Judging Climate Change

A Comparative Legal and Political Analysis of the KlimaSeniorinnen Schweiz and the Urgenda Cases

Abstract

Since global and national political efforts to tackle climate change are failing, climate change litigation is on the rise worldwide. In climate change litigation, claimants try to legally advance climate protection in manifold ways. In particular, strategic, rights-based climate change litigation is becoming more common in which claimants use a human rights-based approach in their attempt to advance social change. While a rights-based claim filed by Urgenda in the Netherlands succeeded, a similar Swiss case brought by KlimaSeniorinnen Schweiz, failed. Why did the two cases have different outcomes despite the similarity of the cases and the countries? This paper seeks an answer by comparing the legal and political systems of the countries as well as by conducting expert interviews. In sum, the Urgenda and KlimaSeniorinnen cases differed because Dutch law has more generous procedural rules about the admissibility of claims than Swiss law. Furthermore, the Swiss highest court is more hesitant to engage in politically controversial questions compared to the Dutch highest court.