Written by Aoife Nolan

It was immediately evident that the European Court of Human Rights judgment in Verein  KlimaSeniorinnen v. Switzerland was groundbreaking in multiple regards and will prove fundamentally important in terms of shaping and, in many ways, advancing climate justice litigation at the European, international and domestic law levels. That decision, as well as those in Duarte Agostinho and Others v. Portugal and 32 Others and the Carême v. France have already been discussed extensively (see here, here and here). As such, this post focuses on one element of that decision: namely the issue of future generations and intergenerational equity. It argues that in KilmaSeniorinnen, the Court pushed forward its work in this area very significantly, reflecting a strong awareness of the inter-generational aspects of climate change and efforts to address such, as well the disadvantaged position of democratically marginalised groups vis-a-vis contemporary democratic decision-making on these matters.

Intergenerational equity and future generations during the litigation process

On the one hand, it is arguably surprising that a case involving the rights of older persons should serve as the basis of the most extensive statements made thus far by the Court with regard to the Convention, future generations and inter-generational equity. Indeed, in contrast to the Duarte application, which forms part of the growing body of litigation involving child/youth rights explicitly seeking to address the inter-generational impacts of climate change (see here , here and here), arguments relating to the principle inter-general equity did not form a key part of the original complaint in KilmaSeniorinnen. On the other hand, the application’s focus on global warming and the Swiss authorities’ failure to mitigate climate change in terms of their obligations under the Convention meant that the litigation necessarily had a strong future-oriented and intertemporal dimension.

In its questions to the parties, the European Court asked whether ‘given its margin of appreciation in environmental matters, has the Respondent State fulfilled its obligations under the Convention guarantees being relied upon here, read in the light of the relevant provisions and principles, such as the principles of precaution and intergenerational equity, which are contained in international environmental law?’ (Unsurprisingly, it posed similar questions in the Duarte case). In its reply, the Government stressed that the principle of intergenerational equity is not established as a rule of international law and noted that the applicants had not invoked this principle, ‘which concerns inter alia the interests of future generations’. In doing so, it argued that the applicants were a part of the present generation who were neither entitled to assert the rights of future generations before the Court, nor able to do so as the status of victim can only belong to existing people and not to future generations. The Government made clear its view that ‘the principle of intergenerational equity cannot help to answer this question [of whether the government was in compliance with its Article 2 and 8 obligations], such that it is irrelevant in the present case’.  Nevertheless, the Government hedged its bets, stating that, If the Court should nevertheless take the principle of intergenerational equity into account in the present case, the Government was of the opinion that Switzerland had fully complied with the requirements of this principle.

In its reply to the Government’s observations on the law, the applicants asserted that the principle of intragenerational equity, has in fact been accepted by states as a norm of international law. In underlining the relevance of both intergenerational and intragenerational equity (the latter issue will not be addressed in this piece), they argued that one of the objectives of the organisational applicant was ‘to protect the interests of current senior women and future senior women, as well as protecting the climate for the interests of future generations’ (italics in the original). The applicants concluded that the government could not dismiss the principle of intergenerational equity as it is an important norm of international law by which Switzerland is bound and which informs its obligations under the ECHR.

Intergenerational equity and the rights of future generations were also raised in a number of third-party interventions in the KlimaSenniorin litigation, including those of the UN High Commissioner for Human Rights, and the European Network of National Human rights Institutions and the International Network for Economic, Social and Cultural RightsUnsurprisingly, given the focus of the child/youth-oriented Duarte litigation, including argumentation on youth discrimination, inter-generational equity and the rights of future generations were raised to a significantly greater extent in the third party interventions associated with that latter case – interventions that the Court can be understood to have read and to have shaped its understanding with regard to the issue of inter-generational equity generally, despite its finding of inadmissibility in the Duarte litigation.

In the public hearing in KlimaSeniorinnen, members of the Court made reference to the issue of future generations and inter-generational equity in the context of questions on the precautionary principle and the issue of ‘fairness between generations’ (Judge Bårdsen), as well as in the context of victim status, with Judge Guyamor noting that there is ‘an inter-generational inter-individual dimension to problems when it comes to climate change’. (In contrast, in the Duarte hearing, questions focused primarily on exhaustion of domestic remedies (and remedies available through EU law)  and jurisdiction, with no specific focus on inter-generational justice or future generations).

Intriguingly, in its response to the questions posed by the judges, the applicants’ lawyers in KlimaSeniorinnen asserted that – despite the legal authorities cited by it that directly addressed this issue and the points made in its submissions to the Court – ‘the inter-generational issue does not arise in this case but it may of course arise for the Court in another case’. (2:39:02). The approach adopted by the Court in its judgment made clear that it did not agree.

Inter-generational equity through inter-generational burden-sharing

Interestingly, the ECtHR majority did not use the terms ‘inter-generational equity’ or ‘inter-generational justice’ in the assessment part of its decision (although the latter was used by Judge Eicke in his dissent), despite the employment of that term in its questions to parties. However, the Court’s concern with the inter-generational implications of climate change was addressed immediately in the opening paragraph of its assessment, which stressed its awareness that ‘that the damaging effects of climate change raise an issue of intergenerational burden-sharing … and impact most heavily on various vulnerable groups in society, who need special care and protection from the authorities’ (para 410).

The Court proceeded to give attention the issue of inter-generational equity when differentiating between its existing, extensive case-law in environmental matters and the issue before it. As part of this exercise, the Court highlighted that ‘in the context of climate change, the key characteristics and circumstances are significantly different’ (para 416) for a range of reasons. In doing so, it stressed that policies to combat climate change (which it described as a ‘polycentric issue’) ‘inevitably involve issues of social accommodation and intergenerational burden-sharing, both in regard to different generations of those currently living and in regard to future generations’ (para 419).  The Court noted that in the specific context of climate change, ‘intergenerational burden‑sharing assumes particular importance both in regard to the different generations of those currently living and in regard to future generations’ (ibid).  The Court thus designated ‘future generations’ as people not yet in existence, rather than as a category potentially including existing right-holders such as children. (For more on the definition of FG, see here and here).  The judgment was explicit that the obligations arising for States under the Convention extend to ‘those individuals currently alive who, at a given time, fall within the jurisdiction of a given Contracting Party’.  However, the ECtHR went on to state that ‘it is clear that future generations are likely to bear an increasingly severe burden of the consequences of present failures and omissions to combat climate change and that, at the same time, they have no possibility of participating in the relevant current decision‑making processes.’ (I will return to this point below).

The Court’s deployment of the concept of inter-generational burden-sharing appears to draw directly on the approach adopted by the Bundesverfassungsgericht  (the German Federal Constitutional Court) in Neubauer (discussed here). That decision was referred to by the ECtHR in its judgment (albeit not explicitly in this context), the parties to the case and the third-party intervenors.

In Neubauer, the Bundesverfassungsgericht found a violation of fundamental rights due to the  legislator’s failure to take sufficient precautionary measures in terms of the 2019 Federal Climate Protection Act to manage the obligations to reduce emissions in ways that respect fundamental rights. The decision focused in particular on Article 20a of the Grundgesetz (German Basic Law) which provides that: ‘[m]indful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order’. Here The Bundesverfassungsgericht stated that ‘under certain conditions, [Article 20a of] the Basic Law imposes an obligation to safeguard fundamental freedom over time and to spread the opportunities associated with freedom proportionately across generations’ (Neubauer, para 183). Furthermore, as ‘intertemporal guarantees of freedom’, fundamental rights afforded the (living and in some instance child/youth) complainants protection against the greenhouse gas reduction burdens imposed by the German Basic Law ‘being unilaterally offloaded onto the future’ (ibid).

This concept of inter-temporal or inter-generational burden-sharing also played a key part in the ECtHR’s decisions on the merits in relation to Article 8. The Court made clear that effective respect for the rights protected by Article 8 of the Convention requires that each Contracting State should undertake effective measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades. In order for this be ‘genuinely feasible and to avoid a disproportionate burden on future generations’ (para 549), the Court specified a range of detailed  regulatory and other measures to be taken by states parties. (For more, see here). As such, the Court’s concern with inter-generational equity directly shaped its approach to the delineation of measures that states are obliged to take in terms of their positive obligations to secure the Article 8 ‘right for individuals to enjoy effective protection by the State authorities from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change’ (para 544) identified in the decision.

Indeed, even Judge Eicke in his dissent did not deny the inter-generational implications of climate change. Having stated that ‘Of course, I also, in principle, perfectly understand (and share) the majority’s desire to ensure inter-generational justice and to “avoid a disproportionate burden on future generations” (§ 549)’, Judge Eicke concluded there was ‘no basis for drawing any enforceable obligation from the current text of the Convention to combat future risk in respect of the applicants before the Court and even less to combat a “future risk” in respect of “future generations”, i.e. by or on behalf of individuals who are, by definition, not even before the Court’ (Dissenting opinion para 42). He based this finding inter alia on the lack of an express provision in the Convention akin to Article 20a of the German Basic Law as considered by the Bundesverfassungsgericht in Neubauer. As such, even the member of the Court who disagreed with the majority’s ultimate approach to intergenerational justice and future generations acknowledged the concerns raised in this regard by climate change.

Beyond democratic decision-making

I will now return to the Court’s statement quoted above on the democratic exclusion of future generations from climate change-related democratic decision-making despite the disproportionate impacts on them of state failure to address climate change. This aspect of the judgment also chimes with the Neubauer decision.

In that ruling, the Bundesverfassungsgericht concluded that environmental protection is elevated to ‘a matter of constitutional significance’ under the German Basic Law for two reasons: first,  because the democratic political process is organised along more short-term lines based on election cycles, thereby ‘placing it at a structural risk of being less responsive to tackling the ecological issues that need to be pursued over the long term (para 205) and, second, that  future generations ‘have no voice of their own in shaping the current political agenda’ (Ibid). The Bundesverfassungsgericht  concluded that ‘In view of these institutional conditions [Art. 20a] poses substantive constraints on democratic decision-making’ (ibid). (Discussed here and here).

In its judgment in KlimaSeniorinnen, the European Court of Human Rights stated that in the context of climate change ‘having regard to the prospect of aggravating consequences arising for future generations, the intergenerational perspective underscores the risk inherent in the relevant political decision‑making processes, namely that short‑term interests and concerns may come to prevail over, and at the expense of, pressing needs for sustainable policy‑making, rendering that risk particularly serious and adding justification for the possibility of judicial review’ (italics added).

As such, the Court arguably does not simply assert that Convention rights may serve to constrain democratic decision-making that would serve to disadvantage those with no voice in democratic decision-making processes. Rather, it explicitly represents the shortcomings and temporal bias in those processes as serving as the basis for judicial intervention. (A discussion of this point more broadly can be found here and here). In doing so, it arguably goes beyond the approach of the Court in Neubauer, which merely stated that the binding of the political process by Article 20a ‘would be in danger of being lost if the material content of [Art. 20a] were fully determined by the day-to-day political process with its more short-term approach and its orientation towards directly expressible interests’ (Neubauer 205). This element of the ECtHR’s judgment aligns with a 2020 Opinion of the Venice Commission, quoted in the ‘relevant international materials’ section of the decision, which stated that ‘[a]s the future generations do not take part in present day democracy and do not vote in present day elections, the judicial branch appears to be best placed to protect the future generations against the decisions of present-day politicians’ (para 199).

More broadly, the Court’s concern with justifying its role vis-à-vis reviewing  climate change-related outputs of national level democratic decision-making is evident elsewhere in its judgment: for instance, when outlining its competence ‘albeit with substantial deference to the domestic policy-maker and the measures resulting from the democratic process concerned’ in cases where complainants relate to State policy raise an issue of Convention rights and hence ‘a matter of law having a bearing on the interpretation and application of the Convention’, not merely a matter of policy or politics (para 450). It also made clear that when assessing whether states were acting within their margin of appreciation, the Court would have regard to whether procedures were ‘available through which the views of the public, and in particular the interests of those affected or at risk of being affected by the relevant regulations and measures or the absence thereof, can be taken into account in the decision-making process’ (para 554). This was in the face of submissions on the part of the Swiss authorities and the intervening Irish and Norwegian authorities (both of which had been on the receiving end of domestic climate change litigation) that addressing CC was for the democratic decision-making process and hence not for the Court. As such, democracy-related concerns are at the heart of the judgment (a judgment which was handed down against the backdrop of the Swiss electorate’s rejection by referendum of GHG-limiting legislation) (discussed here).

The ECtHR’s concern with the democratic exclusion or marginalisation faced by many of those most at risk of climate change  was also reflected in its discussion of victim status and locus standing when addressing the standing of associations. There has already been analysis of the way in which the  Court set out new principles on standing (victim status) in climate change cases (here and here) and I will not repeat this here. Rather, I wish to highlight that when discussing that issue, the Court highlighted that, in the context of climate change ‘where intergenerational burden-sharing assumes particular importance … collective action through associations or other interest groups may be one of the only means through which the voice of those at a distinct representational disadvantage can be heard and through which they can seek to influence the relevant decision-making processes’ (para 554). This reinforces the strong sense the judgment provides of the Court’s preoccupation with the disadvantages posed to particular groups by democratic decision-making on climate change.  

It is worth noting in this regard that this concern applies not just to future generations but also to children and other groups that do not enjoy effective participation and representation in democratic decision-making on climate change. As such, while Duarte was deemed inadmissible, KlimaSeniorinnen clearly sets the scene for future climate change litigation brought by children’s rights organisations that meet the requirements sets out in para 502 of that judgment. There is thus a clear symbiosis between the two cases in terms of the overall climate justice schema at the European level.

Conclusion

There is much left to be said about the ECtHR’s approach to inter-generational equity and future generations. Ultimately, however, the KlimaSeniorinnen was a very significant step forward in terms of the Court’s approach to future generations and inter-generational equity.  These issues are of direct relevance to a number of the cases stayed pending the resolution of KlimaSeniorinnen, Duarte and Careme, including Greenpeace Nordic and Others v. Norway. The Court’s engagement is therefore necessarily a ‘work in progress’.