Will the Swiss Grandmas Travel the World?

Anticipation has run high for what some call the KlimaSeniorinnen ruling delivered on 9 April 2024. While it is too early to definitively assess the KlimaSeniorinnen ruling’s impact on law and policy within and beyond the Convention’s scope, the initial outlook in Switzerland seems pessimistic. The Swiss action plan for implementing the ruling indicates a limited commitment to fully addressing the ruling’s substantive implications. This was foreshadowed by the Swiss parliament’s criticism of the ruling as ‘inadmissible and disproportionate judicial activism’.

In this post we canvas some initial contours of the ‘Strasbourg Effect’ of the KlimaSeniorinnen ruling outside the jurisdiction of the ECtHR. We compare its first effects in Australia and on submissions and arguments in the current proceedings for advisory opinions on climate change in the Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ). By contrasting these three very different proceedings at domestic, regional and international levels, we suggest that the ‘Strasbourg Effect’ of the KlimaSeniorinnen ruling may prove particularly complex. This complexity traces to anxieties that courts have about their role in addressing climate harms and the diversity of legal questions that climate harms raise. We intend to demonstrate how parties involved in proceedings, and courts in judgments, have referred to the KlimaSeniorinnen judgment to argue in favour for, and against, legal obligations on the state to mitigate emissions.

What is the Strasbourg Effect?

Unlike similarly named phenomena such as the ‘Helsinki Effect’, and the ‘Brussels Effect’, the ‘Strasbourg Effect’ refers to the CoE’s role in fostering human rights improvements within national jurisdictions, with potential impacts on legal standards, political accountability, democratic governance and judicial interpretation. More specifically, the term ‘Strasbourg Effect’ has recently been used to describe the effect that the ECtHR in particular might have on member states, notably on Russia. Understanding the ‘Strasbourg Effect’ narrowly only in reference to the ECtHR, we find a ‘Strasbourg Effect’ may occur in two different ways.

Firstly, the ECtHR may enhance human rights protection in states that are members to the European Convention on Human Rights (the Convention) and that are addressed directly in the judgments: this is the inter partes effect of an ECtHR judgment. However, tendencies in recent years point towards a backlash in compliance. The Swiss case might serve as an example here.

What about those member States that are not parties to the dispute? It might be interesting to point out that the legal effects of ECtHR judgments extend beyond the immediate context of inter partes, producing what some have denoted as res interpretata, thereby construing such judgments to have erga omnes partes effect.

Secondly, ECtHR judgments might produce what is called res interpretata. Res interpretata describes the erga omnes partes effect an ECtHR judgment might produce in other signatory states that were not party to the proceedings, but nevertheless change their domestic regulation according to the judgment to comply with the interpretation of the Convention.

Hence, thirdly, another, more indirect form of a ‘Strasbourg Effect’ could be the influence originating from references made to ECtHR judgments by domestic courts. This may happen in non-signatory countries as well, including Australia. Judges may consider the ECtHR decisions with a view to informing themselves about the relevant issues, definitions, proportionality assessments, and more broadly, to engage in a cross-border judicial conversation about law’s operation in complex and controversial matters. In the following case studies, we investigate this third, indirect ‘Strasbourg Effect’.

Selective Engagement – the Australian Living Wonders Case

Curiously, the ‘Swiss Grandmas’ ruling travelled all the way to Australia, appearing in the Living Wonders decision of the Federal Court of Australia handed down on 16 May 2024. However, the Federal Court relied on the judgment selectively to support its conclusion that existing legal regimes do not require the government to consider climate harms, despite the fact that Australia is neither part of the Convention, nor was Living Wonders a human rights case. Instead, the Living Wonders case was a strategic litigation claim, arguing that the Minister should consider the impact of all greenhouse gas emission of a project when deciding on whether an action needs approval under the EPBCA (s 75 EPBCA). The appeal decision selectively referred to the KlimaSeniorinnen judgment to conclude that the EPBCA is ill suited to assessing threats such as climate change. This limits the role of the courts or obligation of the Minister to consider it.

By referencing paragraphs 415-417 and 422 of the KlimaSeniorinnen judgment, where the ECtHR explains how climate change does not fit the Court´s prevailing environmental case law, the Australian Federal Court stated that the Living Wonders case “might […] raise the question whether the legislative scheme is fit for purpose in this respect”. But this reference was selective, and the Court cut short of mentioning the conclusion the ECtHR draws in referenced paragraphs, namely, that it needed to develop climate specific principles through extending the case law. This shows that – counterintuitively – the reference to KlimaSeniorinnen was selectively used to limit the potential for further climate litigation in Australia under relevant legislation. This is deeply ironic, as the ECtHR in KlimaSeniorinnen highlighted the importance of courts in climate protection.

Cross Reference to Submissions – Inter-American Court of Human Rights Advisory Opinion Proceedings

Colombia and Chile first requested an advisory opinion on climate change in January 2023 before the final KlimaSeniorinnen decision. Their request nonetheless relied on the ECtHR’s finding that the KlimaSeniorinnen proceedings were admissible to argue for the need for an advisory opinion. An amicus curiae filed in the IACtHR proceedings also highlighted the growth of claims being brought against individual states to argue for a need for clarity from a tribunal regarding state responsibility for climate protection.

Eight submissions brought by civil society organisations and amicus curiae in the proceedings for an advisory opinion referred to submissions that had been filed in the KlimaSeniorinnen proceedings. The UCL Public Interest Law Pro Bono Project cited submissions in the KlimaSeniorinnen proceedings to argue that states should only have a margin of appreciation in terms of the means they employ for mitigation, and that they should not have discretion regarding the minimum rate of emission cuts. Other submissions drew upon submissions in the KlimaSeniorinnen proceedings regarding the concurrent obligations of states and the status of the Paris Agreement. Alianza de Clínicas Jurídicas Ambientales de Latinoamerica y el Caribe relied on the KlimaSeniorinnen submissions to argue that the Paris Agreement could be used as benchmark to measure the extent of individual state obligation. La Asociación Interamericana para la Defensa del Ambiente (AIDA) highlighted the similarities between submissions by states in the KlimaSeniorinnen proceedings and states in the IACtHR AO proceedings that argued individual states could not be responsible for a collective global phenomenon. It noted that courts and tribunals have rejected this line of reasoning.

The trend in these submissions was to effectively ‘cross reference’ to the KlimaSeniorinnen proceedings to reject arguments regarding the difficulty of establishing legal standards to deal with climate harms. This contrasted to the Australian treatment of the KlimaSeniorinnen ruling we described above.

Diverging Directions – International Court of Justice Advisory Opinion Proceedings

In the ICJ AO proceedings, governments and international organisations referenced the KlimaSeniorinnen judgment to support various claims. Some, such as Vanuatu, argued that an individual State’s responsibility can be engaged for climate harm, despite the diffuse and cumulative nature of climate change causes and its global effects. Spain highlighted the judgment as an example of applying intergenerational equity and burden-sharing, urging the ICJ to adopt a similar interpretation of these principles. The International Union for Conservation of Nature (IUCN) pointed to the judgment to reiterate the positive obligations of States to establish and implement appropriate regulatory frameworks.

In contrast, other states such as Germany, used the judgment to restrict the extraterritorial application of human rights in the context of climate change harm. They argued that expanding extraterritorial jurisdiction too broadly could lead to an unlimited extension of states’ responsibilities worldwide, effectively turning human rights treaties into global climate agreements—something they were never intended to be. However, rejecting this overreach would not create a human rights protection gap, as the Paris Agreement already imposes legally binding obligations on states to tackle climate change.

These references show that the KlimaSeniorinnen judgment is being used in diverse ways, acting as a chameleon. Governments are interpreting it to either extend, restrict, or nuance State responsibility in the context of climate change, influenced by the regional and local human rights norms at play.

Conclusion

Even if the authority of the ECtHR can serve as a strong argument in future climate litigation proceedings, the case studies demonstrate that references to the KlimaSeniorinnen judgment may lead to different conclusions.

The Australian case study shows that courts might use any argument, no matter how promising, to conclude that climate mitigation efforts are not required by existing laws. A progressive climate litigation judgment in Europe does not necessarily lead to more progressive climate jurisprudence across the world. Rather, it depends on the claimants, the strategies, the legal context and finally the attitudes and beliefs of the court itself about its role in making the Strasbourg effect of the KlimaSeniorinnen judgment a climate positive one.

On the other hand, the IACtHR case study is a good example of how climate exceptionalism arguments can be circumvented. This aligns well with the perception of the ECtHR about its own role and the role of courts more generally in climate protection, as the ECtHR highlighted the importance of climate litigation to counterbalance deficits in democratic representation concerning young and future generations as the most vulnerable group to climate harms. It is therefore the role of courts to close this gap by overseeing state´s compliance with legal requirements and complement the democratic process. The submissions before the IACtHR also shed light on the potential of a ‘Strasbourg Effect’ for more climate protection through human rights regimes.

The submissions in the ICJ proceedings demonstrate the considerable scope for interpretation regarding the integration of climate protection into a legal regime — in this case, the human rights regime. Despite the undeniable success that KlimaSeniorinnen brought for climate protection through human rights, Germany´s submissions highlight the limits of human rights protection against the dangers of climate change that the ECtHR in KlimaSeniorinnen also faced. The argument that climate change is exceptionally difficult and therefore can´t be addressed by a legal regime not designed only for climate protection purposes will continue to persist. Unfortunately, this has not yet led to major changes in legal regimes to accommodate the complexity of climate change.

Therefore, we want to call for further vigilance. Neither the KlimaSeniorinnen judgment, nor progressive climate litigation judgments from other international courts, will solve the climate crisis and consolidate climate laws worldwide. Rather, solving the crisis will require further engagement with legal changes in all legal regimes. Still, it is undeniable that courts are key actors for harmonizing different legal regimes. Their work is especially crucial in the multi-layered climate law space. Even so, a court decision offers but one interpretation of a legal norm. In light of the backlash in both climate and human rights protection coming from the US, it will need more than courts to ensure climate protection.