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

Table of contents
1.

Relevant legal framework and practice .................................................. 3

1.1. Relevant domestic and international law (complement to the Respondent's
observations) .......................................................................................... 3
1.1.1. Federal Constitution of the Swiss Confederation of 18 April 1999 .. 3
1.1.2. Federal Act on the Reduction of CO2 Emissions of 23 December
2011 (CO2 Act) ............................................................................ 4
1.1.3. Ordinance on the Reduction of CO2 Emissions of 30 November
2012 (CO2 Ordinance) ................................................................. 7
1.1.4. United Nations Framework Convention on Climate Change(UNFCCC) .................................................................................... 8
1.1.5. Paris Climate Agreement (Paris Agreement) ................................. 10
1.1.6. Draft Articles on Responsibility of States for InternationallyWrongful Acts ............................................................................. 13
1.1.7. Guiding Principles on Shared Responsibility in International Law.. 13
1.1.8. Rio Declaration ........................................................................... 14
1.2. Preparatory work regarding the reduction of greenhouse gas emissions .. 14
1.2.1. Excerpts from the Dispatch on Swiss climate policy after 2012(translated from German original) ................................................ 14
1.2.2. Excerpts from the Dispatch on the total revision of the CO2 Act
after 2020 (translated from German original) ............................... 17
1.2.3. Excerpts from the Dispatch on the counter-proposal the popular
initiative "For a healthy climate (Glacier Initiative)"(translated from German original) ................................................ 21
1.3. Emission reduction targets in the member States of the Council ofEurope ................................................................................................. 22
1.4. Relevant case law in the member States of the Council of Europe .......... 22
1.5. Relevant recommendations by international human rights bodies .......... 25
1.5.1. Climate change threatens human rights ....................................... 25
1.5.2. Protection of those most vulnerable ............................................. 27
1.5.3. State’s responsibility in the face of environmental degradation
caused by third parties ................................................................. 28
2.

The law .............................................................................................29

2.1. Ad Compliance with the time-limit ....................................................... 29
2.2. Question 1: Can the Applicant association (first Applicant) and ApplicantsNos 2 to 5 (natural persons) be considered current or potential victims,
within the meaning of Art. 34 ECHR as interpreted by the Court, of a1

violation of one of the Convention rights invoked in this case due to thefailure of the Swiss authorities to have effectively protected them against
the effects of global warming? In particular, have the Applicants suffered,directly or indirectly and seriously, the alleged consequences of
insufficient action or inaction by the Respondent State? ......................... 29
2.2.1. Answer to the Court's question.................................................... 29
2.2.2. Reply to the Respondent's arguments ........................................... 33
2.3. Question 2: If question no. 1 is answered in the affirmative, has there
been a violation of Arts. 2 and 8 ECHR in this case? .............................. 43
2.3.1. Answer to the Court's question.................................................... 43
2.3.2. Ad V.B.a) and VI.B. Causation ..................................................... 43
2.3.3. Question 2.1: Were these provisions applicable to the case athand? .......................................................................................... 52
2.3.4. Questions 2.2 and 2.3: Has the Respondent State failed to fulfil its
positive obligations to effectively protect life (Art. 2 ECHR) and/or torespect the Applicants' private and family life, including their home(Art. 8 ECHR)? In particular, given its margin of appreciation inenvironmental matters, has the Respondent State fulfilled its
obligations under the Convention guarantees being relied upon here,
read in the light of the relevant provisions and principles, such as theprinciples of precaution and intergenerational equity, which arecontained in international environmental law? In this context, has it
adopted appropriate regulations and implemented them by means ofadequate and sufficient measures to achieve the targets forcombating global warming (see, for example, Tătar v. Romania, no.
67021/01, para. 109 and 120, 27 January 2009, and Greenpeace
E.V. et al. v. Germany (decision), no. 18215/06, 19 May 2009)? 57
2.4. Question 3: Has there been a violation of the right of access to an
impartial tribunal within the meaning of Art. 6 ECHR? .......................... 72
2.4.1. Question 3.1: Is this provision applicable in the civil context?....... 73
2.4.2. Question 3.2: Did the Applicants have effective legal remedies attheir disposal to assert their civil rights (see, for example, NaïtLiman v. Switzerland [GC], no. 51357/07, para. 113,
15 March 2018)? ........................................................................ 76
2.5. Question 4: Did the Applicants have an effective remedy at their disposal
within the meaning of Art. 13 ECHR concerning the alleged violations ofArts. 2 and 8?....................................................................................... 79
2.5.1. Answer to the Court's question.................................................... 79
2.5.2. Reply to the Respondent's arguments ........................................... 79
3.
Conclusion.........................................................................................81
4.
Requests to the Court .........................................................................82
5.
Procedural requests ............................................................................822

1.

Relevant legal framework and practice

1.1. Relevant domestic and international law (complement to the Respondent's
observations)

1

The Respondent submitted an overview of the relevant domestic andinternational law in its observations (section III.A. and III.B.). The Applicants
complement this overview as follows:

1.1.1. Federal Constitution of the Swiss Confederation of 18 April 19991

Art. 141 Fakultatives Referendum (English translation below)
1

Verlangen es 50 000 Stimmberechtigte oder acht Kantone innerhalb von
100 Tagen seit der amtlichen Veröffentlichung des Erlasses, so werden dem
Volk zur Abstimmung vorgelegt:
a. Bundesgesetze;b. dringlich erklärte Bundesgesetze, deren Geltungsdauer ein Jahrübersteigt;
c. Bundesbeschlüsse, soweit Verfassung oder Gesetz dies vorsehen;d. völkerrechtliche Verträge, die:
1. unbefristet und unkündbar sind,
2. den Beitritt zu einer internationalen Organisation vorsehen,
3. wichtige rechtsetzende Bestimmungen enthalten oder deren
Umsetzung den Erlass von Bundesgesetzen erfordert.
2...

Art. 141 Optional referendum (translation by the Swiss Government)
1

If within 100 days of the official publication of the enactment any 50,000
persons eligible to vote or any eight Cantons request it, the following shall be
submitted to a vote of the People:
a. federal acts;
b. emergency federal acts whose term of validity exceeds one year;c. federal decrees, provided the Constitution or an act so requires;d. international treaties that:1

SR 101.

3

1. are of unlimited duration and may not be terminated,
2. provide for accession to an international organisation,
3. contain important legislative provisions or whose implementation
requires the enactment of federal legislation.
2...

1.1.2. Federal Act on the Reduction of CO2 Emissions of 23 December 2011
(CO2 Act)2

Artikel 9 (English translation below)
1

Die Kantone sorgen dafür, dass die CO2-Emissionen aus Gebäuden, die mit
fossilen Energieträgern beheizt werden, zielkonform vermindert werden.
Dafür erlassen sie Gebäudestandards für Neu- und Altbauten aufgrund desaktuellen Stands der Technik.
2

Die Kantone erstatten dem Bund jährlich Bericht über die getroffenen
Massnahmen.
Artikel 10 Grundsatz (English translation below)
1

Die CO2-Emissionen von Personenwagen, die erstmals in Verkehr gesetzt
werden, sind bis Ende 2015 auf durchschnittlich 130 g CO2/km und bis
Ende 2020 auf durchschnittlich 95 g CO2/km zu vermindern.
2

Die CO2-Emissionen von Lieferwagen und Sattelschleppern mit einem
Gesamtgewicht von bis zu 3,50 t (leichte Sattelschlepper), die erstmals in
Verkehr gesetzt werden, sind bis Ende 2020 auf durchschnittlich 147 g
CO2/km zu vermindern.
3

Zu diesem Zweck hat jeder Importeur oder Hersteller von Fahrzeugen nachden Absätzen 1 und 2 (nachfolgend Fahrzeuge) die durchschnittlichen CO2Emissionen der von ihm eingeführten oder in der Schweiz hergestellten
Fahrzeuge, die im jeweiligen Jahr erstmals in Verkehr gesetzt werden, gemässseiner individuellen Zielvorgabe (Art. 11) zu vermindern.
4

Die Zielwerte nach den Absätzen 1 und 2 basieren auf den bisher üblichen
Messmethoden. Bei einer Änderung der Messmethoden legt der Bundesrat inden Ausführungsbestimmungen die Zielwerte fest, welche den Zielwerten2

SR 641.71.

4

nach diesen Absätzen entsprechen. Er bezeichnet die anwendbaren
Messmethoden und berücksichtigt die Regelungen der Europäischen Union
Art. 13 Sanktion bei Überschreiten der individuellen Zielvorgabe (English

translation below)
1Überschreiten die durchschnittlichen CO2-Emissionen der Neuwagenflotteeines Importeurs oder Herstellers die individuelle Zielvorgabe, so muss derHersteller oder Importeur dem Bund pro im jeweiligen Kalenderjahr erstmals
in Verkehr gesetztes Fahrzeug folgende Beträge entrichten:
a. für die Jahre 2017–2018:
1. für das erste Gramm CO2/km über der individuellen Zielvorgabe:
zwischen 5.00 und 8.00 Franken,
2. für das zweite Gramm CO2/km über der individuellen Zielvorgabe:
zwischen 15.00 und 24.00 Franken,
3. für das dritte Gramm CO2/km über der individuellen Zielvorgabe:
zwischen 25.00 und 40.00 Franken,
4. für das vierte und jedes weitere Gramm CO2/km über der
individuellen Zielvorgabe: zwischen 95.00 und 152.00 Franken;
b. ab dem 1. Januar 2019: für jedes Gramm CO2/km über der
individuellen Zielvorgabe: zwischen 95.00 und 152.00 Franken.
Article 9 (translation by Swiss Government)
1

The cantons ensure that the CO2 emissions from buildings that are heatedwith fossil fuels are reduced in compliance with the targets. Accordingly, theyissue building standards for new and older buildings based on the current
state of the art.
2

The cantons submit a report each year to the Confederation on themeasures taken.
Article 10 Principle (translation by Swiss Government)
1

The CO2 emissions from passenger cars that are registered for the first timemust be reduced to an average of 130 g CO2/km by the end of 2015 and toan average of 95 g CO2/km by the end of 2020.

5

2

The CO2 emissions from vans and articulated vehicles with a total weight ofno more than 3.50 t (light articulated vehicles) that are registered for the firsttime must be reduced to an average of 147 g CO2/km by the end of 2020.
3

For this purpose, any importer or manufacturer of vehicles underparagraphs 1 and 2 (referred to below as “vehicles”) must reduce the average
CO2 emissions of the vehicles that it imports into or manufactures in
Switzerland that are registered for the first time in the reference year inaccordance with its individual target (Art. 11).
4

The targets in paragraphs 1 and 2 are based on the current customarymeasurement methods. In the event of a change in the measurement
methods, the Federal Council shall specify in the implementing provisions thetargets that correspond to the targets in these paragraphs. It shall indicate theapplicable measurement methods, taking account of the European Union
regulations.
Article 13 Penalty for exceeding the individual target (translation by Swiss

Government)
1

If the average CO2 emissions from the new vehicle fleet of an importer or
manufacturer exceed the individual target, the manufacturer or the importer
must pay the Confederation the following amounts for each vehicle registered
for the first time in the relevant calendar year:
a. for 2013–2018:
1. for the first gram of CO2/km over the individual target: between
5.00 and 8.00 francs,
2. for the second gram of CO2/km over the individual target: between
15.00 and 24.00 francs,
3. for the third gram of CO2/km over the individual target: between
25.00 and 40.00 francs,
4. for the fourth and every further gram of CO2/km over the individual
target: between 95.00 and 152.00 francs;
b. from 1 January 2019:
for each gram of CO2/km over the individual target between 95.00 and
152.00 francs.

6

(...)
1.1.3. Ordinance on the Reduction of CO2 Emissions of 30 November 2012 (CO2
Ordinance)3

Artikel 17b Anwendbare Prüf- und Korrelationsverfahren und Zielwerte nach
Artikel 10 Absätze 1 und 2 des CO2-Gesetzes (English translation below)
1 Für die Bestimmung der Zielwerte nach Artikel 10 Absätze 1 und 2 des
CO2-Gesetzes werden folgende Prüf- und Korrelationsverfahren angewendet:a. das weltweit harmonisierte Prüfverfahren für leichte Nutzfahrzeuge
gemäss Anhang XXI der Verordnung (EU) 2017/1151 (WLTP);
b. die Prüf- und Korrelationsverfahren gemäss Anhang I derDurchführungsverordnung (EU) 2017/1152;
c. die Prüf- und Korrelationsverfahren gemäss Anhang I derDurchführungsverordnung 2017/1153.
2 In Anwendung der Prüf- und Korrelationsverfahren nach Absatz 1
entsprechen die folgenden Zielwerte jenen nach Artikel 10 Absätze 1 und 2
des CO2-Gesetzes:a. für Personenwagen: 118 Gramm CO2/km;
b. für Lieferwagen und leichte Sattelschlepper: 186 Gramm CO2/km.
Article 17b Applicable test and correlation procedures and target values inaccordance with Article 10 paragraphs 1 and 2 of the CO2 Act (translation by

Swiss Government)
1 The following test and correlation procedures are used to determine thetarget values under Article 10 paragraphs 1 and 2 of the CO2 Act:a. the worldwide harmonised test procedure for light-duty vehicles inaccordance with Annex XXI of Regulation (EU) 2017/1151 (WLTP);b. the test and correlation procedures in accordance with Annex I of
Implementing Regulation (EU) 2017/1152;
c. the test and correlation procedures in accordance with Annex I of
Implementing Regulation 2017/1153.

3

SR 641.711.

7

2 Pursuant to the test and correlation procedures in accordance withparagraph 1, the following target values correspond to those under Article 10
paragraphs 1 and 2 of the CO2 Act:a. for cars: 118 grams CO2/km;
b. for vans and light articulated vehicles: 186 grams CO2/km.
1.1.4. United Nations Framework Convention on Climate Change (UNFCCC)4

Preamble
The Parties to this Convention
Acknowledging that change in the Earth's climate and its adverse effects are acommon concern of humankind,Concerned that human activities have been substantially increasing theatmospheric concentrations of greenhouse gases, that these increases enhance
the natural greenhouse effect, and that this will result on average in an
additional warming of the Earth's surface and atmosphere and may adversely
affect natural ecosystems and humankind,(…)
Acknowledging that the global nature of climate change calls for the widest
possible cooperation by all countries and their participation in an effective andappropriate international response, in accordance with their common but
differentiated responsibilities and respective capabilities and their social andeconomic conditions,(…)
Recalling also that States have, in accordance with the Charter of the United
Nations and the principles of international law, the sovereign right to exploit
their own resources pursuant to their own environmental and developmental
policies, and the responsibility to ensure that activities within theirjurisdiction or control do not cause damage to the environment of otherStates or of areas beyond the limits of national jurisdiction,(…)
Affirming that responses to climate change should be coordinated with socialand economic development in an integrated manner with a view to avoiding

4

SR 0.814.01.

8

adverse impacts on the latter, taking into full account the legitimate priority
needs of developing countries for the achievement of sustained economic
growth and the eradication of poverty,(…)
Art. 1
Definitions
For the purposes of this Convention:
1. "Adverse effects of climate change" means changes in the physicalenvironment or biota resulting from climate change which have significant
deleterious effects on the composition, resilience or productivity of naturaland managed ecosystems or on the operation of socio-economic systems or onhuman health and welfare.
(…)
Art. 4
1. All Parties, taking into account their common but differentiatedresponsibilities and their specific national and regional development priorities,
objectives and circumstances, shall:(…)(f) Take climate change considerations into account, to the extent feasible, in
their relevant social, economic and environmental policies and actions, andemploy appropriate methods, for example impact assessments, formulated
and determined nationally, with a view to minimizing adverse effects on theeconomy, on public health and on the quality of the environment, of projects
or measures undertaken by them to mitigate or adapt to climate change;(…)
7. The extent to which developing country Parties will effectively implement
their commitments under the Convention will depend on the effective
implementation by developed country Parties of their commitments under theConvention related to financial resources and transfer of technology and willtake fully into account that economic and social development and poverty

9

eradication are the first and overriding priorities of the developing country
Parties.
(…)
1.1.5. Paris Climate Agreement (Paris Agreement)5

Preamble
The Parties to this Agreement,(…)
Recognizing the need for an effective and progressive response to the urgent
threat of climate change on the basis of the best available scientificknowledge,
Also recognizing the specific needs and special circumstances of developing
country Parties, especially those that are particularly vulnerable to the adverse
effects of climate change, as provided for in the Convention,
Taking full account of the specific needs and special situations of the least
developed countries with regard to funding and transfer of technology,(…)
Emphasizing the intrinsic relationship that climate change actions, responses
and impacts have with equitable access to sustainable development anderadication of poverty,(…)
Acknowledging that climate change is a common concern of humankind,
Parties should, when taking action to address climate change, respect,promote and consider their respective obligations on human rights, the rightto health, the rights of indigenous peoples, local communities, migrants,
children, persons with disabilities and people in vulnerable situations and theright to development, as well as gender equality, empowerment of womenand intergenerational equity,(…)

5

SR 0.814.012.

10

Art. 4(…)
4. Developed country Parties should continue taking the lead by undertaking
economy-wide absolute emission reduction targets. Developing country
Parties should continue enhancing their mitigation efforts, and areencouraged to move over time towards economy-wide emission reduction orlimitation targets in the light of different national circumstances.
(…)

Art. 6
1. Parties recognize that some Parties choose to pursue voluntary cooperationin the implementation of their nationally determined contributions to allow
for higher ambition in their mitigation and adaptation actions and to promotesustainable development and environmental integrity.
2. Parties shall, where engaging on a voluntary basis in cooperative
approaches that involve the use of internationally transferred mitigation
outcomes towards nationally determined contributions, promote sustainable
development and ensure environmental integrity and transparency, including
in governance, and shall apply robust accounting to ensure, inter alia, theavoidance of double counting, consistent with guidance adopted by the
Conference of the Parties serving as the meeting of the Parties to thisAgreement.
3. The use of internationally transferred mitigation outcomes to achieve
nationally determined contributions under this Agreement shall be voluntary
and authorized by participating Parties.
4. A mechanism to contribute to the mitigation of greenhouse gas emissions
and support sustainable development is hereby established under theauthority and guidance of the Conference of the Parties serving as themeeting of the Parties to this Agreement for use by Parties on a voluntarybasis. It shall be supervised by a body designated by the Conference of theParties serving as the meeting of the Parties to this Agreement, and shall aim:(a) To promote the mitigation of greenhouse gas emissions while fostering
sustainable development;

11

(b) To incentivize and facilitate participation in the mitigation ofgreenhouse gas emissions by public and private entities authorized by a
Party;(c) To contribute to the reduction of emission levels in the host Party,
which will benefit from mitigation activities resulting in emission
reductions that can also be used by another Party to fulfil its nationallydetermined contribution; and(d) To deliver an overall mitigation in global emissions.
5. Emission reductions resulting from the mechanism referred to in paragraph
4 of this Article shall not be used to demonstrate achievement of the host
Party's nationally determined contribution if used by another Party todemonstrate achievement of its nationally determined contribution.
6. The Conference of the Parties serving as the meeting of the Parties to thisAgreement shall ensure that a share of the proceeds from activities under themechanism referred to in paragraph 4 of this Article is used to coveradministrative expenses as well as to assist developing country Parties that are
particularly vulnerable to the adverse effects of climate change to meet thecosts of adaptation.
7. The Conference of the Parties serving as the meeting of the Parties to thisAgreement shall adopt rules, modalities and procedures for the mechanism
referred to in paragraph 4 of this Article at its first session.
8. Parties recognize the importance of integrated, holistic and balanced nonmarket approaches being available to Parties to assist in the implementation of
their nationally determined contributions, in the context of sustainable
development and poverty eradication, in a coordinated and effective manner,
including through, inter alia, mitigation, adaptation, finance, technology
transfer and capacity-building, as appropriate. These approaches shall aim to:(a) Promote mitigation and adaptation ambition;(b) Enhance public and private sector participation in the implementationof nationally determined contributions; and(c) Enable opportunities for coordination across instruments and relevant
institutional arrangements.

129. A framework for non-market approaches to sustainable development ishereby defined to promote the non-market approaches referred to inparagraph 8 of this Article.
Art. 8
1. Parties recognize the importance of averting, minimizing and addressing
loss and damage associated with the adverse effects of climate change,
including extreme weather events and slow onset events, and the role ofsustainable development in reducing the risk of loss and damage.
(…)
1.1.6. Draft Articles on Responsibility of States for Internationally Wrongful Acts6

Article 2 Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct consisting ofan action or omission:(a) is attributable to the State under international law; and(b) constitutes a breach of an international obligation of the State.
1.1.7. Guiding Principles on Shared Responsibility in International Law7

Principle 4
Shared responsibility arising from multiple internationally wrongful acts
International persons share responsibility for multiple internationally wrongfulacts when each of them engages in separate conduct consisting of an action oromission that:a) is attributable to each of them separately; andb) constitutes a breach of an international obligation for each of thoseinternational persons; andc) contributes to the indivisible injury of another person.

International Law Commission, Draft Articles on Responsibility of States for InternationallyWrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp. IV.E.1.
7 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.
613

1.1.8. Rio Declaration8

Principle 3
The right to development must be fulfilled so as to equitably meetdevelopmental and environmental needs of present and future generations.
Principle 6
The special situation and needs of developing countries, particularly the least
developed and those most environmentally vulnerable, shall be given special
priority. International actions in the field of environment and development
should also address the interests and needs of all countries.
Principle 15
In order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. Where there arethreats of serious or irreversible damage, lack of full scientific certainty shallnot be used as a reason for postponing cost-effective measures to prevent
environmental degradation.
1.2. Preparatory work regarding the reduction of greenhouse gas emissions
1.2.1. Excerpts from the Dispatch on Swiss climate policy after 2012 (translated

from German original)9“1.5 Need for action

The United Nations Climate Convention of 1992 commits the international
community to stabilise greenhouse gas concentrations in the atmosphere at alevel that would prevent dangerous anthropogenic interference with theclimate system. This convention forms the cornerstone of international
climate policy and has so far been ratified by 192 states.
The fourth report of the IPCC shows that the atmospheric greenhouse gas
concentration must be stabilised at a level of 445-490ppm CO2eq in order toprevent dangerous climate change. In this way, it should be possible to limit
the increase in global average temperature to between 2° and 2.4° C
compared to pre-industrial times. In order to achieve this goal, global

89

Rio Declaration on Environment and Development, August 1992, A/CONF.151/26, vol. I.
BBl 2009 7433.

14greenhouse gas emissions must be reduced from 5.8 tonnes today to a
maximum of 1-1.5 tonnes of CO2eq per capita, depending on population
development. Such a target requires a reduction of global greenhouse gas
emissions by at least 50 to 85 per cent by 2050 and, in relation to theemissions of industrialised countries, a reduction of 80 per cent to 95 per centcompared to 1990. Accordingly, the industrialised countries should reduce
their emissions by 25 to 40% by 2020 compared to 1990. Emerging anddeveloping countries, for their part, should significantly decouple theiremissions path from the current trend. In order to prevent emissions-intensive
production from simply being shifted to countries with less stringent climate
protection requirements, all major emitters must be included in theinternational climate protection agreement after 2012.
However, the latest scientific findings, published after the fourth report of the
IPCC show that climate change is occurring faster than previously assumed.
For this reason, the stabilisation of atmospheric greenhouse gas
concentrations at a lower level of 400 ppm CO2eq24 should be aimed for. To
achieve this goal, global greenhouse gas emissions would have to reach theirmaximum by 2015 and be reduced by more than 85% by 2050. The
reduction of the industrialised countries would have to be at least 40% by
2020 and at least 95% by 2050. These strong reduction paths are necessary
because the greenhouse gas concentration in the atmosphere can only beeffectively reduced when more greenhouse gases are absorbed by the natural
system (oceans, forests, soils, etc.) than are emitted into the atmosphere byhuman activities.
(…)
4.1.1 Reduction target by 2020
In setting future reduction targets for Switzerland, the Federal Council relieson the scientific findings of the IPCC and the principle of common but
differentiated responsibility in international negotiations (cf. section 1.5). The
objective is also based on the EC, Switzerland's largest and most important
trading partner.
From 2013, all greenhouse gases relevant to the international climate regime
after 2012 are to be included. For the year 2020, a reduction in total
greenhouse gas emissions of at least minus 20% compared to 1990 is

15

targeted. Based on the achievement of the Kyoto commitment of minus 8%compared to 1990, an indicative, linear reduction path between 2010 and2020 can be derived. This reduction path serves as a guideline for the Federal
Council when adapting and introducing measures under this Act. It may set
interim targets for this purpose.
To achieve the target, the buildings, industry and transport sectors are tocontribute to a comparable extent and reduce their emissions by around 25%.
The three sectors must contribute more than minus 20%, since for the time
being no binding emission-reducing government instruments are envisaged
for the remaining greenhouse gases and their emissions are expected to be
reduced by only about 5.4% by 2020. The technical reduction potential in
agriculture is assessed as low according to the latest model calculations and isassociated with high costs (cf. para. 1.7.3).
This reduction target applies regardless of the outcome of the international
negotiations on the post-2012 climate regime. Switzerland thus supports the
position of the EU, which has committed itself to reducing greenhouse gas
emissions by minus 20% by 2020 compared to 1990, regardless of thedecision of other countries.
If Switzerland wants to fulfil the mandate of the Climate Convention,
emissions must be continuously reduced to such an extent that per capita
emissions will only amount to 1-1.5 tonnes CO2eq at the end of the century.
However, the targeted reduction path, which leads to a reduction of minus
20% in 2020, is not sufficient to achieve this long-term goal. Efforts would
have to be massively intensified after 2020. Because greenhouse gases remainin the atmosphere for a long time, emissions should be reduced as quickly as
possible. According to the IPCC, global greenhouse gas emissions should havereached their maximum by 2015 at the latest, so that the global temperature
increase can be stabilised at a safe level. A more ambitious reduction target
can be justified on the basis of the need for climate policy action, but above
all, from a global perspective, it makes sense if the larger emitters commit
themselves to comparable emission efforts. In this case, the Federal Council
wants to increase Switzerland's reduction target to minus 30% by 2020
compared to 1990 (see section 4.5).”

16

1.2.2. Excerpts from the Dispatch on the total revision of the CO2 Act after
202010 (translated from German original)“1.1.1 Scientific context
The Intergovernmental Panel on Climate Change (IPCC), established in 1988
to summarise the state of research on climate change and its possible
consequences for the environment, society and the economy, states in its
Fifth Assessment Report from 2014 that the warming of the climate system isclearly demonstrable and the influence of humans is clear. If greenhouse gas
emissions continue, the planet will continue to warm, increasing the
likelihood of severe, widespread and irreversible impacts from tipping points.
Tipping points are irreversible environmental phenomena that lead tofeedback effects. They cause changes in the Earth's climate system and theireffects are unpredictable.
The 1992 United Nations Framework Convention on Climate Change(UNFCCC) aims to stabilise greenhouse gas concentrations in the atmosphereat a level that would prevent dangerous interference with the climate system.
The critical threshold above which unmanageable impacts and even tipping
effects could occur is considered to be a global temperature increase ofsignificantly less than 2 degrees Celsius compared to pre-industrial levels. In
2012, the Conference of the Parties to the UNFCCC gave the mandate to
examine whether the 2-degree target meets the requirement of preventing adangerous disruption of the climate system. The Structured Expert Dialogue
initiated by the UNFCCC showed that global warming of 2 degrees Celsius
entails considerable risks for humans and ecosystems, and that a limit of lessthan 1.5 degrees Celsius offers considerably more assurance. At present,
global greenhouse gas emissions are developing along a path that leads toglobal warming of 3 to 4 degrees Celsius, which would result in almost twice
as much temperature increase for Switzerland due to its geographicallocation.
With a so-called budget approach, it can be measured how much CO2eq the
global community may still emit in order not to exceed a certain level ofwarming. Each warming limit is thus linked to a certain CO2eq budget. Twothirds of the budget to meet the 2-degree target has already been used up. It
is therefore also crucial that global greenhouse gas emissions reach their10

BBl 2018 247.

17

maximum as soon as possible and then decline massively and rapidly. Due tothe longevity of carbon dioxide (CO2) - the most significant greenhouse gas in the atmosphere (100-200 years), emissions must be stabilised at net zero in
the second half of this century, so that greenhouse gas emissions are offset bycorresponding sink services. In addition to reducing emissions, this CO2
neutrality requires, among other things, the development of storage
technologies for carbon capture and storage.
In 1996, the consultative body on climate change (Organe consultatif sur leChangement Climatique, OcCC) was established in Switzerland. The
mandate was renewed and refocused in 2013 and 2017: away from theprovision of scientific foundations towards the early identification of newthematic areas relevant to the shaping of future climate policy. In its strategic
recommendations of 15 December 2015, the OcCC emphasises theimportance of a societal discourse to ensure that the necessary transformationof the economic and social system succeeds. Because the climate problem
permeates all levels of society, it must be communicated in a comprehensible
and solution-oriented manner. Spatial planning and transport policy are areasthat have so far received little attention and require a great deal of action. The
aim should be a consistent financial burden on CO2 emissions. A consistentclimate impact assessment is recommended for infrastructure andconstruction projects.

1.3.1 Reduction target by 2030
Switzerland's future reduction targets are based on the findings of science (cf.
Section 1.1.1) and the international objective set out in the Paris Agreement
to limit the increase in average global temperature to well below 2 degrees
Celsius and, if possible, below 1.5 degrees Celsius above pre-industrial levels.
The level of the overall target of 50% by 2030 and the average target of 35%
were approved by Parliament when it approved the Paris Agreement. Bothminority motions with a higher overall target and those with a lower one
were discussed and rejected.
In the consultation process, almost 80% of the participants were in favour ofthe proposed overall target or a stricter one, while 20% called for a lower
overall target. The domestic target of minus 30% by 2030 compared to 1990
and the associated average target of minus 25% were also supported by the18majority in the consultation: 40% of the participants were in favour of ahigher domestic target, 20% agreed with the proposal. 36% wanted to dowithout a statutory domestic target. The remaining participants called for alower, but still mandatory domestic target.
The Federal Council considers a domestic target of at least 30% to beappropriate in view of the Paris Agreement's goal of reducing emissions to net
zero by the second half of this century and the obligation to take measures athome to achieve this and to continuously increase reduction efforts. Without
a quantified target, an important anchor point for the design of the individual
measures is missing, especially in the case of subsidiary instruments such as
the CO2 levy, CO2 limits for buildings or the CO2 compensation obligation.
Compared to the current CO2 law, which requires a reduction of domestic
greenhouse gas emissions by 20% below 1990 levels by 2020, the proposed
target implies a much lower rate of 1% per year compared to the current
reduction path. Some flattening is justified by rising marginal abatement costs
and the time needed to account for investment cycles. If the target of minus
20% by 2020 is missed, the missing reduction performance would have to bemade up domestically by 2030 (cf. Section 1.1.3). This is possible with theproposed mix of measures.
A less pronounced decline in domestic emissions shifts the reduction
requirement into the future. In addition, the willingness of other countries totransfer emission reductions is likely to be limited with increasingly ambitious
targets. Furthermore, raising the foreign share would mean that the importersof fossil fuels, who are assigned the emission reduction abroad as part of thecompensation obligation, would have to compensate for over 100% of theCO2 emissions from transport. Alternatively, other sectors (e.g. industry)
could be obliged to make emission reductions abroad. Alternatively, theConfederation could provide the corresponding financial resources - either
from the general federal budget or through a partial earmarking of the CO2
levy; the former is not opportune in view of the strained situation of federal
finances and the latter is not compatible with the Federal Council's efforts todesign the CO2 levy as a pure incentive tax and to abolish the partial
earmarking in the medium term.
The objective is also oriented towards the EU, Switzerland's most important
trading partner. Despite this proximity to Europe, however, the starting19

position is different. In contrast to the EU, Switzerland produces hardly any
fossil-based electricity and has a significantly smaller share of emissionsintensive industry. In the EU, on the other hand, there is still great potential
for cost-effective CO2 reduction in these areas. On the other hand,
Switzerland has a high proportion of grey emissions in an international
comparison. For this reason, it seems appropriate to set the overall target
higher than the EU (minus 50% compared to minus 40% in the EU), but incontrast to the EU, to allow additional measures abroad.
In the EU, the overall reduction target is allocated to the individual member
states according to their economic strength (per capita income) and reduction
potential (so-called burden sharing or effort sharing). According to the
proposal of the European Commission, countries that are structurallycomparable to Switzerland, such as Sweden (40%), Denmark (39%), Finland(39%) and Germany (38%), must reduce their emissions more strongly by2030 compared to 2005. The service-oriented economy of Luxembourg mustalso contribute a high reduction of 40%.
5.1 Constitutionality
The constitutional basis for the totally revised CO2 Act is provided by Articles
74 (environmental protection) and 89 (energy policy) of the Federal
Constitution (FC). Article 74 of the Federal Constitution obliges theConfederation to enact regulations on the protection of man and his naturalenvironment from harmful or nuisance effects. Article 89 paragraph 3 of theFederal Constitution obliges the Confederation in particular to issue
regulations on the energy consumption of installations, vehicles andequipment. In doing so, it must promote the development of energy
technologies, particularly in the areas of energy conservation and renewableenergies.
(…)”

20

1.2.3. Excerpts from the Dispatch on the counter-proposal the popular initiative"For a healthy climate (Glacier Initiative)"11 (translated from German

original)“2.1 Political context(…)

According to Article 4(1) of the Climate Convention, limiting global warming
to 1.5 degrees Celsius requires that global greenhouse gas emissions be offset
by appropriate sinks by the second half of the century. The principle of equity
and the best available scientific knowledge are to be taken into account.
At the climate conference in Paris at the end of 2015, the international
community commissioned the Intergovernmental Panel on Climate Change(IPCC) to examine the significance of limiting global warming to 1.5 degrees
Celsius compared to pre-industrial times. The special report, published in
October 2018, makes it clear that the balanced emissions of net zero must be
achieved much earlier, i.e. for CO2 emissions worldwide as early as around
2050, with a simultaneous rapid reduction in other greenhouse gas emissions
such as methane, nitrous oxide and various synthetic gases. According to thisreport, the global CO2 emissions path must be net negative by the end of the
century in most of the cases examined. This means that, at the end of theday, permanent CO2 removals from the atmosphere (negative emissions, cf.
2.3.2) must be greater than CO2 emissions. Based on these findings, theFederal Council decided on 28 August 2019 to reduce Switzerland's
greenhouse gas emissions to net zero by 2050. Together with the targets for2030, Switzerland has also officially submitted this target to the international
climate negotiations (UNFCCC).
(…)
6.6.2 Compatibility of the direct counter-proposal with Switzerland'sinternational obligations
The Federal Council's direct counter-proposal to the Glacier Initiative iscompatible with all of Switzerland's international commitments.

11

BBl 2021 1972.

21

With the net zero target by 2050, Switzerland is making its contribution tolimiting global warming below the critical threshold of 1.5 degrees andfulfilling the climate policy mandate of the Paris Climate Agreement.
(…)
6.5.3 Impacts on the national economy
The reduction of emissions to net zero by 2050 requires that investments are
already geared towards this goal today. If the renewal cycles are usedconsistently to replace plants, vehicles and heating systems with lower-CO2
technologies, operating costs can be saved in many cases and expensive
misinvestments can be avoided. Various renewable alternatives are alreadycompetitive today, for example in the area of electromobility or heatgeneration.
(…)
Overall, the longer-term benefits of consistent climate protection measuresexceed the necessary investments as well as the economic impacts - very
likely already in the middle of the century, but certainly in the long term.”
1.3. Emission reduction targets in the member States of the Council of Europe

2

The most up-to-date overview of the emission reduction targets in themember States of the Council of Europe, including an assessment in the lightof the 1.5°C limit, is provided for by the Climate Action Tracker.12

1.4. Relevant case law in the member States of the Council of Europe

3

Domestic courts of the Council of Europe Member States have recognised theneed to implement and enact rapid measures to limit warming to 1.5ºC or
below by 2030, inter alia based on civil, constitutional and human rights
obligations and to protect the rights of future generations.13

4

Domestic courts in the Council of State Member States have recognised thevictim status of individuals and organisations to bring claims based on
constitutional or human rights violations due to climate change. The German

See Climate Action Tracker, available at https://climateactiontracker.org/.
Dutch Supreme Court, Urgenda v. The Netherlands, ECLI:NL:HR:2019:2007, 20 Dec. 2019, § 2.1;
Paris Administrative Court, Association Oxfam France et al. v. France, 3 Feb. 2021; Brussels Court ofFirst Instance, ABSL Klimatzaak v. Belgium, 2015/4585/A, 17 June 2021; German Federal
Constitutional Court, Neubauer and others v. Germany, 1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20,
1 BvR 288/20, 1, 29 Apr. 2021.

12
13

22

Constitutional Court recognised the standing of eight young individuals tocontest Germany’s climate policy;14 apex courts in Norway and theNetherlands allowed for the organisational plaintiffs to plead violations ofArts. 2 and 8 ECHR in climate cases;15 and the French Conseil d’État granted
standing to a municipality.16 The first instance court of Brussels recognized
the standing of an NGO plaintiff (considering the protected role ofenvironmental NGOs under the Aarhus Convention particularly) and of
individual plaintiffs.17
5

There is also a recognition by domestic courts that greenhouse gas (GHG)
emissions will most likely exceed the limit of 1.5ºC in the next few years if
current levels of emissions are maintained or exceeded, and that harms are
already occurring now at current levels of warming. Courts have recognisedthat future harms are certain due to the irrevocable and multiplying effects ofhistorical and current GHG emissions. For example, the Administrative
Supreme Court of France held that, even if the most severe consequences ofclimate change shall not manifest before 2030 or 2040, due to theirinevitability there is an urgent need to act without delay.18 The Irish Supreme
Court similarly stated that the consequences of failing to address climatechange are “very severe with potential significant risks both to life andhealth”.19

6

Domestic courts have also found governments in breach of their domestic
human rights obligations as interpreted in light of Arts. 2 and 8 ECHR
because of inadequate climate policy or inadequate implementation of climate
policy. The Supreme Court of the Netherlands held that the State had positive
obligations to reduce GHG emissions because climate change poses a “realand immediate risk”, and that “[t]he fact that this risk will only be able tomaterialise a few decades from now and that it will not impact specificpersons or a specific group of persons but large parts of the population does
not mean – contrary to the State's assertions – that Arts. 2 and 8 ECHR offer
no protection from this threat.20 The German Constitutional Court,

Neubauer (n 13), §§ 96-112.
Supreme Court of Norway, Nature and Youth Norway and others v. Norway, HR-2020-2472-P;
Urgenda (n 13).
16 Conseil d’État, Grande Synthe v. France, no. 427301, 1 Jan. 2021.
17 ABSL Klimatzaak (n 13), p. 46-52.
18 Association Oxfam France et al. (n 13), § 3.1.
19 Irish Supreme Court, Friends of the Irish Environment v. Ireland, 31 Jul. 2020, § 3.6.
20 Urgenda (n 13), §§ 5.2.2 and 5.6.2.
14
15

23

considering the freedoms of future generations, ordered the government toreconsider its targets and clarify its emission reduction targets from 2031
onwards by the end of 2022.21
7

Domestic courts have further emphasised that measures should prioritise
near-term action over uncertain and unproven negative emissions
technologies. The Dutch Supreme Court rejected the State’s reliance on
drastic measures to remove GHGs 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 theConvention.22 The German Constitutional Tribunal similarly ruled that theGerman State cannot delay action as it would transfer a disproportionate
mitigation burden onto future generations.23 It also held that the German
State cannot rely on negative emissions technologies, as their large-scale
deployment is not yet certain.24 Two apex courts in France have rejected thenotion 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 toimplement the drastic GHG cuts needed if climate action is delayed.25 The
Supreme Court of Ireland decided that the country’s mitigation plan was too
reliant on unproven technologies.26

8

There is also increased judicial recognition that developed countries have agreater role in preventing dangerous climate change. In its application of Arts.
2 and 8, the Dutch Supreme Court rejected the argument that because all
States are jointly responsible for climate change, no individual State can beheld 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

Neubauer (n 13), §§ 99, 151, 184.
Urgenda (n 13), § 7.2.5.
23 Neubauer (n 13), §§ 144 and 182.
21
22
24

Ibid., § 227.

Association Oxfam France et al. (n 13); Paris Administrative Court, Association Notre Affaire à Tous
and Others, 3 Feb. 2021, § 33; Grande-Synthe (n 16), § 15.
26 Friends of the Irish Environment (n 19), §§ 6.18, 6.46, 6.47.
25

24

its part and can therefore be called to account in that respect”, in line with“what is adopted in national and international practice in the event of
unlawful acts that give rise to only part of the cause of the damage”.27 The
German Constitutional court also held that Germany must reduce its share ofemissions and enhance international cooperation by adopting adequate
national measures.28 Further, as stated by the German Constitutional Court,
States cannot use emissions reductions achieved in other jurisdictions to“offset” large-scale inaction in their required domestic emission reductions.29
1.5. Relevant recommendations by international human rights bodies
1.5.1. Climate change threatens human rights

9

In the Joint Statement on Climate Change and Human Rights, the Committee
on the Elimination of all forms of Discrimination against Women (CEDAW),
the Committee on Economic, Social and Cultural Rights (CESCR) and theCommittee on the Rights of Persons with Disabilities – among others(together, “the Committees”)–,30 welcomed the IPCC findings, recognisingthat the adverse impacts of climate change were threatening a wide range ofhuman rights, including the rights to life, health and cultural rights.31 This has
also been recognised by the Human Rights Council on several occasions,emphasizing climate change’s wide range of implications for the effective
enjoyment of human rights, including the rights to life, health, housing andself-determination.32

10

According to the UN Special Rapporteur on human rights and theenvironment, even at current levels of warming – i.e. 1.2ºC33 – climate

Urgenda (n 13), §§ 5.7.5 and 5.7.6.
Neubauer (n 13), §§ 149, 202-204.
29 Ibid., § 226.
27
28

OHCHR, Joint statement by five UN human rights treaty bodies on human rights and climate change,
16 Sep. 2019, UN Doc. HRI/2019/1,
https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24998&LangID=E,§ 7.
31 Ibid., § 3.
32 Human Rights Council, Resolution 35 entitled “Human rights and climate change", 19 Jun. 2017,
UN Doc. A/HRC/35/L.32; Human Rights Council, Report of the Special Rapporteur on the issue ofhuman rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable
environment, 1 Feb. 2016, UN Doc. A/HRC/31/52, paras. 9 and 23; Human Rights Council, Reportof the OHCHR on the relationship between climate change and human rights, 15 Jan. 2009, UN Doc.
A/HRC/10/61, paras. 18 and 24; Human Rights Council, Analytical study of the relationship between
human rights and the environment, Report of the United Nations High Commissioner for Human
Rights, 16 Dec. 2001, UN Doc. A/HRC/19/34, para. 7.
33 World Meteorological Organization (WMO), State of the Global Climate 2020, WMO-No. 1264,
20 Apr. 2021, p. 6; see also National Oceanic and Atmospheric Administration, 2020 was Earth’s
Second Hottest year, just behind 2016, 14 Jan. 2021, available at30

25

change impacts on human rights are not only visible but significant, andfactors such as gender, age and disability increase people’s vulnerability to
climate change.34 These vulnerabilities “intersect to amplify the impacts” ofclimate change.35 International bodies have recognized that climate change
affects women in a disproportionate way as they experience greater risks andimpacts on their health and safety and therefore have encouraged states toconfront these vulnerabilities based on the principles of equality and nondiscrimination.36
11

Other international treaty bodies37 and the Council of Europe Commissioner
for Human Rights38 have also recognised the link between human rights andclimate change. Council of Europe members have all committed in principle
to the protection of human rights that are inextricably linked with the right toa healthy environment, which is considered to include a right to a safe andstable climate.39 On 29 September 2021, the Parliamentary Assembly held anall-day debate on the recognition of the human right to a healthy

https://www.noaa.gov/news/2020-was-earth-s-2nd-hottest-year-just-behind-2016 (last visited on
11 October 2021).
34 UN Special Rapporteur on human rights and the environment, Safe climate, 15 Jun. 2019, UN Doc.
A/74/161, paras. 1, 6-11, 45.
35 Third party intervention by the UN Special Rapporteur on Human Rights and the Environment
and UN Special Rapporteur on Toxics and Human Rights in Agostinho and others v. Portugal and 32
other States, no. 39371/20, 5 May 2021.
36 Inter-American Court of Human Rights, Advisory Opinion OC-23/17, (ser. A) No. 23, 15 Nov.
2017, para. 67; OAS General Assembly, Resolution entitled “Human Rights and Climate Change in
the Americas,” AG/RES. 2429 (XXXVIIIO/08), 3 Jun. 2008.
37 Joint statement (n 30); see also Human Rights Committee, General Comment No. 36 on Article 6of the ICCPR, on the right to life”, 30 Oct. 2018; Committee on the Elimination of Discrimination
against Women, General Recommendation No. 37 on Gender-related dimensions of disaster risk
reduction in the context of climate change, 7 Feb. 2018; Committee on the Rights of the Child,
General comment No. 15 on the right of the child to the enjoyment of the highest attainable standardof health (Art. 24), 17 Apr. 2013; Committee on Economic, Social and Cultural Rights, General
Comment No. 15 on the right to water (Arts. 11 and 12), 20 Jan. 2003,
https://www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/HumanRightsMechanisms.aspx.
38 Third party intervention by the Council of Europe Commissioner for Human Rights in Agostinho
and others v. Portugal and 32 other States, no. 39371/20, 5 May 2021,
https://rm.coe.int/third-party-intervention-by-the-council-of-europe-commissioner-forhum/1680a26105.
39 UN Special Rapporteur on human rights and the environment, Human rights obligations relating to
the enjoyment of a safe, clean, healthy and sustainable environment, 19 Jul. 2018, UN Doc.
1/73/188, para. 59,
https://documents-ddsny.un.org/doc/UNDOC/GEN/N18/231/04/PDF/N1823104.pdf?OpenElement; Statement by UN
High Commissioner for Human Rights, Human Rights for the Planet – high-level international
conference on human rights and environmental protection, 5 Oct. 2020,
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26343&LangID=E.

26

environment, and unanimously adopted a Resolution recommending thedrafting of a new protocol to the ECHR recognizing this right.40
1.5.2. Protection of those most vulnerable

12

In the Joint Statement on Climate Change and Human Rights, theCommittees determined that States’ current commitments under the Paris
Agreement are insufficient to limit global warming to 1.5°C, and that many
States are not on track to meeting even these insufficient goals. To avoid therisk of irreversible and large-scale impacts, the Committees emphasized theneed for urgent and decisive climate action in line with the best available
science41 and human rights. To comply with this, special attention must be
paid to the protection of the rights of those most vulnerable to the adverse
effects of climate change.42

13

The CEDAW has pointed out, for example, that older women may facediscriminatory restrictions that impede their participation in political anddecision-making processes, such as having their participation in associations to
advocate for their rights limited.43 In light of these considerations, the
CEDAW has emphasised that climate-change reduction measures should be
gender-responsive and sensitive to the needs and vulnerabilities of older
women.44 It urged States to train and sensitise their judiciary, publicauthorities and institutions on the rights of older women and the interactionof gender and age, so effective remedies and reparation are equally available
and accessible to older women with disabilities.45 Moreover, it determinedthat States “should enable older women to seek redress for and resolve
infringements of their rights and ensure that older women are not deprived of
their legal capacity on arbitrary or discriminatory grounds.”46

Council of Europe Parliamentary Assembly, Anchoring the right to a healthy environment: needfor enhanced action by the Council of Europe, Provisional Version, Resolution 2396, 29 Sep. 2021.
41 Committee on Economic, Social and Cultural Rights, General comment No. 25 on science andeconomic, social and cultural rights (Article 15 (1) (b), (2), (3) and (4)), para. 86.
42 Office of the UN High Commissioner for Human Rights, Submission of the Office of the HighCommissioner for Human Rights to the 21st Conference of the Parties to the UNFCCC, December
2015; Joint Statement (n 30), paras. 6 and 26; Human Rights Committeee, General Comment No. 36(n 37) para. 62.
43 Committee on the Elimination of Discrimination Against Women, General recommendation No. 27
on older women and protection of their human rights, 16 Dec. 2010, CEDAW/C/GC/27, para. 25.
44 Ibid. para. 35.
45 Ibid. para. 33.
46 Ibid. para. 34.
40

27

14

In the United Nations Principles for Older Persons, the United Nations
General Assembly acknowledged that older persons should be able to live insafe environments that are adaptable to their personal preferences andchanging capacities.47

15Art. 6 of the International Covenant on Civil and Political Rights has beeninterpreted to include the right to a decent existence,48 including the right toa good quality of life, a life with dignity and a right to health in the context ofclimate change.49

16

According to the UNGA Resolution on Older Persons, the exercise of thisright by older people entails an ability to remain integrated into society.50
Where older people are unable to integrate into society due to heat-waveinduced climate change, States are required to take steps to prevent andaddress the impacts of climate change.51

1.5.3. State’s responsibility in the face of environmental degradation caused bythird parties

17

In the Inter-American Court of Human Rights (IACtHR)’s Advisory Opinion
on the Environment and Human Rights,52 the IACtHR held that a State’s
responsibility also arises in the face of environmental degradation caused bythird parties, like corporations, that are operating or are registered in that
State’s territory or under its effective control.53 This obligation requires States
to take appropriate measures to prevent, investigate, punish and redress suchabuse by third parties through effective policies, legislation, regulations andadjudication.54

UN Principles for Older Persons, adopted by General Assembly resolution 46/91 of 16 Dec. 1991
(Older Persons UNGA Resolution), Art. 5.
48 Inter-American Court of Human Rights, Xakmok Kasek Indigenous Community Case v. Paraguay,
24 Aug. 2010, paras. 183-187.
49 Human Rights Committee, General Comment No. 36 (n 37).
50 Older Persons UNGA Resolution (n 47) Art 7.
51 Ibid. Art 16.
52 Inter-American Court of Human Rights, Advisory Opinion OC-23/17 (n 36).
53 Ibid. paras. 153-155.
54 Ibid. paras. 141-174.
47

28

2.

The law

2.1. Ad Compliance with the time-limit

18

The Respondent claims that the Applicants did not comply with the six-monthdeadline (para. 26 ff.). The Applicants submit that they complied with thetime limit granted by the Court due to the COVID-19 pandemic.55

2.2. Question 1: Can the Applicant association (first Applicant) and ApplicantsNos 2 to 5 (natural persons) be considered current or potential victims,
within the meaning of Art. 34 ECHR as interpreted by the Court, of aviolation of one of the Convention rights invoked in this case due to thefailure of the Swiss authorities to have effectively protected them against
the effects of global warming? In particular, have the Applicants suffered,directly or indirectly and seriously, the alleged consequences of insufficientaction or inaction by the Respondent State?
2.2.1. Answer to the Court's question

19

The Applicants submitted in the Application (Additional Submission,
hereinafter “AS”, section 2.1) that they can be considered direct (AS para. 33
and 35 f.) and potential (AS para. 34) victims, within the meaning of Art. 34
ECHR as interpreted by the Court, of a violation of Arts. 2 and 8 ECHR due
to the Respondent's failure to effectively protect them against the effects ofglobal warming. The Applicants recall the statements made in the
Application.

20

The Applicants submit that at this stage (the Court's question 1), the extent
and nature of the alleged omissions are not yet established. However, in theirview, only if the scope of the Respondent's obligation to protect in terms of
Article 2 and 8 and the Respondent's deviation from that obligation isestablished (see the Court's questions 2.2 and 2.3), i.e. a wrongful omission,56
is it possible to assess whether a person is directly affected by this wrongfulomission. Against this background, the Applicant submit that Question 1
should be joined to and examined together with the merits of the case.57

21

Generally, to be considered a victim, the applicant must be able to show thatthey were “directly affected by the impugned measures”, which theApplication submitted on 26 November 2020 within the deadline established by the Court as partof the exceptional COVID-19 pandemic measures. See: https://www.coe.int/en/web/portal//coronavirus-exceptional-measures-at-the-european-court-of-human-rights.
56 Cf. customary rules of public international law on the responsibility of States for internationallywrongful acts.
57 For a similar approach see Siliadin v. France, no. 73316/01, § 63; Hirsi Jamaa and Others v. Italy[GC], no. 27765/09, § 111.
55

29

Applicants submit that they are.58 The Court has held, as submitted in the
Application, that the term “victim” ought to be interpreted in an “evolutive
manner”59 and not applied in a rigid, mechanical, or inflexible way.60 To thatregard, the Applicants reiterate: If they, as members of a most vulnerable
group, were denied victim status, it is questionable who would then be
entitled to this status in connection with the imminently diffuse and complex
phenomenon of global warming, which clearly has significant impacts onhuman rights. As a result, acts and failures by states in fighting climate change
would remain outside the scope of human rights law – an inacceptableconsequence in the light of the Court's practice in comparable environmental
law cases.
2.2.1.1. Applicant association (first Applicant's) victim status in respect of Arts.
2 and 8 ECHR

22

The Applicants submitted in the Application that there are several reasons
why the Court should recognise the Applicant association's (first Applicant’s)
standing. The Applicants fully uphold the statements made in the Application(AS para. 33 and 35 f.) and offer the following as additional support.

23

Generally, the wording of Art. 34 ECHR is very open; 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,61 which is "any person, nongovernmental organisation or group ofindividuals claiming to be the victim of a violation by one of the HighContracting Parties of the rights set forth in the Convention." A flexible
interpretation of standing requirements ensures access to justice.

24

As expressed in the Application (AS footnote 62), in Gorraiz Lizarraga andOthers v. Spain, the Court considered the Coordinadora de Itoiz association
to have victim status, noting that:“like the other provisions of the Convention, the term 'victim' in Art. 34
ECHR must also be interpreted in an evolutive manner in the light ofconditions in contemporary society. And indeed, in modern-day societies,Tănase v. Moldova [GC], no. 7/08, § 104; Burden v. the United Kingdom [GC], no. 13378/05,§ 33.
59 Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 38. See also Thirdparty intervention by
the Council of Europe Commissioner for Human Rights (n 38) §§ 38, 45-48.
60 Micallef v. Malta [GC], no. 17056/06, § 45; Karner v. Austria, no. 40016/98, § 25; Aksu v. Turkey[GC], nos. 4149/04 and 41029/04, § 51.
61 Gorraiz Lizarraga (n 59), § 35.
58

30

when citizens are confronted with particularly complex administrativedecisions, recourse to collective bodies such as associations is one of theaccessible means, sometimes the only means, available to them whereby they
can defend their particular interests effectively. Moreover, the standing of
associations to bring legal proceedings in defence of their members' interests
is recognised by the legislation of most European countries. That is precisely
the situation that obtained in the present case. The Court cannot disregard
that fact when interpreting the concept of “victim”. Any other, excessively
formalistic, interpretation of that concept would make protection of the rights
guaranteed by the Convention ineffectual and illusory.”62
25

Similar to the association in Gorraiz Lizarraga and Others v. Spain,63
Applicant 1 was set up for the specific purpose of defending its
members' interests before the courts (Application doc. 2 section 3). Its
members, as part of a most vulnerable group, are directly concerned by the
Respondent's omissions regarding climate protection (Observations on the
Facts, hereinafter "OF", sections 2.5 and 2.6; AS sections 1.1. and 1.2).

26

Applicant 1 enables a particularly vulnerable group to exercise its rights in thelong term, regardless of the natural age-related retirement of some of its
members. The exact membership of the 1st Applicant may change, but thevulnerability of its members will always continue to exist, and their particularinterests will continue to be defended by the association, as long as it exists.
This is of particular importance since the average age of the members ofApplicant 1 is currently 73 years, and 648 of its 1,956 members are 75 years
old or older (Application doc. 3, updated). Since the beginning of theproceedings in 2016, 33 members of Applicant 1 have become deceased, as
well as Applicant 2. Applicant 1’s nature as an association existing
independently of its members is key to its effective advocacy of the particularinterest of the members of a vulnerable group. Allowing Applicant 1 to claim
victim status means ensuring that particular groups 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. As established by the
Court in Nencheva and Others v. Bulgaria, in the interest of justice and togenuinely protect individual rights and freedoms, exceptional measures may

62
63

Ibid. § 38.
Ibid. § 39.

31

be taken to ensure the public participation and representation of victims who
are not in a position to defend themselves.64
27

Further, Applicant 1 offers many of its members the only viable way to defend
their rights effectively. The present case is complex, without any precedents,
and therefore associated with a large expenditure of time and costs. The
Applicants refer here to their request for just satisfaction, costs and expenses.
Applicant 1 submits that bringing a standalone case of this dimension throughthe domestic courts in Switzerland before approaching the European Court of
Human Rights would have been prohibitively expensive for most individuals.
The significant costs would have deterred the members of Applicant 1 fromseeking legal redress, were it not for Applicant 1’s ability to pool resources.
For the Court to refuse to grant Applicant 1 victim status would be to impose
a particular burden on those who have the courage to bring a case of suchcomplexity and novelty. Applicants 2–5 would not have been able to bringthe case through the domestic courts and to submit an Application to the
Court if Applicant 1 would not have led the case and taken over all of thecosts. Besides that, Applicant 1 can bring in many more resources in terms ofexpertise and litigation experience than any individual can muster on their
own.

28

Also, the Respondent is preventing Applicant 1 from furthering its purpose,
which is to defend the interests of its members in particular by taking legal
action (Application doc. 2 section 3).65

29

Not surprisingly, environmental groups, which have played an increasingly
significant role in climate litigation in recent years,66 have been more
successful than individual plaintiffs in bringing environmental cases. In
Switzerland, the ratio of successes to losses in cases brought by environmentalgroups is nearly three times higher than for cases brought by private
individuals.67

30

It is worth mentioning that not every case that is brought by a group is anactio popularis. Applicants may be victims within the meaning of the

64
65

Nencheva and Others v. Bulgaria, no. 48609/06, § 93.
Rossi v. Italy, no. 55185/08, “The applicant associations”.

SETZER/BYRNES, Global Trends in Climate Change Litigation, 2019 Snapshot, 4 Jul. 2019;
SETZER/BYRNES, Global Trends in Climate Change Litigation, 2020 Snapshot, 3 Jul. 2020.
67 TANQUEREL ET AL., Droit de recours des organisations écologistes - Statistiques actualisées (2008)
relatives aux recours de droit administratif et aux recours en matière de droit public (55 LPE/12
LPN/14 LCPR), Octobre 2008.
66

32

Convention even if their interests align with the interests of the generalpublic.
2.2.1.2. Applicants Nos 2 to 5 (natural persons)'s victim status in respect of Art. 2
and 8 ECHR

31

The Applicants fully uphold the statements made regarding the Applicants’victim status in respect of Art. 2 and 8 ECHR in the Application, AS
section 2.1.

32

To complement the statements presented in the Application (AS para. 33 andthe relating facts in section 2.1), the Applicants submitted new evidence on
their personal suffering from heat-related afflictions (OF section 2.6) and on
the fact that they were, are and will increasingly continue to be, at a real andserious risk of mortality and morbidity greater than that of the general
population (OF section 2.5).

2.2.1.3. Applicants' victim status in respect of Arts. 6 and 13 ECHR

33

The Applicants fully uphold the statements made regarding the Applicants’victim status in respect of Art. 6 and 13 ECHR in the Application, AS section
2.2.

2.2.2. Reply to the Respondent's arguments
2.2.2.1. Ad V.A. Overview of the relevant principles

34

The Respondent's citations only represent a partial account of the Court’s caselaw. For the cases and decision points which the Applicants consider as
relevant to the present case, they refer in full to their Application(Application, AS section 2).

2.2.2.2. Ad V.B.a) Causation not a precondition for victim status

35

The Respondent argues that the Applicants did not establish a "causal link"
between the alleged omissions of Switzerland and the interference with therights guaranteed by Arts. 2 and 8 ECHR (para. 39).

36

The Applicants submit that as long as they make an arguable claim that they
are likely to suffer harm, as they did (see OF sections 2.5 and 2.6 and AS
sections 1.1, 1.2 and 1.5), the Court should accept the application as
admissible. All other considerations, particularly the question of a causal link
between the Respondent's omissions and the Applicants’ harm, should be33

joined with and examined on the merits.68 Accordingly, the Applicants
provide their reply on the question of causality below, section 2.3.2.
37

As stated in the Application (AS para. 38 with further references) there is asufficient close connection between the Applicants’ harm on the one hand
and the Respondent's impugned conduct on the other hand. The existence ofan increased risk of mortality and the health problems for the Applicantsduring heatwaves is based on scientific evidence and is therefore foreseeable
and severe or irreversible in its effect.

2.2.2.3. Ad V.B.b) Applicant association (first Applicant's) victim status in respectof Arts. 2 and 8 ECHR

38

The Respondent states that the domestic courts left open the question ofwhether Applicant 1 has the right to submit the request to DETEC andsubsequently had the right of appeal (para. 42).

39

The Applicants submit that the domestic courts left the question open notbecause there was doubt about Applicant 1’s standing but because there wereindividual plaintiffs and thus – in terms of procedural economy("Verfahrensökonomie") no need to examine this question (see for Federal
Administrative Court Application doc. 17 section 1.2 and for Federal Supreme
Court Application doc. 19 section 1). The Federal Supreme Court held in thisregard that the recognition of the individual applicants' standing made it
unnecessary to consider the standing of the first Applicant under domestic
rules on the ‘egoistische Verbandsbeschwerde’ (i.e. an appeal brought by anassociation in its own name but in the interests of its members), but it did not
make any findings to the effect that Applicant 1 lacked standing (Application
doc. 19 section 1). In any event, this does not alter the fact that Applicant 1
was indeed a party to the domestic proceedings, as documented in therespective first pages of the domestic decisions.

40

The Respondent further states that the decision of the Federal Supreme Court
would not prevent Applicant 1 from working towards achieving its objectives(para. 45). However, to reiterate the argument in the Application (ASpara. 35), given that the association’s purpose is to prevent health hazards

In cases where questions on the merits are at the very heart of the admissibility issues, these are
examined joined to the merits, see Pálic v. Bosnia and Herzegovina, no. 4704/04, § 59; Denisov v.
Ukraine [GC], no. 76639/11, § 93; Studio Monitori and Others v. Georgia, nos. 44920/09 and8942/10, § 32 regarding Art. 10 ECHR.

68

34

caused by dangerous climate change, Applicant 1 is directly affected by the
Respondent’s failure to do its share to limit GHG emissions to at most 1.5°C
of warming. Further, Applicant 1 is a direct victim under the Association’s
second purpose: to defend the interests of its members; here, the Applicantsrefer to the above said (section 2.2.1.1). Contrary to the Respondent's claim(para. 44), the members of Applicant 1 do have the status of victims as
regards Arts. 2 and 8 ECHR (see above section 2.2.1.2 with further
references, and the following considerations in section 2.2.2.4).
2.2.2.4. Ad V.B.c) Applicants Nos 2 to 5 (natural persons)'s victim status inrespect of Arts. 2 and 8 ECHR

41

The Respondent alleges that the question before the Federal Supreme Court
was not whether the Respondent sufficiently protected the Applicants fromglobal warming to this day, but concerned its failure to take additional
preventive measures (para. 48).

42

The Applicants submit that the Respondent does not provide any source forthis claim, and that this claim is also incorrect. Indeed, the Applicants claimed
in the domestic proceedings that they had not been sufficiently protected by
the Respondent due to the ongoing failure to take the necessary measures toreduce GHG emissions in line with the overall target to prevent a dangerous
anthropogenic interference with the climate system (see Application doc. 14
and herein the request for legal remedy and e.g. section 4.3.6).

43

As the Respondent correctly submits (para. 48), the Applicants did not claim
financial compensation in the domestic proceedings. However, the Applicantspoint out that this question is irrelevant in terms of victim status. Correctly,
the Respondent did not claim that the domestic remedies had not been
exhausted.69 Finally, the references that the Respondent has provided (paras133-134 of the Respondent’s submission) relate to the applicability of Art. 6
ECHR, and not to victim status.

44

Clearly, financial compensation cannot be an effective remedy against the riskof heat-related mortality as well as the future impairments of the Applicants’
health, as it does not lead to the elimination of the unlawful situation or the69

Cf. Di Sarno and Others v. Italy, no. 30765/08, § 87.

35

risks to the Applicants.70 With regard to past and current impairments of the
Applicants’ health and well-being, which have accelerated in the course of theproceedings since 2016, the Applicants submit in their request for justsatisfaction (Art. 41 ECHR) that compensation for non-pecuniary damage
regarding their mental or physical suffering be awarded.
45

It is worth mentioning that there is no legal obligation to claim compensation
under Swiss law. On the contrary: as stated in the 2016 request (Application
doc. 14 para. 206), according to Swiss legal doctrine, a person affected by areal act may indeed even be required to submit a request for a ruling under
Art. 25a APA in order to not be held responsible in later state liability
proceedings for not complying with his or her duty to limit damages.71

46

The Respondent further claims that the Applicants, as well as the overall
demographic of women over the age of 75, are not the only population groupaffected by the effects of climate change, but that climate change (also) affects(other) humans, animals, and plants (para. 51).

47

Indeed, climate change, including rising temperatures, is "the biggest threat tosecurity that modern humans have ever faced."72 The Applicants submit,
however, that they are both personally, and as members of the particularly
vulnerable group of women aged above 75, especially affected by the effectsof rising temperatures in comparison with the general public. In contrast to

the rest of the general population,-

they have suffered and continue to suffer personally from severe heatrelated afflictions (AS para. 33, paras. 7-11 and docs. 4, 5 6 and 7; OF
section 2.6);-

they were and continue to be at a real and serious risk of mortality andmorbidity with every heatwave, i.e. a severe risk of premature loss oflife and severe impairment of health and quality of life because they are
women above the age of 75, whereas the risk to Applicants 4 and 5 is

KELLER/CIRIGLIANO, Grundrechtliche Ansprüche an den Service Public: Am Beispiel deritalienischen Abfallkrise [Basic legal requirements for the Service Public: the example of the Italianwaste crisis], URP 2012, p. 831-853, 844; Di Sarno and Others (n 69) § 87.
71 KIENER/RÜTSCHE/KUHN, Öffentliches Verfahrensrecht [Public procedural law], 2nd edition 2015,
N 436.
72 Sir David Attenborough in his address to the UN Security Council on 23 February 2021, available
at https://www.gov.uk/government/speeches/pm-boris-johnsons-address-to-the-un-securitycouncil-on-climate-and- security-23-february-2021.
70

36

even higher due to their respiratory illnesses (AS para. 33 and paras. 4 f.
and 12 f.; OF section 2.5).
48

These are facts, and clearly evidenced by medical certificates, scientific andepidemiological data, as provided for in the Application and the OF. The
objectivity of these facts cannot be called into doubt. In view of the thousandsof deaths globally that can already be attributed to global warming today (OFpara. 26), and the hundreds of deaths to mourn during every heatwave in
Switzerland, as the Respondent Government (particularly the Federal Officefor the Environment FOEN) itself recognizes (AS para. 2), the Respondent's
statement that the Applicants were asserting some "subjective sensitivities"(para. 51) seems rather cynical. Respondent has not demonstrated that it
takes the threat caused by climate change to older women seriously.

49

Art. 8 ECHR also applies to situations where mental well-being is at stake,73
and where an individual’s well-being may be negatively impacted by unsafe or
disruptive environmental conditions.74 If many people are negatively impacted
in their mental well-being during climate-change induced heatwaves, as the
Respondent states (para. 51), that does not mean that there is no impact atall. Quite the opposite: it indicates that the negative impact of heatwaves onmental well-being is indeed an objective fact, and must be all the moresignificant for the Applicants, who are particularly vulnerable due to theirpersonal affliction and because they belong, due to their age and gender, to aparticularly vulnerable group. It is worth mentioning that the Court hasrecognised the reality of intersecting vulnerabilities in the context of
discrimination.75

50

Overall, the Applicants submit that the evidence before the Court shows thatclimate change-induced heatwaves make those exposed to it, like Applicants
2-5, more vulnerable in terms of life and health. The Applicants submit that,to evaluate the risk of climate change-induced heatwaves, epidemiological
data, scientific evidence and medical certificates must be taken into accountinstead of spatial proximity in order to do justice to the special features of the

See e.g. V.C. v. Slovakia, no. 18968/07, § 106.
Cordella and Others v. Italy, no. 54414/13, § 157-160.
75 See Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15; S.A.S. v. France [GC],no. 43835/11; B.S. v. Spain, no. 47159/08.
73
74

37

phenomenon of climate change, where no spatial proximity can exist fromthe outset.76
51

The Respondent goes on to question the medical certificates submitted by the
Applicants 2 and 3 (para. 52 and 53). The Applicants submit that it is beyond
reasonable doubt that the risk posed by climate change induced-heatwaves tothe particularly vulnerable group of older women, which the Respondent
Government acknowledges (OF para. 99, AS para. 2-4), also materializes inindividual cases. In such a case, the burden of 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 the Applicants 2 and 3.77
As additional support, the Applicants submitted new medical certificates andfurther personal statements with the Observations on the Facts (see OF
section 2.6 and accompanying documents).

52

Furthermore, the Respondent repeatedly asserts that the health impairments
claimed were not the result of its alleged omissions and inadequate actions(para. 52-54, 59). The Applicants provide their reply on the question of
causality between the Respondent’s conduct and the harms suffered by the
Applicants below, section 2.3.2.

53

On the Respondent's incorrect submission that there is still time for the
Respondent to act to combat dangerous climate change (para. 55 and 57), theApplicants refer to their Observations on the Facts (OF section 3.3.9) and totheir Application (AS para. 47).

54

In terms of potential victimhood (the Respondent, para. 56), extensive
scientific evidence shows beyond doubt that there is more than “meresuspicion or conjecture”, but rather “reasonable and convincing evidence ofCf. mutatis mutandis Cordella and Others (n 74), §§ 104-107. See also the arguments put forwardby Third Party Interveners in the Agostinho case regarding the uniqueness of climate change and its
impact on the Court’s approach to jurisdiction, admissibility, the vulnerability of certain groups andother questions. Interveners argued the unique nature of climate change called for the Court toadjust its approach to environmental cases, as these “unique issues of transboundary harm andcommon concern [have] not previously come before the Court", see third party intervention by the
ETO Consortium in Agostinho and Others (n 35), §§ 2 and 14). These facts are well summarised by
the Council of Europe Commissioner on Human Rights: “The Commissioner is of the opinion thatthe extraordinary nature of climate change, and the resulting human rights challenges, create a needto adapt the protection offered by the Convention. In particular, a state’s failure to take concretemeasures to prevent the adverse effects of climate change raises an issue under several rights
guaranteed by the Convention”, see third party intervention by the Council of Europe Commissioner
for Human Rights (n 38), §§ 39 and 43). See also: Third party intervention by the UN Special
Rapporteur (n 35), §§ 8 and 13; Third party intervention by Save the Children, in Agostinho andOthers (n 35), § 28.
77 Cf. Grimkovskaya v. Ukraine, no. 38182/03, § 59 and 61.
76

38

the likelihood" that a violation affecting the Applicants personally will occur.78
As laid down in the OF, the intensity and frequency of heatwaves increases
with every additional increment of global warming (OF section 2.4) and it isbeyond doubt that climate change-induced heatwaves have caused, arecausing and will cause further deaths and illnesses to older women like theApplicants (OF section 2.4). Also, it is sufficient that an applicant is
specifically likely to be affected by the impugned act/measure; or that themeasure potentially affects everyone.79
55

The Respondent further alleges that the argument that elderly women die
from heatwaves or suffer illness related to heatwaves would concern a certain
section of the population, but not themselves as individuals (para. 60). First, it
should be noted that the Respondent does not contest that elderly women die
from heatwaves or suffer illness related to heatwaves. Applicants reiterate thatthey have suffered and continue to suffer personally from severe heat-related
afflictions (AS para. 33 and paras. 7-11, docs. 4–13; OF section 2.6); in
addition to that, they were and continue to be at a real and serious risk ofmortality and morbidity with every heatwave, because they are, due to theirage and gender, members of a particularly vulnerable group80 (AS para. 33,
paras. 4 f. and 12 f.; OF section 2.5).

56

The Respondent claims that the Applicants requested general and abstract andnot individual measures (para. 60). Since the prevention of climate change
concerns individuals and the public at large, it is not possible to distinguishbetween "individual" and "abstract" measures. The best way to protect, fulfill
and respect the Applicants’ rights is for the Respondent to do its share to limit
global warming to 1.5°C, which would also benefit the general public.
However, the Applicants must not be denied victim status simply because ageneral public interest co-exists with their particular interest (see AS para.
39).

Senator Lines GMBH v. Austria, no. 56672/00, pp. 11-12.
Mustafa Sezgin Tanrıkulu v. Turkey, no. 27473/06, § 45; Zakharov v. Russia, no. 47143/06, §171; Kennedy v. the United Kingdom, no. 26839/05, §§ 124 and 128; Parrillo v. Italy, no.
46470/11, §§ 117-119; Dudgeon v. the United Kingdom, no. 7525/76; Soering v. the United
Kingdom, no. 14038/88; Klass and Others v. Germany, no. 5029/71.
80 Bursa Barosu Başkanlığı and Others v. Turkey, no. 25680/05, § 128; Di Sarno and Others (n 69),
§ 81; Tâtar v. Romania, no. 67021/01, § 24; Aksu v. Turkey [GC], no. 4149/04, §§ 50, 53-54;
L’Erablière A.S.B.L. v. Belgium, no. 49230/07; Micallef v. Malta [GC], no. 17056/06, § 45; Karner
v. Austria, no. 40016/98, § 25; Gorraiz Lizarraga (n 59), § 38.
78
79

39

57

The Respondent concludes that "[r]ecognising them (the Applicant 2-5) as
direct or potential victims in this case would in fact mean that it would bevery difficult, if not impossible, in future to deny anyone the right, at any
time, to obtain judicial review of the measures taken to combat global
warming" (para. 61). The Applicants submit that, first, they provided
extensive evidence proving that they face a real and serious risk of mortality
and morbidity with every heatwave, a risk that has partially alreadymaterialized in the past, and therefore are more affected than the general
population. They are not just "anyone". Second, the Applicants submit that itis still in the Respondent’s margin of appreciation to determine the measureswith which to fulfil its duty to protect. The impugned conduct concerns the
Respondent’s failure to do its share to stay within the 1.5°C limit (see AS
para. 58). Third, global warming has clearly significant impacts on humanrights. If victim status were denied to Applicants 2-5, as members of a mostvulnerable group due to their age and gender facing clearly evidenced
impacts, it is questionable who would then be entitled to this status. If actsand failures by states in fighting climate change remain outside the scope ofhuman rights law, this would be an unacceptable consequence in light of the
Court’s practice in comparable environmental law cases.

2.2.2.5. Ad V.C. the Respondent's Conclusion

58

The Respondent claims that the Applicants would attempt to "circumvent theParis Agreement by seeking to construct an international judicial review ofthe measures adopted by Switzerland to limit greenhouse gases" (para. 6567), and that the Paris Agreement is purposefully set up not to have any
binding mechanism for monitoring the commitments of the States (para. 66).

59

The character of the Paris Agreement does not prevent the Respondent fromhaving independent human rights obligations under the Convention.
Applicants have never requested for this Court to monitor the Respondent’s
commitments under the Paris Agreement. Instead, the Applicants ask the
Court to assess whether the Respondent’s failure to protect them fromclimate-induced heatwaves violates the Convention. Furthermore, theinterpretation of Preamble 11 of the Paris Agreement, read in light of theParis Agreement as a whole81 and in light of customary human rights law,

81

Especially Paris Agreement Arts, 2, 3, 4.1 and 4.3.

40

indicates that the parties are indeed expected to take human rights
implications into consideration when deciding the level of ambition of theircontributions to the global response to climate change.82 Thus, the Paris
Agreement intends to strengthen and not weaken human rights, as the
Respondent asserts.
60

Also, the Applicant's Convention rights are violated by the Respondent's
omissions in climate protection, and that would be the case even in absenceof the Paris Agreement. The Paris Agreement is one of the factors determining
the scope of the Respondent's obligation to protect in terms of theConvention, besides inter alia the precautionary principle, best available
science, evolving norms of national and international law and consensus
emerging from specialised international instruments and from the practice of
the Contracting States (see AS para. 56 with further references and below
para. 123).

61

Furthermore, the Applicants claim that human rights protection goes beyond
the Paris Agreement. The scientific consensus on the impacts of climatechange shows that, to protect the Applicants’ rights effectively, theRespondent must, at a minimum, do its share to prevent a global temperature
increase of more than 1.5°C above pre-industrial level (see below section
2.3.4.1).

62

Lastly, as all the parties to the Paris Agreement belong to at least one humanrights treaty, "they must ensure that all of their actions comply with their
human rights obligations. That includes their actions relating to climatechange."83 Against that background, Preamble 11 of the Paris Agreement
explicitly refers to the need for States to “respect, promote and consider theirrespective obligations on human rights” when “taking action to address
climate change" (emphasis added). The preambular language of the Paris
Agreement regarding human rights refers to existing human rights obligations
that parties have entered into previously. Clearly, the Paris Agreement was
not intended to be the only applicable legal basis in the field of climate

CARAZO in: KLEIN/CARAZO/DOELLE/BULMER/HIGHAM (eds.), The Paris Agreement on Climate
Change, Analysis and Commentary, Oxford 2017, p. 116 with further references.
83 OHCHR, COP21: "States' human rights obligations encompass climate change" – UN expert, 3
Dec. 2015, available athttps://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?Newsid=16836&Langid=E (lastvisited on 11 October 2021).
82

41

change84 or to abolish existing human rights obligations. Instead, climate
action must be carried out at the national level in a manner that is coherent
with existing obligations related to human rights. Against that background,judicial review of human rights violations in the context of climate change is
not against "the clearly expressed will of states," as the Respondent alleges.
63

Overall, it is not about compliance with the Paris Agreement, but compliancewith the Convention obligations, interpreted in terms of its scope in light ofenvironmental standards and principles as well as existing and evolving
international law, consensus and best available science (see AS para. 56),
which all indicate that the Respondent has to do its share to prevent a global
temperature increase of more than 1.5°C above pre-industrial levels as aminimum to protect the Applicants effectively. As noted below, theConvention does not exist in a legal vacuum, but must be interpreted in lightof the other international law obligations of the Member States.85

64

In its NDC, the Respondent Government expressly acknowledges:"Switzerland recognizes the need for an effective and progressive response to
the urgent threat of climate change, in line with the best available scientificknowledge. Switzerland fully subscribes to the view that Parties should, when
taking action to address climate change, respect, promote, and consider theirrespective human rights obligations, including due consideration for genderequality and gender sensitive policies, intergenerational equity, and the needsof particularly vulnerable groups"86 (emphasis added).

65

It is worth mentioning that the UN Human Rights Council made thefollowing recommendation for States and other stakeholders in a recent study

on the promotion and protection of the rights of older persons in the context
of climate change, without relying on the Paris Agreement:"Take urgent, meaningful and ambitious action to mitigate and adapt toclimate change that protects the human rights of all, including the human
Conference of the Parties, Report of the Conference of the Parties on its twenty-first session, heldin Paris from 30 November to 13 December 2015, FCCC/CP/2015/10/Add.1, 29 Jan. 2016,preambular para. 11.
85 Al-Dulimi and Montana Management Inc. v. Switzerland (GC), no. 5809/08, §§ 134-136; NaïtLiman v. Switzerland (GC), no. 51357/07, § 174.
86 Switzerland's information necessary for clarity, transparency and understanding in accordancewith decision 1/CP.21 of its updated and enhanced Nationally Determined Contribution (NDC)
under the Paris Agreement (221-2030; hereinafter "Updated NDC", p. 6, available athttps://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Switzerland%20First/Switzerland_Full%20NDC%20Communication%202021-2030%20incl%20ICTU.pdf (last visited on 11 October2021).
8442

rights of older persons, through the following actions: (a) Prepare, commit toand implement ambitious climate action plans to limit global warming to no
more than 1.5°C, including by taking immediate action to reduce
dependency on fossil fuels, and to address the negative human rights impacts
that are already occurring (…)"87 (emphasis added).
2.3. Question 2: If question no. 1 is answered in the affirmative, has there beena violation of Arts. 2 and 8 ECHR in this case?
2.3.1. Answer to the Court's question

66

The Applicants submitted in the Application (AS section 3.2) that there is aviolation of Arts. 2 and 8 ECHR because the Respondent fails to adopt allnecessary and appropriate measures to effectively protect the Applicants fromthe risk of harm posed by climate induced heatwaves. The Applicants fully
uphold the statements made in the Application.

2.3.2. Ad V.B.a) and VI.B. Causation

67

The Respondent argues that the Applicants did not establish a "causal link"
between the alleged omissions of the Respondent and the interference with
the Applicant's rights guaranteed by Arts. 2 and 8 ECHR (para. 39, 59 and71). The Respondent repeatedly asserts that the health impairments andbehavior changes during heatwaves are not the result of the Respondent's
alleged omissions and inadequate actions (para. 52-54, 59). The Respondent
reiterates that climate change is a global phenomenon and that GHG
emissions are caused by the community of states. Switzerland allegedly has a
low greenhouse gas intensity today, which is why the Respondent's omissions
are not of such magnitude as to cause, on their own, the suffering claimed by
the Applicants (para. 39).

A causal link is established68

In their Observations on the Facts, the Applicants have proven the complex
yet direct causal link between the Swiss State's omissions contributing toclimate change and the physical and psychological effects on the Applicants,
based on extensive scientific evidence:

UN Human Rights Council, Analytical study on the promotion and protection of the rights of older
persons in the context of climate change, Report of the OHCHR, A/HRC/47/46, 30 Apr. 2021,
para. 68.

87

43

-

that human influence is causing climate change, including global
warming (OF section 2.1),-

that the Respondent contributed and is still contributing to global
warming in excess of its share of emissions (OF section 2.2),-that one of the main impacts of human-induced global warming are
more frequent and more intense heatwaves (OF section 2.3),-

that intensity and frequency of heatwaves increases with every
additional increment of global warming (OF section 2.4),-

that heatwaves have caused, are causing and will cause further deaths
and illnesses to older women (probability resp. risk, OF section 2.5),-that heatwaves have already caused illnesses to the Applicants in thepast (OF section 2.6).

69

Although this causal chain is long and complex, the Applicants submit that it
can nevertheless be regarded as direct in the legal sense. In light of thescientific evidence (OF section 2.1-2.6), the causal link between GHG
emissions and harmful effects on the Applicants as members of a particularvulnerable group is established beyond reasonable doubt. The causality
between man-made GHG emissions and harmful effects particularly on older
women is not expressly denied by the Respondent. In addition, thecontribution by multiple states to the causation of greenhouse gas emissions
and, accordingly, to climate change does not preclude the Court fromestablishing that the Respondent bears responsibility for its part in this. Afterall, recent efforts have clarified the bases for shared, concurrent or joint
responsibility under international law.88 More concretely, the Court itself has
previously held that two or more states can be responsible for a given
situation.89 The issue of shared or partial responsibility will be discussed in
more detail below.

70

However, the Respondent claims that given its “low greenhouse gas intensity
today”, its omissions are not of such magnitude as to cause, on their own, theharmful effects on the Applicants, because climate change is a global

NOLLKAEMPER ET AL. (n 7) pp. 15-72, who deem that climate change is falling under Principle 4 of
the Guiding Principles.
89 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.
8844

phenomenon and GHG emissions are caused by the community of states(para. 39). The Respondent's arguments on the lack of causal link are flawed.
The Applicants' reply to this as follows:

It is incorrect that Switzerland has low GHG intensity today
71

It is wrong to claim that Switzerland has a low GHG intensity today. In the
global ranking of countries, Switzerland ranks 9th in terms of CO2 emissionsof consumption per capita, and if emissions from aviation and indirectemissions from the finance sector are taken into account, the Respondent's
contribution to climate change is even greater (see for details on the
Respondents' contribution to global warming OF section 2.2).

The Respondent is using the wrong causal test
72

It is no defence to assert that, given the Respondent's allegedly low emissions,
its omissions are not of such magnitude as to cause, taken in isolation, thesuffering claimed by the Applicants. The Respondent is misinterpreting theconcept of causation, and how it is applied by the Court, as well as bynational and international courts (para. 79 ff.). The causal test is whether
there is individual partial or joint responsibility to contribute to the fightagainst dangerous climate change. Partial responsibility arises from partial
causation, even if a single State cannot prevent its outcome on its own (seebelow para. 79 ff.).

73

The Court typically does not use a strict notion of causation by omission;
instead, it differentiates between the positive and negative obligations ofstates. The Court has explicitly rejected the ‘but for’ test in the context of thepositive obligation to protect in the cases of E. and Others90 and O’Keeffe v
Ireland91 and adopts a more flexible notion between the harm and the State’somission, such as the "real prospect of altering the outcome or mitigating theharm"92 standard.

74

In O’Keeffe v Ireland, the Court noted that"(…) it is not necessary to show that 'but for' the State omission the illtreatment would not have happened. A failure to take reasonably available

90
91
92

E. and Others v. the United Kingdom, no. 33218/96, § 99.
O’Keeffe v Ireland, no. 35810/09, § 149.
Ibid., § 149.

45

measures which could have had a real prospect of altering the outcome or
mitigating the harm is sufficient to engage the responsibility of the State."9375

Thus, the "test for a legally significant breach"94 is whether a State hadreasonable preventive measures with a real prospect of mitigating the harmthat were available and not taken.95

76

To that regard, the Applicants have proven in their Observations on the Facts-that the risk of heat-related excess mortality and morbidity could besignificantly reduced by limiting global warming to 1.5°C above preindustrial levels (OF section 2.7),-

that the Respondent does not do its share to prevent a global
temperature increase of more than 1.5°C above pre-industrial levels(OF section 2.10) and that it failed to implement and enforce measures
to meet its inadequate 2020 target (OF section 2.11) and-that the Respondent is able to do its share, i.e. to reduce the risk ofheat-related excess mortality and morbidity (OF section 2.12).

77

Thus, reasonable preventive measures with a real prospect of mitigating theharm are available and not taken by the Respondent as part of its duty to “doeverything in its power” – i.e. to take all necessary measures – to protect the
Applicants (see AS para. 57). Despite climate change being a global
phenomenon, if states won't do their fair share and instead shift responsibility
to other States, who also allow emissions to continue, climate change would
go on unabated and without effective solution.96

78

This outcome is consistent both with the approach taken by the national
courts of Council of Europe member states, specifically regarding causation in
relation to interferences by climate change, and with the approach taken by
the International Court of Justice in the Bosnian Genocide case (para. 86), as
will be shown in the following.

Ibid., with reference to E. and Others (n 90), § 99.
See also MAXWELL/MEAD/VAN BERKEL, Standards for adjudicating the next generation of Urgendastyle climate cases, in: ALABRESE/SAVARESI/SCOTT (eds.), Special Issue, Climate Change Litigationand Human Rights: Stocktaking and a Look at the Future, Journal of Human Rights and theEnvironment, forthcoming: “[T]he test for determining a legally significant breach is whether a Statehas failed to adopt reasonable and appropriate measures in light of a foreseeable risk of harm, or
failed to take ‘sufficient measures’ that ensure ‘adequate and effective’ protection.”
95 See, for example, Kiliç v. Turkey, no. 22492/93, § 76.
96 See on this also Third Party Intervention by Climate Action Network Europe in Agostinho andOthers (n 35) p. 3.
93
94

46

Not a defence to claim own emissions are not significant enough79

National courts of Council of Europe member States have refused to accept
the baseless arguments as put forward by the Respondent that deny
responsibility for the consequences of climate change by arguing they are onlya 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 said State of responsibility. While
courts have recognised that a single State’s actions or inaction arecontributing causal factors among others, judicial decisions have also
consistently found that a State is nonetheless individually partially responsible,
as every reduction is beneficial. In fact, “despite attempts of States to rely on
the well-known ‘drop in the ocean’ defence, no national court has accepted
this argument”.97

80

The German Constitutional Court noted in Neubauer and Others v Germany,a constitutional complaint against the Federal Climate Change Act, thefollowing 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 haveentered the Earth’s atmosphere, they are virtually impossible to remove as
things currently stand. This means that anthropogenic global warming andclimate change resulting from earlier periods cannot be reversed at some later
date. At the same time, with every amount of CO2 emitted over and above asmall 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 specific temperature limit,
nothing more than the amount of CO2 corresponding to this limit may beemitted. The world has a so-called remaining CO2 budget. If emissions go
beyond this remaining budget, the temperature limit will be exceeded"98(emphasis added).
The German Federal Constitutional Court also discussed the problem ofdiffuse or shared responsibility, and found that this was not a barrier to theapplicants' claims. It held that, "[e]ither way, the obligation to take national
97
98

MAXWELL ET AL. (n 94).
Neubauer (n 13), § 119.

47

climate action cannot be invalidated by arguing that such action would beincapable of stopping climate change. It is true that Germany would not becapable of preventing climate change on its own. Its isolated activity is clearly
not the only causal factor determining the progression of climate change andthe 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 asmall factor, but if Germany’s climate action measures are embedded withinglobal efforts, they are capable of playing a part in the overall drive to bringclimate change to a halt ([...])" (emphasis added).99"The state may not evade its responsibility here by pointing to greenhouse gas
emissions in other states.100 On the contrary, the particular reliance on theinternational community gives rise to a constitutional necessity to actually
implement one’s own climate action measures at the national level – ininternational agreement wherever possible. It is precisely because the state isdependent on international cooperation in order to effectively 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 thatclimate action – particularly the pursuit of treaty-based climate targets – canbe successful while safeguarding decent living conditions, including in termsof fundamental freedoms. In practice, resolving the global climate problem isthus largely dependent on the existence of mutual trust that others will also
strive to achieve the targets"101 (emphasis added).
81

The Supreme Court in the Netherlands stated in Urgenda v. The Netherlands:"Partly in view of the serious consequences of dangerous climate change as
referred to in 4.2 above, the defence that a state does not have to takeresponsibility because other countries do not comply with their partial
responsibility, cannot be accepted. Nor can the assertion that a country’s own

share in global greenhouse gas emissions is very small and that reducing
Ibid., § 202.
Here, the court quoted the following cases: VG Berlin, Judgment of 31 October 2019, 10 K
412.18, para. 74; also BVerwG, Judgment of 30 Jun. 2005, 7 C 26/04, para. 35 f.; High Court of
New Zealand, Judgment of 2 Nov. 2017, CIV 2015-485-919 [2017] NZHC 733, para. 133 f.;
Gerechtshof Den Haag, Judgment of 9 Oct. 2018, 200.178.245/01, no. 64; Hoge Raad of theNetherlands, Judgment of 20 Dec. 2019, 19/00135, no. 5.7.7; United States Court of Appeals for
the Ninth Circuit, Judgment of 17 Jan. 2020, no. 18-36082, p. 19 f.
101 Neubauer (n 13), § 203.
99

100

48

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 thata country could easily evade its partial responsibility by pointing out othercountries or its own small share. If, on the other hand, this defence is ruled
out, each country can be effectively called to account for its share ofemissions 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 (…)" (emphasis added).102"Also important in this context is that, as has been considered (…) about the
carbon budget, each reduction of greenhouse gas emissions has a positiveeffect on combating dangerous climate change, as every reduction means that
more room remains in the carbon budget. The defence that a duty to reducegreenhouse gas emissions on the part of the individual states does not help
because other countries will continue their emissions cannot be accepted forthis reason either: no reduction is negligible" (emphasis added).103
82

In Milieudefensie et al. v. Shell, the District Court of The Hague stated inanother climate case based on tort law:
"There is a direct, linear link between man-made greenhouse gas emissions, inpart caused by the burning of fossil fuels, and global warming"104 (emphasis
added).
"In answering the question what can be expected of RDS [Royal Dutch Shell],the court considers that an important characteristic of the imminentenvironmental damage in the Netherlands and the Wadden region at issue
here is that every emission of CO2 and other greenhouse gases, anywhere in

the world and caused in whatever manner, contributes to this damage and its
increase. It is an established fact that – apart from its own limited CO2
emissions – RDS does not actually caus[e] the Scope 1 through to 3 emissionsof the Shell group by itself. However, this circumstance and the not-disputed
circumstance that RDS is not the only partly responsible for tackling
dangerous climate change in the Netherlands and the Wadden region does

not absolve RDS of its individual partial responsibility to contribute to the102

Urgenda (n 13), § 5.7.7.

Ibid., § 5.7.8.
District Court of The Hague, Milieudefensie et al. v. Shell, C/09/571932 / HA ZA 19-379, 26
May 2021 (English version), not yet final, § 2.3.2.

103
104

49

fight against dangerous climate change according to its ability"105 (emphasis
added).
"RDS argues that the reduction obligation will have no effect (…). Even if thiswere true, it will not benefit RDS. Due to the compelling interests which areserved with the reduction obligation, this argument cannot justify assuming
beforehand there is no need for RDS to not meet this obligation. It is also
important here that each reduction of greenhouse gas emissions has a positiveeffect on countering dangerous climate change. After all, each reductionmeans that there is more room in the carbon budget. The court acknowledges
that RDS cannot solve this global problem on its own. However, this does not
absolve RDS of its individual partial responsibility to do its part regarding theemissions of the Shell group, which it can control and influence"106 (emphasis
added).
83

In Belgium, the Court of first instance found that:“The global dimension of the problem of dangerous global warming does notexempt the Belgian public authorities from their pre-described obligation
under Arts. 2 and 8 of the ECHR. In this respect, the Court agrees with theview of the Dutch Supreme Court in the Urgenda case. Therefore, in thepresent 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 their private and family lives.”107
84

105

Similarly, in Lliuya v. RWE, another climate case based in tort law, the Higher
Court of Hamm held in an interlocutory decision that “the fact that multiple
parties have caused the interference ('disturbers') does not necessarily meanthat eliminating that interference would be impossible. On the contrary, theestablished interpretation is that, in the case of multiple ‘disturbers’, eachparticipant must eliminate its own contribution”.108 As such, the presence ofmultiple ‘disturbers’ does not absolve each individual contributor from its

Milieudefensie et al. (n 104), § 4.4.37.

Ibid. § 4.4.49.
Brussels Court of First Instance, VZW Klimaatzaak v. Kingdom of Belgium & Others, 17 Jun.
2021 (unofficial translation), p. 61.
108 Higher Regional Court of Hamm, Interlocutory Decision of 1 February 2018, I-5U 15/17,
translation from the original German, p. 4.
106
107

50

own (partial) responsibility 'to do its part'.109 The French court in L’Affaire duSiècle110 came to the same conclusion.
85

International courts have also recognised that partial responsibility arises frompartial causation, where a State’s action or inaction contributed to an event,even if a single State cannot prevent its outcome on its own.

86

The International Court of Justice held in the Bosnian Genocide case as
follows:“(…) it is irrelevant whether the State whose responsibility is in issue claims,
or even proves, that even if it had employed all means reasonably at its
disposal, they would not have sufficed to prevent the commission of
genocide. As well as being generally difficult to prove, this is irrelevant to thebreach of the obligation of conduct in question, the more so since thepossibility remains that the combined efforts of several States, each complying
with its obligation to prevent, might have achieved the result […] which theefforts of only one State were insufficient to produce.”111

87

In an analogous context on a question of tort law, the UN Commission on
International Trade Law (UNCITRAL) found it sufficient that the respondent
party was “a cause” and not “the cause” of the harm in question.112

A direct causal link exists even if some of the irreversible impacts have not yetmaterialised
88

Overall, in addition to the harm that the Applicants are already suffering, theApplicants submit that their right to life and right to private and family life is
at serious risk, even if such a risk has not yet materialised and there is nocomplete certainty that it will do so. Because of the global nature of the
problem, Applicants cannot ascertain the responsibility of the Respondent's
omissions in isolation, contrary to the Court’s case law on noxious polluting
emissions. However, based on the best available science, there is no
uncertainty that the Applicant's rights are at serious risk due to global

Ibid.
The French court found the State liable for its contribution to climate change pursuant to the tortof ecological damage, even though the State was only responsible for one part (“une partie”) of thedamage, Notre Affaire à Tous and Others (n 25), p. 34.
111 International Court of Justice, Application of the Convention on the Prevention and Punishmentof the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ
Reports 2007, p. 43, § 430.
112 UNCITRAL, CME Czech Republic BV v. The Czech Republic, Partial Award on Merits, 13 Sep.
2001, p. 113 § 582.
109
110

51

warming (OF section 2.5), and that this risk is increasing with every
additional increment of global warming (OF section 2.4).
89

It is important to hold States to account despite a lack of complete certainty
that a certain event will occur, as this Court has done before.113 Because of
the peculiarities of the phenomenon of global warming, Switzerland could
otherwise easily evade its responsibility by pointing out the responsibility ofother states, or its own small share in global emissions. This is why the courts
cited above have ruled out this defence and have held that each state must do
its fair share. Any other approach would condone warming of more than
1.5°C, with the associated infringements on the rights of the Applicants.

90

It is worth mentioning that in the domestic proceedings, the issue of causality
was never raised:-

Neither by the DETEC in its function as ruling authority (Application
doc. 15),-

nor by the DETEC in its function as a party to the domestic court
proceedings where it has always refrained from submitting comments(Application docs. 17 and 19),-

nor by the domestic courts itself (see Application docs. 17 and 19).

2.3.3. Question 2.1: Were these provisions applicable to the case at hand?
2.3.3.1. Answer to the Court's question

91

The Applicants submitted in the Application (AS, paras. 49-55) that Arts. 2
and 8 ECHR are applicable in the case at hand. The Applicants fully upholdthe statements made in the Application.

2.3.3.2. Reply to the Respondent's arguments

2.3.3.2.1. Ad VI.C.a) Overview of the relevant principles
92 In its "Overview of the relevant principles", the Respondent refers to the caseof Öneryıldız v. Turkey, § 90, and findings of the Court herein regarding the
The Court has established that there can be a violation of a Convention right where there is aserious risk of suffering or breach, even if this has not yet materialised. In regard to Art. 2 ECHR,
there can be a violation of the right to life where a State’s actions put the Applicant’s life at risk,even if the latter survives, see Makaratzis v. Greece [GC], no. 50385/99, § 55, Soare and Others v.
Romania, no. 24329/02, §§ 108-109 and Trévalec v. Belgium, no. 30812/07, §§ 55-61. In theenvironmental context, the Court has found that Art. 2 ECHR applies where the State’s actions oromissions are related to activities dangerous by their very nature, which puts peoples’ lives at realand imminent risk, see Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05,
23263/05, 24283/05 and 35673/05, § 155.

113

52

procedural aspect of Art. 2 ECHR (para. 73 and 78). However, Applicants
claim that Art. 2 ECHR is infringed in its substantive aspect (see AS section
3.2). Öneryıldız v. Turkey reads as follows:"The positive obligation to take all appropriate steps to safeguard life for the
purposes of Art. 2 (…) entails above all a primary duty on the State to put inplace a legislative and administrative framework designed to provide effective
deterrence against threats to the right to life"114 (emphasis added).
93

For the cases and decision points which the Applicants consider as relevant to
the present case, they refer in full to their Application (AS section 3.2).

2.3.3.2.2. Ad VI.C.b) Application of these principles to the present case
94 Relying on Öneryildiz v. Turkey, § 100, the Respondent alleges that Art. 2
ECHR is not applicable in the present case because the Applicants have notsucceeded in demonstrating the existence of an 'immediate' danger to theirlives (para. 79).
95

First, the Applicants submit that the 'real and immediate risk' test was applied
as a precondition of an operational duty to prevent harm and not as aprecondition to the systemic duty to adopt an appropriate legislative andadministrative framework or the related obligation to implement such aframework.115

96

The ‘real and immediate risk’ test under Art. 2 ECHR was originallydeveloped by the Court in the criminal justice context. For example, inOsman v. the United Kingdom, the Court indicated that this test wasappropriate given the “unpredictability of human conduct and the operational
choices which must be made in terms of priorities and resources”.116

97

In Öneryildiz v. Turkey117, the Court has applied the 'real and immediate risk'
test in its environmental jurisprudence in relation to the operational duty:Öneryildiz v. Turkey [GC], no. 48939/99, § 89; see also Budayeva and Others v. Russia,
no. 15339/02, § 129.
115 See European Court of Human Rights, Guide on Article 2 of the European Convention on Human
Rights, Right to life, p. 8, about the nature of the positive obligation of the State, which has, in broad
terms, two aspects: a) the duty to provide a regulatory framework, and b) the obligation to takepreventive operative measures. Art. 2 ECHR's positive operational obligation applies to factual
circumstances e.g. the need for planning to protect life in counter-terrorism operations (McCann v
UK, no. 18984/91) or the need for steps to prevent the recurrence of natural disasters (Budayeva
and Others [n 114]). In Stoyanovi v Bulgaria, the Court has set framework for Art. 2 ECHR's positive
obligations: first establish a framework of laws and procedures to protect life, and second takepreventive operational measures (see Stoyanovi v. Bulgaria, no. 42980/04, § 59).
116 Osman v. the United Kingdom, no. 23452/94, §§ 115 f.
117 Öneryildiz (n 114).
114

53

-

At § 101, it stated that the authorities knew or ought to have known
that there was a "real and immediate risk" to a number of persons, andthat the authorities consequently had a positive obligation under Art. 2
ECHR 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 takeall appropriate steps to safeguard life for the purposes of Art. 2 ECHR
entails above all a primary duty on 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 andadministrative framework). The Court then goes on stating that where
lives have been lost in circumstances potentially engaging the
responsibility of the State, Art. 2 ECHR entails a duty for the State toensure, by all means at its disposal, an adequate response so that thelegislative and administrative framework set up to protect the right tolife is properly implemented and any breaches of that rightare repressed and punished (obligation to implement). Here, the Court
made no reference to the 'real and immediate risk' test.

98

Also e.g. in the environmental cases of Budayeva and Others v. Russia 118 andZammit Maempel and Others v. Malta119, the Court did not refer to the 'real
and immediate risk' test in relation to a systemic duty, but in relation tooperational questions.

99

Second, the Applicants submit that the Court has not uniformly applied the'real and immediate risk' test in its environmental jurisprudence. Rather, theCourt has applied a range of tests that consider, inter alia, whether the risk ofharm is sufficiently ‘real’ and whether the harm is sufficiently ‘serious’ orsevere (referred to in the AS, para. 54, as the ‘real and serious risk’ test).120

100 In the event that the Court is of the view that the ‘real and immediate risk’test must be applied to the present case for the purpose of Art. 2 ECHR, theApplicants submit, third, that 'immediacy' should be read, in light of the
precautionary principle121, to encompass the concepts of directness,
Budayeva and Others (n 114), § 129.
Zammit Maempel and Others v. Malta, no. 24202/10, § 67.
120 Tâtar (n 80), § 107; Brincat and Others v. Malta, no. 60908/11, § 82; Jugheli and Others v.
Georgia, no. 38342, § 67; Cordella (n 74), § 169.
121 Tâtar (n 80), § 120.
118
119

54

inevitability and irreversibility. This is consistent with the principle that the
ECHR cannot be interpreted in a vacuum.122 The Dutch Supreme Court
adopted this interpretation of 'immediacy' in Urgenda v. the Netherlands,
where it was noted with reference to the case law of the Court that:"The term 'immediate' does not refer to imminence in the sense that the risk
must materialise within a short period of time, but rather that the risk inquestion is directly threatening the persons involved. The protection of Art. 2
ECHR also regards risks that may only materialise in the longer term."123
101 With regard to Art. 8 ECHR, the Respondent is of the opinion that thisprovision may apply in the context of climate change (para. 80). However,the Respondent claims that in light of the behavioural adjustments(‘Mediterranean living’) of the Applicants 2-5, the 'minimum severity
threshold' has not been reached, which is why the Respondent is "notconvinced" that Art. 8 ECHR applies in the present case (para. 81).
102 The Applicants submit that the “minimum severity threshold” has beenreached. In Tâtar v. Romania124, Jugheli Others v. Georgia125 and Taşkin andOthers v. Turkey,126 the Court determined that the threshold test for Art. 8
ECHR was satisfied due to the risk of harm to the applicants’ quality of life
and well-being.127 The Court has indicated that, to trigger a Contracting
State’s obligations under Art. 8 ECHR, the risk of harm must be “serious” andDemir and Baykara v. Turkey, no. 345039, § 85.
Urgenda (n 13) § 5.2.2, referencing the following judgments in which the Court held that therequirements set out in § 5.2.2 were met: Öneryildiz (n 114), §§ 98-101 (gas explosion at landfill;

122
123

the risk of this occurring at any time had existed for years and had been known to the authorities foryears); Budayeva and Others (n 114), §§ 147-158 (life-threatening mudslide; the authorities were
aware of the danger of mudslides there and of the possibility that they might occur at some point on
the scale it actually did) and Kolyadenko (n 113), no. 17423/05, §§ 165 and 174-180 (necessary
outflow from the reservoir because of exceptionally heavy rains; the authorities knew that in theevent of exceptionally heavy rains evacuation might be necessary).
124 Tâtar (n 80).
125 Jugheli and Others (n 120).
126 Taşkin and Others v. Turkey, no. 46117/99.
127 In Tâtar, the Court found that Art. 8 ECHR was engaged due to the “danger” of pollution (§ 96)
that “could” cause a deterioration in the residents’ quality of life and well-being (§ 97). The Court’s
determination was primarily based on expert reports that indicated that pollution levels were
exceeded, even though these did not establish a causal link between the pollution and the impacts
on health (§ 93). In Jugheli, the Court concluded “that even assuming that the air pollution did notcause any quantifiable harm to the applicants’ health, it may have made them more vulnerable tovarious illnesses … Moreover, there can be no doubt that it adversely affected their quality of life athome … The Court therefore finds that there has been an interference with the applicants’ rightsthat reached a sufficient level of severity to bring it within the scope of Article 8 of the Convention”(§ 71). In Taşkin, the Court noted that a “likely” risk of exposure to “dangerous effects” of anactivity, without requiring serious endangerment of health, is sufficient to meet the threshold forArt. 8 ECHR (§ 113).

55

more than “negligible in comparison to the environmental hazards inherent
to life in every modern city.”128
103 The Applicants submit that there is a serious threat to the Applicants’ wellbeing and quality of life posed by dangerous climate change that goes far
beyond common behavioural adjustments to heat, as laid down in the
personal statements (Application docs. 4, 5, 6 and 7). Furthermore, there isevidence of the serious risk presented to the Applicants’ life and health byongoing climate-induced heatwaves and proof that the Applicants havealready been harmed (cf. AS section 1.1 and 1.2, further evidenced in OF
section 2.5 and 2.6). This suffices to trigger the Respondent’s positive
obligations under Art. 8(1) ECHR.
104 The Applicants further emphasize the “cumulative effect” of all theconsequences they already experience and will experience. In the case of
Grimkovskaya v. Russia, the Court considered "that the cumulative effect ofnoise, vibration and air and soil pollution generated by the M04 motorway
significantly deterred the applicant from enjoying her rights guaranteed byArt. 8 ECHR. Art. 8 ECHR is therefore applicable in the present case”.129
Certainly, the cumulative effect of all the consequences of heatwaves (healthconsequences, change of lifestyle, fear, being confined at home during
heatwaves, real and serious risk to life and health) show that the required
threshold has been reached.
105 Contrary to what the Respondent asserts (para. 81), the present case cannot
be compared with Calancea et al. v. Republic of Moldova.130 In the present
case, there is evidence of the serious risk presented to the Applicants’ life,
health, well-being and quality of life by ongoing climate-induced heatwaves
and proof that the Applicants have already been harmed, while in Calancea et
al. v. Republic of Moldova, there was no evidence that due to the exposure toelectromagnetic fields generated by high-voltage line there was a serious risk
to the Applicants' health. Contrary to Calancea et al. v. Republic of Moldova,
where the measurements recorded were far below the World HealthOrganisation’s limits for electric fields,131 in the present case numerous
international scientific bodies have pointed out the life and health risks
Fadeyeva v. Russia, no. 55723/00, § 69; Dubetska et al. v. Ukraine, no. 30499/03, § 105.
Grimkovskaya (n 77), § 62. See also Fadeyeva (n 128), § 88.
130 Calancea and Others v. the Republic of Moldova, no. 23225/05.
131 Ibid., §§ 29.
128
129

56

associated with increased heatwaves as a result of global warming (OF section2.5), and the Respondent does not do its share to prevent a global
temperature increase of more than 1.5°C above pre-industrial levels.132
106 Likewise, the Respondent cannot defend itself by differentiating the present
case from Dubetska et al. v. Ukraine (para. 81). On the contrary: Like in
Dubetska et al. v. Ukraine, the intensity and duration of the harm posed byongoing climate-induced heatwaves and the effects on the Applicants' life,
health and quality of life far exceeds the “environmental hazards inherent inlife in every modern city”.133
2.3.4. Questions 2.2 and 2.3: Has the Respondent State failed to fulfil its positive
obligations to effectively protect life (Art. 2 ECHR) and/or to respect the
Applicants' private and family life, including their home (Art. 8 ECHR)?
In particular, given its margin of appreciation in environmental matters,
has the Respondent State fulfilled its obligations under the Convention
guarantees being relied upon here, read in the light of the relevant
provisions and principles, such as the principles of precaution andintergenerational equity, which are contained in international
environmental law? In this context, has it adopted appropriate regulations
and implemented them by means of adequate and sufficient measures toachieve the targets for combating global warming (see, for example, Tătar
v. Romania, no. 67021/01, para. 109 and 120, 27 January 2009, andGreenpeace E.V. et al. v. Germany (decision), no. 18215/06,
19 May 2009)?
2.3.4.1. Answer to the Court's question

107 The Applicants submitted in the Application and complemented in theirObservations on the Facts:

132
133

-

that the Respondent failed to fulfil its positive obligations to effectively
protect life (Art. 2 ECHR) and to respect the Applicants' private andfamily life, including their home (Art. 8 ECHR), because the
Respondent has not adopted appropriate regulations and implemented
them by means of adequate and sufficient measures to do its share toprevent a global temperature increase of more than 1.5°C above preindustrial levels (AS paras. 56-57 and section 1.3 and 1.4; OF section
2.9, 2.10 and 2.11);-

that in the present case the Respondent's margin of appreciation islimited to determining the measures with which to do its share to

Ibid., §§ 28 f.
Cf. Dubetska et al. (n 128), §§ 105 and 119.

57

prevent a global temperature increase of more than 1.5°C above preindustrial levels, but that there is no discretion as to the level ofambition, ie the necessity of keeping temperatures within the 1.5°C
limit; nor is there discretion regarding the emissions reductions
necessary to achieve this limit (AS para. 58). There is, in other words,
no margin of appreciation regarding the obligation to take action in linewith the 1.5°C limit, even if states do have discretion about theconcrete type or types of action that they will take to comply with thisobligation.
108 The Applicants fully uphold the statements made in the Application. In thefollowing, particularly with a view to their requests to the Court, they
complement their statements on the law regarding the scope of the

Respondent’s obligation to protect.
Scope of the Respondent’s obligation to protect
109 The Applicants submitted in the Application that to comply with its positive
obligation, the Respondent has to put in place all necessary measures toprotect the Applicants effectively, which is to do "everything in its power" –i.e. take all necessary measures – to do its share to prevent a global
temperature increase of more than 1.5°C above pre-industrial level (AS para.
56-57).
110 The Applicants have laid down in the OF the reasons why the Respondent
does not do its share to prevent a global temperature increase of more than
1.5°C above pre-industrial level: the Respondent has failed to set any
domestically binding climate targets for 2030 and 2050 (OF section 2.9); its
climate strategy is not in line with the 1.5°C limit (OF section 2.10); and the
Respondent failed to implement and enforce measures to meet its(inadequate) 2020 climate target (OF section 2.11).
111 In these sections, the Applicants have also laid down what the Respondent
must do to remedy these omissions, resp. to fulfil its obligation to protect the
Applicants effectively. In their requests to the Court, the Applicants submitthat the Respondent must adopt the necessary legislative and administrative
framework to do its share to prevent a global temperature increase of morethan 1.5°C above pre-industrial levels, which requires the Respondent:

58

(1)

to have a greenhouse gas emission level in 2030 as compared to theemissions in 1990 that is net-negative as its 'fair share' of the global
mitigation burden (see OF section 2.10.1);(2)

to reduce the domestic emissions by 61% below 1990 levels by 2030
and to net-zero by 2050 as the domestic component of (1) (see OF
section 2.10.2);(3)

to prevent and reduce any emissions occurring abroad that are directly
or indirectly attributable to the Respondent in line with a 1.5°C above
pre-industrial levels limit (see OF section 2.10.3 and below, paras. 113
ff.);

(4)

permanently removing greenhouse gas emissions from the atmosphereand storing them in safe, ecologically and socially sound greenhouse gas
sinks, if, despite (1), (2) and (3), any greenhouse gas emissions continue
to occur within the control of the Respondent, or the concentration ofgreenhouse gases in the atmosphere is exceeding the level
corresponding to the 1.5ºC above pre-industrial levels limit (see OF
section 2.10.4 and below, para. 120).

112 The Applicants have laid down points (1) and (2) of para. 111 as part of theobligation to protect in the Application (AS para. 56-57) and in the
Observations on the Facts (OF section 2.10.1 and 2.10.2). With regard to (1)of para. 111, the Applicants further 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
level, the Climate Action Tracker, RAJAMANI ET AL. and Climate Analytics
came, in recent assessments, all to the same conclusion: Namely, that
Respondent has to have a greenhouse gas emission level in 2030 as comparedto the emissions in 1990 that is net-negative as its 'fair share' of the global
burden mitigation climate change. Interpreting Switzerland’s fair share in linewith the Climate Action Tracker and RAJAMANI ET AL. methodologies is
consistent with the principle that "[i]n the event of any ambiguity in the termsof 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."134 Both134

Al-Jedda v. UK, no. 27021/08, § 102.

59

methodologies involve a “directional pull” (in the words of RAJAMANI ET AL.135)
towards more stringent measures of fairness. This is necessary to ensure theeffective protection of the Applicants’ rights because if all States choose lessstringent measures of their fair share, the right to live in a world where global
warming has not exceeded 1.5C would become “theoretical and illusory”.
Resolving the ambiguity around the meaning of equity/CBDRRC-NC136 in thisway is therefore also entirely consistent with the object and purpose of theParis Agreement.

Scope of the Respondent’s obligation to protect extends to emissions occurring
abroad directly or indirectly attributable to the Respondent
113 With regard to (3) of para. 111 the Applicants submit that to comply with its
positive obligation to protect their rights effectively, the Respondent has toput in place not only all the necessary measures to do its share to prevent a
global temperature increase of more than 1.5°C above pre-industrial level interms of domestic emissions, but also to prevent and reduce any emissions

occurring abroad that are within the control of the Respondent and thus
directly or indirectly attributable to it, which go well beyond the domestic
emissions (see OF section 2.10.3).
114 First, this is needed to protect the Applicants effectively. Considering thatclimate change impacts will ultimately affect the rights of the Applicants

whether the emissions occur domestically or abroad, addressing all emissions
that are directly or indirectly attributable to the Respondent is part of its
obligation "to do everything in its power to do its share to prevent a global
temperature increase of more than 1.5°C above pre-industrial level" as statedin AS para. 57.
115 Second, the Respondent Government seems to agree that Switzerland has an
obligation to reduce emissions occurring abroad that are directly or indirectly
attributable to the Respondent, as laid down in the Observations on the Facts
section 2.10.3.
116 Third, when interpreting the obligation to protect under the Convention, theCourt should also consider the fact that the Paris Agreement also refers to
135

RAJAMANI ET AL., National ‘fair shares’ in reducing greenhouse gas emissions within the principledframework of international environmental law, Climate Policy Volume 21 Issue 8, pp. 983–1004, 7
September 2021, p. 985, available at https://doi.org/10.1080/14693062.2021.1970504.
136 Common but differentiated responsibilities and respective capabilities, in the light of different
national circumstances (Art. 2(2) Paris Agreement).

60

emissions occurring abroad that are attributable to States. The Parties to theParis Agreement recognized that sustainable lifestyles and sustainable patternsof consumption and production, with developed country Parties taking thelead, play an important role in addressing climate change (Preamble,
Paragraph 16). This is also mentioned in the Cancún Agreements in thecontext of the required paradigm shift towards building a low-carbon
society.137 Also, the Paris Agreement's temperature goal to limit thetemperature increase to 1.5°C above pre-industrial levels and the target tomake finance flows consistent with this temperature goal (Art. 2(1a) and (1c))
are independent of the source of the emission, i.e. the distinction between
domestic emissions and emissions occurring abroad, as well as between direct
and indirect emissions.
117 Fourth, including emissions that occur abroad and attributable to the
Respondent is in line with the precautionary principle, as this entails the fullrange of preventive measures (see AS para. 56). All emissions attributable to
the Respondent matter with regard to the protection of the Applicants.
118 Fifth, this is in line also with evolving norms of international law and thepractice of the Contracting States which inform the scope of the obligation toprotect (see AS para. 56). The 2015 Oslo Principles on Global Climate
Change Obligations,138 hold that as part of the "Obligation of States, every
state is required to "reduce the GHG emissions within its jurisdiction orcontrol to the permissible quantum within the shortest time feasible" (Art.
II.B.13) and that "States must regulate GHG emissions in their jurisdictions orunder their control to meet their obligations set forth in these Principles" (Art.
II.B.24). The customary rules of public international law on the Responsibilityof States for Internationally Wrongful Acts refer to acts or omissions that are"attributable" to the State (Art. 2).139 In Milieudefensie at al. v. Shell, theDistrict Court of The Hague ordered Royal Dutch Shell to reduce theDecision 1/CP.16, The Cancún Agreements: Outcome of the work of the AWG-LCA,
FCCC/CP/2010/ 7/Add.1, 15 March 2011, para. 10.
138 These principles, drafted by experts from courts, academia, and organizations around the world,
attempt to define the scope of legal obligations according to which all states and enterprises have 'to
defend and protect the Earth's climate': Expert Group on Global Climate Obligations, Oslo Principles
on Global Climate Change Obligations, The Hague 2015.
139 See also decisions of international courts (Application of the Convention on the Prevention andPunishment of the Crime of Genocide [n 111], § 430; CME Czech Republic BV [n 112], § 582) andnational courts (Neubauer [n 13], §§ 119 and 202-203; Urgenda [n 13], §§ 5.7.7-5.7.8; VZW
Klimaatzaak [n 107], p. 61; Interlocutory Decision [n 108], p. 4; Notre Affaire à Tous and Others [n25], § 34) supporting this argument.
137

61

aggregate volume of all CO2 emissions attributable to the Shell Group, nomatter whether they occurred in the Netherlands, including indirectemissions resulting from consumers.140

Emissions occurring abroad are within the Court's jurisdiction
119 The emissions occurring abroad that are directly or indirectly attributable toand within the control of the Respondent should not be treated as
extraterritorial jurisdiction, because the impugned conduct is taking place
within the borders of the Respondent, even if the effects are being felt inwhole or in part abroad.141

Scope of the Respondent’s obligation to protect includes the reduction of any
greenhouse gas emissions within the control of the Respondent in line with the
1.5°C limit. If despite all measures to reduce emissions still further emissions occur,
those need to be leveled out with safe, ecologically and socially sound carbon sinks.
120 With regard to (4) of para. 111 the Applicants submit that the Respondent's
positive obligation to protect entails also an obligation to permanently
removing greenhouse gas emissions from the atmosphere and storing them insafe, ecologically and socially sound greenhouse gas sinks, if, despite (1), (2)and (3) of para. 111, any greenhouse gas emissions continue to occur within
the control of the Respondent. The same applies if the concentration ofgreenhouse gases in the atmosphere is exceeding the level corresponding to
the 1.5ºC above pre-industrial levels limit. Also hereto, the Respondent has to
do its share (see OF section 2.10.4). It is important to note that these arenecessary measures to do its share to prevent a global temperature increase of
more than 1.5°C above pre-industrial levels but does not absolve the
Respondent of its obligations to prioritise emissions reduction.

140
141

Milieudefensie et al. (n 104), §§ 2.5.4 and 5.3.
See e.g. Ilascu v. Moldova and Russia, no. 48787/99, where it stated, at § 317: "A State's

responsibility may also be engaged on account of acts which have sufficiently proximate
repercussions on rights guaranteed by the Convention, even if those repercussions occur outside its
jurisdiction"; Chigarov and Others v. Armenia, no. 13216/05, § 167: “While a state’s jurisdictional
competence is primarily territorial, the concept of jurisdiction within the meaning of Article 1 of theConvention is not restricted to the national territory of the High Contracting Parties and the state’s
responsibility can be involved because of acts and omissions of their authorities producing effects
outside their own territory”; Nada v. Switzerland, no. 10593/08, §§ 117-123; see also TILMANN
ALTWICKER, Transnationalizing Rights: International Human Rights Law in Cross-Border Contexts,
European Journal of International Law Volume 29 (2), July 2018, p. 592.

62

2.3.4.2. Reply to the Respondent's arguments

2.3.4.2.1. Ad. VI.D.b) The legal nature of the Paris Agreement
121 The Respondent alleges that merely Arts. 4(2) first sentence, 4(8), 4(9), 4(13)and 13(7) of the Paris Agreement would set out legally binding obligations for
the State Parties (para. 85). The general objective of the Agrfeement (Art.
2(1)a) would not impose quantitative restrictions on GHG emissions or a
global carbon budget (para. 92). Art. 4(2) first sentence would be of strictly
procedural nature and would not require State Parties to actually implement
their NDCs (para. 87), and Art. 4(2) second sentence and Art. 4(3) would
merely express standards of conduct and not of result (para. 89 and 90).
122 The Applicants submit that the legal nature of the specific provisions of theParis Agreement is not decisive in determining the scope of the obligation toprotect under Arts. 2 and 8 ECHR. It is worth noting here that the
Respondent does not demonstrate, nor does it claim, that the legal status of
the specific provisions of the Paris Agreement (i.e. the question whether they
are binding in substance or not) is relevant in the Court's case law.
123 All provisions of the Paris Agreement are part of the international law basisthat can be taken into account when determining the scope of the obligationof protect in terms of Arts. 2 and 8 ECHR. As will be shown below, based on
the Court’s case law, this would be the case even if the Respondent had notsigned or ratified the Paris Agreement or if the Paris Agreement in its entirety
was non-binding.
124 It is established case law that:“when the Court considers the object and purpose of the Convention
provisions, it also takes into account the international law background to thelegal question before it. Being made up of a set of rules and principles that are
accepted by the vast majority of States, the common international or domestic
law standards of European States reflect a reality that the Court cannot
disregard when it is called upon to clarify the scope of a Convention provisionthat more conventional means of interpretation have not enabled it toestablish with a sufficient degree of certainty."142

See e.g. Saadi v. the United Kingdom [GC], no. 13229/03, § 63; Demir and Baykara (n 122),
§ 76.

142

63

125 The Court in searching for common ground among the norms of internationallaw has never distinguished between sources of law according to whether or
not they have been signed or ratified by the respondent State.143
126 Also, in the cases of Christine Goodwin v. the United Kingdom,144 Vilho
Eskelinen and Others v. Finland,145 and Sørensen and Rasmussen v.
Denmark,146 the Court was guided by the European Union’s Charter ofFundamental Rights, even though this instrument was not binding.
127 Certainly, in the light of the rules set out in the Vienna Convention on the
Law of Treaties of 23 May 1969, Art. 31 § 3 (c), the Court had always taken
into account, where necessary, “any relevant rules and principles ofinternational law applicable in the relations between the parties."147 The Paris
Agreement is a treaty within the meaning of the Vienna Convention, andcontains relevant rules of international law applicable in the relations between
the parties to the Convention. The Convention should be interpreted inharmony with these rules of international law.148
128 The Applicants stress that the Paris Agreement expressly states that the states
must strive to limit warming to 1.5°C, which, together with best available
science and the precautionary principle (see AS para. 56), builds a great
degree of consensus that must be taken into consideration when interpreting
and applying Arts. 2 and 8 ECHR.149

See Demir and Baykara (n 122), § 78, with reference to Marckx v. Belgium, no. 6833/74,§§ 20 and 41. E.g. in the cases of McElhinney v. Ireland, Al-Adsani v. the United Kingdom,and Fogarty v. the United Kingdom, the Court took note of the European Convention on State
Immunity, which had only been ratified at the time by eight member States. In its Glass v. theUnited Kingdom judgment, the Court took account, in interpreting Art. 8 ECHR, of the standards
enshrined in the Oviedo Convention on Human Rights and Biomedicine of 4 April 1997, eventhough that instrument had not been ratified by all the States Parties to the Convention. InÖneryıldız (n 114), the Court referred to the Convention on Civil Liability for Damage resulting
from Activities Dangerous to the Environment and the Convention on the Protection of theEnvironment through Criminal Law in order to determine the criteria for State responsibility under
Article 2 of the Convention in respect of dangerous activities, although the majority of member
States, including Turkey, had neither signed nor ratified these two conventions, see McElhinney
v. Ireland [GC], no. 31253/96; Al-Adsani v. the United Kingdom [GC], no. 35763/97; Fogarty v.
the United Kingdom [GC], no. 37112/97; Glass v. the United Kingdom, no. 61827/00, § 75;Öneryıldız (n 114), § 59.
144 Christine Goodwin v. the United Kingdom [GC], no. 28957/95.
145 Vilho Eskelinen and Others v. Finland [GC], no. 63235/00.
146 Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99.
147 Demir and Baykara (n 122), § 67; Al Adsani (n 143), § 55; Bosphorus Hava Yolları Turizm ve
Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 150.
148 Al Adsani (n 143), § 55; Nada (n 141).
149 Cf. Urgenda (n 13), Summary of the Decision, What, specifically, does the State's obligation to do'its part' entail?
143

64

129 The Respondent further alleges that the Court should not assume the task toassess the individual performance of a State Party to the Paris Agreement, as
the Parties to the Paris Agreement deliberately opted not to introduce such amechanism (para. 93).
130 The Applicants refer to section 2.2.2.5 above, where they have laid downthat the Paris Agreement was not intended to be the only applicable legal
basis in the field of climate change and to abolish existing human rights
obligations. Instead, climate action must be carried out at the national level ina manner that is coherent with existing obligations related to human rights.
From the perspective of the Paris Agreement, Parties are also expected to takehuman rights implications into consideration when deciding the level ofambition of their contributions to the global response to climate change.150
Thus, the Paris Agreement intends to strengthen, not weaken human rights,
as the Respondent asserts. Finally, as stated in section 2.2.2.5 above, theApplicant’s request is not for the Court’s enforcement of the Respondent’s
obligations under the Paris Agreement, but an assessment of the Respondent’s
acts and omissions violating Applicant’s Convention rights.
2.3.4.2.2. Ad VI.D.c) Legislative and administrative framework established by
Switzerland
131 Regarding the Respondent statements on the legislative and administrative
framework established by Switzerland, the Applicants refer to their OF (OFsection 2.10, 2.11, 3.3.1–3.3.4, 3.3.8).
2.3.4.2.3. Ad V.D.d) Compatibility of Switzerland's commitments with 1.5°C limit
132 In light of its updated NDC, the Respondent is of the view that given
Switzerland's low GHG intensity today and the high costs of reducing
emissions, its climate strategy is compatible with the objective of the Paris
Agreement to limit global warming to 1.5°C and reflects the highest level ofambition (para. 99-106). The Respondent also alleges that its climate policy is
not "rigid" and can adapt to new scientific recommendations (para. 100) andthat despite the referendum on the new CO2 Act, the objective in the NDC
will not change (para. 103-106).
133 This again shows the Respondent's confusion of its independent human rights
obligations under the Convention with its obligations under the Paris150

CARAZO (n 82), p. 116 with further references.

65

Agreement. The Applicants have never requested for this Court to monitor
the Respondent’s commitments under the Paris Agreement. Instead, theApplicants ask the Court to assess whether the Respondent’s failure to protect
them from climate-induced heatwaves violates the Convention obligations(see above, section 2.2.2.5).
134 The Applicants laid down in their Observations on the Facts and in their
Application that Switzerland's climate strategy has never been and is notplanned to be in line with the 1.5°C limit. They laid down the following:-

the reasons why, in light of the best available science and international
environmental law and principles, the Respondent's NDC as well as its
long-term climate strategy are inadequate to stay on a pathway
compatible with the 1.5°C limit (OF section 2.10). Notably, what the
Respondent refers to in para. 101 and in its updated NDC are global
emission reduction pathways (see OF para. 49) and not its fair sharetowards the global mitigation burden (see OF para. 56 ff), and the
Respondent's NDC does not even comply with this global pathway (ASpara. 17 f.; OF para. 55);-

The Respondent's contribution to climate change is excessively high(OF section 3.2.2), contrary to what the Respondent claims in para.
105 and in its updated NDC. Even if there would be below average percapita emissions in Switzerland, this would not be a relevant
consideration in determining its fair share (OF para. 59); 151

151
152

-

the mitigation potential in Switzerland remains largely unused, partly
without any justification (e.g. in the financial and agricultural sector),
partly on the justification of high costs, for which the Respondent does
not submit any evidence. However, this is contradictory, as the
Respondent Government states it is strongly in Switzerland's own
financial interests that global warming is limited to 1.5°C (OF section
3.3.6); and even if there would be high costs, this is not a relevant
consideration in determining its fair share (OF para. 59);152-

the Respondent failed to implement and enforce measures to meet its(inadequate) 2020 target (AS section 1.4; OF section 2.11);

RAJAMANI ET AL. (n 135), p. 991.
Ibid.

66

-

the Respondent failed to set any domestically binding climate targets for2030 and 2050 (OF section 2.9);-

the level of climate protection is not based on scientific studies but on
assumed majority opinions (OF section 3.3.8);-

the Respondent has merely vague ideas how to proceed after therejection of the new CO2 Act (OF section 3.3.5) and-new solutions are likely to be too weak and too late for the Respondent
to do its share to limit global warming to 1.5°C (OF section 3.3.3).

135 Regarding the Respondent's reference to the democratic system of
Switzerland (para. 103) it should be noted that national difficulties in taking
measures are legally irrelevant. A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty (Art. 27 Vienna
Convention). With respect, the Convention cannot therefore be underminedwith reference to democracy and the Optional referendum in Art. 141 of the
Swiss Constitution. Notably, all domestic law emerges within the Swissdemocratic system. Without doubt, this does not mean that domestic law
prevails over the Convention. The Court regularly sees violations ofConvention rights due to domestic law that is not compatible with theConvention rights.153
136 Overall, Switzerland's commitments are not compatible with the 1.5°C limit.
2.3.4.2.4. Ad V.D.e) Compatibility of Switzerland's commitments with Arts. 2 and
8 ECHR
137 The Respondent considers that Switzerland has put in place measures toreduce CO2 emissions that are compatible with the objective of the Paris
Agreement, which is why it has not exceeded and will not exceed its marginof appreciation in environmental matters, as the choice of means to combat
climate change falls within the margin of appreciation of the state and that
there would still be time to make this choice (para. 108-110).
138 The Applicants submit that from this, it appears that the Respondent sharesthe view of the Applicants on the margin of appreciation as laid down in the
Application (AS para. 58, with references): the Respondent’s margin of
appreciation is limited to determining the measures with which to fulfil its
See e.g. Howald Moor and others v. Switzerland, no. 52067/10 and 41072/11; B. v.
Switzerland, no. 78630/12; Ryser v. Switzerland, no. 23040/13.

153

67

duty to protect, provided they are actually implemented and are appropriate
for achieving the objective. There is no discretion as to the level of ambition,
namely to do its share to stay within the 1.5°C limit.
139 The Applicants laid down in detail and provided best available scientificevidence that contrary to the Respondent, Switzerland's climate strategy is
not in line with the 1.5°C limit (see above, para. 134 with further
references). The Respondent has thus failed to take adequate action, whichfalls outside of its margin of appreciation to choose the adequate means forcombatting climate change.
140 It should be stressed that in environmental cases, the Court has found that,once an Applicant has raised a prima facie case of breach of the 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 restof the community”.154 Until this day, as shown in detail in the Observations
on the Facts, the Respondent did not explain that and how it would reach its
existing 2020 climate target, its NDC for 2030 and 2050, let alone its fairshare to the global mitigation burden.155
141 On the point that there would be still time to combat climate change, as the
Respondent alleges (para. 110), which is wrong, the Applicants refer to theirObservations on the fact, section 3.3.9.
142 On the point that the Respondent's NDC would not significantly differ fromwhat the Applicants have requested in 2016 (para. 111), which is wrong, theApplicants refer to their Observations on the fact, section 3.3.7.
143 The Respondent further claims that the precautionary principle and its
possible implications for human rights are not consolidated in the case law of
the Court and that the precautionary principle is too vague and too general to
give specific directions (para. 112-113). Also, the Respondent is of the viewthat it fully complied with the precautionary principle (para. 114).
144 The precautionary principle is a general principle of international
environmental law156 that informs the scope of the State's positive obligations.
Jugheli and Others (n 120), § 76 and Fadeyeva (n 128), § 128; see also Dubetska and Others (n128), § 155; Cordella and Others (n 74), § 161; Öneryildiz (n 114), § 89; Budayeva and Others (n114), § 132; Brincat and Others (n 120), § 110. The Dutch Supreme Court adopted this approach in
Urgenda (n 13), §§ 5.3.3 and 6.5.
155 Cf. Neubauer (n 13), §§ 239-241.
156 See e.g. Rio Declaration (n 8) Principle 15; Art. 3(3) UNFCCC; MEINHARD SCHRÖDER, Precautionary
Approach/Principle, Max Planck Encyclopedia of Public International Law, March 2014; International154

68

In Tătar v. Romania, the Court held that "the precautionary principle
recommends that States should not delay taking effective and proportionate
measures to prevent a risk of serious and irreversible damage to theenvironment in the absence of scientific or technical certainty", and the Court
recalled "the importance of the precautionary principle (first enshrined in the
Rio Declaration), which 'is intended to be applied with a view to ensuring ahigh level of protection of health, consumer safety and the environment in all
Community activities'"157 (emphasis added). Like in Tătar v. Romania, in thepresent case, the risk posed by climate change-induced heatwaves had partly
already materialized in the past. There have been around 2,000 heat-related
deaths since 2003 in Switzerland, and there has been heat-related morbidity
and infringements in well-being, the latter two being experienced by the
Applicants (see AS section 1.1 and 1.2; OF section 2.6). There isoverwhelming scientific certainty on the causes and consequences of climatechange.
145 Against that background, and in line with Tătar v. Romania, § 120, theRespondent's positive obligation to prevent irreversible and serious harm to
the earth climate and to the Applicants caused by excessive GHG emissions
applies with even more force for the period from now on. Taking the risk of
non-compliance with the limit of 1.5°C and delaying taking the necessary
measures, as the Respondent does, is impermissible in terms of the
precautionary principle.
146 Notably, the principle also applies if the actual materialization of the risk to
the Applicants’ life and health would be deemed to be uncertain. The
Applicants have demonstrated with best available scientific evidence thatstaying within the limit of 1.5°C would significantly reduce the risk of heatrelated excess mortality and morbidity (AS section 1.5; OF section 2.7). There

Tribunal for the Law of the Sea, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v.
Japan), Provisional measures, Order, 27 August 1999. See also Art 191 TFEU: “Union policy on theenvironment … shall be based on the precautionary principle and on the principles that preventive
action should be taken, that environmental damage should as a priority be rectified at source and thepolluter should pay.” From the European Court of Justice, see for example Case C-236/01, MonsantoAgricoltura Italia SpA v. Presidenza del Consiglio dei Ministri [2003] ECR I8105. On the related
preventative principle, derived from State due diligence obligations, see International Court of Justice,
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Report 2010, p. 14 § 101.
157 Tătar (n 80) § 109.

69

is sufficient clarity on this, and this informs the content of the precautionary
principle and herewith the scope of the obligation to protect in its substance.
147 It is worth mentioning that in their deliberations on the appropriate level ofaction for a state to take, many national courts have invoked theprecautionary principle in climate cases.158 In Switzerland, the precautionary
principle is enshrined in the Swiss Constitution, Art. 74(2), and has ajusticiable content in cases "in which the answer to a legal question can belinked neither to a specific legal concretization of the precautionary principle
nor to another norm."159 In these cases, the precautionary principle itself isthe relevant, directly applicable legal principle that leads to the answer of thelegal question.160 Thus, also in domestic law, the precautionary principle is
not deemed to be "too vague" for it to be able to direct decision-making insubstance.
148 The Respondent argued in its Reply (paras. 115-116) that the principle ofintergenerational equity is not an established rule of international law.
However, this is not correct; this principle, as well the principle ofintragenerational equity, has in fact been accepted by states as a norm ofinternational law, reflected in many international instruments,161 court
decisions162 and comments from human rights treaty bodies163.164 TheFederal Court of Australia, Sharma by her litigation representative Sister Marie Brigid Arthur v
Minister for the Environment [FCA 560], 27 May 2021, para. 254-257; Neubauer (n 13); High
Court of New Zealand, Sarah Thomson v. The Minister for Climate Change Issues, 2 November
2017, CIV 2015-485-919, NZHC 733, para. 88-94; Supreme Court of Colombia, Future
Generations v. Ministry of the Environment and Others, 5 April 2018, STC4360-2018, para.
11.1; Dutch Supreme Court, Urgenda (n 13), para. 5.7.3, 7.2.5, 7.2.10.

158

GRIFFEL/RAUSCH/ADLER, Kommentar zum Umweltschutzgesetz, Ergänzungsband zur 2. Auflage,
Zürich 2011, Art. 1 N 21, translated from German.
160 Ibid.
161 UN Charter (1945), Preamble; Statute of the Council of Europe (1949), Preamble; Rio
Declaration (n 8) Principle 3; Stockholm Declaration (1972), Principle 1; International Whaling
Convention (1946), Preamble; African Nature Convention (1968), Preamble; World Heritage
Convention (1972), Article 4; Paris Agreement, Preamble; UNFCCC, Article 3.
162 International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, ICJ Reports 1996, p. 226, § 29; International Court of Justice,
Gabčíkovo–Nagymaros Project, ICJ Reports 1997, p. 7 § 53; Permanent Court of Arbitration,
Arbitration regarding the Iron Rhine Railway, Belgium v. the Netherlands, PCA (2005), ICGJ 373,
§ 58.
163 Human Rights Committee, General Comment No. 36 (n 37), para. 62; Joint Statement (n 30),§ 9.
164 For further arguments establishing the recognition of the principle of intergenerational equity,
intragenerational equity and sustainable development in academic commentary, see SANDS ET AL.,
Principles of International Environmental Law, Cambridge 2018 (4th ed.), pp. 218-221; ELOISESCOTFORD, Environmental Principles Across Jurisdictions: Legal Connectors and Catalysts, in EMMA
LEES AND JORGE E. VIÑUALES (eds.), The Oxford Handbook of Comparative Environmental Law,
Oxford 2019, p. 656.
159

70

principles of intergenerational equity and intragenerational equity165 are twoconcepts at the core of the principle of sustainable development.166
149 Intergenerational equity aims to ensure future generations are able to enjoy
natural resources, and in this case a safe and stable climate. Intragenerational
equity requires an equitable environment, use of resources and approach toclimate change measures which are fair to and among present generations;present generations include the Applicants, who have suffered and continue
to suffer from the effects of climate change. Indeed, the principle ofsustainable development seeks to ensure economic development with theprotection of the environment by considering the “developmental andenvironmental needs” of both “present and future generations” ofhumankind.167
150 The Respondent has an obligation towards the Applicants to protect themagainst threats to their life, health and well-being posed by dangerous climatechange, which is also based on the need to achieve intragenerational equity
and pursue sustainable development. The Applicants are due to their age andgender particularly vulnerable to heatwaves and have a higher risk ofmortality and morbidity than the rest of the population due to their age andgender. These vulnerabilities “intersect to amplify the impacts” of climatechange.168 Intragenerational equity aims to ensure justice among individuals
alive today, especially towards individuals living in the most “environmentallyvulnerable” context,169 including those affected by the consequences ofclimate change like heatwaves. In addition, one of the objectives of Applicant
1 is to protect the interests of current senior women and future senior
women, as well as protecting the climate for the interests of future
generations (Art. 2 statutes, see Application doc. 2).
151 As such, the Respondent cannot dismiss the principle of intergenerational
equity, nor could it ignore the principle of intragenerational equity applicableto the Applicants; these are important norms of international law by which

Report of the World Commission on Environment and Development, Our Common Future(“Brundtland Report”), 1987, § 3 (“sustainability implies a concern for social equity between
generations, a concern that must logically be extended to equity within each generation”).
166 SANDS ET AL. (n 164), pp. 218, 221.
167 Gabčíkovo–Nagymaros Project (n 162), § 140.
168 Third party intervention by the UN Special Rapporteur (n 35).
169 Rio Declaration (n 8), Principle 6.
165

71

the Respondent is bound and which informs its obligations under theConvention.
152 The Respondent eventually refers to its adaptation measures (para. 117). The
Applicants submit that the risk of non-compliance with the limit of 1.5°C anddelaying taking the necessary mitigation measures is impermissible in terms of
the precautionary principle. Adaptation measures cannot replace mitigation
measures, but have to complement them since harm to the Applicants causedby climate change is occurring today and will increasingly continue to occur
also if warming would be limited to 1.5°C, but to a significant lesser extent
since there is an exponential increase in mortality with increasing
temperatures (OF para. 40). This understanding should also shape the marginof appreciation granted to the Respondent in choosing the appropriate
measures to respond to the threat of climate change.
2.3.4.2.5. Ad V.D.f) Conducting appropriate surveys and studies and effective
public participation
153 The Respondent states that the Court requires the States to carry out
appropriate investigations and studies where complex environmental andeconomic policy issues exist (para. 119), and that it would be essential thatdecisions are based on best scientific knowledge (para. 120).
154 However, as stated in detail in the OF, the level of climate protection in
Switzerland is not based on scientific studies (which FOEN confirmed after arequest according to the FOIA) but on assumed majority opinions (see OF
section 3.3.8). Already due to this failure, the Respondent violated theApplicant's Convention rights.170
155 Clearly, participation in a consultation procedure (the Respondent, para. 121)
as well as transparency and openness of the legislative and decision-making
process (the Respondent, para. 123) do not replace effective protection of thehuman rights of the Applicants.
2.4. Question 3: Has there been a violation of the right of access to an impartial
tribunal within the meaning of Art. 6 ECHR?

156 The Applicants submitted in the Application (AS section 3.1) that there has
been a violation of Art. 6 ECHR because the Respondent's courts failed to170

See e.g. Tătar (n 80), § 118.

72

adequately examine the merits of the Applicants’ allegations. The Applicants
fully uphold the statements made in the Application.
157 Access to court in the sense of Art. 6 ECHR (and access to a remedy in thesense of Art. 13 in combination with Arts. 2 and 8 ECHR) are crucial inclimate cases. However, a finding by this Court that only Arts. 6 and/or 13
ECHR have been violated would mean losing crucial years in view of theextreme urgency of the case (see AS section 1.8). Each additional tonne of
CO2 emitted further increases the concentration of CO2 in the atmosphere
and worsens climate impacts, including the severity and frequency ofheatwaves, in a practically irreversible manner. There is a near-linear

relationship between cumulative anthropogenic CO emissions and the global
warming they cause (OF section 2.4); there is an exponential increase inmortality with increasing temperatures (OF section 2.5 and 2.7). In other2

words, access to court is crucial in climate-related cases, but the Applicantsalso draw the Court’s attention to the urgency of climate action, as
documented by the relevant scientific evidence. This urgency means that
requiring another set of domestic proceedings compliant with the Applicants’procedural rights would be pejorative for the protection of the Applicantsfrom the harms at stake.
158 Thus, the Applicants respectfully submit that the best way to protect themfrom the risk of harm posed by dangerous climate change would be for the
Court to establish all of the Convention violations at issue. This would mean,on the one hand, declaring that the Respondent failed to protect, in
substance, the Applicants' right to life and private life under Art. 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 morethan 1.5°C above pre-industrial levels), and, on the other hand, recognizing a
violation of their rights under Arts. 6 and 13 ECHR.
2.4.1. Question 3.1: Is this provision applicable in the civil context?
2.4.1.1. Answer to the Court's question

159 The Applicants submitted in the Application (AS para. 42-44) that Art. 6
ECHR is applicable. The Applicants fully uphold the statements made in the
Application and assert that Art. 6 ECHR is applicable in its civil limb.

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2.4.1.2. Reply to the Respondent's arguments

160 The Respondent does not contest the 'civil' nature of the rights at stake – thiswent uncontested in the domestic proceedings as well (Application doc. 19
section 6.1 and 6.2) – but does contest that there is an 'arguable claim' underdomestic law. It argues that the Federal Supreme Court held that Art. 10(1)of the Swiss Constitution and Arts. 2 and 8 ECHR were not affected with thenecessary degree of intensity (para. 127).
161 According to the case law of the Court, the applicability of the civil limb ofArt. 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.171 The substantive right relied on by the applicant in the national courts
must have a legal basis in the State concerned; the dispute in question mustbe genuine and serious and the outcome of the relevant proceedings must be
directly decisive for that right.172 Where there was a genuine and serious
dispute about the existence of such a right at the outset of the proceedings,
the fact that the domestic courts concluded that the right in question did notexist cannot retrospectively deprive an applicant’s complaint of its
arguability.173
162 Art. 10 of the Swiss Constitution and Arts. 2 and 8 ECHR174 are subjective
rights which have a legal basis in domestic law. These rights are, at least on
arguable grounds, recognised under domestic law, as there was a dispute
regarding the scope of these rights. The fact that the domestic courts denied
the Applicants their rights – notably in an arbitrary manner (see AS, para. 45
and 47) – does not deprive the Applicant's complaint of its arguability.
163 Based on the reasoning of the Federal Administrative Court that the "requestsof the Applicants" would not contribute to the "reduction of GHG emissionsin Switzerland", the Respondent further contests the existence of a genuine
and serious dispute and a decisive outcome for the rights in question (para.
128 f.).
164 The Applicants submit that they have laid down in detail, in the domestic
proceedings before the Federal Administrative Court, why a decisive outcome
Denisov (n 68), § 44; Boulois v. Luxembourg [GC], no. 37575/04, § 90.
Károly Nagy v. Hungary [GC], no. 56665/09, §§ 60-61; Roche v. the United Kingdom [GC], no.
32555/96, § 119; Boulois (n 171), § 91.
173 Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 88-89.
174 Cf. Naït-Liman (n 85), § 108.
171
172

74

for the rights in question exists (doc. 14 section 6.1.2.3 and doc. 16 section
2.4.4.3). However, the Federal Administrative Court did not go into theApplicants’ statements on the link between the outcome of the proceedings
and their rights as recognized under domestic law. Nor did it review thedomestic law presented (the state’s obligation to protect in terms of Art. 10
Swiss Constitution and Arts. 2 and 8 ECHR), which is relevant for assessing
Art. 6 ECHR (see doc. 17 section 8.3 and 8.4). Instead, the Federal
Administrative Court reviewed the “sufficiently close connection” required
for the application of Art. 6 ECHR in light of the wrong parameters. In
particular, it did not examine the connection between a right recognizedunder domestic law and the outcome of the proceedings, which is required by
the case law on Art. 6 ECHR. Instead, the Federal Administrative Court
considered the connection between the actions of the state in terms of the
Applicants’ demands in the request and the reduction of greenhouse gas
emissions following from them. However, both of these points belong to theparameter “outcome of the proceedings”, which for its part would have had
to be contrasted with the domestic right invoked (see in detail doc. 18 section
2.6.2.1.a).
165 Before the Federal Supreme Court, the Applicants have laid down in detailthe “outcome of the proceedings” that would be expected if their 2016 legal
requests were approved (doc. 18 section 2.6.2.1.b). They contrasted thisoutcome of the proceedings with their rights recognized under domestic law(doc. 18 section 2.6.2.1.c) and demonstrated that the outcome of theproceedings is directly decisive for the rights in question (doc. 18 section
2.6.2.1.d). The Applicants fully refer to these statements and uphold these.
166 Regarding the Respondent's claim on causation and immediacy (para. 129),
the Applicants point to section 2.3.2 and para. 95 ff. above. Also, in theirrequest to the Respondent Government (see doc. 14 section 4.4) as well as intheir appeals to the Federal Administrative Court (doc. 16 section 2.1.2) andthe Federal Supreme Court (doc. 18 section 2.3.3), the Applicants always
pointed to concrete health risks from excessive GHG emissions for them asmembers of a particularly vulnerable group that have also partly materialized
amongst the Applicants. They did not merely complain about
hypothetical consequences for the environment and human health.175
175

Contrast Ivan Atanasov v. Bulgaria, no. 12853/03, § 92.

75

The reduction of GHG emissions is directly decisive for the right to life andright to private and family life invoked by the Applicants.
167 The Applicants fully uphold that the present dispute is genuine and serious,and the result of the proceedings is directly decisive for the rights in question(see AS para. 44).
168 Regarding the Respondent’s allegations that there is no right of access to a
court having jurisdiction to invalidate or override a law emanating from thelegislative authority (para. 130), the Applicants submit that first, they havenot sought access to an alternative court,176 but sought the available domestic
courts to adequately examine the merits of their allegations, and second, thatthey did not request the CO2 Act to be invalidated or overridden in thedomestic proceedings, but requested the Respondent Government to stopomissions in climate protection and to take all necessary actions within its
competence to reduce GHG emissions to protect the Applicant's rights (cf.
Application doc. 14).
169 The Respondent further claims that the subject of the dispute is a generalinterest in climate protection, and not the civil rights of the Applicants (para.
130). The Applicants submit that there is a dispute over Art. 10 of the Swiss
Constitution as well as over Arts. 2 and 8 ECHR, and this is not altered by thefact that their individual rights and associated positive obligations may
additionally lead to a general protection of societal interests (see AS para. 52
with references to the Court’s case law).
2.4.2. Question 3.2: Did the Applicants have effective legal remedies at theirdisposal to assert their civil rights (see, for example, Naït- Liman v.
Switzerland [GC], no. 51357/07, para. 113, 15 March 2018)?
2.4.2.1. Answer to the Court's question

170 The Applicants submitted in the Application (AS para. 45-48) that they did
not have an effective legal remedy at their disposal to assert their civil rights.
The Applicants fully uphold the statements made in the Application.

Cf. Posti and Rahko v. Finland, no. 27824/95, § 52, where the applicants complained that they
had no access to a tribunal within the meaning of Article 6 § 1 of the Convention in order tochallenge the fishing restriction imposed by governmental decree.

176

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2.4.2.2. Reply to the Respondent's arguments

171 The Respondent alleges that the application under Art. 6 ECHR is a fourth
instance complaint (para. 138), that the requirements entailed in Art. 25a
APA serve to ensure the proper administration of justice and prevent
applications that constitute an actio popularis (para. 140-143), and that there
is still some time to prevent global warming and to achieve the Applicant's
objectives by political means (para. 144). The Respondent argues that since
the judgements of the Federal Administrative Court and Federal Supreme
Court are neither arbitrary nor manifestly unreasonable, it is not up to the
Court to challenge their conclusions (para. 145).
172 The Applicants do not contest the limitations to the right of access to thecourts entailed in Art. 25a APA itself. But their application under Art. 6 does
not fall under the general ban on 'fourth instance' complaints. The domestic
courts applied the standing requirements arbitrarily,177 impairing the essenceof the Applicants’ rights178 under Art. 10 of the Swiss Constitution and Arts. 2
and 8 ECHR. The Applicants also submit that they applied these requirements
disproportionately given their duty to consider the nature of the rights atstake, as laid down in detail in the Application (AS para. 45-47).
173 To reiterate, the Federal Administrative Court and the Federal Supreme Court
both arbitrarily came to the conclusion that the Applicants’ appeals constitutean actio popularis, each with a different, likewise arbitrary argument. The
assessment of the FAC that the Applicants were not “particularly” affected by
the impacts of climate change (Application doc. 17 section 7.4.2 and 7.4.2) isin clear contrast with best available scientific evidence and the medical
certificates submitted by the Applicants (see Application doc. 16, section
2.1.2). Equally contrary to any scientific evidence was the finding by theFederal Supreme Court that there was still time to wait to combat dangerous
climate change. On this basis, the Federal Supreme Court found that the
Applicants would not be affected in their rights with sufficient intensity, andaccordingly it held that their claims aimed at an abstract examination of thedomestic climate measures (Application doc. 19 section 5.5). As laid down
again in the OF, there is no time left over to take the necessary measures if
global warming is to be limited to 1.5°C (OF section 3.3.9).
177
178

See e.g. García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29; Naït- Liman (n 85), § 116.
See e.g. Ashingdane v. United Kingdom, no. 8225/78, § 57; Naït- Liman (n 85), § 114.

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174 Undoubtedly, 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 (see also OF section 3.1).
175 The protection of individual human rights is also a matter for the Swiss courts(cf. the Respondent, para. 142). Art. 190 of the Swiss Constitution does notstand in the way of judicial review of Convention rights. In the so-called PKKjudgment,179 the Federal Supreme Court resolved the problems posed by
Swiss courts’ lack of constitutional jurisdiction in a case where Convention
rights were at issue. There, the Federal Supreme Court found that if there is a
conflict between federal acts and a Convention right, it will apply the ECHR.
Thus, regarding Convention rights, the Federal Supreme Court undertakes
constitutional review, even though this is not foreseen by the Constitution.180
Also, upon request by Appellants, the Federal Supreme Court has to review
federal laws in view of their compatibility with the Swiss Constitution andcan declare that federal law is unconstitutional.181 Art. 190 of the Swiss
Constitution, in other words, does not prevent the courts from examining theconstitutionality of federal laws, but only enjoins them to apply such laws
irrespective of their constitutionality.182 It has been argued that, in the eventof a finding of unconstitutionality, Parliament is eventually obliged to amend
the federal law accordingly; certainly, in general, Parliament reacts to suchdeclarations.183 Furthermore, a positive obligation to protect can lead to an
enforceable claim for protection if the necessary measures can be definedwithout concretization in a federal law.184

Swiss Federal Supreme Court, BGE 125 II 417 E.4.d.
KELLER/WEBER, Folgen für den Grundrechtsschutz und verfassungsrechtliche Gültigkeit der“Selbstbestimmungsinitiative” [Consequences for the protection of fundamental rights andconstitutional validity of the “Self-determination Initiative”], Aktuelle Juristische Praxis 8/2016, p.
1010.
181 EPINEY, Art. 190 BV, in: WALDMANN/BELSER/EPINEY (eds.), Bundesverfassung, Basel 2015,
Art. 190 N 35.
182 BBl 2010 2188, Stärkung der präventiven Rechtskontrolle, Report of the Swiss Federal Council,
5 Mar. 2010, citing Swiss Federal Supreme Court BGE 128 II 249 E. 5.4, S. 263; BGE 123 V 310 E.
6b/bb, S. 322; BGE 123 II 11 E. 2; BGE 117 Ib 367 E. 2f, S. 373.
183 EPINEY (n 181), Art. 190 N 36.
184 WALDMANN, Art. 35 BV, in: WALDMANN/BELSER/EPINEY (eds.), Bundesverfassung, Basel 2015,
Art. 35 N 50 with further references.
179
180

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2.5. Question 4: Did the Applicants have an effective remedy at their disposal
within the meaning of Art. 13 ECHR concerning the alleged violations ofArts. 2 and 8?
2.5.1. Answer to the Court's question

176 The Applicants submitted in the Application (AS section 3.3) that they did nothave an effective remedy at their disposal within the meaning of Art. 13
ECHR concerning the alleged violations of Arts. 2 and 8 ECHR. The
Applicants fully uphold the statements made in the Application.
2.5.2. Reply to the Respondent's arguments

177 The Respondent alleges that the Applicants challenge the CO2 Act (para.
149).
178 The Applicants submit that this is not the case. Their 2016 request to the
Respondent Government was a request to stop omissions in climate
protection and to issue a ruling pursuant to Art. 25a APA (and Art. 6 para. 1
and 13 ECHR, see Application doc. 14, and AS section 1.6). The Applicantsdemanded that to put an end to the unlawful omissions (i.e. "real acts" interms Art. 25a APA), the Respondent Government shall undertake effective
and preventive actions to protect them from the effects of increasing
temperatures, i.e. more frequent and stronger heatwaves. During thedomestic proceedings, neither the Respondent Government nor the domestic
courts contested that the omissions in climate protection can be considered asreal acts in terms of Art. 25a APA (see Application doc. 15, section 1.1; doc.
17, section 6.2; doc. 19, section 4.2). All such acts of government or of theexecutive fall within the scope of Art. 13 ECHR.185
179 The Respondent further alleges that since Art. 6 ECHR is not applicable, Art.
13 ECHR is not applicable either (para. 150).
180 The Applicants submit that Art. 6 ECHR is applicable (see above, section
2.4.1). They submit further that if the Court were to declare that Art. 6
ECHR is not applicable, this would not render it unnecessary to examine Art.
13 ECHR, since Art. 6 ECHR is deemed to be a lex specialis vis-à-vis Art. 13
ECHR.186

Al-Nashif v. Bulgaria, no. 50963/99, § 137; Wille v. Liechtenstein [GC], no. 28396/95, §§ 7678.
186 European Court of Human Rights, Guide on Article 13, 30 Apr. 2021, § 140.
185

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181 Contrary to the Respondent’s claims (para. 152), the possibility to make an
appeal is not in itself an effective remedy. As stated above, the Applicant’s
complaints were not examined in substance because the domestic courts
applied the standing requirements in an arbitrary manner (see above,para. 173). Art. 13 ECHR guarantees the availability at national level of a
remedy to enforce the substance of Convention rights in whatever form theymight happen to be secured in the domestic legal order.187 It requires theprovision of a domestic remedy allowing the “competent national authority”
both to deal with the substance of the relevant Convention complaint and to
grant appropriate relief. The remedy must be “effective” in practice as well as
in law.188 And, importantly, such a remedy must be available as soon as there
is an “arguable" complaint or grievance under the Convention.189 An“arguable claim” can be based on, but does not require, a finding that theConvention has been violated.190 In this case, given the nature of thecomplaints made under Arts. 2, 6 and 8 ECHR, the Applicants respectfully
submit that there is such an “arguable complaint”, and that the Respondent
was accordingly under an obligation to ensure that the Applicants had accessto an effective remedy.
182 The Respondent further points to the possibility of bringing liability
proceedings against the Respondent and of seeking compensation for harm
the Applicants have suffered (para. 153).
183 Hereto, it should be noted that the Court observed that the State’s positive
obligation to take appropriate measures to ensure the Applicant’s right torespect for family life risked becoming illusory if the interested parties only
had at their disposal a compensatory remedy, which could only lead to an aposteriori award for monetary compensation.191
184 In the present case, clearly, the Applicant's right to life and right to respect for
private and family life risk becoming illusory if they (or indeed, theirdescendants) could only claim for a posteriori financial compensation forharm to their life and health they have suffered due to excessive GHG
emissions, especially considering the irreversible nature climate change (seeRotaru v. Romania [GC], no. 28341/95, § 67.
See Wille (n 185), § 75.
189 Rotaru (n 187), § 67; Mugemangango v. Belgium [GC], no. 310/15, § 130.
190 Tanrıkulu v. Turkey [GC], no. 23763/94, § 118.
191 Macready v. the Czech Republic, nos. 4824/06 and 15512/08, § 48.
187
188

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AS para. 31). In state liability cases, courts may award only damage
compensation, but not provide for elimination of an unlawful situation.192
185 Furthermore, Swiss doctrine points out that a person affected by a real act
may indeed even be required to submit a request under Art. 25a APA in order
to not be held responsible in a later state liability procedure for not complying
with his or her duty to limit damages.193
186 In any effect, the Respondent did not show that the Applicants would have
had any chance of success by pursuing that remedy in domestic courts.194
3.

Conclusion

187 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, commiting and implementing ambitious climate action plans tolimit global warming to no more than 1.5°C.
188 Undoubtedly, 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.

KELLER/CIRIGLIANO (n 70), p. 844; Di Sarno and Others (n 69), § 87.
KIENER/RÜTSCHE/KUHN (n 71), N 436.
194 See Di Sarno and Others (n 69), § 87.
192
193

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4.

Requests to the Court

On the basis of the Application, the Observations on the Facts and the above
considerations, the Applicants hereby respectfully request the Court todeclare 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 isexceeding the level corresponding to the 1.5ºC above pre-industrial
levels limit.

(3)

5.

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.

Procedural requests

Against the background of the Application, the OF and the above
considerations, the Applicants hereby respectfully submit the following
procedural requests to the Court:

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(1)

Request for an oral hearing on the admissibility and merits of the case,which we ask would include the delivery of a presentation throughPowerPoint slides.

(2)

Request that, in accordance with Rule 34.4(a) of the Rules of the Court,
the President of the Chamber grants the Applicants leave to use theGerman language for its oral submissions.

(3)

Request that experts nominated by both Parties and by the Court,
should it wish to do so, be given the opportunity to provide oral
submissions during the hearing on the admissibility and the merits ofthe case.

Zurich, 13 October 2021
Yours faithfully,

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

Martin Looser
Attorney-at-Law

83