Switzerland: Failing to comply with European Court’s ruling on climate protection not an option

Sep 3, 2024 | Advocacy, Cases, News, Web Stories

The International Commission of Jurists (ICJ) is concerned by the recent response of the Swiss Federal Council (i.e., the Swiss government) to the ruling of the Grand Chamber of the European Court of Human Rights (ECtHR) in the landmark case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. This case, decided on 9 April 2024, is of major importance for the protection of human rights in the context of climate change, both within Switzerland, across Europe and beyond. The ICJ calls upon the Swiss government to comply fully with the ECtHR’s judgment and thus uphold Switzerland’s obligations under international human rights law.

This ruling is a landmark decision at the intersection of human rights and environmental law. It establishes a significant precedent by recognizing the duty of States under the ECHR to implement effective climate policies. The judgment underscores the crucial link between human rights and environmental protection, affirming that a failure to adequately address climate change constitutes a violation of the right to respect for private and family life.

The implications of this case extend beyond Switzerland: the decision may serve as a critical benchmark for all member States of the Council of Europe, enjoining them to take their environmental obligations seriously and to implement policies that protect the most vulnerable from the effects of climate change.

In response to the ECtHR ruling, the Swiss Parliament issued a declaration, expressing concern over what it described as “judicial activism” by the ECtHR. The declaration criticized the Court’s dynamic interpretation of the ECHR as a “living instrument,” suggesting that it exceeded the proper boundaries of judicial interpretation. The National Council (the lower house of the Swiss Parliament) called upon the Federal Council to inform the Committee of Ministers of the Council of Europe that Switzerland considered its existing climate policies sufficient to meet the requirements outlined in the ECtHR’s judgment.

Subsequently, on 28 August 2024, the Federal Council convened to articulate Switzerland’s official position on the ECtHR ruling. While reaffirming Switzerland’s commitment to its membership of the Council of Europe and the ECtHR system, the government echoed Parliament’s criticism of the Court’s interpretation of the ECHR concerning climate protection.

The Federal Council asserted that Switzerland’s current climate policies, including recent legislative measures, meet the human rights obligations set forth in the ECtHR judgment. The government maintained that the Court had not fully considered very recent developments in Swiss climate legislation, such as the revised CO2 Law of 15 March 2024, which establishes specific targets for reducing greenhouse gas emissions by 2030 and 2050, nor did it consider Federal Law of 23 September 2023 concerning electricity supply through renewable energy sources.

The ICJ considers the Federal Council’s latest assertions to be misguided at best and stresses that the ECtHR’s ruling is binding and requires Switzerland to take additional steps to protect the rights of those most vulnerable to climate change. The ICJ is particularly concerned that the government’s response could set a dangerous precedent by suggesting that States may selectively comply with ECtHR’s judgments. This approach risks undermining the authority of the ECtHR and weakening human rights protection across Europe.

By dismissing the need for further measures, the Federal Council not only undermines human rights and the protection of the environment, putting people’s rights in jeopardy, but also signals to other States that international human rights obligations can be ignored.

The ICJ calls on the Swiss Federal Council to fully comply with the ECtHR’s judgment. Upholding the rule of law and respecting international judicial decisions are essential for maintaining the credibility and effectiveness of the international human rights protection system. Switzerland should lead by example and demonstrate its commitment to human rights and environmental protection by implementing the necessary measures to address the challenges posed by climate change.

 

Background

The Verein KlimaSeniorinnen Schweiz case was initiated by an association, KlimaSeniorinnen Schweiz, that argued that the Swiss government’s inadequate action on climate change violated their rights under the European Convention on Human Rights (ECHR). They contended that insufficient measures to combat climate change disproportionately impacted older women, infringing upon their rights to life and respect for private and family life (Articles 2 and 8 of the ECHR).

On 9 April 2024, the ECtHR ruled in favour of the applicants, determining that Switzerland had not fulfilled its obligations under the ECHR by failing to take adequate measures to mitigate the effects of climate change. The Court emphasized the positive obligations of States to protect individuals from environmental harm, particularly given the growing evidence of the adverse impacts of climate change on vulnerable populations.

In 2021, the ICJ and the Swiss Section of the ICJ submitted a third-party intervention in the case that was brought by an association registered under Swiss law, Senior Women for Climate Protection Switzerland (Verein KlimaSeniorinnen Schweiz, the applicant association), and by four Swiss nationals, all members of that association, on 26 November 2020. The ICJ and the Swiss Section of the ICJ provided the Court with expert observations, including on the meaning of direct and indirect victims of human rights violations, on the victim status of associations and NGOs, on the right of access to court and to an effective remedy.

Earlier this year, the ICJ welcomed the landmark ECtHR decision to hold Switzerland accountable for climate justice failures, saluting the judgement as protecting human rights of those who live today and of future generations, in Switzerland and everywhere in the world.

In a letter dated 28 June 2024, the Swiss Section of the ICJ (ICJ-CH) urged the Federal Council to reject Parliament’s declaration of 12 June mentioned above and, instead, to fully implement the ECtHR judgment. The letter provided legal arguments against the Swiss authorities’ stance and highlighted the potential consequences of non-compliance with the ECtHR ruling.

On 28 August 2024, the ICJ-CH stated:

“On 28 August, the Swiss government clarified its position on the ECtHR judgment of 9 April 2024 in the case KlimaSeniorinnen v. Switzerland. While reaffirming its commitment to Swiss membership of the Council of Europe and the ECtHR system, the government criticised, as did parliament, the interpretation made by the ECtHR of the ECHR in matters of climate protection and considered, particularly in view of Swiss legislation not taken into account by the Court, that the requirements of the judgment in terms of climate policy are met. For the reasons explained in its letter, the ICJ-CH does not share this criticism and expects the Federal Council to declare in its report to the Committee of Ministers that Switzerland will comply with its obligations under the ECHR.”

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