KlimaSeniorinnen v Switzerland: the European Court of Human Rights leads the way on climate action

Abstract

Legal standards for countries’ obligations to tackle the climate emergency develop through two key avenues. One avenue comprises law making processes. This happens either via national parliaments and devolved governments, or at the level of international law through treaty making and sub-treaty rules. The other avenue is through courts. Although the separation of powers between the different branches of government forbids judicial law making, courts are often using scientific evidence when they review either administrative decisions—for example, planning permissions for infrastructure projects, or for the scrutiny of the lawfulness of specific measures taken by governments to mitigate against the climate emergency. The integration of scientific evidence helps shape legal standards for governments, state authorities, and corporations. Until recently courts often seemed reluctant to enter into the area of climate change and exercised judicial restraint to avoid tension with other branches of government. They have now firmly entered into this area, however. The total number of legal cases related to the climate crisis has more than doubled from 884 in 2017 to 2180 in 2022.1 Some courts have begun to seriously engage with climate science, referencing reports by the Intergovernmental Panel on Climate Change (IPCC) and case specific studies. In some instances, courts are paying attention to and expanding each other’s reasoning in this emerging inter-jurisdictional judicial discourse.2 In the recent case of KlimaSeniorinnen v Switzerland , the European Court of Human Rights (ECtHR) substantially expanded on its existing environmental case law. The ECtHR developed a set of criteria at the science-health-law interface with which states that are party to …