Reparation for Climate Change: The Successes and Limits of Litigation

Charlotte

E.Blattner

Chapter 8: KlimaSeniorinnen — On Storybook Victories, Double- Victimization, and Success

1.Introduction

In what was probably one of its most eagerly awaited judgments, the European Court of Human Rights (ECtHR), on 9 April 2024, delivered a ground-breaking ruling in the case Verein KlimaSeniorinnen and Others v Switzerland.¹ Contrary to widespread predictions and fears about the verdict,² the Court addressed climate change head-on as a human rights issue. It delivered a bold ruling by fleshing out human rights guarantees in the context of climate mitigation and corresponding state duties. The Court confirmed the right of individuals to effective protection by state authorities against the serious adverse effects of climate change on their lives, health, well-being, and quality of life, which flows from Article 8 European Convention on Human Rights (ECHR),³ and concretized the corresponding state duty to protect through a qualified seven-tiered test.⁴ Applying this standard to Switzerland, it found by 16 votes to one that the country had failed to comply with its positive obligations due to insufficient goals to mitigate climate change, gaps in regulation, a lack of implementation and enforcement, and insufficient measures.⁵ Unanimously, the ECtHR also concluded that Switzerland had violated Article 6(1) ECHR given that domestic courts had not dealt with the merits of the case, failed to consider “the compelling scientific evidence concerning climate change,”⁶ and did not take the seniors and their complaints seriously.⁷

With its ruling, the Court by far exceeded the climate seniors’ expectations. As one of the climate seniors, Rosemarie Wydler-Wälti, said in an interview: “[t]his feels like a dream. I’m sure I’ll wake up tomorrow and believe this to be a dream.”⁸ Legal experts and the general public, too, were taken by surprise by this decisive stance taken by the Strasbourg Court,⁹ which has proved to be far more courageous and progressive than its previously cautious jurisprudence focused on procedural guarantees and duties might have suggested.¹⁰ Much of this success can be attributed to the strategic nature of the case, which was diligently drafted and managed by a core team of expert lawyers over the decade of its existence.

From the standpoint of litigation, the case constitutes a success across the board. The seniors overcame dreaded admissibility hurdles and secured monumental wins on the merits, concerning both procedural and substantive guarantees. Apart from the part on the general measures requested from the Court,¹¹ the judgment seems to be a “dream come true” for the seniors.¹²

However, the KlimaSeniorinnen case can, in some sense, also be seen as a tragic failure. The story of the climate seniors took a turn for the worse following the pronouncement of the ruling. First the Federal Parliament and then the Federal Council publicly criticized the Court for interpreting the ECHR too broadly and for failing to take into account the newest legal and political developments in Switzerland, which would have in fact shown that it is already acting in accordance with the ruling.¹³ They therefore saw no reason to change anything about how Switzerland regulates climate mitigation and how it should implement its laws.¹⁴ So despite being a success in the books, it would — S. 161 —appear that the climate seniors case has fallen short of the much-coveted regulatory ends that strategic cases pursue. Meanwhile, heat-related deaths, caused by anthropogenic climate change, are manifestly on the rise in Switzerland, and the climate seniors continue to be affected most by it.¹⁵ As such, they tragically experienced first-hand that the “success” of climate litigation is constituted by more than achieving a favorable court ruling.

These developments call for a nuanced understanding of what constitutes success in this case, with lessons to be learned for climate litigation more broadly. It is therefore necessary to better understand the procedural backbone of this case, the legal remedies sought and secured, the position of the climate seniors throughout the decade of litigation, an evaluation of what the Court held, and the reception of the ruling in Switzerland and beyond.

The literature on strategic climate litigation is flourishing in parallel to an ever-growing interest in strategic litigation, more broadly.¹⁶ Many of these inquiries seek to differentiate between successful cases and less successful ones, and excavate a blueprint for future cases.¹⁷ Peel and Markey-Towler proposed a “recipe for success,” outlining the following criteria for successful strategic climate litigation: carefully selecting plaintiffs to communicate a strategic message with the case; engaging an experienced legal team with a track record of bringing other strategic climate legal interventions; targeting defendants who are widely seen to be lagging in their climate action; tying legal arguments closely to the latest climate science; making innovative legal arguments, including those emphasizing duties of protection; and seeking remedies that — S. 162 —extend beyond the situation of individual litigants and contribute to intended policy and regulatory impacts.¹⁸ In what follows, these criteria will be analyzed, disentangled, and reflected upon with a view to the case (though not in the above order), and special attention will be paid to legal remedies throughout all decision-making phases, from the first decisions by the federal authorities to the judgments of domestic courts, up until the Strasbourg Court. Finances will be considered as an additional self-standing criterion. Crucially, successful strategic climate cases are not merely evaluated by “input” criteria, just as a solid recipe with good ingredients does not yet make for a good meal. So, in addition to these “input” or “ingredient” criteria, this chapter evaluates the KlimaSeniorinnen case by its outcome (“output” or “outcome” criteria) and its extra-legal effects,¹⁹ with valuable insights to be gained for other climate change cases, and strategic litigation more generally.

Throughout, this chapter employs a qualitative approach to the analysis of the law, judgments, orders by the courts, submission by parties, as well as (where applicable) transcripts from oral hearings. This theoretical enquiry is complemented by a qualitative analysis of two interviews I held with key stakeholders, whose views on strategy, remedy, and justice are central to understanding this case. The first interview was held with five members of the executive board of the KlimaSeniorinnen association as a group; the other one with the lead lawyer of this case, Cordelia Bähr.²⁰

The chapter begins by disentangling the “input,” the “ingredients” of what makes the KlimaSeniorinnen case a success (section 2), namely the selection of plaintiffs (a), targeting climate laggards (b), seeking remedies that change the broader policy and regulatory environment beyond litigants (c), tying legal arguments to latest developments in science, policy, and law (d), set-up of the legal team (e), and finances (f). It then turns to the “output” or “outcome” side of this case (section 3), zooming in on its legal impacts (admissibility, declaration of violation, and consequential orders) (a), its impacts on victims (b), and policy impacts (c).²¹ The final section briefly summarizes these findings and provides — S. 163 —an outlook on how this case can realistically be assessed without lapsing into either misplaced optimism or excessive pessimism (section 4).

2.Input for Successful Climate Litigation

The KlimaSeniorinnen case was inspired by the success of the Urgenda case commenced before the District Court of The Hague in 2015.²² That court held that the Dutch government must protect its citizens from the threats of climate change and must strengthen its precautionary action by reducing its GHG emissions by at least 25% instead of only 17% by the end of 2020²³— a finding which was later confirmed by the Dutch Supreme Court.²⁴ Following the success in the Netherlands, Greenpeace Switzerland approached two leading environmental lawyers in Switzerland — Cordelia Bähr and Ursula Brunner — to explore the possibilities of bringing a similar case in Switzerland to challenge inadequate climate policy and legislation.²⁵

Unlike in Dutch law, there is no general duty of care in Swiss law that could be invoked to prompt the government to further limit emissions. In what may seem like an overly complicated process, per Swiss law, the very administrative authorities whose alleged inaction was at stake had to first be directly requested to either begin taking the necessary actions or rule that their own lack of action was unlawful.²⁶ Materially succeeding with this request at that level was unlikely, as authorities tend to consider their own actions and practices to be sufficient — within the bounds of political realities. Hence, several decisions regarding the input of this case, choice of plaintiffs and respondents, strategic framing, innovation in legal argumentation, connection to climate — S. 164 —science, set-up of the legal team, and finances needed to be made at an early stage to take this case to success. These elements will be evaluated in turn, one by one, as they emerged and evolved with the case.

a.Selection of Plaintiffs

Under Swiss law, the fact that the climate seniors had to challenge government inaction (rather than action) meant that they faced stricter requirements regarding standing (Beschwerdelegitimation).²⁷ As set out by the Federal Act on Administrative Procedure (APA) and respective case law, the seniors needed to be specially affected in rights and duties (criterion 1: special affectedness) and have an interest worthy of protection in obtaining a respective decision (criterion 2: interest worthy of protection).²⁸ In addition, the appellants’ interest had to be actual (rather than hypothetical) and practical (thus capable of being remedied). These requirements narrow the pool of people who could potentially get courts to review government (in)action, in order to prevent courts from being flooded by (inadmissible) actiones populares.²⁹ The APA essentially seeks to mediate the fact that, on the one hand, the main climate law in Switzerland, like the CO2 Act, does not provide for a special right to appeal, and that, on the other hand, all government action must be reviewable for potential human rights violations. The above criteria, by allowing for standing but qualifying it narrowly, essentially balance these two considerations.

Older females in Switzerland were chosen as plaintiffs precisely because they fit these standing requirements. If plaintiffs constituted older people more generally — regardless of sex or gender–, the likelihood of passing the APA requirements would have been slim. The lawyers put forward mounting — S. 165 —scientific evidence on the fact that climate change, especially heat and heat waves increasing in number and severity, has numerous negative effects on human health, which are especially pronounced for older women who suffer most and most blatantly from premature death.³⁰ The lawyers also submitted medical certificates proving that the climate seniors, and specifically the individual plaintiffs, suffer significantly from the effects of climate change due to their pre-existing conditions and from additional ailments they endure during the heatwaves. Choice of plaintiffs was also interesting in this case: many were tentative about associations passing the strict requirement of standing both on the domestic and ECHR level.³¹ Yet, the lawyers in this case decided to push ahead with both individual applicants and an applicant association that took its task of defending its members’ rights seriously.³² This strategic move later proved to be decisive for the success in this case.

Related to domestic APA requirements, the lawyers considered the likelihood of taking this case to the ECtHR relatively high from the beginning. In terms of strategy, this required setting up the case in such a manner that the road to Strasbourg would remain open and as smooth as possible by, for example, being mindful of the particularities of the ECtHR’s admissibility requirements and claiming violations of Convention rights from the beginning.

b.Target Climate Laggard

Switzerland was chosen as the respondent state since it became increasingly obvious that the country was lagging behind in terms of its international commitments to mitigate climate change at that time.³³ Taking the (then) consensus of the “well below 2°C” degree limit, the lawyers pointed to the Intergovernmental Panel on Climate Change (IPCC)’s Fourth Assessment Report (AR4) from 2007 that indicated that GHG reductions by 25%–40% (compared — S. 166 —to 1990 levels) are necessary to observe this limit with a 66% chance.³⁴ Switzerland markedly deviated from this global average by 5%–20% with its 20% reduction goal for 2020 (compared to 1990).³⁵ Crucially, at the time, the Federal Council had acknowledged the need for an “at least” 40% reduction of GHG emissions among developed countries until 2020 (compared to 1990 levels) to keep global warming at a safe level but explicitly decided against adopting this target, as this would “entail the risk of an excessive burden on the Swiss economy.”³⁶

c.Seeking Remedies to Change the Broader Policy and Regulatory Environment

For a case to be considered strategic in nature, it must aim to change the broader policy or regulatory environment beyond potential benefits for individual plaintiffs.³⁷ This criterion can be evaluated by zooming in on legal remedies in particular.

The KlimaSeniorinnen case was initiated through an extensive and finely calibrated request from the climate seniors, dated 25 November 2016, to the Swiss Federal Council as the highest executive authority, the Swiss Federal Department of the Environment, Transport, Energy and Communications (DETEC), and its two administrative units — the Federal Office for the Environment (FOEN) and the Federal Office of Energy (FOE).³⁸ In simplified terms, the climate seniors requested these agencies to:

1.take all necessary actions within their competence to reduce GHG emissions by 2020 in alignment with the “well below 2°C” target;

2.take all necessary mitigation measures within their competence to meet the GHG reduction target as defined under (1.), in particular by initiating a preliminary legislative procedure to effect of (1.);

3.take all necessary actions within their competence to reduce GHG emissions by 2030 in alignment with the “well below 2°C” target;

4.implement all mitigation action within their competence to achieve (1); notably by

a)making sure the cantons issue state-of-the-art building standards (or prepare new ones themselves) and effectively implement them;

b)rapidly increasing the CO2 levy on thermal fuels;

c)drafting new measures to reduce CO2 emissions in the transport sector;

d)comprehensively assessing the effectiveness of measures under the CO2 Act, and immediately initiating steps to implement the necessary measures for the period ending in 2020.

5.alternatively, issue a ruling declaring that the respective omissions are unlawful.³⁹

In a ruling dated 25 April 2017, DETEC declined to follow their request.⁴⁰ It issued its ruling on behalf of all the respondents stating, mostly without specific grounds, that the appellants were not affected in their rights as required by Article 25a APA. It also rejected claims to effective legal protection derived from the ECHR. On 26 May 2017, the seniors submitted their appeal against the ruling of DETEC to the Federal Administrative Court.⁴¹ In terms of legal remedies, they asked the Court to refer this case back to DETEC, which should enter their claims, decide anew, and thereby ensure their right to be heard. The Court dismissed the appeal in its judgment of 27 November 2018. After listing a number of climate change effects on physiological, biological, and human systems, the Court found that “different groups are affected in different ways, ranging from economic interests to adverse health effects affecting the general public.”⁴² Against this background, it concluded (without material assessment) that the climate seniors are “not particularly affected by the impacts of climate change” and would hence not be affected “in a specific and distinct manner” when compared with the general public, as required by the criterion of special affectedness (criterion 1) of the APA.⁴³

On 21 January 2019, the climate seniors submitted their appeal to the Federal Supreme Court, and requested that the judgment of the previous court be overturned, and the matter referred back to DETEC for a new assessment.⁴⁴ In its judgment dated 5 May 2020, the Supreme Court in essence followed the Administrative Court, but offered a different reasoning. It held that government measures that have, in theory, the potential to sufficiently affect the rights and duties (hence trigger an interest worthy of protection, criterion 2) of the climate seniors have not yet materialized.⁴⁵ Referring to the IPCC, it considered that because the 1.5°C warming would prospectively materialize in 2040, the 2°C warming would take place later, hence, “not in the near future.”⁴⁶ From this it would follow that “there is still a certain amount of time available to prevent global warming exceeding this value” and that, under these circumstances, the seniors’ rights would not appear to be threatened (yet) to such an extent that they are “sufficiently affected” within the meaning of the APA.⁴⁷ Later that year, on 26 November 2020, the climate seniors submitted their application to the ECtHR. The climate seniors requested the Court to declare that:

1.all applicants have victim status and their claims are admissible under Articles 34 and 35 ECHR;

2. Switzerland failed to protect the seniors’ rights to life and private life under Articles 2 and 8 ECHR, by not adopting the necessary legislative and administrative framework to contribute its share to the 1.5°C limit;

3.the seniors’ rights to access to Court (Article 6 ECHR) and their right to effective remedy (Article 13 in conjunction with Articles 2 and 8 ECHR) have been violated.⁴⁸

The climate seniors for the first time also requested the Court to

4.award just satisfaction, of 10,000 CHF for each senior applicant (ie four in total) for the physical and mental sufferings they incurred (eg health problems, distress, and anxiety to due heat periods, adjustment to their private and family life).⁴⁹

In addition, they requested the Court to order general measures under Article 46 ECHR, among others, by

5.ordering [Swtzerland] to adopt the necessary legislative and administrative framework to contribute its share to the 1.5°C limit;

6.specifying what Switzerland has to do to that end;

7.setting a binding time limit for Switzerland to achieve these goals and targets.⁵⁰

The general measures under Article 46 ECHR differ from the specific measures the climate seniors demanded from domestic courts. The seniors asked the Court to set goals, targets, timelines, and other elements of climate policy and law that relate to the level of protection (the “what”), but because states are free to determine the means by which to ensure compliance,⁵¹ the climate seniors did not ask the Court for specific measures (eg methane reductions, tighter regulation of traffic, curbing consumption, promoting e-cars, and the like, ie the “how”) — measures they had previously asked for on the domestic level.

The Court rarely orders specific measures but the climate seniors argued that Switzerland’s failure to ensure stringent climate protection would be systemic (ie there has been a repeated pattern of failure taking place for decades) and given the ongoing breach and rapid increase of global warming, the rights would continue to be violated, even more intensely, in the near future.⁵² Hence, in line with the Court’s jurisprudence, in this case, “the nature of the violation — S. 170 —found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate a specific measure.”⁵³ Such exceptional measures were thus argued to be the only means that can ensure timely and sufficient implementation of the Court’s judgment.

Overall, the directionality of the legal remedies the applicants claim has not changed over the 10 years this case was litigated. The intention behind the case was to ensure that Switzerland honors its duty to protect the climate seniors. In this respect, this case may differ from others, where claimants shifted strategy to narrow or broaden their demands or respond to shifting political dynamics. This case was devised in strategic manner from the beginning — meaning that it was “filed with the aim of influencing the broader debate around climate action”⁵⁴— and based on an extensive expert report outlining different strategic avenues and their promises and pitfalls,⁵⁵ which allowed both the climate seniors and their lawyers to stick to the same strategy throughout these years, and hence maintain a certain level of stability and coherence of their legal claims.

d.Tying Legal Arguments to Latest Developments in Science, Policy, and the Law

Throughout the many years that had passed until the climate seniors reached Strasbourg, their claims have evolved with a view to what Switzerland must do to observe its duty to protect, notably in light of newest developments in science, policy, and the law. These include new scientific evidence on the epidemiological impacts of heat and heatwaves on older women in Switzerland, the adjustment of the global temperature limit and new legal evidence detailing what Switzerland’s fair share is to observe the temperature limit.

i.New Scientific Evidence on the Impacts of Climate Change-Related

Heat and Heatwaves on Older Women’s Health in Switzerland

During the KlimaSeniorinnen proceedings, new research was produced showing that vulnerability to extreme heat in Switzerland is particularly pronounced in older women, as opposed to men of the same age range.⁵⁶ One of the leading — S. 171 —experts in this field, Ana Vicedo Cabrera, was able to examine the newest data in the summer of 2022 and show that among the 600 deaths that occurred due to heat this summer, nearly 50% occurred in women aged 65 years and above, while men of the same age accounted for less than 40%.⁵⁷ These studies, some of which were only pre-prints at the time, could promptly be introduced by lawyers into their observations and helped back their arguments through specificity, timeliness, and concreteness.⁵⁸ ii. Adjustment of the Global Temperature Limit In 2016, when the lawyers initiated the proceedings, they demanded that Switzerland observe the “well below 2°C” degree limit as the dominant consensus of the time. Over the years, they adapted it to the more stringent 1.5°C degree limit, to reflect the changed scientific and political consensus. Based, among others, on the (UNFCCC-commissioned) 2018 IPCC Special Report “Global Warming of 1.5°C,”⁵⁹ global efforts to limit climate change to 1.5°C were prominently recalibrated in the Glasgow Climate Pact at Conference of the Parties (CoP) 26.60 In line with this shifting consensus, the 1.5°C limit became

Apolline Saucy and others, ‘The Role of Extreme Temperature in Cause-Specific Acute Cardiovascular Mortality in Switzerland’ (2021) 790 Science of the Total Environment 147958; Florian Schulte, Martin Röösli and Martina S Ragettli, ‘Heat-Related Cardiovascular Morbidity and Mortality in Switzerland: A Clinical Perspective’ (2021) 151 Swiss Medical Weekly w30013.

the standard for the climate seniors to evaluate Switzerland’s duty to protect throughout these proceedings.⁶¹

iii.New Legal Evidence Detailing Switzerland’s Fair Share to Observe

the Temperature Limit

This stricter temperature limit requires that stricter and more reliable targets are envisaged and taken. One difficulty for the climate seniors was that the previously clear and prescriptive IPCC AR4 report, demanding a reduction of at least 25%–40% by 2020, turned out to be less prescriptive and detailed in the coming assessment cycles (and thus for the coming target years). Whether or not influenced by the climate seniors case (this is unknown), a number of scientific studies were produced in the meantime that began to flesh out targets and timetables of Switzerland as a Paris Agreement member. In 2021, Rajamani et al published a study that drew on the normative pillars of the climate change regime (eg progression and ambition) and international environmental law principles (eg harm prevention and sustainable development) to drill down on states’ “fair share” to the global effort in reducing GHG emissions.⁶² Using an interdisciplinary approach, they quantified these shares for G20 countries and found that in order to keep the 1.5°C limit within reach in 2100 with a 66% probability, they would have to reach net negative emission levels in 2030.⁶³ Climate Analytics similarly found in 2021 that Switzerland would have to reduce its GHG emissions by 127% by 2030 (compared to 1990) to be within the “fair share” range and contribute to limiting global warming to 1.5°C in 2100 with a 50% chance.⁶⁴ Similar findings were supported by up-to-date calculations of Climate Action Tracker.⁶⁵ Based among others on these reports, the lawyers’ arguments for what Switzerland would need to do to observe its duty to protect became stricter over the years. Still, there is a significant — S. 173 —range within which the Court could set priorities. Without specifying if Switzerland should target a reduction of eg 108% or 198% by 2030 (compared to 1990 levels) — a point where studies have come to different conclusions —, the seniors merely asked for net negative emissions by 2030, with net negativity covering measures to reduce GHG emissions at home and abroad (ie also financing of reductions abroad).⁶⁶ For Switzerland, as one of its lawyers, Franz Perrez, contended at the oral hearing in March 2023, “this is simply not feasible. A fair share cannot be something that is not feasible technically and economically without hampering fundamentally other human rights.”⁶⁷ Whether this statement can be taken at face value is questionable, as Switzerland has never conducted a comprehensive study to fully consider its reduction duties as stipulated by these key experts on “fair share” nor has it made an effort to evaluate their feasibility.

e.Legal Team

Throughout the decade of its existence, the KlimaSeniorinnen case was handled by the same lawyers (hence there was no personnel variability), and these were able to give this case priority despite their regular caseload, which has significantly contributed to the case’s success. Given the fact that climate change cases are heavily reliant on input from other disciplines — climate sciences, communication, politics, economics, and others —, making sure that the team behind the case was sufficiently big and broad in terms of expertise was critical. It took several lawyers, scientific experts, people with expert non-governmental organization (NGO) knowledge, and others to contribute to this case — be it to its framework, sources, argumentation, framing, or final wording.

f.Finances

In terms of finance, climate change cases are not a routine matter for lawyers and pose certain risks because they usually tackle questions that are (yet) unanswered and generally underdeveloped. As such, climate change cases — and especially the ones taken to the ECtHR — tend to be lengthy. From the first expert strategy that brought this case to life up until the Court’s ruling, 10 years have passed.⁶⁸ One can hardly predict several years in advance, in detail, what — S. 174 —questions will drive the Court’s judgment. Sufficient funds are thus needed to diligently manage this case over the course of several years. The climate seniors in this respect had — in comparison to other plaintiffs in climate cases — less to worry about as they were able to rely on funds from Greenpeace.⁶⁹ This case has led to costs and expenses totaling CHF 324,249.25 (roughly USD 365,730.23 or EUR 337,238.01), including, mostly, lawyers’ fees incurred across all instances (26.1% of all costs before the federal administrative authorities; 9.9% before the Federal Administrative Court; 12.2% before the Federal Supreme Court; and 51.1% before the ECtHR), and court fees of CHF 9,000.00.70 The costs incurred before domestic authorities and courts are relatively modest since Switzerland never replied to any of the seniors’ submissions until the case reached Strasbourg. The one factor driving these costs was the rapid and vast development of scientific, political, and legal evaluations in parallel to this case. With every submission, new evidence had to be incorporated, and requests had to be adapted accordingly. In general, however, public or vertical climate cases, like this one, are relatively modest in financial terms, especially in comparison to horizontal climate lawsuits.⁷¹

3.Impacts of Successful Climate Litigation

There is no established empirical method to evaluate the success of strategic climate cases.⁷² Most legal scholars implicitly assume that winning in Court — S. 175 —makes a case “successful.”⁷³ Though such wins are likely to satisfy applicants, make for good headlines, and add to the relevance of strategic climate litigation, there are multiple factors which need to be accounted for in evaluating success. On the one hand, there are critical factors that precede a pronouncement of a ruling, such as whether applicants are heard and taken seriously, in and outside courts. On the other, even successful judgments can be neglected, downplayed, and rendered irrelevant in the ensuing media and political discourses. In what follows, drawing on Duffy’s work, different levels of impact are evaluated: the legal impact, victim impact, and impact on policy.⁷⁴ Though by far not exhaustive, this broader evaluation of impacts allows for a more nuanced understanding of the KlimaSeniorinnen case.

a. Legal Impact The focus of the academic and media debate surrounding this case — and indeed all climate cases thus far litigated at the ECtHR — has often been on its legal effects. Discussions centered on procedural hurdles, on whether the applicants would be able to overcome the Court’s strict admissibility requirements, and (to a lesser degree) on the merits of the case.⁷⁵ In the following, the three factors dictating the legal success of a case before the ECtHR — ie admissibility, declaratory judgment on violation of Convention rights, and consequential orders (individual or general measures) — will be examined briefly as addressed by the Grand Chamber in the KlimaSeniorinnen case. This will — S. 176 —be preceded by a description of the Court’s noteworthy remarks, which set out some general considerations on climate litigation.

i.General Considerations of the Court on Climate Change Litigation

The KlimaSeniorinnen case marks the first case handed down by the ECtHR on climate change matters, and this prompted the Court to offer some preliminary comments before turning to its assessment.⁷⁶ The Court acknowledged climate change as one of the most pressing issues of our times.⁷⁷ It put emphasis on the “widely acknowledged inadequacy” of state action to curb global warming and the fact that this inaction aggravates the impacts, threats, and risks of climate change for human rights.⁷⁸ The Court distinguished climate change from “regular” environmental matters, since the source of harm, the precise impacts, affected parties, and chain of effects are not as identifiable.⁷⁹ According to the ECtHR, its existing environmental case law thus cannot be applied tel quel to climate change.⁸⁰ Unlike what some have suggested,⁸¹ the ECtHR does not, on this basis, consider climate action to be nonjusticiable. It clarified, once and for all, that the right to private and family life, Article 8 ECHR, also protects against harmful effects on and threats to life, health, well-being, and quality of life.⁸²

ii.Admissibility

The Court considered victim status one of the central questions in climaterelated cases,⁸³ by which the requirement to exclude inadmissible actiones populares is reconciled with the necessity of adjudicating individual complaints.⁸⁴ In deviation from its case law in environmental matters,⁸⁵ the Court — S. 177 —denied potential and indirect victim status to the individual applicants.⁸⁶ Only those personally and directly affected by impugned failures in the context of climate change can qualify as victims within the meaning of Article 34 ECHR,⁸⁷ for which the threshold is “especially high” — with due regard to be paid to the level and severity of risks/consequences, and the absence/inadequacy of measures reducing the harm.⁸⁸ The Court, despite recognizing that the individual climate seniors are “particularly susceptible to the effects of climate change”⁸⁹ and that heatwaves affect their quality of life, denied them individual victim status for lack of a “critical medical condition” that could still be alleviated by adaptation measures.⁹⁰ Given this strict line of jurisprudence, the question arises as to which hypothetical applicants, invoking preventive duties of protection in dealing with the risks of climate change, will ever be able meet the strict criteria of individual victimhood.⁹¹

Conversely, the ECtHR has, to the surprise of many,⁹² and almost in compensatory fashion for these narrow terms on individual admissibility, set the hurdle for associations to obtain victim status comparatively low. It requires them to be lawfully established under domestic law, statutorily authorized to defend human rights against threats posed by climate change, and to represent individuals who are exposed to the specific threats or adverse effects of climate change — although these individuals do not have to be directly affected themselves within the meaning of Article 34 ECHR.⁹³ Critics complain that the ECtHR has thereby moved too far and too quickly away from its existing, rather conservative case law on the victim status of associations.⁹⁴ However, the Court is certainly right in understanding that associations play a key role in climate litigation, which requires significant financial and logistical resources and coordination, and whose outcomes inevitably affect the position — S. 178 —of many individuals.⁹⁵ As such, the Court concluded that the KlimaSeniorinnen association fulfilled the criteria specified in paragraph 502 of its judgment, and thereby granted it locus standi in accordance with Article 34 in conjunction with Article 8 ECHR.⁹⁶ Overall, the case has successfully overcome the victim status hurdle, yet differently than expected, and with challenging and potentially troubling implications for future cases.⁹⁷

iii.Declaratory Judgment on Article 2 ECHR

While the Court recognized that government failure to combat climate change is capable of putting an individual’s life at risk, it questioned whether Switzerland’s shortcomings had posed a “real and imminent” risk to older females to trigger the applicability of Article 2 ECHR.⁹⁸ The Court decided not to examine this point further with regard to the association, as the state’s duty to protect in the environmental context under Article 8 ECHR largely overlaps with that under Article 2 ECHR. The individual complaints, by contrast, were declared inadmissible for lack of victim status.⁹⁹

iv.Declaratory Judgment on Article 8 ECHR

In a historic move, the Court held that Article 8 ECHR encompasses 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.¹⁰⁰ The applicability of Article 8 ECHR in climate change contexts is functionally logical, considering that heat waves, extreme weather, rising sea levels, and other adverse effects of climate change have the potential to compromise one’s — S. 179 —health, well-being, life, and life quality — just as natural catastrophes and industrial pollution (emissions, noise, odors, and other disturbances) do.101 The Court recalled that “the Convention, as an instrument for the protection of human rights, requires that its provisions must be interpreted and applied such as to guarantee rights that are practical and effective, not theoretical and illusory.”102 The relevance of this precedent cannot be underestimated as this jurisprudence confirms that the Court will operate as a critical forum for climate litigation among all member states — a fact that many had openly called into question beforehand.103 In a given case, Article 8 ECHR is applicable insofar as there is an “actual interference” of these legal interests or a “relevant and sufficiently serious risk” of such impairment.104 Drawing on the above criteria for victim status, the Court considered Article 8 ECHR applicable for the complaints lodged by the association, but not for the individual applicants.105 Article 8 ECHR, as such, necessarily entails a state duty to protect in the context of climate change. In line with established case law in environmental matters,106 the Court clarified that states must adopt regulations and measures that ensure effective protection of health and life, and apply these regulations 101 Ibid. [516]. The judgment is thus in line with the ECtHR’s established jurisprudence in Çiçek and Others v Turkey App no 44837/07 [22]; X and Y v the Netherlands App no 8978/80; Powell and Rayner v UK App no 9310/81 [37ff].

102 Verein KlimaSeniorinnen Schweiz and Others v Switzerland App no 53600/20 [545]. If

the Convention were not interpreted in this dynamic or evolutionary way, the ECHR rights, which are by their very nature openly formulated and transversally applicable, would be gradually deprived of their existence and content. The living instrument doctrine, as such, goes to the heart of addressing climate change impacts and maintaining the functioning of the European human rights system: Ivana Jelić and Etienne Fritz, ‘The “Living Instrument” at the Service of Climate Action: The ECtHR Long-Standing Doctrine Confronted to the Climate Emergency’ (2024) 36(2) Journal of Environmental Law 141. See further George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in Andreas Føllesdal, Birgit Peters and Geir Ulfstein (eds), Constituting Europe The European Court of Human Rights in a National, European and Global Context (CUP 2013) 106.

103 As Torre-Schaub stated, to open up its forum for climate change cases “is not only a

challenge for the Court, but above all an opening up for all Human Rights Law. These climate cases should therefore not be seen as just another environmental case, or as anecdotal developments at the Court, but as the Court’s ability and talent to rise to the historic task required.” (Marta Torre-Schaub, ‘The Future of European Climate Change Litigation’ (Verfassungsblog, 10 August 2022)).

104 Verein KlimaSeniorinnen Schweiz and Others v Switzerland App no 53600/20 [520].

105 Ibid. [524f], [533].

106 Jugheli and Others v Georgia App no 38342/05(ECtHR) [75]; Di Sarno and Others v Italy

App no 30765/08(ECtHR) [106]; Tătar v Russia App no 67021/01(ECtHR) [88]; Cuenca Zarzoso v Spain App no 23383/12(ECtHR) [51].

and measures in a timely and effective manner.¹⁰⁷ The scope of this duty is determined by key scientific parameters (as provided eg by the IPCC) and international consensus (UNFCCC and Paris Agreement), such that states

put in place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, notably the right to private and family life and home under Article 8 of the Convention.¹⁰⁸

When reviewing compliance with these positive obligations, the ECtHR takes into account states’ margin of appreciation in accordance with the principle of subsidiarity. States have a narrow margin of appreciation with regard to these aims and objectives, but enjoy a wide margin of appreciation with regard to the choice of means to fulfill them.¹⁰⁹ In assessing whether states remain within their margin of appreciation, the Court considers whether states have

a)adopted general measures specifying a timetable for achieving carbon

neutrality and the remaining carbon budget for the same period, in line with the overarching objective of national and/or global commitments to mitigate climate change;

b)set out interim targets and pathways for GHG reduction (by sector or

other relevant methods) that are capable for achieving the national GHG reduction goals (ie a);

c)provide evidence that they have complied or are in the process of com-

plying with the relevant GHG reduction targets (ie a and b);

d)update the relevant GHG reduction targets with due diligence and on the

basis of the best available science; and

e)act in a timely, appropriate, and consistent manner when devising and

implementing the relevant legislation and measures.¹¹⁰

These criteria are qualitative in nature (unlike specific quantified percentage reductions, pathways, and timetables) and more conservative than one would assume considering states’ narrow margin of appreciation when it comes to the aims and objectives.¹¹¹

In addition to the above five criteria, judges recalled the procedural safeguards that are central to the domestic decision-making process in climate matters:

f)Public authorities must make information available to the public and in

particular to (potentially) affected persons that is relevant to the development and implementation of climate goals and measures; this includes information on the results of relevant studies so that (potentially) affected persons can better assess risks; and

g)procedures must be available through which the views of the public and

(potentially) particularly affected persons on the regulations and measures (and their omission) are taken into account in the decision-making process.¹¹²

The Court applied these criteria to Switzerland and — rather than giving it a free pass or time to adapt to these requirements — found that its legal framework is inadequate, that it has failed to comply with its duty to protect, and thus violated Article 8 ECHR.¹¹³ In particular, it pointed to insufficient climate targets (20% instead of 25–40% for 2020 against better judgment), missed climate targets (eg the 2020 target), significant gaps in regulation (between 2025–2030, the critical decade for mitigating climate change), failure to render long-term goals (for 2040 and 2050) legally binding, failure to determine goals and targets de lege artis on the basis of (quantified) CO2 budgets, and a lack of measures foreseen to achieve its targets. In summary, the Court, with the exception of dissenting Judge Eicke, found that Switzerland failed to act in a timely, appropriate, and coherent manner in the drafting, development, and implementation of the relevant legal and administrative framework. In doing so, it has exceeded its margin of appreciation and failed to comply with its positive obligations.¹¹⁴

v.Declaratory Judgment on Article 6(1) ECHR

With a view to the applicability of the right of access to court, the Court reiterated its established case law.¹¹⁵ It narrowed the scope of Article 6(1) to the — S. 182 —applicants’ complaint concerning effective implementation of the mitigation measures under existing law.¹¹⁶ Subsequently, and with reference to its consideration of victim status under Article 8 ECHR,¹¹⁷ the ECtHR considered Article 6(1) ECHR applicable to the complaints of the association, taking a broad understanding of the requirement that the outcome of the dispute must be “directly decisive” for the rights invoked. It denied this to the individual applicants due to the “tenuous” or “remote” effects on their rights.¹¹⁸

To the extent that the Court declared Article 6(1) ECHR applicable, it considered it to have been violated in such a way and to such an extent that its essence was impaired.¹¹⁹ Domestic courts in particular neither addressed the issue of standing of the association nor did they seriously engage with the applicants’ complaints.¹²⁰ The Court also did not refrain from stating that the domestic courts’ findings were not based on sufficient examination of the scientific evidence concerning climate change. In particular, the Court was not convinced by their findings that there would still be some time left to prevent global warming from reaching the critical limit.¹²¹

vi.Consequential Orders — Article 41 ECHR

Despite these ground-breaking victories on admissibility and merits, the Court appeared less prepared to award the applicants the full costs and expenses. It expressed that it was “not convinced” that all the costs and expenses of the proceedings were “necessarily incurred” and considered it reasonable to instead — S. 183 —award a lump sum of EUR 80,000. This is somewhat surprising as the lawyers had documented all their fees and expenses, and considering the long and complex history of the case.

vii.Consequential Orders — Article 46 ECHR

Another loss that the KlimaSeniorinnen suffered in this case concerns their request for consequential orders. The Court refrained from proposing specific measures. “[H]aving regard to the complexity and the nature of the issues involved,” it held that it was “unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment.”¹²² It considered Switzerland to be better placed to determine the specific measures to be taken, subject to supervision and review by the Committee of Ministers.¹²³ This assessment is rather disappointing, since the Court made no effort to explore whether applying its case law on Article 46 ECHR would in fact mandate prescribing measures to Switzerland, considering the clear violations on part of Switzerland, and, as will be seen below, Switzerland’s view that no measures need to be taken to abide by the ruling.

Consequential orders aside, the KlimaSeniorinnen case represents a tremendous success. The Grand Chamber did not shy away from addressing and answering complex and at times unpleasant questions at the intersection of law and science, international climate law and domestic climate law and policy, legislative prerogative and judicial review, and member state discretion and effective human rights protection. The Court appeared clear and prescriptive as regards standards of admissibility and merits, applied its standards consistently to the case, and set a clear course for future cases involving Convention rights for all Member States. Overall, the legal content and impacts of this case are unprecedented.

b.Victim Impact

Given this historic win on the books, how have the victims, ie the climate seniors, perceived this case? This impact can be evaluated from different angles, six of which will be examined in more detail: judicial recognition; vindication; acknowledgment and empowerment; cessation; restoration; and compensation.¹²⁴

i.Judicial recognition

Success for the climate seniors was always about being heard, about being taken seriously, and about having their complaints thoroughly reviewed by a competent body. Vice versa, they would have qualified this case as a failure if — similar to what they have experienced on the domestic level — their complaints had not been heard, and their basic health needs were not taken seriously. In this sense, the acceptance of the case by the ECtHR and the delivery of the climate seniors’ application to Switzerland represented the first step toward countering the sense of helplessness and disempowerment they had experienced.

ii.Vindication

The fact that the seniors were able to rely on mechanisms that forced Switzerland to take a position was positive. Even though the seniors disagreed with Switzerland’s position, it was the first time in this decade-old case that Switzerland substantively grappled with the matter. An important procedural step that really brought the potential of this case to become a landmark case to light was the accordance of priority status and relinquishment of jurisdiction in favor of the Grand Chamber.

For the climate seniors, the hearing that took place in Strasbourg in March 2023 was a key moment. For the first time, once-obscure legal processes became palpable; decision-making instances that previously seemed to hide behind benches and paper now became visible and showed their faces; each of the 17 judges made an effort to show up and asked intriguing in-depth questions. To the seniors, this proved that the judges had diligently studied their case, intensely engaged with the arguments, and were aware of their immense responsibility in delivering the judgment. The hearing was also indicative of the fact that the Court would not take this decision lightly and that, accordingly, the seniors were not expecting that they would experience the same level of arbitrariness in the handling of their claims as they had experienced before national courts.

iii.Acknowledgment and Empowerment

Certainly, they would have considered it a failure if the ECtHR would have rejected all claims and thus found no violation at all. In their view, the case qualified as a milestone with the Court’s finding of a violation of Article 6. This acknowledgement remedied some of the ills the climate seniors had experienced on the domestic level, eg the fact that Swiss courts never substantively grappled with the case; that they did not take the time to carefully review the science; that they considered the seniors’ established basic and — S. 185 —human rights to be on par in terms of affectedness with tourism and water or forest management; or that they glorified the increase in heat and heat periods as a “Mediterranean lifestyle”¹²⁵ the seniors should embrace. By acknowledging and labeling domestic proceedings as flawed, the ECtHR restored the seniors’ trust in the legal process (at least the judicial one). In this sense, the seniors’ experience was one of procedural justice.

iv.Cessation of Ongoing Wrongs and Protection

To the seniors, it was also always clear that a retrospective evaluation of poor decisions by domestic authorities alone would not suffice to assuage their concerns. In essence, the climate seniors considered this case to be the only option for them¹²⁶ to get their government to sufficiently contribute to limiting global warming such that they do not have to live in a constant state of fear, anticipating physical and psychological ills from heat and heat periods. As their lawyer Cordelia Bähr succinctly put it:

The climate seniors want to be protected by Switzerland with the necessary degree of climate protection. They do not want to forego this protection and subsequently be compensated for damages they have incurred. Switzerland seemed to prefer compensation for damages when, in the proceedings before the ECtHR, it argued that the seniors could have filed state liability claims. But that’s not what the climate seniors want: Due to the increased mortality risk, being financially compensated for harm will mean they have died already, and the money will be of no use to them. Rather, the climate seniors want to stay alive and be protected preventatively.¹²⁷

So, a finding of violation of Article 8 ECHR represented an immensely grand success to the seniors. The substance and quality of the Court’s reasoning also mattered to the seniors. The seniors experienced a high degree of satisfaction as the Court grappled with all of their claims, the underlying science, and Switzerland’s international commitments, as the judges acknowledged the harm the seniors had incurred and the threats they are facing, and as the Court dared to meaningfully connect human rights with climate change mitigation.¹²⁸

v.Restoration

The climate seniors knew that no legal orders or measures would bring about restitution, ie to put them back in the situation they would have been in but for the violation. Following the ECtHR’s ruling, however, they anticipated that Switzerland would be pressured, for the first time, to assess in a careful and comprehensive manner what human rights obligations it must observe in the context of climate change mitigation.¹²⁹ It would have to carefully review its existing laws and policies, scope means to assess it in light of these obligations, and come up with a diligent and science-backed plan of how to rapidly reduce its GHG emissions whilst protecting the most vulnerable members of its society. In this sense, the seniors would experience a form of restoration, as Switzerland’s climate law and policy would slowly but surely be put back on a human rights conforming path. The seniors knew all along that their work would not end with the ECtHR’s ruling, and that they would have to insist on their rights being observed for many years to come, even with the most positive outcome. As one of their members said: “[w]e are not naïve enough to believe that much will change from one moment to the next; we must continue to monitor and demand the implementation of this decision.”¹³⁰

In the seniors’ view, it would have been an even bigger success if the Court had ordered the measures Switzerland must take to operate in line with the Convention rights. Doing so would have ensured Switzerland will truly offer the required level of protection and speed up compliance with the Convention. This is particularly relevant considering the urgency of climate change and the irreversibility of the damages it causes, as well as the applicants’ heightened interest in timely remedies at this stage of their lives.

vi.Compensation

The fact that the Court declined to award the seniors the full costs and expenses actually incurred seemed a bitter pill to swallow, given the many wins they had secured with this lawsuit. It also appeared somewhat unrealistic on — S. 187 —part of the judges to consider CHF 324,249.25 an exaggerated number given the complex and long history of this case. The Court’s lengthy judgment of 260 pages itself is a testament to that nature. There is thus little doubt that the judgment did not bring about compensation for the victims.

vii.Symbolic Reparation

The visibility of this case in public discourse added to the seniors’ sense of perceived justice. Over the course of its ten-year existence, this case has brought the issue of climate and health to the forefront of public attention. As their lawyer put it:

This case raised public awareness that climate change actually has a negative impact on human health and that people are actually dying due to man-made global warming, that many people are suffering from global warming, that global warming does not just mean one can go to the swimming pool more often and eat more ice cream. Many people are actually suffering from it.¹³¹

The media played a key role in raising this awareness, through the many interviews, reports, articles, pictures taken etc. In this context, the seniors noted that the interest of foreign media in this case was noticeably higher than that of domestic ones. Thus, in this respect, reaching the level of the ECtHR proved positive. Science and academia, too, added to the success of this case. Since it was first filed, various new studies have been produced, be it on the health effects of climate-related heat and heat periods, causation, how to calculate fair shares, how to connect human rights with climate change mitigation, how to evaluate effects of climate change policy and law, and many others.

Thanks to this case, various stakeholders have been inspired to follow the seniors’ legal strategy. A month prior to the ECtHR’s ruling, several farmers and farmers’ associations filed a similar request to DETEC, this time claiming that the Government’s lax climate laws and policies threaten their economic freedoms and property rights.¹³² Outside the courtroom, this case — which is now pending before the Federal Administrative Court following a decision of rejection by DETEC¹³³— has mobilized people to become active and vocal for — S. 188 —more stringent climate protection. The seniors themselves in this respect lead by example. In the words of their lawyer:

The climate seniors are extremely committed and fight for their rights, invest a lot of time and passion, and have really taken the reins into their own hands. They are omnipresent at various events, in the media and in films. And they put all their heart and soul into it. It’s a huge pleasure and a great honor for me to be able to fight for these senior women and hopefully help them secure their rights.134

c. Policy Impact Given the historic win of the KlimaSeniorinnen case in Strasbourg, many had assumed that Switzerland will (have to) fundamentally alter its take on climate mitigation, ie that the case would have tangible impacts on Swiss climate law and policy. After all, by virtue of Article 46 ECHR, Member States have undertaken to comply with the final judgments of the Court in all cases in which they are involved. However, the hope for expected policy impacts remains unfulfilled to this day. Early on, the ruling met with sharp criticism in Switzerland, be it by political parties, major media outlets, or former judges of the Swiss Federal Court.135 This criticism promptly led to heated debates in the Federal Parliament, with politicians denouncing the Court’s judgment as an “interference” and several of them even mocking the climate seniors. Michael Graber from the Swiss People’s Party, for example, claimed the climate seniors brought this case “because they are a bit too hot in the summer.”136 Similarly, Jean-Luc Addor, from the same party, dismissed the climate seniors as “just a bunch of [female Baby boomers] who are trying to deny our children the living conditions they have 134 Interview with Cordelia Bähr (n 20).

135 Swiss Radio and Television (SRF), for example, asked its readership: “Do you think it’s

good when courts interfere in climate policy?” (‘EGMR: Schweiz verletzt Menschenrechte bei Klimafragen’ (SRF 9 April 2024)). The Tages-Anzeiger newspaper spoke of a “dangerous ruling” (Stefan Häne, ‘Dieses Klima-Urteil birgt eine Gefahr’ (Tages-Anzeiger, 9 April 2024)) by “foreign judges” (Iwan Städler and Jaqueline Büchi, ‘Ärger über “fremde Richter”? Klimarüge kratzt am Schweizer Selbstverständnis’ (Tages-Anzeiger, 11 April 2024)). The Aargauer Zeitung spoke of an “undermining of democracy” (Pascal Ritter, ‘Übersteuern Richter die Demokratie? Was Sie jetzt über das Klimaseniorinnen-Urteil wissen müssen’ (Aargauer Zeitung, 9 April 2024)) and former federal judge Meyer spoke of a “crossing of the Rubicon” (Ulrich Meyer, ‘Der Menschenrechtsgerichtshof hat den Rubikon überschritten’ (NZZ, 12 April 2024)). The Swiss People’s Party (SVP) in particular described the decision as “brazen interference by foreign judges in Swiss politics” and called (unanimously) for Switzerland to withdraw from the Council of Europe: Swiss People’s Party, ‘Inakzeptable Einmischung der Strassburger-Richter: SVP-Fraktion fordert einstimmig die Kündigung der EMRK’ (17 May 2024) press release.

136 Reuters, ‘Swiss Parliament Snubs European Court Climate Ruling’ (12 June 2024).

enjoyed all their lives.”¹³⁷ In view of the increased mortality that older women in Switzerland are already facing today due to anthropogenic climate change,¹³⁸ such statements are telling of the level of respect, responsibility, and accountability that Swiss parliamentarians are willing to assume for their actions, and the extent to which they take the claims of their people seriously. Other parliamentarians clearly saw such debates as crossing a red line, and activists gathered outside the parliament building held up signs that read: “betrayed,” “shocked,” and “alarmed.”¹³⁹

The debate culminated in a vote of the Federal Parliament in June 2024 to snub the ECtHR’s decision. First the upper and then the lower house of the parliament accused the Strasbourg judges of “inadmissible and inappropriate judicial activism.”¹⁴⁰ Among other objections, they claimed that the Court had created a “new human right” (ie a right to climate protection), which would be far removed from the Convention’s text and spirit, and that it thereby exceeded the limits of dynamic interpretation.¹⁴¹ They further suggested that the Court failed to observe the principle of subsidiarity, openly questioned its legitimacy and “observed” (yet threateningly) that this “could lead to a weakening of the effective protection of human rights in Europe.”¹⁴² Finally, they called on the Federal Council to inform the Committee of Ministers that Switzerland “sees no reason to follow the Court’s judgment”¹⁴³ since its previous efforts and new laws and amendments would show it abides by all domestic and international climate-related obligations.

Rosmarie Wydler-Wälti, speaking for the KlimaSeniorinnen in the aftermath of the parliamentary votes, expressed, in light of what she characterised as an appalling move, Switzerland would be unworthy of being considered a constitutional state. She stated: “[t]he declaration is a betrayal of us older women — and of all those who are suffering from the real consequences of — S. 190 —global warming today and in the future.”¹⁴⁴ In a similar vein, Greenpeace Switzerland said that “the declaration is an attempt to continue to prevent human rights climate protection for political reasons, rather than recognizing that climate change is a scientific reality that affects everyone.”¹⁴⁵

In August 2024, the Federal Council, responsible for ensuring the implementation of the judgment, took a stand on the issue. The Council could have called for a more detailed analysis of the judgment and its implications; it could have criticized some parts of the judgment and underlined the importance of others; it could have pushed back on parliament for dishonoring the climate seniors and meddling in the executive’s affairs — yet it did none of those things. Whilst reinforcing the ECHR and Switzerland’s membership in the Council of Europe (CoE), the Federal Council criticized the Court’s “broad interpretation” of the Convention rights, and it too, saw no reason for further adapting its climate law and policy.¹⁴⁶ In addition, the Federal Council communicated the statement in writing and even refrained from holding a press conference. To this day, parliamentary debates are rife with proposals about exiting the CoE due to the ruling. In its most recent session, the upper house rejected a withdrawal but followed MP Andrea Caroni’s proposal to call for the introduction of a new Protocol 17 to the Convention, to remind the Court of its “core tasks,” strengthen states’ margin of appreciation, underline the subsidiary role of the Court, and curb its emerging practice on the locus standi of associations.¹⁴⁷

These recent developments in Switzerland can be interpreted in different ways. A benevolent reading would be that the Federal Parliament, which is not used to judicial review due to the principle of limited constitutional review in Switzerland, has a “natural tendency” to reject condemnation by the ECtHR, too; that the Federal Council chose solidarity with Parliament over respect for the ECHR; and that these idiosyncrasies of the Swiss legal and political system were misused by some to express their political positions, in some instances expressed in ageist and sexist terms.¹⁴⁸ However, considering that — S. 191 —even the Federal Council made no inroads to demonstrate respect for the ECtHR ruling, to remind Parliament of the fact that human rights must be respected regardless of political majorities, or to explore ways to implement the judgment, its broad rejection of the judgment is worrisome.¹⁴⁹ As a majority of public law experts expressed, the Council’s statement sets a concerning precedent that risks undermining the rule of law in democratic governance.¹⁵⁰ After all, Switzerland undertook to “abide by the final judgment of the Court in any case to which [it is a party]”¹⁵¹ and to ensure that its domestic law is compatible with the Convention.¹⁵² Though by far not all judgments of the ECtHR are fully implemented, few Member States have openly refused to implement a judgment.¹⁵³

Following the Federal Council’s statement, Switzerland submitted its action report to the Committee of Ministers in September 2024, detailing the measures it had taken to give effect to the ECtHR’s judgment.¹⁵⁴ This report showed greater respect for the ruling than the Federal Council’s statement, and made more substantial effort to detail Switzerland’s attempts to meet the ECtHR’s human rights standard in the area of climate protection. As laid out in the action report, since the Grand Chamber published its decision, Switzerland has

—awarded just satisfaction to the KlimaSeniorinnen association in the

amount of EUR 80,000 as set out in the judgment;

—closed the regulatory gap of 2025–2030 by amending the CO2 Act, which

came into force on 1 January 2025;¹⁵⁵ and

—adopted the Federal Act on a Secure Electricity Supply from Renewable

Energy Sources by public vote on 9 June 2024, part of which came into force on 1 January 2025,¹⁵⁶ and which is considered to make an important contribution to reducing CO emissions.¹⁵⁷

2

In taking these measures, the Swiss Government claims that it has satisfactorily executed the judgment, which would justify closing the case, ie removing it from the Committee of Ministers’s review.¹⁵⁸ However, with these measures, Switzerland is making changes that appear rather as a cosmetic gesture, and which hardly suffice to respond to the urgency of climate change, the severity of the violation of Convention rights by Switzerland and the critical importance of grounding one’s climate laws in well-established climate science.

Responding to the Swiss action report, the Committee of Ministers, acting through the Ministers’ Deputies, noted that no further individual measures were required in the case, but also did not close the execution proceedings. Instead, it sought more information from the government concerning mitigation and adaptation measures, procedural safeguards and associations’ right of access to a court in climate change litigation.¹⁵⁹ In doing so, it decided to continue monitoring the case, the next meeting of which was scheduled for September 2025.

Six major points remain to be implemented at this point:

1.Switzerland has to determine its carbon budget based on the best available science.¹⁶⁰ Crucially, rather than deducing a carbon budget from its interim targets,¹⁶¹ the targets must follow the budget (just as in finances, government spending is not determined by expenditure wish lists but by the available budget).

2.Said budget must be based on equity and in accordance with Switzerland’s capabilities, as defined by the ECtHR (and irrespective of what parties to the Paris Agreement agreed to).¹⁶² So rather than hiding behind the fact that there is no “one” agreed methodology to develop carbon budgets, and claiming that states can in principle pick and choose their understanding of what “just” and “ambitious” mean,¹⁶³ Switzerland’s carbon budget — S. 193 —must reflect its “fair share” contribution to mitigating climate change,¹⁶⁴ based on the principle of common but differentiated responsibilities and respective capacities, in the light of different national circumstances (CBDRRC-NC).¹⁶⁵

3.Based on the revised budget, Switzerland’s long-term and interim targets,

and the measures needed to achieve them, must be adapted.¹⁶⁶ None of the above changes Switzerland initiated since the ruling have prompted the adoption of more stringent measures, or a review of its reduction targets.

4.Switzerland must still provide evidence showing whether it has duly

complied, or is in the process of complying, with the relevant GHG reduction targets.¹⁶⁷ Despite clear expectations formulated in the ruling, Switzerland has offered no transparency regarding its compliance (or lack thereof) with its own targets. In its earlier CO2 Act, Switzerland had in place interim targets until 2024,¹⁶⁸ the achievement or non-achievement of which has still not been communicated.

5.As part of its due diligence duty, Switzerland must still do better to act in

good time.¹⁶⁹ Contrary to what Switzerland communicates in its action report, the government has been delaying key climate protection measures approved by the people for an unusually long time, even after the ruling was handed down.¹⁷⁰

6.In its three most recent dispatches accompanying proposals for new

laws or major revisions in the context of climate protection (such as of the CO2 Act), the Federal Council has not reviewed their impacts on fundamental rights (such as private or family life) of people likely to be particularly affected by the changing climate — again, despite clear specifications by the Court.¹⁷¹ Instead, the Council narrowly focused on how these legislative changes will affect economic freedom and property — S. 194 —rights.¹⁷² Admittedly, the dispatches were published before the ruling but no changing practices were indicated in the action report, hence they are likely to be omitted going forward, as well.

Without these critical points being addressed and remedied, it is likely that the climate seniors will undergo some form of secondary victimization due to the lack of policy response. Realistically, Switzerland can be expected to continue reacting evasively to the judgment, gradually introducing small changes only in response to significant pressure. This makes it all the more important that the Committee of Ministers maintains a strong stance at its second meeting on this issue, when it deliberates on whether or not Switzerland is complying with the general measures required by the ruling. In doing so, it will hopefully continue to closely scrutinize the climate seniors’, NGOs’, and human rights institutions’ communication about Switzerland’s implementation of the judgment (or lack thereof),¹⁷³ to gain a more profound understanding of the problems on the ground, the challenges to implementation, and local knowledge of particular issues.

Looking beyond national borders, there is justified hope that despite Switzerland’s unfortunate reaction to the ruling, the KlimaSeniorinnen ruling will impact all other CoE member states, who will now have to carefully assess their laws and policies in light thereof, and reinforce their efforts to effectively mitigate climate change for the sake of respecting core human rights.

4.Conclusion

Over the past decade, the Swiss government has done little more than gloss over its lax performance in climate mitigation. In the meantime, a determined group of senior women have invested enormous time, financial, and human resources to identify gaps in Swiss climate law and policy and find creative and meaningful new avenues to start remedying its biggest shortcomings. As the first group in the world to overcome the extremely difficult political and — S. 195 —legal hurdles before the ECtHR in climate change matters, they obtained a landmark ruling that will be decisive for decades to come. As such, the Klima-Seniorinnen case represents one of the most influential cases in the expanding landscape of climate litigation.

Legally speaking, it features all ingredients of what makes a case “successful” and secured tremendous wins in terms of outcome, in particular on admissibility and merits. In the 260-page judgment, the Grand Chamber took a fundamental stance on the role of the court in climate litigation. For the first time, it confirmed the right of individuals to effective protection by state authorities against the serious adverse effects of climate change on their lives, health, well-being, and quality of life, which flows from Article 8 ECHR. The Strasbourg Court firmly established that Switzerland’s law and policies fall short of its positive obligations and found a violation of Article 8 ECHR. The ECtHR also found a violation of Article 6(1) ECHR, as the domestic authorities and courts did not deal with the case in substantive manner. Given the sincerity, clarity, and depth of the judgment, the climate seniors, for the first time in this decade-old case, experienced a sense of judicial recognition, vindication, acknowledgment and empowerment, as well as a sense of closure and restoration (though not compensation).

With its judgment, the ECtHR gave Switzerland an uncomfortable gift on the 50th anniversary of its ratification of the ECHR that both its legislature and executive seem unwilling to accept. In its official statement, the Federal Council openly criticized the Court for interpreting the Convention too broadly, accused it of failing to consider its newest legal and political developments, and stated that no further measures will be taken in response to the ruling. This was accompanied by ageist and sexist remarks about the climate seniors both in the media and in political discourse, and topped off with a rather evasive action report that seems to display Switzerland’s disregard for the judgment more than its respect for it. The KlimaSeniorinnen case, at this stage, has a bitter aftertaste, as Judge Eicke tragically predicted in his dissent,¹⁷⁴ yet with important lessons to be learned for climate litigation more generally. Firstly, climate change cases that are successful in Court do not necessarily lead to tangible positive changes in law and policy.¹⁷⁵ Second, the likelihood that judgments by domestic courts will bring about such change may be higher, depending on the authority and domestic acceptance of ECtHR rulings. Thirdly, — S. 196 —domestic discourse following a ruling brings to the fore the dominant problems that afflict a country, in this case disregard for climate-related dimensions of human rights, an unwillingness to consider and involve especially vulnerable groups, and an open refusal to do better when it comes to mitigating climate change. Fourthly, and related to this, lack of policy impact may lead to a double-victimization of affected people. Finally, and most importantly, regardless of its effects in Switzerland, the KlimaSeniorinnen case is bound to alter the course of climate law and policy within and beyond Europe, and, as such, make history for decades to come.¹⁷⁶ It remains to be hoped that, despite these regrettable events and bitter learning moments, the spirit of the climate seniors will endure; that stakeholders from various fronts become interested and active in shaping government actions that impact human rights and the climate alike; and that experts from different disciplines will address the complexity of this case to show how the victim and policy implications can be better managed and secured in the future.