Case Study of KilmaSeniorinnen v Switzerland

Facts:

In 2016, a group of women have brought action against the Federal; Council, the Federal Department of the Environment Transport, Energy and Communications (DETEC), the Federal Office for the Environment, and the Federal Office for Energy. They have claimed that these Swiss government bodies have failed to uphold obligations under the Swill Constitution, and European Convention of Human Rights.

This has occurred due to failing to persuade Switzerland onto an emissions reduction trajectory consistent with the requirement to keep global temperatures below 2C above pre-industrial levels. As a result of this, petitioners claimed that the Swiss Government has breached Articles 10 (right to life), 73 (sustainability principle), and 74 (environmental protection) of the Swiss Constitution. Additionally, Articles 2 and 8 of the European Convention of Human Rights were also breached.

Thus, the group of petitioners called upon all the aforementioned government bodies to implement a regulatory approach to several sectors, which would achieve greenhouse gas emissions reductions of at least 25% below 1990 levels by 2020, and at least 50% below 1990 levels by 2050. However, this petition was dismissed due to the petitioners not having a victim status under the European Convention of Human Rights.

Following this, petitioners have appealed the original decision of the Swiss Government. However, this was again rejected by the Swiss Government as climate change did not exclusively impact women over 75 years old. Additionally, the Swiss Government rejected the appeal another time in 2020. As a result, the matter was brought to the European Court of Human Rights.

Decision:

The European Court of Human Rights has found that there was a violation of the right to respect private and family life and access to court. The ECtHR has stated that Article 8 of the ECHR covers the right to protection provided by state authorities from adverse effects of climate change on the individual. Furthermore, the ECtHR also stated that the Swiss Government has failed to implement essential legislative and administrative framework to assist the prevention of a global temperature increase.

Analysis:

This case has illustrated the individual legal interest component when bringing group action forward. Each of the petitioners had to show how climate change had a negative impact on their life, health or any other aspect. Consequently, the petitioners have presented strong individual cases as they presented scientific evidence, and medical certificates illustrating the adverse effects of climate change. Thus, showing a strict view of procedural requirements.

Furthermore, the KilmaSeniorinnen Case has illustrated the difficulty of group action claims as Switzerland provides limited possibilities for these claims. As previously mentioned, this case illustrates strict procedural requirements. However, this within itself can have adverse effects. For example, if an association is not granted legal standing by law, they may not be able to bring action forward. Thus, reforms suggest that requirements for class action should not be interpreted with a narrow outlook, and that statutory rights should also be implemented to enable environmental actions being brought to court.

Moreover, this case raised questions in relation to what courts can and cannot decide. In the past, the Swiss Government has delt with political questions. However, interviewees stated that the Swiss judiciary appeared to not take matters like climate change seriously. Similarly, in comparison to other precedents, Swiss law has a limited capacity for innovation. Illustrating, contrast in legal culture. For example, Dutch legal culture appears to be more open to discuss issues arising from climate change; as illustrated through the case of State of the Netherlands v Urgenda Foundation.

Conclusion:

To conclude, whilst there is a wide spectrum of potential improvements. KilmaSeniorinnen remains a fundamental case when challenging issues related to environmental law as the judgement illustrates how protection from climate change is both an individual right and an issue of public policy.