In July 2024, I wrote, together with Chhaya Bharwaj, that the execution of the first climate mitigation judgment of the European Court of Human Rights, Verein KlimaSeniorinnen v. Switzerland, was a space to watch.
This was because the Court found, for the first time, that the lack of an adequate legislative framework to mitigate the effects of climate change constituted a violation of the right to privacy and family life under Article 8 of the European Convention of Human Rights (ECHR). In its obiter dicta, the Court held that a) Switzerland needed to enact new legislation that specifies concrete climate mitigation targets for the period after 2024, and b) that this new legislation should quantify ‘a carbon budget, or otherwise national greenhouse gas limitations’. (para 570). Under Article 46 of the ECHR, however, the Court took a declaratory stance towards remedies. It held that “given the differentiated margin of appreciation accorded to the State in this area, the Court considers that the respondent State, with the assistance of the Committee of Ministers, is better placed than the Court to assess the specific measures to be taken”. (para 657).
Put simply, the European Court put the ball to the court of both Switzerland and the Committee of Ministers to figure out, in concrete ways, how the judgment would be implemented.
Eight months on, the implementation of this judgment continues to be a process to watch not only for Verein KlimaSeniorinnen, but also for anyone mobilising before the European Court of Human Rights to galvanise effective climate action through human rights litigation.
Here, I analyse the key developments that took place in the execution process of this judgment before the Committee of Ministers, the inter-governmental body tasked with monitoring the execution of all the Court’s judgments under Article 46 of the ECHR.
Swiss Action Report of 9 October 2024
The process for the Committee of Ministers to monitor the execution of a judgment starts after a government submits an action plan or report to the Committee. An action plan is a detailed document that explains how the government plans to redress the violations found and ensure their non-repetition. An action report outlines how the judgment has already been implemented. The submission of an action report signals that the state wishes for the Committee of Ministers to close the monitoring process given that it has taken satisfactory action.
In Verein KlimaSeniorinnen vs Switzerland, the deadline for the government submission was 9 October 2024, which the Swiss government met. Significantly, however, Switzerland submitted an action report, not an action plan.
In its action report, Switzerland stated that its Parliament had already taken measures after the judgment of April 2024. Specifically, the authorities referred to the revised Co2 Act and the law on a secure electricity supply, which both came into force on 1 January 2025 (Section 5.2 of the Action Report). According to the Action Report, the Revised Co2 Act set targets and measures, committing Switzerland to halve its greenhouse gas emissions compared to 1990 levels by 2030. The government also clarified that if it failed to meet this target by reducing emissions at home, any difference would be made up through emission reductions abroad.
The authorities also informed the Committee of Ministers that they would continue to take action in the future. That is, they would regularly communicate their improved nationally determined contributions (NDCs) to the United Nations Framework Convention on Climate Change (UNFCCC) Secretariat as per the Paris Agreement.
With respect to the Court’s specific finding under paragraphs 570-572, on the need to quantify a carbon budget (or otherwise national GHG emissions limitations) to effectively comply with its regulatory obligation under Article 8 of the Convention, the Action Report held that it was not easy to allocate a carbon budget due to the diversity of methodologies to do so. Crucially, it then stated the following:
‘During the negotiations on the climate agreement, Switzerland defended the idea of agreeing emission reduction targets for each country. However, this approach was not adapted by the international community. As a result, the climate agreement does not define precise quantified targets, nor does it require the Parties to provide for national budgets. It does, however, stipulate that countries must set themselves even higher emission reduction targets. In addition, each state must explain why it considers that the NDC it has identified is fair and ambitions in the light of the national context. The decisions of the Conference of the Parties may also give additional recommendations on the elements that the national climate objectives must take into account. For example, the targets set for 2025 must contribute to limiting global warming to 1.5 degrees Celsius.’ (Section 5.2.5 of the Action Report entitled Carbon Budget).
The Swiss Action report, therefore, agreed that national targets must contribute to limiting global warming to 1.5 degrees Celsius but contested the Court’s finding that Article 8 complaint legislation requires the specification of national carbon budgets (a point that it also made during the litigation phase before the Court).
Rule 9.1. and 9.2 Communications to the Committee of Ministers
A unique and positive feature of the supervision of human rights judgments at the Council of Europe is the possibility for injured parties, non-governmental organisations and national human rights institutions to make communications to the Committee of Ministers, providing their own assessments of what is required to implement a judgment and whether the state authorities are taking adequate steps to meet these requirements. These communications are called Rule 9.1 communications when submitted by injured parties and Rule 9.2. communications when lodged by NGOs and national human rights institutions, short hands for the number of the Rule provided in the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.
In this case, the Verein KlimaSeniorinnen, three other groups of NGOs and the Swiss National Human Rights Institution all lodged communications explaining in non-technical and accessible terms why Switzlerland’s action report needed to be rejected and why instead Switzerland needed to submit an action plan to lay out specific measures to implement this judgment. For brevity, I will refer below to one of the Rule 9.2. NGO submissions led by Greenpeace International and the Climate Action Litigation Network.
This Rule 9.2. communication held that the Swiss Action Report fell short of implementing the judgment because it clearly requires a 1.5 degrees Celsius aligned national carbon budget and in turn, a regulatory framework that sets requisite objectives and goals to meet that budget.
The communication explained that the quantification of a national carbon budget flows scientifically from legally committing to a global temperature threshold 1.5°C. All states need to quantify a national carbon budget based on the global carbon budget that can maintain the global temperature threshold.
In response to the Swiss Action Report’s position that it was not easy to quantify a national carbon budget due to methodological differences, the NGOs underlined the European Court rejected this argument during the litigation phase and therefore the fact that there are a range methodologies to undertake this exercise does not absolve the authorities from their duty not to undertake the exercise. The NGOs explained that:
‘Switzerland could, for example, have calculated its share according to its respective capabilities, or “own capacities”, as indicated in the Court’s judgment (§442). This would have required an in-depth investigation of the reduction possibilities of all emissions sources. Instead, it has simply taken the current climate targets and mapped the amount of cumulative emissions expected to flow from those. This is simply a declaration of intent to emit greenhouse gases irrespective of the remaining global carbon budget and of its fair share.’
The NGO submission also raised important caution about the risks that accepting the Swiss position would cause for the authority of this landmark judgment of the European Court of Human Rights:
‘If Switzerland pursues the emissions trajectory resulting from the policies it identified in its Action Report (50% reduction until 2030 and 75% until 2040 compared to 1990), then the NGO’s own calculations show that Switzerland’s most lenient remaining carbon budget of 0.26 Gt CO2 will be entirely used before the end of 2032. Thus, Switzerland presents a climate policy framework that – if copied by all countries – would exceed the remaining CO2 budget to stay within the 1.5°C-limit (50% probability) in ways which, in the words of the Court, pose “existential risks” (§417) with the potential to destroy “the basis of human livelihoods and survival” (§421).’
The Committee of Ministers
The Committee of Ministers discussed the implementation of this case in its March 2025 session. In its decision on 6 March 2025, the Committee first held that:
‘This case concerns the authorities’ failure to sufficiently comply with their positive obligation to adopt, and effectively apply, regulations and measures capable of mitigating the existing and potentially irreversible, future adverse effects of climate change (violation of the right to private and family life and home) and that the Court’s findings that climate change is one of the most pressing issues of our times and that the inadequacy of past State action to combat climate change globally aggravated the risks of adverse consequences and the ensuing threats for the enjoyment of human rights.’
It then explained that the judgment under Article 8 requires the Swiss authorities to take measures capable of mitigating the existing and potentially irreversible, future effects of climate change; adaptation measures aimed at alleviating the most severe or imminent consequences of climate change.
Crucially, whilst applauding the laws that have been passed by Switzerland after April 2024, the Committee invited the authorities to:
‘further demonstrate that the methodology used to devise, develop and implement the relevant legislative and administrative framework responds to the Convention requirements as detailed by the Court and relies on a quantification, through a carbon budget or otherwise, of national greenhouse gas emissions limitations.’
This means that the Committee of Ministers upheld that the Court’s obiter dicta on the need for quantifiable carbon budgets, or otherwise, of national greenhouse gas emissions limitations was the central finding that needs to guide the concretisation of remedies by Switzerland.
What This Means and What Is Next
This is a landmark decision by the Committee of Ministers, worthy of what was also a landmark judgment of the European Court. With this decision, the political organ of the Council of Europe ensured respect for the authority of the judgment of the European Court of Human Rights on the one hand and set a precedent for how future climate litigation judgments will be monitored at the political level. The process to date has also shown the importance of sustained civil society engagement with the implementation of the judgment.
The journey of the full and effective implementation of Verein KlimaSeniorinnen judgment will continue for some years to come. The examination of the implementation of the judgment by the Committee of Ministers will resume in September 2025. Implementing the judgment will no doubt need sustained civil society engagement both domestically and before the Committee of Ministers. If it takes a village to litigate climate change cases, then it takes even a bigger village to implement them.