Category: European Convention on Human Rights

Verein KlimaSeniorinnen et al. v. Switzerland

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Post date 9 Apr 2024
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Summary:
In 2016, the Senior Women for Climate Protection Switzerland (German: ‘Verein KlimaSeniorinnen’), a Swiss organisation, brought proceedings concerning the alleged omissions of the Swiss federal government to adopt an adequate climate protection policy. They submitted that current domestic climate targets and measures are not sufficient to limit global warming to a safe level. This failure to prevent climate-related disasters, they argued, represents a failure to protect the rights under Articles 2 and 8 ECHR (the rights to life and respect for private and family life, respectively) of the organization’s members. In particular, they submitted evidence that their specific demographic (older women) is particularly impacted by heatwaves, citing health impacts and excess mortality risks. The respondent State, they argued, has failed to comply with its positive obligations to protect their rights, read in light of the environmental law principles of precaution and intergenerational equity.

The applicants also invoked two procedural rights under the Convention, namely the rights in Articles 6 and 13 ECHR (right to a fair trial and right to an effective remedy, respectively). In this regard they argued that the domestic courts failed to take their case seriously and provide an effective remedy to contest the violation of their rights.

These claims were rejected by the domestic instances at three levels of jurisdiction. The Swiss Federal Supreme Court, in its ruling, considered that the case represented an actio popularis, concerned questions better suited to the political arena, and did not raise an arguable claim of a rights violation. As a result, the applicants took their case to the European Court of Human Rights in Strasbourg.

This case was only the second climate change-related case to come to Strasbourg. Like the Duarte Agostinho case, this application raised novel questions before the Court, including the issue of victim status in climate cases, the standing of (environmental) NGOs to bring cases to the Court, and the extent of the State margin of appreciation in regard to environmental protection measures related to climate change, and the extent of the positive obligation to protect individuals from the risks to their life and health posed by climate change.

On 9 April 2024, in a historic ruling, the ECtHR declared this case admissible in part (for the association) and found that there had been violations of Articles 6(1) and 8 ECHR. In doing so, this case became the Court’s leading climate judgment, and a model for further climate-related cases in this system.

Third-party interventions:
There were an unusually large (for the ECtHR) number of third party interventions in this case: 23 in total, including eight States. The KlimaSeniorinnen association provided copies of all of the third-party interventions; these are available here. Some of the third-party interveners were also granted leave to intervene orally during the hearing before the Grand Chamber.

Grand Chamber hearing:
This was the first climate case heard by the European Court of Human Rights, followed immediately by the Carême v. France case. The Court has adjourned its examination of six other climate cases until the Grand Chamber has ruled in the three climate change cases before it, meaning that leading judgments clarifying the Convention obligations around cliamte change can be expected in these cases.

During the hearing, submissions were heard from the applicants, the respondent State, and two of the 23 total third-party interveners (the Government of Ireland & the European Network of National Human Rights Institutions (ENNHRI). A live summary of the hearing is available here.

General findings of the Court in its judgment of 9 April 2024:
The Court’s judgment is prefaced by a number of general findings that reflect its intended nature as a leading case. Noting the need to ensure effective protection of Convention rights without undermining the prohibition of actio popularis cases under the Convention system, the Court acknowledged that it had a role to play here, finding that “the current situation (…) involves compelling present‑day conditions, confirmed by scientific knowledge, which the Court cannot ignore in its role as a judicial body tasked with the enforcement of human rights.” At the same time, noting “the necessarily primary responsibility of the legislative and executive branches and the inherently collective nature of both the consequences and the challenges arising from the adverse effects of climate change”, it held that the issue of victim status here raised an issue of the separation of powers, requiring particular consideration. Noting the global and complex nature of climate change, it held that “the necessity of combating climate change involves various conflicts, the weighing‑up of which falls, as stated previously, within the democratic decision‑making processes, complemented by judicial oversight by the domestic courts and this Court.”

In light of this, and before assessing the case, the Court set out a number of general considerations relating to climate‑change cases. This includes questions of causation, including the finding that despite indirect causal links, “the essence of the relevant State duties in the context of climate change relates to the reduction of the risks of harm for individuals”, meaning that it could not apply “a strict conditio sine qua non requirement” to matters of causation. This section also includes issues of proof and evidence, and references the “evolution of scientific knowledge, social and political attitudes and legal standards concerning the necessity of protecting the environment”. Here the Court established that “there are sufficiently reliable indications that anthropogenic climate change exists, that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States are aware of it and capable of taking measures to effectively address it, that the relevant risks 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, and that current global mitigation efforts are not sufficient to meet the latter target” (para. 436). And, importantly, it discarded the “drop in the bucket” argument made by the respondent State, stating that “The relevant test does not require it to be shown that “but for” the failing or omission of the authorities the harm would not have occurred. Rather, what is important, and sufficient to engage the responsibility of the State, is that reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm” (para. 444). It also stressed that there is no right to a healthy environment in the ECHR, but that it can and has nonetheless dealt with other environmental cases, reiterating its past approach that “the crucial element which must be present in determining whether, in the circumstances of a given case, an environmental harm has adversely affected one of the rights safeguarded by the Convention is the existence of a harmful effect on a person and not simply the general deterioration of the environment” (para. 446). It also noted that it is conscious of its subsidiary role and the direct democratic legitimation of national authorities to make decisions on climate policy, but that where State policy affects Convention rights, it has competence to intervene and “the Court’s competence in the context of climate-change litigation cannot, as a matter of principle, be excluded” (paras. 449-451).

The Court also set out the relevant principles for interpreting the ECHR, including the living instrument approach and the fact that while the Court “does not have the authority to ensure compliance with international treaties or obligations other than the Convention” — including the Paris Agreement — it has consistently noted that it will interpret the Convention in harmony with other international law.

Admissibility:
On 9 April 2024, the Court declared this case admissible in part. Under Article 34 ECHR, it used this judgment as an opportunity to create new standards on victim status specific to climate-related cases. In doing so, it set out the general standards on victim status, noting that it did not admit actio popularis cases and that the ECHR “does not permit individuals or groups of individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention” (para. 460). It noted that the notion of victim status must be applied flexibly, and that it’s distinct from locus standi, i.e. representative actions.

The Court then issued general considerations on victim status and locus standi in climate cases, noting that “there is cogent scientific evidence demonstrating that climate change has already contributed to an increase in morbidity and mortality, especially among certain more vulnerable groups, that it actually creates such effects and that, in the absence of resolute action by States, it risks progressing to the point of being irreversible and disastrous” (para. 478).

It also held that (para. 479): the critical issues around climate change “arise from failures to act, or inadequate action”, meaning omissions in legislative or regulatory frameworks that require a special approach to victim status. Importantly, the Court also clarified that its findings on victim status in the context of complaints about omissions in climate policy “is without prejudice to the determination of victim status in circumstances where complaints by individuals concern alleged violations arising from a specific individual loss or damage already suffered by them” (para. 480), meaning that the special approach spelled out for mitigation cases need not preclude other types of claims. However, it held, in the context of climate change, “a potentially a huge number of persons could claim victim status under the Convention”, which “would not sit well with the exclusion of actio popularis from the Convention mechanism and the effective functioning of the right of individual application” (para. 483). The Court clarified the difficult situation in which it found itself, between “disrupting national constitutional principles and the separation of powers” and depriving individuals affected in their rights from “any judicial recourse before the Court”, noting the “distinct representational disadvantage” of those most affected (para. 484). It then, in para 487 of the judgment, spelled out the criteria for individual victim status in climate cases. These are:

(a) “a high intensity of exposure to the adverse effects of climate change”, i.e. a significant level and severity of risk of adverse consequences; and
(b) “a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm.”

Given that there is no actio popularis under the Convention, the Court held, “the threshold for fulfilling these criteria is especially high”, and will depend on specific vulnerabilities and local circumstances as well as including considerations relating to: “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).

As to the standing of associations, the Court generally reiterated its previous Gorraiz Lizarraga and Others judgment, which had allowed representative standing for an organisation. It noted that recourse to collective bodies like associations can make defense of one’s interests more accessible in certain circumstances, including the context of climate change, noting that this general principle was also reflected in the Aarhus Convention. The Court then set out some general principles on organizations’ victim status versus their standing as representatives of victims. In light of the former, it reiterated past case-law finding that “an association cannot rely on health considerations or nuisances and problems associated with climate change which can only be encountered by natural persons”. But it also recognized that understandings of the importance of litigation by associations had evolved, and that climate cases are complex and demanding and affect many individuals (para. 498). In addition, “the special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context (…), speak in favour of recognising the standing of associations before the Court in climate-change cases” (para. 499). However, this should not mean allowing an actio popularis: a test for associations’ standing is required. To design its test, the Court had regard to the Aarhus Convention while also noting key difference between its approach and that under Aarhus.

The test it devised for associations looks as follows (§ 502): associations will have locus standi to bring climate cases about impacts on human lives and health where they:

(a) have been lawfully established in the relevant jurisdiction, or have standing to act there;
(b) pursue, under their statutory objectives, a dedicated purpose of defending the human rights of their members or other affected individuals in the jurisdiction concerned, and
(c) are genuinely qualified and representative to act on behalf of affected individuals in the jurisdiction who are subject to specific threats on their lives, health or well-being from climate change.

The Court also noted that it would consider additional factors, like the purpose for which the association was established, its non-profit character, the nature and extent of its activities, its membership and representativeness, its principles and transparency of governance and whether standing is in the interests of the proper administration of justice.

There was no need, however, to show that those on whose behalf the case has been brought would themselves have met the climate-specific victim-status requirements for individuals as set out earlier in the judgment.

Because the Court joined its actual analysis of the victim status requirement to the merits of the case, this is discussed in the following section.

Merits:
In setting out general principles on the applicability of Article 2 ECHR (the right to life), the Court noted past cases where the right was applicable to situations where there is a threat to life, but “where the person concerned did not die”. Although noting the evidence on vulnerable populations, the Court reiterated that the appropriate test here is one of whether there is a “real and imminent” risk to life, meaning that the risk must be serious, genuine, sufficiently ascertainable and in physical proximity. It then tailored this last aspect to the nature of climate change, stating that it would suffice to show “an element of material and temporal proximity of the threat to the harm complained of by the applicant”. This means that, provided an applicant has victim status, “a serious risk of a significant decline in a person’s life expectancy owing to climate change ought also to trigger the applicability of Article 2.”

As for Article 8 ECHR, the Court stated generally that it was necessary to show an “actual interference” with the right, meaning that there needs to be “a direct and immediate link between the alleged environmental harm and the applicant’s private or family life or home”, and a certain level of severity. Drawing on its past environmental case-law, the Court went on to establish that “Article 8 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).

The Court then considered the applicability of Art. 8 ECHR to the case before it. As concerned the applicant association, it found that it met the criteria for standing by associations as set out earlier in the judgment, describing the KlimaSeniorinnen association as “a vehicle of collective recourse aimed at defending the rights and interests of individuals against the threats of climate change in the respondent State”. The complaints pursued by the association on behalf of its members, it held, fall within the scope of Article 8. The association accordingly had locus standi, and Article 8 was declared applicable to its complaint.

On applicants 2-5 (the individual applicants), the Court held that the threshold for meeting its two criteria (high-intensity exposure and a pressing need to ensure protection) was high. It was not enough to show that they were particularly vulnerable to the effects of climate change. The crucial paragraph of the judgment here is para. 533: “while it may be accepted that heatwaves affected the applicants’ quality of life, it is not apparent from the available materials that they were exposed to the adverse effects of climate change, or were at risk of being exposed at any relevant point in the future, with a degree of intensity giving rise to a pressing need to ensure their individual protection (…). 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”. Their complaint was accordingly declared inadmissible.

On the claims under Article 2, the Court held that it was not necessary to analyze this further, noting that its analysis would “have regard to the principles developed also under Article 2, which to a very large extent are similar to those under Article 8 (…) and which, when seen together, provide a useful basis for defining the overall approach to be applied in the climate-change context under both provisions.”

The Court then recapitulated more general principles now on the merits proper. It held that the Article 2 and 8 positive obligations are generally quite similar, requiring the State:

(a) to put in place an adequate legislative and administrative framework and govern the licensing, setting-up, operation, security and supervision of the activity;
(b) to apply that framework effectively in practice;
(c) to remain within their margin of appreciation;
(d) to exercise due diligence and consider all competing interests;
(f) to provide access to essential information enabling individuals to assess risks to their health and lives;

Noting also that “the scope of the positive obligations imputable to the State in the particular circumstances will depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation”.

In reviewing the domestic decision-making process, the Court has particular regard to the following considerations:

(a) Its subsidiary role;
(b) The need to consider all of the procedural aspects;
(c) The presence of appropriate investigations and studies;
(d) The public’s access to the conclusions of the relevant studies; and
(e) Whether or not the individuals concerned had an opportunity to protect their interests in the environmental decision-making process, i.e. participate effectively.

Turning to States’ positive obligations relation to climate, it first considered the State margin of appreciation. Having regard to the scientific evidence, the Court considered it justified to give climate protection considerable weight against competing considerations.

Regarding the margin of appreciation it distinguished between the scope of the margin as regards (i) the State’s commitment combating climate change and setting objectives in this respect, and (ii) the choice of means designed to achieve those objectives. The margin is more narrow with regard to the former. For the latter aspect, i.e. the choice of means, States have a wide margin of appreciation.

As to the content of States’ positive obligations under Article 8, this is primarily a regulatory obligation. This means that, in line with their international commitments, States need to put in place regulations and measures to prevent climate change. The global aims in the Paris Agreement are not enough; and “must inform the formulation of domestic policies, it is obvious that the said aims cannot of themselves suffice as a criterion for any assessment of Convention compliance of individual Contracting Parties to the Convention in this area. This is because “each individual State is called upon to define its own adequate pathway for reaching carbon neutrality, depending on the sources and levels of emissions and all other relevant factors within its jurisdiction.”

This means that Article 8 ECHR “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” (ca. 2050). To avoid a disproportionate burden on future generations, this means immediate action needs to be taken and adequate intermediate reduction goals must be set for the interim period. The Court spelled out that this must be part of a binding regulatory framework at the national level, followed by adequate implementation, and that “the relevant targets and timelines must form an integral part of the domestic regulatory framework, as a basis for general and sectoral mitigation measures.”

In para. 550, the Court set out the criteria it would use to decide whether a State has remained within its margin of appreciation, namely whether the authorities 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 (…);
(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.”

These mitigation measures, it added, must be supplemented by adaptation measures aimed at alleviating the most severe or imminent consequences of climate change, taking into account particular protection needs.

The Court also set out procedural safeguards, namely

(a) The publicity of relevant information; and
(b) The availability of procedures to take into account the views of the public, and in particular the interests of those affected.

Applying these principles to the case before it, the Court held that it could “take into account the overall situation in the respondent State”, including relevant information that came to light after the domestic proceedings, but that here, given an ongoing domestic legislative process, its assessment was limited to examining the domestic legislation as it stood on the date of the (internal) adoption of the judgment, which was 14 February 2024.

The Court noted that the currently existing 2011 CO₂ Act (in force since 2013) required that emissions reductions of 20% by 2020 compared with 1990 levels. However, as far back as August 2009, the Swiss Federal Council had found that the scientific evidence under a 2-2.4°C warming limit required a reduction in global emissions of at least 50-85% by 2050 compared with 1990 levels. Industrialised countries (like Switzerland) had to reduce their emissions by 25-40% by 2020 compared to 1990 levels. for the higher 1.5°C limit, emissions would have to decline continuously, and the pathway 20% by 2020 pathway was insufficient to achieve that objective.

As the Government acknowledged, domestic assessments found that even the reduction target for 2020 had been missed. Between 2013 and 2020, Switzerland reduced its emissions by around 11% compared with 1990 levels, indicating the insufficiency of the authorities’ past action to take the necessary measures to address climate change.

A proposed revision of the CO2 Act for 2020-2030 proposed an overall reduction of 50% of emissions, including a domestic reduction of 30% by 2030 and measures to be taken abroad (“external emissions”). This proposal was rejected in a popular referendum in June 2021. Here the Court held that, “irrespective of the way in which the legislative process is organised from the domestic constitutional point of view”, there was a legislative lacuna, pointing to a failure on the part of the respondent State to fulfil its positive obligations under Article 8 to devise a regulatory framework setting the requisite objectives and goals.

Reflecting the updated Swiss NDC, the Climate Act was enacted, and envisages the principle of a net‑zero emissions target by 2050, but several lacunae remain, and “the Court has difficulty accepting that the mere legislative commitment to adopt the concrete measures “in good time” (…) satisfies the State’s duty”, especially because “the introduction of that new legislation is not sufficient to remedy the shortcomings identified in the legal framework applicable so far.”

Currently, the Swiss goal used more emissions than even a globally equal “per capita emissions” approach would entitle it to use.

The Court rejected the Government’s argument that there was no established methodology to determine a country’s carbon budget, and noted that an NDC under the Paris Agreement was not an appropriate substitute. The Court approved of the reasoning of the German Federal Constitutional Court in Neubauer, where it rejected the argument that it was impossible to determine the national carbon budget by emphasizing the principle of common but differentiated responsibilities under the UNFCCC and the Paris Agreement.

Thus, “while acknowledging that the measures and methods determining the details of the State’s climate policy fall within its wide margin of appreciation, in the absence of any domestic measure attempting to quantify the respondent State’s remaining carbon budget, the Court has difficulty accepting that the State could be regarded as complying effectively with its regulatory obligation under Article 8” (para. 572). This meant that there had been a violation of Article 8 of the Convention (by a majority of 16-1).

On the issue of Article 6 ECHR, concerning the right of access to a court, the Court held that the issue of victim status should again be joined to the merits, and the Court again dove in with general principles, finding that it did not per se need to tailor these principles to the nature of climate change cases.

Examining these principles in the case before it, the Court held that “it cannot be said that the individual applicants’ claim was frivolous or vexatious or otherwise lacking in foundation in terms of the relevant domestic law (…). The Court is unable to agree with the finding of the FSC that the individual applicants’ claim could not be considered arguable for the purposes of Article 6 § 1 of the Convention” (para. 618). It went on to find that interests defended by the association meant that the “dispute” raised by it had a direct and sufficient link to its members’ rights. Finding that Article 6 (1) applied to the complaint of the applicant association, the Court also considered it to have victim status.

For the individual applicants, however, the Court found that the dispute they had brought concerning the failure to effectively implement mitigation measures was not directly decisive for their specific rights. They had not shown that there was a sufficiently imminent and certain effect on their individual rights, and this part of their complaint was inadmissible.

For the association, among other things, the Court rejected the domestic courts’ findings that there was still some time to prevent global warming from reaching the critical limit, and noted that they “did not engage seriously or at all with the action brought by the applicant association.” There had accordingly been a violation of Art. 6(1) ECHR, with the Court emphasizing “the key role which domestic courts have played and will play in climate-change litigation”.

The applicants also complained that they had not had access to an effective remedy within the meaning of Article 13 of the Convention. Here the Court noted that Article 6 is a lex specialis to Article 13, the latter being absorbed by the more stringent requirements of Article 6, so there was no separate issue in its regard.

Remedies:
The individual applicants had made requests for just satisfaction for damage under Article 41 ECHR, but the organisation did not, so no award was made. The Court did award costs and expenses to the amount of EUR 80,000.

The applicants had also made an Art. 46 claim for a general measures order. Here the Court noted that it is primarily for the State to choose, under the supervision by the Committee of Ministers, the means to be used domestically to discharge its obligation to comply with the Court’s judgment, as long as the means are compatible with the conclusions and spirit of that judgment. The Court went on to hold that, “having regard to the complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment.” It noted the State’s broad margin of appreciation choose the means to discharge its Convention obligations, and found that the State was thus better placed than the Court to decide which specific measures to take.

Separate opinions:
A separate opinion by Judge Eicke is annexed to this judgment. He disagreed with the majority in several points, especially victim status and the merits of Art. 8. He presented his view as a disagreement of a “fundamental nature” that “goes to the very heart of the role of the Court within the Convention system and, more generally, the role of a court in the context of the unique and unprecedented challenges posed to humanity” because the majority had exceeded “the permissible limits of evolutive interpretation”.

According to Judge Eicke, the majority judgment creates a new right to “effective protection by the State authorities from serious adverse effects on their life, health, well‑being and quality of life arising from the harmful effects and risks caused by climate change”. While acknowledging the seriousness of the threat of climate change, and noting “(a) the absolute need for urgent action and (b) the sheer complexity of the challenges climate change (and the other aspects of the “triple planetary crisis”) pose (geo-)politically, practically, logistically as well as legal,” he argues that the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances (Article 2(2) Paris Agreement) is “difficult to reconcile (if not wholly inconsistent) with the Court’s primary role of ensuring observance of a common minimum standard of protection applicable equally to all Contracting Parties”.

On victim status, Eicke argues that “there was, in fact, no dispute and no uncertainty about the “victim” status of the individual applicants in relation to the Article 6 § 1 complaint in this case; and therefore no need to join that question to the merits”. He sets out and adheres to the previously established case-law on victim status, refusing to join the majority in creating a new approach tailored to climate cases and arguing that exceptions should only be possible where individual applications document victim status are not “ever” likely to be possible. He argues that the judgment creates an actio popularis.

Under Articles 2 and 8, Eicke argues that while it would have been possible to find a procedural violation of Articles 2 or 8, “the substantive violation of Article 8 which the majority seeks to construct from this starting premise has no basis either in the text of the Convention nor in any of the Court’s case-law.” He considers that “the Court would already have achieved much if it had focussed on a violation of Article 6 of the Convention and, at a push, a procedural violation of Article 8 relating in particular to (…) the right of access to court and of access to information”. He accuses the majority of trying “to run before it could walk”, and “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”, and mentions the risk that this judgment will distract from other efforts to tackle climate change.

Implementation measures taken:

N/A

Date of decision:
It was announced on 26 March 2024 that the Grand Chamber would issue its judgment in this case, along with the two other climate cases pending before the Grand Chamber, in a hearing to be held on 9 April 2024 at 10:30 a.m. The judgment and a summary were made available on the Court’s HUDOC database immediately after the hearing.

Type of Forum:
Regional

Status of case:
This case was communicated to the respondent State, Switzerland, on 17 March 2021. On 26 April 2022, a Chamber of the Court relinquished jurisdiction in favour of the Grand Chamber, held a public hearing in this case on 29 March 2023. A webcast of the hearing is available here. On 9 April 2024, the Court issued its judgment in the case.

Suggested case citation:
ECtHR, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, no. 53600/20, judgment (Grand Chamber) of 9 April 2024.

Links:

The Court’s HUDOC database: http://hudoc.echr.coe.int/eng?i=001-209313
More information on the case in English: https://klimaseniorinnen.ch/english/.
All documents on the case: https://klimaseniorinnen.ch/dokumente/, including the application to the Court.

Webcast of the hearing:
To watch a webcast recording of the public hearing in this case, which was held before the Grand Chamber of the European Court of Human Rights on 29 March 2023, click here (available in French and English).

Last updated:
9 April 2024

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Duarte Agostinho et al. v. Austria et al. (“Portuguese Children’s Case”)

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Post date 9 Apr 2024
2 Comments on Duarte Agostinho et al. v. Austria et al. (“Portuguese Children’s Case”)

Summary:
This case was brought by a group of six young people, acting together as the ‘Youth for Climate Justice’, against 33 Council of Europe Member States. Theirs was the first climate case to come before the ECtHR. In their application, the six applicants, aged between 8 and 21 at the time, argued that the 33 respondent States failed to comply with their positive obligations under Articles 2 and 8 of the Convention, read in the light of the commitments made under the 2015 Paris Climate Agreement. They claimed that their right to life (Art. 2 ECHR) was being threatened by the effects of climate change in their home State of Portugal, including through the harms caused by forest fires. Moreover, they claimed that their right to respect for their private and family life under Art. 8 ECHR was being threatened by heatwaves that forced them to spend more time indoors. They also noted their anxiety about their uncertain future, and the fact that, as young people, they stand to experience the worst effects of climate change. They accordingly alleged a violation of Article 14 ECHR (non-discrimination), given the particular impacts of climate change on their generation. According to the applicants, the absence of adequate measures to limit global emissions constitutes, in itself, a breach of the obligations incumbent on States.

This was the first climate application brought before the European Court of Human Rights, and it was brought with the support of the Global Legal Action Network (GLAN). The issues raised here were novel in the Strasbourg context. In addition, in communicating the case, the Court also proprio motu raised an issue under Article 3 ECHR, the prohibition of torture and inhuman and degrading treatment.

On 9 April 2024, the Court declared this case inadmissible on jurisdiction and non-exhaustion grounds.

Domestic proceedings:
None: this case was brought directly to the ECtHR. The applicants submitted that, given the complexity of the case and their limited financial means, as well as the limited prospects of success before domestic instances, requiring them to exhaust the domestic remedies in each of the 33 respondent States would impose an excessive and disproportionate burden on them.

Relinquishment:
On 29 June 2022, the 7-judge Chamber to which the case had originally been allocated relinquished jurisdiction over it in favour of the Court’s 17-judge Grand Chamber. Relinquishment is possible where a case either (a) raises a serious question affecting the interpretation of the Convention or its Protocols, or (b) might lead to a result inconsistent with the Court’s case-law (Rule 72, paras 1-2 of the Rules of Court).

During the course of the proceedings, the complaint against Ukraine was withdrawn by the applicants. The Russian Federation ceased to be a Council of Europe Member State during the course of the proceedings, but this was not an obstacle to considering the application as concerns anything taking place before the end of its membership (on 16 September 2022).

In February 2023, the Court announced that it would hold a public Grand Chamber hearing in this case, along with two other climate cases pending before it (Carême v. France and KlimaSeniorinnen and Others v. Switzerland). It announced that it would adjourn the remaining climate cases pending before it in the meantime. The oral stage in these three cases was staggered: Carême and KlimaSeniorinnen were heard on 29 March 2023, while the hearing in Duarte Agostinho was heard by the same composition of the Grand Chamber on 27 September 2023.

Grand Chamber hearing:
A hearing in this case was held on 27 September 2023. A webcast of the hearing is available here.

During the hearing, the respondent States pooled their submissions to a large extent, with additional arguments from the Netherlands, Portugal, and Turkiye. Third-party interveners also received leave to appear during the oral hearing, namely the Council of Europe Commissioner for Human Rights, Dunja Mijatovic, the EU’s European Commission, and the European Network of National Human Rights Institutions (ENNHRI). The substance of the hearing focused largely on admissibility issues, namely victim status, the (non-)exhaustion of domestic remedies and the extraterritoriality of Convention obligations. The judges also asked a number of questions to the parties before retiring to consider the admissibility and merits of the case.

Admissibility:
From the blog post on the case by Ayyoub (Hazhar) Jamali available on our blog

After months of anticipation, the ECtHR delivered its judgment on 9 April 2024. The Court found the case inadmissible on two key grounds. Firstly, it ruled out jurisdiction regarding non-territorial states, narrowing the scope of accountability in this complex legal landscape to applicants’ home states. Secondly, it dismissed the application against Portugal due to a lack of exhaustion of domestic remedies.

Extraterritorial Jurisdiction
The Court acknowledged its jurisdiction concerning Portugal but denied it concerning other non-territorial states. It recognized that under Article 1 of the Convention, jurisdiction primarily pertains to territorial boundaries, implying that individuals can only claim Convention violations against the territorial state where they reside. However, the Court reiterated that the Convention’s reach can extend beyond national borders in two main forms: when a state exercises effective control over an area (spatial concept of jurisdiction, or jurisdiction ratione loci), and when there is state agent authority or control over individuals (personal concept of jurisdiction, or jurisdiction ratione personae) (para 170). In the present case, as neither of these two criteria appeared applicable, the Court denied jurisdiction within the meaning of Article 1 ECHR.

Furthermore, the Court rejected the applicant’s argument that there are ‘exceptional circumstances’ and ‘special features’ for establishing the respondent states’ extraterritorial jurisdiction over the applicants within the specific context of climate change. It emphasized that determining whether the ECHR applies extraterritorially requires examining whether ‘exceptional circumstances’ exist, indicating that the state concerned is exercising extraterritorial jurisdiction over the applicants. This primarily involves exploring the nature of the link between the applicants and the respondent state.

The Court acknowledged that states have ultimate control over public and private activities within their territories that produce greenhouse gas emissions. It noted their international-law commitments, particularly those outlined in the Paris Agreement, which states have incorporated into their domestic laws and policy documents, as well as their Nationally Determined Contributions (NDC) under the Paris Agreement (para 192). Furthermore, the Court recognized the complex and multi-layered causal relationship between activities within a state’s territory that produce greenhouse gas emissions and their adverse impacts on the rights and well-being of individuals residing outside its borders (para 193). It emphasised that while climate change is a global phenomenon, each state bears responsibility for addressing it. However, the Court concluded that these considerations alone cannot justify creating a novel ground for extraterritorial jurisdiction through judicial interpretation or expanding existing ones (para 195). It emphasised that the ECHR protection system is primarily based on principles of territorial jurisdiction and subsidiarity.

The Court further denied the applicants’ claim that bringing a case against Portugal alone would be ineffective and that they had no other means of holding the respondent states accountable for the impact of climate change on their Convention rights. It distinguished between jurisdiction and responsibility, which constitutes a separate matter to be examined in relation to the merit of the complaint (para 202).

The Court further rejected the applicants’ claim concerning the reach of the Convention outside of national boundaries by their reliance on a test of ‘control over the applicants’ Convention interests’. It reasoned that, according to its established case-law, extraterritorial jurisdiction as conceived under Article 1 ECHR requires control over the person him- or herself rather than the person’s interests as such (para 204-206). It highlighted that, except for specific cases under Article 2 concerning intentional deprivation of life by state agents, there is no precedent for a criterion like ‘control over Convention interests’ as a basis for extraterritorial jurisdiction (paragraph 205). Consequently, the Court argued that adopting such an extension would represent a significant departure from established principles under Article 1.

The Court stated that otherwise, and given the multilateral dimension of climate change, almost anyone adversely affected by climate change anywhere in the world could be brought within the jurisdiction of any Contracting Party for the purposes of Article 1 ECHR in relation to that Party’s actions or omissions to tackle climate change. It also rejected the suggestion that such an extension of jurisdiction could be limited to the Convention’s legal space. It reasoned that, given the nature of climate change, including its causes and effects, an extension of extraterritorial jurisdiction by reference to that criterion would be artificial and difficult to justify (para 206).

Moreover, the Court acknowledged the significance of developments in international law, particularly with regards to the interpretations provided by bodies such as the Inter-American Court and the Committee on the Rights of the Child (CRC). It recognised the relevance of these interpretations in shaping the understanding of jurisdiction within the context of human rights treaties. However, the Court noted that these bodies had adopted distinct notions of jurisdiction, which had not been recognised in its own case-law. While the Court considered the insights provided by these international instruments and bodies, it concluded that they did not provide sufficient grounds for extending the extraterritorial jurisdiction of respondent states under the Convention, particularly as proposed by the applicants (para 209-210). Therefore, while remaining attentive to legal developments and global responses to issues such as climate change, the Court found no basis within the Convention for expanding extraterritorial jurisdiction as advocated by the applicants.

In conclusion, the Court found no grounds in the Convention for extending the respondent states’ extraterritorial jurisdiction through judicial interpretation.

Exhaustion of Domestic Remedies
Regarding Portugal, the applicants’ home state, there was no extraterritoriality issue. Here the Court examined whether effective remedies existed within the Portuguese legal system that the applicants were required to use under the exhaustion of domestic remedies rule. Despite the applicants’ argument that broad constitutional provisions alone could not provide effective and certain remedies, the Court disagreed, highlighting various remedies available in Portugal. These included, for example, constitutional recognition of the right to a healthy environment, actio popularis claims for environmental protection, etc (para 217-223). The Court emphasised the importance of affording domestic courts the opportunity to address issues before having recourse to international remedies. Consequently, the complaint against Portugal was found inadmissible. The Court also rejected the suggestion that it should rule on the issue of climate change before domestic courts had the opportunity to do so, reaffirming the principle of subsidiarity and the role of domestic jurisdictions in adjudicating such matters (para 228).

Victim Status
The Court found it challenging to determine whether the applicants met the criteria for victim status as set out on the same day in the KlimaSeniorinnen judgment against Switzerland. The lack of clarity is attributed, in part, to the applicants’ failure to exhaust domestic remedies. The Court found that, in any event, the application was inadmissible for the reasons previously outlined. Therefore, the Court declined to examine further whether the applicants could claim victim status (para 229-230).

Date:
9 April 2024

Type of Forum:
Regional

Status of case:
Communicated by the Court on 30 November 2020. Relinquished to the Grand Chamber on 29 June 2022. Grand Chamber hearing held on 27 September 2023. Decision announced at a Grand Chamber hearing held on 9 April 2024, along with rulings in the two other climate cases pending before the Grand Chamber.

Suggested case citation:
ECtHR, Duarte Agostinho and Others v. Portugal and 32 Other Member States, no. 39371/20, decision (Grand Chamber) of 9 April 2024.

Links:
For more information on this case, see the following links.

For more background on the case and profiles on the applicants, click here: https://youth4climatejustice.org/.
For all of the case documents, including the submissions from the respondent States and the third-party interveners, see here.
For analyses of the Grand Chamber hearing, see this post on our own blog by Viktoriya Gurash, or this post on Verfassungsblog by Corina Heri.
For the judgment, click here.
For the Court’s Q&A on the three climate cases, click here.

Last updated:
9 April 2024

Tags European Court of Human Rights

2023 Adaptation Climate activists and human rights defenders Domestic court European Convention on Human Rights Private and family life Right to life Sea-level rise The Netherlands

Greenpeace Netherlands v. State of the Netherlands (Bonaire)

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Post date 28 Nov 2023
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Summary:
On 28 January 2026, the Commerce team of the Hague District Court issued a judgment in a case brought by Greenpeace and seven residents of the Caribbean island of Bonaire against the Dutch government. In examining the case, which concerned both alleged mitigation and adaptation failures, the Court found several violations of the human rights guaranteed in the European Convention on Human Rights (ECHR). In particular, and extensively discussing the European Court of Human Rights’ (ECtHR) KlimaSeniorinnen judgment of 9 April 2024, the Court found that the Dutch State had failed to fulfil its positive obligations towards the inhabitants of Bonaire under Article 8 ECHR, because the authorities’ mitigation and adaptation measures taken as a whole in relation to them did not meet the Netherlands’ obligations under the international climate regime (the UNFCCC and the Paris Agreement, discussing also the Kyoto Protocol). Additionally, given that the Dutch State took mitigation and adaptation measures for the inhabitants of Bonaire much later and less systematically than for the inhabitants of the European Netherlands, it found violations of the ECHR’s non-discrimination norms.

Background to the case:
On 11 May 2023, Greenpeace and seven residents of the Caribbean island of Bonaire sent a pre-litigation letter (Dutch: sommatie) to the office of the Prime Minister of the Netherlands. The letter claimed that the Netherlands does not sufficiently protect the authors from climate change and thereby violates their human rights. Since 2010, Bonaire has been a special municipality of the Netherlands and part of the Caribbean Netherlands. In the pre-litigation letter, the plaintiffs claim that the duties of care arising from Articles 2 and 8 of the European Convention on Human Rights (ECHR), the right to life and the right to family life, have been breached. The inaction of the Netherlands in sufficiently addressing climate change, they argue, violates these human rights. Therefore, they made the following demands:

The Netherlands must implement the necessary measures to protect Bonaire from the consequences of climate change.
The State shall develop and implement a policy which guarantees a 100% reduction of Dutch emission of all greenhouse gases in 2030 when compared to 1990 levels.
Lastly, as part of and to realize the demands above, the State must implement all necessary measures to ensure that, in January 2040 at the latest, the joint volume of the national emission of all greenhouse gases will have been reduced by 100% when compared to 1990 emissions levels.

With the pre-litigation letter to the Prime Minister, the plaintiffs asked for negotiations to find a mutually agreeable decision on their demands. Given the lack of successful negotiations, the plaintiffs initiated proceedings under the Dutch Act on Redress of Mass Damages in Collective Action (WAMCA, alternatively translated as the Settling of Large-scale Losses or Damage (Class Actions) Act), which restructured the Dutch legal system’s approach to mass litigation and collective redress since coming into force in 2020.

Admissibility:
On 25 September 2024, Greenpeace announced that a court in the Hague had ruled that its action on behalf of the public interest of the people of Bonaire was admissible. A hearing was set to follow in 2025.

Judgment of 28 January 2026:
The District Court of Hague (Court) found that individuals residing in Bonaire were owed positive obligations arising from the application of Article 8 of the ECHR in the context of climate-related risks as identified in the judgment in Verein KlimaSeniorinnen et al. v. Switzerland. It further found that the non-discrimination norms found in Article 14 of the ECHR and Article 1 of Protocol 12 to the ECHR were applicable to the case in light of the difference in treatment of the residents of Bonaire arising out of the lack of a climate adaptation applicable to Bonaire, when in contrast, a coherent and integrated climate adaptation policy was being implemented for the European Netherlands since 2016.

In its reasoning, it assessed the Netherlands’ and the EU’s climate mitigation laws as falling short of the minimum requirements of ambition and stringency, which it derived from decisions of the Conference of Parties (COP) to the UNFCCC read with provisions of the UNFCCC and the Paris Agreement. It negatively appraised the Netherlands’ reliance on a ‘grandfathering’ approach, which it found to be ‘controversial’ although not prohibited. These shortcomings informed its negative ‘overall assessment’ of the Netherlands’ climate mitigation framework for compliance with Article 8 of the ECHR, as interpreted by the European Court of Human Rights in the Verein KlimaSeniorinnen judgment. Next, regarding the positive obligation to effectively implement climate mitigation measures, it held that the State’s admission that the 2030 emissions reduction was ‘highly unlikely’ to be met as a decisive factor in determining a breach of that obligation.

Regarding adaptation measures, the Court found that although initial steps have been taken (for instance, the setting up of a local project for the development of an adaptation plan) the fact that no concrete timeline for the implementation of adaptation measures exists despite the known climate risks (especially that of partial submergence significant parts of land territory by 2050), and that the State has carried out insufficient scientific research and committed no financial resources for certain adaptation-related policies in Bonaire were assessed negatively. On this basis the Court concluded that the State had breached its positive obligation to sufficiently and in a timely manner, take appropriate adaptation measures in Bonaire. Finally, it found that the State did not fulfil its obligations to provide relevant environmental information to the residents of Bonaire and allow for their participation in climate-related decision making at least until 2023.

The Court found that the State did not provide an adequate justification of the unequal treatment of Bonaire as it related to its inclusion within the Netherland’s overall climate adaptation policy and the commitment of resources for the implementation of adaptation measures. It thus found that the State had breached its obligation of non-discrimination under Article 14 of the ECHR and Article 1 of Protocol 12 to the ECHR.

Order:
Based on the above, the Court partially allowed the plaintiffs’ claim for specific performance against the state and ordered the State to ensure incorporate ‘absolute’ emissions reduction targets compatible with the minimum requirements arising out of COP decisions and the Paris Agreement into its national climate legislation and provide insight into Netherlands’ ‘remaining emission allowance’; to draft and implement an appropriate national adaptation plan that also includes Bonaire; and pay legal costs to the plaintiffs. It rejected the plaintiffs’ requests that the Court order the State to adopt specific emissions reduction targets, and a binding national carbon budget determined in accordance with its fair share of the global carbon budget for 1.5˚C.

In doing so, it held that the State has considerable policy-making discretion in choosing its measures to comply with its international obligations under the UN climate treaties, meaning that the Court ordered the State to take effective measures to fulfil its UN obligations in a timely manner, without issuing any concrete orders as to the measures to be taken, deferring to the other branches of government and the separation of powers in this regard (trias politica).

Further reading:

English translation of the judgment of 28 January 2025:

ECLI_NL_RBDHA_2026_1347 Download

Judgment of 28 January 2025 (Dutch):

ECLI_NL_RBDHA_2026_1344 Download

Pre-litigation letter of 11 May 2023:

pre-litigation-letter-Bonaire Download

Suggested citation:
The Hague District Court, Greenpeace Netherlands v. State of the Netherlands (Bonaire), Judgment of 28 January 2026, ECLI:NL:RBDHA:2026:1347.

Date last updated:
29 January 2026.

Tags Domestic court proceedings

Austria Domestic court Emissions reductions/mitigation European Convention on Human Rights Farming Fossil fuel extraction Imminent risk Margin of appreciation Right to life

Jasansky and Others v. Austria

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Post date 22 Nov 2023
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Summary:
On 10 November 2023, it was reported that a climate-related application had been filed with the European Court of Human Rights (ECtHR) against Austria. The case is brought on behalf of four Austrian nationals — Monika Jasansky, Peter Fliegenschnee, Friedrich Pichler, and Klara Butz –along with the NGO Global 2000.

The application contests Austrian inaction in terms of mitigation measures, and argues that the individual applicants — who have been described, respectively, as an organic farmer, a retiree, a mayor, and a climate activist — have been adversely affected by extreme weather events aggravated by climate change, namely droughts, heatwaves and mudslides. The applicants allege a violation of the State’s positive obligation to protect the right to life in Article 2 of the European Convention on Human Rights.

Domestic proceedings:
The applicants contest a finding from the Austrian Constitutional Court, made in July 2023, which recognized the state’s duty to actively take effective measures to protect life and health as well as to protect private life and property, but accorded the government a wide margin of discretion and found that fundamental and human rights do not allow for claims to a specific measure (here the applicants petitioned the domestic courts to order legislators to set binding expiry dates for the permissibility of the sale of fossil fuels in 2040). Rather, the domestic court found that the legislature must be allowed to choose between the various available measures to meet the State’s protective obligations.

Suggested citation:
European Court of Human Rights, Jasansky and Others v. Austria, pending case, filed November 2023.

Tags Domestic court proceedings

Adaptation Disability and health-related inequality Domestic court European Convention on Human Rights Imminent risk Margin of appreciation Non-discrimination Paris Agreement Private and family life Right to housing Right to life Right to property Sea-level rise The United Kingdom Vulnerability

R (Friends of the Earth Ltd, Kevin Jordan and Doug Paulley) v. Secretary of State for Environment, Road & Rural Affairs

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Post date 10 Nov 2023
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Summary:
On 17 October 2023, the reportedly first-ever adaptation case in the United Kingdom was brought against the government before the UK’s High Court of Justice. The plaintiffs in this case included Kevin Jordan, a homeowner from Norfolk (UK), who alleged that his home was acutely threatened by coastal erosion, with the road leading up to it having already collapsed into the sea. Jordan brought his case together with the NGO ‘Friends of the Earth’ and disability rights activist Doug Paulley, a care home resident who alleged that his health conditions were being exacerbated by climate-aggravated heatwaves. Together, the plaintiffs challenged the UK’s National Adaptation Programme (NAP). Domestic law requires the production of new NAP every five years, and the most recent version — NAP3 — was published in July 2023. The claimants argued that NAP3 is deficient for the following reasons:

Failure to set sufficiently specific objectives;
Failure to conduct and publish information on the assessment of the risks involved in implementing NAP3;
Failure to consider the unequal impacts of NAP3 on protected groups (on the grounds of age, race and disability); and
Violation of Articles 2, 8, 14 and Article 1 of Protocol 1 of the European Convention on Human Rights (the rights to life, respect for private and family life, non-discrimination and property, respectively), as enshrined in the Human Rights Act 1998.

In regards to the alleged human rights violations, the plaintiffs invoked:

a. The well-established but urgent need for long-term policy and protected funding to enable care-homes (and similar healthcare settings) to adapt to excessive heat. This remains absent in NAP3 despite the increasing frequency and severity of annual heatwaves.
b. There being no new policy to manage overheating risks in existing health and social care buildings, such that they are properly refurbished as soon as reasonably practicable.
c. A lack of a commitment to provide adequate resources to support communities at imminent risk of being lost to erosion and flooding, including as to the established mental health and emotional wellbeing impacts for those affected.
d. Gaps, inconsistency and uncertainty in the potential allocation of funding provided for a range of areas, in particular for those communities that must (or are likely to have to) relocate and have their homes demolished.
e. There being no insurance or compensation schemes available for the worst affected by coastal erosion and who lose their homes.
f. No evidence of their being an express consideration, or reasoned analysis, of what a fair balance to strike would be between doing more to safeguard the human rights of vulnerable people and the interests of wider society.
https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2023/20231101_21608_complaint.pdf (emphasis added)

High Court Judgment:
In a judgment issued on 25 October 2024, the High Court of Justice for England and Wales rejected the applicants’ claims. Justice Chamberlain, in his judgment, found that there had been no error of law in this case. His ruling extensively considered the 2024 Verein KlimaSeniorinnen judgment of the European Court of Human Rights, but found that “[u]nlike in the field of mitigation, and subject to the arguments about the effect of the ECHR as interpreted in [Verein KlimaSeniorinnen] (…), there is no internationally binding quantified standard governing how States must adapt to climate change. It would be very difficult to devise any such standard because the risks of climate change differ widely from state to state (and indeed within states). In some places, the main risk may be from flooding, in other places extreme heat or drought. Elsewhere, there may be a combination of risks, which all have to be addressed but some of which are more urgent than others. Moreover, the profile of risks, and the priorities attached to addressing them, may change over time” (para. 92 of the High Court ruling).

Assessing the Verein KlimaSeniorinnen judgment overall, Judge Chamberlain found that while this judgment “represents a significant development of the case law in relation to climate change, not only as regards the standing of associations to bring claims before the Strasbourg Court, but also as regards the scope and extent of the positive obligations of the State and the margin of appreciation to be accorded when assessing whether those obligations have been discharged”, “the significance of the judgment for the UK’s climate change framework should not be overstated.” The Judge noted that KlimaSeniorinnen focused heavily on lacunae in domestic legislation and the targets set out in the Paris Agreement, whereas the law of the United Kingdom does not feature similar lacunae in mitigation target-setting.

Lawyers for the government in this case had sought to dismiss the findings of the ECtHR, as made in para. 552 of KlimaSeniorinnen, as an obiter dictum. This paragraph of the Strasbourg Court’s judgment reads as follows:

Furthermore, effective protection of the rights of individuals from serious adverse effects on their life, health, well-being and quality of life requires that the above-noted mitigation measures be supplemented by adaptation measures aimed at alleviating the most severe or imminent consequences of climate change, taking into account any relevant particular needs for protection. Such adaptation measures must be put in place and effectively applied in accordance with the best available evidence (…) and consistent with the general structure of the State’s positive obligations in this context (…).

Judge Chamberlain disagreed with the government as concerns the nature of this finding, noting the dangers of applying “common law concepts [the idea of obiter dicta] to the judgment of a court most of whose members come from different legal traditions.” Still, Judge Chamberlain noted that the Strasbourg Court’s findings were of a general nature (para. 101). He found that KlimaSeniorinnen “appears to indicate that the positive obligation imposed by Articles 2 and 8 [ECHR] extends to adopting and effectively implementing ‘adaptation measures aimed at alleviating the most severe or imminent consequences of climate change, taking into account any relevant particular needs for protection'”, stemming from the State’s underlying regulatory obligation. He notes that “[w]hat that means in the context of adaptation measures, however, is far from clear” (para. 103), given that adaptation measures were not central to the KlimaSeniorinnen case, and that the international legal framework in this regard is less well-developed than for mitigation measures. He went on to anticipate future rulings from the ECtHR, considering it

(…) likely that, if the Strasbourg Court had in a future case to apply the reasoning in [Verein KlimaSeniorinnen] to the adaptation context, it would say that:
(a) the narrow margin of appreciation in relation to the mitigation aims was justified by reference to the internationally agreed objective of carbon neutrality by 2050 and the impact of one State’s default on other States;
(b) neither of these features applies in the field of adaptation; and
(c) accordingly, in the field of adaptation, States are to be accorded a wide margin of appreciation in setting the relevant objectives and a wider margin still in setting out the proposals and policies for meeting them (by analogy with the margin accorded to the State in setting the means for achieving the mitigation objectives).

Accordingly, he found that the current adaptation framework in the United Kingdom appears to “fall comfortably within the UK’s margin of appreciation under Articles 2 and 8 ECHR” and is not “contrary to any clear and consistent line of authority from the Strasbourg Court”. On this basis, he found that there was neither an error of law nor an incompatibility with human rights law evident in this case.

Friends-of-the-Earth-v-Secretary-of-State-for-Environment-Food-and-Rural-Affairs Download

Application to the European Court of Human Rights:
In July 2025, Friends of the Earth announced that the case had been filed as an application before the European Court of Human Rights.

More information:
For reporting on the case, see coverage from the Guardian and the Independent.

Suggested citation:
High Court of Justice for England and Wales, R (Friends of the Earth Ltd, Kevin Jordan and Doug Paulley) v. Secretary of State for Environment, Road & Rural Affairs, [2024] EWHC 2707 (Admin), 25 October 2024.

Last updated:
13 November 2024

Tags Domestic court proceedings

Climate activists and human rights defenders Domestic court Emissions reductions/mitigation European Convention on Human Rights Non-discrimination Paris Agreement Right to a healthy environment Right to culture Right to education Right to health Right to life Right to subsistence/food Right to water Self-determination Turkey Uncategorized

A.S. & S.A. & E.N.B v. Presidency of Türkiye & The Ministry of Environment, Urbanization and Climate Change

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Post date 10 Nov 2023
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Summary:

On 13 April 2023, Türkiye submitted its updated Nationally Determined Contribution (NDC) to the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC). The NDC states that Türkiye aims to reduce its CO2 emissions by 41% by 2030 compared to the business-as-usual scenario with 2012 as its base year, and plans on peaking emissions by 2038 at the latest. This would increase CO2 emissions by 30% until 2030. Due to this further increase in CO2 emissions, climate activists Atlas Sarrafoğlu, Ela Naz Birdal and Seren Anaçoğlu filed a lawsuit against President Recep Tayyip Erdoğan and the Ministry of Environment, Urbanization and Climate Change before the Council of State (the highest administrative court in Türkiye) on 8 May 2023.

The plaintiffs claimed that Türkiye’s NDC is inadequate under the Paris Agreement and that the resulting increase in CO2 emissions violates their human rights under the country’s constitution, the United Nations Convention on the Rights of the Child, and the European Convention on Human Rights. The rights they claimed had been violated included: the right to life, the right to intergenerational equality, the right to the protection of one’s private life, the right to health, cultural rights, the right to develop one’s material and spiritual existence, the right to live in a healthy and balanced environment, the right to education, the right to work, and the right to healthy food and water. Because of the alleged inadequacy of the NDC under the Paris Agreement, they demanded its annulment and the creation of a more ambitious commitment.

Status of Case:

On 22 December 2023, The Wave reported that the Council of State had dismissed this case without examining it, arguing that the NDC did not constitute an administrative act and was accordingly not open to judicial annulment.

Further reading:

News Article by PAMACC: https://www.pamacc.org/index.php/k2-listing/item/1440-president-recep-erdogan-of-turkey-sued-for-slow-implementiion-of-the-paris-agreement

News Article by the Turkish human rights press agency “Bianet”: https://bianet.org/haber/young-climate-activists-file-lawsuit-against-erdogan-over-inadequate-emission-goals-278474

Date last updated:

22 December 2023.

Tags Domestic court proceedings

Domestic court Emissions reductions/mitigation European Convention on Human Rights Paris Agreement Private and family life Right to a healthy environment Right to health Right to life Right to property Romania

Declic et al. v. The Romanian Government

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Post date 7 Nov 2023
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Summary:

In January 2023, Declic (a prominent Romanian NGO) alongside a number of individuals initiated Romania’s first-ever climate lawsuit against the government, specifically targeting Prime Minister Nicoale Ciucă and the Ministers of Environment and Energy. The lawsuit alleges that the government has failed to implement adequate measures to address and mitigate the foreseeable risks associated with the climate crisis, violating its legal obligations under the Paris Agreement. The plaintiffs are seeking fines for each day of government inaction and demanding a court order mandating immediate and comprehensive actions to reduce greenhouse gas emissions by 55% by 2030 compared to 1990 levels, achieve climate neutrality by 2050, and increase the share of renewable energy in final energy consumption to 45% while improving energy efficiency by 13% by 2030.

Claim:

The plaintiffs assert that the government is in breach of its duty of care by applying insufficient greenhouse gas reduction targets for 2030, falling well below the EU-wide reduction goal of 55% below 1990 levels. They argue that the absence of annual carbon budgets and mechanisms for monitoring and reporting progress towards climate goals hinders the meaningful assessment of the government’s measures to limit global warming to 1.5 degrees Celsius. Furthermore, the lawsuit questions whether the measures taken by the government are sufficient to prevent climate change from becoming dangerous to humanity and the environment, considering the discretionary power of the government. The plaintiffs also challenge whether the government’s climate mitigation and adaptation measures meet objective standards and pass reasonableness tests set by international bodies like the UN Committee on Economic, Social and Cultural Rights. Finally, the court is called upon to determine whether the government’s measures are compatible with the rights and freedoms guaranteed by the Romanian Constitution and the European Convention on Human Rights, including the right to life, privacy, property, health, and a healthy and ecologic environment.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Status of the case:

The case is currently pending before the Cluj Court of Appeal of Romania.

Suggested citation:

Declic et al. v. The Romanian Government (Cluj Court of Appeal, Romania, filed January 2023).

Last updated:

03 November 2023.

Tags Domestic court proceedings

Children and young people Climate activists and human rights defenders Domestic court European Convention on Human Rights Fossil fuel extraction Private and family life Right to life Standing/admissibility Sweden Uncategorized

PUSH Sweden, Nature and Youth Sweden and Others v. Government of Sweden (Magnolia Case)

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Post date 17 Aug 2023
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Summary:
In June 2016, the Swedish government approved the request from state-owned energy company Vattenfall to sell its lignite assets to the German subsidiary of a Czech holding company. The deal included some of Germany’s largest coal mines, whose annual emissions total around 60 million tonnes of greenhouse gases. In September 2016, two youth environmental NGOs, PUSH Sweden and Nature and Youth Sweden (Fältbiologerna), together with 176 individuals, filed a claim against the Government of Sweden. According to the Plaintiffs, the sale of the lignite assets would enable the expanded exploitation of lignite coal assets and contribute to an increase in the emission of greenhouse gases into the atmosphere. The sale would give the Czech holding company the opportunity to expand the lignite operations, which in turn would lead to increased emissions which, although the emissions were generated in Germany, would affect Swedish territory.

Claims made:
The Plainiffs argued that the State’s sale of coal-fired power plants violated the sustainability statement in Chapter 1, Section 2, paragraph 3 of the Swedish Constitution, as well as the right to life and the right to respect for private and family life under Articles 2 and 8 of the European Convention on Human Rights. They requested the Stockholm District Court to find that the Swedish State has breached its duty of care with the sale of Vattenfall’s lignite operations, and that the sale is illegal.

Judgement:
The Stockholm District Court found that the Plaintiffs had not suffered any damage from the Swedish government’s decisions to permit Vattenfall to sell its lignite assets. It held that the mere risk of damage cannot be a basis for liability for damages and that the ECHR did not apply because the Plaintiffs could not prove damage correlating to the sale of Vattenfall’s lignite assets. Therefore, the Stockholm District Court dismissed the Plaintiffs’ requests.

Date filed:
15 September 2016

Date of Judgement:
30 June 2017

More information:
An unofficial translation of the application is available via Climate Case Chart.

Suggested citation:
Stockholm District Court, PUSH Sweden, Nature and Youth Sweden and Others v. Government of Sweden, case T 11594-16, Judgment of 30 June 2017.

Tags Domestic court proceedings

2022 Children and young people Domestic court Emissions reductions/mitigation European Convention on Human Rights Non-discrimination Private and family life Right to life Right to property Sweden Uncategorized

Anton Foley and others v. Sweden (Aurora Case)

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Post date 17 Aug 2023
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Summary:
On 25 November 2022, a group of over 600 young people born between 1996 and 2015 filed a class action lawsuit against the Swedish State in the Nacka District Court (Nacka tingsrätt). According to the Plaintiffs, the Swedish State is failing to do its fair share to reduce the greenhouse gas (GHG) concentration in the atmosphere to keep warming below 1.5°C as compared to pre-industrial levels, by not undertaking immediate and adequate procedural and substantive measures to continuously reduce GHG emissions and enhance GHG sinks, thus failing to adequately protect the plaintiffs from adverse impacts of anthropogenic climate change. Therefore, the Plaintiffs claim that this constitutes a violation of their rights to life, private and family life, and non-discrimination under Articles 2, 8, and 14 of the ECHR, and their right to property under Article 1, Protocol 1 of the ECHR.

The Plaintiffs requested the Nacka District Court to order the Swedish State to do its fair share in reducing GHG emissions to keep global warming below 1.5°C. They argued that the Swedish State should be required to take sufficient and adequate measures to ensure that emissions are continuously reduced and that GHG are absorbed through natural carbon sinks to limit the risk of adverse impacts of climate change on them.

On 31 March 2023, the Nacka District Court invited the Swedish State to file its response to the Plaintiffs’ application. On 21 June 2023, the Swedish State filed its response with the Nacka District Court, requesting that the case be dismissed. The Court then invited the Plaintiffs to submit their comments on the request for dismissal no later than 28 August 2023.

Inadmissibility ruling:
The Nacka District Court referred a question to the Swedish Supreme Court concerning whether such a case against the state could be brought before a court. On 19 February 2025, the Supreme Court ruled that the group members’ claim, as formulated in the district court, could not be admissible. In doing so, it engaged with the KlimaSeniorinnen ruling of the European Court of Human Rights, summarizing the high victim status standard set in that case and its emphasis of cases brought by associations. It also noted that the ECtHR established that it would not tolerate actio popularis cases. The Supreme Court found that the case before it was (a) brought not by an association but by individuals who did not argue that they were particularly vulnerable to the impacts of climate change as per the KlimaSeniorinnen victim status test, and (b) sought an order on the State to take specific measures, which raised issues of the separation of powers and the margin of appreciation of the State authorities. However, the Court left open the admissibility of differently-argued cases, for example cases brought by an association or requesting only a declaration that the state had violated the ECHR by failing to take sufficient measures to counteract the effects of climate change.

Date filed:
25 November 2022

Status of case:

Plaintiffs withdrew the case on 30 June 2025, and the environmental association Aurora initiated a new climate lawsuit before the Nacka District Court on 06 February 2026. The database entry on Aurora v. Sweden (Aurora Case II) is available here.

The plaintiffs’ appeal against an order for payment of legal costs is pending before the Supreme Court.

More information:
The Plaintiffs’ summons application is available via the Climate Case Chart.

The ruling of the Supreme Court is available here.

A press release concerning the inadmissibility decision (in Swedish) is available here.

Suggested citation:

Supreme Court of Sweden, Anton Foley and others v. Sweden, Ö 7177-23, 19 February 2025.

Last updated:
21 February 2025

Tags Domestic court proceedings

Children and young people Climate activists and human rights defenders Domestic court Emissions reductions/mitigation European Convention on Human Rights Indigenous peoples rights Indigenous peoples' rights Non-discrimination Paris Agreement Private and family life Prohibition of torture Right to a healthy environment Right to culture Right to health Right to housing Right to life Right to property Russian Federation

Ecodefense and Others v. Russia

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Post date 4 Aug 2023
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Summary:
In 2022, the NGOs Ecodefense and Moscow Helsinki Group, together with a group of individual plaintiffs representing Fridays for Future and the Sami and Itelmen indigenous people, brought an administrative action before the Supreme Court of the Russian Federation seeking to declare the Russian Federation’s climate legislation invalid. They argue that the current measures are not in line with the temperature targets under the Paris Agreement, noting that Russia is currently the fourth biggest global carbon emitter. They submit that Russia is accordingly in violation of its own constitution, as well as of the European Convention on Human Rights (ECHR). Russia ceased to be a party to the ECHR on 16 September 2022.

Key arguments:
The plaintiffs invoke a number of human and constitutional rights, arguing that their right to life, to health care, to a healthy environment (which is recognized by the Russian Constitution), to the protection of land and other natural resources as the basis of the life and activities of indigenous peoples, and to the protection of young people and future generations (based on the principle of equality). They also invoke the prohibition of torture and the right to home, private life and property as well as the prohibition of discrimination and the right to an adequate standard of living.

On this basis, the plaintiffs argue that the existing Russian climate policy measures are not only incompatible with domestic law, but that they also violate Russia’s international legal obligations under the UNFCCC, the Paris Agreement, the UN Covenant on Civil and Political Rights and on Economic, Social and Cultural Rights, and the ECHR. The plaintiffs also contest the emphasis on carbon absorption (and not GHG emissions reductions) in the current Russian strategy, which they argue does not suffice to do Russia’s “fair share” to keep global warming below the Paris Agreement’s targets of 1.5 or 2 degrees Celsius.

Status:
Pending

Further information:
A summary of the plaintiff’s submissions in this case is available via ClimateCaseChart.com.

Suggested citation:
Supreme Court of the Russian Federation, Ecodefense and Others v. Russia, pending case, submitted on 11 September 2022.

Last updated:
4 August 2023

Tags Domestic court proceedings