On April 9, a single panel of the European Court of Human Rights delivered three decisions (or “Grand Chamber rulings”) on climate change. Some headlines announced a landmark victory for Swiss seniors, but the reality – as always – is more complex. The decisions were written together by the same panel of judges. Read together, they show how applicants can use generational stereotypes to foster solidarity and achieve results: in this broader, proper context, Portuguese youths helped the seniors win by taking radical positions that made the (still ambitious) arguments of the older applicants more acceptable to a hesitant court.
Across all three cases, all but one claim was dismissed as procedurally defective, lacking jurisdiction, or otherwise inadmissible:
- Carême v. France: the career politician applicant could not claim victim status against France, as he had moved to Belgium to serve as an MEP, and his former municipality had no standing before the Court (¶¶83, 85).
- Duarte Agostinho and Others v. Portugal and Others: the Portuguese youths’ claims against Portugal were denied for failure to exhaust their domestic remedies, and their claims against 31 other European states-parties to the Convention were denied for lack of extraterritorial jurisdiction (¶¶214, 227).
- Verein KlimaSeniorinnen Schweiz and Others v. Switzerland: the four individual senior Swiss women were denied victim status because they failed to establish a sufficiently intense risk of harm from climate change (¶¶531-35).
The only successful claimant was the titular Verein KlimaSeniorinnen Schweiz: an association under Swiss law of 2,000 “older women” that was established to promote effective climate protection on behalf of its members. The Court found that, by failing to act promptly, appropriately, and consistently to establish a legal framework to reduce GHG emissions, Switzerland violated Article 8 (right to respect for private and family life) of the European Convention on Human Rights (¶573). It also held that Switzerland violated Article 6§1 (access to court) of the Convention.
The majority judgment in Verein KlimaSeniorinnen Schweiz may have significant impacts on climate action in Switzerland and across Europe. Time – and other lawyers – will tell. Due to the “essentially declaratory” nature of its judgments (¶656) and “the complexity and nature of the issues involved” (¶657), the Court found itself “unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment.” It ordered no remedy. Switzerland will decide how to respond.
Until then, by considering all three cases together, we can at least learn a few lessons about climate change advocacy.
First, status quo bias endures. All three cases almost failed entirely, and they reached the Court only because they had not succeeded in domestic proceedings (or, in Duarte Agostinho, because the applicants believed domestic processes simply could not address their urgent concerns). In Verein KlimaSeniorinnen Schweiz, the Court acknowledged that the “special features” of climate change warrant “a more appropriate and tailored approach as regards the various Convention issues which may arise” (¶¶422, 440 (positive obligations), 486-88 (Art 8 victim status), 513 (“real and imminent” risk to life), 608, etc.). By contrast, in Duarte Agostinho, it noted that climate change requires “specific assessment” (¶165) and then declined to reconsider other, more fundamental doctrines (i.e. extraterritorial jurisdiction (¶¶189-195, 208) and the requirement to exhaust domestic remedies (¶226)) that could significantly expand state responsibility. As noted above, after finding Switzerland had violated the Convention, the Court also found itself unable to identify or order any remedial measures (although it did briefly mention a carbon budget). As climate change gains momentum, institutional inertia becomes a more serious challenge. (see, e.g. KlimaSeniorinnen ¶639).
Second, stereotypes (another form of inertia) can provide leverage. These claimants played to type and, perhaps inadvertently, used generational stereotypes to their own ends. The impetuous, impractical youths rising up with family and friends to make radical demands contrasted sharply with the staid seniors who followed all the rules and had the resources to press their case at each level of the Swiss legal system. Meanwhile, the middle-aged establishment figure in Carême just faded into the background.
The applications do not appear to have been coordinated. Rather, the President of the Court decided to have the same Chamber hear all three cases, and the Court then signalled repeatedly that it had considered the cases together (Duarte Agostinho, ¶¶165, 189, 202, 207; Carême, ¶¶5, 7, 76; KlimaSeniorinnen ¶¶414, 442). Ultimately, the juxtaposition of stereotypes jostled loose a possibility: the youths disregarding decades of protocol and demanding systemic change to basic norms of international law made the disciplined seniors appear more reasonable. By giving the Court what it expected from their respective cohorts, the applicants were collectively able to achieve a perhaps unexpected result.
Even if it was serendipitous, and aside from the merits of the decisions, climate change advocates can learn from this example and look for other opportunities to harness stereotypes to our tactical advantage. The climate is changing faster than our minds are. Since generational stereotypes aren’t fading away, we had better learn how to use them.
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