KlimaSeniorinnen: how did the ECtHR define States’ climate policy obligations?

Charlotte Dierickx-Visschers is a student researcher and LLM student at the University of Antwerp. She mainly focuses on sustainable development, environmental justice and fundamental rights law. 

On the 9th of April, the European Court of Human Rights (ECtHR) delivered three long-awaited rulings involving States’ obligations to mitigate climate change. Whereas two cases were declared inadmissible, the Court affirmed a violation of the right to life and the right to respect for private and family in the case of the Swiss KlimaSeniorinnen. This blog post briefly explains the three cases (1) with a particular focus on the Court’s evaluation of the Swiss climate policy under Article 8 of the Convention (2). Afterwards, it discusses how the Court’s cautious, procedurally oriented approach to judicial review in the climate context does not come as a surprise (3-4) and how KlimaSeniorinnen might influence the wider climate litigation domain (5). 

1. The admissibility rulings in Duarte Agostinho, Carême and KlimaSeniorinnen 

In the past few years, multiple climate change cases have been filed at the ECtHR, ranging from ambitious complaints against the generally lacking climate policy  of thirty-three States to more targeted claims against oil exploration licenses. To ensure a coherent approach in this set of climate cases, many of them had been adjourned until the Grand Chamber (GC) had decided on three milestone cases: Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, Carême v. France and Duarte Agostinho and Others v. Portugal and 32 Other States. Approximately three-and-a-half years after their lodgment, the Grand Chamber delivered its judgements. 

In the case of Duarte Agostinho, a group of Portuguese youths asserted that 33 States had fallen short of enacting appropriate climate policies. They argued that the global warming effects that resulted from their inaction, including storms, heat waves and forest fires, jeopardized their right to life, right to respect for private and family life, the prohibition of discrimination (given that their generation was especially affected by climate change) and the prohibition of ill-treatment. Yet, their case rested on several claims that were irreconcilable with the European Convention on Human Rights (ECHR) and the Court’s previous case law, which arguably made the case “inevitably bound to fail”. First, they asserted extraterritorial human rights violations by the other 32 States, arguing that their lack of climate policy had affected their human rights within Portugal. Unlike the UN Committee on the Rights of the Child, the Court appeared unwilling to expand its interpretation of Article 1 of the Convention, which limits the scope of a State’s human rights obligations to its jurisdiction, from situations where countries have “boots on the ground” in another country, to extraterritorial effects of climate policies. Second, the complaint against Portugal was declared inadmissible, since the plaintiffs had not exhausted domestic remedies within the country as required by Article 35(1) ECHR. The Court dismissed the plaintiff’s argument that there were no effective remedies available in the respondent States and declared the complaint inadmissible. 

In Carême, the former mayor of a French coastal municipality alleged that France had not taken sufficient climate change action to protect his right to life and right to respect for private and family life and home. Since the applicant had moved to Brussels at the time of the proceedings, he had lost victim status according to the Court and was, therefore, not entitled to bring a human rights claim based on extreme weather events in his former municipality. In consequence, this led, unsurprisingly, to an inadmissibility ruling as well. 

On the opposite, the Court declared the KlimaSeniorinnen case admissible and well-founded. In this case, a Swiss association of “Climate Grandmothers” and four individual older Swiss women alleged that Switzerland had jeopardized their human rights through its insufficient climate policy and action. In its remarkable admissibility ruling, the Court denied standing to the individual women under its newly developed victim status standard because they were not considered to be “personally and directly affected by governmental action or inaction” (§487, 535). At the same time, the Court granted standing to the association based on “the special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context” (§499), which allowed the Court to rule on the merits of this case. Whereas the Court also established a violation of access to a court (Article 6), this analysis focuses on the Court’s assessment of the Swiss climate policy under the right to respect for private and family life and home (Article 8) taken together with the right to life (Article 2 – §536). 

2. The Court’s evaluation of the Swiss climate policy under Article 8 ECHR

Whereas the Convention does not include a right to a healthy environment, the Court has developed a rich jurisprudence on the positive obligations arising from Convention rights in the context of environmental hazards. In KlimaSeniorinnen, the Court extended these duties to the climate change context and highlighted that climate protection should have “considerable weight in the weighing-up of any competing considerations”, given the scientific evidence on the urgent need to prevent grave, irreversible and global climate change effects (§542).  

Along with States’ commitments under climate treaties, these factors meant the Court would conduct a strict review of States’ efforts to enact an adequate, binding climate policy framework that provides for a “substantial and progressive reduction of […] GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades” (§548). By contrast, States enjoyed a wider margin of appreciation regarding the means of achieving its set objectives (§543). The Court went on to translate this vision into five specific requirements. A State’s legislative, executive or judicial power is required to (§550): 

1. adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget (or another emission quantification method), in line with national and/or global emission reduction targets 
2. set out corresponding intermediate emissions reduction targets and pathways (by sector or other relevant methodologies) 
3. prove compliance with these targets 
4. update the targets with due diligence, based on the best available scientific evidence 
5. implement the measures in good time and in an appropriate and consistent manner 

In addition, States must take adaptation measures aimed at alleviating the most severe or imminent consequences of climate change, taking into account “any relevant particular needs for protection” and “in accordance with the best available evidence” (§552). The Court also emphasized how a State’s respect for access to information and participation guarantees determines whether it stayed within its margin of appreciation (§554). 

The Court ruled that the Swiss climate policy did not meet these criteria because of several legislative lacunae. These had been created through a negative referendum about revised climate targets, followed by incomplete legislation that did not specify reduction targets after 2024. While Switzerland had enacted a new Climate Act that still had to enter into force, its concrete implementation measures were still to be determined “in good time” and intermediate targets for the period 2025-2030 were lacking. Moreover, Switzerland did not quantify national GHG emission limitations, for example, by calculating a carbon budget, and it had previously failed to comply with climate targets. Thus, Switzerland had transgressed its margin of appreciation in protecting human rights within the climate change context. 

3. Cautious judicial review 

Scholars and NGOs’ first reactions on the Court’s ruling consider KlimaSeniorinnen as a “milestone for human rights protection”, where the ECtHR “reinforces the vital role of courts – both international and domestic – in holding governments to their legal obligations to protect human rights from environmental harm”. In addition, KlimaSeniorinnen is said to “evidence the beauty of the ECHR as a living instrument which enables the Court to engage with urgent issues”. Indeed, as the first international human rights court that condemns a State’s climate action, the ruling is certainly a milestone. Yet, at the same time, the Court establishes a modest, procedurally-oriented judicial review strategy concerning climate policies.  

While the Court mandates States to design climate policies based on carbon budgets or other quantifications of future GHG emissions, it appears that it will not condemn unambitious emission targets as such. In this regard, Professor Chris Hilson helpfully explains how the Court’s reference to carbon budgets can be understood in two ways. On the one hand, a State’s carbon budget can be a way of determining the maximum GHG a State can emit to stay within a set climate target. On the other hand, the global carbon budget reflects how much all nations together can emit to stay within the Paris Agreement’s goals. A climate justice approach would then mean that the emission budget is distributed between States in accordance with fairness principles, such as historical responsibility and capabilities, to make a green transition. The two approaches do not necessarily overlap, since a country can base itself on a carbon budget that exceeds its fair share in the global carbon budget.  

Since it seems that the Court adheres to the first, less progressive approach, the Court merely imposes minimal procedural obligations to design and implement a climate change framework. It does not stipulate concrete reduction measures as the applicants’ requested, except for achieving climate neutrality by the 1950s. Moreover, the Court further softens its approach by stating that it holistically assesses its five-fold framework, meaning that not meeting one of these obligations (e.g., not implementing targets in good time?) is not problematic per se (§551).  

Thus, the question arises how the Court would evaluate policies that reflect less obvious deficiencies than the Swiss one. What if a State develops an elaborate policy that eventually leads to climate neutrality, but is generally unambitious in light of its historical emissions and capabilities? It seems that the Court will not intervene that easily in such cases. Whereas one might argue such approach puts the determining power to design climate policy where it belongs, namely with the legislature, the ruling could have stressed the need for fair mitigation obligations, as climate justice demands. 

 4. A logical ruling 

The Court’s approach aligns with expectations.First of all, the international climate regime, which the Court used to interpret the positive human rights obligations, is designed to give States a large discretion as to how they enact mitigation policies. After the failure of the Kyoto Protocol, which set mandatory emission targets for developing countries, the Paris Agreement intended to create a “race to the top”, by leaving countries discretion to determine their “highest possible ambition”. Whereas climate efforts should be distributed following the principle of common but differentiated responsibilities, with developed countries taking the lead (Articles 2(2), 4(4)), there is no real stick to enforce such fairness principles. On the one hand, the Paris Agreement’s climate targets provide a “universally defined danger line” that can be used to interpret human rights (or tort law) obligations. Since international environmental treaties show that States are aware of climate dangers and agree to take action in this regard, they render it easier for judges to invalidate choices made by the legislative or executive power on the appropriate balance between economic, human rights and environmental interests. On the other hand, the side-effect of this “synergy between legal frameworks” is that the weaknesses of the climate change framework are incorporated into human rights protection as well. 

Second, the Court’s thoroughly motivated ruling (of 260 pages) has clearly attempted to avoid criticisms of judicial activism. Despite its lengthy considerations on the urgency of the climate change issues and the relation of democracy, the separation of powers and subsidiarity to international human rights enforcement, the Court affirmed its subsidiary role in reviewing domestic climate policies. The Court’s cautious approach has still failed to shield it from being criticized on the legitimacy of its ruling: the Swiss Neue Zürcher Zeitung speaks of an “absurd verdict” and a “shocking condemnation” since “Switzerland, of all countries, with its nano share in the development of the world’s climate, is now portrayed internationally as a climate sinner, apparently leaving older women to die in the heat”.  

Third, the Court’s ruling aligns with the historic German Neubauer case. In this case, the Bundesverfassungsgericht (BVerfG) affirmed that human rights enshrined in the German Constitution and Articles 2 and 8 of the ECHR include a duty to protect against climate change. While Germany had not overstepped its margin of appreciation concerning the duty to protect, the Court ruled that the current climate policy postponed the heaviest mitigation burdens, which severely limited the exercise of constitutional freedoms in the future. Similar to the KlimaSeniorinnen case, the Court did not set specific reduction targets but only imposed procedural obligations on the legislator to develop a clearer climate policy with intermediate targets that aims for climate neutrality. 

 5. KlimaSeniorinnen’s wider influence 

The Court’s five-fold evaluation test might influence national courts’ rulings significantly. While judgements of the ECtHR are only binding inter partes, they form authoritative interpretations of the Convention that can be extended beyond the case at hand. Moreover, the Court stipulated that besides the legislative and executive powers, the judiciary has to take the five requirements into account (§550). 

In countries where courts previously dismissed climate claims, as in Switzerland, KlimaSeniorinnen may create new pathways to denounce under-developed climate policies. In that sense, the Court could have indeed attempted to adopt evaluation tools so national courts can “provide the real impetus to address any lack of mitigation ambition within States”. 

In states where courts already adopted similar procedural approaches to reviewing climate policy, the ruling will probably not bring about much change. The BVerfG will, for instance, probably not change its stance in a new pending climate case, except that it might base its ruling on Articles 2 and 8 of the ECHR as an additional legal ground next to constitutional freedoms. 

Yet, in jurisdictions where Courts already went further and imposed substantive requirements on the legislative and governmental powers, KlimaSeniorinnen may have a decelerating effect on future cases. In Urgenda, the Dutch Courts derived from Articles 2 and 8 ECHR a specific obligation on the Netherlands to reduce GHG emissions by at least 25% by 2020 compared to 1990 emission levels. In the Belgian Klimaatzaak, the Brussels Court of Appeal declared that two of the three Belgian regions as well as the Belgian State had violated Articles 2 and 8 of the ECHR and the general duty of care. While the Court of First Instance considered itself incompetent to set specific reduction targets, the Court of Appeal imposed an obligation to reduce GHG emissions by 55% compared to 1990. Similarly but in relation to a corporate actor, the Dutch District Court of the Hague in the case of Milieudefensie v Shell interpreted the unwritten standard of due care in line with corporate human rights obligations and emission reduction targets of the Paris Agreement. Based on this unwritten standard, the Court ruled that the Shell group had to reduce its GHG emissions by 45% by the end of 2030. The Appeal against this case is currently pending. It remains to be seen whether KlimaSeniorinnen will change the views of these progressive courts, for instance in the cassation appeal in the Belgian Klimaatzaak and the appeal against the Dutch Milieudefensie v Shell case. Whereas the Convention stipulates that it cannot be interpreted as a limitation of national human rights protection (Article 53), the reliance of these national climate cases on Articles 2 and 8 of the Convention may imply that judges feel compelled to apply the ECtHR’s criteria. 

Besides national courts, other international courts may also draw inspiration from the ECtHR’s ruling in KlimaSeniorinnen. Advisory opinions have been asked from the Inter-American Court of Human Rights, the International Tribunal for the Law of the Sea and the International Court of Justice. 

6. Conclusion 

The ECtHR’s rulings of the 9th of April will resonate in academic literature and legal practice for a very long time. This blog post attempted to provide a brief critical evaluation of the Court’s modest, procedurally-oriented evaluation test that, rather than delivering climate justice, compels States to make a minimal mitigation plan. Given the intensifying climate change effects, the hope remains that the Court further refines its review of the Convention, as a living instrument (§434), in a way that reflects global fairness principles. In the meantime, it remains to be seen how other domestic and international courts will build further on KlimaSeniorinnen within the growing climate change jurisprudence.