair to the applicant association, since a judgment finding that both Articles 2 and 8 ECHR have been breached arguably carries a more significant weight for the respondent State, compared to one that only finds an Article 8 breach. Nevertheless, it held that the same principles as those set out in relation to Article 2 have been applied in cases involving environmental issues under Article 8. Based on this the Court went on to identifying the content of States’ positive obligations under Articles 2 and 8 ECHR in the context of climate change (para 540), and only assessed Switzerland’s compliance with the latter provision.
Nuanced Approach to the Margin of Appreciation
The scope of actions that are required to be taken by a respondent State pursuant to Article 8 of the ECHR is controlled by the breadth of the margin of appreciation it is deemed to enjoy. On the margin of appreciation to be afforded to States in climate cases, the Court took a more nuanced approach than that which it has explained in its environmental case law. The Court distinguished between two types of determinations in this case: ‘the setting of requisite aims and objectives’ in pursuance of commitments to the necessity to combat climate change; and ‘the choice of means designed to achieve those objectives’ (para 543).
In the context of responding to climate change, States were held a broad margin of appreciation in relation to the latter. On the other hand, the Court found that several factors call for a narrowing of the margin of appreciation in relation to setting aims and objectives for climate mitigation. The following factors were identified to suggest that climate change protection must be given considerable weight in balancing against competing considerations: “the urgency of combating the adverse effects of climate change, the severity of its consequences, including the grave risk of their reaching the point of irreversibility, and the scientific, political and judicial recognition of a link between the adverse effects of climate change and the enjoyment of (various aspects of) human rights” (para 542). Moreover, ‘the global nature of the effects of greenhouse gas (GHG) emissions, as opposed to environmental harm that occurs solely within a State’s own borders, and the States’ generally inadequate track record in taking action to address the risks of climate change that have become apparent in the past several decades’ were counted as factors that increase the weight to be afforded to climate change.
This nuanced approach to the application of the margin of appreciation doctrine is a welcome change, but not one that is surprising given that it is squarely in accordance with the rationale underlying the margin of appreciation doctrine (see Ganesan, 2022, III.B). However, a crucial point was left unaddressed by the judgment – namely, whether (and if so, how) the concept of ‘national fair shares’ of global GHG emissions affects States’ margin of appreciation (Liston, 2020). In simple terms, the concept implies that every State does not have a right to emit equal amounts of GHG. The distribution of the global GHG budget (before tipping points are crossed) must ought to be fair, and national commitments need to be based on this fair distribution.
Content of climate-related obligations under Article 8 ECHR
The key finding in this part of the judgment is ‘the State’s primary duty is to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change’ (para 545). The details of this primary duty were elaborated by the Court in the paragraphs that followed.
Based on the UNFCCC and the Paris Agreement the Court interpreted this duty as requiring that the ‘regulations and measures’ must be ‘aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, notably the right to private and family life and home under Article 8 of the Convention” (para 546). This reflects the Court’s hesitancy in specifying which of the two negative temperature targets under the Paris Agreement: 1.5 °C and 2 °C (Article 2(1)(a) Paris Agreement), Contracting Parties must premise these “necessary regulations and measures” on. Does this mean that it is within the margin of appreciation for States to determine that their measures should align with a pathway where the 1.5 °C target is exceeded but the 2 °C target is not exceeded? How, when determining whether their measures prevent the a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, must States value the lives, health and well-being of individuals beyond their jurisdiction?
In a controversial move, the Court also concluded that it is, in principle, not within parties’ margin of appreciation to allow themselves more than three decades in achieving net-zero emissions or commit to an insubstantial or regressive GHG emissions reduction target (para 548). The controversy stems from the fact that the Court cites no legal basis for making this conclusion. The considerations preceding this finding do not indicate where the Court derives this thirty-year period from. The Paris Agreement only calls for the achievement of global net-zero in (not before) the second half of this century (Article 4.1). In a move that is reminiscent of the German Constitutional Court’s finding in the 2021 Neubauer judgment from the German Constitutional Court, the Court also held that the achievement of net-zero cannot be pursued in a manner that imposes a disproportionate burden on future generations (para 549). However, rather than adopt the ‘advanced interference-like effect’ thesis used in that judgment, the Court seems to be relying on Article 3 of the UNFCCC, which states that Parties “should protect” the climate system for the benefit of present and future generations of humankind (para 420, where the Court confuses the UNFCCC’s non-binding call for protection of the climate system for future generations as an obligation). The legal basis underlying the need for States’ emissions reductions commitments to be “substantial and progressive” is also not mentioned. The Court was presumably deriving this interpretation from Article 4.3 of the Paris Agreement. As I have argued elsewhere, the principle of non-retrogression in international human rights law could also play an interpretive role in the context of their obligation to undertake emissions reductions. However, this was not referenced by the Court.
In paragraph 550, the Court detailed the concrete parameters for reviewing Contracting Parties’ determinations which set the ‘requisite aims and objectives’ in relation to their commitments to combat climate change. This paragraph is worth quoting in full:
When assessing whether a State has remained within its margin of appreciation (see paragraph 543 above), the Court will examine whether the competent domestic authorities, be it at the legislative, executive or judicial level, have had due regard to the need to:
(a) adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;
(b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;
(c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub- paragraphs (a)-(b) above);
(d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and
(e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.
The paragraph uses soft language. It requires State authorities to have “due regard to the need to” do rather than do the things mentioned in (a) to (e). This makes sense because the Court, in reviewing the balancing process underlying State authorities’ determinations as to what measures it must take to fulfil its positive obligations under Article 8, cannot substitute their own judgment for that of the State. The Court also clarifies that a shortcoming in one respect will not lead to a conclusion that the State has overstepped its margin of appreciation – the assessment will be of an overall nature (para 551).
The Court regarded effective adaptation measures as a necessary component of positive obligations under Article 8 and framed these measures as supplementary to mitigation measures (para 552). Here, it would have been desirable for the Court to identify the principles on the basis of which States must act in light of the inherent tension between taking mitigation and adaptation action (Keller and Ganesan, 2023). Lastly, the Court recognized that procedural safeguards need to be “taken into account” as regards States’ decision-making process in the context of climate change (para 554).
Assessment of Switzerland’s Conduct
The Court only assessed Switzerland’s positive obligations to commit to and implement mitigation measures, without analysing whether the “ancillary adaptation measures were put in place,” considering that it was able to conclude that there was a violation on the basis of the former (para 555). In terms of the scope of Switzerland’s conduct, the Court held that it will analyse the measures taken after May 2020 as well (i.e. measures which were not the subject of prior domestic litigation) (para 556).
The Court refrained from resolving the disagreement between the applicants and the Swiss government on the legal salience of the studies by Lavanya Rajamani et al., Climate Action Tracker, and Climate Analytics to contrast Switzerland’s climate policies with the level of GHG emissions which would put it within its ‘fair share’ of global emissions (para 557). This disagreement was crucial, because the applicants’ plea was for the Court to rely on these studies to make a concrete finding as to the sufficiency of the specific emissions reduction targets. The Court decided that it was unnecessary to adjudicate this issue because it was able to find a violation based on the lack of due diligence exercised by Switzerland. A finding in favour of the applicants on this point could have possibly led to the Court making a more stinging finding against Switzerland: that it is presumptively responsible for using more than its fair share of the global GHG emissions budget (Liston, 2020). Instead, the Court ended up finding that ‘some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework’ sufficed to prove a violation of Article 8 (para 573). The Court’s assessment in the lead up to the finding of these lacunae were done in about 4 pages of the judgment (paras 558-572), and can be summed up as follows:
- Insufficiency of the target set by the 2011 CO2 Act (para 558): The legislation called for an overall emissions reduction of 20% by 2020, compared to 1990 levels. This was contrasted against the Swiss Federal Council’s own assessment dating back to 2009 that industrialised countries such as itself had to reduce their emissions by 25-40% by 2020 compared to 1990 levels in order to limit global warming to 2-2.4 °C above pre-industrial levels (note: at that time, there was no consensus amongst States on the two Paris Agreement temperature targets of 1.5 °C and 2 °C).
- The emissions reduction target set to be achieved by 2020 was missed by Switzerland (para 559).Apart from pointing out this outcome, the Court does not explain why missing this target sufficed to conclude that Switzerland’s conduct in the lead-up to this result was faulty. Positive obligations under Article 8 are obligations of conduct, not obligations of result. While it is arguable that missing the 20% emissions reduction target is relevant in analysing Switzerland’s compliance with positive obligations, it cannot per se lead to a conclusion that there has been a violation. The Court should have thus explained what it intended in this part of the assessment, or whether it had tacitly applied a presumption against Switzerland, which it failed to rebut.
- Regulation should indicate not just short-term targets but also medium and long-term targets (para 561). The Court found that despite having taken the opportunity to revise the 2011 CO2 Act in 2021, Switzerland left the time period un-regulated (i.e. by not specifying emissions reductions targets for relevant time periods after 2024) when it revised the 2011 CO2 Act (para 561). Similarly, under the latest Climate Act of 2022, the period between 2025 and 2030 remains unregulated (para 562). This, in the Court’s view is incompatible with point (a) in para 550, quoted above.
- Regulation should supplement targets with details of concrete measures: In regards to the latest Climate Act of 2022, wherein Switzerland incorporated its objectives that were part of its NDC under the Paris Agreement into national law, the Court held that ‘the concrete measures to achieve those objectives are not set out in the Act but rather remain to be determined by the Federal Council and proposed to Parliament “in good time”’ (para 566). The Court noted its difficulty accepting that a mere legislative commitment to adopt concrete measures in “good time” satisfies the State’s duty under Article 8, when seen in the context of the “pressing urgency of climate change” (para 567).
- Carbon budget approach: The Court was unconvinced by Switzerland’s argument that the determination of Switzerland’s carbon budget was not possible and hence its non-pursuance was justified. It cited the Neubauer case, wherein the German Constitutional Court found that such a calculation was possible and could be relied on as a factor that legally constrains the policy measures that Germany could take (in particular, preventing it from using up the budget in a manner that imposes a disproportionately burden on future generations). The Court also pointed, for comparative purposes, to the indicative EU carbon budget under European Climate Law (para 571). Based on this, it held that the absence of any domestic measure ‘attempting to quantify [Switzerland’s] remaining carbon budget’ made it difficult for the Court to accept that Switzerland complied effectively with Article 8 (para 572).
Reflections on the Court’s Reasoning
There is an unease I encountered when going from the Court’s findings as to what climate-related obligations are found to exist under Article 8 of the ECHR, to the reasons why Switzerland violated these obligations. To begin with, the Court clearly held that the concrete measures listed in paragraph 550 must be given ‘due regard,’ when Contracting Parties perform their ‘primary duty’ to put in place a regulatory framework for climate mitigation under Article 8. But then, its analysis of Switzerland’s conduct reads as though those concrete measures were benchmarks which it must have achieved, rather than factors which it should have duly regarded. My sympathies lie with the judges (and case lawyers at the Court) who faced the mammoth task of performing several layers of analysis and condensing the same into four pages. However, the judgment was left wanting of an explanation on why the apparent incongruence between actions taken by the Swiss legislature and the actions listed in paragraph 550 sufficed to conclude a lack of ‘due regard.’