Between Legal Activism and Legitimacy Concerns - The Klimaseniorinnen before the ECtHR

Introduction

The recent judgments in Verein Klimaseniorinnen Schweiz v. Switzerland, Duarte Agostinho and Others v. Portugal and 32 Others, and Carême v. France were a long-awaited opportunity for the European Court of Human Rights (ECtHR) to rule on human rights claims related to climate change. Rarely has the Strasbourg court gotten such considerable media attention. The outcome of the cases was mixed or – to put it in the words of a commentator – bittersweet (Brucher and De Spiegeleir). In this short blog post, I will argue that in its Klimaseniorinnen judgment, the Court attempted to balance legal activism and legitimacy concerns. First, I will briefly summarise the main aspects of the Klimaseniorinnen case. Secondly, I will explain the theoretical background behind this connection between activism and legitimacy concerns. Following this, I show how in its judgment the court used a balanced approach. Lastly, I will end with a precise conclusion.

Verein Klimaseniorinnen and Others v. Switzerland

In the case Klimaseniorinnen the Court was confronted with the claim that Switzerland’s climate policies failed to protect individuals from climate-related risks, such as heatwaves. The Applicants, an association of elderly women called Verein Klimaseniorinnen and four individuals, argued that Switzerland had violated their rights under Article 2 (right to life) and Article 8 (right to respect for private and family life) by exposing them to serious risks to their health. The Applicants further contended that their rights under Articles 6 (right to a fair trial) and 13 (right to an effective remedy) were violated. Assessing the admissibility of the claims, the Court ruled that the four individuals lacked standing as they were not negatively affected with the required intensity for a pressing need to exist (Klimaseniorinnen, para. 533). On the other hand, the association was granted standing (Klimaseniorinnen, para. 526). The question of standing will be analyzed in depth at a later stage. Finding the claims of the association to be admissible, the Court turned to the merits of the case. It found that Article 8 applied to the case (Klimaseniorinnen, paras. 514 et seq.). Regarding Article 2, the Court emphasized that it can be affected by climate change but highlighted the higher threshold applicable (Klimaseniorinnen, paras. 507 et seq.). In its analysis, the Court went on to only focus on Article 8, disregarding whether the threshold of Article 2 was met (Klimaseniorinnen, para. 536)

Moving on, the Court acknowledged the positive obligations contained in Article 8 to protect individuals from the adverse effects of climate change (Klimaseniorinnen, para. 541 et seq.). From this premise, the Court derived positive obligations for States to prevent climate change (Brans). In examining whether Switzerland’s climate policies violated Article 8, the Court took into account whether (1) the State adopted measures that specified a plan to achieve carbon neutrality, (2) it had a clear pathway with intermediate reduction targets in place that were capable of achieving the reduction goal, (3) it has provided evidence to show its progress and compliance with the targets, (4) it continued to update reduction targets, and (5) acted within reasonable time and in sufficient manner when implementing measures (Brans). Analyzing Switzerland’s policies against these factors, the Court found that they violated Article 8 (Klimaseniorinnen, paras. 573-574).

Further, the Court found a violation of Article 6(1) of the Convention and on this basis did not examine the Article 13 claim (Klimaseniorinnen, paras. 640-645). Since these claims are not directly relevant to my following analysis, I will not examine this part of the Court’s decision in more depth.

Activism vs. Legitimacy Concerns

This section will explore how the negative correlation between a Court’s activism and compliance with its judgments – in other words its legitimacy – shaped the judgment. This general correlation has been observed by scholars before (Hawkins and Jacoby). In essence, it means that the more activist a court is in its judgments, the more reluctant States are to comply with its judgments. Some commentators even go so far as to suggest that “the Court’s own future was at stake […] as it sought to avoid becoming […] a savior-like global climate change court” (Brucher and De Spiegeleir). This and the ECtHR’s activist approach in many cases through its often-used “living-instrument doctrine” invites the opportunity to analyse the recent climate change cases in light of this tension between activism and legitimacy. I will discuss two main points from the cases that show the tension between activism and restraint: the victim status requirement and the applicability of Convention rights to climate change-caused harm.

Victim Status

Firstly, turning to the victim status. Climate change is a phenomenon that affects every person and thus the number of affected persons, as the Court recognised, “is indefinite” (Klimaseniorinnen, para. 479). This raises significant issues with regard to the victim status requirement under Article 34 of the Convention. Allowing every directly affected person to be granted victim status would undermine the exclusion of actio popularis from the ECHR (Klimaseniorinnen, para. 481). A claim is considered an actio popularis, if it is filed, not to protect one’s own rights, but to challenge a law, policy, or other State action based on a general public interest. Considering the Court has consistently emphasised the prohibition of actio popularis claims, it had to find a balance.

In the case of Klimaseniorinnen the Court, in outlining the applicable principles, clearly showed that it struck such a balance. On one hand, the Court recognised the need to interpret the victim status requirement in an “evolutive manner in light of the conditions in contemporary society” (Klimaseniorinnen, para. 461). This represents the Court’s activist role in progressing the protection of the Convention beyond its traditional meaning. On the other hand, the Court significantly limited the access to the Court by imposing a high threshold on the victim status requirement. The Court justified this by arguing that allowing every person who is a potential victim and has a legitimate personal interest to have victim status would open the doors for actio popularis. Thus, the Court found that applicants must prove that there exists “a real risk of a direct impact on the applicant” (Klimaseniorinnen, para. 486). This means, according to the Court, that “the applicant must be subject to a high intensity of exposure to the adverse effects of climate change” and “ there must be a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm” (Klimaseniorinnen, para. 487). This limits – as the Court recognised itself (Klimaseniorinnen, para. 488) - the access to the Court significantly and sets a high bar for the admissibility of a case relating to climate change. Bearing in mind this high hurdle of victim status for individuals, the Court found the claims of the individual applicants inadmissible on the grounds of lack of victim status (Klimaseniorinnen, para. 535).

While raising the admissibility bar for individuals in climate change cases, the Court took a different approach with regard to associations. It was the association Verein Klimaseniorinnen (Association Senior Women for Climate Protection) that was granted victim status before the Court, while the individual applicants were denied standing on the ground mentioned above. In its judgment, the Court set out a test for the standing of associations in climate change cases. Under the Court’s approach an association has standing in climate change-related cases if (1) it is lawfully established in the jurisdiction concerned, (2) it can demonstrate that its purpose is to defend the human rights of its members or other affected individuals, and (3) it can show that it is genuinely qualified and representative to act on behalf of the individuals concerned (Klimaseniorinnen, para. 502). This allows an association to have standing if these criteria are fulfilled, even if its individual members do not meet the victim status test (Raible). This reflects the balanced approach that the Court has taken throughout its judgment: on one side it imposed a high threshold for individuals, while at the same time setting a lower bar for associations.

Applicability of the Convention

On the merits of the case too, the balance struck between activism and legitimacy concerns becomes clear. By finding the existence of positive obligations for States under Article 8 of the Convention (Klimaseniorinnen, para. 545), the Court employed its living instrument doctrine and interpreted the Convention in light of modern-day conditions (Klimaseniorinnen, para. 434). This, as commentators observed, constitutes a substantial broadening of the scope of Article 8 and is reflective of the Court’s activism. Some critics, such as the UK’s ECtHR judge Time Eicke, suggest that the Court went beyond the Convention and practically created a new right. This criticism illustrates well the legitimate liability that accompanies activist decisions of the Court. On the other hand, the Court limited its role in addressing climate policies of States by (1) granting States a wide margin of appreciation in deciding on the measures taken to tackle climate change (Klimaseniorinnen, para. 561) and (2) not prescribing specific measures that Switzerland must take to comply with the judgement (Klimaseniorinnen, para. 657). Furthermore, the Court showed constraint by emphasising the specificity of its review (Brucher and De Spiegeleir). Throughout the judgment, the Court reiterated that the case concerned specific applicants and a specific set of facts (Brucher and Spiegeleir)

Conclusion

While the ECtHR’s judgment in Klimaseniorinnen constitutes a big leap in the Court’s willingness to address climate change-related cases, the Court has taken a cautious approach to safeguard its own legitimacy. In raising the admissibility hurdle for individual applicants, the Court restricted the access to the Court significantly. At the same time, the Court lowered the hurdles for associations to claim victim status in climate change cases, allowing the claim of the Verein Klimaseniorinnen to move to the merits. Regarding the applicability of the Convention, the Court took an activist position in broadening the scope of Article 8 to include climate change-related harm. At the same time, the Court gave States a wide margin of appreciation in deciding on the appropriate measures. These elements of the judgment show that the Court struck a balance between legal activism and judicial self-preservation. However, this is only one perspective to see the judgment. Much more can be said about it and its implications for the future of climate litigation before the ECtHR. It remains to be seen how the Court will address climate change-related cases in the future and whether it will succeed on the narrow path between activism and legitimacy.

Bibliography

Verein Klimaseniorinnen v. Switzerland [GC], app. no. 53600/20

Brans, Marloes. “Key Takeaways from the Landmark KlimaSeniorinnen and Others v. Switzerland Case.” Houthoff, www.houthoff.com/insights/news/echr-klimaseniorinnen-case. Accessed 4 Dec. 2024.

Brucher, Anaïs, and Antoine De Spiegeleir. “The European Court of Human Rights’ April 9 Climate Rulings and the Future (Thereof).” Verfassungsblog, 2024, www.verfassungsblog.de/the-european-court-of-human-rights-april-9-climate-rulings-and-the-fut ure-thereof/. Accessed 15 Oct. 2024.

Hawkins, D., and W. Jacoby. “Partial Compliance: A Comparison of the European and Inter-American Courts for Human Rights.” Journal of International Law & International Relations, vol. 6, 2010, pp. 35–65.

Raible, Lea. “Priorities for Climate Litigation at the European Court of Human Rights.” EJIL: Talk!, 2 May 2024, www.ejiltalk.org/priorities-for-climate-litigation-at-the-european-court-of-human-rights/. Accessed 15 Oct. 2024.