ESG Disputes Reporter

European Court of Human Rights finds that Switzerland has breached the ECHR by climate inaction


In a landmark judgment, the Grand Chamber of the European Court of Human Rights ("ECtHR") ruled that Switzerland has breached its obligations under the European Convention on Human Rights ("ECHR") by failing to sufficiently mitigate the effects of climate change.

This is the first time that a supranational court has ruled that failure to mitigate the effects of climate change constitutes a violation of human rights and the decision sets a precedent that will have repercussions well beyond the 46 States Parties to the ECHR.

The ECtHR upheld a lawsuit filed by the Verein KlimaSeniorinnen Schweiz, an association of women aged over 64 who claim to be particularly affected by the effects of global warming, finding that Switzerland has violated the right to respect for private and family life (Article 8 ECHR).

The ECtHR found that Article 8 ECHR encompasses a right to effective protection from the serious adverse effects of climate change on lives, health, well-being and quality of life. States have an obligation to implement the necessary laws and measures to prevent an increase in greenhouse gas emissions as well as an increase in the global average temperature above a level that would cause serious and irreversible harmful consequences.

The ECtHR held that Switzerland has failed to comply with its duties (positive obligations) under Article 8 ECHR. In particular, the ECtHR found that there had been critical gaps in implementing an adequate domestic regulatory framework, including by failing to adequately quantify national greenhouse gas emissions limitations and to meet past greenhouse gas emissions reduction targets.

The KlimaSeniorinnen case is a significant milestone in the growing landscape of climate litigation actions seeking to compel States, on the basis of human rights considerations, to take more effective action on climate change.

In 2019, the Dutch Supreme Court in the Urgenda case upheld a ruling of the lower courts that the Dutch government was obliged to urgently reduce greenhouse gas emissions by at least 25% by 2020. The Dutch Supreme Court held that Article 2 ECHR (right to life) and Article 8 ECHR (right to respect for private and family life) apply to environmental hazards that threaten the population as a whole and that Article 13 ECHR (right to an effective remedy) requires national courts to provide an effective remedy. Germany, Belgium, France, Australia, the United Kingdom and other States are facing the same type of climate actions in their national courts.

At the supranational level, a similar discussion is currently taking place in the context of the Organization of American States ("OAS"). Colombia and Chile have asked the Inter-American Court of Human Rights to issue an advisory opinion on climate change and human rights, in particular to define the scope of the States' obligations in light of the precautionary principle, the duty to ensure the right to a clean environment (Article 11 Protocol of San Salvador) and the scientific consensus on global warming as set out in the reports of the Intergovernmental Panel on Climate Change ("IPCC").

The International Court of Justice ("ICJ"), too, is working on an advisory opinion on the obligations of States with respect to climate change, at the request of the UN General Assembly.

Looking ahead, it remains to be seen whether the human rights dimension of climate change will have an impact on how States tackle the issue. In the KlimaSeniorinnen case, the ECtHR refrained from imposing specific measures on Switzerland to comply with the judgment, citing the complexity and nature of the issues involved. The ECtHR left the assessment of such measures to the discretion of the Swiss authorities.

One potential outcome is that the Swiss authorities may re-evaluate and possibly set more ambitious greenhouse gas emission reduction targets for 2030.

If you have any questions about this topic, your usual Schellenberg Wittmer contact or any of our lawyers in our Dispute Resolution team will be happy to assist you.


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