Climate Change and Separation of Powers in European Human Rights Law: Why “KlimaSeniorinnen” has been Met with a Vigorous Separation of Power Criticism

Abstract While the judgement of the European Court of Human Rights (ECtHR) in KlimaSeniorinnen v. Switzerland has been hailed by many as a landmark in climate change and human rights litigation, the response by Switzerland and many intervening parties has been less favorable. For instance, the Swiss legislative has been very critical in its review of the judgement, claiming it to be “judicial activism.” By dissecting the criticism voiced in the aftermath of the KlimaSeniorinnen judgement and by comparing this case to similar cases by national and international courts in regard to climate change this paper asks whether this is a unique and swiss-specific criticism or if there is an inherent problem when it comes to climate change litigation and the separation of powers. While acknowledging persistent general criticism of the ECtHR, this article concludes that it is likely that the connection to human rights drives such criticism more than the connection to climate change. This might be because human rights, especially in the international context, leave ample room for interpretation and the margin of appreciation doctrine leaves room for disagreement. Additionally, this paper finds that situations of vertical separation of powers are more prone to criticism than horizontal ones.