Last week’s legal victory by the Verein KlimaSeniorinnen Schweiz marked a watershed moment for climate justice. Here, our Legal Officer Isabela Keuschnigg reflects on the verdict and the breadth of its implications for climate law.

On 9 April 2024, the group Verein KlimaSeniorinnen Schweiz (Senior Women for Climate Protection Switzerland) secured a historic win for climate justice and human rights at the European Court for Human Rights against my home country, Switzerland. The case concerned a complaint by four women and an NGO which comprises over 2,000 members who are all senior women concerned about the impacts of global warming on their living conditions and health.

With this blog we aim to provide a brief overview of the ruling and its key implications before zooming in on the extra-territorial aspects of the ruling – particularly, the Court’s assessment of “embedded emissions”. We argue that this may have wider implications for other extra-territorial emissions, such as those from international aviation and shipping (IAS), going forward.

🗓🚨 Herstory is being made ⚖️

The @KlimaSeniorin are at the European Court of Human Rights @ECHR_CEDH in Strasbourg for the ruling of their case against the Swiss government 👵👩‍🦳. This is a historic moment for these women and many across the world! 🌍⚖️ 🧑‍⚖️#ClimateJustice pic.twitter.com/GnygHO7EAI
— Greenpeace International (@Greenpeace) April 9, 2024

The broader significance of the judgment

The significance of this judgment goes far beyond the borders of Switzerland and the Council of Europe Member States; the ruling is expected to have “far-reaching implications” for the development of climate change litigation at the national, regional and international level (for the latter, see ongoing advisory proceedings before the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the Inter-American Court of Human Rights).

The private sector is also well advised to take note of the judgment, given that climate change lawsuits against private sector actors are often based on human rights arguments.

Why does this matter? Climate change litigation can ultimately serve as a lever for systemic change. This has been recognised by the International Panel on Climate Change in 2022, when it held that climate change litigation can influence “the outcome and ambition of climate governance”.

The low-down

The Court found that article 8 § 1 of the European Convention of Human Rights (respect for private and family life) includes a right to effective protection by State authorities from the serious adverse effects of the climate crisis on lives, health, well-being and quality of life.

While the four individual applicants were found not to fulfil victim status criteria under article 34 of the Convention, the association Verein KlimaSeniorinnen Schweiz itself was found to have standing to bring the complaint. In a nutshell, the Court found:

A violation of article 8 § 1 of the Convention due to Switzerland’s failure to comply with its positive obligation to tackle the climate crisis; and
A violation of article 6 § 1 of the Convention (access to court) due to a lack of effective access to court in respect to the association’s complaint concerning effective implementation of mitigation measures under domestic law.

With respect to States’ positive obligations under 8 § 1 of the Convention in the context of the climate crisis, the Court held that States’ primary duties entail the adoption and implementation of regulations and measures capable of mitigating the existing and future effects of climate change. To assess whether a State has complied with this obligation, the Court set out a five-pronged test, next to the availability of procedural safeguards.

*Screenshot from the judgment (with own emphasis), which is available* *here*.

In this regard, the Court found that there had been “critical lacunae” in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework and that Switzerland had failed to quantify, through a carbon budget or otherwise, domestic greenhouse gas emission limitations.

The Court’s consideration of “embedded emissions”

There is much to say about this landmark ruling which spans over 250 pages (see, for example, the ongoing debate on this blog symposium); from the Court’s extensive examination of climate science to its general considerations relating to climate change cases and various procedural and substantive aspects prompted by these “unprecedented issues”.

At Opportunity Green, we were particularly interested in the Court’s consideration of “embedded emissions” (generated through the import of goods and their consumption). These emissions are especially relevant in the Swiss context, as Switzerland is the world’s largest importer of such emissions relative to domestic emissions. In this regard, Geraldo Vidigal pointed out that the judgment could affect Switzerland’s (and other Contracting States’) trade policy. The Court found:

It would be difficult, if not impossible, to discuss Switzerland’s overall contribution to the global temperature increase without taking into account “embedded emissions”;
Although containing an extraterritorial aspect, there is no genuine issue of jurisdiction in the context of the “embedded emissions”, as all applicants are residents of Switzerland; and
Contracting States need to put in place the regulations and measures necessary to prevent an increase in greenhouse gas concentrations in the atmosphere and a rise in global temperature beyond levels capable of producing serious and irreversible adverse effects on human rights.

In the dissenting opinion, Judge Eicke criticises that the judgment has imposed a novel “primary duty” on Contracting States to adopt and implement the effects of the climate crisis, including both emissions from within territorial jurisdiction and “embedded emissions”.

Implications for other extra-territorial emissions

While the Court’s assessment focused on trade-related emissions, at Opportunity Green we believe that these considerations by analogy have broader implications on other extra-territorial emissions such as the substantive greenhouse gas emissions from IAS.

As the applicants pointed out, IAS emissions had nearly doubled since 2004 in Switzerland and in 2019 had been equivalent to approximately 13% of total domestic greenhouse gas emissions. On a global level, the IAS sectors contribute to 2.7% of global emissions and are far off track to meet the Paris Agreement’s temperature limit (for an assessment, see here and here). Notably, the estimated contribution of aviation to global greenhouse gas emissions is exclusive of consideration of its ‘non-CO2’ effects.

Since these emissions make up such a significant proportion of global emissions it is clear that the mitigation thereof is plainly relevant to prevent a rise in global temperature beyond 1.5°C, which would result in serious and irreversible negative effects on the enjoyment of human rights. A human rights obligation to mitigate the adverse effects from the climate crisis therefore also applies to IAS.

The Court also stressed that carbon budgets and policies for net zero emissions could hardly be compensated for by reliance on a State’s Nationally Determined Contribution (NDC) under the Paris Agreement. This is significant, both because current NDCs are insufficient to reach the Paris Agreement’s temperature goal, but also because most States do not currently include IAS emissions in their NDCs.

It is for this reason that at Opportunity Green we submitted written statements to advisory proceedings before ITLOS and to the ICJ where we outlined States’ specific obligations in relation to the mitigation of international shipping and IAS respectively. We will continue to monitor these developments and how these international bodies will treat this issue.

All eyes are now on ITLOS which is expected to issue its advisory opinion in May 2024.

Read more of our legal analysis and our recent submission to the International Court of Justice on its upcoming advisory opinion.

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