By Pranav Ganesan, PhD candidate at the University of Zurich
This is the third and final part of the three-part series of blogposts summarizing and analysing the European Court of Human Right’s (‘ECtHR’) judgment in the case of Verein KlimaSeniorinnen Schweiz and Others v Switzerland (click here for part 1, and here for part 2). Here, I will cover the rest of the judgment, starting with the applicants’ claims as to the violation of their right under Article 6 of the European Convention of Human Rights (ECHR), before sharing my concluding thoughts about the judgment. While the Court’s finding that Switzerland violated Article 8 seems to have stolen the limelight, it is important not to lose sight of the implications that its findings on Article 6 may have for domestic courts across all Council of Europe member States.
Right to a fair trial (civil limb): Swiss courts’ dismissal of the applicants’ complaints
In contrast to its approach with respect to Articles 2 and 8 of the ECHR to this case, the Court analysed the questions as to the applicants’ victim status and applicability of Article 6 to their case together. For Article 6(1) to apply in its civil limb, three criteria must be met: the applicant must have a right of a civil nature, there must be a genuine and serious dispute, and the outcome of such dispute must be directly decisive for that right (this last limb shall be referred to as the ‘direct decisiveness test’). Interestingly, the Court also decided to provide a general comment on the applicability of Article 6(1) in the climate litigation context.
Article 6(1) in the Context of Climate Litigation
On a general note, the Court held that Article 6 ‘cannot be relied upon to institute an action before a [domestic] court for the purpose of compelling Parliament to enact legislation’ (para 609). This can be understood as an implicit remark on the implications of Article 6 on the right to bring framework climate litigation before courts in Contracting Parties. While Contracting Parties must allow legal avenues for the redressal of rights violations caused by regulations and measures on climate mitigation (or a lack thereof), they are not obligated under Article 6(1), to provide for individual legal rights to trigger judicial review of legislation in abstracto.
Specifically with respect to the first criterion for Article 6(1) to be applicable, the Court found: first, that a substantive right of a civil nature may exist in light of the causal link between States’ acts or omissions relating to climate change and interests protected by the domestic law right of individuals to be protected from ‘the harm, or risk of harm’ (para 519, 610). Second, a procedural right of a civil nature may exist given States’ transposition of the international environmental law principle of ‘participation of the public and access to information in matters concerning the environment’ into domestic law as a matter of right (para 610).
For the purposes of the ‘direct decisiveness test’, the breadth of the object of the dispute typically makes it easier (or harder) to draw a direct connection between the dispute and the impact on the right. However, given that the object of climate litigation is rather broad, the Court thought it appropriate to take some special considerations into account when assessing the test of direct decisiveness. For instance, the direct decisiveness test requires applicants to prove the imminence of the harm or danger that they allege to their protected interests. However, the Court suggested that the ‘potential for irreversible consequences and corollary severity of harm’ that risks linked with climate change entail, blunts this strict standard. The Court thought that an approach to the contrary would ‘unduly limit access to a court for many of the most serious risks associated with climate change’ (para 614).
Victim Status and Applicability of Article 6(1) ECHR
The Court found that the claims raised by the applicants before the Swiss courts, whose rejection constituted the dispute under Article 6(1) in the instant case, needed to be nuanced. The part of the action where the applicants argued that Switzerland must do better in terms of legislating on and regulating emissions of greenhouse gasses from within and beyond Switzerland under their control, thus amounting to framework climate litigation, fell outside the scope of Article 6(1). However, the part of the action where the applicants challenged the Swiss authorities’ failure to implement measures pursuant to the emissions reduction target of 20% by 2020 did fall within the scope of Article 6(1). Thus, whether this part of the action satisfied the other criteria for the application of the provision was all that remained to be seen.
The right to protection of physical integrity under Article 10 of the Swiss Constitution was determined as a right of a civil nature (para 617). The claim regarding the non-implementation of mitigation measures raised a serious and genuine dispute between the applicants and the Swiss government (para 618). As for the direct decisiveness test, the Court held that the same reasons why the individual applicants could not be recognized as victims for the purposes of Article 8, suffice in finding that the outcome of the case was not directly decisive for their rights. The Court held that ‘their dispute had a mere tenuous connection with, or remote consequences for, their rights relied upon under national law’ (para 624).
However, it held differently in relation to the applicant association’s dispute, and therefore its victim status for its complaint regarding lack of access to court. The justification underlying the applicant association’s standing to litigate Article 8 was reiterated in connection to Article 6. The Court held that the direct decisiveness test must be understood in a broader sense, in so far as the dispute reflects the collective dimension of human rights protection which the Court had already recognized when it recognized the association’s standing before the Court to claim an Article 8 violation (para 622).
Merits: Violation of Article 6(1) ECHR
The right of access to a court includes not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court (para 629). The Court found that there had been a limitation of this right, as the applicant association’s complaints were dismissed without any examination of the merits at all three instances of domestic proceedings (first by the federal administrative authority for the environment, and then by an appellate court and the federal supreme court of Switzerland). This limitation was found to be disproportionate to the legitimate aim of preventing actio popularis complaints. The Court held that the applicant association’s action for the implementation of mitigation measures ‘cannot automatically be seen as an actio popularis or as involving a political issue which the courts should not engage with’ (para 634). The reason for this is that anthropogenic climate change may affect human rights, and it is an urgent need to address the threats it poses.
The administrative authority and Swiss courts were found neither to have sufficiently examined the scientific evidence concerning climate change and the urgency as regards the existing and inevitable future impacts (para 635), nor to have seriously (or at all) engaged with the applicant association’s complaint, which was separate from the individual applicants’ complaint (para 636). Therefore, the Court held that the limitation of the applicant’s right of access to a court had been unduly limited, in contravention of Article 6(1).
The Court’s former finding needs to be critically analysed. The relevant part of the judgment reads:
The Court is not persuaded by the domestic courts’ findings that there was still some time to prevent global warming from reaching the critical limit […] This was not based on sufficient examination of the scientific evidence concerning climate change, which was already available at the relevant time, as well as the general acceptance that there is urgency as regards the existing and inevitable future impacts of climate change on various aspects of human rights. (para 635).
To recap, the Swiss Federal Supreme Court (FSC) had found that rights under Article 10 of the Swiss Constitution were not implicated in the dispute because there was still time to prevent global warming from exceeding the critical limit (of 2 °C increase in average global temperatures) (see para 59). On the issue of time, the FSC relied on the 2018 Special Report of the IPCC, which noted that ‘global warming would reach 1.5 °C around the year 2040 (likely range 2030 to 2052), provided that it continued at the current rate’ (para 58). In its jurisprudence, the Court has been clear that it is generally not its task to deal with errors of fact or law allegedly committed by domestic courts, unless they are arbitrary or manifestly unreasonable (see para 626). So, was the error committed by the FSC “arbitrary or manifestly unreasonable”? If so, why? Or, was this case an exceptional one, making it relevant for the Court to deal with an ordinary error?
The judgment does not answer these questions. Overall, the judgment seems to be conveying a message to domestic courts of parties to the ECHR, to take climate change seriously. But it effectively leaves it to them to reflect on the errors they must avoid committing when faced with climate litigation in the future.
Conclusion
The applicants in this case believe that they have achieved a historic victory. However, a lone voice from the Grand Chamber expressed worry that the majority, by arriving at the conclusions detailed above, are ‘giving (false) hope that litigation and the courts can provide “the answer” without there being, in effect, any prospect of litigation (especially before this Court) accelerating the taking of the necessary measures towards the fight against anthropogenic climate change’ (dissenting opinion of Judge Eicke, 69). It is debatable whether the judgment will move states to change their tune and actions in line with broad concerns of climate justice, especially considering the Court’s silence on equity and the injustice entailed in a few major polluters’ conduct vis-à-vis the most vulnerable populations, living far away from its borders. But it is safe to say that it will have significant implications for parties to the ECHR in terms of how they must proceed with the determination and implementation of their climate mitigation measures.
For Switzerland in particular, this judgment will have two consequences. First, Switzerland was ordered to compensate the applicant association for costs and expenses incurred by it, to the tune of 80,000 Euros, as opposed to approx. 324,000 Euros that was claimed by it (para 650). It is unlikely that Switzerland will refuse to comply with this obligation. Second, Switzerland must take appropriate general or individual measures in its legal order in order to put an end to the violation, subject to the supervision of the Council of Europe’s Committee of Ministers (pursuant to Article 46 ECHR). The content of these measures was left to the Swiss government to determine, since the complexity of the issues involved in compliance rendered the Court ‘unable to be detailed or prescriptive’ (para 657). This is a curious remark, especially considering that earlier in the judgment, the Court was convinced that Switzerland had an obligation to take measures with a view to achieve a net-zero GHG emissions in the next three decades. In any event, it is reasonable to expect that the judgment will result in some progression in Switzerland’s climate change commitments. How significant the progression in Switzerland’s climate targets (set in legislation) ought to be for compliance with the judgment is unclear. At the very least, it will be necessary for Switzerland to provide a high level of clarity in the measures it determines are necessary for their achievement.