The biggest climate case that ever was
We usually see young people as the face of climate activism. This week, we find out how 2,000 Swiss women, all over the age of 65, took their government to court in a case that could change climate laws across Europe. And along the way, we figure out once and for all how the European Court of Human Rights actually works.
This is a special episode made in cooperation with the Allianz Foundation, one of several podcasts we're making this year about sustainability with their support. Stay tuned later in the year to hear more.
You can find out more about the KlimaSeniorinnen here.
Listening from Amsterdam? The Forum on European Culture runs at De Balie from May 31-June 4, with a ton of great speakers on the line-up. Find the full programme here: https://cultureforum.eu/programme-2023
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Reporter and producer: Katz Laszlo
Editor: Katy Lee
Editorial support: Dominic Kraemer and Wojciech Oleksiak
Sound design, mixing and mastering: Wojciech Oleksiak
Music by Jim Barne, Epidemic Sound and Blue Dot Sessions
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[INTRO JINGLE]
KATY: Hi Dominic!
DOMINIC: Hi Katy. You having a nice time at the seaside?
K: I’m having a lovely time at the seaside. I’m in the Naples of England, as the poster in the corridor says. Do you know where that is?
D: Er… no. Brighton?
K: Weymouth, on the south coast. And it’s very lovely! Yeah, I’m just here for a few days.
D: Has it got great pizza? Is that why it’s the Naples of England?
K: I mean there’s no massive volcano, so I am yet to find out why it’s the Naples of England. But I’ll report back. I’m also going to the actual Naples next month, so it’ll be nice to compare.
D: I look forward to hearing the results of that comparative study. But you’re not the only one who’s been travelling in our team, because I saw that our producer Katz Laszlo was visiting you in Paris. I saw that you were kind of hanging out with a bunch of toy owls, on Instagram.
K: We were, yes.
D: What was going on there? Why wasn’t I invited?
K: Why weren’t you invited. Well it was a very impromptu visit, it’s thanks to Deutsche Bahn, Germany’s illustrious rail company, going on strike. Katz was actually supposed to be on her way somewhere else but she rang me up that morning asking if she could crash at my place. And I said yes.
D: That’s kind of you.
K: But yeah, the reason Katz was travelling in the first place was for this special episode that we’ve got lined up for you today.
D: Aha, it’s all coming together.
K: Yeah, so – all of us read about this case. There’s this group called the KlimaSeniorinnen, who were taking the Swiss government to court for not doing enough about climate change. And the first thing that intrigued us about this legal case was, it was a group of older women doing it.
D: We usually hear stories of young people who are really concerned about climate change. And for once, this was a group of 2000 older Swiss women, who were spending their pension on this legal case. And the other thing was that this is the first climate case to be heard, ever, by the European Court of Human Rights.
K: And I guess the first question on my mind was, is that a big deal?
Katz: Yeah it is! It could influence courts in the entire continent of Europe.
K: Katz is here too everyone, hi Katz!
Katz: Hi!
D: Hi Katz! She’s just been listening silently to us talk about toy owls. Nice of you to join us to tell us a bit about this case that is apparently a very big deal.
Katz: Yeah, I’m really excited to tell you about it.
D: So, if these women win, this court case could force governments all across the continent to do more about climate change. And I really wanna know how that works. So, you made an impromptu stop-off at Katy’s flat in Paris, but where were you actually heading to?
Katz: I was actually on my way to St. Gallen, which is in Switzerland, on many trains. And I was going to meet Pia.
D: Who’s Pia?
Katz: Pia is one of these KlimaSeniorinnen, the group of 2000 Swiss women.
K: Aha.
Katz: They’re all above the age of 65, and they started this climate case.
PIA: And I guess I was the first one who answered.
KATZ: No, I chose you especially.
PIA: Ah, okay!
Katz: I meet up with Pia in her apartment in St. Gallen. It’s a gorgeous spring day, it’s like fresh mountain air, it’s the first day I’ve put on sun cream this year.
PIA: Okay, can I offer you a tea, or a cup of coffee?
KATZ: I would like a tea. That would be great.
PIA: Something Swiss. Different herbs. You're allowed to come in.
Katz: I just kind of liked her vibe, but I quickly realised that I could be making a whole episode just about Pia. She’s 73.
PIA: I grew up in the countryside. My first job, I'm a trained nurse. I also have been working for three years in Papua New Guinea as a nurse. And finally, the big thing I didn't expect anyway, I have been in Swiss Parliament as a member of the Green Party in the national parliament.
Katz: Pia was in Parliament for 14 years. Which is extra wild because in the first election in her adult life, when she was 20, she wasn’t even allowed to vote, because she was a woman.
Katy: Oh my god, I always forget that. Women didn’t actually have the right to vote in Switzerland until crazy late, right? Wasn’t it the 70s or something?
Katz: Yeah. It was 1971.
Dominic: That is wild.
KATZ: How have you seen Switzerland’s climate change in your lifetime?
PIA: When I was young, We never went out, when I was 20, without jacket. In the evening, in town, have a cup of coffee and sit outside – it was always too cold. Nowadays, you can leave the jacket at home because we have tropical temperatures. It is different, it changed a lot. It’s also proved by the statistics but you can feel it, you can see it.
Katz: So Pia ran for election with the Green Party sort of on a whim, but she won.
D: Go Pia!
Katz: She spent a lot of time in parliament trying to push climate policy through - get the government to do more. But it was really hard to get a majority. And now a few years into retirement, she’s suing the government.
D: Ooh, what a way to top off your career. It reminds me of these court cases we’ve discussed on the show before, where citizens took their governments to court for inaction on climate change in the Netherlands and in Germany.
Katz: Yeah, and this is like the Swiss edition of that case, and the plaintiffs are the KlimaSeniorinen, which you can translate from Swiss German to ‘The Old Ladies For Climate’, or something.
K: I think it sounds better in German.
PIA: The name is also funny for many people here. KlimaSeniorinnen. Because ‘Seniorinnen’ is not always positive. ‘Old women’. Often it’s ‘old’, you should disappear, or whatever. We filled it with such positive spirit.
Katz: A lot of people don’t really take these women seriously, they refer to them kind of dismissively as the ‘climate grannies’. But Pia herself actually never had kids, and a lot of women in the group, just like Pia, have these huge careers behind them.
K: Which is so irritating, because you just know that if a bunch of, like, boomer men started a case like this, they’d be described as, you know, ‘former politicians’ or ‘retired doctors’ or whatever. They wouldn’t be called ‘the grandpas’.
Katz: I know! But here are these so-called grannies, doing something really historically significant.
PIA: Yes, I am an old woman. But watch what I can do and how fit I am.
K: So, something I always wonder with these climate cases: how did it start? How did these women wind up starting this case? Did they just kind of suddenly get together and mastermind it, or what?
Katz: Oh, that’s the story we all want, like a bunch of rockstar old ladies sitting around, playing cards over a glass of brandy, and plotting to take their government to court.
D: Oh, I’m already ready to watch the film adaptation now please.
Katz: Sadly it didn’t go like that. It was actually Greenpeace’s idea.
D: Oh.
Katz: Greenpeace’s climate law experts were looking for a way to start a case against the Swiss government. And it turns out that, in Swiss law, if you want to win a claim as a victim, you have to show not only that you’ve been victimised, you have to also show that you’re more victimised than other people.
PIA: We had to be elderly women because elderly women like me, they die more than men or more than younger people because of the heatwaves. That was the reason.
D: So according to Swiss law, they can’t just be dying in heatwaves – they have to be dying more than other people?
Katz: Exactly. And Greenpeace had specifically chosen out older women for this reason.
K: And why are older women more vulnerable to heatwaves?
Katz: Yeah I actually didn’t know until this case, but senior women are substantially over-represented in deaths during heatwaves. And scientists aren’t exactly sure why yet, but there are a couple of studies suggesting it might have something to do with gender differences in hydration or the particular types of cardiovascular risks that women are prone to.
K: Wow, I had no idea.
Katz: Yeah, I was actually quite amazed reading some of the applicants’ stories. Pia is pretty fit – she’s still climbing mountains. But for some of the other women involved in this case, if the temperature goes above 34 degrees, they have a really hard time breathing and some of them can’t even leave their house, or walk around their apartment.
PIA: Switzerland has a responsibility, because we are one of the richest country in the world and we cannot say, ‘Well, there is no responsibility.’ We have the money to do more, we have the how now. Know-how.
Katz: To make the case, they have to portray themselves as victims, and so they’re really emphasising their age. And at the same time, a lot of the KlimaSeniorinnen feel this sense of responsibility to do something about climate change because they’re older.
PIA: My generation did so many things wrong, the last 40, 50 years, that we have this mess now.
K: Okay, so these women band together. Then what happens?
Katz: First, they take their case to the domestic court, and their accusation is that the government is not doing enough to protect them from these heatwaves. They start at the lowest court and they don’t get heard.
PIA: They said, ‘well, you are not affected enough yet.’
Katz: They get told basically they’re not in enough danger to be victims.
D: Not in enough danger?
Katz: They apply again to the next court up. Same thing again. And they climb up and up…
PIA: Then we brought it to the highest court in Switzerland.
Katz: The high court also doesn’t hear the case.
KATZ: How was it to hear that?
PIA: Well, we got upset, because it was proved at that time already. It was like hearing, ‘Well, you are alive, yet we don’t need to do something for you.’ They said, ‘There is time yet.’ And that was just not understandable.
Katz: As we’ve established, Pia is a fighter. So when they were dismissed in the Swiss high court, she and the rest of the KlimaSeniorinnen were actually also excited. Because if the Swiss court had taken on the case…
PIA: We could not have brought it to the Human Rights Court. So it was not so bad.
D: And how does that work? Can any random person just take a case to the European Court of Human Rights in Strasbourg?
Katz: So in order to file a case in Strasbourg you have to show that…
MOLLY: You have what they say, in court parlance, exhausted all domestic remedies. So, you have a conflict with the government, the state in the Netherlands, you file some sort of complaint at whatever the lowest level court would be…
Katz: That is Molly Quell.
D: Ooh, I sometimes talk to her on Twitter. So funny to hear her voice!
Katz: Yeah, she’s this journalist who specialises in these big international courts, and she helped me make sense of this case.MOLLY: And then you appeal and appeal and appeal until you are out of domestic remedies. And then I think you have 60 days or 90 days to file a complaint with the ECHR.
Katz: Then you can apply to Strasbourg.
D: Okay, but hang on. Katz, can you give us a quick reminder of what this court actually is? I have to Google it every time. It’s not actually part of the EU, is it?
Katz: No, it’s not part of the EU. The job of the court in Strasbourg is to enforce the European Convention of Human Rights.
MOLLY: The European Convention of Human Rights is signed by 46 European countries. It used to be 47, Russia got kicked out last year. And it's basically every country in Europe.
D: Aha. So just a reminder for ourselves, these 46 countries, together they are the Council of Europe, right?
Katz: Yeah! Okay, small history lesson. In 1948, the UN Declaration of Human Rights was written. Coming out of World War II. But there was no judicial system, no court, to enforce it. And so right around the same time, the Council of Europe was forming, and they decided to write a European version – the European Convention of Human Rights. And that document would be the core of the Council of Europe. And the big difference was, the Council would also make a special court in Strasbourg, that would hold any member state accountable –
MOLLY: So it's not an EU institution. It's much larger than that. It also includes Azerbaijan and Turkey.
Katz: So when this court hears cases, what it’s essentially trying to do is work out if the human rights agreement is being respected. And then each country has a judge in the court, so there are 46 judges, one for each country. And if you’re a resident who has exhausted the domestic options, as Molly says, but you think your government has violated your human rights - then you can apply to bring your case in Strasbourg.
CORINA: The threshold is not that high so there's a standardised application form that you can fill in and send to Strasbourg. More and more, that's also something that's being done digitally. It's actually quite overburdened. And kind of a victim of its own success.
That is Corina Heri, she is our other expert for today. She’s a legal researcher at the University of Zurich, and she works on human rights law and climate litigation.
CORINA: Once I've been in the post room of the court. Just these unbelievable piles of mail that they get, with applications from all around the Council of Europe. It's really impressive actually to see it physically in front of you, just the sheer volume of these applications.
PIA: Sometimes people say, ‘Well, that's not something for the European Human Rights Court.’ But in Switzerland, we live in a quite good democracy. And there are two legs, we’d say. One is the parliament, the national parliament in Bern. And the other one is the court.
K: That’s really interesting. Because you could make a case that we should leave it up to voters to decide about climate policy. Like, if it is important for voters, they will just vote in a government that’s planning to do a lot about it, and that’s what democracy is.
Katz: Yeah, that’s what the governments often say in these climate cases. What we do about the climate should be a matter of policy, it shouldn’t be up to the courts to decide. But at the same time, citizens are getting impatient, and even in a democracy, there are some things that we don’t get to vote on.
PIA: Human rights are not a subject to debate. That's quite important. It's not the question of majority, you are not allowed to make a referendum – human rights, yes or no? (laughs) No.
Katz: And that is the core question. More and more people are wondering, does climate change endanger people’s basic human rights? And if it does, why not use the courts?
PIA: We knew from the beginning that we would not have high chance to be accepted in Switzerland. So we said from the beginning on, our goal is to sue the government and we are ready to take all the steps up to Strasbourg.
Katz: And secretly, that was the plan all along.
D: Oh! Sneaky!
K: So what happens next?
CORINA: So first of all, you wait, most likely you eventually get a letter saying your case has been declared inadmissible. So that's the most likely outcome. You never get an opportunity to really argue your case in the court.
Katz: And then in a very small portion, they do decide to plan a hearing. Now, the European Court of Human Rights has never heard a case about climate change before. But the pressure for them to take one on has been mounting.
D: Those domestic cases of climate litigation that have already been won, in the Netherlands and Germany, they were based on the European Convention of Human Rights, no?
Katz: Yeah, exactly. And those cases were total game changers, completely unimaginable ten years ago. But for the first time, the governments lost, and judges ruled that they were breaching the European convention by not meeting their climate goals.
K: Mmm-hmm.
Katz: And remember, the Strasbourg judges are like the parents of this convention.
D: The parents? What do you mean?! They’re like, ‘Nope, make sure you look after the convention, follow those rules! France, you’re being mean to the convention, you’re not following it.
Katz: That’s exactly what I mean. But, the parents have not said anything yet about the convention’s relationship to climate change. And, finally, with the KlimaSeniorinnen, the judges have decided, okay, we will hear a climate case ourselves. Not only that, but we will hear three big climate cases all at the same time. So, first the Swiss women, then on the same day there was this French mayor who was taking the French government to court, and finally, this autumn, there is the case of some young Portuguese people who are taking not just their government, but 32 countries to the court for not doing enough to protect their lives from climate change.
MOLLY: It's hugely major. By far the most largest, most popular case I have ever covered at the court. I've been in this job, I think, for four or five years now, I go to Strasbourg a lot. This is the first time we got these, like, warning emails from the press office, about like, ‘It's going to be super popular, we don't have enough seats, like, you have to come really early.’ It was a real to-do.
D: Wow. I kind of like that people are queuing up for an event like this, it makes me have some faith in humanity. Because even though this court does super important work and always has done, for a lot of people it’s still kind of obscure.
Katz: Yeah, and then suddenly with these climate cases, a lot of people are getting interested. And part of the reason everyone’s so interested in this case is that people on every side are nervous. Governments are worried: are there going to be more legal consequences all of a sudden, if they don’t do more about climate change, and maybe even punishments?
ALAIN: This is certainly a very exceptional case in many respects. It is a new issue that is affecting all countries at the same time, so we are not the only one in Switzerland who are faced with climate cases.
Katz: That’s Alain Chablais, he is the lawyer representing the Swiss government in this case.
ALAIN: It is a difficult case, also, from a legal point of view. Not easy to deal with, for national authorities and judicial authorities.
Katz: And on the climate activist side, it’s a real gamble because, well, if the KlimaSeniorinnen win, that is a major win for climate litigation activists all around the world. But if they lose, it could be a major blow. Here’s Jessica Simor, one of the lawyers for the KlimaSeniorinnen.
JESSICA: It is really, really difficult. And I expect that there will be, you know, some differences of view within the court. The fact that the Dutch Supreme Court followed Strasbourg jurisprudence, and concluded that the Netherlands had to move more quickly to reduce emissions, means that there is a, you know, apex, top-level court that has already decided that the convention requires this. So as you say, for Strasbourg, to say, ‘Well, no,’ will effectively be saying that the Dutch Supreme Court got it wrong. If it comes to a conclusion that the Dutch Supreme Court got this wrong, in the longer term that effectively means it having to reverse itself. It's an incredibly regressive step.
K: Okay, so if the KlimaSeniorinnen lose, the Dutch government would effectively be being told, your citizens don’t have a fundamental human right to be protected against climate change. And that could make it harder for other people taking their governments to court in climate cases.
D: So the stakes are really high. So much tension, take us to the hearing, set the scene for us, Katz.
Katz: So, it’s March 29th, the morning of the case. Everyone is arriving at the court in Strasbourg. Molly…
MOLLY: I think I was there at like 6:45, I think the hearing started at like 9.15.
KATZ: 6.45 in the morning?! Was it even light yet?
MOLLY: I was like 12 people deep in the line to get in, like other people got there before I did. It was a real, like, festive atmosphere.
Katz: 2000 Swiss ladies…
D: They weren’t all there were they?!
K: No, but there were a bunch of the applicants out front.
MOLLY: They held up flags. Some of them had these big handmade flower pin kind of things. And then there was a wild quantity of press.
Katz: There are supporters outside, some of them ringing Swiss cow bells. Pia is there...
PIA: We were quite nervous, we didn't really know what would expect us, but we were also kind of hopeful.
Katz: And they all pour into the court.
MOLLY: This building is so weird. It was built in like 1960. It totally looks like what people I think thought the future was going to look like.
Katz: The building is these two big silver oval cylinders, and then they’re connected in the middle by this shorter glass cylinder, it’s kind of like this giant alien insect. And usually, it’s just a couple of people who show up, like a few law students. But this time it’s already packed. Corina’s there too, sneaking into forbidden parts of the building that only judges are allowed to go to.
D: Sounds like something Katy would do.
CORINA: I can't disclose who let me in. I don't want to get anyone in trouble, but I managed to sneak into the court's cafeteria. They actually have quite good coffee and quite good pastries. So I'm hoping the judges will be massively energised to take on these cases.
Katz: So everyone that fits, files into the courtroom. And then everyone stands up, and the judges arrive.
MOLLY: There's 17 judges. So like, the guy calls the hearing to be opened, all of these judges sort of file in, which takes forever because it's like 17 judges, they all have to like walk the whole way like around…
Katz: The judges have been chosen in a lottery, out of 46. They’re all wearing these blue robes, with these white rectangular cloths dangling over their chests.
K: Fabulous.
Katz: And they are lead by the president judge.
MOLLY: The president of the court is now an Irish woman. So I'm always excited because she has a delightful Irish accent…
Katz: The 17 judges means it’s the Grand Chamber!
CORINA: And that’s unusual, so usually they would go… A case would first be heard by seven judges, and then it could be taken to the Grand Chamber of 17 judges. These three cases went straight to the, to the larger formation. So that's interesting.
Katz: So because it’s gone straight to the Grand Chamber, whatever they decide is final. There is no opportunity for either side to argue back.
K: Aha.
Katz: There’s a ceremony guy who says some things... And then, the hearing begins.
COURT PRESIDENT: I declare open the public hearing on the admissibility and merits in the case of Vereine KlimaSeniorinnen, Schweiz and others against Switzerland.
Katz: The Irish judge, the president, she opens the case, and everyone is very composed. And really, it’s all quite ceremonial, because this entire case has actually already been argued on paper.
K: Oh!
D: Plot twist.
Katz: Yeah, like each side has sent reams and reams of documents. And then the judges write questions, and then each side has responded with more documents.
K: Classic European bureaucracy.
Katz: Yeah. But nonetheless, each side gives a speech.
COURT PRESIDENT: The government and the applicant will have 30 minutes each, and the third-party interveners 10 minutes.
Katz: First up, we have the lawyer for Switzerland, Alain Chablais.
COURT PRESIDENT: Mr Chablais, vous avez la parole.
Katz: And the whole hearing is recorded, even with the English translation of his French, so we can actually listen together.
ALAIN CHABLAIS (English interpretation): Given the complexity and evolving nature of the subject, it would be extremely risky for the court to engage in such an exercise itself, as if it were a court of first instance.
Katz: We’ll get to the core arguments later. But basically, the Swiss government argues that the court is not a place to discuss climate policy, and that it would be a dangerous overreach of the court to get involved.
ALAIN CHABLAIS (English interpretation): In sum, it is unfair to state or suggest that Switzerland is inactive in the fight against global warming, or that it’s unable to achieve the targets it has set itself.
PIA: Actually, the argument he brought wasn't that new, because the Swiss government always says ‘Oh, we do a lot and we'll be okay.’ Kind of depressing, because they didn't learn anything in the meantime. The situation is very serious on Earth, and they argue like 20 years ago.
Katz: And then once Switzerland is finished, one of the lawyers for the KlimaSeniorinnen comes up, Jessica Simor.
JESSICA SIMOR: Madame President, members of the court, the world has never seen a threat to human rights of the scope presented by climate change. This is not a situation where any country, any institution, any policymaker can stand on the sidelines. The economies of all nations, the institutional, political, social and cultural fabric of every state, and the rights of all people and future generations will be impacted. Members of the court, these are not our words. They are the words of the UN Commissioner for Human Rights, Madame Michelle Bachelet. She chose her words carefully…
Molly: She, I thought she was great. 100%. Sometimes you interview like these big highfalutin’ lawyers, and you think like, you know, you're not that impressive. And sometimes you're in this conversation, and you're like, I am one standard deviation dumber than this person is, like, and that is 100% how I felt speaking to her, she was very good.
Pia: The Swiss lawyers, they were a bit surprised about our good arguments. They were really surprised about the competence of our team.
Katz: And actually when I asked Alain himself how he found his opponents, he did seem quite impressed.
Alain: The case has been well prepared by the applicants. And this is at least partly due to the fact that they're supported by Greenpeace. It has been dealt with by good lawyers, so to speak.
Katz: After the lawyers have made their big speeches, it’s time for the judges to ask a bunch of questions.
Dominic: Oh so, the lawyers don’t get to, like, cross-examine witnesses or anything?
Katz: No, there are a bunch of NGOs and climate scientists and other national governments who all support a whole bunch of evidence as well, but in the actual hearing, it’s just, each side gives a speech, and then each side gets a bunch of questions from the judges, and then after a short break, they answer those questions. And then it’s over – no witnesses.
Dominic: Doesn’t sound anything like Law and Order!
Katz: No, very disappointing.
[AD]
Katy: Okay, so the two sides don’t really talk to each other directly. But take us through the core things that the government and the KlimaSeniorinen disagree on.
Katz: Okay, so the first major debate is one we touched on earlier: are these women actually victims of climate change?
ALAIN CHABLAIS (English interpretation): However, neither their statements nor the medical certificates they produced, make it possible to establish that these problems, whether cardiovascular or respiratory, are the consequence of the emissions the government is blamed for. Mere suspicion or conjecture is not enough.
Katz: I was pretty surprised to hear these words “suspicion and conjecture”. Like, yeah, Switzerland alone did not cause the climate crisis. But that’s not really the case being made. And there is pretty solid evidence that heat waves are tied to more risks in senior women. And some of the women who brought the case actually have letters from their doctors.
Katy: Mmm.
Dominic: How did the KlimaSeniorinnen argue it?
JESSICA SIMOR: No one before this court disputes that heat kills, and that women over 65 are at real risk, not only of severe physical and mental impairment from heat-induced illness, but of death. Switzerland has already experienced an average temperature increase of 2.1 degrees. That is twice the global average. In the past 20 years, it has had the five most extreme heat waves ever recorded. In August 2018, nearly 90% of heat-related mortality was in people older than 75.
Katz: There is some discussion during the hearing about whether or not it’s scientifically proven that they’re getting sick because of the heatwaves. There’s clear science that climate change will lead to heat waves that will cause more deaths. But like, when do they count as being victims? Has it already started, or does it only start when we reach 1.5 degrees’ heating? And then, things get a bit weird, because they start talking about how, basically, these women aren’t dead yet.
Katy: Okay…
Alain: We think it is clear that the applicants are not direct victims because today they are not sufficiently affected by the alleged omissions of the Swiss authorities. But we also think that in future, they cannot be considered as potential victim. Because that would possibly only take place in many, many years.
Katz: The Swiss government is sort of simultaneously saying, you aren’t dead yet, but also you’ll be dead before we can officially count climate change as risking your life.
Katy: That is so surreal.
Katz: Here’s Jessica, arguing against that point in court.
Jessica: Switzerland argues in line with the Federal Supreme Court that the applicants cannot be victims because they are unlikely still to be alive by the time global temperatures reach 1.5. The court should unequivocally reject those arguments. On current trajectories announced by the IPCC last week, 1.5 degrees will be reached by the first half of the 2030s, and even possibly late this decade. All 2,038 applicants hope and expect to be alive at that time.
Katy: I mean, the KlimaSeniorinnen are 65 and older, right?
Katz: Yep.
Katy: And the government is saying they’re gonna be dead in seven years. But that’s kind of ridiculous. I mean I know it’s kind of random, but the life expectancy of Swiss women came up on this podcast when I talked about changes to their retirement age a while back. And their life expectancy is like 83! Some of these women are gonna be roasting in heatwaves for another two decades.
Dominic: We hear these news stories every summer of all these older people across Europe who are dying unnecessarily because of heat waves. So how could they be making the argument that it’s not a risk already?
Katy: Hmm.
Dominic: But let’s say, legally, they are able to prove they are at risk, but not able to prove that they are affected worse than other people. Does that mean they don’t have a case anymore?
Katz: I mean, everyone kind of gave me a different answer on that.
Jessica: There is a bit of a confusion which I think derives from the Swiss position. As I understand it in Switzerland, you need to show that you're more affected than others. But that's not the test for being a victim in Strasbourg, because I mean, it would be mad if we had a situation where you couldn't be a victim because everyone was a victim.
Molly: This is one of the arguments that the Swiss women and the French mayor later in the afternoon were making, a sort of like there is no real other avenue for us to make these arguments. You know, ecocide is not really considered something big enough to sort of take to a place like the ICC. And even if you could do that, that’s not a court where you can bring cases against states.
Dominic: Hmm.
Katy: What else did the Swiss government argue?
Katz: Okay so next up, we have the whole ‘drop in the ocean’ argument.
Molly: What the Swiss government says is, is that like, even if the whole Swiss economy just shuts down tomorrow, and even cows in Switzerland are not farting anymore, you would still have climate change. And, of course, what the women say is, is that like, ‘Yeah, but this is, you know, you have an obligation to us, as Swiss citizens, to do what you can to sort of mitigate what you can,’ and that like, pollution that's admitted into the atmosphere in Switzerland impacts people in Switzerland, more than people in Bangladesh or whatever.
Corina: You know, if you understand Switzerland as a financial powerhouse, as a hyper-developed country with a lot of influence, and as a country that's very clearly not meeting its emissions reductions targets, then this ‘little me’ argument seems rather disingenuous. And hopefully, the court will see it like that as well. Because if that is the way we approach this from a human rights perspective, then we're just completely abdicating human rights protection. And that is incredibly dangerous and harmful to literally everyone around the world. So I really hope that won’t be the approach. The fair share argument is being used to try and overcome that, to kind of definitively say, ‘Well, you know, we're saying that you have a pretty significant share in what's happening. And that should be enough to hold you responsible and to urge you to action, without you having to be somehow demonstrated to be the most polluting, most emitting state there ever was, or will be.
Katz: This fair share thing is important. It’s part of the Paris accord, the landmark climate agreement in 2015 that said that collectively, all governments would have to keep the average global heating to below 1.5 degrees. Here’s Jessica’s lawyer colleague, also speaking in the hearing, Marc Willers.
MARC WILLERS: It is common sense that the temperature goal in the Paris agreement cannot be achieved without mutual trust between contracting states. Switzerland has no excuse for its failures to protect the applicants’ rights. It has failed to act with sufficient urgency and application, undermining global efforts and mutual trust. If a country as rich and technologically advanced as Switzerland cannot do its fair share – I go further, does not even take the trouble to assess what its fair share should be – then what hope is there that other countries will step up to the challenge we face?
Dominic: The Paris agreement finally comes up! I was actually wondering that earlier. Don’t Switzerland have to do their bit to keep the temperature rise below 1.5 degrees, regardless of this court case?
Katy: Yeah, but the Paris Agreement isn’t properly legally binding, is it?
Jessica: That's a really, really important, incorrect myth that has been spread. Every international treaty is legally binding, that is the definition of a treaty. It's really important, though, because it's one of those things that’s said by states all the time, ‘Oh it’s not legally binding.’ There is no such thing as a treaty that is not legally binding.
Katz: That said, the Paris agreement might be clear on the 1.5 degrees, but it is not exactly clear on what each country has to do.
Corina: The Paris Agreement gets described as a crème brûlée, because there are soft parts and there are hard parts. I unfortunately don't remember whose description that is, but I really like it, because it sounds delicious, it sounds like something we all want more of.
Katy: I could really murder a crème brûlée right now.
Dom: Pay attention Katy.
Katy: Sorry, I know that isn’t the point.
Katz: Alright. So, there’s soft parts to the Paris Agreement, and there are hard parts. And all over the world, people are getting creative and turning to the courts to pressure governments to give the Paris goals more legal weight.
D: And it does seem like the courts are a good way to do that, given that there’s no, like, Paris agreement police or anything.
Katz: Yeah, so really the Paris Agreement is being argued out further in this court. And what the Swiss government is saying is that it’s already doing enough to fight climate change. But how do you define enough? The other so-called ‘hard part’ of the Paris accord, is about the maximum carbon budget that the world has left. Scientists calculated in 2018 that if we want to meet this 1.5 degrees goal, we have 420 billion tonnes of carbon left to emit.
Dominic: As in, the entire world?
Katz: Yeah. So for context, based on our current global yearly emissions, we will use up the entire carbon budget for our planet within 11 years.
Katy: Yikes.
Katz: Yes. So we’ve got to find out a way to split it up. And the Paris Agreement just says the way we split the carbon should be fair. But it doesn’t say what is fair.
Dominic: Everyone sees fairness differently! This sounds like a nightmare.
Katz: It really is. Do you just split it per country, do you do it per capita? Do you take into account which countries have historically contributed the most to emissions because they industrialised early? Stuff like that.
Dominic: So difficult.
Katz: Very difficult.
Katy: Yeah.
Katz: But what’s interesting about this 420 billion tonnes is that it really emphasises the finiteness of our emissions.
Katy: So I’m guessing this came up in the court hearing?
Katz: Yeah, the judges really leaned into this whole fair share concept in their questions ahead of the hearing. And then in the court, kind of outrageously, the Swiss government described itself as a ‘below average’ emitter.
Katy: Hmm.
ALAIN CHABLAIS (English interpretation): When it comes to GHG gas emissions in 2020 and Switzerland's share, we’re below the international average.
Katz: For the most part, the two sides agree on the science. But again, this was a moment where they seemed to be debating on the basic facts. I mean, maybe if you use some creative maths, you could at a stretch describe Switzerland as a ‘below average’ emitter. I mean, it’s a small country, it’s got less than 10 million people. But if you look at how the average citizen lives, it’s an extremely wealthy industrialised country, people drive cars, take planes, eat a huge amount of animal products. It’s really hard to work out how Switzerland could be described in the bottom half of the world ranking.
Dominic: Yeah and that’s even before you take into account that Switzerland is a banking powerhouse, and many of those banks are driving forces in funding the fossil fuel industry. That’s not even included in any of these models.
Katz: No, it isn’t.
Katy: So, how did the Klimaseniorinnen present Switzerland’s emissions, compared to the way the government put it?
Jessica: If you just globally distribute the remaining budget on a per capita basis, then on the basis of Switzerland's current policies, it's used up all its remaining carbon in 2034. But it intends to continue using carbon after 2034, and therefore, it is taking carbon from other countries. If you then do it on the basis of historical use, it’s already way above what it should’ve done. Already using other countries’ carbon.
Dominic: Wow, that’s pretty extraordinary.
Katz: Yeah, and I was pretty blown away by this language. Jessica’s colleague described it as carbon theft. And the judges really leaned into that in their questions too.
Dom: So we’ve heard the core arguments. What happens now?
COURT PRESIDENT: We’ve now come to the end of the hearing. I thank the parties very warmly for their submissions and their answers. The court will now deliberate on the admissibility and the merits. The judgment will be delivered at a later date and the parties will be informed of the date of delivery. I declare the hearing closed.
Katz: Now, we wait. The court has already said it won’t rule on the Swiss case until they’ve also heard the third climate case, the one with the young people from Portugal. And that’s happening in September. Here’s Molly.
Molly: So my guess is sometime in the second half of 2024, we are gonna see.
Katz: Because what are they doing all of that time?
Molly: So in the defence of the judges, I guess, you know, there is like, thousands of pages of filings that are made, right? What you see in court is a very, you know, is really like the very tip of the iceberg of what gets filed.
Corina: It takes a while to agree on, you know, what, actually, the judgements would be, to draft the judgement. So they can concur or dissent. The debates do get kind of heated sometimes. And it does take quite a while to get enough people to agree with a given judgement. Yeah, that can be quite tough.
Katy: So how are the two sides feeling about their chances?
Katz: Do you think you're gonna win?
Pia: Yes, we do. Sure.
Katz: Love the confidence!
Pia: I'm convinced that our arguments are much better. If you test them, they weigh more than their arguments.
Katz: As for Alain, the Swiss government lawyer – he was pretty diplomatic.
Alain: We all have to win together, there's no winner and loser. I mean, it's for the, for human being to be able collectively to reduce its impact. Even if the court were to deliver a ruling with a finding of violation against Switzerland and other countries, I don't think it would really settle the issues. There's certainly a need for continued action by all governments, but that takes time.
Pia: Winning means, from our point of view, the court will write a letter to Switzerland. ‘You have to do more, this goal is not enough, this goal is not enough. You have to make much more.’
Molly: The court won't like legislate specifically what you have to do. It won't say, like, Switzerland has to close down its coal-fired power plants or something like this, but it will give some kind of broad-based, ‘You have to do more to meet the Paris Climate Accords, or like you have to reduce emissions by whatever percent,’ and then it's up to the Swiss government to sort that out. And court rulings from the courts are binding on all of the member states. So if Switzerland has to do it, then like, theoretically, all the rest of them have to do it too.
Katz: Oh really? So if Switzerland loses, then the –
Molly: Then everybody loses. Or – except for humanity, I guess. Humanity wins, the countries lose.
Dominic: Oh interesting! So then the entire Council of Europe would technically have to meet those goals?
Katz: In principle yeah, and it would also give more weight to any domestic climate court case, because they know that it would be levelled up to the European Court.
Katz: And that brings us back to what we talked about earlier. The court is in a really difficult position of deciding whether or not climate change should fall under human rights law. And now is when they are going to take a stance.
Jessica: I'm quite hopeful. You know, faced with something of such huge importance, and bearing in mind the Dutch Supreme Court and the German Constitutional Court and the Brussels Federal Court, does the European Court of Human Rights really want to say to the world, you know, none of this is necessary? I'm relatively hopeful.
Katy: And I guess there’s pressure from Switzerland and lots of other member states saying, ‘You, the court, you shouldn’t get involved in this.’ But in terms of legitimacy – you know, it doesn’t look great in the eyes of lots of European citizens, and people around the world, who are facing the very real threats of heatwaves, and forest fires, and even these massive floods in Italy just this week – if the court says nope, your government doesn’t owe you the right to life in its climate policy.
Corina: Nobody's arguing, you know, the European Court of Human Rights should replace domestic authorities or domestic legislators or domestic law. But for me, it actually needs to take a strong stand on climate change, because I think at this point, any human rights body that says, you know, this isn't an issue for us, or we can't say anything about this, this is not part of our role, is really kind of abdicating its role and failing to do what it’s set up to do. So I think we should expect a lot from the court here, because it is a very important institution, and hopefully it’ll really take that role seriously.
Katz: And while these judgements are being deliberated, things are evolving. Just a week before we published, the Council of Europe met up – which doesn’t happen often, the last one was in 2005 – and they discussed legally formalising a right to a clean and healthy environment, specifically to make it possible for citizens to take climate cases to Strasbourg.
Corina: Whatever the European Court of Human Rights says in this case, it's not going to be the last word, it's not going to be the only word. So this is going to keep evolving, for sure.
Katz: One of the biggest critiques I’ve heard of this case in the media is that these KlimaSeniorinnen are on the grand scheme really not ‘the worst climate victims’. They live in one of the richest countries on earth, and it’s not like they’re, you know, subsistence farmers living on a Pacific island that is going to go underwater in the near future. So why should we care about them?
Pia: Yes, the KlimaSeniorinnen, the elderly women, are not in the worst position. But we do have the power to make the pressure. We don't do it for ourselves, because I would die anyway, before Switzerland will take the big change. I won't be on this earth anymore. But it doesn't cost me much to make pressure. I don't want to think, one day, in my last days, ‘I should have done more.’ That would not be good for my soul. And at the end of my life, when I'm going to die, I would like to say okay, you did what was in your possibilities. So, bye!
Katz: This story was reported and produced by me, Katz Laszlo. It was edited by Katy Lee, with editorial support from Dominic Kraemer and Wojciech Oleksiak. Sound design, mixing and mastering also came from Wojciech, and a special thank you to Pia Hollenstein, Corina Heri, Molly Quell, Jessica Simor, Alain Chablais and Gerry Liston for talking to us. Music came from Epidemic and Blue Dot Sessions. This episode was made in cooperation with the Allianz Foundation. It is one of several episodes we’re making this year themed around sustainability, with their support. Stay tuned later in the year to hear more. And of course, none of this would be possible without our generous Patreon supporters, so thank you very very much. Special thank you also to Maartje, Leo and Karin for hosting me and saving us from bankrupting the show with this travel to Switzerland. Thank you for listening, and we will be back next week.
