European Court of Human Rights Hears Climate Litigation Cases

This year, the European Court of Human Rights (ECtHR) has heard two cases regarding the obligations of States in relation to climate change, and is due to hear another before the end of the year.

The two cases heard so far were Verein KlimaSeniorinnen Schweiz and Others v. Switzerland and Carême v. France, both heard on 29 March 2023. The next case, Duarte Agostinho and Others v. Portugal and Others, is scheduled for hearing on 27 September 2023.

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland

The Applicants of this case are an association of older women alongside four individual elderly applicants, claiming the Swiss government has failed to implement adequate measures to combat climate change.

They argued that this poses a significant risk to the lives and health of elderly women, who are particularly vulnerable to the impact of increased temperatures and heatwaves. Despite requesting for action to be taken, the request was deemed inadmissible by the Federal Department of Environment, on grounds that the applicants’ rights were not directly affected. Their appeal to the Federal Administrative Court was also dismissed on grounds that they were not the only group affected by climate change, and so could not be regarded as victims.

The Applicants argued that Switzerland is in violation of Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR). Further, by refusing their application for action to be taken, the Applicants argued that Switzerland is also in violation of Articles 6 (right to fair trial) and 13 (right to effective remedy) of the ECHR.

The Irish government were joined as third parties to the proceedings. They argued against the application of the association. It was submitted:

-      The asserted obligations were beyond the scope of interpretation of the ECHR.

-      The Applicants could not be deemed ‘victims’ for the purposes of the alleged violations of the ECHR.

-      The asserted obligations amounted to interference with the democratic law-making and regulatory powers of individual States, who were entitled to a wide degree of discretion in reinforcing their obligations under the ECHR.

Carême v. France

The Applicant is the former mayor of the city of Grande-Synthe in France, seeking to impose an obligation on the French State to take further action against climate change.

After making an (unsuccessful) request in his own name and the name of his municipality for the French government to take urgent and appropriate action against climate change, the Applicant and municipality applied to the Conseil d’État for judicial review of the tacit rejection. However, the Conseil held the Applicant could not prove he had an interest giving him standing to seek judicial review of the decisions (albeit, it held the municipality did have sufficient interest, due to its significant exposure to risks caused by climate change). The application was rejected (save in relation to the implicit refusal to take appropriate measures against producing emissions, which the Conseil set aside, urging the government to take action by the end of March 2022 to meet its obligations under the 2015 Paris Agreement on Climate Change).

The Applicant argues the action taken by France against global warming has been insufficient, regarding issues such as the authorities’ failure to take all appropriate measures for the State to meet its own targets for maximum levels of emissions. He claims there is an obligation for States to take necessary measures to protect the lives of people within their jurisdiction from environmental hazards. He also argues that the Conseil’s finding that he had no interest in bringing proceedings had disregarded his right to private and family life.

He submits this is a violation of Articles 2 (right to life) and 8 (right to respect for private and family life) of the ECHR.

Duarte Agostinho and Others v. Portugal and Others

The Applicants of this case are six Portuguese youths, making a claim against the 33 Contracting States to the 2015 Paris Agreement on Climate Change.

They argue that these States have failed to comply with their obligations under the Agreement to keep the increase in global average temperatures to less than 2° C above pre-industrial levels and to take action to limit the temperature increase to 1.5° C. The Applicants submit that the signatory States are obliged to take measures to adequately regulate their contributions to climate change.

The Applicants claim their right to life is threatened by the impact of climate change in countries such as Portugal (e.g., due to the increase in forest fires). They argue their right to privacy includes a right to protection of their physical and mental wellbeing, which are threatened by both heatwaves and the anxiety of living in an increasingly dangerous environment. Further, they contend that as young people, they are disproportionately impacted by the worst effects of climate change.

The Applicants claim the Respondent States’ failure to take sufficient action against climate change amounts to a violation of Articles 2 (right to life), 8 (right to respect for private and family life), and 14 (prohibition of discrimination) of the ECHR.

It is difficult to speculate on the outcome of the cases, but the rulings will represent important guidance on the admissibility and merits of such cases before human rights courts. The cases are likely to become leading judgements for the 46 Council of Europe Member States, as the ECHR is expected to define whether, and to what extent, States violate human rights by failing to mitigate the impacts of the climate crisis.



Sustaining Partners