A new precedent for climate change in human rights law

In April 2024, the European Court of Human Rights (ECtHR) ruled that the Swiss Government’s climate policies violated human rights.

The judgment said that the right to a private and family life meant that states are obliged to protect their citizens from the “serious adverse effects” of climate change.

This Insight covers what evidence was used, how human rights may have been violated, and implications of the judgment on future legal action.

What was the case about?

The Swiss association ‘Verein KlimaSeniorinnen Schweiz’ (representing older women concerned about the consequences of climate change on their health) and four individual women sought to challenge the Swiss Government’s climate policies, which they claimed violated their human rights by failing to address climate change.

Verein KlimaSeniorinnen Schweiz argued that older women in particular were more vulnerable to climate change as they are more likely to die in heatwaves. They argued that the Swiss Government was not taking sufficient action to address, mitigate and adapt to climate change.

The court ruled that Switzerland had a responsibility under the European Convention on Human Rights (ECHR) to mitigate climate change effectively to protect the human rights of its citizens.

What evidence was used in the case?

In order for the case to be successful, the claimant had to establish that Swiss climate change polices had not provided effective protection from the effects of climate change in violation of their rights under Article 8 of the ECHR (the right to family and private life).

The legal team representing Verein KlimaSeniorinnen Schweiz used attribution studies (research that looks to attribute climate impacts to human actions) to demonstrate the link between climate change and damage to human rights.

For example, it cited a study indicating that deaths from heatwaves were attributable to human-induced climate change in Switzerland over a period of 50 years.

What did the court say?

The court ruled that Article 8 of the ECHR included a positive obligation on states to provide effective protection “from the serious adverse effects of climate change on lives, health, well-being and quality of life”.

The court found that the Swiss Government had failed to comply with its obligations, because it had:

• failed to implement a domestic regulatory framework, including a failure to quantify national greenhouse gas emissions limitations (for example, through instituting a carbon budget)
• failed to meet past greenhouse gas emission reduction targets.

The Swiss Government told the Financial Times that it “takes note of the judgment” and would consider “the measures which Switzerland has to take for the future”.

The ECtHR’s UK judge, Tim Eicke KC, disagreed with the majority’s judgment, saying that the court had created a new right which had no basis in the ECHR. He said that by doing so, they had gone well beyond the permissible limits of interpretation of the ECHR as a matter of international law.

Legal precedents and future climate cases

Increasingly, courts are recognising a link between human rights and climate change as climate change related case numbers increase.

The court’s ruling developed the legal basis for alleged breaches of human rights provisions due to climate change, setting out a number of factors that countries taking action on climate change should be assessed against. These include:

• measures that indicate a specific target timeline to achieve net zero carbon emissions (or a specific reduction)
• intermediate greenhouse gas emission targets
• evidence showing compliance with these targets
• updates to targets based on best available evidence, and
• acting in good time.

The judgment also sets a precedent for other countries party to the ECHR to “put in place the relevant legislative and administrative framework designed to provide effective protection of human health and life” as part of Article 8, and to provide a means to hear climate cases under Article 6 (which protects the right to a fair trial).

Implications of the ruling

Encouraging future climate litigation

The Centre for International Environmental Law (a campaign group) said “we expect this ruling to influence climate action and climate litigation across Europe and far beyond”, whilst Ashurst (a multinational law firm) said the decision “will likely encourage claims of this nature”.

WWF Switzerland, a conservation organisation, said the judgement will set a “far-reaching precedent”.

Professor Stefan Thiel argued that the judgment represents a natural development in the court’s ‘living instrument’ approach to environmental cases. The judgment recognised that states should have a broad discretion, known as the ‘margin of appreciation’, when determining how to comply.

Threatening the political legitimacy of the court

Some commentators have suggested that there may be political consequences for the ECtHR.

Robert Shrimsley, Chief Political Commentator at the Financial Times, said that the judgment “intrude[d] further into national politics”, with the risk that nations frustrated by the court might stop abiding by “awkward” rulings.

Former UK Supreme Court Justice Lord Sumption wrote in the Times that the judgment was the court’s “boldest intrusion yet” into democratic decision making, and that it had become an “avowed enemy” of good government. As a result, he said that the UK should seriously consider to withdrawing from the ECHR.

About the authors: Nuala Burnett is a senior researcher at the Commons Library specialising in climate change, and Joanna Dawson is a senior researcher at the Commons Library specialising in human rights.

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