Last week, a landmark ruling in Europe’s top human rights court found that Switzerland’s government had violated the human rights of its citizens by failing to act on climate change. The European Court of Human Rights ruled in favour of over 2,000 Swiss women, all aged over 64 years old, who argued that the government’s climate inaction was placing them at higher risk of death during heatwaves.
The group of women, known as ‘KlimaSeniorinnen Schweiz’, argued that elderly women are particularly vulnerable to the effects of heatwaves, which are becoming more frequent and more intense, as a result of climate change. Their claim was based on studies that have shown that women over the age of 75 are particularly prone to heat-related medical problems, such as “dehydration, hyperthermia, fatigue, loss of consciousness, heat cramps, and heat strokes”.
The ruling was the culmination of over eight years of litigation, with the Court of Human Rights agreeing that the Swiss government’s policy failures violated Article 8 of the European Convention on Human Rights, which protects citizens’ rights for respect for private life, family, and home. The Court’s President, Siofra O’Leary, said that the Swiss government had failed to comply with its own targets as well as failing to set a national carbon budget and that “future generations are likely to bear an increasingly severe burden of the consequences of present failures and omissions to combat climate change.”
Rebekah Markey-Towler, a PhD candidate at the Melbourne Law School and climate litigation researcher, tells Missing Perspectives that the ruling is a “landmark moment in the courts saying these [climate] impacts are here and now and they’re affecting people’s human rights.”
Following the ruling Switzerland will now be obligated to update its climate change policies (although the European Court of Human Rights can’t dictate the details of this). As well as setting a precedent for all countries that are party to the European Convention on Human Rights and emboldening citizens of other countries to take similar action in Europe, the ruling could also influence decision-making in other international courts.
What is climate litigation?
The planet is starting to witness the devastating effects of climate change, with 2023 smashing records for the hottest year on record by a large margin. Antarctic sea ice coverage has dropped to a record low and ocean heating has led to the most extensive coral bleaching event on the planet on record, with the Great Barrier Reef suffering its most widespread heat stress this year. The Swiss ruling fits into a broader trend of climate litigation, which is the act of fighting for climate action or justice in a legal environment.
Increasingly, citizens are coming to climate litigation as an effective method to combat the climate crisis, with governments and private companies increasingly being held to account for their actions (or lack thereof). In 2023, there were over 2,100 climate change cases across the world, representing a dramatic increase from 2017, which only saw 884. These 2023 cases represented 65 jurisdictions around the world – although the vast majority are pursued in the US. With increasing climate litigation, the world is also witnessing a broadening of legal grounds on which to take legal action, with the United Nations Human Rights Council and the United Nations General Assembly both recognising the right to a clean, healthy and sustainable environment in 2022.
Climate litigation is also proving to be genuinely effective and the UN’s Intergovernmental Panel on Climate Change (IPCC) has recognised that it’s proving to be an important avenue for actors to influence climate policy outside of the formal processes undertaken by the UN’s Framework Convention on Climate Change (UNFCCC). In other words, the people undertaking this work are making a tangible difference on a global scale.
Australia is the second most active nation in the world when it comes to climate litigation, which Markey-Towler says may be due to several factors, including our specific vulnerability to the impacts of climate change, years of government inaction on climate, as well as more mundane cases to do with planning disputes.
In recent years, Australia has seen legal action such as the case of Sharma v Minister for the Environment, which saw eight teenagers launch a class action against the Federal Minister for Environment in 2021, claiming that the Minister had a duty of care to protect Australia’s young people against future harm caused by climate change. While the group initially enjoyed a victory in the case in 2021, that hope was quickly extinguished when the court’s decision was challenged by then-Environment Minister Sussan Ley, who successfully appealed the decision in federal court a year later.
There have also been explicit successes, including a group of young people who took on a Clive Palmer-owned coal project in the Galilee Basin and won in 2022, with a Queensland court ruling that its contribution to climate change and environmental impacts would erode human rights. In the same year, a group of eight Torres Strait Islander people, known as the Torres Strait 8, made international legal history when the United Nations Human Rights Committee ruled that the Australian government was violating their human rights obligations through climate change inaction.
When is climate litigation successful?
Markey-Towler says that with every historic victory, such as the world has witnessed in the Swiss case, people around the world are watching, to try and follow similar blueprints. “We are seeing litigants looking at the strategies of people in lots of different countries and bringing similar claims to them,” Markey-Towler says. The violation of human rights legislation has become a particularly successful focus for litigants in the past couple of years but activists are also taking different tacts, including taking on the private sector over issues such as greenwashing.
Climate litigants are becoming increasingly innovative, Markey-Towler says, and the ripples of success are making their way around the world, motivating other groups to pursue similar avenues. However, it is worth noting that climate litigation can be extremely costly and extensive, so the vast majority of these cases are backed by either established environmental organisations or private donors (the Swiss women’s group was financially backed by Greenpeace).
It’s also important to recognise that many of these cases may not prove successful – in fact, the European Court of Human Rights recently rejected the claims of two other climate cases from Portugal and France, although Markey-Towler says that these didn’t work out for fairly mundane procedural reasons. When cases are lost, in many countries, this leaves litigants vulnerable to costly legal bills, particularly when they’re taking on private entities that have a lot more resources at their disposal than litigants.
Should we be relying on climate litigation for global climate action?
While stories such as the Swiss victory are extremely heartening and will result in more climate action in Switzerland, Markey-Towler notes that ultimately, climate litigation can not replace federal policy.
While victories in court can result in a net benefit for many people, litigation tends to represent the interests of one person or group of people in particular, on a single issue. “It’s no substitute for the actions of governments, which are a more holistic approach,” Markey-Towler says. “It’s only one tool to help get more ambitious action on climate change and in some ways it’s quite limited as a tool.”
In addition to this legal action being taken, Markey-Towler says that it’s important that citizens push their governments to develop strong legislative and policy frameworks to take action on climate.