Climate Change Litigation: International court rules on violation of human rights in landmark climate case

In recent years, there has been a significant increase in legal actions that concern the impact of climate change, both nationally and internationally, and now, for the first time, the European Court of Human Rights (ECtHR) have made a definitive contribution to case law on the issue.

In their April 2024 judgment in the matter of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland the ECtHR found that Article 8 of the European Convention on Human Rights (ECHR), being the right to respect for private and family life, is impacted by climate change.

In this article, we discuss the key findings of the ECtHR and the impact of those findings, before comparing the outcome to similar lawsuits in Australia and England. Finally, we consider the potential impact of the “Climate Seniors” action on current environmental appeals in Germany which will soon be determined by the Federal Court of Justice.

The successful case of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland

Background and outcome

The successful case was brought by a Swiss Association whose members are older women concerned about the impacts of global warming on their health and living conditions. Their action against the Swiss government largely concerned the allegation that the government was not taking sufficient steps to mitigate the impacts of climate change on their lives.

Ultimately, the ECtHR determined there had been a violation of Article 8 of the ECHR, which, according to the Court, includes the right to effective protection by state authorities from the serious adverse effects of climate change. Due to incomplete regulation, including the failure to quantify a national emissions limit and the failure to meet targets already set to reduce greenhouse gas emissions, the ECtHR determined that Switzerland did not adequately meet its obligations under the Climate Convention.[1] The ECtHR further determined there was a connection between the inadequacy of the Swiss climate protection measures and serious dangers to the health and private and family life of the plaintiffs, and therefore the plaintiffs had proven that there was a violation of Article 8 of the ECHR by Switzerland.[2]

Impact of the decision

The judgement is likely to lay the foundation for further climate lawsuits in Europe, due to its binding effect on the “High Contracting Parties” (including Germany[3]) in accordance with Article 46(1) of the ECHR.

Importantly, not only does the judgment further develop the standing to sue, but it also the develops the substantive scope of the ECHR rights (in particular Article 8 of the ECHR).[4] In expanding the scope of Article 8, the ECtHR emphasises the need for a dynamic interpretation of ECHR provisions,[5] (this is also known as the “living doctrine” method, through which the ECtHR treats the ECHR as a living instrument that must be interpreted under present day conditions[6]).

Similar cases in other jurisdictions

The recent ruling of the ECtHR follows a trend in climate actions around the world.

Notably, in Australia, in 2021 a group of young people were successful at the first instance before the Federal Court of Australia in securing a determination that the Minister for the Environment in Australia had a duty of care towards young people in exercising her powers.[7] The decision was overturned on appeal,[8] but brought the possibility of successful climate change related arguments to the forefront in Australia.

This was followed by a similar case in 2022, in which the Queensland Land Court refused to grant a mining lease and environmental authority for a new coal mine, with one of the grounds for refusal being the impact of the mine on climate change and human rights (pursuant to the Queensland Human Rights Act).[9]

Plaintiffs seeking environmental justice in the UK are yet to experience similar success, with a high profile case brought by activist organisation Client Earth brought against the directors of Shell for failing to manage the material and foreseeable risks posed to the company by climate change failing on appeal to UK’s highest court in May 2023.[10] However, such setbacks are unlikely to deter plaintiffs, with another case currently on foot against the UK government, which alleges the UK’s “National Adaption Program” is not sufficient to mitigate the impacts of climate change and the government has failed to protect a number of human rights.[11] The UK is a signatory to the ECHR, and undoubtedly the “Climate Seniors” decision will be raised by plaintiffs in their favour as the matter progresses.

We will monitor further developments, also in other jurisdictions, and keep you updated.

Impact on national cases in Germany

In Germany, the German Environmental Aid organisation (DUH) is currently pursuing two appeals against denials of leave to appeal before the Federal Court of Justice, after its environmentally focused actions were dismissed on appeal before both Higher Regional Courts in Munich and Stuttgart.[12]

In short summary, on 8 November 2023, the Higher Regional Court of Stuttgart dismissed DUH’s appeal against carmaker Mercedes-Benz, ruling that the unlawfulness required for liability under Sections 1004, 823 BGB was not found.[13] However, the Higher Regional Court of Stuttgart left open whether a “fundamental right to an ecological minimum subsistence level“ or a similar “right to a humane future“ can be derived from Article 20a of the German Basic Law.[14] Separately, in its judgement of 12 October 2023 dismissing the DUH’s action, the Munich Higher Regional Court clarified that DUH’s claim regarding the disruptive capacity of BMW, failed due to unlawfulness,[15] and that the defendant did not have capacity to cause interference, as BMW had no influence on future legislative measures.[16]

Due to the binding effect of the ECtHR judgements for Germany,[17] the Federal Court of Justice is unlikely to ignore this new key precedent on the interpretation of European fundamental rights when considering DUH’s appeals.

A possible approach that the DUH may implement in bringing its appeals could be to request that there be a legal assessment or interpretation of Sections 823 and 1004 of the German Civil Code in the light of the new case law of the ECtHR as set out above.

German case law currently tends to favour the view that the implementation climate protection targets is the responsibility of the democratically elected legislator, and not the courts, in accordance with constitutional requirements.[18] Further, as described above, the ECtHR interprets the ECHR dynamically, which differs from the approach in Germany. From a constitutional point of view, further development of law by courts must be viewed critically due to the principle of separation of powers that applies in democracies and the resulting weakening of parliamentary legitimacy,[19] as further development of law can, under certain circumstances, constitute an overstepping of constitutional powers.

Conclusion and outlook

By upholding the climate action brought by the Climate Seniors, the ECtHR has significantly expanded its sphere of influence. As a result, the ECtHR’s original purpose of protecting individuals in the event of violations of fundamental rights by the “High Contracting Parties” is likely to evolve, such that environmental organisations will be able to have “victim status”, and the ECtHR will take into account the violation of fundamental rights of not just individuals, but also collective groups.

When examining the merits of the appeals brought by the DUH, the Federal Court of Justice is unlikely to disregard the ECtHR case law outlined above, even if it was issued with regard to a state obligation to protect the climate. If the Federal Court of Justice were to follow the “Living Doctrine” interpretation of the law, then German legal concepts which were previously clear, such as that of the role of the “interferer”, could be seen in a new light.

The eventual outcome of the decisions of the German Federal Court of Justice are therefore anticipated with great interest.

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[1] Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, Application no. 53600/20.

[2] Ibid.

[3] Council of Europe, ETS No. 005; Our Member States - The Council of Europe in brief (coe.int).

[4] Wende, Das KlimaSeniorinnen-Urteil des EGMR - Was ist neu daran?, EnK-Aktuell 2024, 010346, quoted from beck-online.

[5] Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, Application no. 53600/20, para. 257.

[6] Klocke: Die dynamische Auslegung der EMRK im Lichte der Dokumente des Europarats, EuR 2015, 148, quoted from beck-online.de.

[7] Sharma v Minister for the Environment, [2021] FCA 560 and FCA 774.

[8] See Sharma v Minister for the Environment, [2022] FCAFC 35.

[9] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21.

[10] See legal-briefing-clientearth-v-board-of-directors-of-shell-v2.pdf.

[11] See UK government facing legal action for failing to tackle climate change - but it could backfire (theconversation.com)

[12] See more details in our last Quarterly Update 01/24.

[13] OLG Stuttgart of 8 November 2023 - 12 U 170/22, para. 59 ff, quoted from beck-online.

[14] OLG Stuttgart of 8 November 2023 - 12 U 170/22 para. 72, quoted from beck-online.

[15] OLG Munich of 10 December 2023 - 32 U 936/23 para. 66, quoted from beck-online.

[16] OLG Munich of 10 December 2023 - 32 U 936/23, para. 89, quoted from beck-online.

[17] See above FN. 29.

[18] S. LG Stuttgart of 13/09/2022 - 17 O 789/21, confirmed by OLG Stuttgart of 08/11/2023 - 12 U 170/22. 

[19] Ibid., para. 150.