ESG Matters: European Court rules that Switzerland’s climate inaction violates human rights

Update
10.04.2024
In this month's ESG Matters, we take a look at the three climate change rulings delivered by the European Court of Human Rights on 9 April 2024. Our monthly Spotlight section brings you up to date with the latest developments in ESG governance, disclosure, financial regulation and litigation.

Highlight:

  • European Court rules that Switzerland’s climate inaction violates human rights

    On 9 April, the European Court of Human Rights delivered three rulings on cases related to climate change. In the case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the Court found violations of Article 8 (right to respect for private and family life) and Article 6 (access to court) of the European Convention on Human Rights (ECHR) for Switzerland’s failure to implement sufficient measures to combat climate change. This ruling can be seen as a landmark case, as it is the first time that the European Court confirmed that climate change protection falls within the scope of the ECHR.

    Switzerland convicted for breach of Article 8 ECHR
    The applicants in the Verein KlimaSeniorinnen Schweiz and Others v. Switzerland case are a Swiss association whose members include more than 2,000 elderly women and four women aged over 80. They are concerned about the impact of global warming on their living conditions and health, and argued that the Swiss authorities are not taking sufficient action to mitigate the effects of climate change.

    In a ruling of more than 250 pages, the Court held that Article 8 of the ECHR (right to respect for private and family life) encompasses a right to effective protection by the state authorities against the serious adverse effects of climate change on life, health, well-being and quality of life. On formal grounds, the Court declared the complaint of the four individual applicants inadmissible. However, the Swiss association had the right to bring a complaint.

    Failure to act exceeds Switzerland’s margin of discretion: the Court has jurisdiction to step in
    The Court found that Switzerland had failed to fulfil its obligations under the ECHR concerning climate change. The Court ruled that there had been critical gaps in the process of putting in place the relevant domestic regulatory framework, including a failure by the Swiss authorities to quantify national greenhouse gas (GHG) emission limits, through a carbon budget or otherwise. Switzerland had also failed to meet its past GHG emission reduction targets.

    The Court emphasises that climate change is one of the most pressing issues of our time. While recognising the limitations of its place in the democratic systems, the Court states that the judiciary must oversee compliance with legal requirements. The Court averred that it cannot ignore the widely acknowledged inadequacy of past state action to combat climate change and the ensuing threats to human rights. While weighing conflicts in national decision-making is part of democratic decision-making, it is complemented by judicial oversight. The intergenerational perspective underlines the risk that short‑term interests and concerns may prevail in political decision-making over the need for sustainable policy‑making.

    In terms of the division of powers, the Court importantly rules that, on the one hand, states enjoy a wide margin of discretion in the choice of the means with which they pursue their climate objectives and targets. On the other hand, states have a reduced margin of discretion with regard to their commitment to combat climate change and to set the required targets and objectives. This follows from the nature and severity of climate change, and the international political consensus on the need to achieve net zero. More specifically, the Court considers that Article 8 of the ECHR requires states to adopt and effectively apply GHG emission reduction measures with a view to achieving net zero within, in principle, within the next three decades. In the balancing of all competing considerations, climate protection should be given considerable weight.

    The Court considered that the Swiss Climate Act contains intermediate reduction targets, such as 75% GHG reduction by 2040 compared to 1990. At the same time, the Act lacks concrete measures to achieve the targets, stating that such measures should be taken ‘in good time’. It also does not include a mechanism for quantifying the state’s national GHG emissions limitations (through a carbon budget or otherwise). Besides, the state failed to meet its 2020 climate targets. While recognising the wide margin of discretion in the implementation of measures, the Swiss authorities had not acted in a timely and appropriate way to devise, develop and implement relevant legislation and measures. As there were critical gaps in the mechanisms under the Swiss Climate Act, Article 8 of the ECHR was violated.

    Carême v. France - complaint held inadmissible
    The case of Carême v. France concerned a complaint by a former resident and mayor of a French municipality, alleging that France had not taken sufficient measures to prevent global warming. The Court declared the application inadmissible on formal grounds, as the applicant appeared to have no relevant links with the municipality and no longer lived in France.

    Portuguese youths v. Portugal and 32 other European states – complaint held inadmissible
    The case of Duarte Agostinho et al. v. Portugal concerned the present and future severe effects of climate change. The applicants attribute these effects to the respondent states, claiming that they impact their lives, well-being, mental health, and the peaceful enjoyment of their homes. The applicants sought action against all European states, as they alleged that they are all responsible for the (failure in) combatting climate change. Their complaints were also declared inadmissible on formal grounds.

    In respect of the complaint against Portugal, the Court found that the applicants had not pursued any legal proceedings in Portugal itself before resorting to the European Court. As concerned the other states, the Court found that there were no grounds in the ECHR for extending extraterritorial jurisdiction in the manner requested by the applicants.

    Conclusion
    Two out of the three cases were dismissed on procedural grounds. The case to be considered on its merits resulted in a conviction of Switzerland. Although the ruling is only directed at Switzerland, it will undoubtedly influence climate-related discussions and proceedings in other European jurisdictions, including the Netherlands, as well as outside Europe. The ruling could be seen as reinforcing the obligation of states to set the necessary targets to combat climate change, including its impacts, and to introduce and implement effective measures to achieve those targets, similar to those required under the Dutch ruling in the Urgenda climate case.

    What it means for you:

    • The rulings of the European Court are aimed at states. Their effects are therefore primarily on the duties of governments in relation to climate change, similar to the Urgenda ruling.
    • The Swiss case strengthens the legal avenues for climate cases by confirming that climate change is indeed an ECHR issue. It may well lead to additional action against states that are lagging behind in their climate targets and implementation of policies and measures.
    • For corporates and financial institutions, the indirect effect may be substantial. New rules and more concrete policies can of course have an impact on current practices and, perhaps more importantly, lead to more certainty and new opportunities.

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