Swiss government rebuffs ECHR climate ruling: next stop Strasbourg

In April, global attention turned to Strasbourg when the Swiss Climate Seniors Association successfully brought a case against the Swiss state – for not protecting them enough against climate change. Keystone / Jean-Christophe Bott

Almost five months after the European Court of Human Rights (ECHR) took Switzerland to task for its climate action, the government in Bern has hit back abruptly – Swiss policies are not inadequate, it says.

When the ECHR ruled earlier this year that Switzerland had violated citizens’ rights by failing to take adequate climate action, reactions came thick and fast. Environmentalists welcomed what they saw as a trailblazing verdict, the right-wing People’s Party advocated completely leaving the Council of Europe (to which the ECHR is affiliated), while parliament rebuffed what it saw as “judicial activism” by the Strasbourg court.

Meanwhile, the Swiss government – the ultimate target of the judgement – stayed above the fray, assessing its options: take steps to implement the (binding) ruling, follow parliament’s confrontational course, or find a compromise?

On Wednesday, it opted to dig its heels in. In a clarifying statement outlining its position, it politely yet firmly disagreedExternal link with the ruling: while it “acknowledged” the importance of the European Convention on Human Rights, it criticised the court’s “broad interpretation” of it – both in extending it to the field of climate protection and by enlarging the right of appeal to associations (in this case, the Swiss Climate Seniors Association, who brought the initial case in Strasbourg).

Moreover, the government said, it did not agree that Swiss climate policy was inadequate. Neither the revised CO2 Act, passed in parliament in March, nor the new electricity law were taken into account by the April verdict. All things considered, ministers wrote, “the Federal Council is of the opinion that Switzerland fulfils the climate policy requirements of the [ECHR] ruling” – a position it will present in more detail at the Council of Europe’s Committee of Ministers later this year.

‘Undermining the system’

Whether it will be successful in convincing the other 45 member states of the organisation remains to be seen. Sébastien Duyck from the Geneva-based Center for International Environmental Law (CIEL) reckons a strong reaction can be expected when Switzerland argues its case at the Committee of Ministers in Autumn (it has to produce a detailed report on how it is implementing the verdict by October 9).

The Swiss position amounts to a “worrying rejection” of the ECHR ruling and a surprisingly broad attack on the legitimacy of the court, Duyck says. As such, he hopes that other states will remind Switzerland of its obligations.

In terms of what exactly the country risks if it doesn’t implement the ruling to the Committee’s satisfaction, this is unclear. Barring the nuclear option of excluding a state from the Council of Europe altogether – a very rare occurrence reserved for more fundamental human rights violations – the mechanismsExternal link centre on monitoring, reporting, and peer pressure.

However, Duyck says, “the credibility of the human rights framework in Europe relies on the fact that when the ECHR makes a decision, governments work in good faith to implement it. If governments basically start rejecting its conclusions, this will undermine the whole system”.

That said, he adds, given what he terms the political – rather than legal or evidence-based – nature of the Swiss position, it is unlikely to have a direct impact on climate jurisprudence as such, either at the ECHR, or on other pending international casesExternal link, such as at the International Court of Justice, the Inter-American Court of Human Rights, or the European Union’s Court of Justice.

Carbon budget

For its part, the Swiss Human Rights Institution (SHRI), a national oversight body, wroteExternal link on Wednesday that the “ambiguous and insufficient” government response would in all likelihood “not satisfy the Committee of Ministers at the Council of Europe”. The ECHR took Switzerland to task on a concrete issue, the SHRI wrote: the country’s lack of a carbon budget for tracking emissions. But there is no mention of this in Wednesday’s response. The issue is thus likely to come up at the Council of Europe again in the future – and again fire up anti-ECHR sentiments back in Switzerland.

“By making minimal commitments to implement the ruling, the government could therefore indirectly strengthen the position of those who are calling for Switzerland to distance itself from, or even leave, the ECHR,” the SHRI wrote.

‘Comfort zone’

Reactions by anti-ECHR forces were not immediately forthcoming on Wednesday. Beat Rieder, a Centre Party politician active in the drafting of parliament’s position earlier this year, told the Neue Zürcher Zeitung paper that the government had “made it clear that Switzerland is a sovereign country, where parliament, people, and cantons make laws – not ECHR judges.”

Much of the initial responses however came from environmental and rights groups like the SHRI, Greenpeace, or the progressive Operation Libero, who all put out a flurry of critical statements.

That said, criticism from such groups doesn’t negate the fact that the government’s position is likely to be met quite positively overall in Switzerland, says Isabelle Stadelmann-Steffen, a professor of political science at the University of Bern. Firstly, it’s a reflection of the right-leaning majority both in parliament and government. Secondly, the idea that Switzerland is on track to meet its climate goals, and that nothing more needs to change, is simply what many people want to hear.

However, Stadelmann adds, with climate studiesExternal link showing that Switzerland – and most other countries – are not in fact on track to meet their targets, more reforms are likely to be needed. In this light, she sees the government statement as a missed opportunity: instead of using the ECHR ruling as a chance to lead by example and convince the population of more environmental efforts, the Swiss government retreated into a “comfort zone” of rebuffing it. “This could hinder the implementation of fast climate reforms in the future,” she says.

Edited by Virginie Mangin

Note: this story was updated on August 29 with information on the enforcement mechanisms available to the Council of Europe