A. Introduction
The European Court of Human Rights (ECtHR) judgment in Verein KlimaSeniorinnen v. Switzerland has been hailed by many as a landmark case in climate change and human rights litigation.Footnote 1 However, the response by Switzerland, as well as other intervening parties has been less favorable.Footnote 2 Especially, the Swiss legislative branch has been very critical in its review of the judgment, claiming that it amounts to judicial activism.Footnote 3 Similarly, the Swiss executive has been skeptical as well and has argued that Switzerland, after passing a revised CO2-Act, is now in compliance with the European Convention on Human Rights (ECHR)—especially Article 8. Like the legislative branch the executive branch has also voiced concerns about judicial overreach.Footnote 4 Further, Judge Eicke—the British judge at the ECtHR—in his partly concurring and partly dissenting opinion in KlimaSeniorinnen has been critical as to whether the Court could and/or should have made such a judgment.Footnote 5 In short, the separation of power critique that the Court should never have passed judgment at all has become common. In contrast, the findings of the Court on the impacts of climate change on human rights have been less criticized.
This analysis will examine whether this is a unique and Swiss-specific criticism or if there is an inherent issue when it comes to climate change litigation in the field of human rights and the separation of powers. The Article first defines climate change litigation in the field of human rights as well as the separation of powers in international law. Second, it will dissect the criticism voiced in the aftermath of the KlimaSeniorinnen judgment. Then, it sets out to compare this case to similar cases by national courts, especially the Dutch Urgenda case and the German Federal Constitutional Court’s Neubauer et al. v. Germany (2021), to examine whether the criticism is particular to the Swiss system or can be found in other jurisdictions as well. Further, the outcomes of this section will hint at whether such criticism occurs on the domestic as well as the international level. In the section thereafter the Article will compare decisions of international bodies, namely the United Nations Human Rights Council (UNHRC) and the Inter-American Court of Human Rights (IACtHR) and will ask whether separation of powers arguments have been involved in the aftermath of those decisions. The last section of the analysis will explore criticism of the ECtHR in regard to the separation of powers for cases other than climate litigation to assess its contribution to the backlash in the aftermath of KlimaSeniorinnen. The final section will provide possible ways to challenge the separation of powers criticism. The Article will conclude by giving an overview of the above findings and an outlook on further research possibilities.
B. Mapping the Field, Climate Change Litigation and the Separation of Powers
Climate change litigation in the field of human rights is a fairly recent movement, especially on the international stage.Footnote 6 While the separation of power criticism international human rights courts face is not new, recently it has garnered support in the area of international climate change litigation often invoked by courts themselves.Footnote 7 When courts address the separation of powers issue that arises in international human rights litigation, it is less criticism and more careful judicial argumentation along the lines of what under the ECHR framework is known as “margin of appreciation.” The latter is an elaboration of the subsidiarity principle and states that national authorities are in principle better placed than an international court to evaluate local needs and conditions.Footnote 8 The subsidiarity principle ensures that respect for the Convention lies primarily with the authorities of the Contracting States and only where the domestic authorities fail, the ECtHR should intervene.Footnote 9 This Article will focus on how the Court addresses the separation of powers issue in Section F where it looks at possible ways to challenge the criticism voiced by other actors, such as other branches of government and the media.
Climate change litigation in the field of human rights is, for the purpose of this Article, limited to the ECtHR jurisprudence. This is not only because it is the most advanced regional human rights system but also because of its focus on individual action.Footnote 10 By relying on individual applications the ECHR system is even more susceptible to the separation of powers criticism because states can be held to violate the Convention without their government having decided to initiate proceedings.
Originating from Montesquieu’s ideas of trias politica separation of powers is understood as the distribution of power among the three branches of government: the Legislative, the Executive, and the Judiciary branch.Footnote 11 Inherently related to the separation of powers is the concept of “checks and balances,” which establishes a balance between the three separate powers of the state by giving each the power to limit or check the other two.Footnote 12 In international law, the horizontal dimension of the separation of powers is expanded by a vertical dimension.Footnote 13 Increasing supra- and internationalization has limited national courts and legislatures posing questions of constitutional review of supra- or international acts and, being the focus of this Article, of supra- or international review of domestic acts.Footnote 14 By subjugating themselves to international human rights regimes, in this case the ECHR, nation states agree that their domestic branches be checked and limited by an international body.Footnote 15 However, the jurisdiction of the ECtHR is limited to ensuring compliance only with the ECHR and, thus, not as broad as the jurisdiction of domestic courts.Footnote 16 The separation of powers criticism concerning ECtHR jurisprudence has been overarchingly voiced as some form of judicial overreach.Footnote 17 Lambrecht subdivides this criticism into four categories:
(1) [M]ethods of interpretation: e.g. too expansionistic case law, over-extensive interpretation of Convention rights, establishing new rights and positive obligations; (2) too far-reaching scrutiny: e.g. neglecting its subsidiary function, need for a broader margin of appreciation, acting as a “fourth instance” or an “appellate court,” granting too little weight to balancing of rights by domestic courts; (3) scope of review: e.g. interpreting domestic law, examining facts arising after final domestic decision and (4) disregard for national sensitivities or specificities: especially religious, historical, cultural, political and ethical sensitivities.Footnote 18
For simplicity reasons this Article, will only use the term “separation of powers criticism.” It is meant to include the above categories.
C. KlimaSeniorinnen v. Switzerland: The Separation of Power Criticism
On April 9th, 2024, the ECtHR published its first judgment on the relation between climate change and human rights. In KlimaSeniorinnen v. Switzerland, four elderly women as well as the NGO KlimaSeniorinnen claimed that Switzerland was in breach of its human rights obligations under the Convention. The applicants argued that Switzerland, due to the lack of efficient measures to combat climate change, violated Article 2, the right to life, and Article 8, the right to private and family life, of the ECHR. Before evaluating possible violations of the Convention articles the Court included some general remarks on climate change and human rights such as questions of causation and issues of proof.Footnote 19 The Court explained that it would take:
[I]t as a matter of fact that there are sufficiently reliable indications that anthropogenic climate change exists, that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States are aware of it and capable of taking measures to effectively address it, that the relevant risks are projected to be lower if the rise in temperature is limited to 1.5° C above pre-industrial levels and if action is taken urgently, and that current global mitigation efforts are not sufficient to meet the latter target.Footnote 20
It even explicitly stated that it can only deal with these issues within the limits of its competence and that judicial intervention “cannot replace or provide any substitute for the action which must be taken by the legislative and executive branches of government.”Footnote 21 The Court then proceeded to hold the claims of the applicants to be partly successful. While the threshold for a violation of Article 2 ECHR had not yet been reachedFootnote 22 Switzerland was indeed in breach of its obligations under Article 8 ECHR.Footnote 23 The majority concluded that “there were some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations.”Footnote 24 Further, it held that “b]y failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context.”Footnote 25
The judgment has been heavily criticized by the Swiss legislature and executive branches.Footnote 26 Within hours—and even minutes—of the publication a wave of negative reviews flooded Swiss news outlets.Footnote 27 The Tagesanzeiger published an opinion piece alleging that democracy itself would come under pressure once courts start to “dictate” climate policy.Footnote 28 In a guest commentary in Neue Zürcher Zeitung (NZZ) Ulrich Meyer argues that the Court has crossed the Rubicon and that the judgment was politically motivated and not even beneficial for the applicants.Footnote 29 The Schweizer Radio und Fernsehen asked their readers: “Do you think it’s good when courts interfere in climate policy?”Footnote 30 And finally, the Aargauer Zeitung saw democracy “overridden.”Footnote 31 In June, the Swiss legislature accused the ECtHR of judicial activism, alleging that the Strasburg judges had invented a new human right that wasn’t based on the Convention’s text.Footnote 32 Moreover, they suggested the chamber had disregarded the subsidiarity principle and questioned the Court’s legitimacy, noting that they worry this judgment could lead to a weakening of human rights protection in Europe.Footnote 33 Two Swiss legal commissions even recommended to ignore the ruling of the ECtHR.Footnote 34
Judge Eicke, in his partly concurring partly dissenting opinion, notes that his colleagues go beyond what he considers to be the permissible limits of evolutive interpretation.Footnote 35 In particular, the majority has broadened the concept of victim status under Article 34 ECHR and, according to Eicke, created a new right under Article 8—and possibly Art. 2—ECHR that provides for the effective protection by the state from serious negative effects and risks caused by climate change.Footnote 36 Moreover, the majority has allegedly invented a new primary duty that forces states to adopt measures to mitigate climate changes effects.Footnote 37 This duty covers not only emissions from their own territory but also “embedded emissions,”—those generated through the import of goods and through their consumption. However, none of these, Eicke states, have any basis in Article 8 of the Convention.Footnote 38 It is worth noting that Judge Eicke repeatedly assures that his disagreement with the majority opinion does not relate in any way to the nature or magnitude of the risks and the challenges posed by anthropogenic climate change.Footnote 39
Further, the case garnered a huge number of third-party interventions. While intervening NGOs have stressed the importance of climate action and were largely in support of finding a ECHR violation, some intervening governments have stressed that the Court could not engage in a form of law-making and regulation which would “bypass the role of the democratic process and institutions in the response to climate change.”Footnote 40 They emphasized the importance of the democratic process and the wide margin of appreciation states enjoy in determining the measures to be taken and how to balance different interests.Footnote 41 Interestingly enough, there seems to be little criticism in that regard coming from legal scholars.
D. Reasons for Criticism
In analyzing where this separation of power criticism stems from, there are three possible origins. First, having its foundations in a unique domestic judicial system, the criticism could be Swiss-specific. Second, it could be a criticism that is commonly invoked in climate change cases that take place under human rights regimes whether domestically or internationally. Third, it could be the general criticism the ECtHR faces as an international court. The following section will analyze all three possibilities and conclude with an assessment on which factors the criticism after KlimaSeniorinnen is most attributable to. A fourth section sheds light on how political dynamics—such as the rise of nationalist-populist sentiment or partisan media framing—have amplified backlash.
I. A Swiss Problem?
Swiss semi-direct democracy has been challenging the authority of the ECtHR and of the ECHR for decades.Footnote 42 The Swiss judicial system has a peculiarity that could be contributory to the harsh criticism the Swiss media and government voiced. Unlike other European judicial systems, the Swiss system is characterized by the absence of any judicial review of the constitutionality of federal laws. Consequently, the Federal Supreme Court has to apply federal laws even if it deems them to be unconstitutional.Footnote 43 This limitation on the Court is embedded in the Federal Constitution, Article 190. It is legitimized by a separation of powers argument that restricts the Court out of fear of it becoming a political body by having the power to repeal parliamentary degrees.Footnote 44 However, this constitutional provision creates a supremacy of the legislature.Footnote 45 Moreover, Supreme Court judges are closely tied to the political process because they are elected by the Federal Assembly.Footnote 46 All of them are, de facto, members of a political party. These characteristics serve as the reasons why Swiss courts often don’t interfere with the legislature that is driven by the people and the cantons.Footnote 47 In addition, a strong federalist notion and the fact that the Swiss governance system is decentralized ensures that interventions of the Confederation are subsidiary.Footnote 48 However, the Federal Supreme Court has upheld enforcement of the fundamental freedoms of the ECHR against federal interests. In doing so, it has also intervened in the organizational autonomy of the cantons. This is illustrated clearly by the example of judicial independence, where the Federal Supreme Court—adopting the practices of the Strasbourg authorities—found institutional inconsistences, which resulted in costly reorganizations and legislative amendments in the cantons concerned.Footnote 49
The Swiss legal order and its institutions are considered to have an open attitude towards international law. Nonetheless, the Swiss political system frequently challenges the relationship of Switzerland to international law and its courts. Direct democracy and its instruments such as the referendum and the constitutional initiative are often used for this purpose. Often, those initiatives as well as individual parliamentarians challenge the relationship between domestic and international law.Footnote 50 This can partly be explained by the alleged “democratic deficit” of international law.Footnote 51 The Federal Assembly has been reluctant to interfere with direct democracy, even in cases where the concept clashes with international law. Only one proposal was declared invalid since the federal constitutional initiative was created. This was because it violated peremptory norms of international law. Constitutional initiatives that question Switzerland’s international obligations are thus no unusual occurrence in the Swiss political landscape, and criticism of the purported anti-democratic features of international law is a recurrent motive in Swiss politics.Footnote 52 Those attacks do not spare the ECHR system. Several initiatives have indirectly questioned Switzerland’s obligations under the Convention,Footnote 53 and other similar proposals are in the pipeline.Footnote 54
Further, and possibly stemming from this just described culture of domestic judicial restraint, there is some political movement aiming at establishing the supremacy of Swiss law over “foreign law” and “foreign judges.”Footnote 55 Regardless of whether this is substantial criticism of the Strasburg court or political opportunism,Footnote 56 the relationship between international courts and Swiss politics is a highly topical issue in Switzerland, despite the fact that Switzerland as a state falls under what Marlene Wind calls a “rule of law country.”Footnote 57
Despite the criticism in recent years, federal authorities and legal scholars describe the overall reception and application of the Convention in Switzerland as a “success story,” and Swiss authorities’ implementation of the Convention is considered all in all effective.Footnote 58 In a nutshell, the inherent differences of the Swiss judicial system compared to other European systems, create an especially fertile breeding ground for the separation of power criticism. This is further supported by the fact that the Netherlands have, exactly like Switzerland, a constitutional provision that bans constitutional review of primary legislation and are similarly critical of the Convention system.Footnote 59 However, the brief but fierce critical wind in the Netherlands has subsided while the same cannot be said for Switzerland.Footnote 60 While the particularities of the Swiss system certainly contribute to the harshness of the criticism voiced in the aftermath of KlimaSeniorinnen, the fact that the ECHR has been given a supra-constitutional status, often substituting constitutional review in Switzerland, suggests that it cannot be the sole reason.Footnote 61
II. Separation of Power Criticism in Other Climate Change Cases
There are a number of cases where courts invoke separation of powers considerations themselves and often even squash applications and claims exactly because they don’t see reason to act as an international court.Footnote 62 However, this Article will focus on successful climate change cases and the criticism or acclaim they received in their aftermath. Because the ECtHR judgment in KlimaSeniorinnen was the first of its kind, this Article will draw on two other similar, yet not fully comparable situations. It will explore national climate change cases within the European system as well as international climate change and human rights cases outside the European system. Thus, it aims to evaluate cases that are similar to KlimaSeniorinnen because of the jurisdictional vicinity and similarities based on the shared international character of the decisions.
1. Domestic Cases
In regard to the first category—climate change litigation in the field of human rights in front of domestic courts—there are two cases that stand out in particular. First, there is the German Constitutional Court decision in Neubauer et al. v. Germany in which the court struck down parts of Germany’s Federal Climate Protection Act as incompatible with the constitution because the legislation did not include sufficient provisions for emission cuts beyond 2030.Footnote 63 The Court found that “intertemporal guarantees of freedom, fundamental rights afford the complainants protection against the greenhouse gas reduction burdens imposed by Art. 20a GG [Grundgesetz] being unilaterally offloaded onto the future ….”Footnote 64 However, the court declined to set specific reduction targets.Footnote 65 Second, there is the seminal case of Urgenda Foundation v. State of the Netherlands—the first time in which a court found a government to be responsible for mitigating GHG emissions—in which both Article 2 and 8 ECHR were invoked. Further, Pandey v. Union of India as well as Milieudefensie v. Shell serve as points of comparison.
Neubauer et al. v. Germany was received favorably, even by the German government.Footnote 66 While blaming each other for past failures, both parties which then formed the coalition government announced rapid responses.Footnote 67 NGOs were celebrating the most important environmental protection decision in the history of the Federal Constitutional Court.Footnote 68 However, three years after the decisions was handed down nothing much has changed. In fact, Germany failed to comply with its climate targets in important sectors and the government has abandoned sector-specific targets in favor of one general goal.Footnote 69 Further decisions by the Federal Constitutional Court have also failed to implement Neubauer et al. v. Germany, citing the political discretion of the parliament and the executive.Footnote 70 This “silent” criticism doesn’t include a separation of power element and it is certainly not comparable to the verbal attacks by the Swiss legislative and executive in regard to KlimaSeniorinnen. Nonetheless, it reflects how separation of powers is used to create weak climate protection and weakening judicial implementation through the backdoor.
The Dutch Supreme Court judgment in State of the Netherlands v. Urgenda Foundation was one of the first successful climate change cases that focused on human rights, namely Articles 2 and 8 of the ECHR.Footnote 71 The Supreme Court sustained the lower court’s holding that the ECHR imposes positive obligations on the Netherlands to take reasonable and suitable measures to prevent climate change.Footnote 72 While acknowledging that climate change is a consequence of collective state and human activities, it stated that the Netherlands is individually responsible because it failed to do its part to combat the danger of the effects of climate change, which according to the Court prevent the enjoyment of the rights enshrined under the ECHR.Footnote 73 Further, and in contrast to what other Courts have done since, the Supreme Court determined the exact level of greenhouse gas emissions reduction the Netherlands has to fulfill in order to not violate the rights of the ECHR—specifically, the Court said this would entail a 25 percent reduction compared to its 1990 level by the end of 2020.Footnote 74
After the passing of the lower court’s judgments, and although those were provisionally enforceable, the Dutch government took no action.Footnote 75 However, after the Supreme Court’s judgment the government drew up plans for mitigation measures. The government that was in power when the judgment was announced as well as later governments recognized the goals set out in the Supreme Court decision.Footnote 76 Urgenda lawyer Van Berkel stated that the judgment led to a “real change in policy.”Footnote 77 He further explained that “as well as influencing the government, the case has shifted public opinion about climate change in the Netherlands.”Footnote 78 Others, however, question the success of the judgment.Footnote 79 The criticism of the Urgenda decision stems from late and hurriedly taken mitigation measures.Footnote 80 Moreover, the Urgenda goals weren’t a top priority after 2020 and the government’s compliance with the judgment is likely to be challenged again.Footnote 81 Additionally, the Urgenda decision received some separation of powers criticism, claiming the judgment to be ideological.Footnote 82 That criticism didn’t only focus on the separation of power notion and the fear of a “government des juges.”Footnote 83 It also contained the notion “that open-textured norms, such as human rights, have no prominent role to play in the development of climate policies, since they would give too much power to the courts.”Footnote 84 Thus, the criticism suggests that not only climate change litigation but all litigation in the field of human rights is exposed to the separation of powers criticism because human rights norms are defined by a wide scope of interpretation and the uncertainty of how wide or narrow the margin of appreciation is that states enjoy.
In India, a country that is especially vulnerable to climate change challenges, a 9-year-old girl, Ridhima Pandey, requested the National Green Tribunal (NGT)—an institution established to deal with environmental law cases in India—to hold that the current government’s actions and policies to combat climate change are inadequate and non-compliant with its international obligations.Footnote 85 The NGT dismissed the case and Pandey appealed the order in 2019 at the Supreme Court which recently, by way of procedural order, acknowledged that there are inadequacies in the existing legal framework to address the challenges of climate change.Footnote 86 While Pandey has faced resistance from stakeholders,Footnote 87 the Supreme Court order has not been met with outright backlash—rather, newspaper reporting seems to show support of Pandey’s activism.Footnote 88 However, there seems to be silence from the government and the ministries that have been ordered by the Supreme Court to work together and in July 2025 a key policy on emission reduction rules was reversed.Footnote 89 This, again, shows that there is room between outright backslash and support for domestic climate change litigation. Some of it is, at least by the responsible governments, met with silence. And finally, Milieudefensie v. Shell—a civil case—grants some crucial insight. The applicants sought an injunction declaring that Shell was legally bound to reduce its CO2 emissions by 45 percent below 2019 levels by 2030.Footnote 90 While the district court sustained Milieudefensie’s claim, the appellate court followed that decisions only in part.Footnote 91 The latter court held that it could not impose a concrete minimum emission reduction target on Shell.Footnote 92 However, it agreed with the district court that Shell has a legally binding societal “duty of care” to “protect human rights against dangerous climate change.”Footnote 93 The Court acknowledged that climate change harms the rights protected by Articles 2 and 8 ECHR but held that Shell’s duty of care stems from Article 6:612 of the Dutch Civil Code.Footnote 94 The Dutch government received the judgment favorably, upon request the minister of climate and green growth acknowledged that multiple actors—the legislature as well as companies—have a role to play in combating climate change.Footnote 95 Thus, in a civil case where the government is not directly involved backlash seems to be less prevalent.
These cases show that not all climate change litigation in the field of human—or constitutional rights—is received maliciously. However, even domestic judgments can be deemed ideological and an overreach. One conclusion can already be drawn. Backlash to domestic decisions seems to occur mostly when international human rights are involved. Neubauer et al. and Milieudefensie—decisions based on domestic provisions, the German Constitution, and the Dutch Civil Code—received less resistance. The Urgenda case, however, which relied heavily on Articles 2 and 8 ECHR received a stronger backlash.Footnote 96 Thus, it seems to be likely that—in line with what Schoukens argues—not so much the climate change but the international human rights aspect of a judgment will contribute to the separations of powers criticism. These judgments discussed in this section have been passed down by domestic courts, thus lacking a vertical separation of powers aspect. This will be analyzed in the following section.
2. International Cases
There are only very few international rulings that can be deemed similar to the ECtHR one in KlimaSeniorinnen. Decisions by UN Committees like the one in the Torres Strait Islanders case are not binding.Footnote 97 Similarly, advisory opinions by the IACtHR are not binding as well but some national judiciaries that have ratified the Convention must consider the interpretation made by the IACtHR, deeming an opinion from the IACtHR on climate change extremely influential for global climate litigation.Footnote 98 However, a binding judgment of the IACtHR—discussed below—that addressed the right to a healthy environment has been received somewhat controversial.Footnote 99 While the Court of Justice of the European Union (CJEU) has explicit and far-reaching review powers to interpret the law of the European Union and to ensure it is applied in the same way across the member States of the European Union, including the power to annul legislative acts, it has so far only had two climate change cases both of which were dismissed due to lack of standing.Footnote 100 Binding or not, the reactions by the State parties and especially their willingness to comply are relevant in evaluating whether international climate change litigation is received with heavier separation of powers criticism than domestic decisions.
The highly acclaimed decision of the UNHRC in Daniel Billy and others v. Australia, Torres Strait Islanders Petition) 2022, finding that the Australian Government was violating its human rights obligations to the Indigenous Torres Strait Islanders through climate change inaction, specifically called on Australia to adopt significant climate adaptation measures.Footnote 101 Over a year since the UNHRC’s ruling, the Australian government still refuses to pay the claimants any compensation, despite the UN recommending it does so.Footnote 102 While the Australian government does not openly challenge the authority of UNHRC decisions, the lack of compliance hints to a lack of recognition of international decision bodies. Although a final conclusion cannot be drawn because Australia is silent on the reasons of its non-compliance it seems likely that it is at least partly because of a separation of powers notion.
The IACtHR published its opinion in Lhaka Honhat Association v. Argentina on February 6, 2020. It held that Argentina violated indigenous group’s rights to communal property, a healthy environment, cultural identity, food, and water. While this cannot be considered a climate change case, the environmental aspect of this judgment moves it into the vicinity of climate change cases. Environmental cases can be used to predict the outcome of climate change cases—for instance, the ECtHR in KlimaSeniorinnen has drawn on its environmental jurisprudence.Footnote 103 The IACtHR decision comes as a milestone to the Inter-American human rights system because it expands the protection of indigenous peoples’ rights and autonomous rights to a healthy environment, water, and food. Those rights are now directly justiciable under the American Convention of Human Rights.Footnote 104 The Lhaka Honhat case concerned a request for recognition of land ownership by over ninety indigenous communities. Although having occupied the area since at least 1629, the state never recognized the communities’ rights to the ancestral lands.Footnote 105
The aftermath of the judgment was less contentious as expected.Footnote 106 The reactions revealed that the judicial process, which gave a platform to previously unheard voices, contributed to the mutual acknowledgment and recognition of each group’s claim.Footnote 107 However, critical voices claim that the judgment has not really contributed to the possible solution of the conflict. Because the government shows no sign of reaction, the judgment has not been able to change the situation.Footnote 108 The silence of Argentina’s government does not give much insight on the reasons of their refusal to comply, however the non-compliance is itself noticeable. Moreover, there has been criticism that was voiced loudly. Given the significance of the Court’s voice in human rights law, the expansion of the Court’s scope beyond “traditional” rights has been met with resistance.Footnote 109 Here again the notion of judicial overreach surfaces. This was not only the case in Lhaka Honhat, but it greatly affected the—non-binding—IACtHR advisory opinion on gender identity and Same-Sex marriage.Footnote 110 This suggests that while the power of the IACtHR is contested, it is not a climate change litigation specific phenomenon. This might be, in part, due to the widespread environmental constitutionalism in Latin America.Footnote 111 With the existence of the right to a healthy environment and rights of nature in many constitutions on the continent, Latin America seems to be quietly leading a revolution in climate change litigation.Footnote 112 However, even here many obstacles remain. Insufficient capacities and the focus on extractivism might already be a breeding ground for future backlash.Footnote 113 While the recent IACtHR advisory opinion on the climate emergency has not been met with backlash, future more specific climate-related policies orders from the Court might encourage some states to resist the Court’s legitimacy, as we have seen before.Footnote 114 Decisions by international courts and decision bodies are often met with either silence and non-compliance or criticism that sounds similar to the one KlimaSeniorinnen faced.Footnote 115 While silence, of course, can have multiple reasons, it is a phenomenon predominantly observed in reaction to international judgments and decisions.Footnote 116 Krisch argues that international law over the past decades has become more specified with international institutions, especially the ECtHR, deciding individual cases and not only creating abstract rules.Footnote 117 With this change from an often “vague and woolly,” international law, the leeway of states in interpreting and implementing it is reduced and friction becomes more clearly visible.Footnote 118 Therefore, it seems likely that vertical separation of powers is more likely to trigger criticism than horizontal, especially with international human rights norms involved that become more and more specified by the jurisprudence of international courts.
III. General Criticism of ECtHR
Finally, general criticism of the ECtHR and its decisions could be the leading reasons for the backlash to KlimaSeniorinnen. As a regional human rights court, it has not been spared from heavy criticism of certain judgments and of its whole structure. The ECHR system has even seen countries leaving, with Greece leaving from 1967 to 1974 and Russia leaving in 2022. Others regularly threaten to leave.Footnote 119 However, this criticism requires further evaluation as to whether it relates to the separation of power argumentation provided in the aftermath of KlimaSeniorinnen. The third-party interventions by many states in the case discussed here seems to point in exactly this direction. They predominantly, as stated above, mention the importance of the democratic process.
After the exit of Russia, the UK remains the loudest critic within the ECHR framework.Footnote 120 In the UK it has become a common phenomenon to criticize the ECtHR because of judicial overreach and because the court allegedly utilizes its “living instrument” doctrine—the idea that the convention is a living organism that evolves over time—to develop the protections of the convention illegitimately.Footnote 121 While the dissatisfaction of UK politics with the Strasburg court can be traced back to individual decisions, there seems to be a bigger trend that tries to challenge the authority of the ECHR system as a whole.Footnote 122 The UK also is the only country under the ECHR system that challenges the existence of the court, other countries don’t show signs of a “debate on the Convention system as a whole.”Footnote 123
The vast majority of the criticism of the ECtHR is focused on its functioning not on its existence.Footnote 124 The majority of the criticism in this area is related to the ECtHR’s degree of intervention,Footnote 125 and therefore concerns the separation of powers.Footnote 126 While some countries only voice sparse criticism, alongside Switzerland there are a couple of nations that are similarly, although for different reasons, critical of the ECtHR, including France, Norway, Turkey, the Netherlands, and Hungary.Footnote 127 However, while in countries like France, Norway, Switzerland, and the UK, a clear surge of criticism of the European Court of Human Rights can be detected, in most countries, the distinguished status of the ECHR shields the Convention system from fundamental criticism.Footnote 128 Criticism of the ECtHR is, therefore, not a singular occurrence. Often, the European Court is criticized for taking a too liberal approach and being to laissez faire with the restrictions of the Convention.Footnote 129 This general criticism is likely to be contributing to the Swiss criticism. It can be regarded as an undercurrent on which case- and country-specific criticism can be built.
E. What About Politics?
In addition to the theories laid out above, political dynamics of recent years may have amplified the backlash. For instance, criticism of the ECtHR often comes from (far-)right political parties—examples are the Tories in the UK and the SVP in Switzerland.Footnote 130 Voeten in a 2019 article focuses on how populism influences backlash to international courts and comes to the conclusion that while not all backlash can be tied back to populist movements some of it was initiated by governments that frequently used populist mobilization narratives.Footnote 131 Similarly, Mukherjea argues that the rise of populist sovereignty-based claims reshapes the way states engage with international institutions.Footnote 132 However, Krisch suggests that we should not jump to conclusions and backlash might not be a symptom of a shift to the rightFootnote 133 but merely part of the ever-existing phenomenon that international courts have always faced challenges.Footnote 134 As examples he puts forward the U.S. refusal to accept the ICJ’s judgment in the Nicaragua case and Libya’s rejection of international arbitration in the 1970s as well as domestic courts rejections of European cases such as the Belgian resistance to Marckx (ECtHR) and the German Constitutional Courts resistance to the European Court of Justice (ECJ).Footnote 135 This would support the above mentioned thesis that vertical separation of power elicits more backlash than horizontal. While this might be the case, it seems that there is a difference between the resistance of the last century and today’s. In the Netherlands Yearbook of International Law 2018 which deals with populism and international law the publishers Nijman and Werner collect a range of articles tying the surge of populism—especially in Europe—to the backlash international law receives.Footnote 136 The populist mindset against universalism and multilateralism extends logically to resistance against international courts which are grounded in those principles.Footnote 137 While populism is contingent on the region it is examined in and sometimes—for instance, in the Latin American context even supports international treaties and transnational cooperation—Footnote 138 it can serve as an amplification and one of the sources of backlash to ECtHR judgments and climate litigation.Footnote 139
F. How to Address the Criticism
There are two main avenues to combat the separation of power criticism. First, separation of power criticism must be addressed head on, by the court itself as well as other actors. Second, proposed reforms of the convention system might be a further redress.
The ECtHR itself needs to address separations of power concerns head on and it has already done so. The decision in KlimaSeniorinnen shows several paragraphs where the judges evaluated separation of power concerns. The majority emphasized that the primary responsibility for dealing with the complicated scientific, policy, economic, and other issues posed by climate change lies with the domestic legislative and executive branches.Footnote 140 The judges went on to say that typically it is the task of domestic authorities to set up the overarching policy frameworks and specific measures countering climate change.Footnote 141 Moreover, the Court clarified that judicial intervention “cannot replace or provide any substitute for the action which must be taken by the legislative and executive branches of government.”Footnote 142 Further, the Court has recognized various implications of the separation of power doctrine under its Article 6 jurisprudence.Footnote 143 Its recognition of the separation of powers is reflected in the “margin of appreciation” doctrine of the ECtHR.Footnote 144 Similar to KlimaSeniorinnen, the courts in Urgenda also “underscored that the mere fact that a legal claim might have significant political implications does not take away the legal protection to which citizens and environmental NGOs are entitled.”Footnote 145 The District Court correctly stressed that “this is inherent in the role of the court with respect to government authorities in a state under the rule of law.”Footnote 146
As always in international law, a balance must be struck between the protection of human rights as well as the implementation of the Convention and the discretion the states enjoy. Forcing domestic authorities to assess their regulations and measures, and design and adopt new ones, may well have the opposite effect of strengthening climate protection, as Member States are then tied up in litigation.Footnote 147 The Court must be cautious in applying the Convention for it is an international treaty that can be opted out of. Judicial restraint has already been practiced when it comes to the separation of powers on the international level. Therefore, it serves not only as a future path to address such criticism but already has an influence. It can only be speculated how the ECHR system would look like if the Court were to interpret the Convention more liberally. In addition to the Court, the other domestic branches of power need to accept that they have opted into a system that opened up a vertical dimension to the separation of powers.Footnote 148 In fact, if the legislature and executive were to deprive the judiciary of its capacity to check the others, that would amount to a breach of the separation of powers.Footnote 149 Finally, the Court’s judicial restraint and the acceptance by other branches of governments of what vertical separation of powers entail must be paired with support by the civil society. In this regard, it is important that not only the Court itself addresses the separation of power criticism it faces. Other actors, such as states and intergovernmental organizations must defend the Court—rhetorically and by compliance with judgments—and, thus, reinforce its legitimacy.Footnote 150 Further, civil society—transnational and domestic—has a role to play as representatives of ordinary individuals and with the power to shape the conduct and outcome of international power dynamics.Footnote 151
The second avenue for redress might be the reform of the Convention system. Additionally, reform at the national level might be an, albeit unlikely, way to mitigate criticism. With regard to reform of the ECtHR, two visions can be found among the parties. Some governments are in favor of restricting the ability to bring individual applicants and they call on the Court to implement an even wider margin of appreciation.Footnote 152 However, this approach of a widened margin of appreciation might not be tenable in a climate crisis context. Indeed the margin of appreciation should rather shift to the opposite end and be more narrow when the rights at stake involve scientifically verifiable harm.Footnote 153 As the other piece on KlimaSeniorinnen in this volume explains well, the Court justified this narrow margin of appreciation for States’ climate targets with the gravity of the risks of non-compliance in light of “the scientific evidence.”Footnote 154 In other cases, for instance where scientific evidence is pointing in multiple direction at once, the margin of appreciation might need to be widened.Footnote 155 The Court’s evidentiary assessment and implications for the margin of appreciation has, thus far, been difficult to predict.Footnote 156
By clarifying the relationship between the ECtHR and national courts, the reforms seek to alleviate concerns about interference with national sovereignty. Additionally, procedural changes, including stricter admissibility criteria and the prioritization of serious human rights cases, aim to improve the Court’s efficiency and credibility. These measures also respond to longstanding concerns over the Court’s ability to handle an overwhelming caseload effectively.Footnote 157
Others have suggested reforms that focus on strengthening the implementation of ECtHR judgments within domestic jurisdictions.Footnote 158 Criticism has often stemmed from delays or failures in enforcing the Court’s rulings, undermining its authority and effectiveness. To counter this, initiatives like enhanced dialogue between the ECtHR and national authorities, technical support for states, and the introduction of targeted mechanisms for non-compliance have been introduced. These steps foster better cooperation and demonstrate the ECtHR’s commitment to working alongside, rather than against, national systems. By addressing both operational inefficiencies and relational tensions, the reforms could help address the separation of powers criticism.Footnote 159 This might also help alleviate “silent” criticism and the problem of non-compliance, that is already less pressing under the ECHR system than it is with other international human rights systems. However, disagreements between the advocates for reform on the Convention level and those advocating for reforms on the national level make it unlikely that either will be efficiently implemented.Footnote 160 Thus, the outcome of the Brighton Conference was an ambiguous Protocol Number 15 that introduces the margin of appreciation doctrine as well as the principle of subsidiarity into the Preamble.Footnote 161 Those opposing such reform claimed it to be marginal, those in favor spoke of a “new era,” showing that reform is gradual and contentious.Footnote 162
G. Conclusion
In considering the most prevalent reason for the criticism voiced in the aftermath of the ECtHR’s KlimaSeniorinnen judgment, this analysis looked at three possible sources. The Swiss judicial and legislative system is especially prone to a separation of power criticism and in recent years the country has seen a surge of criticism towards the ECHR system. However, there are other factors that contribute to the criticism. Contrary to what was expected it does not seem to be climate change litigation that leads to criticism. Rather, the analysis suggests that it is the international human rights aspect that invites criticism because the interpretation of human rights norms differs greatly between supporters and critics and the margin of appreciation doctrine leaves ample space for disagreement. The same is the case on a domestic level—when Courts invoke international human rights here the backlash seems to be more vociferous than when they invoke domestic norms be it constitutional or civil. This is what Schoukens describes as the open-textured feature of human rights norms which seems to play a role in fueling the criticism. This assessment should be read together with Krisch’s: When vague rules—open-textured international human rights norms in this case—become specified the friction between the difference in interpretation by the state parties and the international courts intensifies. Additionally, the criticism that especially international decisions receive, be it silent or loud, hint to the vertical separation of power as being more prone to provoke criticism than horizontal separation of powers. Here, further analysis is warranted whether diagonal separation of power—international judicial branch vs. domestic legislative branch—fuels criticism of that kind. Finally, general criticism of the ECHR system functions as a cornerstone of the separation of powers criticism. Taken together all these reasons shed light on why the Swiss government and the Swiss media reacted so harshly to the ECtHR judgment.
While it is unlikely that these factors will soon subside, there are some possible avenues for redress. On the one hand, the ECtHR, as it is well aware, needs to address the separation of powers criticism head on. It has done so extensively and while this hasn’t prevented criticism from arising it has likely prevented criticism from some key actors such as, in this case, the Swiss judiciary or domestic and international legal experts. On the other hand, propositions for the reform of the Convention system, whether restraining the judicial overview or securing and expanding it, is a possible path of redress to the separation of powers criticism. However, because of divergent views on the direction the Convention should take it seems unlikely that this path will lead to success in the near future.
Further areas of analysis would be to see how a change of narrative and the change in how the climate change movement is received contributes to criticism.Footnote 163 A narrative analysis would include the public opinion about the Court, climate movements, and international human rights. Additionally, further binding judgments by international courts in the field of human rights and climate change might lead to a better basis for analysis.Footnote 164 The cases mentioned above have all been decided in a time that was seemingly favorable to climate change litigation as the Fridays for Future movement was at its peak around 2020 and, thus, litigation in a changed political environment might bring different outcomes. Pending cases at the ECtHR will provide clarity about whether the backlash after KlimaSeniorinnen was a singular event in the history of climate change litigation at the ECtHR or if it was the cornerstone of a persistent trend. And ultimately, backlash must not be inherently bad—it can also lead to positive change.Footnote 165
Ultimately, the judicial oversight of the ECtHR is needed in climate change cases because of the complex time horizons of climate change and the inclination of governments to look no further than their legislative period.Footnote 166
Acknowledgements
I would like to express my deepest gratitude to Professors Elizabeth Holzer and Dirk Hanschel for their invaluable insights, contributions, and support. I also sincerely thank the German Law Journal editors for their helpful edits and comments.
Competing Interests
The author declares none.
Funding Statement
No specific funding has been declared in relation to this Article.
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