Verein KlimaSeniorinnen and Others v Switzerland (Application no. 53600/20)
Observations on the facts, admissibility and the merits“The cumulative scientific evidence is unequivocal: Climate change is a threat
to human well-being and planetary health. Any further delay in concerted
anticipatory global action on adaptation and mitigation will miss a brief andrapidly closing window of opportunity to secure a liveable and sustainable
future for all (very high confidence).”1
Executive Summary
1This application is brought by 2,038 women over sixty-four years of age under
the umbrella of the Association Verein KlimaSeniorinnen Schweiz, and by fourindividual women over the age of 80, whose health is significantly affected byincreasing temperatures caused by climate change ("Applicants"). The
Respondent accepts the escalating seriousness of this harm (including the risks
to life and health of elderly women) but has failed even to take reasonable letalone necessary steps to mitigate those risks. Its domestic courts have refusedproperly to determine the Applicants' challenge to that failure. The Applicants,
as victims of violations by the Respondent of its obligation to guarantee theeffective protection of their rights under Arts. 2, 8, 6 and 13 of the European
Convention on Human Rights (“ECHR”) seek relief before this Court. The apex
courts of the Netherlands, Germany, Belgium and France, as well as the UN
Human Rights Committee (“UNHRC”), have already held that State inaction
on climate change breaches the right to life and the right to respect for privateand family life under the ECHR and the ICCPR. Accordingly, whilst the
Applicants’ case raises new issues for this Court, those issues have already been
determined by the UNHRC and by the domestic courts of Contracting States.

2

The science is clear and an accepted fact: global temperatures are rising as adirect result of the increase in the concentration of atmospheric greenhousegases (“GHGs”); there is a near-linear relationship between cumulative
anthropogenic CO2 emissions and global warming. These increases cause more
frequent and intense heatwaves, including in Switzerland, where annual

Inter-governmental Panel on Climate Change (“IPCC”), Climate Change 2022: Impacts, Adaptation
and Vulnerability, Working Group II Contribution to the Sixth Assessment Report of theIntergovernmental Panel on Climate Change (“AR6 WGII”), Summary for Policymakers (“SPM”)
D.5.3 (link) (Annex document “doc.” 22).
1I

temperatures have increased by around 2.1°C since measurements began.
Swiss summer temperatures in 2003, 2015, 2018, 2019 and 2022 were thehighest ever recorded. Increasing temperatures and heatwaves entail increased
mortality and pose serious health risks, particularly to older women, as the
Respondent accepts. Of all climate hazards, heat-related mortality in Europe,for people over 65, is by far the most significant cause of death. Swiss summer
heatwaves resulted in: almost 1,000 more deaths in June and August 2003;
approximately 800 more in June, July and August 2015; 185 more in August
2018; 521 more in June to August 2019; and in June to August 2022, 1,700
more people over 65 died than was statistically expected. From 1991 to 2018,of warm-season heat-related deaths in Switzerland, around 30% could be
attributed to anthropogenic climate change.
3

In 2015, 196 States, including Switzerland, agreed in Paris to take, as a matterof urgency, an effective strengthened and progressive response to reduce GHG
emissions, promoting and respecting human rights, with developed countries
taking a lead. There is a consensus amongst them that global temperature rise
should be kept to below 1.5°C above pre-industrial levels. To do that urgent,
meaningful, and ambitious action is imperative. The Respondent’s climate
strategy falls far short of what is necessary in that regard. Notably, itscommitment to reduce domestic emissions to 34% below its 1990 emission
levels by 2030 is significantly lower than the EU’s commitment to 55%, letalone Denmark’s (70%); Finland’s (60% with carbon-neutrality by 2035); andGermany’s (65%). Moreover, the Respondent continues to fail to meet even its
own inadequate targets.

4

Given the urgent need for action to mitigate risk, the Applicants ask the Court
to order the Respondent expeditiously to adopt legislative and administrative
measure to do its share to prevent a global temperature increase of more than
1.5°C, including concrete emission reduction targets and preventing andreducing any emissions occurring abroad that are attributable to the
Respondent, particularly consumption-based and emissions linked to financeflows.

II

Table of contents
1. The facts ............................................................................................. 1
1.1. Human influence has warmed the atmosphere, oceans and land ............. 1
1.2. The Respondent’s contribution to global warming ................................. 1
1.2.1. Domestic emissions ............................................................... 1
1.2.2. External emissions: emissions attributable to Switzerland .......... 1
1.3. One of the main impacts: more frequent and more intense heatwaves .... 2
1.4. Intensity and frequency of heatwaves increases with every additional
increment of global warming ............................................................... 3
1.5. Climate change-induced heatwaves have caused, are causing and willcause further deaths and illnesses to older women ................................. 3
1.6. Heatwaves are causing and have caused illnesses and restrictions of
wellbeing to the Applicants in the past.................................................. 7
1.7. Staying within the 1.5°C limit would significantly limit the increasing riskof heat-related excess mortality and morbidity ....................................... 9
1.8. Knowledge of the Respondent.............................................................. 9
1.9. The Respondent has failed to set binding climate targets for 2030
and 2050 ......................................................................................... 10
1.10. The Respondent’s climate strategy is not in line with the 1.5°C limit .... 10
1.10.1. The Respondent’s history of failed climate action .................... 10
1.10.2. No 1.5°C compatible “fair share” contribution ....................... 13
1.10.3. No 1.5°C compatible domestic emissions reduction................ 16
1.10.4. No effective prevention of emissions which occur abroad and are
attributable to the Respondent .............................................. 18
1.10.5. Reliance on carbon dioxide removal is a major risk in the ability
to limit warming to 1.5°C .................................................... 19
1.11. The Respondent fails to meet its own (inadequate) climate targets ........ 19
1.12. The Respondent is able to do its share, i.e. to reduce the risk of heatrelated excess mortality and morbidity ................................................ 20
2. The law ............................................................................................ 21
2.1. Scope of the case (question A)............................................................ 21
2.2. Jurisdiction (question B) .................................................................... 21
2.3. Victim status of the Applicants (question C) ........................................ 22
2.3.1. Victim status of Applicant 1 in respect of Arts. 2 and 8 ECHR.. 23
2.3.2. Victim status of Applicants 2 to 5 in respect of Arts. 2
and 8 ECHR ........................................................................ 25III2.3.3.
2.4.

2.5.

2.6.
2.7.
2.8.

The Applicants are members of a particularly vulnerable group(question C.3.1) .................................................................. 26
Applicability of the Convention provisions (question D)........................ 27
2.4.1. Applicability of Art. 2 ECHR (question D.4(a))........................ 27
2.4.1.1. How is Art. 2 ECHR engaged? ................................. 27
2.4.1.2. Specific considerations regarding the causal link ........ 30
2.4.2. Applicability of Art. 8 ECHR (question D.4.b)......................... 35
2.4.3. Applicability of Art. 6 ECHR (questions D.4.1.a and D.4.1.b) .. 37
2.4.4. Applicability of Art. 13 ECHR (question D.4.2)....................... 39
Merits (question E) ........................................................................... 39
2.5.1. Violation of Art. 2 ECHR (questions E.5 and E.5.1) ................ 39
2.5.1.1. The scope of the Respondent’s obligation to protect ... 40
2.5.1.2. Knowledge of the Respondent ................................. 44
2.5.1.3. The Respondent has failed to protect the Applicants
effectively .............................................................. 44
2.5.2. Violation of Art. 8 ECHR (questions E.5 and E.5.2) ................ 46
2.5.3. Extent of States’ margin of appreciation (question E.5.3.1) ...... 47
2.5.4. Scope of the Respondent’s obligation to protect is determined by
the harmonious interpretation of the Convention(question E. 5.3.2) ............................................................... 48
2.5.4.1. International climate law ......................................... 49
2.5.4.2. The prevention principle and the precautionary
principle ................................................................ 51
2.5.4.3. Evolving norms of national and international law ...... 53
2.5.5. Living instrument and the need to tackle climate change(question E. 5.3.3) ............................................................... 55
Violation of Article 6 ECHR (questions E.6., E.6(a) and E.6(b)) ............. 59
Violation of Article 13 ECHR (question E.7) ........................................ 63
Considerations that should guide the Court in indicating general measures
to be taken by the Respondent State (question E.8) .............................. 65

3. Requests to the Court .......................................................................... 69IVGlossary of abbreviations
1.5°C SR

IPCC Special Report on the impacts of global warming of 1.5°C
above pre-industrial levels and related global greenhouse gas
emission pathways, in the context of strengthening the global
response to the threat of climate change, sustainable
development, and efforts to eradicate poverty, 2018

AR4
AR4 WGIII

IPCC Forth Assessment Report
Contribution of Working Group III to the IPCC Fourth
Assessment Report
IPCC Fifth Assessment Report
Contribution of Working Group II to the IPCC Fifth Assessment

AR5
AR5 WGII
AR5 WGIII
AR6
AR6 WGI

ReportContribution of Working Group III to the IPCC Fifth
Assessment Report
IPCC Sixth Assessment Report
Contribution of Working Group I to the IPCC Sixth Assessment

AR6 WGIII

ReportContribution of Working Group II to the IPCC Sixth
Assessment Report
Contribution of Working Group III to the IPCC Sixth

APA
BAFU
BAG
BBL

Assessment Report
Federal Act on Administrative procedure
Bundesamt für Umwelt (Federal Office for the Environment)
Bundesamt für Gesundheit (Federal Office of Public Health)Bundesblatt (Federal Gazette)

AR6 WGIICAT
CBDRRC-NC
CDR
COP

Climate Action Tracker
Common but differentiated responsibilities and respective
capabilities, in the light of different national circumstances
Carbon Dioxide Removal
United Nations Climate Change Conference

COP27
COPD
CO2
CO2eq

27th United Nations Climate Change Conference (2022)
Chronic obstructive pulmonary disease
Carbon dioxide
CO2 equivalent, Carbon dioxide equivalentV

DETEC

Federal Department of the Environment, Transport, Energy

FAC
FOEN

and Communication
Reference to a document in the accompanying Annex bearing
the same number
Federal Administrative Court
Federal Office for the Environment

FOPH
FSC
GDP
GHG
GtCO2

Federal Office of Public HealthFederal Supreme Court
Gross domestic productGreenhouse gas
Gigatonne of Carbon dioxide

ICJ
ILC
IPCC
LULUCF

International Court of JusticeInternational Law Commission
Intergovernmental Panel on Climate Change
Land Use, Land Use Change and Forestry

NDC
NGO
OcCC
OHCHR

Nationally Determined Contribution
Non-governmental organisations
Organe consultatif sur les changements climatiques (Advisory
body on climate change issues)
Office of the High Commissioner for Human Rights

OF
OL
PA
s / ssSPM

Observations on the Facts
Observations on the Law
Paris Agreement
Section / sections
Summary for Policymakers

SR
SRF
VCLT
TPH

Systematische Sammlung des Bundesrechts (Systematiccollection of Swiss federal law)
Schweizer Radio und Fernsehen (Swiss radio and television)
Vienna Convention on the Law of Treaties
Swiss Tropical and Public Health Institute

TS
UNEP
UNHRC
UNFCCCTechnical Summary
United Nations Environment Programme
United Nations Human Rights Committee
United Nations Framework Convention on Climate Change

doc.

VI

1.

The facts

1.1. Human influence has warmed the atmosphere, oceans and land1

Increases in greenhouse gas (“GHG”) concentrations since around 1750 are
unequivocally caused by human activities. 2 Human-caused global surface
temperature increase from 1850–1900 to 2010–2019 is 1.07°C.3 In
Switzerland, the annual temperature has increased around 2.1°C sincemeasurements began in 1864.4

1.2. The Respondent’s contribution to global warming
1.2.1.
2

Per capita GHG emissions in Switzerland in 2020 were 5.04 tonnes of CO 2eq.5
Total domestic GHG emissions in Switzerland in 2020 amounted to 43.40 mt
of CO2eq.6 Switzerland’s share of global cumulative CO2 emissions is 0.18%.7

1.2.2.
3

Domestic emissions

External emissions: emissions attributable to Switzerland

The above numbers show only GHG emissions that occur on Swiss territory,8
excluding emissions attributable to Switzerland but occurring outside of its
territory (“external emissions”) such as GHG emissions from international
aviation and shipping fuels tanked in Switzerland.9 Such GHG emissions havenearly doubled since 200410 and in 2019 amounted to 5.74 mt of CO2eq,11
which is about 13.2% of total domestic GHG emissions in Switzerland (§2).

IPCC, Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the
Sixth Assessment Report of the Intergovernmental Panel on Climate Change (“AR6 WGI”), SPM A.1.1(link) (doc. 23).
3
IPCC, AR6 WGI (n 2), SPM A.1.3 (doc. 23).
4
As of 2021. See Federal Office of Meteorology and Climatology MeteoSwiss, Climate Change in
Switzerland, last modified 14 Jan. 2022 (link).
5
FOEN, Kenngrössen zur Entwicklung der Treibhausgasemissionen in der Schweiz, 1990–2019, Apr.
2022 (“Kenngrössen”), p. 58 (link).
6
FOEN, Kenngrössen (n 5), p. 40.
7
Our world in data, Who has contributed most to global CO 2 emissions? 1 Oct. 2019, Share of global
cumulative CO₂ emissions, Table (link).
8
FOEN, Kenngrössen (n 5), p. 4 (link).
9
FOEN, Kenngrössen (n 5), p. 3 (link).
10
FOEN, Treibhausgasemissionen aus dem Flugverkehr, 11 Apr. 2022 (“Flugverkehr”) (link).
11
FOEN, Flugverkehr (n 10) (link).
2

1

4

They also exclude consumption-based GHG emissions.12 Switzerland is theworld’s largest importer of such emissions relative to its domestic emissions.13
In 2019, Switzerland’s GHG footprint including consumption-based emissions
was 109 mt CO2eq, with 64% of those emissions occurring abroad. The GHG
footprint per capita was 13 tonnes of CO2eq;14 well over the average for EU
countries.15 In global terms, in 2020, Switzerland ranked 18th in terms of percapita CO2 consumption-based emissions and 39th (of 195) in terms of total
CO2 consumption-based emissions (doc. 1), despite its relatively small
population. The Respondent’s Federal Office (“FOEN”) states that
“Switzerland’s GHG footprint is excessively high in international comparison”
and assessed the current state of affairs as “poor” and the trend“unsatisfactory.”16

5

Further, these figures do not include indirect emissions caused by finance flows(e.g. investing, underwriting, lending, insurance).17 A 2015 study
commissioned by FOEN showed that the investments made by the largest
equity funds authorised in Switzerland currently tend to contribute to global
warming of 4-6°C.18 In 2022, FOEN stresses: “Le marché financier présenteencore un potentiel considerable.”19

1.3. One of the main impacts: more frequent and more intense heatwaves
6

Human-induced global warming leads to more frequent and more intense
heatwaves. In its recent Sixth Assessment Report (“AR6”), the Intergovernmental Panel on Climate Change (“IPCC”) concluded that it is “virtuallycertain that hot extremes (including heatwaves) have become more frequentand more intense across most land regions (…), with high confidence thathuman-induced climate change is the main driver of these changes.”20 For
Switzerland as part of West and Central Europe, there is high confidence thatobserved changes in hot extremes are caused by human influence.21

See FOEN, Kenngrössen (n 5), p. 61; FOEN et al., Management Summary: Climate Change in
Switzerland, Indicators of driving forces, impact and response, Bern 2020 (“Management Summary”),
p. 6 (link) (doc. 24).
13
Our world in data, CO2 emissions embedded in trade, 2019, Map (link).
14
FOEN, Kenngrössen (n 5), p. 61 (link).
15
FOEN, Indicator Economy and Consumption, GHG footprint, 14 Jun. 2021 (“Indicator”) (link).
16
FOEN, Indicator (n 15) (link).
17
See FOEN, Kenngrössen (n 5), p. 4 and p. 54 e contrario (link).
18
OEHRI et al., Kohlenstoffrisiken für den Finanzplatz Schweiz, 23 Oct. 2015, p. 8 (link).
19
FOEN, Le test climatique 2022 révèle le potentiel du marché financier, 24 Nov. 2022 (link).
20
IPCC, AR6 WGI (n 2), SPM A.3.1 (link) (doc. 23).
21
IPCC, AR6 WGI (n 2), SPM Figure SPM 3 (link) (doc. 23).
122

1.4. Intensity and frequency of heatwaves increases with every additional
increment of global warming
7

In AR6 the IPCC “reaffirms with high confidence (…) that there is a near-linear
relationship between cumulative anthropogenic CO2 emissions and the global
warming they cause. Each 1,000 GtCO2 of cumulative CO2 emissions is
assessed to likely cause a 0.27°C to 0.63°C increase in global surface
temperature with a best estimate of 0.45°C.”22 Each additional tonne of CO2
emitted worsens climate impacts,23 including the severity and frequency ofheatwaves. Thus, the IPCC states that “with every additional increment of
global warming, changes in extremes continue to become larger. (…), every
additional 0.5°C of global warming causes clearly discernible increases in theintensity and frequency of hot extremes, including heatwaves.”24

1.5. Climate change-induced heatwaves have caused, are causing and will cause
further deaths and illnesses to older women
8

There is no dispute that climate change-induced heatwaves have caused, arecausing and will cause further deaths and illnesses to older people andparticularly women. In this regard the domestic courts and Respondent25 havenever argued otherwise. On the contrary, these facts are an important pillar in
the Respondent’s own communication with its citizens regarding the publichealth impacts of climate change. 26

Climate change-induced heatwaves increasingly cause an increase in mortality andmorbidity and pose a threat to mental health and well-being
9

Switzerland is particularly affected by climate change (§1). The summers of
2003, 2015, 2018, 201927 and 2022 are the five warmest summers recorded
in Switzerland, with that of 2003 and 2022 the first and second hottest sincerecords began.28

10

There is no doubt that increasing temperatures and heatwaves have increased
mortality29 and that heat-related mortality can be attributed to human-induced

IPCC, AR6 WGI (n 2), SPM D.1.1 (link) (doc. 23).
IPCC, AR6 WGI (n 2), SPM Figure SPM 10 (link) (doc. 23).
24
IPCC, AR6 WGI (n 2), SPM B.2.2, Figure SPM.6 (link) (doc. 23).
25
See the Respondent’s Observations, 16 Jul. 2021 (link), §60.
26
See e.g. n 27, 32 and 46.
27
FOEN, Hitze und Trockenheit im Sommer 2018, Bern 2019 (“Hitze”), p. 8 (link) (doc. 25); for theyear 2019 see MeteoSchweiz 2020, Klimareport 2019, Zürich, p. 6 (link).
28
MICHEL, Die Republik, Ein tödlicher Sommer, 3 Oct. 2022 (link).
29
IPCC, AR6 WGII (n 1), Technical Summary (“TS”) B.5.3, p. 51 (link) (doc. 22).
22
23

3

climate change.30 A recent attribution study found that from 1991 to 2018,globally 37% of warm-season heat-related deaths could be attributed toanthropogenic climate change, and regarding Switzerland, around 30%.31 The
increase in mortality is primarily due to heat stress causing life-threatening
cerebral vessel, cardiovascular and respiratory tract diseases. 32
11

Globally, heat-related mortality in people over 65 increased by approximately
68% between 2000–04 and 2017–21.33 Of all climate hazards, heat is by far
the most significant cause of death in Europe.34 In Switzerland more deaths
occurred during hot summers than in average years.35 As the Respondent
reported, in Switzerland almost 1,000 additional heat-related deaths occurredin June and August 2003, approximately 800 in June, July and August 2015,

185 in August 2018 and 521 in June, July and August 2019.36 In June to August
2022, 1,700 more people over 65 died than was statistically expected (though
the reasons for these excess deaths have not yet been analysed).37
12

Increasing temperatures and heatwaves not only entail increased mortality but
also pose a serious health risk. In high temperatures, humans regulate bodytemperature through sweating and increased circulation. As the Respondentaccepts, excessive stress or malfunctioning of these cooling mechanisms cannegatively impact health; contributing to dehydration, hyperthermia, fatigue,
loss of consciousness, heat cramps and heat strokes,38 as well as by aggravating
existing diseases such as cardiovascular, respiratory, kidney or mental

IPCC, AR6 WGII (n 1), SPM B.1.1 (link) (doc. 22); see also MITCHELL, Climate attribution of heatmortality, Nature Climate Change 11, 467–468 (2021) (link).
31
VICEDO-CABRERA/SCOVRONICK/SERA et al., The burden of heat-related mortality attributable torecent human-induced climate change, Nature Climate Change 11, 492–500 (2021), p. 1 and Fig. 4c.
(link) (doc. 26).
32
Federal Office of Public Health (“FOPH”) and FOEN, Schutz bei Hitzewelle, Bern 2007, p. 1 and 3(doc. 27); FOEN et al., Management Summary (n 12), p. 9 (link) (doc. 24).
33
The 2022 report of the Lancet Countdown on health and climate change: health at the mercy offossil fuels, 25 Oct. 2022 (“Lancet 2022”), p. 1625 (link).
34
IPCC, AR6 WGII (n 1), TS Figure TS.7, p. 77 (link) (doc. 22).
35
FOEN, Hitze (n 27), p. 28 (link) (doc. 25).
36
FOEN et al., Management Summary (n 12) p. 9 and Figure 5 (link) (doc. 24); RAGETTLI/RÖÖSLI,Gesundheitliche Auswirkungen von Hitze in der Schweiz und die Bedeutung vonPräventionsmassnahmen, Jul. 2020, p. 7 (link) (doc. 28).
37
See MICHEL (n 28) (link).
38
FOEN, Hitze (n 27), p. 27 (link) (doc. 25); FOPH and FOEN (n 32) (doc. 27); WATTS et al., The
2018 report of the Lancet Countdown on health and climate change, Dec. 2018, p. 2484 f.; FOEN etal., Management Summary (n 12), p. 9 (link) (doc. 24).
30

4

illnesses.39 Furthermore, climate change has adverse impacts on mental healthand well-being.40
13

Climate-related illnesses, premature deaths and threats to mental health andwell-being are increasing.41 Over the mid- and long-term, climate ill health andpremature deaths and poor mental health, including anxiety and stress,
particularly for children, adolescents, elderly, and those with underlying healthconditions will significantly worsen.42

Heat-related mortality and morbidity is significantly more prevalent among older
persons, particularly older women
14

The Applicants, as older women, are much more affected by heat-related
illnesses and deaths, as the Respondent accepts.43 This is because older persons’bodies are less able to regulate their temperatures, due to impaired
thermoregulation.44 During the 2003 heatwave, 80% of the additional deaths
occurred in persons older than 75.45 The Respondent noted that the mostsignificant rise in mortality risk during the hot summer of 2015 was for 75 to
84-year-olds.46 In August 2018, nearly 90% of heat-related deaths occurred inolder women, almost all of whom were older than 75.47 During the 2019heatwave, older persons were at the highest risk of mortality, and people aged
85 and over were most affected (448 of 521).48 Similarly, the 2022 heatwaves
appear predominantly to have affected persons over 65.49

15

The IPCC confirms that older adults, women and persons with chronic diseases
are at the highest risk of temperature-related morbidity and mortality.50 In a

RAGETTLI/RÖÖSLI (n 36), p. 12 (link) (doc. 28).
IPCC, AR6 WGII (n 1), SPM Figure SPM.2, D.5.3. and TS B.5.2 (link) (doc. 22); see Lancet 2022
(n 33), Panel 4 (link).
41
IPCC, AR6 WGII (n 1), p. 1044 (link) (doc. 22).
42
IPCC, AR6 WGII (n 1), SPM B.4.4 (link) (doc. 22).
43
E.g. FOEN, Hitze (n 27), p. 29 (link) (doc. 25); ROBINE et al., Report on excess mortality in Europe
during summer 2003, Feb. 2007, Figure 5 (link) (doc. 29); ROBINE et al., Death toll exceeded 70,000
in Europe during the summer of 2003, C. R. Biologies 331 (2008) 171–178, p. 174 (link); WHO,
Gender, Climate Change and Health, Geneva 2014, p. 9 (link); THOMMEN et al., Gesundheitliche
Auswirkungen der Klimaänderung mit Relevanz für die Schweiz, Nov. 2004, p. 33 (doc. 30).
44
FOEN, Hitze (n 27), p. 27 (link) (doc. 25); FOEN et al., Management Summary (n 12), p. 9 (link)(doc. 24).
45
IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability, Contribution of Working
Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change(“AR5 WGII”), p. 721 (link) (doc. 31).
46
FOEN, Hitze und Trockenheit im Sommer 2015, Bern 2016, p. 84 (link).
47
FOEN, Hitze (n 27), p. 28 (doc. 25).
48
RAGETTLI/RÖÖSLI (n 36), p. 16 (link) (doc. 28).
49
MICHEL (n 28) (link).
50
IPCC 2018: Global Warming of 1.5°C (“1.5°C SR”), p. 240 f. (link) (doc. 32); IPCC, AR6 WGII(n 1), p. 1073 (link) (doc. 22).
39
40

5

research project by the Swiss Tropical and Public Health Institute (“TPH”)51,
supported by the Respondent, the relative increase in heat-related mortality risk
in Switzerland with daily maximum temperatures of 33°C compared to a daywith maximum temperatures of 22°C for different population groups has beenassessed and visualized in the following table. It shows that the group of persons
over 75 and particularly women are at the highest risk of heat-related

mortality:52

Table 1: Relative increase in heat-related mortality risk at daily maximum temperaturesof 33°C compared to a day with maximum temperatures of 22°C for different groups ofpeople.

16

A recent 2021 case-crossover study conducted by SAUCY ET AL. specificallyconcerning cardiovascular deaths in Zurich highlighted that heat-related
mortality was particularly strong among older women (>75 years).53
RAGETTLI/RÖÖSLI stated in a 2021 study on the summer 2019 in Switzerlandthat “the age-specific analyses of heat-related excess mortality once again
confirm older persons as the largest risk group of heat-related health damage in
Switzerland.”54

17Overall, women aged above 75, such as the Applicants 2-5, are at greater riskof premature loss of life, severe impairment of life and of family and private life,
due to climate change-induced excessive heat than the general population.
Thus, the Applicants are part of a vulnerable group due to their age and gender.

Swiss Tropical and Public Health Institute TPH (link).
Swiss TPH, Projekt A.06, Hitze und Gesundheit, Synthese vom 22 Sept. 2022 (link) (doc. 33).
53
SAUCY et al., The role of extreme temperature in cause-specific acute cardiovascular mortality in
Switzerland: A case-crossover study, Science of The Total Environment, Vol. 790, 10 Oct. 2021 (link)(doc. 34).
54
RAGETTLI/RÖÖSLI, Hitzebedingte Sterblichkeit im Sommer 2019, Primary and Hospital Care 2021,
21(03):90-95, 3 March 2021 (link).
51
52

6

1.6. Heatwaves are causing and have caused illnesses and restrictions of wellbeing
to the Applicants in the past
18

As shown above, the Applicants have been, are and will be at great risk ofpremature loss of life and severe impairment of their quality of life because of
their age and gender. The increase in the risk of death on hot summer days isparticularly high for people with respiratory system diseases (especially chronic

obstructive pulmonary disease ("COPD") and cardiovascular diseases.55 Thisapplies to Applicants 2-5: Applicants 2 suffered and 3 suffers fromcardiovascular diseases, Applicants 4 and 5 from respiratory diseases including,in the case of Applicant 4, COPD. The risk to the Applicants 2-4 has alreadymaterialized, as evidenced by their medical certificates. In addition, Applicants
2-5 have described in personal statements how their health and well-being are
affected by heatwaves (doc. 2, 3, 4 and 5).

Applicant 1
19

As all members of Applicant 1 are significantly at risk due to climate changeinduced heatwaves, it advocates for older women’s health and their humanrights in a dangerously warming world (Art. 2 and 3 statutes56). The averageage of the members of Applicant 1 is currently around 73 years. 646 of 2’038
members are 75 years old or older (doc. 6). 46 Members of Applicant 1
respectfully submit to the Court personal statements, reporting their experienceduring this year's summer heatwave (doc. 7), as summarized hereafter.

20

Many of the women report that they suffered from shortness of breath, unusual
sweating, skin rashes and inflammation, high pulse and palpitations, severe
headaches, persistent fatigue, dizziness, nausea and even vomiting, even during
low physical activity. Several women report that, despite taking precautions,they experienced episodes of heat exhaustion, sometimes associated with lossof consciousness. Health issues, some of which are new and some of whichhave increased, include painful oedema of the extremities, respiratory andcardiovascular diseases as well as worsening osteoarthritis. Some report that
their doctors prescribed new medication to treat their health problems, others
the need for an increase of the existing medication. Numerous women report
serious problems in falling asleep and being able to sleep through the night.

55
56

Swiss TPH (n 52) (link) (doc. 33).
Statutes of Applicant 1, 23 Aug. 2016 (link).

7

21

Numerous women describe how their daily routines are affected by heatwaves.
Many no longer dare to leave their home during the day and evening. They
limit necessary errands to the minimum. Many report keeping the shutterspermanently closed. Some report seeking refuge in their cellars. Many describe
light household and office work as exhausting. Many feel forced to refrain fromoutdoor activities, maintaining social contacts or physical exercise.

22

As a result, many women describe loneliness, feelings of sadness and dejection,
severe impairment of their mood, even self-reported depression. They alsomention strong fears about the future, triggered by the prospect of thishappening again or getting worse every year.

Applicant 2
23

Unfortunately, Applicant 2 died on 15 July 2021, at the age of 90. She wore apacemaker and, in the summer of 2015, she lost consciousness during aheatwave (doc. 8). Her son continues his mother’s proceedings before the
Court, without objection from the Respondent.

Applicant 3
24

Applicant 3 is 85. During hot summers, she cannot leave her residence and iscut off from the outside world. She has a cardiovascular illness, and heatwaves
not only seriously impair her well-being, but also her physical capabilities (doc.
9). In 2019, her doctor confirmed that she has a severe intolerance to excessive
heat, which confines her to her home. As a result, her medication had to be
adjusted (doc. 10). In September 2021, her doctor added that she is unable totake her medication for high blood pressure and cardiac arrhythmia during hot
weather, due to the effects of heat (doc. 11). That evidence is corroborated bya medical report written by Dr Michaelis Conus, Spéc. FMH Médicine Interne,
dated 26 November 2022, in which she explains how excessive heat impacts
the physical and mental health of Applicant 3 (doc. 12). Dr Michaelis Conus
concludes that after hearing the patient and consulting the medical documents
in her possession, she can confirm the negative impact of heatwaves on
Applicant’s physical, psychological, and social health.

Applicant 4
25

Applicant 4 is 81, has acute chronic asthma with chronic broncho-structural
syndrome and chronic obstructive pulmonary disease, which are being treated.
Her symptoms are exacerbated by heat (doc. 13), which also restricts her
8mobility (doc. 14). Dr Michaelis Conus confirms in her medical report dated
26 November 2022 the excessive heat impacts on the physical and mental
health of Applicant 4 (doc. 15), stating that the correlation between theaggravation of her respiratory pathology and climate change is highly probable.

Applicant 5
26

Applicant 5 is 80. She suffers from asthma (doc. 16).

1.7. Staying within the 1.5°C limit would significantly limit the increasing risk ofheat-related excess mortality and morbidity27

Any increase in global warming is projected to affect heat-related morbidity andmortality.57 However, there are strong differences between mitigation
scenarios.58 A temperature rise from 1.5°C to 2°C would significantly increase
the risk of heat-related mortality and morbidity.59 The global scientificconsensus is that many premature deaths and health impairments can beprevented by adhering to the 1.5°C limit.60 Adhering to this consensus would
likewise limit the increase of the risk to the lives and health of Applicants 2-5
and of the members of Applicant 1.

1.8. Knowledge of the Respondent
28

The Respondent is aware of the issues mentioned above (sections “ss”1.1–1.7).
It is clear from the Respondent’s public communications,61 its endorsement of
the IPCC’s findings and its role as part of the United Nations Framework
Convention on Climate Change (“UNFCCC”)62 and as a signatory of the Paris
Agreement (“PA”)63 that the Respondent knows and acknowledges the risks
and harms caused by climate change-induced heatwaves.

IPCC, 1.5°C SR (n 50), SPM B.5.2 (link).
IPCC, AR6 WGI (n 2), p. 1822 (link) (doc. 23).
59
VICEDO-CABRERA et al., Temperature-related mortality impacts under and beyond Paris Agreement
climate change scenarios, Climatic Change, 13 Sept. 2018, p. 395 f. Figure 1 and 2 (link) (doc. 35);
see also GASPARRINI et al., Projections of temperature-related excess mortality under climate change
scenarios, Lancet Planet Health 2017 Vol. 1 Dec. 2017, p. 366 (link).
60
IPCC 1.5°C SR (n 50), SPM B.5.2, p. 180 and 240 (link); VICEDO-CABRERA et al. (n 59), p. 396 (link)(doc. 35).
61
E.g. FOEN et al., Management Summary (n 12), p. 9 (link) (doc. 24); FOPH and FOEN (n 32)(doc. 27).
62
UNFCCC, SR 0.814.01, ratified on 10 Dec. 1993 (link).
63
Paris Agreement, SR 0.814.012, ratified on 6 Oct. 2017 (link).
57
58

9

1.9. The Respondent has failed to set binding climate targets for 2030 and 2050
29

To this day, the Respondent has failed to transpose its Nationally Determined
Contributions ("NDC") under international law into domestic law. The
Respondent’s current CO2-legislation merely contains a binding emissions
reduction target for 2020 (Art. 3(1) CO2 Act 201164), and for 2024 (Art. 3(1bis)
CO2 Act 2011).

30

A new CO2 Act 202065 with a binding target for 2030 was rejected in areferendum on 13 June 2021. On 16 September 2022, the Respondent
submitted to Parliament a draft amendment of the CO2 Act 2011 (“amended
CO2 Act 2011”) which is intended to apply for the period from 2025 to 2030(§34).66 On 30 September 2022, the Respondent’s Parliament agreed on an
indirect counter-proposal to the Glacier Initiative,67 which would apply for theperiod from 2031 to 2050 (§35), in respect of which a referendum is expected
to take place in 2023.

1.10. The Respondent’s climate strategy is not in line with the 1.5°C limit
1.10.1.
31

The Respondent’s history of failed climate action

2007–2013: Art. 3(1) CO2 Act 2011, in force since 2013, required Switzerland
to reduce its domestic GHG by 20% below 1990s levels by 2020. However,that target was inadequate: six years earlier, in 2007, the IPCC’s AR4 statedthat developed countries like Switzerland had to reduce their domestic
emissions by 25%-40% below 1990 levels by 2020 to meet the (now outdated)
2°C limit with a 66% probability (see also §40);68 and its inadequacy wasrecognised by the Respondent.69

32

2014–2017: In 2017, the Respondent proposed a new CO2 Act (later therejected CO2 Act 2020, §30) with an overall reduction of 50% and a domestic

Federal Act on the Reduction of CO2 Emissions of 23 Dec. 2011, SR 641.71 (link).
Bundesgesetz über die Verminderung von Treibhausgasemissionen (CO 2-Gesetz) vom 25. Sept.
2020, Federal Gazette, BBl 2020 7847 (link).
66
The Federal Council, Klimapolitik: Bundesrat verabschiedet Botschaft zum revidierten CO 2-Gesetz,
16 Sept. 2022 (link) (doc. 36).
67
Glacier Initiative (link).
68
IPCC, Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth
Assessment Report of the Intergovernmental Panel on Climate Change, Mitigation of Climate Change,
p. 776 Box 13.7 (link) (doc. 37).
69
See Federal Gazette, BBl 2009 7433, p. 7446 (link) (doc. 38) and BBl 2012 2075, p. 2130 (link).
64
65

10

emissions reduction of 30% below 1990 levels by 2030.70 Again, this wasinadequate ab initio since the IPCC’s AR5 published in 2014 had stated thatcountries such as Switzerland had to achieve domestic reductions of at least
40% and possibly as much as 100% by 2030 for there to be a 66% probabilityof remaining within the (now outdated) 2°C limit (see also §40).71 The IPCC
indicated at that time the need for an on average domestic reduction of 50% by2030.72 Thus, the Respondent’s ambition at that time was 20% below even the
average needed to meet the outdated 2°C limit.
33

From 2018 onwards (consensus on 1.5°C limit): Since the release in 2018 of
the IPCC’s Special Report on the impacts of global warming of 1.5°C above preindustrial levels (“1.5°C SR”), the global political and scientific consensus isthat a 1.5°C limit is the benchmark for countries to calibrate their mitigation
efforts (§140). In 2020, the Respondent submitted an updated NDC, statingthat “Switzerland is committed to follow recommendations of science in order
to limit warming to 1.5 degrees Celsius” (emphasis added), and that “in viewof its climate neutrality target by 2050, Switzerland’s NDC is to reduce its
greenhouse gas emissions by at least 50 percent by 2030 compared with 1990
levels.”73 As part of the Glasgow Climate Pact 2021, in light of the 1.5°C limit
and the PA,74 Parties were requested in 2022 to revisit and strengthen theircurrent emissions targets to 2030.75 In 2022, at the 27th United Nations
Climate Change Conference ("COP27"), the President of the Swiss
Confederation urged the international community to keep the 1.5°C target insight.76

34

2018–2030 (domestic climate policy vis-à-vis 1.5°C limit): Despite
acknowledging the 1.5°C limit, the Respondent has not designed Switzerland’s
ambition with this limit in mind. First, Switzerland was the only State within

The Federal Council proposed to the parliament in Federal Gazette, BBl 2018 247, p. 248 (link)
dated 1 Dec. 2017, that of a total of 50 % emission reductions compared to 1990 60 % shall bedomestic reduction. See also Federal Gazette, BBl 2018 385, p. 386 (link).
71
IPCC, Climate Change 2014: Mitigation of Climate Change. Contribution of Working Group III to
the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, (“AR5 WGIII”),
p. 460 figure 6.28, p. 13 table SPM.1 (link) (doc. 39).
72
IPCC, AR5 WGIII (n 71), p. 459 (link) (doc. 39).
73
Switzerland’s information necessary for clarity, transparency and understanding in accordance withdecision 1/CP.21 of its updated and enhanced Nationally Determined Contribution (“NDC”) under
the Paris Agreement (2021-2030), 9 Dec. 2020, p. 6 (link) (doc. 40).
74
Art. 3 and Art. 4 (3), (4), (5) and (11) PA.
75
COP serving as the meeting of the Parties to the Paris Agreement, Decision 1/CMA.3, Glasgow
Climate Pact, §29, 21 f. (link).
76
COP27: President of the Swiss Confederation urges international community to keep 1.5°C target
in sight, 7 Nov. 2022 (link).
70

11Europe77 that has submitted an “updated” NDC to the UNFCCC which does
not represent a “progression”, as required by, for example Art. 4(3) PA. Its“update” of its 2030 emissions reduction target in the NDC (from “-50%” to“less than -50%”) was no more than a formality.78 Second, the current andplanned national climate legislation does not reflect the 1.5°C limit. Instead,the goals are such as: “(…) to less than 2 degrees Celsius”;79 “(…) well below
2 degrees Celsius and, if possible, below 1.5 degrees Celsius”.80 Third, as will
be explained in detail, the emission reduction pathways are not in line with the
1.5°C limit (ss1.10.2 and 1.10.3). Fourth, for the period from 2021 onwards,
the Respondent even decreased its domestic reduction pathway vis-à-vis theformer reduction pathway to 2020 (§31) that had entailed a domestic reductionof 2% per year.
−

In 2021, domestic GHG emissions must be reduced by only 1.5%
compared to 1990 emissions; from 2022 to 2024 with a yearly reduction
by 1.125% the ambition is even less (Art. 3(1bis and 1ter) CO2 Act 2011).
The Respondent itself concedes that the reduction path will not be
sufficient to achieve Switzerland’s NDC and that compensating for thedelay in emissions reduction will be a major challenge and the share ofmeasures taken abroad will have to be significantly higher thanplanned.81−

For the period from 2025 to 2030 (§30), it is planned that it will be in
the competence of the Respondent’s Federal Council to determine theshare of domestic measures within the reduction target of “at least 50%”
by 2030 (Art. 3(1a) and (1ter) amended CO2 Act 2011).82 Its current
intention is a domestic reduction of around 34% by 2030 compared to1990,83 i.e. 1.52% per year.84 However, the Respondent does not explain
how the delay could be compensated with this domestic reduction path.
Instead, it is likely that the Respondent will increase the share of

UNEP, Emissions Gap Report 2022, The Closing Window, Climate crisis calls for rapidtransformation of societies, Figure 3.1 (link).
78
See Climate Analytics, A 1.5°C compatible Switzerland, 15 Jun. 2021 (link) (doc. 41); UNEP,
Emissions Gap Report 2022 (n 77), Figure 3.1 (link).
79
Art. 1 CO2 Act 2011 (link).
80
Federal Gazette, BBl 2022 2652, Art. 1(1a) of the amended CO2 Act 2011 for the period 2025–
2030 (link).
81
Federal Gazette, BBl 2021 2252, p. 2254 (link).
82
Federal Gazette, BBl 2022 2652 (n 80).
83
Federal Gazette, BBl 2022 2651, p. 55 (link).
84
Calc. based on the intended 2024 domestic reductions of 24.875%: 34-24.875 = 9.125 / 6.
77

12

measures abroad85 as with its proposed amended CO2 Act 2011, it heavily
35

relies on technological progress86 that entails clear uncertainties.87
2031–2050 (domestic climate policy vis-à-vis 1.5°C limit): For the period from2031 onwards, the goal “(…) in accordance with the Climate Convention of
12 December 2015”88 is to reduce its GHG by 75% below 1990s levels by 2040
and to net-zero by 2050. These targets are not in line with the 1.5°C limit(ss1.10.2 and 1.10.3) and shall only be achieved “as far as possible” throughdomestic measures. 89

36

Overall: Switzerland’s 2020 climate reduction target was insufficient even tomeet the (outdated) 2°C limit. After committing to the 1.5°C limit, theRespondent’s 2030 target underwent only a superficial update. The intended
reductions are not only woefully inadequate but their inadequacy has been
aggravated by a reduction in domestic ambition. Neither the 1.5°C long-term
temperature goal itself nor 1.5°C compatible emission reduction targets havebeen, or are intended to be, enshrined into national law (for 1.5°C compatible

emission reduction targets see ss1.10.2 ff.).
1.10.2.
37

No 1.5°C compatible “fair share” contribution

In its recent AR6, the IPCC stated that global modelled pathways with apossibility of over 50% of limiting warming to 1.5°C with no or limited
overshoot require immediate action90 and a reduction in net global GHG
emissions from 2019 levels of 43% by 2030 and by 84% by 2050.91 Thesetargets are for the global pathway and therefore need to be achieved
collectively. Developed country parties are expected to take greater and fasteremission reduction measures: Arts. 4(1), (3) and (4) of the PA, which reflects
the principle of equity in the PA. Accordingly, developed countries should movefaster to enable the overall target to be met globally.92

Federal Gazette, BBl 2022 2651 (n 83), p. 55 (link).
The Federal Council (n 66) (link).
87
Federal Gazette, BBl 2022 2651 (n 83), p. 47 (link).
88
Art. 1 Draft Bundesgesetz über die Ziele im Klimaschutz (link).
89
Art. 3(3) and (4) Draft Bundesgesetz über die Ziele im Klimaschutz (n 88) (link).
90
IPCC, Climate Change 2022: Mitigation of Climate Change. Contribution of Working Group III to
the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (“AR6 WGIII”), SPM
C.1 (link) (doc. 42).
91
IPCC, AR6 WGIII (n 90), SPM C.1.1 (link) (doc. 42). See also UNEP, Emissions Gap Report 2022
(n 77), p. XVI (link): “To get on track for limiting global warming to 1.5°C, global annual GHG
emissions must be reduced by 45 per cent compared with emissions projections under policies
currently in place in just eight years, and they must continue to decline rapidly after 2030, to avoid
exhausting the limited remaining atmospheric carbon budget.”
92
UNEP, Emissions Gap Report 2020, 9 Dec. 2020, p. 34 (link).
85
86

13

38

To limit the global temperature increase requires limiting the overall
cumulative CO2 emissions within a carbon budget.93 To have a 67% chance ofmeeting the 1.5°C limit, the remaining global carbon budget is 400 GtCO2 (andto have an 83% chance, only 300 GtCO2).94 Assuming the same per capita
burden sharing for emissions from 2020 onwards,95 Switzerland would have aremaining carbon budget of 0.44 GtCO2 for a 67% chance of meeting the 1.5°C
limit (or just 0.33 GtCO2 for an 83% chance). In a scenario with a 34%
reduction in CO2-emissions by 2030 and 75% by 2040, Switzerland would
have used the remaining budget around 2034 (or 2030 for an 83% change)(doc. 17).96 Thus, under its current climate strategy, Switzerland plans to emit
more emissions than even an “equal per capita emissions” quantification
approach would entitle it to use.

39

However, an “equal per capita emissions” burden sharing approach is not avalid approach to determine national “fair shares” in reducing GHG emissions- a point which the Respondent seems to accept. 97 The general understandingof a fair level of contribution is that it reflects the “highest possible ambition”
and “common but differentiated responsibilities and respective capabilities, inthe light of different national circumstances” (“CBDRRC-NC”) (Art. 4(3) PA,
Art. 3(1) and 4(1) UNFCCC, Principle 7 Rio Declaration). While there is no set
agreed mechanism on what constitutes a fair level of contribution, in light ofthe principle of CBDRRC-NC, the assessment of what the range of fair level ofcontribution should be must be informed by principles and norms ofinternational law.

40

In both AR4 and AR5 the IPCC (§§31 and 32) presented findings on the basisof an assessment of the then-existing effort-sharing literature. The effort-sharing
analysis provided by AR4 and AR5 does, however, have limitations when used
to determine a State’s “fair share.”98 A key problem arises when each State‘cherry picks’ the equity interpretation that is most preferable to it. If all States
adopt the lowest end of their “fair share” range, the temperature target will be

IPCC, AR6 WGI (n 2), SPM D.1.1 (link) (doc. 23).
IPCC, AR6 WGI (n 2), SPM Table SPM.2 (link) (doc. 23).
95
I.e. “equal per capita emissions” with no further considerations such as the extensive per capita
contribution to cumulative emissions before 2020.
96
The budgets for CO2 emissions can increase or decrease depending on developments in non-CO2
emissions.
97
See e.g. NDC (n 73), p. 13 ff. (link) (doc. 40).
98
MAXWELL/MEAD/VAN BERKEL, Standards for Adjudicating the Next Generation of Urgenda-Style
Climate Cases, Journal of Human Rights and the Environment, 2 Nov. 2021, forthcoming, p. 21 (link).
93
94

14

missed by a significant margin.99 More recent academic studies have attemptedto address these limitations.100
41

A prominent example is a recent study by RAJAMANI ET AL. 101 Similar to theassessment in AR4 and AR5, it considers the full spectrum of effort sharing
methodologies but then assesses them through the prism of the establishedprinciples of international environmental law, which also inform theinterpretation of the Convention.102 It includes methodologies that areconsistent with principles and norms of international law, such as equity and
CBDRRC-NC, and excludes such that are inconsistent with these principles,such as cost efficiency, small share of global emissions and emissions per
GDP,103 thus reducing the range that can be considered as “fair”.104 Finally, thestudy further narrows each State’s “Fair share Range” of emissions reductions
to ensure that collectively the 1.5°C long-term temperature limit can be met.105
The authors conclude that a PA/environmental law-compliant reading of the
global carbon budget leads to the conclusion that developed States have a Paris

temperature goal compatible emission level in 2030 that is net-negative.106
With regard to Switzerland, RAJAMANI et al. calculated that emissions needed
to be similar to other European countries: net-negative in 2030, reaching a levelof -98% of 2010 emissions (which translates into a reduction of 198% below
2010 or 199% below 1990 emissions)107 in order for there to be a 66% chanceof global temperature rises staying below 1.5°C in 2100 and a maximal
temperature overshoot peak of 1.7°C (doc. 18).108

This was one of the grounds for critique on the outcome in The Hague District Court, Urgenda v.
The Netherlands, ECLI:NL:RBDHA:2015:7196, 24 Jun. 2015 (link), see: LISTON, Enhancing the99

Efficacy of Climate Change Litigation: How to Resolve the ‘Fair Share Question’ in the Context ofInternational Human Rights Law, Cambridge International Law Journal, Vol. 9 No. 2, pp. 241–263(link).
100
MAXWELL/MEAD/VAN BERKEL (n 98) (link).
101
RAJAMANI et al., National ‘fair shares’ in reducing greenhouse gas emissions within the principledframework of international environmental law, Climate Policy 21:8, pp. 983–1004, 2021 (link)(doc. 43).
102
International environmental law principles assessed included: “harm prevention, precaution,
sustainable development, special circumstances, equity (inter- and intra-generational), common but
differentiated responsibilities, public participation, international cooperation and good faith” RAJAMANI
et al. (n 101), p. 985 (link) (doc. 43).
103
RAJAMANI et al. (n 101), p. 991 (link) (doc. 43).
104
See also MAXWELL/MEAD/VAN BERKEL (n 98), p. 21 (link).
105
See also MAXWELL/MEAD/VAN BERKEL (n 98), p. 22 (link).
106
RAJAMANI et al. (n 101), p. 999 (link) (doc. 43).
107
The different reference years 1990 and 2010 are of little importance for Switzerland, as emissions
in 1990 and 2010 are very similar.
108
RAJAMANI et al. (n 101), Figure 5 (doc. 43) and supplemental material (link).

15

42

The fact that the Respondent’s climate strategy is not in line with the 1.5°C
limit is also confirmed by the Climate Action Tracker (“CAT”).109 The CAT
states that “if all countries followed Switzerland’s approach, warming would
reach up to 3°C.”110 In addition, the CAT rates Switzerland’s “fair share” target
as “Insufficient” and its climate finance as “Insufficient,”111 indicating that“substantial improvements” are needed “to be consistent with limiting
warming to 1.5°C.”112 Similar to RAJAMANI ET AL., the CAT concluded that to
do its “fair share” to limit global warming to 1.5°C, Switzerland must reduce

its GHG emissions to significantly below zero by 2030 (i.e. a reduction of 160%
to more than 200% below 1990 emissions (doc. 19)).113
43

Finally, in its study A 1.5°C compatible Switzerland dated 15 June 2021,
Climate Analytics 114 also concluded on the basis of an assessment of the thenexisting effort-sharing literature that an overall “fair share” contribution for
Switzerland would amount to a GHG emission level significantly below zero in2030 to limit warming to below 1.5°C in 2100 with a 50% chance. 115
44

Overall, the Respondent’s current climate strategy falls far short of meeting a“fair share” contribution towards the global mitigation target of 1.5°C. A faircontribution would require Switzerland to strengthen domestic reductions(s1.10.3) and – through financing emission reductions in other countries –
attain a net-negative GHG emission level in 2030 with reductions of 160% and
up to 200% below 1990 emissions for a 50% chance of meeting the 1.5°C limit.

1.10.3.
45

No 1.5°C compatible domestic emissions reduction

The question remains as to what domestic emission reduction commitments
within that “fair share” are compatible with the 1.5°C limit? The 1.5°C
compatible pathways laid down by the IPCC (§37) refer to global pathways andtherefore need to be achieved collectively. Certainly, as a wealthy country, the

The CAT is a collaboration of two independent climate science institutes which assesses States’
NDC against the PA temperature limit, see CAT, About (link). The scientific methodology of the CAT
is elaborated on in GANTI et al., Fair National Greenhouse Gas Reduction Targets under Multiple Equity
Perspectives - A Synthesis Framework, preliminary version dated 14 May 2021 (link).
110
CAT, Switzerland, Country summary, 8 Jun. 2022 (link) (doc. 44).
111
CAT, Country summary (n 110) (link) (doc. 44).
112
CAT, Country summary (n 110) (link) (doc. 44).
113
CAT, Switzerland, Targets, CAT rating of targets, 8 Jun. 2022 (link).
114
Climate Analytics is a multidisciplinary team composed of experts in climate science and impacts,
including authors of the IPCC, experts in climate finance, adaptation, climate negotiation, mitigation
policies and climate policy analysis, see Climate Analytics, Our team (link).
115
Climate Analytics (n 78) states that these emission reductions should be reached through domestic
emission reductions, emission reductions abroad and support for developing countries (climate
finance) (link) (doc. 41).
109

16

Respondent’s domestic emissions reductions cannot be less than what is neededby the global average.
46

Using technically and economically feasible global mitigation pathways
published by IPCC in 1.5°C SR,116 and applying downscaling methods, Climate
Analytics derived a range of domestic GHG emissions reduction pathways for
Switzerland that are 1.5°C compatible. In both Climate Analytics’ 2021
study117 and in its 1.5°C national pathway explorer,118 these pathways showthat a domestic emissions reduction target of more than 60% by 2030 and netzero by 2050 below 1990 levels is needed to limit warming to below 1.5°C in
2100 with a 50% chance (range: 53% to 67% resp. 53% to 70% by 2030 and
89 to120% by 2050). Similarly, CAT’s analysis (doc. 19)119 showed that morethan 60% domestic reduction below 1990 levels (range: 52% to 70% compared
to 1990, excluding land-use, land-use change and forestry (“LULUCF”)) isneeded for Switzerland’s 2030 target to be compatible with a 1.5°C limit.

47

The Respondent’s strategy of purchasing emission reductions abroad andaccounting them to the national emission reduction target for 2030 would havethe effect of postponing the reduction efforts Switzerland itself must undertake
to be net-zero in 2050. Such a strategy would require Switzerland, after 2030,
to reduce domestic emissions to zero within a very short period of time withhigh annual emission reduction rates that become increasingly difficult toachieve120 This is because reductions delayed by years, not to say decades, leadto steep reduction curves that are almost impossible to manage: due to risingcosts for the emission reductions then required in the short term; due todependency on carbon emitting infrastructures; due to stranded assets and the
reduced flexibility in future response options in the medium and long-term.121
See HUPPMANN et al., IAMC 1.5°C Scenario Explorer and Data hosted by IIASA (link).
Climate Analytics (n 78) (link) (doc. 41).
118
Climate Analytics, 1.5°C national pathway explorer, Ambition gap, 1.5°C compatible pathways(link) (doc. 45). The 1.5°C national pathway explorer is based on globally cost-efficient modelled
pathways that limit warming to 1.5°C, but it does not provide any information on Switzerland’s fairshare and does also not take into account emissions occurring abroad that are attributable to
Switzerland.
119
CAT, Targets (n 113) (link). CAT uses the modelled domestic pathways to assess whether targets
or policies are on track towards full decarbonisation in line with the 1.5°C limit. The modelled
domestic pathways aim at providing feasible emission reduction pathways within each country,
complementing the focus on fair shares. Most developing countries will need support to meet a 1.5°C
modelled domestic pathway. Conversely, developed countries should be achieving at least their 1.5°C
modelled domestic pathway domestically and using their own resources, see CAT, Modelled domestic
pathways (link).
120
UNEP, Emissions Gap Report 2020 (n 92), p. 34 (link).
121
1.5°C SR (n 50), SPM D.1.3 (link) (doc. 32).
116
117

17

Furthermore, as set out in Art. 6(1) PA, internationally transferred mitigation
outcomes should only serve “to allow for higher ambition in their mitigation(…) actions.” Purchasing emission reductions abroad are therefore only a valid
strategy when they are used to enlarge the reduction efforts of a State beyond
the 1.5°C compatible domestic emissions reduction.122
48

Overall, the Respondent’s domestic emissions reduction plans are not 1.5°C

compatible. According to the evidence, agreed science and equitable burden
sharing principles set out above, the Respondent would need to ensure
domestic GHG emission reductions of more than 60% below 1990 levels by
2030.
1.10.4.
49

No effective prevention of emissions which occur abroad and are
attributable to the Respondent

Most of the GHG emissions attributable to Switzerland occur abroad (§§3 ff.).
This the Respondent recognises in stating that consumption-based emissions
should be taken into account when setting climate targets.123 This was reflectedin Art. 3(3) of the rejected CO2 Act 2020 and its NDC of 9 December 2020,124
but is no longer mentioned in the current proposals (§34) and has been deleted
in its “updated” NDC published in 2021.125

50

In terms of the finance sector (§5), the Respondent acknowledges that today’s
investments can have a considerable influence on GHG emissions,126 andadmits that: the Swiss financial market continues to invest not only significantlyin oil and coal production but even in their further expansion;127 and that theshare invested in high-carbon power capacity is still four times as high as theshare invested in renewable capacity.128 The Swiss National Bank has been
rated in terms of fossil fuel financing as “grossly insufficient” or “insufficient”
in all the examined aspects.129 However, it will not be until 2025 that the

See also New York Times, Switzerland Is Paying Poorer Nations to Cut Emissions on Its Behalf,
9 Nov. 22 (link).
123
Federal Gazette, BBl 2018 247 (n 70), p. 286 s1.3.1 (link) where it held that it aims to compensate
for consumption-based emissions particularly with additional measures abroad.
124
NDC (n 73), p. 1 and 15 (link) (doc. 40).
125
Switzerland’s information necessary for clarity, transparency and understanding in accordance withdecision 1/CP.21 of its updated and enhanced Nationally Determined Contribution (“NDC 2021”)
under the Paris Agreement (2021-2030), 17 Dec. 2021 (link) (doc. 46).
126
FOEN, Klima und Finanzmarkt, 22 March 2022 (link).
127
FOEN, Klimaverträglichkeit im Test, 20 Jul. 2021 (link); 2° Investing Initiative, Bridging the Gap,
2020, p. 8 f. (link).
128
2° Investing Initiative (n 127), p. 9 (link).
129
TONG, Unused tools: How Central Banks are fueling the Climate Crisis, Oil Change International,
Aug. 2021, p. 5 and 9 (link).
122

18

finance sector will be included in national climate law. It will then merely besubject to an obligation to regularly review financial risks of climate change(Art. 40d amended CO2 Act 2011, (§34)), and will not be required to makefinancial flows compatible with a climate-compatible emissions pathway. The
Respondent gives no reasons for this lack of regulation; it only asserts thatmeasures are planned to be included in Switzerland’s climate law from 2031
onwards.130
1.10.5.
51

Reliance on carbon dioxide removal is a major risk in the ability to limit
warming to 1.5°C

All IPCC GHG emission reduction pathways include net-negative CO2
emissions (particularly Carbon Dioxide Removal, (“CDR”)) to remove
remaining emissions, at various levels. Yet, it must be stressed that the IPCC
itself recognises that “CDR deployed at scale is unproven, and reliance on suchtechnology is a major risk in the ability to limit warming to 1.5°C.”131 Againstthat background, reliance on CDR needs to be as small as possible, and GHG
sinks need to be as safe as possible to not pose a major risk in terms of the ability
to limit warming to 1.5°C. This underlines the fact that the choice of emission
reduction pathways is limited.

1.11. The Respondent fails to meet its own (inadequate) climate targets
52

Switzerland missed its 2020 climate target, despite the COVID-19 measuresand the warm winter. With the end of the COVID-19 restrictions, emissions
are rising again significantly.132

53

It is clear from this fact that the measures contained in the CO2 Act 2011 were
not sufficient. Also, the Respondent’s application of the legislation and thesupervision over the cantons was insufficient, particularly in the building andtransport sector. This is of particular concern since in these sectors it is evenmore important to take immediate action to avoid a lock-in of carbon-intensive
infrastructure. Furthermore, there were and are important GHG-relevant
sectors which are not regulated, e.g. agriculture133 and the finance sector

Federal Gazette, BBl 2022 2651 (n 83), s1.1.4 (link).
IPCC, 1.5°C SR (n 50), p. 34 (link).
132
FOEN, Treibhausgasinventar 2020: Die Schweiz verfehlt ihr Klimaziel knapp, 11 Apr. 2022 (link)(doc. 47).
133
FOEN, Kenngrössen (n 5), p. 9 (link). Agriculture accounts for around 14.6% of all domestic GHG
emissions but is neither included in the CO 2 Act nor in any other law. Instead, the Respondent supports
130
131

19

(§50), although the required transformations have to occur in all sectors inparallel.134
54

The (planned) emission reduction measures for 2030 are similar to the ones inthe extant CO2 Act 2011. There are, for example, no new and no higher levies
than today; the amended CO2 Act 2011 will be supplemented mainly byfinancial contributions for climate-friendly behaviour.135 With these measures,
the Respondent's aim of a domestic reduction of around 34% by 2030 will not
be reached.136 However, in purely arithmetical terms, the Respondent has
secured the achievement of the overall 2030 target by allowing itself to flexibly
choose the share of domestic reduction (§34), with the aim of purchasing
carbon credits from other countries to claim that it has made the necessary
reductions.

1.12. The Respondent is able to do its share, i.e. to reduce the risk of heat-related
excess mortality and morbidity
55

The above 1.5°C compatible domestic pathway is technically and economicallyfeasible (§46).137 The Respondent is thus able to use its own resources toachieve full decarbonisation in line with the 1.5°C limit (§48).138 The
remaining emission reductions required in order for the Respondent to attain a
net-negative GHG emission level in 2030 to meet its “fair share” (§44) can beachieved with measures abroad. Given that the Respondent is one of thewealthiest States globally, it can undoubtedly scale up its support to developing
countries in the form of finance or other support for mitigation139 to reduce
their emissions as part of its “fair share” contribution. The Applicants stress that
the Respondent has never claimed that it is not able to raise its ambition.

the agriculture sector with subsidies, for example with exemptions from Mineral Oil Tax (Art. 18(2)Mineral Oil Tax Act [link]).
134
UNEP, Emissions Gap Report 2022 (n 77), p. 38 s5.2 (link).
135
The Federal Council (n 66) (link).
136
See Climate Analytics, 1.5°C national pathway explorer, In brief, Economy wide, Current policy(link) (doc. 45) and CAT, Country summary (n 110), overview (link) (doc. 44).
137
See also CAT, Modelled domestic pathways (n 119) (link).
138
See for example econcept, Massnahmenkatalog Klimapolitik 2030 für eine klimaverträgliche
Schweiz, 8 Jan. 2016 (link), or Greenpeace, energy (r)evolution, Eine nachhaltige Energieversorgung
für die Schweiz, 2013 (link); Climatestrike Switzerland, Climate Action Plan, 8 Jan. 2021 (link).
139
See Climate Analytics (n 78) p. 5 f. (link) (doc. 41); CAT, Country summary (n 110), fair sharetarget (link) (doc. 44).

20

2.

The law140

2.1. Scope of the case (question A)
56

The arguments raised by the Applicants in their 2021 Observations141
concerning GHG emissions generated abroad and attributed to the Respondent
form part of the Applicants’ complaints or “claims” made in the original
Application142 before the Court. Specifically, the Applicants’ claim, as set out
there, was that the Respondent’s failure to take preventative measures toreduce emissions in line with the 1.5°C limit constitutes a violation of Arts. 2
and 8 ECHR.143 As further explained in the 2021 Observations, the mitigation
effort that the Respondent is obliged to take must be determined by reference
not merely to the emissions that occur on the territory of Switzerland but also
by reference to external emissions (s1.2.2).144 The Respondent agrees thatemission reductions must include those that are attributable to the Respondent(§§49 f.). That compliance with the 1.5°C limit requires not least reducing
consumption emissions, has been made clear by the UNEP Emissions Gap
Report 2020.145

57

Thus, the Applicants’ arguments concerning GHG emissions that occur abroad
are “not beyond the request.”146 Rather, they elaborate the original Application
by eliminating any initial omissions or obscurities, which the Court is invited
to take account of and which the Court could also clarify ex officio.147

2.2. Jurisdiction (question B)
58

The Applicants submit that no issue arises as to jurisdiction under Art. 1 ECHR,
as it did in the cases cited by the Court. The Applicants’ complaint concerns
the failure of the Respondent to take the necessary measures to reduce GHG
emissions within its territorial jurisdiction. The Applicants do not contend that
the Respondent should take or have taken measures outside of the territory of
Switzerland, nor that it is violating the rights of persons outside of Switzerland,

For the relevant legal framework and practice, see the Applicants’ Observations on the Law to the
Chamber, 13 Oct. 2021 (“Applicants’ OL”) (link). An update is included in these Observations.
141
Applicants’ OL (n 140).
142
Applicants’ Application to the Court, 26 Nov. 2020 (link).
143
Applicants’ Application (n142), Application Form, p. 8.
144
Applicants’ OL (n 140), §§113 ff.
145
UNEP, Emissions Gap Report 2020 (n 92), pp. 62-63.
146
See Radomilja and Others v. Croatia [GC], no. 37685/10, §109.
147
See Radomilja (n 146), §122, Foti and Others v. Italy, no. 7604/76, §44, and K.-H.W. v. Germany[GC], no. 37201/97, §107.
140

21

nor that it should exercise jurisdiction over persons outside Switzerland.148
Rather, the Applicants submit that the scope of the Respondent’s obligation toprotect, namely its obligation “to do everything in its power to do its share toprevent a global temperature increase of more than 1.5°C above pre-industrial
level” (§111), includes the reduction of external emissions by steps taken
within Switzerland (s1.2.2 and §§115 ff.).
59

Thus, the alleged violation of the Convention by the Respondent is not the
production of extra-territorial GHG emissions; rather it is the failure to adopt
the necessary legislative framework within Switzerland. Thus, no extraterritorial conduct is at issue; the impugned conduct is within the borders of
the Respondent, even if the effects may be felt in whole or in part abroad.149
This is in line also with evolving norms of international law and the practice of
the Contracting States150 (§120). There is no dispute on this issue. The
Respondent has repeatedly proposed including external emissions in its
emissions reduction ambition (§§49 f.).

60

Accordingly, in answer to question B.2.1, the current case-law does not need
to be further developed in order to take account of the specific characteristics
of climate change.

2.3. Victim status of the Applicants (question C)
61

The Applicant Association (Applicant 1) and Applicants 2 to 5 (the individual
Applicants) are direct (as well as potential) victims, of a violation of Arts. 2 and
8 ECHR within the meaning of Art. 34 ECHR on account of the ongoing failureof the Respondent to afford them effective protection against the effects ofglobal warming. In addition, and given their participation in the domestic
proceedings, all the Applicants are victims for the purposes of their complaints
under Arts. 6 and 13 ECHR.151

62

The Applicants are victims as they are “directly affected by the impugned
measures.”152 The term “victim” is an autonomous concept and must be
interpreted irrespective of domestic definitions such as those concerning an

See Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §66.
See Nada v. Switzerland, no. 10593/08, §§117-123 and TILMANN ALTWICKER, Transnationalizing
Rights: International Human Rights Law in Cross-Border Contexts, European Journal of International
Law Volume 29 (2), Jul. 2018, p. 592 (link).
150
Compare M.N. and Others v Belgium [GC], no. 3599/18, §98 and Banković (n148), §§59-61.
151
See Gorraiz Lizarraga and Others v. Spain, no. 62543/00, §36.
152Tănase v. Moldova [GC], no. 7/08, §104; Burden v. UK [GC], no. 13378/05, §33.
148
149

22

interest or capacity to act. 153 The Court has held that the term “victim” ought
to be interpreted in an “evolutive manner”154 and not applied in a rigid,
mechanical, or inflexible way.155 Establishing victim status requires a violation
to be conceivable;156 and whether a violation exists should be decided on the
merits.
63

The Preamble to the PA explicitly refers to the need for States to “respect,promote and consider their respective obligations on human rights” when“taking action to address climate change” (§143). If Applicants 2-5, as membersof a most vulnerable group, are not “victims” within the meaning of Art. 34
ECHR, then it is hard to envisage who could be. The lack of any supervisory
jurisdiction in the ECHR would be likely to lead to a limitation of rights thathas already been recognised (s2.5.5), and would be an inacceptableconsequence in the light of the Court’s practice in comparable environmental
law cases (cf. §111).

2.3.1.
64

Victim status of Applicant 1 in respect of Arts. 2 and 8 ECHR

Applicant 1 amounts to no more than a group of individuals, as provided for in
Art. 34 ECHR, albeit it has legal identity. Every single member of Applicant 1
is an individual directly affected by the failures of the Respondent in a similar
way as Applicants 2-5 (who are also members of Applicant 1). Accordingly, thisis not an actio popularis; Applicant 1 is not bringing an action in the general or
public interest, even if the interests of its members align with the interests ofthe general public157 since climate change mitigation measures can never
benefit certain population groups exclusively. Rather, Applicant 1 is a meansby which the individuals were able to bring their complaint before the Court.

65

To preclude Applicant 1's application under Arts. 2 and 8 ECHR by virtue ofthe fact that it is a legal person, would be to ignore the reality158 and to adopt a

Aksu v. Turkey [GC], no. 4149/04, §52, Gorraiz Lizarraga (n 151), §35 and Yusufeli İlçesini
Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği v. Turkey (dec.), no. 37857/14, §36.
154
Gorraiz Lizarraga (n 151), §38.
155
Micallef v. Malta [GC], no. 17056/06, §45; Karner v. Austria, no. 40016/98, §25;
Aksu (n 153), §51.
156
Brumărescu v. Romania, 28342/95, §50. See also: LEMMENS in: VAN DIJK et al. (eds), Theory and153

Practice of the European Convention on Human Rights, 2018, p. 52.
157
See Bursa Barosu Başkanlığı and Others v. Turkey, no. 25680/05, §128. An implied public interest
did not preclude the applicants’ complaint in Tătar v. Romania, no. 67021/01, nor in Di Sarno andOthers v. Italy, no. 30765/08, nor in Aksu (n 153), §§50, 53-54.
158
See Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria,
no. 62540/00, §60. Contrast Aly Bernard and Greenpeace-Luxembourg v. Luxembourg (dec.),
no. 29197/95 “(…) orsque l’atteinte au droit au respect du domicile résulte, comme allégué enl’espèce, de nuisances ou de troubles qui ne peuvent être ressentis que par des personnes physiques.”23

wholly formalistic approach that is not in line with the “real and effective”
protection of Convention rights; a core principle of Convention
jurisprudence.159 Further, the Court should ensure that its approach to theconcept of victim is in line with the access to justice requirements of Art. 9(2)Aarhus Convention. In that regard, there is nothing in the text of the Article
itself that precludes a group from bringing a claim. An applicant must fall into
one of the categories of petitioners mentioned in Art. 34 ECHR,160 which
include a “non-governmental organisation or group of individuals.”
66

In Gorraiz Lizarraga and Others v. Spain, the Court considered the
Coordinadora de Itoiz association to have victim status.161 Similar to theassociation in that case,162 Applicant 1 was set up for the specific purpose ofbringing its members’ interests before the courts (Art. 3 statutes163). Its
members, as part of a most vulnerable group, are directly concerned by the
Respondent’s omissions regarding climate protection (ss1.5 and 1.6).

67

Applicant 1 enables a particularly vulnerable group of individuals to exercise
their rights in the long term, regardless of the natural age-related retirement ofsome of its members. The exact membership of Applicant 1 may change, but
the vulnerability of its members will not change; their individual and particularinterests will remain. This is of particular importance in view of the average ageof the members of Applicant 1 (§19). Since the beginning of the proceedings in
2016, 45 members of Applicant 1, including Applicant 2, have died. Thus,
Applicant 1’s nature as an association existing independently of its members is
key to the ability of its individual members to bring the claim before the Court.
Allowing Applicant 1 to claim victim status in respect of its individual members
means ensuring that members of this particular group are able to exercise theirrights in the long term. Proceedings before domestic courts and the Court can,in some instances, take up to a decade to conclude.164

E.g. Folgerø and Others v. Norway [GC], no. 15472/02, §100.
Gorraiz Lizarraga (n 151), §35.
161
Gorraiz Lizarraga (n 151), §38; see also Yusufeli (n 153), §39 and Beizaras and Levickas v.
Lithuania, no. 41288/15, §81.
162
See Gorraiz Lizarraga (n 151), §39.
163
Statutes of Applicant 1, 23 Aug. 2016 (link).
164
As established by the Court in Nencheva and Others v. Bulgaria, no. 48609/06, §93, in the interestof justice and to protect individual rights and freedoms, exceptional measures may be taken to ensure
the public participation and representation of victims who are not in a position to defend themselves.
159
160

24

68

Applicant 1's involvement in this case is for many of its members essential todefend their rights effectively.165 The present case is complex, without
precedent, and therefore associated with a large expenditure of time and costs.
Applicant 1 submits that bringing a standalone case of this dimension throughthe domestic courts in Switzerland before approaching the Court would havebeen prohibitively expensive for most individuals. The significant costs would
have deterred the members of Applicant 1 from seeking legal redress, were it
not for Applicant 1’s ability to pool resources. For the Court to refuse to grantApplicant 1 victim status would be to impose an excessive burden on those
who have the courage to bring a case of such complexity and novelty but do
not have the financial resources to do so. Indeed, Applicants 2-5 would nothave been able to bring the case to the Court if Applicant 1 had not taken
responsibility for the costs.

69

Given the complexity and cost of climate litigation it is not surprising that nongovernmental organisations (“NGOs”) have played an increasingly significant
role in such cases in recent years166 and have been more successful than
individual plaintiffs in doing so. For example, in Switzerland, the ratio of
successes to losses in cases brought by NGOs is nearly three times higher thanfor cases brought by private individuals.167

2.3.2.
70

Victim status of Applicants 2 to 5 in respect of Arts. 2 and 8 ECHR

Applicants 2-5 are direct victims of Respondent’s ongoing failure to take thenecessary steps to reduce emissions in line with the 1.5°C limit (ss1.9, 1.10
and 1.11) because:−they have suffered and continue to suffer personally from heat-related
afflictions (§§18 and 23 ff.); the Applicants have explained in detail how−

they have been affected, in terms of their health and private life (s1.6);168
with every heatwave, they have been and continue to be at a real andserious risk of mortality and morbidity greater than the general

See Gorraiz Lizarraga (n 151), §38: “And indeed, in modern-day societies, when citizens areconfronted with particularly complex administrative decisions, recourse to collective bodies such as
associations is one of the accessible means, sometimes the only means, available to them whereby
they can defend their particular interests effectively.”
166
SETZER/HIGHAM, Global Trends in Climate Change Litigation, 2022 Snapshot, p. 11 (link); see alsoCollectif national d’information à l’usine Melox – Collectif Stop Melox et Mox v. France (dec.), no.
75218/01, §4.
167
FOEN, Statistiques et evaluation du droit de recours des organisations (link).
168
Compare Caron and Others v. France (dec.), no. 48629/08 and Di Sarno (n 157), §80.
165

25

population169 solely because they are women above the age of 75 (s1.5);−−

the risk to Applicants 2-5 is even higher compared with other older
women due to their respiratory and cardiovascular diseases170 (§§18, 23
ff. and s2.3.3, answering the Court’s question C.3.1);of the “cumulative effect” of all the consequences the Applicants alreadyexperience and will experience in the future;171 and−71

this application does not concern the general degradation of theenvironment.172
The Applicants note that it is beyond reasonable doubt that the risks posed byclimate change-induced heatwaves to the particularly vulnerable group of older
women will inevitably materialise in individual cases. That being so, the burdenof proof lies with the Respondent to show that the Applicants’ health afflictions
were not caused by excessive heat, contrary to the medical evidence provided
by them.173

72

Additionally, Applicants 2-5 are potential victims because the Respondent's
ongoing failure to take the necessary steps to reduce emissions in line with the
1.5°C limit (ss1.9, 1.10 and 1.11) will significantly increase their risk of heatrelated mortality and morbidity; the intensity and frequency of heatwaves
increases with every additional increment of global warming (s1.4).
Accordingly, it is beyond doubt that climate change-induced heatwaves will
increasingly cause further deaths and illnesses in older women with chronic
diseases, like the Applicants 2-5 (s1.5 and §18). The Applicants haveestablished this by reference to sound and detailed evidence, namely
epidemiological data and other scientific evidence, so as to demonstrate the realprobability of the occurrence of further violations of their rights.174

2.3.3.
73

169
170

The Applicants are members of a particularly vulnerable group (question
C.3.1)

Globally, thousands of deaths can already be attributed to climate change 175 andhundreds of excess deaths occur during every heatwave in Switzerland (§11).

See Burden (n 152), §§33-35.

Open Door and Dublin Well Women v. Ireland, no. 14234/88, §44; see also Talpis v. Italy,

no. 41237/14, §§99, 126.

Grimkovskaya v. Ukraine, no. 38182/03, §62; see also Fadeyeva v. Russia, no. 55723/00, §88.
Cordella and Others v. Italy, no. 54414/13, §101; Di Sarno (n 157), §80; Fadeyeva (n 171), §68.
173
Cf. Grimkovskaya (n 171), §§59 and 61.
174
Senator Lines GMBH v. Austria, no. 56672/00, pp. 11-12; see mutatis mutandis Cordella (n 172),§§104-107. See also Aly Bernard (n 158).
175
VICEDO-CABRERA/SCOVRONICK/SERA et al. (n 31) (doc. 26).
171
172

26

These heat-related deaths are not distributed randomly across the population
but occur, as the Respondent acknowledges (§8), much more frequently inolder persons, and especially in older women (§§14 ff.). Both the members ofApplicant 1 and Applicants 2-5 belong to this specific segment of the populationthat is particularly affected by climate change due to their age and gender.
Applicants 2-5 are even more vulnerable due to their chronic diseases (§18).
74

Applicants 2-5 thus submit that they are both personally, and as members of
the particularly vulnerable group of women aged above 75, especially affectedby the effects of rising temperatures in comparison with the general public. In

contrast to the rest of the general population:−−75

they have suffered and continue to suffer personally from severe heatrelated afflictions (§§23 ff.);
given their age and gender (§§14 ff.) and their respiratory andcardiovascular illnesses (§§18 and 23 ff.), they are members of aparticularly vulnerable group and as such, they have been and continue

to be at a real and serious risk of mortality and morbidity with every
heatwave (i.e. a severe risk of premature loss of life and severe
impairment of their health and quality of life).
Further, to evaluate the risk of climate change-induced heatwaves,epidemiological data, scientific evidence and medical certificates must be taken
into account in this case, rather than spatial proximity176 in order to do justiceto the special features of the ubiquitous phenomenon of dangerous climatechange. 177

2.4. Applicability of the Convention provisions (question D)
2.4.1.

Applicability of Art. 2 ECHR (question D.4(a))

2.4.1.1. How is Art. 2 ECHR engaged?
76Art. 2 ECHR applies in the context of any activity, whether public or not, inwhich the right to life may be at stake and a fortiori in the case of industrial
activities “which by their very nature are dangerous.”178 Thus, in the context

Contrast Caron (n 168) where the Court held that the GM crops were not in the vicinity of theapplicant’s homes, farms or vineyards.
177
Cf. mutatis mutandis Cordella (n 172), §§104-107.
178
Brincat and Others v. Malta, no. 60908/11, §80; see Öneryıldız v. Turkey [GC] no. 48939/99,§71, Budayeva and Others v. Russia, no. 15339/02, §§130-131 and Nicolae Virgiliu Tan̆ ase v.
Romania [GC], no. 41720/13, §140.
176

27

of a number of different kinds of activities, including the management of
dangerous activities resulting in environmental disasters179 and the exposure toasbestos in a workplace,180 the Court has found that States are under a positive
obligation to take steps to prevent and mitigate risks to life. That obligation ispreventative; it does not require death or injuries to occur.181
77

In this case, Art. 2 ECHR is engaged by the failure of the Respondent to takethe necessary steps to reduce emissions in line with the 1.5°C limit so as tomitigate the effect of increasing temperatures (ss1.9, 1.10 and 1.11). As a resultof increasing temperatures the lives of Applicants 2-5 and the members ofApplicant 1 are at real and serious risk.182 The recurring183 heatwaves havealready led to heat-related excess mortality and morbidity in the group of older
women (s1.5); there is evidence of the seriousness of the risk presented to theApplicants by ongoing climate change and proof that Applicants 2-5 have, due
to their chronic diseases, already suffered harm and continue to be at aparticularly high risk (s1.6).184 It is beyond doubt that climate change has
negative effects on the health of Applicants 2-5 and the members of Applicant
1, and poses a threat to their lives.185 None of that is disputed.

78

The Court has referred the Applicants to Nicolae Virgiliu Tănase v. Romania§§140-143.186 That case concerned the procedural obligation to investigate
under Art. 2 ECHR in the context of a road traffic accident in which death had
not occurred (and in circumstances where a sufficient legislative framework
regarding traffic safety existed and was not at issue).187 Accordingly, it did notconcern the substantive obligations on the State under Art. 2 ECHR to adopt
measures to protect life. However, at §§134-137 of its judgment, the Court set
out the general principles applicable to the substantive obligations under Art. 2

Nicolae Virgiliu Tănase (n 178), §§140-141; Öneryıldız (n 178); Budayeva (n 178).
Brincat (n 178), §81.
181
Öneryıldız (n 178), §§71, 89-90; Nicolae Virgiliu Tănase (n 178), §140; see also Budayeva (n 178),
179
180

§146.

Brincat (n 178), §82; mutatis mutandis Tătar (n 157), §107; Jugheli and Others v. Georgia,
no. 38342/05, §67 and Cordella (n 172), §169.
183
See Talpis (n 170), §122.
184
Compare Öneryıldız (n 178), §100; see also Budayeva (n 178), §132.
185
See e.g. Saribekyan and Balyan v. Azerbaijan, no. 35746/11, §61; Ivan Atanasov v. Bulgaria, no.
12853/03, §75; see also Budayeva (n 178), §146, where the Court held with a view to the occurrenceof life-threatening mudslides that “The Court will begin by noting that although only one of the present
applications (…) concerns the death of a family member, the circumstances of the case in respect of
the other applicants leave no doubt as to the existence of a threat to their physical integrity. This brings
their complaints within the ambit of Article 2 of the Convention.”
186
Nicolae Virgiliu Tan̆ ase (n 178).
187
Nicolae Virgiliu Tan̆ ase (n 178), §§73, 80, 84 & 86-87.
182

28

ECHR, namely the obligations on the State to take appropriate steps tosafeguard the lives of those within its jurisdiction. Those principles apply here.
79

As is clear from Budayeva and Others v. Russia all that is needed to bring thecomplaint within the ambit of Art. 2 ECHR is that there is a threat to theApplicants’ lives.188 There is no doubt that this requirement is met in thepresent case (§77). The same principles are set out in Brincat and Others v.

Malta, to which the Court refers. There, the Court held Art. 2 ECHR to be
applicable in circumstances where an individual has not died but where there
is a threat to the person's physical integrity, including in the case of serious
illness.189
80

The Applicants note that the substantive obligation under Art. 2 ECHR “entailsa primary duty on the State to put in place a legislative and administrative
framework designed to provide effective deterrence against threats to the rightto life.”190 That obligation applies irrespective of whether there is any“imminent” or “immediate” risk to life. The obligation arises as part of theState’s obligation to protect life where individuals are subject to a known andserious risk.

81

First, in the environmental cases of Budayeva and Others v. Russia191 andZammit Maempel and Others v. Malta,192 the Court did not find that there wasa requirement of a “real and immediate risk” for the aforementioned duty toarise. In Nicolae Virgiliu Tănase v. Romania193 and, similarly, in Öneryıldız v.
Turkey, the Court applied the “real and immediate risk” test only in relation toan operational duty, which is different from the obligation of the Respondentthat is engaged in this case.194

Budayeva (n 178), §146.
Brincat (n 178), §82.
190
Nicolae Virgiliu Tănase (n 178), §135 citing numerous cases.
191
Budayeva (n 178), §§128 ff.
192
Zammit Maempel and Others v. Malta, no. 24202/10, §67.
193
Nicolae Virgiliu Tănase (n 178), §136.
194
Öneryıldız (n 178): At §101, it stated that the authorities knew or ought to have known that there
188
189

was a “real and immediate risk” to a number of persons, and that the authorities had a positive
obligation under Art. 2 to “take such preventive operational measures as were necessary and sufficient
to protect those individuals” (operational duty). In contrast, at §89, the Court stated that the positive
obligation to take all appropriate steps to safeguard life for the purposes of Art. 2 entails a primary dutyon the State to put in place a legislative and administrative framework designed to provide effective
deterrence against threats to the right to life (obligation to establish a legislative and administrative
framework). The Court then stated that where lives have been lost in circumstances potentiallyengaging the responsibility of the State, Art. 2 imposes a duty for the State to ensure, by all means at
its disposal, an adequate response so that the legislative and administrative framework set up to protect
the right to life is properly implemented and any breaches of that right are repressed and punished(obligation to implement).

29

82

Second, the Court has applied a range of tests that consider, inter alia, whether
the risk of harm is sufficiently “real” and whether the harm is sufficiently“serious” or severe (referred to above as the “real and serious risk” test, §77)in order to ascertain whether an obligation to adopt measures arises.195

83

Third, and in any event, the Applicants note that there is an immediate risk
here. The “immediacy” of the risk of climate change related to adverse events
is now a scientific known and is aggravated by the existence of climate tipping
points, as identified in the relevant climate science. The risks are no longer
predictions but facts. Given the evidence of climate change-related adverse
events, it is clear that the risk to the lives of the Applicants 2-5 and the membersof Applicant 1 is not just serious and immediate, it has in specific cases alreadymaterialised. Additionally, even assuming that there was any lack of certainty
as to the effects of climate change, consistent with the principle that the ECHR
cannot be interpreted in a vacuum, 196 the precautionary principle would haveto be applied,197 so as to encompass the concepts of directness, inevitability andirreversibility. This is the approach that the Dutch Supreme Court adopted
when interpreting “immediacy” in Urgenda v. the Netherlands.198

2.4.1.2. Specific considerations regarding the causal link

A causal link is established84

In their Observations on the Facts above, the Applicants demonstrated thecomplex yet direct causal link between the Respondent’s failure to tackle
climate change and the physical and psychological effects on the Applicants,
based on extensive scientific evidence:−−−that human activity is causing climate change, including global warming(s1.1),
that the Respondent contributed and is still contributing to global
warming (s1.2),
that one of the main impacts of human-induced global warming are moreTătar (n 157), §107; Brincat (n 178), §82; Jugheli (n 182), §67; Cordella (n 172), §169.
Demir and Baykara v. Turkey, no. 34503/97, §85.
197Tătar (n 157), §120.
198
Dutch Supreme Court, Urgenda v. The Netherlands, ECLI:NL:HR:2019:2007, 20 Dec. 2019,
195
196§5.2.2, where it was noted that “the term ‘immediate’ does not refer to imminence in the sense thatthe risk must materialise within a short period of time, but rather that the risk in question is directly
threatening the persons involved. The protection of Art. 2 ECHR also regards risks that may only
materialise in the longer term,” referencing the following judgments in which the Court held that therequirements set out in §5.2.2 were met: Öneryıldız (n 178), §§98-10; Budayeva (n 178), §§147-158
and Kolyadenko v Russia, no. 17423/05, §§165 and 174-180.

30

−
−
−
85

frequent and more intense heatwaves (s1.3),
that intensity and frequency of heatwaves increases with every additional
increment of global warming (s1.4),
that heatwaves have caused, are causing and will cause further deaths
and illnesses to older women (s1.5),
that heatwaves have already caused illnesses to the Applicants in the past(s1.6).
Thus, in light of the scientific evidence (ss1.1-1.6), the causal link between
GHG emissions and the harmful effects of climate change on the Applicants asmembers of a particular vulnerable group is established.

Test of causation
86

The fact that multiple States are responsible for GHG emissions does not
absolve the Respondent of responsibility.199 The Applicants submit that thecausal test that should be applied in the context of climate change is whether
there is individual partial or joint responsibility to contribute to the fight against

dangerous climate change, which is also in line with Art. 47 of the Draft articles
on Responsibility of States for Internationally Wrongful Acts, 2001 . Partial
responsibility arises from partial causation, even if a single State cannot prevent
an outcome on its own (§91 ff.).
87

This accords with the caselaw of the Court. The Court has held that two or
more States can be responsible for a given situation.200 Also, it does not apply astrict notion of causation in the context of a violation that arises from a failure
to discharge a positive obligation. In E. and Others v. UK201 and O’Keeffe v
Ireland,202 it explicitly rejected the “but for” test in the context of the positive
obligation to protect and adopted a more flexible notion, such as the “realprospect of altering the outcome or mitigating the harm.”203 Thus, the “test fora legally significant breach”204 is whether a State failed to adopt reasonable

NOLLKAEMPER et al., Guiding Principles on Shared Responsibility in International Law, European
Journal of International Law Volume 31 (1), 7 Aug. 2020, pp. 15-72 (link), who deem that climatechange is falling under Principle 4 of the Guiding Principles.
200
As pointed out by Judge YUDKIVSKA in her concurring opinion to the case of Sargysan v. Azerbaijan[GC], no. 40167/06, citing among others M.S.S. v. Belgium and Greece [GC], no. 30696/09, Furman
v. Slovenia and Austria, no. 16608/09, and Rantsev v. Cyprus and Russia, no. 25965/04.
201
E. and Others v. UK, no. 33218/96, §99.
202
O’Keeffe v Ireland [GC], no. 35810/09, §149 with reference to E. and Others (n 201), §99.
203
Ibid., §149.
204
See also MAXWELL/MEAD/VAN BERKEL (n 98), p. 7.
199

31

preventive measures with a real prospect of mitigating the harm that wereavailable and not taken.205 The Applicants have demonstrated above:−−

88

that the risk of heat-related excess mortality and morbidity could besignificantly reduced by limiting global warming to 1.5°C (s1.7),
that the Respondent is not doing its share to prevent a global temperature
increase of more than 1.5°C (s1.10) and that it failed to implement andenforce measures to meet its inadequate 2020 target (s1.11);−
that the Respondent is able to do its share, i.e. to reduce the risk of heatrelated excess mortality and morbidity (s1.12).
Thus, reasonable preventive measures with a real prospect of mitigating theharm are available but have not been taken by the Respondent. Climate change
is a global phenomenon and if States do not do their share but instead shift
responsibility to other States, which also allow emissions to continue, thenclimate change would go on unabated and without effective solution.

89

Further, the cases set out below show that this is the approach adopted by othernational courts of Contracting States, specifically regarding causation in relation
to interferences by climate change. 206

90

It is also notable that the issue of causality was never raised in the domestic
proceedings in the instant case.

Not a defence to claim own emissions are insignificant
91

National courts of Contracting States have rejected arguments like thoseadvanced by the Respondent in which States deny responsibility for theconsequences of climate change by arguing their emissions are only a small
contributing cause (the so-called “drop-in-the-ocean argument”). National
courts have found that a State’s comparatively small contribution to global GHG
emissions does not absolve it of responsibility. Further, they have recognised

See, for example, Kiliç v. Turkey, no. 22492/93, §76.
E.g. The Brussels Court of First Instance, ASBL Klimaatzaak v. Belgium, 2015/4585/A, 17 Jun.
2021 (unofficial translation), p. 61, states that “the global dimension of the problem of dangerous
global warming does not exempt the Belgian public authorities from their pre-described obligation
under Arts. 2 and 8 of the ECHR. In this respect, the Court agrees with the view of the Dutch Supreme
Court in the Urgenda case. Therefore, in the present case, the applicants are right to argue that Arts. 2
and 8 of the ECHR impose a positive obligation on public authorities to take the necessary measures
to remedy and prevent the adverse consequences of dangerous global warming on their lives and theirprivate and family lives.” The Higher Regional Court of Hamm, Lliuya v. RWE, Interlocutory Decisionof 1 Feb. 2018, I-5U 15/17, p. 4, stated that the presence of multiple ‘disturbers’ does not absolve
each individual contributor from its own (partial) responsibility ‘to do its part’. The Paris Administrative
Court, Association Notre Affaire à Tous and Others, 3 Feb. 2021, p. 34 found the State liable for its
contribution to climate change pursuant to the tort of ecological damage, even though the State wasonly responsible for one part of the damage.
205
206

32

that a single State’s actions in combating climate change contribute
substantively to creating the mutual trust necessary for other States to act.
Correspondingly, they have found that States are responsible for their inaction
as a contributing causal factor. Thus, “despite attempts of States to rely on thewell-known “drop in the ocean” defence, no national court has accepted thisargument”207 (emphasis added).
92

The German Federal Constitutional Court noted in Neubauer and Others v
Germany, a constitutional complaint against the Federal Climate Change Act,the following points on causality:“There is a direct causal link between anthropogenic climate change andconcentrations of human-induced greenhouse gases in the Earth’s atmosphere (…).
CO2 emissions are particularly significant in this regard. Once they have entered theEarth’s atmosphere, they are virtually impossible to remove as things currently stand.
This means that anthropogenic global warming and climate change resulting fromearlier periods cannot be reversed at some later date. At the same time, with every
amount of CO2 emitted over and above a small climate-neutral quantity, the Earth’s
temperature rises further along its irreversible trajectory and climate change also
undergoes an irreversible progression. If global warming is to be halted at a specifictemperature limit, nothing more than the amount of CO 2 corresponding to this limit
may be emitted. The world has a so-called remaining CO2 budget. If emissions go
beyond this remaining budget, the temperature limit will be exceeded.”208

The Court also discussed the problem of diffuse or shared responsibility andfound that this was not a barrier to the applicants’ claims. It held that:“[e]ither way, the obligation to take national climate action cannot be invalidated byarguing that such action would be incapable of stopping climate change. It is true that
Germany would not be capable of preventing climate change on its own. Its isolated
activity is clearly not the only causal factor determining the progression of climatechange and the effectiveness of climate action. Climate change can only be stopped if
climate neutrality is achieved worldwide. In view of the global reduction
requirements, Germany’s 2% share of worldwide CO2 emissions (…) is only a small
factor, but if Germany’s climate action measures are embedded within global efforts,
they are capable of playing a part in the overall drive to bring climate change to a halt(…).”209“The state may not evade its responsibility here by pointing to GHG emissions in otherstates. (…) On the contrary, the particular reliance on the international community
MAXWELL/MEAD/VAN BERKEL (n 98).
BVerfG, Neubauer and Others v. Germany, 1 BvR 2656/18, 24 March 2021, §119.
209
Neubauer (n 208), §202.
207
208

33

gives rise to a constitutional necessity to actually implement one’s own climate action
measures at the national level – in international agreement wherever possible. It isprecisely because the state is dependent on international cooperation in order toeffectively carry out its obligation to take climate action under Art. 20a GG that it must
avoid creating incentives for other states to undermine this cooperation. Its own
activities should serve to strengthen international confidence in the fact that climate
action – particularly the pursuit of treaty-based climate targets – can be successful
while safeguarding decent living conditions, including in terms of fundamental
freedoms. In practice, resolving the global climate problem is thus largely dependent
on the existence of mutual trust that others will also strive to achieve the targets.”210

93

The Supreme Court of the Netherlands in Urgenda v. The Netherlands, a caseconcerning a claim against the Dutch Government aimed at an increase of
Netherlands’ emission reduction targets, stated“Partly in view of the serious consequences of dangerous climate change (…), thedefence that a state does not have to take responsibility because other countries do notcomply with their partial responsibility, cannot be accepted. Nor can the assertion thata country’s own share in global GHG emissions is very small and that reducing
emissions from one’s own territory makes little difference on a global scale, be
accepted as a defence. Indeed, acceptance of these defences would mean that acountry could easily evade its partial responsibility by pointing out other countries or
its own small share. If, on the other hand, this defence is ruled out, each country canbe effectively called to account for its share of emissions and the chance of all countries
actually making their contribution will be greatest, in accordance with the principles
laid down in the preamble to the UNFCCC (…).”211“Also important in this context is that, as has been considered (…) about the carbon
budget, each reduction of GHG emissions has a positive effect on combating dangerous
climate change, as every reduction means that more room remains in the carbon
budget. The defence that a duty to reduce GHG emissions on the part of the individualstates does not help because other countries will continue their emissions cannot be
accepted for this reason either: no reduction is negligible.”212

94

In Milieudefensie et al. v. Shell, the District Court of The Hague stated in a
climate case based on tort law, that there is “a direct, linear link between manmade GHG emissions (…) and global warming,”213 that “every emission of CO2
and other GHGs, anywhere in the world and caused in whatever manner,

Neubauer (n 208), §203.
Urgenda (n 198), §5.7.7.
212
Urgenda (n 198), §5.7.8.
213
Milieudefensie et al. v. Shell, C/09/571932 / HA ZA 19-379, 26 May 2021 (English version), not210
211

yet final, at §2.3.2.

34

contributes to this [environmental] damage and its increase” (insertion added)
and that “the (…) circumstance that RDS [Royal Dutch Shell, the respondent]
is not the only partly responsible for tackling dangerous climate change (…)
does not absolve RDS of its individual partial responsibility to contribute to thefight against dangerous climate change according to its ability”214 (insertion
added).
2.4.2.

Applicability of Art. 8 ECHR (question D.4.b)

95

The Applicants submit that their rights under Art. 8 ECHR are engaged by thefacts complained of. The Respondent does not contest that Art. 8 ECHR may
be applicable in the context of climate change. 215

96Art. 8 ECHR applies to cases of environmental degradation associated withadverse effects to health, physical integrity or private life.216 Art. 8 ECHR also
applies to situations where mental well-being is at stake217 and where an
individual’s well-being may be negatively impacted by unsafe or disruptive
environmental conditions.218 Art. 8 ECHR also includes the right of the
Applicants to personal autonomy and their right to age in dignity.219

97

The serious threat to the Applicants’ health, well-being and quality of life posedby dangerous climate change suffices to trigger positive obligations under Art. 8
ECHR; this would be so even if their state of health had not deteriorated or had
not been seriously endangered.220

98

The Court has referred the Applicants, to Ivan Atanasov v. Bulgaria221 andCordella and Others v Italy222. As noted in Atanasov, in the context of pollution
the Court must determine whether Art. 8 ECHR is engaged, and “the first point
for decision is whether the environmental pollution (…) can be regarded asaffecting adversely, to a sufficient extent, the enjoyment of the amenities of his

Milieudefensie (n 213), §4.4.37; see also at §4.4.49 “It is also important here that each reductionof GHG emissions has a positive effect on countering dangerous climate change. After all, eachreduction means that there is more room in the carbon budget.”215
See Respondent’s Observations, 16. Jul. 2021, §80 (link).
216
Fadeyeva (n 171), §68; Kyrtatos v. Greece, no. 41666/98, §52; Dubetska and Others v. Ukraine,no. 30499/03, §105.
217
See e.g. Cordella (n 172), §157; Fadeyeva (n 171), §87 f., V.C. v. Slovakia, no. 18968/07, §106.
218
Cordella (n 172), §§157-160.
219
See UN Secretary-General, Resolution A/66/173, 2011, §7 (link); Koch v. Germany, no. 497/09.
220
See Taşkin and Others v. Turkey, no. 46117/99, §113. See also Tătar (n 157), §97; Jugheli (n182), §71; Brânduşe v. Romania, no. 6586/03, §67.
221
Atanasov (n 185).
222
Cordella (n 172).
214

35

home and the quality of his private and family life.”223 As noted in Cordella:“L’appréciation de ce niveau minimum dans ce type d’affaires est relative etdépend de l’ensemble des données de la cause, notamment de l’intensité et dela durée des nuisances ainsi que de leurs conséquences physiques ou
psychologiques sur la santé ou la qualité de vie de l’intéressé.”224
99

The Court should have regard therefore to the relevant circumstances and data,
which establish the real and serious risk225 posed by climate change-induced
heatwaves to the Applicants’ health and well-being (s1.5 and 1.6). The
Respondent knows about the real and serious risk of harm to the Applicants(s1.8, §122). Likewise, the Applicants established the direct causal link
between the Respondent’s omissions contributing to climate change andharmful effects on the Applicants (§84 ff.).226 However, proof of a direct causal
link is not a necessary precondition for Art. 8 ECHR to be engaged. In Tătar v
Romania, despite finding that the Applicants had not established a causal link
between cyanide at the factory and their worsening asthma, the Court held that
the State’s positive obligations under Art. 8 ECHR were nonetheless engaged.227

100 It is untenable for the Respondent to take the position that increased
temperatures caused by climate change should be treated as a normal part ofeveryday life, i.e. “Mediterranean living”228.229 The extreme consequences ofclimate change and the fact that Switzerland has bound itself underinternational law to take steps to mitigate its effects show that it is anythingother than part of “normal life.”
101 The Applicants further emphasize the “cumulative effect” of all theconsequences they already experience and will experience. 230 Certainly, thecumulative effect of all the consequences of repeatedly and increasingly
occurring heatwaves (including health consequences, restrictions of well-being,fear, being confined at home during heatwaves, real and serious risk to life andhealth, s1.6) show that the required threshold has been reached in this case.

Atanasov (n 185) §66.
Cordella (n 172) §157. See also Fadeyeva (n 171), §69.
225
Tătar (n 157), §107; Jugheli (n 182), §67-70; Cordella (n 172), §169.
226
See mutatis mutandis Atanasov (n 185), §66 f.
227Tătar (n 157), §107.
228
See the general approach on the minimum threshold in Cordella (n 172), §157.
223
224

229
230

See Respondent’s Observations (n 215), §§50 and 81 (link).
Grimkovskaya (n 171), §62. See also Fadeyeva (n 171), §88.

36

2.4.3.

Applicability of Art. 6 ECHR (questions D.4.1.a and D.4.1.b)102 By way of introduction, the Applicants emphasise that access to a court iscrucial in climate cases. However, the Applicants draw the Court’s attention to
the extreme urgency of climate action, as documented by the relevant scientificevidence.231 In view of that extreme urgency the Applicants urge the Court tograpple with their complaints made under Arts. 2 and 8 ECHR rather thansimply determine their Arts. 6 and/or 13 ECHR complaints. Each additional
tonne of CO2 emitted further increases the concentration of CO2 in theatmosphere and worsens climate impacts, including the severity and frequencyof heatwaves, in a practically irreversible manner. There is a near-linear

relationship between cumulative anthropogenic CO emissions and the global
warming they cause (s1.4); there is an exponential increase in mortality withincreasing temperatures. 232 This urgency means that requiring another set of2

domestic proceedings which are compliant with the Applicants’ proceduralrights would undermine the ECHR’s protection of the Applicants from theharms at stake. Thus, the Applicants respectfully submit that the best way toprotect them from the risk of harm posed by dangerous climate change would
be for the Court to examine the merits of all the alleged Convention violations
at issue.
103 In answer to question 4.1, the Applicants submit that the civil limb of Art. 6
ECHR is applicable in the instant case. According to the case law of the Court,
the applicability of the civil limb of Art. 6 ECHR means that there must be a“dispute” regarding a “right” which can be said, at least on arguable grounds,
to be recognised under domestic law.233 The substantive right relied on by theapplicant in the national courts must have a legal basis in the State concerned;
the dispute in question must be genuine and serious and the outcome of therelevant proceedings must be directly decisive for that right.234 Also, the dispute
may relate not only to the actual existence of a right but also to its scope andthe manner of its exercise.235 Furthermore, where there was a genuine and
IPCC, AR6 WGII (n 1), SPM D.5.3 (link); UNEP, Emissions Gap Report 2022 (n 77) (link).
MITCHELL (n 30) (link) with further references.
233
E.g. Denisov v. Ukraine [GC], no. 76639/11, §44; Boulois v. Luxembourg [GC], no. 37575/04,§90; Zander v. Sweden, no. 14282/88, §22; Balmer-Schafroth and Others v. Switzerland, no.
22110/93, §32; Grzęda v. Poland [GC], no. 43572/18, §257.
234
E.g. Károly Nagy v. Hungary [GC], no. 56665/09, §§60-61; Roche v. UK [GC], no. 32555/96,§119; Boulois (n 233), §91; Zander (n 233), §22; Balmer-Schafroth (n 233), §32; Grzed̨ a (n 233),
§257.
235
Zander (n 233), §22; Balmer-Schafroth (n 233), §32; Grzęda (n 233), §257.
231
232

37

serious dispute about the existence of such a right at the outset of theproceedings, the fact that the domestic courts concluded that the right inquestion did not exist cannot retrospectively deprive an applicant’s complaintof its arguability.236

Question D.4.1(a)104 The protection of physical integrity is a “civil right” within the meaning ofArt. 6 ECHR.237 This is not in dispute between the parties. Also, the public-law
character of the CO2 Act does not alter the civil nature of the dispute.238
105 The dispute concerned the right to life under Art. 10 (1) of the Swiss
Constitution (“Cst”)239 as well as the rights under Arts. 2 and 8 ECHR in
relation to the inadequate enforcement of the CO2 Act (s1.11) and theinadequacy of the climate targets (s1.10). Art. 10 (1) Cst and Arts. 2 and 8
ECHR240 are substantive rights which have a legal basis in domestic law. Thus,
these rights were recognised under domestic law. The dispute concerned thescope241 of these rights. Also, the rights of the Applicants were “arguable”(ss2.5.1 and 2.5.2). The fact that the domestic courts denied the Applicants
their rights – notably in an arbitrary manner242 (§172 ff.) – does not deprive theApplicants' complaint of its arguability.243

Question D.4.1(b)106 The dispute was genuine and serious, and the result of the proceedings was
directly decisive for the rights in question. There was a clear connection andthus more than a “tenuous connection or remote consequences” 244 between
the rights under Art. 10 Cst and Arts. 2 and 8 ECHR (arguable rights indomestic law) on the one hand, and the reduction of GHG (outcome of theproceedings) on the other.
107 In the domestic proceedings, the Applicants sought an order which would force
the Respondent to take necessary action to tackle dangerous climate change,
which would have gone hand in hand with a reduction of GHG emissions and
Z and Others v. UK [GC], no. 29392/95, §§88-89.
See Taşkin (n 220), §133.
238
Compare Zander (n 233), §26.
236
237

Art. 10 (1) Cst. (link) entails a positive obligation to protect similarly to Art. 2 and 8 ECHR.
See Naït-Liman v. Switzerland [GC], no. 51357/07, §108.
241
See Zander (n 233), §22 and Balmer-Schafroth (n 233), §32.
242
See Grzed̨ a (n 233), §259.
243
Z and Others (n 236), §§88-89.
244
Balmer-Schafroth (n 233), §32; Boulois (n 233), §90; Grzed̨ a (n 233), §257.
239
240

38

the heatwaves linked to them (s1.4), which is in clear connection to theprotection of the Applicants’ rights (ss1.5 and 1.6). They did not merelycomplain about hypothetical consequences for the environment and humanhealth.245 The Applicants have always pointed to concrete health risks fromexcessive GHG emissions for them as members of a particularly vulnerable
group that have also partly materialized amongst the Applicants.246 Thus, theoutcome of the domestic proceedings affects the very substance of their rightto life and private life.247
2.4.4.

Applicability of Art. 13 ECHR (question D.4.2)

108 The Applicants submit they had an “arguable complaint” 248 for the purposes ofArt. 13 ECHR. Their claim is “arguable” in terms of Art. 13 ECHR since they
are victims of Convention violations (s2.3).249 There is no requirement that the
Court finds a violation of Art. 2 and/or 8 ECHR for it to conclude that a claim
is “arguable” for the purposes of Art. 13 ECHR.250 Furthermore, even if the
Court were to declare that Art. 6 ECHR is not applicable, it would still need to
examine the complaint under Art. 13 ECHR, since Art. 6 ECHR is deemed to
be a lex specialis vis-à-vis Art. 13 ECHR.251
2.5. Merits (question E)
2.5.1.

Violation of Art. 2 ECHR (questions E.5 and E.5.1)

109 Under Art. 2 ECHR, the Court must determine “whether, given thecircumstances of the case, the State did all that could have been required of it
to prevent the applicant’s life from being avoidably put at risk.”252 The FSC
considered in an obiter dictum253 that the Applicants’ rights “are notviolated.”254 On the contrary and in answer to questions E.5 and E.5.1 theContrast Atanasov (n 185), §92, Balmer-Schafroth (n 233), §40 and Athanassoglou and Others v.
Switzerland [GC], no. 27644/95, §§46-55.
245

See request to the Respondent, s4.4 (link) and appeals to the Federal Administrative Court, s2.1.2(link) and the Federal Supreme Court, s2.3.3 (link).
247
See Bodén v. Sweden, no. 10930/84, §32.
248
Hatton and Others v. UK [GC], no. 36022/97, §137.
249
See Leander v. Sweden, no. 9248/81, §77.
250
Hatton (n 248), §137.
251
European Court of Human Rights, Guide on Article 13, 30 Apr. 2021, §143 (link).
252
L.C.B. v. UK, no. 23413/94, §36.
253
See mutatis mutandis Mutu and Pechstein v. Switzerland, no. 40575/10, §182.
254
BGer 1C_37/2019, 5 May 2020, s7.
246

39

Applicants submit that there has been a violation of Art. 2 ECHR in the present
case.
110 Art. 2 ECHR imposes in environmental matters a positive obligation on the
Respondent to put in place a legislative and administrative framework toprovide and ensure effective protection against threats to the right to life.255“Necessary” 256 and “appropriate”257 measures have to be adopted to safeguardlife, taking into account the specific features of the activity in question and thelevel of risk involved.258
111 The risks climate change poses to the lives of Applicants 2-5 and the othermembers of Applicant 1 (ss1.5 and 1.6) are comparable to, and potentiallygreater than, those with which the Court has been faced to date.259 In view ofthe magnitude of the risks climate change poses, the clear science, the urgencyof the situation and the clear ultimate objective of the UNFCCC (Art. 2), theRespondent has a positive obligation to take all measures that are not impossible
or disproportionately economically burdensome with the objective of reducing
GHG to a safe level.260 It requires the Respondent to “do everything in [its]power.”261
2.5.1.1. The scope of the Respondent’s obligation to protect
112 The scope of the Respondent’s obligation to protect derives notably fromrelevant rules and principles of international law as well as evolving norms ofnational and international law and consensus emerging from specialisedinternational instruments and from the practice of Contracting States, as the
Court regularly considers these factors when determining the obligation toprotect (s2.5.4 regarding the Court’s question E.5.3.2). From the harmonious
interpretation of the Convention taken together with the considerations
outlined above (§111), it follows that to comply with its positive obligation toprotect the Applicants effectively, the Respondent must do everything in its
E.g., Öneryıldız (n 178), §§89-90; Budayeva (n 178), §§129 and 132.
See e.g. Öneryıldız (n 178), §101; mutatis mutandis Cordella (n 172), §173.
257
See e.g. Budayeva (n 178), §128, Brincat (n 178), §79 and Öneryıldız (n 178), §89.
258
Öneryıldız (n 178), §90; Budayeva (n 178), §132; see also Jugheli (n 182), §75.
259
Deés v. Hungary, no. 2345/06; Grimkovskaya (n 171); Bor v. Hungary, no. 50474/08; Fadeyeva(n 171); Moreno Gómez v. Spain, no. 4143/02; Guerra and Others [GC], no. 14967/89; Dzemyukv. Ukraine, no. 42488/02; Brincat (n 178); López Ostra v. Spain, no. 16798/90; Giacomelli v. Italy,
no. 59909/00; Brânduse (n 220); Di Sarno (n 157).
260
See VOIGT, The climate dimension of human rights obligations, Conference: Human rights for theplanet (ECHR and COE), 5 Oct. 2020, p. 4 (link).
261
See Kolyadenko (n 198), §§191, 216; Öneryıldız (n 178), §135.
255
256

40

power to do its share to prevent a global temperature increase of more than
1.5°C above pre-industrial levels. This necessarily includes establishing a
legislative and administrative framework to achieve that objective.262 The
harmonious interpretation also helps to clarify the ambiguity around the
Respondent’s exact “fair share” of the global mitigation effort hereto required(§114), and the question whether the scope of the obligation to protect extends
to emissions occurring abroad (§§118 ff.).
113 Against this background, in order to fulfil its obligation to protect the Applicants
effectively, i.e. to adopt the necessary legislative and administrative framework
to do its share to prevent a global temperature increase of more than 1.5°C
above pre-industrial levels, the Respondent is required:(1)

to have a GHG emission level in 2030 as compared to the emissions in1990 that is net-negative as its “fair share” of the global mitigation burden(s1.10.2 and §114);(2)

to reduce the domestic emissions by more than 60% below 1990 levels
by 2030 and to net-zero by 2050 as the domestic component of (1)(s1.10.3);(3)

to prevent and reduce any emissions occurring abroad that are
attributable to the Respondent in line with a 1.5°C above pre-industrial
levels limit (s1.10.4 and §§115 ff.);(4)

permanently to remove GHG emissions from the atmosphere and store
them in safe, ecologically and socially sound GHG sinks, if, despite (1),(2) and (3), any GHG emissions continue to occur within the control of
the Respondent, or the concentration of GHG in the atmosphere exceeds
the level corresponding to the 1.5°C above pre-industrial levels limit(s1.10.5 and §§121 ff.).

Scope of the Respondent’s obligation to protect includes a 1.5°C compatible “fairshare” contribution to the global mitigation effort
114 Regarding §113(1), the Applicants submit that despite the ambiguity aroundthe Respondent’s exact “fair share” of the global mitigation effort required toprevent a global temperature increase of more than 1.5°C above pre-industrial
levels, the Climate Action Tracker, RAJAMANI ET AL. and Climate Analytics, inrecent assessments, all came to the same conclusion, namely, that a “fair share”
262

See Öneryıldız (n 178), §§89–90.

41

of the global burden of mitigating climate change means that the Respondent
has to have a net-negative GHG emission level in 2030 as compared to theemissions in 1990 (s1.10.2). Interpreting Switzerland’s “fair share” in line with
the Climate Action Tracker and RAJAMANI ET AL.'s methodologies is consistent
with the principle that “[i]n the event of any ambiguity in the terms of a[provision of international law], the Court must therefore choose theinterpretation which is most in harmony with the requirements of theConvention and which avoids any conflict of obligations.”263 Bothmethodologies involve a “directional pull” (in the words of RAJAMANI ET AL.264)
towards more stringent measures of fairness. This is necessary to ensure theeffective protection of the Applicants’ rights because if all States choose lessstringent self-serving measures of their “fair share”, the right to live in a world
where global warming has not exceeded 1.5°C would become “theoretical andillusory.” Resolving the ambiguity around the meaning of equity/CBDRRCNC265 in this way is therefore also entirely consistent with the object andpurpose of the PA (§138 ff.), the precautionary principle (§149) and theprevention principle (§146).

Scope of the Respondent’s obligation to protect extends to emissions occurring abroad
attributable to the Respondent
115 Regarding §113(3) the Applicants submit that to comply with its positive
obligation to protect their rights effectively, the Respondent has to prevent andreduce any emissions occurring abroad that are within the control of the
Respondent and thus attributable to it (s1.10.4).
116 First, this is needed to protect the Applicants effectively. Given that climatechange impacts will ultimately affect the rights of the Applicants whether theemissions occur on Swiss territory or abroad, the Respondent has a requirement
to address all emissions that are attributable to it as part of its obligation to do
everything in its power to do its share to prevent a global temperature increaseof more than 1.5°C (§111).
117 Second, the Respondent agrees that it has the power to reduce emissions
occurring abroad that are attributable to the Respondent (§§49 f.).

263
264

Al-Jedda v. UK, no. 27021/08, §102.
RAJAMANI et al. (n 101), p. 985 (link) (doc. 43).

That is, “common but differentiated responsibilities and respective capabilities, in the light ofdifferent national circumstances”: see Art. 2(2) PA (link).
265

42

118 Third, the PA does not contradict the interpretation that the Convention
requires the Respondent to take steps to reduce emissions occurring abroad.
While the reporting obligations under the PA and UNFCCC only require Parties
to account for emissions that occur on their territory, this does not militate
against the interpretation advanced above as the obligations are only of aprocedural nature and the accounting requirement is based on practicalreasons, i.e. to avoid double counting of emissions.266 This interpretationaccords with the PA's recognition that sustainable lifestyles and sustainable
patterns of consumption and production, with developed country Parties taking
the lead, play an important role in addressing climate change (Preamble, §16).
It is important to note that the PA’s temperature goal to limit the temperature
increase to 1.5°C (§139) and the target to make finance flows consistent withthis temperature goal (Art. 2(1a) and (1c)) are independent of the source of theemissions, i.e. there is no distinction between domestic emissions andemissions occurring abroad, as well as between direct and indirect emissions.
119 Fourth, including emissions that occur abroad and are attributable to the
Respondent is in line with the precautionary and the prevention principle,
entailing the full range of preventive measures (s2.5.4.2).
120 Fifth, this approach is also in line with evolving norms of international law. The
2015 Oslo Principles on Global Climate Change Obligations267 hold that as partof the “Obligation of States, every state is required to reduce the GHG
emissions within its jurisdiction or control to the permissible quantum within
the shortest time feasible” (Art. II.B.13, emphasis added) and that “States must
regulate GHG emissions in their jurisdictions or under their control to meettheir obligations set forth in these Principles” (Art. II.B.24, emphasis added).
By way of further example, in Milieudefensie et al. v. Shell, the District Courtof The Hague ordered Royal Dutch Shell to reduce the aggregate volume of all
CO2 emissions attributable to the Shell Group, no matter whether theyoccurred in the Netherlands, including indirect emissions resulting fromconsumers.268 Likewise, in the case of Gloucester Resources Ltd. v Minister for
Planning, the New South Wales Land and Environmental Court held that both

Decision 4/CMA.1, UN Doc. FCCC/PA/CMA/2018/3/Add.1, §§11, 14 (link).
Expert Group on Global Climate Obligations, Oslo Principles on Global Climate Change
Obligations, The Hague 2015 (link).
268
Milieudefensie (n 213), §§2.5.4 and 5.3.
266
267

43

direct and indirect emissions ought to be considered in reviewing theenvironmental impacts of coal mining projects.269

Remaining emissions need to be leveled out with safe, ecologically and socially soundcarbon sinks
121 With regard to §113(4) the Applicants submit that the Respondent’s positive
obligation to protect also entails an obligation to permanently remove GHG
emissions from the atmosphere and store them in safe, ecologically and sociallysound GHG sinks (s1.10.5), if, despite (§113 (1),(2) and (3)), any GHG
emissions continue to occur within the control of the Respondent. The same
applies if the concentration of GHG in the atmosphere exceeds the level
corresponding to the 1.5°C limit.
2.5.1.2. Knowledge of the Respondent
122 The Respondent knows about the real and serious risk of harm posed to theApplicants by climate change, including extreme heatwaves (§8 and s1.8).270
As a Party to the UNFCCC and the PA, and having endorsed the IPCC’s
findings, the Respondent is well aware of the projected severe impacts of thewarming of 1.5°C or above on the life and health of the Applicants.271
2.5.1.3. The Respondent has failed to protect the Applicants effectively
123 In view of the above considerations, the Respondent has failed to take thenecessary steps to mitigate the harm and risk caused by climate change to theApplicants. Specifically, it has done significantly less than its share to prevent a
global temperature increase of more than 1.5°C.
124 Contrary to what is required (§113), the Respondent’s climate strategy is notin line with the 1.5°C limit; instead, there is a long history of failed climate
action (s1.10). Also, the Respondent has failed to set any domestically binding
climate targets for 2030 and 2050 (s1.9) and failed to meet its (inadequate)2020 climate target (s1.11). Instead, the mitigation potential in Switzerland
remains largely unused, partly without any justification (§53), partly on the

Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, §488-513.
See also López Ostra (n 259), §§9, 11, 52, 53; Öneryıldız (n 178), §§100 f., 109 f.; Fadeyeva(n 171), §90; Budayeva (n 178), §§147 f.; Brincat (n 178), §106; Jugheli (n 182), §77.
271
See López Ostra (n 259), §53; Budayeva (n 178), §148; Kolyadenko (n 198), §§165, 176; Brincat
269
270(n 178), §§105, 106.

44

justification of high costs (e.g. in the building sector), which is not evidenced
and is – for Switzerland – not a relevant consideration (§41).
125 In this context, it should be noted that in environmental cases, the Court has
found that, once an applicant has raised a prima facie case of breach of a State’s
obligations, “the onus is on the State to justify, using detailed and rigorous data,a situation in which certain individuals bear a heavy burden for the rest of thecommunity.”272 The decision-making process must involve the carrying out ofappropriate investigations and studies, so as to prevent and assess in advancethe effects of activities which may harm the environment and the rights ofindividuals.273 However, it is important to note that the level of climate
protection in Switzerland is not based on scientific studies, (a point which
FOEN confirmed (docs. 20 and 21), and the Respondent has recently decided
to dispense with the very consultative body on climate change (“OcCC”)274 thatpointed out the inadequacy of the climate targets as long ago as 2012.275 Thosefacts alone demonstrate that the Respondent has violated the Applicants’
Convention rights.276
126 Further, it should be noted that national difficulties in taking measures within
the democratic system of Switzerland are irrelevant for the purposes of thedetermination of the Applicants’ complaint. A party may not invoke theprovisions of its internal law as justification for its failure to perform a treaty(Art. 27 Vienna Convention on the Law of Treaties (“VCLT”)). Compliancewith the ECHR cannot therefore be frustrated by references to democracy andthe Optional referendum in Art. 141 Cst. It is trite law that domestic law canbe in violation of the ECHR.277
127 Moreover, the Respondent’s margin of appreciation is limited in the present
case (s2.5.3 regarding the Court’s question E.5.3.1).
128 Overall, the Respondent has failed and continues to fail to protect the
Applicants effectively in violation of the Applicants’ rights under Art. 2 ECHR.
Jugheli (n 182), §76 and Fadeyeva (n 171), §128; see also Dubetska (n 216), §155; Cordella(n 218), §161; Öneryıldız (n 178), §89; Budayeva (n 178), §132; Brincat (n 178), §110. The Dutch
Supreme Court adopted this approach in Urgenda (n 198), §§5.3.3 and 6.5.
273
See Tătar (n 157), §88; Hatton (n 248), §§127-128; Taşkin (n 220), §119; Giacomelli (n 259),§86 and §§92-93; Guerra (n 259), §60.
274
SRF, Sommaruga verzichtet auf Beirat zum Klimawandel, 5 Sept. 2021 (link).
275
OcCC, Klimaziele und Emissionsreduktion, Bern 2012, p. 5 (link).
276
See e.g. Tătar (n 157), §118.
277
See e.g. Howald Moor and Others v. Switzerland, no. 52067/10; Beeler v. Switzerland [GC],no. 78630/12; Ryser v. Switzerland, no. 23040/13.
272

45

The necessary measures have not been taken “in good time” and are
ineffective.278 Instead, the Respondent’s approach is marked by delays andinadequate enforcement and, significantly, is not based on any proper
assessment of what steps it is required to take.279
2.5.2.

Violation of Art. 8 ECHR (questions E.5 and E.5.2)

129 Art. 8 ECHR imposes in environmental matters a positive obligation on
Respondent to put in place a legislative and administrative framework aimed at
the effective prevention of damage to the environment and human health.280“Necessary” 281 and “appropriate”282 measures have to be adopted to prevent or
minimise the risk of environmental harm, taking into account the specificfeatures of the activity in question and the level of risk involved.283
130 In environmental matters, the scope of the positive obligations under Art. 2
ECHR largely overlap with those under Art. 8 ECHR.284 Against thisbackground and in view of the page limit set by the Court, the Applicants referback to and repeat their submissions on the scope of Art. 2 ECHR (§§111–
128).
131 In addition, regard must be had to a fair balance between competing interestsof the individual and of the community as a whole.285 The Applicants submitthat there is no conflict of interests; on the contrary, it is in the interests of the
Swiss community as a whole that the Respondent adopts preventive measures
to reduce the likelihood of global temperatures exceeding the 1.5°C limit, as
provided in the PA. Further, as the Respondent states, this is in Switzerland’s
own financial interest.286
132 Thus, in answer to question E.5 and E.5.2, the Applicants submit that the
Respondent is in continuous breach of their rights under Art. 8 ECHR.

Cf. Dubetska (n 216), §143.
Dubetska (n 216), §151.
280
E.g.; Tătar (n 157), §88, Budayeva (n 178), §129.
281
See e.g. Cordella (n 172), §173.
282
See e.g. Kolyadenko (n 198), §212.
283
Jugheli (n 182), §75; see also Öneryıldız (n 178), §90; Budayeva (n 178), §132.
284
Öneryıldız (n 178), §§90 and 160; Budayeva (n 178), §133; see also Kolyadenko (n 198), §216.
285
Greenpeace E.V. and Others v. Germany (dec.), no. 18215/06.
286
The Federal Council, Switzerland’s Long-Term Climate Strategy of 27. Jan. 2021, p. 5 (link); seealso Federal Gazette, BBl 2021 1972, s6.5.3 (link).
278
279

46

2.5.3.

Extent of States’ margin of appreciation (question E.5.3.1)

133 The Respondent’s margin of appreciation in this case is limited because theApplicants’ complaint concerns: an issue of compliance with international
standards recognised by the Respondent (s2.5.4);287 a risk of a man-madedisaster;288 and a violation of fundamental rights protected by Art. 2 ECHR. The
urgency of the situation and the risk of irreversible harm also point to a narrowmargin of appreciation.
134 Thus, the Applicants submit that the Respondent’s margin of appreciation islimited to determining the measures289 with which to fulfil its duty to protect.
There is no margin of appreciation as to whether to take steps to protect, nor
whether to implement and enforce measures adopted to protect, since the duty
to protect is plainly engaged. In this context, there can be no margin of
appreciation as to the level of ambition that must be pursued by measures, thatis, the need to keep temperatures within the 1.5°C limit and to do its share tostay within the 1.5°C limit.290 Nor is there – particularly with a view to theprecautionary principle – discretion regarding the emissions reductions
necessary to do its share (§§113 ff.).291 It follows that where the positive
obligation to take measures to achieve a particular objective (keeping global
temperatures below 1.5°C) is engaged, as is the case here, the Court must
examine whether the measures taken are capable of achieving the relevant
objective. If they are not, a breach of the relevant obligation arises. No
additional margin of appreciation can arise.
135 Furthermore, it should be noted that what is being sought by the Applicantsdoes not pose an excessive burden on the Respondent.292 As outlined above(s1.12), the Respondent is able to do its share and never claimed otherwise.

See Bor (n 259), §§24, 27.
Budayeva n 178), §§134-137.
289
See Greenpeace E.V. (n 285) ; Brincat (n 178), §101, citing numerous cases making this point.
290
See Fadeyeva (n 171), §§124-134; see VOIGT (n 260), p. 4 (link); and VOIGT, The climate change
dimension of human rights: due diligence and states’ positive obligations, Journal of Human Rights
and the Environment, Vol. 13 Special Issue, Sept. 2022, pp. 152–171, p. 169 (link): “In sum, theargument can be made that Parties to the ECHR have, in fact, a narrow margin of appreciation, if any,
when it comes to the climate mitigation ambitions of each state. Given the potential costs of unabatedclimate change and the very small window of opportunity, there is no longer any discretion as to thelevel of ambition required, which has to be at each Party’s highest possible level, applying the maximum of available resources. Discretion therefore only applies to the choice of measures applied toreach this goal (the ‘how’), but no longer to the ‘what and if’.”291
See Pavlov and Others v. Russia, no. 31612/09, §75; Buckley v. UK, no. 20348/92, §74.
292
Cf. Kurt v. Austria [GC], no. 62903/15, §158.
287
288

47

2.5.4.

Scope of the Respondent’s obligation to protect is determined by the
harmonious interpretation of the Convention (question E. 5.3.2)

136 In its interpretation of Convention provisions, the Court has regard to relevant
rules and principles of international law applicable in relations between theContracting Parties293 as well as evolving norms of national and international
law294 and any trend emerging from specialised international instruments andfrom the practice of Contracting States, independent of whether the
Respondent has ratified the entire collection of instruments that are applicablein respect of the precise subject matter of the case concerned.295 That approach
involves the Court’s recognition that its provisions cannot be interpreted in a
vacuum, 296 nor as the sole framework of reference for the interpretation of therights and freedoms enshrined therein.297
137 The Applicants submit that the scope of Respondent’s obligation to protect
under Arts. 2 and 8 ECHR must be interpreted in light of the followinginternational instruments, which manifest an international trend (and indeed
international obligations that all Contracting States have agreed to be bound todischarge) regarding what must be done to address the serious and profoundrisks of climate change.298 Notably, as the present case addresses global climatechange, it deals with a problem which is of concern to the whole international
community. 299

Demir and Baykara (n 196), §67.
Demir and Baykara (n 196), §68.
295
Demir and Baykara (n 196), at §85: “(…) in defining the meaning of terms and notions in the text293294

of the Convention, [the Court] can and must take into account elements of international law otherthan the Convention, the interpretation of such elements by competent organs, and the practice ofEuropean States reflecting their common values. The consensus emerging from specialisedinternational instruments and from the practice of Contracting States may constitute a relevant
consideration for the Court when it interprets the provisions of the Convention in specific cases,” andat §86: “(…) it is not necessary for the respondent State to have ratified the entire collection of
instruments that are applicable in respect of the precise subject matter of the case concerned. It will
be sufficient for the Court that the relevant international instruments denote a continuous evolution
in the norms and principles applied in international law or in the domestic law of the majority ofmember States of the Council of Europe and show, in a precise area, that there is common ground inmodern societies.” See also Tătar (n 157) §§109 and 120.
296
See Al-Adsani v. UK [GC], no. 35763/97, §55 and Demir and Baykara (n 196), §85.
297
Demir and Baykara (n 196), §67-68.
298
See e.g. Demir and Baykara (n 196), §76.
299
Cf. Pavlov (n 291), concurring opinion of Judge KRENC, §4.

48

2.5.4.1. International climate law
138 The PA as well as the UNFCCC are treaties within the meaning of the VCLT
and the Convention should be interpreted in harmony with them.300
139 It is the ultimate objective of the UNFCCC, ratified by Switzerland in 1993, to“prevent dangerous anthropogenic interference with the climate system.”301 To
reach that goal, in the Cancún Agreements 2010, Switzerland committed to“reducing global GHG emissions to (…) below 2°C.” It also recognised theneed to “strengthen the long-term global goal on the basis of the best available
scientific knowledge.”302 Later, due to scientific advances which demonstrated
that the 2°C limit is no longer considered as “safe”303 the Parties, including
Switzerland, committed in the PA to hold the increase in global averagetemperature to “well below 2°C” and to “pursue efforts to limit thetemperature increase to 1.5°C” (Art. 2(1)(a)).
140 In adopting the PA, the Parties invited the IPCC to provide a special report on
the impacts of global warming of 1.5°C.304 The IPCC published its 1.5°C SR in
2018. Due to its results, the global political and scientific consensus is now thata 1.5°C limit is the benchmark for countries to use when calibrating their
mitigation efforts. 305 The Respondent recognised the 1.5°C limit as the relevantbenchmark in its NDC (§33). Eventually, the 2021 Glasgow Climate Pact“cemented 1.5°C as the primary global temperature ceiling.”306 Together withthe fact that the PA expressly states that Parties must strive to limit warming
to 1.5°C, there is now a great degree of consensus on the temperature limit of
1.5°C such that it must be taken into consideration when interpreting andapplying Arts. 2 and 8 ECHR.307

See Demir and Baykara (n 196), §67; Al-Adsani (n 296), §55; Bosphorus Hava Yolları Turizm ve
Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, §150.
300

Art. 2 UNFCCC (link).
COP TO THE UNFCCC, The Cancun Agreements: Outcome of the work of the Ad Hoc Working
Group on Long-term Cooperative Action Under the Convention, Decision 1/CP.16, §4 (link).
303
Subsidiary Body for Scientific and Technological Advice, Report on the structured expert dialogue
on the 2013-2015 review, Bonn 2015, Message 5 p. 18 (link).
304
PARTIES TO THE UNFCCC, Adoption of the Paris Agreement. Decision 1/CP.21, §21 (link), see also
§17 and Art. 4(1) PA.
305
RAJAMANI/GUÉRIN in: KLEIN ET AL. (eds.), The Paris Agreement on Climate Change, Oxford 2017,p. 76.
306
DEPLEDGE ET AL., Glass half full or glass half empty?: the 2021 Glasgow Climate Conference, Climate
Policy, 22:2, pp. 147-157, 2022, p. 148 (link).
307
Cf. Urgenda (n 198), Summary of the Decision, What, specifically, does the State’s obligation to do‘its part’ entail?
301
302

49

141 In order to achieve the long-term temperature goal, Parties aim to undertake
rapid reductions in accordance with best available science and on the basis ofequity, recognising that emission reductions will take longer for developing
country Parties (Art. 4(1) PA). Developed countries have to “take the lead” andreduce their emissions with their “highest possible ambition” as their “fairshare” of the global effort (Art. 4(3) and 4(4) PA and 3(1) UNFCCC). The
general understanding of a fair level of contribution is that it reflects the“highest possible ambition” and “common but differentiated responsibilities
and respective capabilities, in the light of different national circumstances”(CBDRRC-NC) (Art. 2(2) and 4(3) PA, Art. 3(1) and 4(1) UNFCCC, Principle 7
Rio Declaration). Regarding the recent assessments of what the range of fairlevel of contribution looks like with a view to established principles and norms
of international environmental law, the Applicants refer to (§114) and(s1.10.2).
142 The Respondent cannot deny the binding nature of these substantive
provisions.308 Such an interpretation is impermissible as it would deprive theobligations set out in Art. 2(1) of the PA and Art. 2 of the UNFCCC of
effectiveness and run counter to their entire object and purpose (Arts. 26 and31(1) VCLT). Nonetheless, it is not decisive in determining the scope of theobligation to protect under Arts. 2 and 8 ECHR.309
143 All Contracting States of the Council of Europe are parties to the PA. Similarly,
all parties to the PA belong to at least one human rights treaty. As such, “theymust ensure that all of their actions comply with their human rights obligations.
That includes their actions relating to climate change.”310 The interpretation ofPreamble 11 to the PA,311 read in light of the PA as a whole312 and in light ofcustomary human rights law, indicates that the Parties are expected to takeSee Respondent’s Observations (n 215), §86 ff. (link).
See e.g. Demir and Baykara (n 196), §78, with reference to Marckx v. Belgium, no. 6833/74,§§20 and 41; McElhinney v. Ireland [GC], no. 31253/96; Al-Adsani (n 296); Fogarty v. UK [GC],no. 37112/97; Glass v. UK, no. 61827/00, §75; Öneryıldız (n 178), §59; Christine Goodwin v. UK[GC], no. 28957/95; Vilho Eskelinen and Others v. Finland [GC], no. 63235/00; Sørensen and
Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99.
310
OHCHR, COP21: “States’ human rights obligations encompass climate change” – UN expert, 3
Dec. 2015 (link).
311
Preamble 11 of the PA explicitly refers to the need for States to “ respect, promote and consider
their respective obligations on human rights” when “taking action to address climate change”(emphasis added) (link).
312
Especially Arts. 2, 3, 4.1 and 4.3 PA (link).
308
309

50

human rights implications into consideration when deciding the level ofambition of their contributions to the global response to climate change. 313
2.5.4.2. The prevention principle and the precautionary principle
144 The prevention principle and the precautionary principle314 are importantsources in the context of determining the scope of the obligation to protect
through harmonious interpretation of the Convention. The UNFCCC stipulates
at Art. 3(3) that the “Parties should take precautionary measures to anticipate,prevent or minimize the causes of climate change and mitigate its adverse
effects.” Further that “[w]here there are threats of serious or irreversible
damage, lack of full scientific certainty should not be used as a reason for
postponing such measures.”315 Thus “prevention” and “precaution” arerequired, which covers the full range of preventive measures, whether takenin the context of scientific uncertainty or not.316
145 The ILC Draft Articles on Prevention of Transboundary Harm provide guidanceon the relevant scope of the customary duty of prevention.317 They distinguishbetween levels of risk deemed acceptable and levels of risk that are notacceptable. 318 The obligation to take preventive measures to avoid or manage
risks applies to “risks of causing significant transboundary harm.”319 The
significance of the risk is assessed on the basis of two elements of the term“risk”: (1) the probability that the risk will materialise and (2) the magnitude ofharm that may be caused.320 The first element, concentrating on known
consequences, distinguishes prevention from precaution. The second element
makes prevention applicable only in circumstances where harm is foreseen tobe “significant”, which is understood as meaning more than “detectable” but
not necessarily serious or substantial.321

CARAZO in: KLEIN/CARAZO/DOELLE/BULMER/HIGHAM (eds.), The Paris Agreement on Climate
Change, Analysis and Commentary, Oxford 2017, p. 116 with further references.
314
See Tătar (n 157), §120; see also Urgenda (n 198), §7.2.10.
315Art. 3(3) UNFCCC (link).
316
See also TROUWBORST, Prevention, Precaution, Logic and Law, Erasmus Law Review, Volume 02
Issue 02, 2009, p. 124 (link).
317
DUVIC-PAOLI, The Prevention Principle in International Environmental Law, Cambridge 2018,p. 182.
318
DUVIC-PAOLI (n317), p. 182.
319
International Law Commission, Draft articles on Prevention of Transboundary Harm from
Hazardous Activities, with commentaries, Report of the ILC on the Work of its Fifty-third session, UN
Doc A/56/10 (2001), hereinafter “ILC Draft Articles”, Art. 1 (link).
320
ILC Draft Articles (n319), Commentary to Art. 2, §3, p. 152 (link); DUVIC-PAOLI (n317), p. 181.
321
ILC, Draft Articles (n319), Commentary to Art. 2, §4, p. 152 (link).
313

51

146 In the present case, the prevention principle as defined by the ILC applies
because there is a high likelihood of significant impact. There is a global
consensus that climate change and its adverse effects are no longer a matter of
uncertainty but of acknowledged risks.322 The harm to the Applicants isforeseen to be serious (§§77 and 99). Thus, the Respondent must takemeasures to prevent such harm to the Applicants.323 This obligation requires
the State to take measures which are “appropriate and proportional” to themagnitude of the risks posed by climate change.324 The ILC Draft Articles
require the Respondent to exert “best possible efforts”325 and “use all the meansat its disposal”326 to prevent climate change exceeding the limit of 1.5°C.
147 The precautionary principle has been invoked by many national courts in theirdeliberations on the appropriate level of action for a State to take in climate
cases.327 According to the Court’s case law, the precautionary principle
recommends “aux États de ne pas retarder l’adoption de mesures effectives etproportionnées visant à prévenir un risque de dommages graves et irréversibles
à l’environnement en l’absence de certitude scientifique où technique.”328
148 Climate change and its adverse effects are no longer a matter of uncertainty butof acknowledged risks (§146). The risks posed by climate change-induced
heatwaves have already partly materialised (s1.6). In line with the position in
Tâtar v. Romania, §121, given that some harms have already materialised, theRespondent’s positive obligation to prevent irreversible and serious harm to theglobal climate and to the Applicants caused by excessive GHG emissions applies
even more so now and in the future. The Respondent’s failure to adopt thenecessary legislative and administrative framework to do its share to prevent a

See VIÑUALES, The Paris Climate Agreement: An Initial Examination (Part I of III) Feb. 2016 (link).
See DUVIC-PAOLI (n317), at pp. 269 and 190-191: ”It is precisely when harm is foreseeable but has
not yet occurred that the obligation of prevention is most relevant. (…) The boundaries of the
anticipatory rationale of prevention are not defined within an explicit timeframe, but it can beconsidered that prevention operates in the realm of ‘imminence.’ (..) In the climate regime, the ‘near
future’ spans over the full twenty-first century, the time span covered by climate science andmodelling. Climate change is thus considered an imminent threat irrespective of the fact that somedamage might only materialize in several decades.”324
ILC Draft Articles (n319), Commentary to Art. 3, §11 p. 154 (link).
325
ILC (Draft Articles (n319), Commentary to Art. 3, §7 p. 154 (link).
326
See Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, §101.
327
Neubauer (n 208); High Court of New Zealand, Sarah Thomson v. The Minister for Climate Change
Issues, 2 Nov. 2017, CIV 2015-485-919, NZHC 733, §88-94; Supreme Court of Colombia, Future
Generations v. Ministry of the Environment and Others, 5 Apr. 2018, STC4360-2018, §11.1; Urgenda(n 198), §5.7.3, 7.2.5, 7.2.10; UN Human Rights Committee, Daniel Billy et al. v. Australia, 21 Jul.
2022, communication no. 3624/2019 (see Annex I, §§14, 16; Annex III, §4).
328
Tătar (n 157), §§109 and 120.
322
323

52

global temperature increase of more than 1.5°C (and its delays in that regard)is impermissible, by reference, inter alia, to the precautionary principle.
149 In particular, the precautionary principle supports the position that any
ambiguity as to the necessary emissions reductions to prevent a global
temperature increase of more than 1.5°C should be resolved in favour of the
Applicants (who are suffering the consequences of the absence of a clearly
defined approach). The precautionary principle also limits the discretion
regarding a State’s reliance on measures to remove GHGs from the atmosphereat a later stage, as their large-scale deployment is not yet certain (s1.10.5).329
2.5.4.3. Evolving norms of national and international law
150 Further important sources in the context of determining the scope of theobligation to protect through harmonious interpretation of the Convention are
evolving norms of national and international law330 and “consensus emerging
from specialized international instruments and from the practice of theContracting States.”331
151 Over the past decade, a wide range of judicial, quasi-judicial332 and otherinstitutions at the national,333 regional and international334 level haverecognised the significant impact that climate change is already having, and will
have, on the enjoyment of a wide range of human rights, including the rights
to life and health.335
152 In that regard, the Resolution A/76/L.75 on “The human right to a clean,healthy and sustainable environment” adopted on 26 July 2022 by the UN
General Assembly is a major and recent development at the international
See Urgenda (n 198), §7.2.5; Neubauer (n 208), §227.
Demir and Baykara (n 196), §68.
331
Demir and Baykara (n 196), §85.
332
E.g., in May 2022 the Commission on Human Rights of the Philippines concluded its seven-year
inquiry into duties of States and responsibilities of businesses for the human rights impacts ofanthropogenic climate change (link), holding that climate change is a human rights issue (pp. 26-39);
it reaffirmed governments’ special duties to protect human rights in the context of climate change (pp.
69-79); governments’ failure to take meaningful mitigation steps may be a human rights violation (pp.
87-88); and businesses, including financial institutions, must respect those rights (pp. 132-135).
333
See Urgenda (n 198), §2.1; Paris Administrative Court, Notre Affaire à Tous and Others v. France,
14. Oct. 2021; Brussels Court of First Instance, ASBL Klimaatzaak (n 206); Neubauer (n 208);
Supreme Court of Norway, Nature and Youth Norway and others v. Norway, HR-2020-2472-P;
Conseil d’État, Commune de Grande-Synthe v. France, no. 427301, 1 Jul. 2021; Irish Supreme Court,
Friends of the Irish Environment v. Ireland, no. 205/19, 31 Jul. 2020, §3.6.
334
See OHCHR, Joint statement by five UN human rights treaty bodies on human rights and climatechange, 16 Sep. 2019, UN Doc. HRI/2019/1, §§3 and 7 (link); The Human Right to a Clean, Healthy
and Sustainable Environment, Human Rights Council Res 48/13, adopted 8 Oct. 2021 (link).
335
103 climate cases have been filed before 15 international or regional courts and tribunals: see
SETZER/HIGHAM (n 166) p. 10 (link).
329
330

53

level.336 This Resolution expressly recognises “the right to a clean, healthy andsustainable environment as a human right.” Moreover:−

The Resolution clearly confirms the link between the protection of theenvironment and human rights, by stating that “the impact of climatechange, (…), the resulting loss of biodiversity and the decline in services
provided by ecosystems interfere with the enjoyment of a clean, healthyand sustainable environment and that environmental damage has
negative implications, both direct and indirect, for the effective
enjoyment of all human rights” (emphasis added). It recognizes that “(…)
climate change, (…) constitute[s] some of the most pressing and serious
threats to the ability of present and future generations to effectively enjoy−

all human rights.” In other words, human rights and the right to a safe
and stable climate are intrinsically interrelated.337
The Resolution also recognizes that, while the human rights implicationsof environmental damage are felt by individuals and communities aroundthe world, the consequences are felt most acutely by women and thosesegments of the population that are already in vulnerable situations,
including older persons. In other words, although climate change bears
human rights implications for all, it particularly threatens the humanrights of most vulnerable groups including women and older persons.

−

The Resolution recalls “States’ obligations and commitments undermultilateral environmental instruments and agreements, including on
climate change” and reaffirms that “States have the obligation to respect,
protect and promote human rights, including in all actions undertaken toaddress environmental challenges, and to take measures to protect thehuman rights of all, as recognised in different international instruments,
and that additional measures should be taken for those who areparticularly vulnerable to environmental degradation (…).” In that text

See Pavlov (n 291), as Judge KRENC recognised in his concurring opinion, §6 ff.
See Pavlov (n 291), Concurring opinion of Judge KRENC, §6; see also UN Human Rights Committee,
Daniel Billy (n 327), §8.3: “The Committee further recalls that the obligation of States parties torespect and ensure the right to life extends to reasonably foreseeable threats and life-threatening
situations that can result in loss of life. States parties may be in violation of article 6 of the Covenanteven if such threats and situations do not result in the loss of life. The Committee considers that suchthreats may include adverse climate change impacts, and recalls that environmental degradation,
climate change and unsustainable development constitute some of the most pressing and serious
threats to the ability of present and future generations to enjoy the right to life. The Committee recallsthat States parties should take all appropriate measures to address the general conditions in societythat may give rise to direct threats to the right to life or prevent individuals from enjoying their rightto life with dignity.”
336
337

54

the Resolution refers to the UNFCCC and the PA (s2.5.4.1) as well as tothe precautionary principle and prevention principle, as customary
principles of international law (s2.5.4.2).
153 All Contracting States voted in favour of this Resolution. That fact demonstrates
that there is a clear measure of common ground between the Contracting
States. Therefore, the Applicants submit that this Resolution is an importantand recent development that the Court “can and must take into account.”338
154 That common ground is also reflected in the European Climate Law (“ECL”)339
which is a key element of the European Green Deal340 and imposes the binding
objective of climate neutrality in the European Union (“EU”) by 2050 in pursuitof Art. 2(1) PA: Arts. 1 and 2 ECL and an EU wide domestic reduction of net
GHG emissions of at least 55% compared to 1990 levels by 2030 in order toachieve climate neutrality in 2050: Art. 4(1) and recital 26 ECL.
155 The European Climate Law represents an agreement (i.e. consensus) between
27 of the Contracting States that are also members of the EU as to the minimum
emissions reductions that must be made. Switzerland’s planned domestic
emissions reduction by 2030 of 34% below 1990 levels (§34) does not,however, come close to those requirements (55%), nor to those applicable in
EU countries that are structurally comparable. e.g. Denmark (70%);341 Finland(60%, carbon-neutral in 2035);342 and Germany (65%).343 Even assuming the
EU climate target is sufficient, and the Court should note that the CAT has
found it to be “insufficient”,344 Switzerland is doing significantly less.
2.5.5.

Living instrument and the need to tackle climate change (question
E. 5.3.3)

156 The living instrument doctrine requires that the Convention be interpreted inlight of present-day conditions, taking into account sociological, technologicaland scientific changes as well as evolving standards in the field of humanrights.345
338

Demir and Baykara (n 196), §§85-86.

Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 Jun. 2021
establishing the framework for achieving climate neutrality and amending Regulations (EC) No
401/2009 and (EU) 2018/1999 (“European Climate Law”) (link).
340
European Commission, The European Green Deal, 11. Nov. 2019 (link).
341
Climate Change Performance Index, Denmark (link).
342
Ministry of the Environment, Reform of the Climate Change Act (link).
343
Bundesministerium für Wirtschaft und Energie, Deutsche Klimaschutzpolitik (link).
344
See e.g. CAT, European Union, Country Summary (link).
345
Demir and Baykara (n 196), §§68, 85 and 122.
339

55

157 The Applicants submit that as a result of scientific developments there is now
no doubt as to the catastrophic implications of climate change and the realurgency of taking the necessary measures to address it. This was recognised by
the Parties as early as 1992 when they adopted the UNFCCC. Since then,however, the urgency has increased significantly, as recognised in the need forand adoption of the PA (Preamble to the PA). The scientific consensus now isthat there remains very little time, if any, to prevent catastrophic temperature
increases.346 Accordingly, in construing and applying Convention rights, theCourt must have regard to this scientific consensus: that climate change has
existential implications for life on earth; that there is a real risk of exceeding
critical further thresholds known as “tipping points” (“a tipping point is a
critical threshold beyond which a system reorganizes, often abruptly and/or
irreversibly”);347 and that significant climate change mitigation measures must
be taken as a matter of extreme urgency to avoid the most catastrophic impacts,
even if all impacts can no longer be avoided.
158 It is widely recognised internationally that averting climate change is an
inherent part of the obligation on States to protect human rights. The UN
Human Rights Committee noted in Daniel Billy et al. v. Australia, 21 July 2022:“the obligation of States parties to respect and ensure the right to life extends
to reasonably foreseeable threats and life-threatening situations that can resultin loss of life. States parties may be in violation of Article 6 of the Covenanteven if such threats and situations do not result in the loss of life. The
Committee considers that such threats may include adverse climate change
impacts, and recalls that environmental degradation, climate change andunsustainable development constitute some of the most pressing and serious
threats to the ability of present and future generations to enjoy the right to life.
The Committee recalls that States parties should take all appropriate measures
to address the general conditions in society that may give rise to direct threats
to the right to life or prevent individuals from enjoying their right to life with
dignity.”348

Emissions Gap Report 2022 (n 77) (link).
IPCC, AR6 WGI (n 2), SPM Footnote 34 (link).
348
Daniel Billy (n 327), §8.3. See also, «Understanding Human Rights and Climate Change,
Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of theParties to the UNFCCC», p. 10 (link).
346
347

56

159 Similarly, domestic courts across the world and in the Contracting States havealready recognised that climate change engages individual human rights,
including the right to life, the right to protection of family and private life andthe rights of future generations.349
160 The Applicants emphasise the importance of this development. Were the Court
to decide that those domestic courts had been wrong in their analysis that the
failure of States and corporate entities to take sufficient measures to mitigate
climate change engaged (and indeed on the facts of those cases, violated)individual rights under Arts. 2 and 8 ECHR, that would amount to a significant
set-back in tackling climate change. The Applicants submit that on thatquestion, the Court is concerned not with the living instrument doctrine, butrather with the question of whether domestic courts, as set out below, werecorrect or incorrect in holding that a failure by the State to take all necessary
steps to prevent climate change violates individual rights under theConvention. Whilst it would be open to the Court to say that domestic courts
were entitled under Art. 53 ECHR to go beyond what was required by theConvention, it would undoubtedly have a significant impact if it did so, bothon the courts of other Contracting States and potentially even in States where
the courts have already found State omissions in the sphere of climate change
action to give rise to human rights issues.
161 In Urgenda, the Supreme Court of the Netherlands held that the State wasunder a positive obligation pursuant to Arts. 2 and 8 ECHR to reduce GHG
emissions because climate change poses a “real and immediate risk”, and that“[t]he fact that this risk will only be able to materialise a few decades from now
and that it will not impact specific persons or a specific group of persons butlarge parts of the population does not mean – contrary to the State’s assertions– that Articles 2 and 8 ECHR offer no protection from this threat.”350
162 In Neubauer the German Constitutional Court, considering the rights of future
generations, ordered the government to reconsider its targets and clarify its
emission reduction targets from 2031 onwards by the end of 2022.351

See for an overview SAVARESI/SETZER, Mapping the Whole of the Moon: An Analysis of the Role of
Human Rights in Climate Litigation, 2021, available at SSRN (link); see also Urgenda (n 198), §2.1;
Notre Affaire à Tous (n 333); ASBL Klimaatzaak (n 206); Neubauer (n 208).
350
Urgenda (n 198), §§5.2.2 and 5.6.2.
351
Neubauer (n 208), §§99, 151, 184.
349

57

163 Domestic courts have further emphasised that measures should prioritise nearterm action over uncertain and unproven negative emissions technologies. In
Urgenda the Dutch Supreme Court rejected the State’s reliance on drastic
measures to remove GHG from the atmosphere at a later stage, noting that“there is no technology that allows this to take place on a sufficiently large
scale” and stating that taking such risks would be contrary to the precautionary
principle enshrined in international law and the Convention. 352 The German
Constitutional Court similarly ruled that the German State cannot delay action
as it would transfer a disproportionate mitigation burden onto future
generations.353 It also held that the German State cannot rely on negativeemissions technologies, as their large-scale deployment is not yet certain.354
164 Likewise, two apex courts in France have rejected the notion that the
government’s pursuit of mid-term or long-term targets could excuse its failure
to meet its near-term target, given the cumulative, lasting effects of current
emissions and the real risk that it would be impossible to implement the drastic
GHG cuts needed if climate action is delayed.355 Similarly, the Supreme Courtof Ireland decided that the country’s mitigation plan was too reliant on
unproven technologies.356
165 There is also increased judicial recognition that developed countries have agreater role to play in preventing dangerous climate change. In its applicationof Arts. 2 and 8 ECHR, the Dutch Supreme Court rejected the argument that
because all States are jointly responsible for climate change, no individual Statecan be held responsible. It also rejected the argument that the impact of the
reduction of emissions sought by the plaintiff would be insignificant in light ofthe other States’ ongoing emissions, over which the Netherlands has nocontrol. Instead, it held that the Netherlands must “do their part” to prevent
dangerous climate change, maintaining that “each country is responsible for its
part and can therefore be called to account in that respect”, in line with “whatis adopted in national and international practice in the event of unlawful actsthat give rise to only part of the cause of the damage”. 357 The German
Urgenda (n 198), §7.2.5.
Neubauer (n 208), §§144 and 182.
354
Neubauer (n 208), §227.
355
Notre Affaire à Tous (n 333); Notre Affaire à Tous (n 206), §33; Conseil d’État, Commune deGrande-Synthe v. France, no. 427301, 19 Nov. 2020, §15.
356
Friends of the Irish Environment (n 333), §§6.18, 6.46, 6.47.
357
Urgenda (n 198), §§5.7.5 and 5.7.6.
352
353

58

Constitutional Court also held that Germany must reduce its share of emissions
and enhance international cooperation by adopting adequate national
measures. 358 Further, it held that States cannot use emissions reductions
achieved in other jurisdictions to “offset” large-scale inaction in their required
domestic emission reductions.359
166 Domestic courts have also recognised that future harms are certain due to theirrevocable and multiplying effects of historical and current GHG emissions.
For example, the Administrative Supreme Court of France held that, even if themost severe consequences of climate change do not take place before 2030 or
2040, their inevitability gives rise to an urgent need to act without delay. 360
The Irish Supreme Court similarly stated that the consequences of failing toaddress climate change are “very severe with potential significant risks both tolife and health.”361
167 Finally, domestic courts in the Council of Europe’s Member States haverecognised the victim status of both individuals and organisations to bringclaims based on constitutional or human rights violations due to climatechange. Thus, the German Constitutional Court recognised the standing ofeight young individuals to contest Germany’s climate policy;362 apex courts in
Norway and the Netherlands allowed for the plaintiff organisations to plead
violations of Arts. 2 and 8 ECHR in climate cases;363 the French Conseil d’État
granted standing to a municipality;364 and the first instance court of Brussels
recognised the standing of an NGO plaintiff (considering the protected role ofenvironmental NGOs under the Aarhus Convention particularly) and of
individual plaintiffs.365
2.6. Violation of Article 6 ECHR (questions E.6., E.6(a) and E.6(b))
168 The Applicants submit that there has been a violation of the Applicants' rightto effective access to court under Art. 6 ECHR366 because the Respondent’s
courts failed properly to examine the merits of their claims.
Neubauer (n 208), §§149, 202-204.
Ibid., §226.
360
Notre Affaire à Tous (n 333), §3.1.
361
Friends of the Irish Environment (n 333), §3.6.
362
Neubauer (n 208), §§96-112.
363
Nature and Youth Norway (n 333); Urgenda (n 198).
364
Grande-Synthe (n 333).
365
ASBL Klimaatzaak (n 206), p. 46-52.
366
See Naït-Liman (n 240), §113.
358
359

59

169 In answer to question E.6(a), the Applicants submit that they did not have aneffective judicial remedy at their disposal to assert their civil rights.367 The
domestic authority declared the matter inadmissible on the grounds that the
Applicants lacked standing under Art. 25a APA; and the Respondent’s domestic
courts upheld that decision. The domestic courts did not assess the Applicants’dispute or, alternatively, only did so arbitrarily.368 Specifically, none of thecourts analysed critical questions on the merits effectively, such as those related
to: the Applicants’ vulnerability to extreme heatwaves; the harm from heatrelated afflictions suffered by Applicants 2-5; and the legislative andadministrative framework necessary to protect the Applicants’ right to life andfamily and private life.
170 The right of access to a court is not absolute but may be subject to limitations.369
This applies inter alia where the proper administration of justice and theeffectiveness of domestic judicial decisions are concerned.370 However, thoselimitations must not restrict or reduce a person’s access in such a way or tosuch an extent that the very essence of the right is impaired.371 In addition,such limitations will only be compatible with Art. 6 ECHR if they pursue alegitimate aim and if there is a reasonable relationship of proportionality
between the means employed and the aim sought to be achieved. 372
171 With regard to question E.6(b), the Applicants do not contest the limitations to
the right of access to a court entailed in Art. 25a APA in the abstract (i.e. thestanding requirements) nor the legitimate aim pursued; the principles of theproper administration of justice and maintaining the effectiveness of domestic
judicial decisions.373
172 However, the Applicants submit that the domestic courts applied the standing
requirements arbitrarily and in a manifestly unreasonable way,374 impairing thevery essence of the Applicants’ right of access to a court.375

Naït-Liman (n 240), §113.
See e.g. Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, §86: “the rightof access to a court includes (…) also the right to obtain a determination of the dispute by a court.”
369
Naït-Liman (n 240), §114.
370
Ali Riza v. Switzerland, no. 74989/11, §97.
371
Naït-Liman (n 240), §114.
372
Naït-Liman (n 240), §115.
373
See Naït-Liman (n 240), §122.
374
See e.g. Naït-Liman (n 240), §116.
375
See e.g. Ashingdane v. UK, no. 8225/78, §57; Naït-Liman (n 240), §114.
367
368

60

173 At the administrative stage, the Federal Department of the Environment,
Transport, Energy and Communication (“DETEC”) stated arbitrarily that the
Applicants’ rights were not directly affected in terms of Art. 25a APA, because“their goal is to reduce CO2 emissions not only in the applicants’ immediatesurroundings, but worldwide”376. With respect, that statement is nonsensical,
given it is technically impossible to reduce the concentration of CO2 in theatmosphere locally.
174 Later, the Federal Administrative Court (“FAC”) and the Federal Supreme
Court (“FSC”) both came to the conclusion that the Applicants’ appeals
constituted an actio popularis, albeit based upon different but arbitraryreasoning, impairing the very essence of the Applicants’ right of access to a
court.
175 The assessment of the FAC that the Applicants were not “particularly” affectedby the impacts of climate change377 is in clear contrast to best available scientificevidence and the medical certificates submitted by the Applicants (ss1.5 and1.6).
176 Equally arbitrary and contrary to any scientific evidence was the assumption by
the FSC that there was still some time available to combat dangerous climatechange. 378 This finding flew in the face of the Respondent’s own public
communication at that time379 and had not been raised by the DETEC in its
function as a party to the domestic proceedings. The judges of the FSC madethis finding having conducted their own fact finding exercise without the
involvement of (climate) scientists and despite the fact that the FSC’s appellatefunction is normally limited to the examination of violations of the law.380 On
the basis of that assumption the FSC then held that: the Applicants would nottherefore be affected in their rights with sufficient intensity; and accordinglythat their claims were aimed at an abstract examination of the domestic climate
measures. 381 The FSC’s finding has no proper scientific or other evidential basis.
Contrary to its unevidenced finding, there is no time left to wait before States
must take the necessary measures if global warming is to be limited to 1.5°C;

DETEC, decision, 26 April 2017, s1.2.
FAC, judment A-2992/2017, 27 Nov. 2018, ss7.4.2 and 7.4.3.
378
BGer 1C_37/2019, 5 May 2020, s5.3.
379
See e.g. Federal Gazette, BBl 2009 7433, s4.1.1 (link) and BBl 2018 247 (n 70), s1.1.1 (link).
380
Arts. 95 and 96 Bundesgerichtsgesetz vom 17. Juni 2005, SR 173.110 (link).
381
BGer 1C_37/2019, 5 May 2020, s5.5.
376
377

61

and the magnitude and rate of climate change and associated risks for the
Applicants depend strongly on near-term mitigation and adaptation actions.382
177 Further, the FSC’s decision that there is still time for Respondent to start acting
is based on a false premise and is manifestly unreasonable. It implies that the
only appropriate time for the Applicants to access a court would be at a moment
when it is too late to redress the harm.383 Environmental risks have to beaddressed before they materialise,384 due to “the limitations inherent in the verymechanism of reparation of this type of damage.”385 The FSC’s decision is also
manifestly unreasonable as it implies that the Respondent’s duty of carethreshold under Arts. 2 and 8 ECHR is based on the time left to achieve a global
target, instead of evaluating whether climate change posed a “real and serious”
risk to the lives of Applicants 2-5 and the members of Applicant 1.
178 Furthermore, the domestic courts applied the standing requirements
disproportionately, given: their duty to consider the nature of the rights at stake(Arts. 2 and 8 ECHR); and the fact that with their interpretation of the standing
requirements, acts and failures by the Respondent in fighting climate change
would remain entirely outside the scope of human rights law (§63). This would
be an unacceptable consequence in the light of the magnitude of the threat
posed by climate change and the practice in comparable environmental law
cases. It should be noted that the FSC made it explicitly clear that in its view,not only did the Applicants not fulfil standing requirements, but the rest of the
population did not have standing either.386
179 Finally, it should be noted that the domestic courts’ arbitrary application ofstanding requirements is also inconsistent with the Respondent’s commitments
under the Aarhus Convention. The third pillar of the Aarhus Convention
concerns access to courts in environmental matters (Art. 9). It provides legal
protection against decisions, actions and omissions regardless of the form ofofficial action (Art. 9 (3)), and thus also against real acts.387 Taking the “meaning
and the spirit” of the Aarhus Convention into account speaks for generous
IPCC, AR6 WGII (n 1) (link), B.4; IPCC, 1.5°C SR (n 50) SPM D.1.1 and D.1.3 and p. 34 and 61(link) (doc. 32) and UNEP, Emissions Gap Report 2022 (n 77) (link).
383
Cf. Howald Moor (n 277), §§74 ff.; see REICH, Bundesgericht, I. öffentlich-rechtliche Abteilung,
1C_37/2019, 5. Mai 2020, in ZBl 121/2020, 489-507, s2.1.3.
384
See Tătar (n 157), §120; see also Urgenda (n 198), §7.2.10.
385
International Court of Justice, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 1. C.
J. Reports 1997, p. 7, §140.
386
BGer 1C_37/2019, 5 May 2020, s5.5.
387
BGE 141 II 233, E. 4.3.4.
382

62

provision of legal protection.388 In this regard, it is submitted that the Court
should also take account of the fact that the specific purpose of Art. 25a APA
was to fill a serious gap in the system of legal protection. 389
2.7. Violation of Article 13 ECHR (question E.7)
180 In answer to question E.7, the Applicants submit that there has been a violationof Art. 13 ECHR in the present case.
181 Art. 13 ECHR guarantees the availability at national level of a remedy to enforce
the substance of Convention rights in whatever form they might happen to be
secured in the domestic legal order.390 It requires the provision of a domestic
remedy allowing the “competent national authority” both to deal with thesubstance of the relevant Convention complaint and to grant appropriate relief.
The remedy must be “effective” in practice as well as in law. 391 And,
importantly, such a remedy must be available as soon as there is an “arguable”
complaint or grievance under the Convention.392
182 The Applicants did not have an effective remedy at their disposal within themeaning of Art. 13 ECHR concerning the alleged violations of Arts. 2 and 8
ECHR, since no national authority effectively examined the substance of theircomplaint (§169).393 DETEC refused to enter into the matter based on Art. 25a
APA, still less to undertake a substantive review of the Arts. 2 and 8 ECHR
complaint. The domestic courts upheld DETEC’s refusal. The FSC’s incidental
statement that Arts. 2 and 8 ECHR were not violated394 because they assumed
that there was still some time for the Respondent to start acting does not
remedy the domestic courts’ failure to undertake a substantive review (§§169
and 174 ff.). The Respondent and its domestic courts’ application of thestanding requirements in an arbitrary manner (§172 ff.) rendered the remedy
ineffective.395 Further, when emphasising that the Applicants’ complaint should
THURNHERR, Die Aarhus-Konvention in der Rechtsprechung des Bundesgerichts und desBundesverwaltungsgerichts, Eine Spurensuche, Umweltrecht in der Praxis 2017, pp. 510 et seq., 523.
389
HÄNER, Art. 25a, in WALDMANN/WEISSENBERGER (eds.), Praxiskommentar Verwaltungsverfahrensgesetz (VwVG), Zurich 2016, N 3 and footnote 9 with reference to, inter alia, BGE 121 I 87
E. 1b and BGE 128 II 156 E. 4b.
390
Rotaru v. Romania [GC], no. 28341/95, §67; Hatton (n 248), §140.
391
See Wille v. Liechtenstein [GC], no. 28396/95, §75.
392
Rotaru (n 390), §67; Mugemangango v. Belgium [GC], no. 310/15, §130.
393
See i.a. Smith and Grady v. UK, no. 33985/96, §§135-138; Boychev and Others v. Bulgaria, no.
77185/01, §56.
394
BGer 1C_37/2019, 5 May 2020, s7.
395
Cf. Camenzind v. Switzerland, no. 21353/93, §54; Glas Nadezhda EOOD and Elenkov v. Bulgaria,
no. 14134/02, §69
388

63

not be dealt with by legal action but by political means 396, the FSC definedpolicy issues so broadly that it was not possible for the Applicants to make their
Convention points regarding their rights under Arts. 2 and 8 ECHR.397
183 Furthermore, there was no effective remedy at the time when the Applicants’complaint arose. 398 The time to reduce emissions for 2020 and 2030 in linewith both the “well below 2°C” and the 1.5°C limit is not a matter for the
future. Work should have already begun and should be continuing now. If an
effective remedy is only granted when global warming approaches a certain
level, as appears to be the FSC’s approach, then in that case, it will be too latefor Respondent to do its share, or for Applicants 2-5 and the members ofApplicant 1, as older women, to benefit from these protections.
184 It should be noted that in the domestic proceedings, the Applicants did notchallenge the CO2 Act as such, but they had an arguable claim to a violation ofArts. 2 and 8 ECHR, for which the domestic regime must afford them an
effective remedy.399 Their initial 2016 request to the Respondent was a request
to stop omissions in climate protection and to issue a ruling pursuant to Art. 25a
APA.400 The Applicants submitted that to put an end to the unlawful omissions(i.e. “real acts” in terms of Art. 25a APA), the Respondent should undertake
effective and preventive actions to protect them from the effects of increasing
temperatures, i.e. more frequent and stronger heatwaves. All such acts of theState fall within the scope of Art. 13 ECHR.401
185 Overall, the scope of review by the national authorities in the present case was
not sufficient to comply with Art. 13 ECHR. There has therefore been aviolation of Art. 13 of the Convention.
186 This is not altered by the fact that domestic law includes provisions for Stateliability. Financial compensation cannot be an alternative effective remedy
against the risk of heat-related mortality or the future impairment of the
Applicants’ health, as it does not lead to the elimination of the unlawful
situation or the risks to the Applicants.402
BGer 1C_37/2019, 5 May 2020, s7.
Cf. Hatton (no 248), §140 f.; Smith and Grady (n 393), §§135-39. Compare Neubauer (n 208) and
Urgenda (n 198).
398
Cf. Khider v. France, no. 39364/05, §§142–145.
399
See Hatton (n 248), §138.
400
See request to the Respondent (link).
401
Al-Nashif v. Bulgaria, no. 50963/99, §137; Wille (n 391), §§76-78.
402
KELLER/CIRIGLIANO, Grundrechtliche Ansprüche an den Service Public: Am Beispiel deritalienischen Abfallkrise [Constitutional rights' requirements for the Service Public: the example of the
396
397

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2.8. Considerations that should guide the Court in indicating general measures tobe taken by the Respondent State (question E.8)
187 The Applicants submit that the following considerations should guide the Court
in devising the general measures (Art. 46 ECHR) to be taken by the
Respondent.
188 In the present case, the Court should regard the fact that from the initiation of
the domestic proceedings to date, the Respondent has not been interested in:evaluating whether and to what extent it had a positive obligation to protect
the Applicants; in examining the question whether its climate policy is in linewith limiting global warming to 1.5°C; in fulfilling its positive obligation
towards the Applicants by adopting an adequate climate policy. For example:−

In the domestic proceedings the Respondent’s authorities and courts

avoided answering these questions, by applying the standing
requirements arbitrarily (§172 ff.).
−

Although hundreds of excess deaths are recorded in every heatwave in
Switzerland, particularly amongst older women (s1.5), the Respondent
has clearly demonstrated that it does not take seriously the threat causedby climate change to older women and to society as a whole. The
Respondent continues to maintain that the Applicants were merely
asserting some “subjective sensitivities,”403 and has sought to blame the−−

Swiss people’s vote on the referendum for its failure to tackle climatechange (§30). 404
The Respondent has failed to adequately inform its Parliament and the
public about the human rights impacts of climate change;
notwithstanding the alleged “review of constitutionality” contained in its
dispatches to Parliament.405 Since Switzerland does not haveconstitutional jurisdiction, such review would have been of particularimportance.
The Respondent continues to assert - without providing any studies orother evidence at any point (§125) and contrary to independent studies

Italian waste crisis], URP 2012, p. 831-853, 844; Di Sarno (n 157), §87; cf. Macready v. the Czech
Republic, no. 4824/06, §48. Indeed, a person affected by a real act may even be required to submit arequest under Art. 25a APA in order to avoid being held responsible in a later State liability procedure
for not complying with his or her duty to limit damages, see KIENER/RÜTSCHE/KUHN, Öffentliches
Verfahrensrecht [Public procedural law], 3rd edition 2021, N 436.
403
See Respondent’s Observations (n 215), §51 (link).
404
See Respondent’s Observations, (n 215), e.g. §103 (link).
405
See e.g. Federal Gazette, BBl 2018 247 (n 70) (link), p. 368 s5.1.

65

- that its climate targets are in line with the 1.5°C limit;406 relying on

global pathways laid down by the 1.5°C SR407 to be achieved collectively,
maintaining untenably that these reduction targets could even be met toa significant extent by purchasing emission reductions abroad. The
Respondent has failed throughout to demonstrate what its “fair share”
would be and how, as a wealthy country, its domestic emissions−

reductions could be reduced to meet what is required in terms ofemission reductions in the global average. Also, contrary to its NDC, theRespondent has no short term or long-term plan to enshrine thetemperature limit of 1.5°C into national legislation.
Having failed to meet its (inadequate) 2020 target (s1.11), theRespondent’s strategy is to forego potentially unpopular but effective

domestic measures408 and to focus on buying emissions reductions
abroad.
−Rather than pursue its highest possible ambition, the Respondent’s

climate strategy postpones the reduction efforts necessary for Switzerland
itself to be net-zero, hoping the State will benefit financially (§131) fromthe emission reductions of other countries (which in this context is aclassic situation of the prisoner’s dilemma).
189 Overall, the present case shows a clear lack of interest409 and a systematic

failure of the Respondent to take all necessary measures to secure theApplicants’ rights under Arts. 2 and 8 ECHR. In view of this, a simple
declaration that the Applicants’ rights have been violated would, at best, resultin a promise by the Respondent to undertake feasibility studies rather than totake concrete measures, thus prolonging the violations of the Applicant’s rights
as well as a breach of the obligation on the Respondent to abide by the Court’s
judgment in accordance with Art. 46(1) ECHR.410
190 It is clear that to limit global warming to 1.5°C, urgent, meaningful, andambitious action is imperative.411 If inaction continues and only insufficient
See e.g. Federal Gazette, BBl 2021 1972 (n 286), p. 8 s2.1 and p. 45 s6.6.2 (link) and CAT,
Switzerland, Targets, NDC updates (link), noting that “without any meaningful increase in ambition,
Switzerland maintains that its 2030 target puts it on an emission development pathway in line with(…) 1.5°C. It does not provide any citation to demonstrate this point.”
407
Federal Gazette, BBl 2021 1972 (n 286), p. 8 s2.1 (link).
408
The Federal Council, Klimapolitik: Der Bundesrat stellt die Weichen für eine neue Gesetzesvorlage,
17 Sept. 2021 (link).
409
Cf. mutatis mutandis Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §440.
410
Cf. Selahattin Demirtaş (n 409), §442.
411
UNEP, Emissions Gap Report 2022 (n 77).
406

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measures are taken, then global warming will - with a high degree of certainty- exceed the 1.5°C threshold in the next few years. Such a scenario will further
intensify the breach of the Applicants’ rights.
191 The Applicants submit that the nature of the violations is such as to leave noreal choice as to the measures required to remedy them; thus, the Court isurged to indicate that the Respondent complies with specific generalmeasures. 412 Any such measures must be compatible with the conclusions andspirit of the Court’s judgment.413 If the Court concludes that the Respondent
has violated Art. 2 and/or Art. 8 ECHR due to its failure to adopt the necessary
legislative and administrative framework to protect their rights, then the
Applicants submit that the only way to ensure the effective protection of theirrights is for the Court to order concrete emission reduction targets, as
requested.414
192 Accordingly, the Applicants respectfully request the Court to order generalmeasures, as follows:(1)

the Applicants request the Court to order the Respondent to adopt thenecessary legislative and administrative framework to protect their rights,
so as to do its share to prevent a global temperature increase of more than
1.5°C above pre-industrial levels;415(2)

the Applicants request the Court to further specify the scope of the
Respondent’s obligation to protect their rights, namely:a.

ensuring a GHG emission level in 2030 that is net-negative ascompared to the emissions in 1990;

As it did e.g. in Selahattin Demirtaş (n 409), §442; Assanidzé v. Georgia [GC], no. 71503/01,§§202-03; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §490; Aleksanyan v. Russia,
no. 46468/06, §§239-40; Fatullayev v. Azerbaijan, no. 40984/07, §§176-77; Del Río Prada v. Spain[GC], no. 42750/09, §§138-39; Şahin Alpay v. Turkey, no. 16538/17, §§194-95 and Kavala v.
Turkey [GC], no. 28749/18, §240.
413
Cf. Selahattin Demirtaş (n 409), §441.
414
Cf. decisions in Urgenda (n 99), s5.1: “orders the State to limit the (…) annual GHG emissions, or
have them limited, (…) by at least 25% at the end of 2020 compared to the level of the year 1990,(…)”; Notre Affaire à Tous (n 333), p. 31: “Il est enjoint au Premier ministre et aux ministrescompétents de prendre toutes les mesures utiles de nature à réparer le préjudice écologique et prévenir
l’aggravation des dommages à hauteur de la part non compensée d’émissions de gaz à effet de serre
au titre du premier budget carbone, soit 15 Mt CO2eq, et sous réserve d’un ajustement au regard desdonnées estimées du CITEPA au 31 janvier 2022. La réparation du préjudice devra être effective au
31 décembre 2022, au plus tard” and Milieudefensie (n 213), s.5.3: „orders RDS, (…), to limit orcause to be limited the aggregate annual volume of all CO2 emissions into the atmosphere (Scope 1, 2
and 3) (…) to such an extent that this volume will have reduced by at least net 45% at end 2030,
relative to 2019 levels.”
415
Cf. Greens and M.T. v. UK, no. 60041/08, §§110-115, and Oleksandr Volkov v. Ukraine, no.
21722/11, §202.
412

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b.

reducing domestic emissions by more than 60% below 1990 levels
by 2030, and to net-zero by 2050, as the domestic component ofa.;c.

preventing and reducing any emissions occurring abroad that are
attributable to the Respondent, in line with the above pre-industrial
levels limit;d.

permanently removing GHG emissions from the atmosphere andstoring them in safe, ecologically and socially sound GHG sinks, if,
despite a., b., c., any GHG emissions continue to occur within thecontrol of the Respondent, or the concentration of GHGs in theatmosphere exceeds the level corresponding to the 1.5°C above
pre-industrial levels limit;(3)

moreover, given the Respondent’s continued failures, the Court is invited
to set a time-limit which is adequate in view of the urgency of the issues
at stake (s3) for the Respondent to implement such a framework.416

193 Such general measures are necessary to enable the Committee of Ministers toverify that timely and necessary measures are taken to protect the Applicants’rights and that there is sufficient implementation of the Court’s judgment in
the present case. It is submitted that a failure to order these measures would,
considering the violation of the Applicants’ rights, their elderly age, the urgencyof the situation and the Respondent’s history of inaction, likely result in acontinued breach of the Applicants’ rights.

416

Greens (n 415), §115.

68

3.

Requests to the Court
The Applicants hereby respectfully request the Court to declare that:(1)

All the Applicants are victims for the purposes of Art. 34 ECHR and thateach of their claims is admissible under Arts. 34 and 35 ECHR,
respectively.

(2)

The Respondent failed to protect the Applicants’ rights to life and private
life under Arts. 2 and 8 ECHR, by failing to adopt the necessary legislative
and administrative framework to do its share to prevent a global
temperature increase of more than 1.5°C above pre-industrial levels. This
includes:a.

ensuring a GHG emission level in 2030 that is net-negative ascompared to the emissions in 1990;b.

reducing domestic emissions by more than 60% below 1990 levels
by 2030, and to net-zero by 2050, as the domestic component ofa.;c.

preventing and reducing any emissions occurring abroad that are
attributable to the Respondent, in line with the 1.5°C above preindustrial levels limit;d.

permanently removing GHG emissions from the atmosphere andstoring them in safe, ecologically and socially sound GHG sinks, if,
notwithstanding a., b., c., any GHG emissions continue to occur
within the control of the Respondent, or the concentration of GHG
in the atmosphere exceeds the level corresponding to the 1.5°C
above pre-industrial levels limit.

(3)

The Applicants’ right of access to court under Art. 6 ECHR, and theirright to an effective remedy under Art. 13 in conjunction with Arts. 2
and 8 ECHR, have also been violated.

The Applicants also request the Court:(4)

to award just satisfaction and costs and expenses under Art. 41 ECHR, as
per the separate claim submitted by the Applicants.

69

The Applicants further request the Court to order general measures under
Art. 46 ECHR, as follows:(5)

to order the Respondent to adopt the necessary legislative andadministrative framework to do its share to prevent a global temperature
increase of more than 1.5°C above pre-industrial levels,(6)

to specify what this entails, namely:a.

ensuring a GHG emission level in 2030 that is net-negative ascompared to the emissions in 1990;b.

reducing domestic emissions by more than 60% below 1990 levels
by 2030, and to net-zero by 2050, as the domestic component ofa.;c.

preventing and reducing any emissions occurring abroad that are
attributable to the Respondent, in line with the 1.5°C above preindustrial levels limit;d.

permanently removing GHG emissions from the atmosphere andstoring them in safe, ecologically and socially sound GHG sinks, if,
despite a., b., c., any GHG emissions continue to occur within thecontrol of the Respondent, or the concentration of GHG in theatmosphere is exceeding the level corresponding to the 1.5ºC
above pre-industrial levels limit;(7)

to set a binding time-limit for the Respondent to implement such aframework which is adequate in view of (5 and 6) above.

70

Zurich, London and Lausanne, 2 December 2022

Yours faithfully,

Cordelia Christiane Bährlic. iur., LL.M. Public Law (LSE),
Attorney-at-Law

Martin Looser
Attorney-at-Law

Jessica Simor KC

Marc Willers KC

Raphaël Mahaim, Dr. iur.,
Avocat71