Abstract
The Verein KlimaSeniorinnen Schweiz and Others v. Switzerland judgment attracted immediate and global attention. It has been referenced as a landmark judgment, one that may influence and even transform climate litigation in Europe and beyond. However, more than a year later, questions about its exact impact remain unanswered. This contribution critically reflects on the procedural aspect of the judgment, in particular the ECtHR's approach to locus standi and the victim status of the applicants. It argues that KlimaSeniorinnen marks an important step in advancing the justiciability of climate-related claims by allowing associational standing, but that it also imposes clear limits because it effectively excludes individual victim status. This outcome is not only paradoxical in light of the Court's existing case law, but also places a disproportionate burden on individual applicants, given that collective action may not always be a suitable or available avenue. Consequently, this contribution explores ways in which the Court's approach to legal standing could be adapted in pending and future climate cases.
Keywords
1. Introduction
The effects of climate change on human rights are by now undeniable, and there is a growing recognition of the need to address climate change concerns through a human rights lens. 1 Although relatively few climate cases have so far been argued explicitly on human rights grounds, the number has been increasing more recently and sometimes with notable outcomes. 2 However, the prevailing view has been that it is uncertain whether and to what extent the impacts of climate change on the enjoyment of human rights could legally be classified as human rights violations, since they are often framed as future risks rather than present harms. Indeed, establishing legal standing in such cases has proven particularly challenging, with many applications having been dismissed over the years on procedural grounds. 3
In April 2024, the European Court of Human Rights (ECtHR or Court) delivered a key ruling in the climate case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. 4 The decision has been referenced by legal scholars as a landmark judgment, one that may influence and even transform climate litigation in Europe and beyond. 5 However, more than a year later, questions about its exact impact remain unanswered. 6
In the KlimaSeniorinnen case, the applicants, invoking Articles 2 and 8 of the European Convention on Human Rights (ECHR), alleged multiple failings on the part of the Swiss authorities in addressing climate change – particularly the consequences of global warming – which, they contended, adversely impact their lives, living conditions and health. The claims were declared inadmissible at the domestic level due to a lack of legal standing, as the applicants’ rights and obligations were not sufficiently affected. The Federal Supreme Court noted that the claims made by the applicants were of an actio popularis nature and essentially amounted to a request to institute preparatory work for the enactment of laws and policy development, which should be pursued by way of democratic participation. 7 The same view was shared by at least eight intervening governments which submitted arguments in the course of the proceedings before the ECtHR, arguing that climate policy is mainly a matter of political and democratic exercise and that States should in any event enjoy a wide margin of appreciation. 8 Interestingly, however, a significant number of third-party interventions by civil society organizations and academics submitted that the ECtHR would be acting within its mandate. 9
The ECtHR has repeatedly held that there is no right to a healthy environment in the Convention, but that the exercise of certain Convention rights may be undermined by the existence of or exposure to environmental harms. 10 This applies in particular to the right to life and private and family life as well as home, as protected in Articles 2 and 8 of the Convention. The Court thus needed to determine how to assess the complaints brought forward by the individual applicants and the applicant association without compromising the exclusion of actio popularis from the Convention system, and without overlooking its own judicial function. The ECtHR ultimately held that the rights to private and family life (in connection with the right to life) offer protection against the negative consequences of climate change and entail a positive obligation for States to take sufficient steps to prevent climate change.
In unpacking the importance of this judgment for future climate adjudication, this paper focuses on the procedural element of locus standi. 11 The legal standing aspect of the judgment is particularly interesting because the Court rejected the individual applications due to the lack of individual victim status but used the locus standi of associations in the climate-change context to accept the application from Verein KlimaSeniorinnen, an association representing inter alia those individual applicants. In other words, the Court offered a unique remedy in ECHR law to applicants in climate change-related cases. At the same time, however, it rejected the possibility for individuals to qualify as potential victims based on a misconception of actio popularis, and it established an almost impossible-to-meet threshold for them to attain direct victim status. This approach has since been confirmed in the Court's subsequent case law. 12 The paper therefore focuses on individual victim status, an aspect that remains less explored in existing scholarship. 13
The analysis proceeds in three steps. Section 2 outlines the principal aspects of the judgment, situating it within the broader context in which it was rendered and in relation to the two parallel cases decided by the same composition of the Grand Chamber of the ECtHR. Section 3 focuses on what is arguably the most significant part of the judgment: the criteria for establishing legal standing in climate cases. Section 4 analyses the Court's findings and argumentation used to justify its choices concerning this procedural aspect. 14 It concedes that by allowing associational standing, the judgment represents a significant step toward addressing the insufficiency of existing regulatory frameworks at the national level insofar as it enables claims that would otherwise remain outside the reach of the domestic and/or Convention systems. However, it contends that by rejecting the possibility of individuals to qualify as potential victims, and making it almost impossible for them to obtain direct victim status, the Court has disproportionately restricted the legal standing of individual applicants, thereby undermining their effective access to justice. Section 5 offers a brief conclusion.
2. A trilogy of ECtHR's climate rulings
KlimaSeniorinnen v. Switzerland, along with the cases of Duarte Agostinho and Others v. Portugal and 32 Others 15 and Carême v. France, 16 raised unprecedented issues before the ECtHR concerning the inadequacy of past State action to combat climate change and the adverse consequences for the enjoyment of human rights arising from it. While the three rulings are distinct in their individual circumstances and there is no formal link between them, they were adjudicated at the same time and by the same composition of the Grand Chamber, and they share a common thread: they all concern national frameworks for climate change mitigation and challenge the overall inadequacy of States’ efforts to reduce GHG emissions. In this respect, they provide essential context for understanding the choices made by the Strasbourg Court in shaping the future of climate litigation in Europe.
Duarte Agostinho and Others v. Portugal and 32 Others concerned the question of positive obligations of Contracting States to take measures to mitigate climate change, as well as the admissibility of the related complaints. The applicants, six Portuguese nationals (including children), alleged a violation of Articles 2, 3, 8 and 14 of the Convention for the failure by Portugal and 32 other Contracting States to comply with their obligations arising from the 2015 Paris Agreement on Climate Change. 17 The argument was that complying with the targets from the Paris Agreement would substantially reduce the risks and impacts of climate change. As for the admissibility, the applicants contended that they should be exempted from the obligation to exhaust domestic remedies in every State – a criterion they failed to satisfy – emphasizing inter alia the absolute urgency of taking action. The Court concluded that there was no special reason to exempt the applicants from exhausting domestic remedies since there was a comprehensive system of remedies in the Portuguese national legal order. 18 Importantly, the Court established jurisdiction only in respect of Portugal, thereby rejecting the extension of extraterritorial jurisdiction to other States in the field of climate change. 19 In Carême v. France, the Court considered that the applicant, the former mayor and resident of a town in northern France which is at risk of rising sea levels, did not have victim status as required by Article 34 ECHR inter alia because he was no longer a resident there since he had become a member of the European Parliament and was living in Belgium at the time. 20 Both applications were thus declared inadmissible, albeit for lack of compliance with different criteria.
These two inadmissibility decisions can be criticized since the Court did not really engage with the arguments regarding the urgency of climate change mitigation and the shared responsibilities between Contracting States in this regard. Instead, the Court limited the assessment to a very rigid application of the admissibility criteria. They also signal the significant – perhaps even insurmountable, as will be argued below – burden of bringing forward an individual claim in the context of climate change that fully complies with the criteria in Articles 34 and 35 of the Convention. However, the Court compensated, in a way, for finding those applications inadmissible in the one application that was deemed admissible: KlimaSeniorinnen.
The complaint was brought by four senior women and an organization made up of mainly senior women concerned by the effects of climate change under Articles 8 and 2 of the Convention. The complaint concerned various failures by the Swiss authorities to mitigate climate change – and specifically the effect of global warming – which adversely affected the lives, living conditions and health of both the individual applicants and members of the applicant association. As elderly women, the applicants submitted that they are particularly vulnerable to illness and death from the impacts of climate-crisis-induced heatwaves. In that context, the applicants contended that Switzerland failed to introduce appropriate legislation and to put adequate measures in place to attain the targets for combating climate change, in line with its international commitments. They also alleged a breach of Articles 6(1) and 13 of the Convention, due to the lack of access to court concerning the State's failure to take necessary action to combat the negative effects of climate change.
The case started in 2016 with the applicants’ claim before domestic courts that the Swiss authorities failed to act and take appropriate steps to address climate change, in accordance with the 2015 Paris Agreement. The claim was treated as inadmissible at the national level because of inter alia lack of legal standing; the Swiss Federal Administrative Court found that the applicants are not the only population group affected by climate change and they could not show that they have been differently affected from other groups. 21 Similarly, the Federal Supreme Court concluded that the individual applicants were not sufficiently or directly affected by the alleged failings in relation to their Convention rights. 22
Before the ECtHR, the applicants claimed violation of the right to life (Article 2) and the right to private and family life and home (Article 8). More specifically, they claimed that Switzerland failed to introduce suitable legislation and sufficient measures to meet the targets agreed in the Paris Agreement for combating climate change which, in turn, adversely affects their lives, living conditions and health. The individual applicants maintained that they were part of a vulnerable group owing to their age and gender and that there was no doubt that climate change-induced heatwaves had caused, were causing and would cause further deaths and illnesses to older people and particularly women. The applicants also made complaints regarding the lack of effective remedy under Articles 6 and 13 ECHR.
The ECtHR was thus asked to address the impact of climate change on human rights as an independent issue under ECHR law – something it had not previously undertaken. The length of the judgment is testament to the fact that this judgment required not only a very careful examination of the scope of the Convention and various factually and scientifically complex legal issues but also a careful consideration of the political context in which it is being rendered and what it will mean for future climate change litigation.
The preliminary considerations in the judgment reflect this internal struggle. 23 The Court starts by recognizing the reality and urgency of the climate crisis, calling it ‘one of the most pressing issues of our time’. 24 It discusses its damaging long-term effects with reference to the intergenerational burden-sharing and the impact of climate on vulnerable groups and future generations. However, the Court also notes that it must remain within the limits of its competences under Article 19 of the Convention and mindful of the fact that measures designed to combat climate change require legislative and policy action in various fields which necessarily depends on democratic decision-making. 25 The Court thus found itself in a very difficult situation: it knows that it cannot substitute the action which must be taken by the legislative and executive branches of government, but it must remain mindful of the fact that the inadequacy of past State action to combat climate change has led to an aggravation of the risks of its adverse consequences for the enjoyment of human rights and its role as a judicial body tasked with the enforcement of those rights.
In addition, the Court reflected on its earlier case law relating to environmental protection. 26 It clarified that climate cases entail different legal questions to those addressed in its earlier cases on environmental protection. After enumerating the fundamental differences, the Court concluded that it would be neither adequate nor appropriate to directly transpose the existing environmental case law to the context of climate change. Accordingly, while drawing some inspiration from the principles set out in that case law, the Court sought to develop a more appropriate and tailored approach as regards the various Convention issues which might arise in the context of climate change.
The first point of analysis in the judgment was the admissibility of the complaint. In that context, the Court examined the victim status/locus standi of both individual applicants and the representation by associations. In the specific context of complaints concerning harm or risk of harm resulting from alleged failures by the State to combat climate change, having regard to the special features of climate change and to the principle of exclusion of actio popularis under the Convention, the Court ruled that applicants needed to show that they were personally and directly affected by the impugned failures. 27 It concluded that individual applicants do not have a victim status in this case because they were unable to demonstrate that (i) the level and severity of the (risk of) adverse consequences is significant; (ii) there is a pressing need to ensure the applicants’ individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm. However, the Court found that Verein KlimaSeniorinnen Schweiz – the association – had legal standing because it fulfilled the new criteria, as developed in the present case, for legal standing of the association. These aspects of the judgment are further discussed in the remainder of the paper.
On the merits, the Court examined the case under Article 8 (in connection with Article 2) of the ECHR as there is no right to a clean and healthy environment as such in the Convention, and environmental cases are typically assessed under these two provisions. The case was also assessed under Article 6 concerning the access to justice for the association in question at the domestic level.
The Court ultimately held that by failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative climate change policy framework, Switzerland exceeded its margin of appreciation and failed to comply with its positive obligations under Article 8 in the present context. 28 As expected, the Court refrained from prescribing detailed measures that are necessary to ensure compliance. Instead, the Court considered that given the complexity of the matter and hence the differentiated margin of appreciation accorded to the State in this area, the Respondent State, with the assistance of the Committee of Ministers, is better placed than the Court to assess the specific measures to be taken to ensure effective compliance with the judgment. Regarding the right of access to court under Article 6(1), the Court established a breach, holding that the State also failed to give adequate domestic consideration to the case.
3. Victim status and locus standi in the climate-change context
As already mentioned, one of the most salient questions in climate litigation concerns legal standing for victims of the harm posed by climate change. The applicants in KlimaSeniorinnen submitted that they were all (the individual applicants and the applicant association) victims, within the meaning of Article 34 of the Convention. They argued that the Convention is a living instrument, in accordance with the established jurisprudence of the Court, and that the concept of a ‘victim’ should be interpreted in an evolutive manner in light of present-day conditions and not in a rigid and excessively formal way. It was sufficient that a violation was conceivable; whether or not it had materialized should be decided on the merits.
A. Individual applicants
The individual applicants argued that they could be considered both direct and potential victims. The former concerns persons who are directly (i.e., personally) affected by the measure complained of and the latter concerns persons who, in the absence of an individual measure, claim to be presently affected by a particular general legislative measure (or lack thereof) or who argue that they may be affected by it at some future point in time. 29 However, an individual may claim to be a victim of future violations only in highly exceptional circumstances and must produce reasonable and convincing evidence of the likelihood that a violation affecting him or her personally will occur; mere suspicion or conjecture is insufficient in this regard. 30 The applicants further contended that it was beyond reasonable doubt that the risks posed by climate change-induced heatwaves to their particularly vulnerable group of older women would inevitably materialize in individual cases. The burden of proof was therefore on the State to show that their health afflictions had not been caused by excessive heat, contrary to the medical evidence provided by them.
According to the Court's existing case law on environmental protection, it is not sufficient for an applicant to complain of general damage to the environment. 31 Instead, the applicant needs to show that he or she is impacted by the environmental damage or risk complained of. The criteria which the Court uses to establish victim status include most notably elements such as the minimum level of severity of the harm in question, its duration and the existence of a sufficient link with the applicant, including, in some instances, the geographical proximity between the applicant and the impugned environmental harm. In the specific climate change context, the Court noted that individual applicants must be subject to a high level of exposure to the adverse effects of climate change, that is, the level and severity of (the risk of) adverse consequences of governmental action or inaction affecting the applicant must be significant; 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. 32
This essentially meant that the applicants had to show that the level and severity of the (risk of) harm affecting them are significant and that there is a pressing need to ensure their individual protection, which reflects the requirement that they are personally and directly affected, in line with the exclusion of actio popularis (an action brought by individuals in the public interest, i.e., when it does not affect him or her directly) under the Convention.
The applicants thus must also show that the harm or risk of harm can be attributed to acts or omissions of the State. This too is very difficult in climate change cases, because the consequences are too remote. In the previous case law, environmental harms were always localized and related to a concrete environmental adversity such as dangerous industrial activities, waste disposal or others that affect a particular region or particular group of people, and it was possible to establish a causal relationship. By contrast, climate change poses a risk that is global (not localized) and comes from aggregate emissions rather than emissions from one State. For this reason, Switzerland contended that even if it would take all appropriate measures, it would still not reduce the risk if all other States do not do the same.
The Strasbourg Court rejected this so-called ‘drop in the ocean’ argument. 33 However, it ultimately found that while it may be accepted that heatwaves affected the applicants’ quality of life, it is not apparent from the available evidence that they were exposed to the adverse effects of climate change, or were at risk of being exposed at any relevant point in the future, with a degree of intensity giving rise to a pressing need to ensure their individual protection. 34 Moreover, the Court noted that it cannot be said that the applicants suffered from any critical medical condition whose possible aggravation linked to heatwaves could not be alleviated by the adaptation measures available in Switzerland or by means of reasonable measures of personal adaptation given the extent of heatwaves affecting that country. As for the argument concerning the applicants as potential victims, the Court completely rejected it. It held that victim status in relation to future risk is only exceptionally admitted in ECHR law and the individual applicants had failed to demonstrate that such exceptional circumstances exist. In essence, in order to claim victim status under Article 34 of the Convention in the context of complaints concerning harm or risk of harm resulting from alleged failures by the State to combat climate change, an applicant needs to show that ‘he or she was personally and directly affected by the impugned failures’ [emphasis added]. 35 In other words, only applications from direct victims could potentially be admissible.
B. Applicant association
According to the Court's existing case law on environmental protection, Articles 2 and/or 8 of the Convention are not susceptible of being exercised by an association but only by its members. A distinction must be made, however, between situations in which an association claims to be itself a victim of a violation of its own rights, and those in which it seeks to act in a representative capacity on behalf of its members or other affected individuals. In cases such as Asselbourg and Others, 36 Besseau and Others v. France 37 and Greenpeace e.V. and Others, 38 the Court established that associations cannot complain of nuisances or problems which can only be encountered by natural persons and thus can only act as representatives of their members or employees in the context of these rights. In such cases, the Court assesses whether there are ‘special considerations’ that merit granting legal standing to the association in question. In KlimaSeniorinnen, the Court found that there are indeed such special considerations and developed the following new criteria that determine associational standing: the association in question must be (a) lawfully established in the jurisdiction concerned or have standing to act there; (b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and (c) able to demonstrate that it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention. 39
The Court then went on to apply these criteria to the association in question and concluded that all criteria were fulfilled. The outcome here is not surprising given that the threshold for fulfilling these criteria is relatively low. 40 This meant that KlimaSeniorinnen Schweiz had legal standing in Strasbourg and given that other admissibility criteria such as exhaustion of domestic remedies had all been complied with, the Court was able to adjudicate and rule on the merits of the case.
4. Implications of the ECtHR's judgment
KlimaSeniorinnen is a landmark judgment that has received its fair share of praise but also criticism, which goes for both the procedural and the substantive part of the decision. 41 The criticism varies from praising the Court, viewing the decision as only a first step in the right direction to criticizing the Court for going too far or not going far enough. 42
The criticism came from different corners, including from one of the judges on the bench who disagreed with the approach taken by the Court partly concurring partly dissenting with the final decision. 43 The main criticism voiced both inside and outside of the Court concerning the procedural aspect of the judgment is that the Court went beyond what is allowed under the Convention, namely allowing actio popularis. Some scholars suggested that the Court did so to maintain the relevance of the Convention system and its own role in the midst of what was described in the judgment as one of the most pressing issues of our time. 44
A. The paradox of individual and associational standing
The procedural aspect of the judgment is indeed paradoxical and deserves critical remarks: the Court concludes that the four individual applicants do not qualify as victims under Article 34 of the Convention because they could not demonstrate how they are personally and directly affected by adverse effects of climate change, which in turn would require an urgent need to act on the part of the State, but finds that the association in question does have legal standing. The latter applies to both the complaint of a breach of Article 8 ECHR – a right that associations are in principle not capable of exercising – and to the right of access to justice under Article 6 ECHR. In this respect, it should be noted that the association's standing under Article 8 ECHR is representative in nature, whereas its standing under Article 6 ECHR concerns an alleged violation of its own right of access to a court.
The Court reasoned that in modern-day societies recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to them to defend their interests effectively. 45 While this is certainly an important finding, 46 it is not clear how one can reconcile giving legal standing to the applicant association in this case (without giving it to the individual applicants) with the prohibition of actio popularis in ECHR law. The difficulty in finding justification is two-fold: first, an association cannot, by its very nature, invoke a violation of rights such as the right to life or private and family life on its own behalf, as these are rights which can only be exercised by natural persons; and second, even if the Court were to decide that legal standing should be given to an association because it represents individual victims who can exercise those rights, it would not be applicable in this case because the Court had already found that the individual members cannot be considered victims within the meaning of Article 34 ECHR. In his dissent, Judge Tim Eicke raised this point. He argued that the majority created exactly what the judgment repeatedly asserts it wishes to avoid, namely a basis for actio popularis type complaints. 47
When looking at the existing case law, for many years associations could only have standing before the ECtHR if they had been victims of a violation. This rule has been softened in recent years, however, and the Court has allowed associations to have legal standing when they represent individuals who are direct or potential victims but are unable to represent themselves. 48 What did not change is that individual members of an organization must also be victims, which means that the Court in fact departed from its established jurisprudence.
To complicate matters further, the Court rejected individual applicants as potential victims because this would allow the criteria for victim status to slip into de facto admission of actio popularis, which is particularly acute in the context of climate change. The Court noted that this is because it could cover virtually anybody and would therefore not work as a limiting criterion. 49
This reasoning is not convincing and, as discussed elsewhere, it seems to be based on a misconception of actio popularis. 50 The Court seems to argue that because climate change can potentially affect many or all people categorizing individual applicants as potential victims would qualify as actio popularis. However, even if we accept that climate change could potentially affect all individuals (albeit to varying degrees), it does not turn specific individual applications into abstract claims brought solely in the public interest, which is what an actio popularis would be. 51 Moreover, some individuals are directly or potentially more affected due to inter alia their vulnerable status or level of exposure. As concluded by the UN Special Rapporteur on Climate Change in 2024, several UN human rights treaty bodies have documented over the last five years distinctively disproportionate human rights impacts of climate change on individuals in vulnerable situations. 52 This in turn means that collective action may not be an appropriate avenue in every case. Additionally, it may not be as easy to establish NGOs and associations in some countries. It is exactly because of these reasons that the Court should not have excluded the possibility for individuals to be regarded as potential victims in climate cases. The only other option in such cases would be to demonstrate direct victim status which, due to the notorious difficulty in establishing a direct causal link in climate cases, is also not a viable option.
What would have been more convincing perhaps, and more in line with the existing Court's jurisprudence, is to give the status to individual applicants as potential victims. This would mean that the Court would accept the applications based on the risk of sufficiently serious future harm, rather than requiring that harm has already materialized, and it would only have to establish the likelihood of significant future harm in relation to the applicants’ Convention rights. The applicants had a convincing argument: they, as members of the particularly vulnerable group of women aged over 75, are more affected by the effects of rising temperatures in comparison with the general population due to the increased risk of morbidity and mortality. Even the Court recognized that there is cogent scientific evidence demonstrating that climate change has already contributed to an increase in morbidity and mortality, especially among certain more vulnerable groups and that, in the absence of resolute action by States, it risks progressing to the point of being irreversible and disastrous. 53 How is it then possible that these women cannot even be considered potential victims? The stricter approach distinguishing between different applicants could have been applied in the assessment of the evidence of the likelihood that a violation would occur in the future, which would ultimately work as a limiting factor.
The Court has always maintained that the notion of ‘victim’ is interpreted autonomously and that it must be applied in a flexible manner. Moreover, this criterion is subject to evolution in light of contemporary societal conditions – a consideration that is particularly relevant in the context of the effects of climate change. Further on this point, the Court has already accepted that an applicant may be a potential victim in certain circumstances. The existing case law demonstrates essentially two types of cases: where the applicant was not able to establish that the relevant legislation had actually been applied to him on account of the secret nature of the measures it authorized (e.g., surveillance cases), 54 or where an alien's removal had been ordered, but not enforced, and where enforcement would have exposed him in the receiving country to treatment contrary to Articles 3 and 8 of the Convention. 55 In order to be able to claim to be a victim in such situations, an applicant was required to produce reasonable and convincing evidence of the likelihood that a violation affecting him or her personally will occur.
It is true that the climate change context is different to these examples but the position of the individual applicants is comparable. While climate-related harm is neither secret (as in surveillance cases) nor necessarily localized (as in traditional environmental cases), the relevant parallel lies in the Court's willingness to accept a sufficiently substantiated risk of serious harm as a basis for victim status, particularly where the harm may be difficult to prove conclusively in advance and where the consequences are potentially severe. The applicants in climate cases are usually only able to show that there is a potential that a violation already occurred or that it will occur in the future because it is not possible to establish a direct causal link between the negative effects of climate change on the quality of life, health or private life, notwithstanding the overwhelming scientific evidence of the risks of climate change to human health and well-being. That should not mean, however, that those rights are not or may not be affected and that individuals who can substantiate their claims should not be able to raise them at all, just as is the case for potential violations when it comes to surveillance or future violations following a deportation. In surveillance cases applicants do not know for sure if their rights are affected but there is a potential that they are; in climate change cases applicants may not be able to provide conclusive evidence due to the nature of the impact on their rights but there is a potential and they should have the opportunity to have their case assessed on the merits. Similarly, in deportation cases, the infringement has not taken place yet and there is no guarantee that the rights of applicants will be infringed but due to the fact that the potential of the infringement is substantial the Court takes a preventative role.
A similar approach was also applied in some environmental cases. In Taşkın and Others v. Turkey, 56 for example, the applicants contended that authorizing the use of sodium cyanide leaching at a gold mine located near their homes posed a threat to the surrounding environment and, ultimately, to their health and safety. Although their claims rested on a hypothetical future risk, the Court relied on the domestic courts’ findings of potential harm to conclude that the risk was substantial and that it placed the applicants at a significant disadvantage. 57 The application was therefore declared admissible, and the Court found a procedural violation of Article 8. 58
The Court could have thus put the individual applicants in the category of potential victims and justified this convincingly by referencing the climate change context as a very exceptional circumstance and drawing similarities with the existing case law. This could have then been coupled with giving legal standing to the applicant association as well and proceeding with the case in relation to the latter as the (main) applicant. This approach would not only be more protective of individual rights, but it would also be methodologically more coherent and overall more convincing.
B. Climate change context as a justification after all?
Interestingly, while the Court used the exceptionalism of climate change litigation to reject the victim status of individual applicants, it used the same considerations to argue in favour of recognizing the possibility for associations to have standing in ECHR law as a unique remedy in that type of cases. 59
One important aspect the Court considered in developing this argument is that climate-change litigation usually involves complex questions of law and fact, requiring significant financial and logistical resources and coordination. In Gorraiz Lizarraga and Others v. Spain 60 the Court recognized that, in modern-day societies, where individuals are confronted with particularly complex administrative decisions, recourse to collective bodies such as associations may constitute one of the accessible means, and at times the only means, of ensuring the effective defence of their interests. 61 Hence the Court opens the possibility for individuals seeking to bring a climate case to either found an organization to represent them or join one that already exists. The other side of the coin is that the outcome of such a dispute will inevitably affect the position of other individuals as well which makes collective action more suitable in climate litigation. 62
Moreover, the fact that the standing of associations to bring legal proceedings in defence of their members’ interests is recognized by the legislation of most European countries adds to the legitimacy of the Court's decision as it shows wide consensus across the continent. 63 The Court further noted that the importance of recourse to collective action in the environmental context is also reflected in international instruments such as the Aarhus Convention. Indeed, the Aarhus Convention emphasizes the importance of the role of non-governmental organizations (NGOs) and envisages the need to ensure that NGOs have wide access to justice in matters concerning environmental protection. 64 The Court reasoned that any other, excessively formalistic, interpretation of those criteria would make protection of the rights guaranteed by the Convention theoretical and illusory.
This seems like a valid argument to support the finding that associations should have locus standi, which is only possible if the Court develops new criteria in climate cases and effectively lowers the threshold. The reasoning is indeed in accordance with the existing case law of the Court as well as the general approach the Court takes when it deals with ‘new’ matters. It considers the factual and scientific complexity of the case where relevant, and it looks at other relevant sources and interpreters thereof for guidance and inspiration. However, this argument does not explain why the Court made the threshold extremely high for individuals to attain victim status. Even if individual applicants could qualify as victims in climate cases, they could still use collective action when this is more suitable but take an individual route when the circumstances of the case require individualized assessment.
Another important aspect for the Court was the representation of future generations and the intergenerational burden-sharing. The Court seems to see future generations as potential victims that are not represented, not in Strasbourg and not in the democratic processes at home. The idea is that collective action through associations or other interest groups may be one of the only means through which the voice of those at a distinct representational disadvantage can be heard and through which they can seek to influence the relevant decision-making processes. Some scholars have thus suggested that this may be the explanation for why the Court ultimately decided to allow associational standing. 65 The Court indeed noted that the special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context speak in favour of recognizing the standing of associations before the Court in climate change cases. 66 In view of the urgency of combating the adverse effects of climate change and the severity of its consequences, including the grave risk of their irreversibility, States should take adequate action notably through suitable general measures to secure not only the Convention rights of individuals who are currently affected by climate change, but also those individuals within their jurisdiction whose enjoyment of Convention rights may be severely and irreversibly affected in the future in the absence of timely action. The Court therefore considered it appropriate in this specific context to acknowledge the importance of making allowance for recourse to legal action by associations for the purpose of seeking the protection of the human rights of those affected, as well as those at risk of being affected, by the adverse effects of climate change, instead of exclusively relying on proceedings brought by each individual on his or her own behalf.
Additionally, the Court relied on the opinion of Venice Commission where it was argued that an important argument in favour of a different approach is that environmental protection is not comparable to the traditional human rights conflicts, where the minority needs protection against the majority. 67 Instead, there is an entirely new dimension which includes the protection of the rights of future generations. As future generations do not take part in present-day democracy and do not vote in present-day elections, the judicial branch appears to be best placed to protect future generations against the decisions of present-day politicians.
Now, the argument concerning future generations is certainly important. However, the Court never made an explicit link between future generations and giving locus standi to associations, so it is not certain whether and to what extent this factor played a role in the decision. More importantly, it does not explain the second aspect of the judgment, namely the imposition of a very high threshold for individual victim status. Recognizing the standing of associations to protect inter alia future generations (as potential future victims) and allowing individuals who are currently alive to qualify as (potential) victims are not mutually exclusive and could operate in parallel.
In any event, the Court leaves it open for interpretation because in the same paragraph (and, in fact, in the same sentence) the Court states that the legal obligations under the Convention extend to individuals currently alive who, at a given time, fall within the jurisdiction of a given Contracting Party, but that it is clear that future generations are likely to bear an increasingly severe burden of the consequences of present failures and omissions to combat climate change whilst they have no possibility of participating in the relevant current decision-making processes. 68 This internal tension in the wording of the Court seems to imply that present-day applicants and future generations are somehow competing in terms of the (potential) impact of climate change on their rights and that a choice must be made, even though both groups could be protected within the existing framework.
The part that seems to be missing in the reasoning but is perhaps otherwise apparent is that the Court clearly made strategic choices. In providing an avenue for citizens to address matters related to climate change it also made sure to manage the influx of applications and to reduce institutional friction as much as possible. 69 While unsurprising and even understandable from a practical point of view, such reasoning fails to (sufficiently) justify the Court's restrictive and methodologically incoherent approach to victim status. It also sits uneasily with the foundational principles of the ECHR system, which is built on individual protection and the notion of individual justice.
5. Conclusion
KlimaSeniorinnen was not decided in a vacuum. Throughout the judgment the Court emphasized the relevance of the domestic democratic process to account for the gravity of the situation, which has proven insufficient so far, as well as its own limited impact on climate change policymaking. This, in turn, calls for action by other state authorities including and perhaps especially domestic courts 70 to intervene as we have seen happen in inter alia Germany 71 and the Netherlands. 72 If the domestic courts refrain from doing so, as was the case in Switzerland, the Strasbourg Court is ready to step in but remains limited within the boundaries of its own system.
From a human rights perspective this is commendable, and the judgment can be seen as a step forward in addressing climate change effects through the human rights lens. Indeed, insufficient laws to prevent human rights violations necessitate action rather than inaction by those with the authority to effect change and enforce human rights standards. However, the argument here is that the Court's approach in KlimaSeniorinnen is dangerously cumbersome when it comes to the victim status of individual applicants, and it takes away from procedural clarity and coherence. This is due to the fact that the Court rejected the idea of potential victims in climate litigation based on flawed – or at least incoherent – legal reasoning. Moreover, the threshold for attaining direct victim status is disproportionately high, which makes it almost impossible for individuals to qualify as victims. These findings, coupled with the accompanying inadmissibility decisions in Carême and Duarte Agostinho, lead to the conclusion that the procedural burden on the individual applicants wishing to bring their climate-related case to Strasbourg is simply too heavy.
It will not be long before the Court has a chance to reassess its position on the victim status of individuals in climate cases. 73 In that context, the Court should keep in mind that collective action might not be suitable or possible in every case, and consider softening its approach to individual victim standing in pending and future climate cases. This could be done by accepting that individuals can qualify as potential victims in climate cases in light of the very exceptional and highly complex nature of climate change and its effects on human rights. While softening this criterion further will inevitably expand the Court's docket, and may even cause some institutional backlash, surely it is a human rights court that should demonstrate bravery and resolution in offering individual protection and tackling what in its own words is the most pressing issue of our time.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author received no financial support for the research, authorship and/or publication of this article.
