CYIL vol. 16 (2025)

CYIL 16 (2025) EC t HR JUDGMENT IN THE VEREIN KLIMASENIORINNEN SCHWEIZ AND OTHERS … In short, the Court concluded that the state had violated its positive obligations under Article 8 of the Convention. The Court approaches the issue from the perspective of whether Switzerland fulfilled its positive obligations to prevent individuals from suffering harm because of the negative effects of climate change. Considering, the Court’s previous case law on environmental matters and Article 8 of the ECHR, it can well be argued that this outcome should not have come as a surprise. The Court has frequently found that states have violated Article 8 where authorities have failed to take action to protect individuals from the harmful effects of environmental factors. 12 However, there are certain novelties in the judgment, as it differs from previous case law in two ways. First, because it does not involve negative effects in the applicant’s immediate environment, such as those caused by waste treatment plants or heavy industry. 13 Second, by accepting that a violation was found regarding the association due to possible effects on its members ‘or others.’ This is unusual and can likely be argued to be inconsistent with earlier case law, but it stems from the Court’s conclusion that the association has standing under Article 8, and is, to some extent, a logical continuation of that conclusion. Nevertheless, when assessing the precedent value of this judgment for other states, it must be kept in mind that it is based on the Court’s assessment of the situation in Switzerland. This means that when evaluating whether other states are also in breach, the situation in those states must be assessed, and it is possible that the outcome may differ. In other words, the assessment must be made specifically based on the circumstances in each individual state and on whether there are available remedies in that state for associations to challenge the matter before courts or by other means. Even so, one can argue that the message is clear - if a state fails to act effectively against the effects of climate change, it may be considered in violation of Article 8 and, where applicable, Article 2 of the ECHR. As previously mentioned, Article 8 of the ECHR provides for the right to respect for private and family life, home, and correspondence. Paragraph 1 proclaims these rights, while paragraph 2 addresses the limitations to the specified rights. As with Article 2 of the ECHR, Article 8 has been understood to entail both negative and positive obligations. The original purpose of the provision was to protect individuals from arbitrary interference by authorities that would infringe upon the rights described in paragraph 1 of the Article. Thus, the provision primarily imposes negative obligations, requiring the contracting states to refrain from such interference unless it can be justified under paragraph 2. The positive obligations consist in the right of individuals, under Article 8, to expect the authorities to take measures to ensure the effective protection of these rights. 14 The Article reads as follows: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the 12 Annalisa Savaresi, op. cit. , pp. 281–282. 13 In this regard, see i.e., Fadeyva v. Russia , App No 55723/00, (ECtHR June 9, 2005) para. 132 and Guerra and Others v. Italy , App No. 14967/89, (ECtHR, February 19, 1998), paras. 12–13; and 57. 14 European Court of Human Rights „Guide on Article 8 of the European Convention on Human Rights: Right to respect for private and family life, home and correspondence “(Council of Europe 2025), p. 8. Available at https://ks.echr.coe.int/documents/d/echr-ks/guide_art_8_eng (accessed June 16, 2025).

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