Intersectionality in Climate Litigation

The climate crisis poses a significant threat to our existence. Just recently, the Intergovernmental Panel on Climate Change’s (IPCC) Sixth Assessment Report revealed that the crisis is unfolding even faster than expected. Climate change originates from human behaviour. In civil society, we increasingly observe opposition to behaviour such as excessive greenhouse gas emissions and exploitative treatment of non-human life. Beyond ballot boxes, the streets, and public discourse, courtrooms become an increasingly powerful forum to voice this opposition against climate-killing practices. Currently, there are more than 2000 climate cases pending worldwide. On 29 March 2023, climate litigation finally reached the European Court of Human Rights (ECtHR). According to the applicants in the case KlimaSeniorinnen v. Switzerland, Switzerland’s greenhouse gas reduction could fall short in providing protection from negative impacts of climate change in accordance with the right to life and right to respect for private and family life enshrined in the European Convention of Human Rights (ECHR). As such, the case represents a typical human rights-based climate claim and shows strong similarities with the Dutch Urgenda case.

However, the KlimaSeniorinnen’s case also has a unique feature: The applicants assert the formal admissibility and substantive merits of their claim on the grounds of being older women. Fittingly, ‘KlimaSeniorinnen’ could be (loosely) translated into ‘(female) retirees for climate protection’. This makes their case one of the first gender-based climate cases, alongside Maria Khan v. Pakistan. In light of this development, new questions emerge; especially so for critical and socio-legal approaches. This blogpost introduces the case of KlimaSeniorinnen v. Switzerland, explores to which extent it embodies an intersectional case, and reflects on intersectionality’s implications for climate litigation.

The Case of KlimaSeniorinnen v. Switzerland

Environmental concerns played a role in the case law of the ECtHR for decades, with over 80 cases since 1994 involving waste management, natural disasters, or diesel emissions. In this context, applicants invoked especially the right to life and the right to respect for private and family life enshrined in Articles 2 and 8 ECHR. Meanwhile, the ECtHR is considered a key actor by the “Greening Human Rights” development. The case of KlimaSeniorinnen, which concerns the emission of greenhouse gases in the context of the global climate crisis, now poses new doctrinal challenges.

In its main features, the case resembles the familiar body of case law on environmental issues. The five applicants, i.e. the association KlimaSeniorinnen and four of its members, argue that Switzerland violates its obligations to protect them against recurring heatwaves, with the national greenhouse gas emission reduction targets and correlating sectoral targets in areas such as transport and buildings deemed inadequate. Therefore they rely on Art. 2 ECHR (right to life) and Art. 8 ECHR (environmental degradation associated with adverse effects to health/physical integrity and private life). To substantiate a real and serious risk of morbidity and mortality, the KlimaSeniorinnen mainly refer to the “best available science” as reflected in the reports of the IPCC and to international law, notably the precautionary principle and the “well below 2 degrees” target of Art. 2 of the Paris Agreement.

However, given the climate crisis’ scale, new challenges arise. Unlike classic, more individualized environmental disasters, the causes and consequences of global warming cannot be attributed to a specific plant, practice, or nation state. This leads to specific problems, most crucially the well-known issue of causality. In the case of KlimaSeniorinnen, the plaintiff, Switzerland, argued that

“global warming is a global phenomenon [and] the omissions for which Switzerland is being blamed are not of such magnitude as to cause, on their own, the suffering claimed by the Applicants”.

This could be paraphrased as a classic “drop-in-the-ocean” argument. Neither the German Constitutional Court (FCC) nor the Dutch Hooge Raad have pursued this somewhat nihilist line of argumentation. Quite the contrary, the FCC ruled that

“the obligation to take national climate action cannot be invalidated by arguing that such action would be incapable of stopping climate change. […] On the contrary, the particular reliance on the international community gives rise to a constitutional necessity to actually implement one’s own climate action measures at the national level – in international agreement wherever possible“ (para 202, 203).

It remains to be seen how the ECtHR will deal with this problem.

Apart from causality, the holistic dimension of climate change also raises an admissibility issue with regard to individual interests – which is where the gender aspect comes into play. According to Swiss law (Art. 25 of the Administrative Procedure Act, VwVG) and Art. 34 ECHR, admissibility hinges upon whether a violation of individual rights appears at least conceivable. Throughout domestic proceedings, Swiss authorities declined this and argued that the applicant’s claim was rather in the public interest (and, therefore, an inadmissible actio popularis). KlimaSeniorinnen, on the other hand, argued that they – as women over the age of 75 – are disproportionately affected by heat-related morbidity and mortality. For this purpose, they rely on medical findings and position themselves as a “most vulnerable group” of elderly women. By invoking the concept of ‘most vulnerable group’, KlimaSeniorinnen turned medical insights about global warming’s effects and intersectional vulnerability into a multifaceted legal argument in the context of standing in front of a human rights court. In other words, KlimaSeniorinnen alerted the Court how health, age, gender, and the climate crisis intersect. By invoking their status as a most vulnerable group, they seek to counter the actio popularis argument and establish victim status according to Art. 34 ECHR. Moreover, by qualifying as a most vulnerable group, the applicants strengthen their substantive claim through a reference to the ECtHR’s case-law on vulnerability. This line of case-law, which originates from cases brought before the Court by Romani and Sinti people establishes that Member States’ protection obligations can vary in their extent and content with the respective vulnerability. In that sense, the KlimaSeniorinnen argue that they, as a most vulnerable group, are certainly entitled to protection, which Switzerland has failed to provide.

Intersectionality as a Strategic Tool

Eventually, the KlimaSeniorinnen’s claim of age- and gender-specific vulnerability follows an intersectional approach to human rights. The origins of this approach date back more than 30 years. Back then, US legal scholar Kimberlé Crenshaw introduced the term intersectionality from Black women’s activism into academia. In her seminal article, “Demarginalizing the Intersection of Race and Sex,” Crenshaw deconstructed how legal protection failed when discriminatory categorizations intersected. Using the US case De Graffenreid v. General Motors as an example, Crenshaw revealed how legal practice denied Black women protection against discrimination in a case of terminations based on a seniority system. Since Black women were, then, the most recent group to be hired, seniority-based terminations disproportionally affected Black women compared to white women and Black men. Back then, however, due to an one-dimensional approach to anti-discrimination law, courts ruled that General Motors did not discriminate based on gender or race as neither Black men nor white women faced comparable experiences. As a result, those who needed legal protection the most – Black women – did not receive it. Comparable to Crenshaw’s disclosure of how US anti-discrimination law was not written for Black women, the KlimaSeniorinnen ultimately argue that Swiss climate law was not written for them. Verbatim, Klimaseniorinnen claimed:

“In August 2018, compared with the general population, older women experienced the most significant increase in heat-related mortality when nearly 90% of heat- related deaths (159 of 177) occurred in older women […] The IPCC confirms that older adults, women and persons with chronic diseases are populations at the highest risk of temperature-related morbidity and mortality” (ECtHR, Application No. 53.600/20, Additional Submission, para 4).

Based on this intersectional perspective on gender and age-based vulnerability, they claim individual risk exposure (Art. 25a VwVG) and victim status (Art. 34 ECHR). As part of this strategy, the KlimaSeniorinnen also position themselves, as already mentioned, as a most vulnerable group:

“If the applicants as a most vulnerable group were denied victim status, it is questionable who would then be entitled to this status in connection with global warming, which clearly has strong impacts on human rights”.

Thereby, KlimaSeniorinnen, more implicitly, follow a typical intersectional line of argumentation, already introduced by Crenshaw:

“If their efforts instead began with addressing the needs and problems of those who are most disadvantaged and with restructuring and remaking the world where necessary, then others who are singularly disadvantaged would also benefit”.

Eva Brems, Anne-Kathrin Speck, and Nele Schuldt, in their amicus curiae brief, summarize that

“by paying due attention to the particular vulnerability that arises at the intersection of age and gender, the Court can contribute to the important work that several supranational human rights bodies are currently undertaking in terms of integrating insights on intersectionality in human rights law.”

It remains to be seen to what extent the Court will take up this aspect.

Outlook

The case of KlimaSeniorinnen is one of the first gender-based climate claims. As such, it offers fundamental impulses for the field of human rights and environmental law, including debates on environmental justice. Now, it is up to (legal) scholars and practitioners to take up the KlimaSeniorinnen’s momentum to further explore and develop these impulses.

From an intersectional perspective, it seems important to build on the basic observation that formal equality does not equal substantive equality. Fundamental and human rights regimes still rely predominantly on the privileged perspective of a cis male, white, able-bodied, and heterosexual rights-holder. Hence formal, legalist promises of freedom, equality, and dignity are inherently and continuously broken promises as many people are, for example, indeed not cis, not white, not able-bodied, or not heterosexual.

Further, from a more abstract position, we must observe that those who demand rights from other subject positions, perpetuate – through exercising their ‘imperfect’ rights – the very system that sustains their vulnerability. Such perpetuation can manifest itself in different ways, such as re-victimization, perpetuation of exclusion, or – just like any perfectly ‘normal‘ claim – concealment of other vulnerabilities. This dynamic involves various modes, practices, and actors. Like the Swiss Climate Protection Law, even the claim of KlimaSeniorinnen itself cannot avoid perpetuating inequalities and invisibilities. On the one hand, much of the human rights regime – and especially the ECHR – remain state-focused. Often, such state-focused regimes inevitably conceal global inequalities in resilience and vulnerability to the climate crisis beyond the state (e.g., in indigenous communities). From a postcolonial and socio-economic perspective – compared to the claimants in Maria Khan et al v. Pakistan –, the applicants in the case of KlimaSeniorinnen are rather privileged than vulnerable. After all, they are Swiss retirees – perhaps, on average, one of the more comfortable positions to be in.

However, from a legal perspective, such issues of global environmental justice are not relevant to the individual application of the ECHR. This is where the limits of strategic litigation become manifest. A similar reproduction of vulnerabilities can be observed regarding gender binarity. KlimaSeniorinnen – albeit masterful in legal strategy – rely on data that reproduces a binary perspective on gender. Thereby, KlimaSeniorinnen’s argument excludes trans-, inter-, and non-binary vulnerabilities towards climate change. At the same time, with regard to gender, the KlimaSeniorinnen disrupt dynamics of re-victimization. They re-claim the position of older women as a tool of empowerment. They use it to claim standing and access to justice, thereby rejecting any passive stereotype.

This intersectional ambiguity is not unique to the case of KlimaSeniorinnen. Rather, it reflects key issues with regard to fundamental and human rights. The KlimaSeniorinnen chose a specific intersectional legal strategy and have set the stage. Now, it is up to legal scholars and practitioners to build on this foundation and further explore questions of intersectional equality and justice at the interface of human rights and environmental matters. Also, and especially, in the face of the climate crisis.