Verein KlimaSeniorinnen Schweiz v. Switzerland: updates and analysis on historic ruling, half a year on

Discover how the outcome of the Climate Seniors case at the European Court of Human Rights could have an impact on Switzerland, the EU, the UK, and the rest of the world.

The Climate Seniors, or Senior Swiss Women for Climate Protection (German: KlimaSeniorinnen), is an association of over 3000 elderly Swiss women which won an unprecedented case in April 2024 at the Grand Chamber of the European Court of Human Rights (ECtHR) against the Swiss Confederation over its alleged failure to take sufficient action against climate change.

The court ruled that Switzerland had failed to “to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework” to reach net zero targets compliant with the Paris Climate Accords. In doing so, the court took a new step in outlining its interpretation of Article 8 of the European Convention of Human Rights (ECHR) as encompassing the “right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life”.

The court also ruled in favour of the association regarding its claim that Switzerland had violated Article 6 of their human rights (the right to a fair trial), as their prior attempts to have their case heard in domestic courts had invariably been dismissed on the grounds of actio popularis (the concept that the courts should not entertain certain public interest litigation which veers into the political sphere).

However, the court, in assessing whether the association’s claim was admissible, did not find that the women, despite their argument that they were disproportionately affected by climate change due to their age and sex, met the legal requirements of victim-status under Article 34. Nevertheless, in recognising the need for “intergenerational burden-sharing" required by the imminent global threat of climate change, it decided that it would henceforth allow a much broader set of groups to bring claims related to this issue.

Lastly, the court did not order Switzerland to implement any specific measures to combat climate change, instead outlining that European States had a “positive obligation” to adopt and regularly update target timelines for the reduction of GHG emissions under Article 46.

One ECtHR judge, Tim Eicke, issued a dissenting opinion in which he criticised his colleagues of judicial overreach by disregarding the principle of subsidiarity and overextending their interpretation of Article 8.

This month, on the day it was due to report to the Council of Europe (CoE) on how it would implement the court’s ruling, the Swiss Government took the unorthodox step of criticising, and refusing to implement, the court’s ruling. It argued in its report that new domestic legislation, approved immediately before and after the ruling, has already corrected Switzerland’s Net Zero trajectory, thus making it compliant with the ruling. In June, a referendum on the Federal Act on a Secure Electricity Supply from Renewable Energy Sources was passed while in March, a revised CO2 Act was approved in parliament.

Dr Julia Haas, a Zurich-based Senior Associate at CMS who co-authored an article on the Secure Electricity Supply Act, told Chambers & Partners that these pieces of legislation will probably not be enough to satisfy the ECtHR, and certainly not the Climate Seniors, regarding the violation of Article 8. Swiss lawyer Cordelia Bähr, who acts as lead counsel for the Climate Seniors, highlighted in a conversation with Chambers & Partners that Switzerland’s report is not an action plan, but rather an action report; it states that Switzerland does not intend to take further measures regarding its Climate policy. She adds that, in spite of the court’s demands, it fails to include a calculation of Switzerland’s remaining carbon budget which takes into account the global budget. She also confirmed that the association plans to enter a Rule 9 submission regarding the report to the committee of ministers at the Council of Europe around January, well before the committee has an opportunity to issue a response to the report (Greenpeace Switzerland informed Chambers and Partners that this could be in March or June 2025).

Haas raised the possibility that Switzerland’s response could mean that its voting rights in the Council of Europe could be suspended or that the nation be expelled from the CoE altogether, although she added that both outcomes were highly unlikely. Jessica Simor KC, the renowned Human Rights barrister who was a key part of the legal team which represented the Climate Seniors in the ECtHR, agreed. In a conversation with Chambers & Partners, Simor highlighted that successive UK governments refused to implement a 2005 ruling on prisoner voting rights, and yet received no penalty. There have only been two instances of the CoE suspending or expelling countries: Greece in 1969 for the widespread use of torture and other Human Rights violations by the junta government, and Russia in 2022 for the invasion of Ukraine.

However, Irish Human Rights lawyer Andrew Forde argues that Alain Berset, the new Secretary General of the CoE and first Swiss to fill the role, will be under considerable pressure to “progress this issue… as a refusal to execute by Switzerland will inspire others to adopt a laissez-faire approach to climate action rulings”.

Nevertheless, Haas pointed out that were the CoE to put pressure on the Swiss Government to further strengthen its climate policies, any subsequent legislation would have to contend with the “direct democracy dilemma” in Switzerland; any new federal law or amendment is susceptible to being blocked via referenda, as was the case with an amendment to the CO2 Act in June 2021.  Moreover, an analysis from the European Implementation Network shows that nearly half of the last decade’s most significant ECtHR rulings are still pending implementation, indicating that it may be multiple years before the ruling has an impact in Switzerland.

During research for the Chambers Europe Legal Guide 2025, four Swiss energy lawyers were polled on their opinion concerning the impacts of the ruling:

It is therefore difficult to say, at this point, what the judicial or economic effects of the ruling will be for Switzerland, although there are signs that it has already had an impact. Given how seriously the CoE is taking the issue of climate change, the country may be forced to accept the ruling, before long delays in implementation are likely to mitigate any effects.

The impact of the ruling regarding Articles 6 and 34 creates a particularly complex problem not just for the Swiss judicial system, according to Haas, but also for the courts of the other 45 member states of the CoE, and the ECtHR itself. Due to the combination of actio popularis being removed as a block against climate litigation, and the suddenly much more open interpretation of victim-status regarding this issue, she fears the courts may be flooded by fresh climate-related claims. She raised the possibility of a second judgement at the ECtHR which would reintroduce stricter requirements for associations seeking victim-status.

Phillip Ashley, a very highly-regarded energy and natural resources lawyer at CMS who co-authored an article on the effects of the ruling on the energy sector, expressed a similar view while speaking to Chambers & Partners. Describing the ruling as “one of the most radical and far reaching of any European court since the Second World War”, Ashley pointed to Eicke’s dissent as a sign that the interpretation of the court’s powers regarding Article 8 may have been taken “beyond breaking point”. This could adversely affect the authority of the court in the long term, he adds. In addition, by elevating the sustainability component over not only the affordability but also the security considerations of the so-called energy trilemma, Ashley fears the ruling may even have existential repercussions for CoE member states. There is already evidence that the ECtHR’s ruling is influencing cases in the domestic courts of member states. According to ClientEarth, the Polish supreme court is due to hear an appeal for a climate case in which the claimant plans to invoke the Climate Seniors ruling.

While it is not currently clear whether the Polish judicial system, which has long been at odds with the ECtHR over various matters, will recognise the Strasbourg jurisprudence regarding climate change, UK courts might have little choice but to follow the ruling due to sections 3 and 6 of the Human Rights Act and the Ullah principle, according to Ashley. Mirroring the view of the Swiss energy lawyers, he warns of the negative economic impacts of the ruling on the UK, given that it explicitly mentions embedded emissions (GHG emissions caused by the production and transportation of goods, rather than the consumption). Besides discouraging foreign companies from investing in the UK, he shares the view of many analysts that while the UK has had success in reducing its domestic emissions, it has done so at the cost of increasing its global emissions, and so may soon find itself in the same position as Switzerland regarding climate lawsuits. The presence of an ongoing judicial review brought by the NGO Global Feedbacks, which challenges the UK-Australia Free Trade Agreement over the importation of Australian beef, appears to support this position.

Olivia Jamison, a leading environmental lawyer and another co-author of the CMS article, explained to Chambers & Partners that the UK Government may yet avoid Switzerland’s fate, given that the previous Government was taken to the High Court twice over the last three years by environmental NGOs challenging inadequate Net Zero strategies, and was defeated both times. With a new government committed to more ambitious climate goals than its predecessor and currently working on an updated plan, due by May 2025, Jamison considers the risk of a third court case to be lower (although much will depend on how the new administration implements policies). Simor, who also represented one of the NGOs (ClientEarth) in the case against the UK Government, agreed with Jamison. She pointed to the appointment of former Climate Change Committee head Chris Stark to head of the new Mission Control for Clean Power 2030, and the scheduled introduction of the Carbon Border Adjustment Mechanism in 2027 as signs that the pressure applied by environmental NGOs on the government had already borne significant results.

Simor also emphasized the potential of the Climate Seniors ruling to have a positive effect on the economy of the UK and other CoE member states, underlining the heightened degree of certainty with which public and private entities can proceed now that a continental authority has reinforced the legally binding nature of the Paris Climate Accords. Jamison supports this view to an extent, agreeing that this could be an opportunity for European companies to concurrently pivot, building on the EU Green Deal’s economic blueprint and reducing the risk of stranded assets.

So, while the judicial effects of the ruling may be less significant on the UK than other CoE member states, including Switzerland, the economic effects may depend on how other major courts and tribunals around the world react to it.

There is already a considerable body of evidence which indicates that the ruling has had an impact on the decisions of other courts since April. According to legal academic Mads Andenæs KC, the very first climate judgement by the EFTA Court cited the Climate Seniors case in August. Ashley and Jamison discuss in their article its potential influence on the advisory opinion requested by the United Nations General Assembly from the International Court of Justice (ICJ) on the obligations of states regarding climate change (hearing scheduled for December), as well as an advisory opinion requested by Chile and Colombia (due later this year) on states’ obligations in response to climate emergencies from the Inter-American Court of Human Right (I/A Court HR).

Ali Al-Karim, a leading barrister in public international law and international arbitration, confirmed in a conversation with Chambers that submissions which cited the Climate Seniors case were filed for the advisory opinion at the I/A Court HR. Al-Karim considered there to be a slight possibility that the I/A Court HR would issue its opinion before the ICJ came to its own, and that it therefore could have an influence on it. Al-Karim also predicted that it would take at least a decade to fully understand the global effects of the Climate Seniors ruling as well as those of other decisions of international courts/tribunals on climate change. He also added that the ruling is as much a point of continuity as one of departure, pointing to the Dutch Urgenda case (2019) and the I/A Court HR 2017 advisory opinion as examples which put the Climate Seniors case in context.

In addition, Simor highlighted an advisory opinion by the International Tribunal for the Law of the Sea, requested by the Commission of Small Island States on Climate Change and International Law and issued in May, which appeared to follow the ECtHR’s lead in placing a positive obligation on states to prevent climate change. Furthermore, she drew attention to a South Korean top court ruling in August which declared the country’s Climate Change law as unconstitutional and reflected the ECtHR’s view of climate change as a Human Rights issue.

However, Simor also underlined how Switzerland’s decision to criticise the ruling reflects the global trend of rising populist nationalism, which could stifle any court’s efforts to prevent climate change. Given the relatively lenient application of Article 46, she thinks that Switzerland could easily have accepted the ruling before taking advantage of inevitable delays in implementation. Instead, according to Simor, it opted to highlight its opposition to foreign judges seen to be meddling in domestic affairs. She added that compliance with the ruling may indeed be happening behind the scenes. Ashley expressed a similar view, commenting that “the current mood is more for state intervention”, and that Net Zero targets have recently been used in international trade negotiations as tools to facilitate protectionist economic agendas. He pointed out that this, exacerbated by the rulings of regional courts like the ECtHR, could undermine multilateral efforts to combat climate change given that it is an extremely complex, polycentric issue requiring intercontinental political solutions. He raised the example of a low-income country being denied the trade it requires with CoE member states to develop sustainable infrastructure (and thereby lower its carbon footprint) by the ECtHR ruling. In this way, the ruling could be employed as an isolationist measure which threatens a socially just transition to a sustainable global environment.

Ashley and Al-Karim agree that the ruling is still sinking in for the private sector outside of Europe, although this may present another problem for CoE member states. Al-Karim believes that litigation akin to the Spanish “Saga” cases is on the horizon, as states may soon be liable to lawsuits from investors due to unforeseen changes in renewable energy legislation brought about by the general legislative trend exemplified by the Climate Seniors ruling.

Despite the detrimental short- to mid-term economic effects which the ruling could exert on the rest of the world, there is already a strong indication that it will prompt other international and domestic courts around the globe to hold the 195 signatories of the Paris Climate Agreement to account. According to the Grantham Research Institute, only 17 of these countries have set climate neutrality targets, which is surely now set to change. In addition, the ECtHR set an example by engaging with the technicalities of Climate Science and discourse, helping to put to bed the “drop in the ocean” argument, according to Nikki Reisch, climate and energy director at the Center for International Environmental Law. However, the recent news that many senior Conservative leaders, including the Shadow Secretary of State for Justice Robert Jenrick, want a referendum on the UK’s ECHR membership is a reminder that a backlash against judicial rulings related to climate change could be expected in the UK and beyond.