Verein KlimaSeniorinnen and others v Switzerland (Application no. 53600/20)
Observations on the Facts / Reply to the Respondent's observations on the facts
Observations on the Law / Reply to the Respondent's observations on the law
Summary
1.

Preliminary comments

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The adverse impacts of climate change are threatening the rights to life andhealth of the Applicants as members of a particularly vulnerable group. It is
the Respondent’s human rights obligation towards the Applicants to takeurgent, meaningful and ambitious action to mitigate climate change, throughpreparing, committing and implementing ambitious climate action plans tolimit global warming to no more than 1.5°C.

2Undoubtedly, the protection of individual human rights is a matter for the
courts. The Convention is designed to protect the rights of all individuals,
including vulnerable persons and groups. The individual human rights of themembers of a vulnerable group, or vulnerable individual applicants, canhardly be effectively protected by democratic means, given that democratic
decisions are made by the majority principle. Furthermore, the Applicants
respectfully submit that the Convention cannot be undermined withreference to democracy.

2.

Summary of the Observations on the Facts

2.1. Complements to the facts presented in the Application and new
developments since the submission of the Application3

It is unequivocal that human influence has warmed the atmosphere, ocean
and land. Some of the hot extremes observed in the past years would havebeen extremely unlikely without anthropogenic disruption of the climate
system, and with every additional increment of global warming the intensityand frequency of heat waves increases, as has recently been confirmed by theIntergovernmental Panel on Climate Change (‘IPCC’) in its recently published
AR6.1

IPCC, Sixth Assessment Report (AR6), Climate Change 2021: The Physical Science Basis,
Summary for Policymakers, A.3.1, available athttps://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_SPM.pdf (last visited
10 October 2021).

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Climate-induced heat waves have caused, are causing and will cause further
deaths and illnesses to older women, as the Applicants are. Recent attribution
studies have found that in Switzerland 30% of heat-related deaths can be
attributed to anthropogenic climate change2 and 2021 studies confirmed thatwomen over 75 years old are the demographic group with the highest risk ofheat-related health damage in Switzerland.3. That heat waves have alreadycaused physical and mental suffering to the Applicants is confirmed again inrecent medical certificates and personal statements. In Switzerland, theaverage temperature has risen twice as much as the global average. Staying
within the 1.5ºC temperature limit would significantly reduce the risk of heatrelated excess mortality and morbidity.

5

Although the Respondent knows about the aforementioned facts, theRespondent does not do its share to prevent a global temperature increase of
more than 1.5°C above pre-industrial levels, which is needed to protect the
Applicants. Recent studies confirm that the Respondent’s climate ambitions
are not in line with the 1.5°C limit. Also, the Respondent failed to set any
binding targets for 2030 and 2050, and it failed to implement and enforce
sufficient measures to meet its 2020 target.

6

To be in line with the 1.5ºC limit, according to recent studies, theRespondent needs to ensure a greenhouse gas emission level in 2030 that is
net-negative in comparison to the emission levels in 1990.4 This entails
achieving a domestic greenhouse gas emission reduction of 61% below 1990
levels by 2030.5 Furthermore, as most of the Respondent’s emissions occur
abroad (consumption based emissions, indirect emissions caused by thefinance sector), the Respondent needs to prevent and reduce such emissions
accordingly.

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, available
at https://doi.org/10.1038/s41558-021-01058-x (doc. 1).
3 RAGETTLI/RÖÖSLI, Hitzebedingte Sterblichkeit im Sommer 2019, Primary and Hospital Care2021;21(03):90-95, 3 March 2021, available at https://doi.org/10.4414/phc-d.2021.10296;
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 October 2021,
available at https://doi.org/10.1016/j.scitotenv.2021.147958.
4 See inter alia RAJAMANI ET AL., National ‘fair shares’ in reducing greenhouse gas emissions within
the principled framework of international environmental law, Climate Policy Volume 21 Issue 8, pp.
983–1004, 7 September 2021, available at https://doi.org/10.1080/14693062.2021.1970504.
5 See Climate Analytics, A 1.5°C compatible Switzerland, 15 June 2021, available athttps://climateanalytics.org/media/final_clean_icci_1406_aligning_switzerlands_2030_emissions_target_with_the_1-5c_paris_agreement_temperature_limit_2.pdf (last visited 12 October 2021).
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2.2. Reply to the Respondent’s arguments

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The Respondent justifies its inadequate level of ambition inter alia with its
alleged “low greenhouse gas intensity”. However, in the global ranking ofcountries, Switzerland ranks 9th in terms of CO2 emissions of consumption
per capita, a ranking that would be even higher if emissions from aviation andindirect emissions from the finance sector were taken into account. The
Respondent further claims that the costs of reducing emissions are high in
Switzerland, yet it has not provided any evidence proving this assertion at any
point. Also, this is no justification for an inadequate level of ambition, and forletting large mitigation potential unused. Switzerland is one of the wealthiest
countries in the world that is and will continue to be particularly affected by
global warming. The potential to reduce greenhouse gas emissions, including
cost-effective mitigation potential, has been severely under-used even in main
sectors like transport, agriculture and finance, and the available measures
were insufficiently enforced.

8

Although the Respondent admits that to combat global warming, it is essential
to base decisions on best scientific knowledge, it is clear from the
Respondent’s Government public communications that the decisions andproposals regarding climate action, particularly regarding emissions reduction
targets, are not based on best scientific knowledge, but on politicalconsiderations. The Respondent asserts regularly that its climate targets, asentailed in its nationally determined contribution (NDC), would put it on anemission pathway in line with the 1.5°C limit. However, the Respondent haseven failed to assess its fair share of the necessary global emissions reductions
following an approach which, if followed by all countries, would make itpossible to stay within the 1.5°C limit.

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Contrary to the Respondent’s assertions, the scientific consensus has clearly
indicated that there is no period of grace to take action to limit global
warming to 1.5°C.6 Because greenhouse gases remain in the atmosphere for along time, emissions must be reduced as quickly as possible. The longer the

IPCC, Special Report: Global Warming of 1.5°C, 2018 (1.5°C SR), p. 61, available athttps://www.ipcc.ch/site/assets/uploads/sites/2/2019/06/SR15_Full_Report_Low_Res.pdf (lastvisited 12 October 2021); UNEP, Emissions Gap Report 2020, 9 December 2020, p. 33 f., available
at https://www.unep.org/emissions-gap-report-2020 (last visited 12 October 2021); IPCC, AR6,
Climate Change 2021: The Physical Science Basis, Chapter 4, Executive Summary, available athttps://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_Chapter_04.pdf (lastvisited 12 October 2021).

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delay in emissions reduction, the larger the likelihood of exceeding the limitof 1.5ºC.7
3.

Summary of the Observations on the Law

3.1. Climate Change in European Court Decisions and International Human
Rights bodies

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In many Member States of the Council of Europe, domestic courts haveestablished the need to implement and enact rapid measures to limit global
warming to 1.5ºC to protect civil rights, constitutional rights, human rights
and the rights of future generations.

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Various international human rights bodies including the Committee on the
Elimination of all forms of Discrimination against Women, the Committee on
Economic, Social, Committee on Economic, Social and Cultural Rights andthe Human Rights Council have recognised that climate change has a wide
range of negative implications for the effective enjoyment of human rights,
including the rights to life and health. It has been recognized that factors suchas gender, age and disability increase people’s vulnerability to climate change,
and therefore, measures to limit climate change should be gender-responsive
and sensitive to the needs and vulnerabilities of older women.

3.2. The Court's question 1: Victim Status
3.2.1. Preliminary comments

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Global warming has clearly significant impacts on human rights. If victim
status were denied to the Applicants as members of a most vulnerable groupdue to their age and gender who are enduring and are increasingly facing
clearly evidenced impacts by excessive greenhouse gas emissions, it isquestionable who would then be entitled to this status. If acts and failures bystates in fighting climate change remain outside the scope of human rights
law, this would be an unacceptable consequence in light of the Court’s
practice in comparable environmental law cases.

3.2.2. Answer to the Court’s question

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The Applicants are direct and potential victims, within the meaning of Art. 34
ECHR as interpreted by the Court, of a violation of Arts. 2 and 8 ECHR due

IPCC, 1.5°C SR (n 6), p. 34.

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to the Respondent's failure to effectively protect them against the effects ofclimate change. The Applicants fully uphold the statements made in the
Application.
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The Court should recognise the Applicant association’s (Applicant 1) victim
status for the following reasons:-

The wording of Art. 34 ECHR is very open and does not containanything that would preclude a group from bringing a claim;-

a flexible interpretation of standing requirements ensures access tojustice;-the term “victim” ought to be interpreted in an “evolutive manner”;-

recourse to collective bodies–such as associations– is one of theaccessible means, sometimes the only means, reasonably available tovulnerable groups to defend their interests effectively (Gorraiz Lizarragaand Others v. Spain);-

the Applicant association enables a particularly vulnerable group to
exercise its rights in the long term, regardless of the natural age-related
retirement of some of its members;-in this case in particular, it is of great importance that not only an
individual applicant but also an association is awarded standing. This isbecause the alleged human rights violations are closely related to theadvanced age of the women concerned. The risk that individual
applicants could die during the proceedings before the Court and that
their application could no longer be heard is therefore high.

The Applicants are also victims in respect of Art. 6 and 13 ECHR, as laid
down in the Application.

3.2.3. Reply to the Respondent’s arguments

Causation is not a precondition for victim status
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The Applicants submit that as long as they make an arguable claim that they
are likely to suffer harm, as they did, the Court should accept the application
as admissible. Considerations related to the causal link between the
Respondent's omissions and the Applicants’ harm should be joined with andexamined on the merits.

5Applicant 1 has victim status
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Contrary to the Respondent's claim, given that the association’s first purpose
is to prevent health hazards caused by dangerous climate change, Applicant 1
is directly affected by the Respondent’s failure to do its share to limit
temperature increase to 1.5ºC. Further, Applicant 1 is a direct victim underthe Association’s second purpose: to defend the interests of its members,
which also have the status of victims as regards to Arts. 2 and 8 ECHR.

Applicants 2-5 are personally and as members of a vulnerable group particularly
affected by the consequences of climate change
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The Applicants submit that contrary to the Respondent’s claims, they are both
personally, and as members of a particularly vulnerable group of older
women, especially affected by the effects of rising temperatures in comparison
with the general public. They have suffered and continue to suffer personallyfrom severe heat-related afflictions, and they were and continue to be at a realand serious risk of mortality and morbidity with every heatwave, because
they are older women.

Applicants are not circumventing Paris Agreement
19

The Respondents' wrongly claimed that the Applicants were attempting tocircumvent the Paris Agreement. The Applicants are asking the Court toassess whether the Respondent’s omission to take effective climate action toprotect the Applicants from climate-induced heatwaves violates theConvention. That the Applicant's Convention rights are violated by the
Respondent's omissions in climate protection would be the case even in
absence of the Paris Agreement. Clearly, the Paris Agreement was notintended to undermine existing human rights obligations.

3.3. The Court's question 2: Applicability and violation of Arts. 2 and 8 ECHR
3.3.1. Answer to the Court’s question

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The Applicants submit that given the real and serious risk of harm posed byclimate induced heatwaves to the Applicants, a risk of which the Respondentis perfectly aware and which can be reduced by the Respondent, Arts. 2 and
8 ECHR are applicable.

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The Applicants further submit that the Respondent has failed to fulfil its
positive obligations under Arts. 2 and 8 ECHR to protect the Applicants fromthe risk of harm posed by climate induced heatwaves, because the6Respondent has not adopted appropriate regulations and implemented themby means of adequate and sufficient measures to do its share to prevent a
global temperature increase of more than 1.5°C above pre-industrial levels.
Besides measures to mitigate emissions occurring within Switzerland, theApplicants are of the view that this requires the Respondent also to preventand reduce emissions occurring abroad that are directly or indirectly
attributable to and within the control of the Respondent.
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Also, the Applicants submit that there is no discretion as to the level ofambition, namely to do the Respondent’s share to stay within the 1.5°C limit.
The Respondent’s margin of appreciation is limited to determining themeasures with which to fulfil its duty to protect, provided they are actually
implemented and are appropriate for achieving the objective.

3.3.2. Reply to the Respondent’s arguments

Causation
23

The Applicants reject the Respondent’s argument that a causal link between
the Respondent’s omissions and the harm caused to the Applicants’ rights has
not been established.

24

First, based on extensive scientific evidence the Applicants have proven thecomplex yet direct causal link between greenhouse gas emissions and harmful
effects on the Applicants’ rights; second, the contribution by multiple states tothe emission of greenhouse gases in the atmosphere does not preclude the
Court from establishing that the Respondent bears responsibility for its part inthis. Partial responsibility arises from partial causation, even if a single Statecannot prevent its outcome on its own. The Court has explicitly rejected the‘but for’ test in the context of the positive obligation to protect in the cases ofE. and Others and O’Keeffe v Ireland and adopts a more flexible notion
between the harm and the State’s omission, such as the "real prospect ofaltering the outcome or mitigating the harm" standard. Hereto, the Applicants
submit that reasonable preventive measures with a real prospect of mitigating
the harm are available but have not been taken by the Respondent.

Legal Nature of Paris Agreement
25

The Applicants submit that contrary to the Respondent’s claim, the legal
nature of the specific provisions of the Paris Agreement is not decisive indetermining the scope of the obligation to protect under Arts. 2 and 8 ECHR.

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All provisions of the Paris Agreement are part of the international law basisthat can be taken into account when determining the scope of the obligation
to protect in terms of Arts. 2 and 8 ECHR.

Compatibility of Switzerland’s commitments with 1.5ºC limit and Convention
rights26

The Respondent's climate strategy has never been and is not planned to be inline with the 1.5°C limit. Particularly, in light of the best available scienceand international environmental law and principles, the Respondent's NDC as
well as its long-term climate strategy fall short of meeting the 1.5ºC limit
necessary to protect the Applicants.

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The Respondent has not shown whether and how it will meet its humanrights obligations, namely to do it’s share to stay within the 1.5°C limit, andcontinues to argue there would still be time to combat climate change,
despite clear scientific evidence to the contrary. The Respondent has also
failed in its procedural obligations, as it has not conducted appropriate surveys
and studies to assess and set a level of climate protection following anapproach which, if followed by all countries, would be capable of staying
within the 1.5°C limit.

3.4. The Court's question 3: Applicability and violation of Art. 6 ECHR

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The Applicants reiterate that Art. 6 ECHR is applicable in the case at hand,
and they did not have an effective legal remedy at their disposal to assert theircivil rights.

29

Contrary to the Respondent’s claim, the Applicant’s application does not fallunder the general ban on 'fourth instance' complaints. The domestic courts
applied the standing requirements arbitrarily, impairing the essence of the
Applicant’s rights under Art. 10 Swiss Constitution and Arts. 2 and 8 ECHR.

3.5. The Court's question 4: Effective remedy within the meaning of Art. 13
ECHR

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The Applicants submit that they did not have an effective remedy at theirdisposal within the meaning of Art. 13 ECHR concerning the alleged
violations of Arts. 2 and 8 ECHR. The Applicant’s complaints were notexamined in substance because the domestic courts applied standing
requirements in an arbitrary manner.

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Contrary to Respondent’s claims, the possibility to make an appeal is notdeemed in itself an effective remedy. Art. 13 ECHR guarantees the availability
at national level of a remedy to enforce the substance of the Convention
rights in whatever form they might happen to be secured in the domestic
legal order. The remedy must be “effective” in practice as well as in law. And
such a remedy must be available as soon as there is an “arguable" complaint
or grievance under the Convention. Given the nature of the complaints madeunder Arts. 2 and 8 ECHR, the Applicants respectfully submit that there issuch an “arguable complaint”, and that the Respondent was accordingly
under an obligation to ensure that the Applicants had access to an effective
remedy.

4.

Requests to the Court

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

All of the Applicants are recognised as having victim status, 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 andprivate 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 greenhouse gas emission level in 2030 that is netnegative as compared to the emissions in 1990;
b. reducing domestic emissions by 61% below 1990 levels by 2030,
and to net-zero by 2050, as the domestic component of a.;c. preventing and reducing any emissions occurring abroad that are
directly or indirectly attributable to the Respondent, in line with the
1.5°C above pre-industrial levels limit;
d. permanently removing greenhouse gas emissions from theatmosphere and storing them in safe, ecologically and socially soundgreenhouse gas sinks, if, despite a., b., c., any greenhouse gas
emissions continue to occur within the control of the Respondent, or
the concentration of greenhouse gases in the atmosphere is9

exceeding the level corresponding to the 1.5ºC 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 Art. 2
and 8 ECHR, have been violated.

Zurich, 13 October 2021
Yours faithfully,

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

Martin Looser
Attorney-at-Law

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