Reshaping climate justice

KlimaSeniorinnen unpacked: in an article recently published by the New Law Journal, David Lawne, Luke Grimes & Ginevra Bicciolo discuss the first successful climate change case grounded in European Convention rights

In a seminal judgment delivered in April 2024 in the case of Verein KlimaSeniorinnen Schweiz et al v Switzerland (‘KlimaSeniorinnen’), the European Court of Human Rights found for the first time that a country’s failure to combat climate change constitutes a violation of human rights under the European Convention on Human Rights.

The ruling sets a low bar for associations to have standing to bring climate change cases, likely shaping the future landscape of climate litigation.

The KlimaSeniorinnen case was brought by four women and a Swiss association representing over 2,000 women aged 64 and over, Verein KlimaSeniorinnen Schweiz (VKS). They argued that Swiss authorities were not doing enough to combat the effects of climate change, specifically heatwaves, in breach of Switzerland’s obligations under the Convention.

The Court held that Switzerland had breached Article 8 (private and family life), by failing to establish a proper domestic regulatory framework to combat climate change, and Article 6(1) (access to court) on the basis that the Swiss courts had failed seriously to consider VKS’ claim in prior domestic proceedings. This sets a historic precedent which is binding on all contracting states, meaning they must also consider adopting stronger climate policies to avoid falling foul of the Convention. Switzerland must tell the Council of Europe, to which the court belongs, by October how it will implement the decision.

The Court’s approach to the test for victim status and standing in climate change cases is a crucial aspect of the ruling which will set the tone for future litigation in this space.

In respect of individual applicants (the four women) the Court reiterated that the threshold for victim status is especially high, requiring applicants to show (i) high intensity of exposure to the alleged adverse effects of climate change; and (ii) a pressing need to ensure the applicants’ protection, in light of the absence or inadequacy of any reasonable measures to reduce harm. The Court did however provide useful guidance as to the factors it will consider when assessing individual victim status.

In contrast with individual applicants, the Court set a very low bar for the standing of associations. Arguably departing from its previous jurisprudence, the Court found that VKS had the necessary standing under the Convention on the basis it was sufficient for associations in climate change cases to be, in summary (i) lawfully established / have standing to act in the relevant jurisdiction and (ii) pursue aims including the defence of the human rights of their members from the threat of climate change. Crucially, associations may have standing even if those they represent do not meet the victim-status criteria for individual applicants (as was the case for VSK). As a result of this lower hurdle on standing, associations/NGOs are expected to be key players in future cases.

For a more in-depth analysis by our team of the Court’s findings, and their implication for climate litigation going forward, the full New Law Journal article can be access via this link following registration.