PoliticsJune 6, 2024

Judging Switzerland on climate action

Reading time: 9 min

Activist judges in Strasbourg stretched Europe’s human rights law in order to find the Swiss climate policy lacking.

Steep skiing slope — Alpine nations are facing specific economic, political and – as Switzerland has found out lately – legal stakes as they fine-tune their climate policies. © Getty Images

In a nutshell

Applying human rights law to judge countries’ climate policies is risky
Strasbourg judges erred on factual matters and used lopsided evidence
Activist courts trying to replace lawmakers can expect blowback

On April 9, 2024, the Grand Chamber of the European Court of Human Rights sided with a group of Swiss citizens against Switzerland’s climate policy. The outcome of this case can be considered historic, as it allows class action suits against a country that explicitly rejects such suits, and it finds lacking one of the planet’s most ambitious climate mitigation policies. The judges’ ruling is debatable on both counts.

The backstory of the case is relatively straightforward. A group of people describing themselves as “female seniors for the climate” (Klimaseniorinnen) engaged in a legal dispute against the Swiss confederation. The plaintiffs claimed that the country’s climate policy did not protect their right to life. No court accepted the case in Switzerland’s three-tier legal system because it rules out collective redress mechanisms like those in the United States. The Swiss system has traditionally emphasized individual rights and protections, with a skepticism toward mass litigation that could potentially harm the economy. After exhausting all domestic avenues, the plaintiffs took their case to the Strasbourg-based Court.

The judgment in a nutshell

The Court found that, in some cases, an individual cannot meet the so-called victim-status criteria, but a group of people can. In the context of climate change, the Court sees the importance of collective action for “intergenerational burden-sharing.” This concept refers to the idea that the responsibility for addressing climate change should be shared across generations, with each one taking steps to mitigate its impact for the benefit of future generations.

In its interpretation of the law, the Court’s ruling establishes that Article 8 of the European Convention of Human Rights encompasses the right of individuals “to effective protection by the State authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life.”

The Court claims that Switzerland had previously failed to meet its emission reduction targets and that the Swiss people had rejected a more ambitious climate change law.

According to the Court, that means that country signatories and parties to the Convention – a group that includes Switzerland – are obligated to adopt and implement climate policies. In the case of Switzerland, the Court found that “there had been critical gaps in the process of putting in place the relevant domestic regulatory framework, including a failure by the Swiss authorities to quantify, through a carbon budget or otherwise, national greenhouse gas emissions limitations.”

Additionally, the Court claims that Switzerland had previously failed to meet its emission reduction targets and that the Swiss people had rejected a more ambitious climate change law. The judges maintain that both are indicators of the gaps in Swiss climate policy, which constitute a breach of Article 8 of the Convention.

Factual mistakes and one valuable catch

The Court errs on several factual matters. Switzerland’s record on climate mitigation contains its commitments under the 1997 Kyoto Protocol, the prevailing international framework for climate policies before the introduction of the 2016 Paris Agreement.

Read more from Henrique Schneider

Switzerland fulfilled all its greenhouse gas reduction obligations under Kyoto in both its crediting periods (Kyoto I and Kyoto II) and has nationally determined climate objectives under the subsequent Paris Agreement. However, this early part of its record is outside the scope of the Strasbourg case because the plaintiffs’ complaint was about Switzerland’s goals for 2020 and onward. When the Court states that Switzerland’s climate obligation has not been met, it ignores the relevant timeframe: The country has committed to halving its greenhouse gas emissions (from the 1990 level) by 2030. It is not 2030 yet.

The Court also believes that a carbon budget is the primary tool for quantifying greenhouse gas emissions and their reductions. However, no country has a nationally determined contribution formulated as a carbon budget. While some countries define their climate goals in terms of relative emissions reduction from the 1990 base, some have an instrument-based approach, and some follow carbon intensity metrics.

In reality, Switzerland and most countries have a carbon inventory – a fact that the Court missed, as it oversaw the principle of “Common but Differentiated Responsibilities” according to Article 2 of the Paris Agreement. That principle embraces diversity in the methodologies for accounting, tracking and communicating carbon inventories and their changes.

What some critics may interpret as a meaningless declaration is, in fact, legal language committing Switzerland to an ambitious global action.

These mistakes do matter. However, the Court has pointed to one important flaw in the current Swiss law on climate change. Article 1 of the Federal Act on the Reduction of CO2 Emissions (also known as the CO2 Act) reads: “This Act is intended to reduce greenhouse gas emissions and in particular CO2 emissions that are attributable to the use of fossil fuels (thermal and motor fuels) as energy sources with the aim of contributing to limiting the global rise in temperature to less than 2 degrees Celsius.” The Court correctly notes the absence of qualifiers in this text of law.

Nonetheless, in the CO2 Act, Bern dedicates itself to the objective of containing global temperature rise to 2 degrees Celsius. What some critics may interpret as a meaningless declaration is, in fact, legal language committing Switzerland to an ambitious global action. Regardless of more operative goals formulated in the rest of the law and the national instruments put in place, the country’s efforts are to be judged against the first article of its law, that is, against the benchmark of global action. Only in the Court’s granular review does Switzerland fall short, because its law is inconsistent.

The judgment’s interpretation

There are two ways of assessing the consequences of this Strasbourg judgment against Switzerland. The less important one regards what the country is now required to do. According to the Court, “the State has a legal obligation to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress the situation.”

The Court admits it cannot give precise guidance since climate policies are difficult and complex. Therefore, it asks Switzerland to address the problems outlined in the judgment: It leaves it to “the Committee of Ministers to supervise, on the basis of the information provided by the State, the adoption of measures aimed at ensuring that the national authorities comply with Convention requirements.”

The judgment’s more important aspect has to do with its possible long-term consequences. First, it creates a new positive right for groups of citizens: to be protected from the adverse effects of climate change. Secondly, it creates another new positive right to intergenerational burden-sharing in matters related to climate change. These two points are not restricted to Switzerland; the Court clarifies that they apply to all signatory states.

In the Swiss context, the Court positions itself to judge the outcome of a popular vote. In Switzerland, no court can judge, let alone eradicate or change the result of a vote. The Strasbourg court, however, presumes to have this power.

Finally, the Court views all words in the law as meaningful: poorly formulated pieces of legislation with vacuous grand promises or blatant inconsistencies are binding nonetheless, it signals.

The Court was lopsided in primarily considering the materials that support its conclusions rather than deriving its judgment from the totality of the evidence.

In a partially dissenting opinion, Judge Tim Eicke noted that in this ruling, “the majority [of judges] tried to run before it could walk.” He expressed his concern that “the majority are, in effect, giving (false) hope that litigation and the courts can provide ‘the answer’ without there being, in effect, any prospect of litigation (especially before this Court) accelerating the taking of necessary measures towards the fight against anthropogenic climate change.”

Judge Eicke and other experts outside the Court have also argued that the majority took evidence arbitrarily, in parts, regarding their sources and weighting. The Court was lopsided in primarily considering the materials that support its conclusions rather than deriving its judgment from the totality of the evidence. This charge is particularly salient in the Court’s treatment of the reports by the International Panel on Climate Change. Most of the judges disregarded most of the over 80 scenarios developed by the Panel, fixating uniquely on the most ambitious one.

Scenarios

Several scenarios arise from the judgment. They combine Switzerland’s possible reaction, the positioning of other countries, the consequences of the ruling and the standing of the European Convention on Human Rights.

Least likely: Business as usual

The Court passes many judgments on countries, but only some of them are followed up with action by the relevant government. The United Kingdom – which despite Brexit is still a member state of the Convention – has a standing policy of ignoring the Court. Under this scenario, Switzerland could simply acknowledge that some measures need to be better defined and submit an amended CO2 Act as proof of its goodwill. However, the judgment’s scope and the stakeholders’ activism make such a scenario unlikely.

Likely: Enhanced climate action and litigation

Climate change is politically sensitive in many European countries, and so are issues around human rights. Even if many countries submitted opinions to the Court underlining the national character of climate policies, the Court clearly stipulated positive obligations for all countries that are part of the human rights convention. With activism on the streets of European capitals and in the offices of European bureaucracy, countries will likely try to address these new rights by tightening their climate policies. In any case, the Strasbourg judgment will increase the pressure from activists on European politicians – not known for their steadfastness.

Unlikely: Triumph of court activism

As Judge Eicke noted in his dissenting opinion, the Court went well beyond the scope of its purview, taking an activist approach. Instead of judging within the law, the Court went on to make law. By curating the evidence, the Court abandoned the rule that judgment follows from all available relevant evidence.

Both contraventions are typical of the trend of activist judiciaries. In most European countries and in the United States, some courts have been trying to assume a more normative role, following the political views of the majority of judges. Although this trend is apparent, it will unlikely define the judiciary’s future. Activist judgments can still be challenged by national lawmakers who strive to maintain their grasp on the lawmaking process. Courts may exert pressure on lawmakers, but they cannot replace them.

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