Rosmarie Wydler-Wälti looks back on an activist life. Long before Chernobyl she protested against nuclear power and against the patriarchal exploitation of the earth, later she took to the streets for peace. Anne Mahrer experienced the 1973 oil crisis and enjoyed the empty streets: “The Sunday without cars was wonderful.” Norma Bargetzi-Horisberger remembers the resistance against the planned Swiss nuclear power plant in Kaiseraugst and the occupation of the power plant site by activists. A protest success story, the project was abandoned in the 1980s.
The three pugnacious women want to build on such victories. Except this time the fight is in the courtroom.
This Wednesday at 9.15 a.m., the Grand Chamber of the European Court of Human Rights in Strasbourg will open the case “Swiss Climate Seniors Association and others v. Switzerland”. A climate lawsuit against Switzerland, backed by Greenpeace.
Anyone who complains in Strasbourg must be able to claim that they are “particularly” affected
Behind it stand more than 2000 women; Bargetzi-Horisberger is on the board of the association, Wydler-Wälti and Mahrer are its presidents. And they have a strong argument: Because of their age – the club average is over 70 – they will suffer more from the heat waves of climate change than other people. Many of them are already feeling the heat of the summer as torture.
This not so small difference could prove to be a legal door opener. Anyone who sues before the Strasbourg court must be able to claim that they are “particularly” affected by the circumstances complained of.
For climate prosecutors, this proves to be an almost paradoxical hurdle that is also difficult to overcome in other courts: the more extensive and consistent the threat, the lower the chances that a court will even accept the case – because climate change affects everyone.
The other European court, the European Court of Justice in Luxembourg, dismissed a climate lawsuit two years ago with exactly this argument.
The fact that they have to fear for their health more than others because of their age could therefore be a legal advantage for climate seniors. Obviously, the court has decided to create more clarity for climate lawsuits. In addition to four senior citizens who are suing individually, the association itself has also filed a complaint.
But are clubs and associations allowed to sue in Strasbourg – i.e. where the rights of the people, not the associations, are at stake? The Court has not yet made a clear statement on this; for climate activists, the topic is central.
The European Court of Justice is breaking new ground in climate lawsuits
Also on Wednesday, the court will hear a lawsuit filed by Damien Carême, the former mayor of Grande-Synthe. The small town on the English Channel, threatened by rising sea levels, had achieved spectacular success with its lawsuit. The French Council of State had condemned the government to intensify climate protection efforts. Carême’s individual lawsuit, however, failed. He now wants to have this checked in Strasbourg – because not only the municipality, but also himself is up to his neck in water.
But even if the court lowers the formal legal hurdles, that does not mean that it will ultimately classify the inadequate Swiss climate policy as a violation of human rights. Specifically, it is about Articles 2 and 8 of the Human Rights Convention – the right to life and health and the protection of private and family life. In environmental protection cases, the Court has condemned states to take “reasonable steps” to protect the lives of their inhabitants. When it comes to climate lawsuits, however, he is breaking new ground.
It will be a few months before the verdict is announced. Should the court decide to enshrine a state duty to protect against the consequences of climate change, this would be a tremendous victory for the plaintiffs. Even if Switzerland is not sentenced to a precisely quantified reduction in emissions, but only to the “appropriate steps” mentioned. It would be a judgment with Europe-wide validity: the court is an institution of the Council of Europe, to which 46 states belong.
In the years 2015 to 2019, Dutch courts had already demonstrated how national courts can advance climate protection with the help of human rights. In several instances, they condemned the Dutch government to reduce greenhouse gas emissions by 25 percent by the end of 2020. In doing so, they referred to Articles 2 and 8 of the Human Rights Convention – even without the Strasbourg guidelines.
In addition, a climate judgment by the European Court of Human Rights would be one of the weights with which Justitia examines and weighs the pros and cons of many lawsuits relating to climate protection. In the case of motorway projects, it could reduce the planners’ chances, but for wind farms and power lines it would be a plus. Human rights alone will not decide on major projects. But when things get close, they can tip the scales. And when is the conflict between climate protection and economic interests not tight?