On 9 April, the European Court of Human Rights (ECHR) gave the not entirely unexpected but nonetheless groundbreaking ruling in KlimaSeniorinnen and others v Switzerland that the rights to life and family life offer protection against the effects of climate change and entail a positive obligation for states to take sufficient steps to prevent climate change. Below I give a first analysis of the questions of:

i. what margin of appreciation the ECHR leaves to states to determine their climate policy and reduction targets, and

ii. what implications the judgment may have for further climate litigation against states and companies.

The margin of appreciation left to states

The right to life and right to family life apply to climate change

The ECHR first observed that the right to family life in Article 8 of the European Convention on Human Rights (Convention) encompasses a right for individuals to effective protection by state authorities against serious adverse effects of climate change on their life, health, well-being and quality of life. States therefore have a positive obligation to prevent climate change. The right to life in Article 2 Convention can also be affected by climate change, but here a higher threshold applies. This right is only violated if there is a "real and imminent risk" to life due to climate change. In its judgment, the ECHR focused solely on whether Article 8 is violated, and not on whether the higher threshold of Article 2 had also been met.

Standing

The complaint was brought by four individual women and an association, KlimaSeniorinnen, whose aim was to promote and implement climate protection on behalf of its 2000 members, one-third of whom are over 75. The applicants argued that especially older, adult women and persons with chronic diseases had the highest risk of temperature‑related morbidity and mortality. The ECHR ruled that the complaints of the four women were inadmissible, because they could not show that they were or would be exposed to the adverse effects of climate change with the necessary degree of intensity that would give rise to a pressing need to ensure their individual protection. Although associations do not normally have standing before the ECHR, the court ruled that the specific issue of climate change as a common concern of humankind justified granting standing to associations, subject to certain conditions that are mentioned in the judgment. As KlimaSeniorinnen fulfilled these criteria, the ECHR went on to consider the substance of the complaint. This shows that individuals face a high threshold when it comes to complaining that climate change violates their right to family life, while associations have been granted a broader standing than usual in matters regarding climate change.

Margin of appreciation

The ECHR subsequently observed that, although states normally have a wide margin of appreciation under the Convention, the scientific consensus on the severity of the consequences of climate change and their effect on human rights justifies a reduced margin of appreciation regarding the reduction targets that states must set and implement. However, states do retain a wide margin of appreciation in their "choice of means", i.e. the policies and measures that states use to achieve their targets. On what can be expected of states, the ECHR ruled that Article 8 requires them to undertake measures to sufficiently reduce their greenhouse gas emissions "with a view to reaching net neutrality within, in principle, the next three decades". This observation seems to imply that states have little room to set a lower reduction target than a net-zero target for around 2050.

Evaluation criteria

To assess whether a state violates Article 8, the ECHR therefore evaluates whether the state has:

a. Adopted general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame;

b. Set intermediate reduction targets and pathways that are capable of meeting the overall reduction goal;

c. Provided evidence on whether the state is complying with relevant reduction targets;

d. Continued to update the reduction targets based on the best available evidence; and

e. Acted in good time and in an appropriate and consistent manner when implementing the relevant legislation and measures.

'Overall' evaluation

The ECHR explained that its assessment of whether a state violates Article 8 will be of an 'overall nature', meaning that a shortcoming in one particular respect will normally not mean that Article 8 has been violated. It is clear, however, that the ECHR adopts a stringent approach, requiring states not only to show that they have set adequate (intermediate) reduction targets, but also to take effective and sufficient measures to actually achieve those targets. The observation that states should generally aim to achieve net neutrality within the next three decades also indicates that the ECHR leaves little room to set unambitious reduction targets.

Climate adaptation

Interestingly, the ECHR observed that, in addition to sufficient reduction measures, states must also take climate adaptation measures to alleviate the most severe and/or immediate effects of climate change.

The evaluation of Switzerland's policies

• The stringent approach of the ECHR is visible in its evaluation of Switzerland's reduction plans. First, the ECHR considered that Switzerland's CO₂ Act 2011 was inadequate, as it set a reduction target of 20% in 2020 compared to emission levels in 1990 despite existing scientific evidence requiring a reduction path of 25-40% by 2020. Moreover, domestic assessments found that even the target of 20% in 2020 had not been met.
• Second, the ECHR observed that, although Switzerland's new Climate Act of 30 September 2022 set the target of net-zero emissions by 2050 and indicated that an intermediate target of 75% should be set for 2040 and an average target of 64% for the years of 2031 to 2040, the concrete measures to actually achieve those targets were not included in the Act and were to be determined "in good time". Nor did the Climate Act set a reduction target for the period between 2024 and 2031. The ECHR stated that it "has difficulty in accepting that the mere legislative commitment to adopt the concrete measures "in good time", as envisaged in the Climate Act, satisfies the State's duty to provide, and effectively apply in practice, effective protection of individuals within its jurisdiction from the adverse effect of climate change".
• Third, the ECHR observed that the applicant KlimaSeniorinnen had substantiated that, if the targets and pathways in the Climate Act were considered, in a scenario with a 34% reduction in 2030 and a 75% reduction in 2040, Switzerland would have exhausted its remaining carbon budget by around 2034. Based on all these circumstances, the ECHR ruled that there were critical lacunae in Switzerland's process of creating and implementing the required regulatory framework, and that it had therefore not fulfilled its positive obligation to prevent climate change. This violated the right to health, well-being and quality of life of (the members of) KlimaSeniorinnen.

Possible implications of the KlimaSeniorinnen case for states and companies

1. The first and most obvious consequence of this ruling is that will likely lead to more litigation by NGOs against Convention states regarding implementation of sufficient reduction targets and measures. The ruling can provide an especially useful precedent in states where thus far the judiciary was reluctant to impose such an obligation on the government based on human rights.


2. This ruling and (potential and actual) litigation by NGOs will put additional pressure on states and could prompt states to adopt more far-reaching and legally binding reduction targets, which would ultimately also affect companies. In the Netherlands, for example, the Urgenda judgment, which forced the Dutch government to achieve a 25% reduction by 2020, led to an acceleration in the closure of coal-fired power plants.


3. The ECHR's authoritative ruling that the right to family life offers protection against the effects of climate change can potentially have an effect on cases against private companies where it is argued that they should achieve a certain reduction target based on a duty to respect human rights. This argument is, for example, being used in the Shell case in the Netherlands, as well as in cases in other jurisdictions against Total, Volkswagen and Eni. Nevertheless, the precise influence of this precedent remains to be seen, as the ruling of the ECHR naturally focuses on the obligations of states rather than companies.


4. Lastly, the ruling may form an important precedent for human rights cases in which it is argued that states have an obligation to prevent loss of biodiversity. On this topic, see the post by my colleague Klaas Valkering.