Elderly Swiss women won a climate case but it’s not been plain sailing

Five months after the judgment, the Federal government said that it has fulfilled the policy requirements of the ruling.

An unprecedented ruling from the European Court of Human Rights (ECtHR) in April made protection from the effects of climate change a human right under European law.
Brought by a group of elderly women, the case was directed at Switzerland with the court finding the country’s insufficient action to tackle greenhouse gas emissions was a breach of human rights.
The landmark judgment was heralded as a breakthrough for climate cases in Europe and around the world. As the first instance of a country being held legally responsible on this issue, it set a precedent that many are hoping will mean success in future climate cases.
The ECtHR didn’t explicitly tell Switzerland what it had to do next to tackle climate change, just that it had to do more.
First, Switzerland’s parliament voted to reject the ECtHR’s ruling in June. It said it was not “ignoring” it but that the country already had an effective climate strategy.
Now, five months on, the Federal government said that it has fulfilled the policy requirements of the ruling. In particular, it pointed to the revised CO2 Act from 15 March which it says “has defined measures to achieve its 2030 climate targets”.
But, the statement from 28 August, also took issue with the court’s “broad interpretation” of the European Convention on Human Rights (ECHR), including extending it to cover climate protection.
“The case law must not lead to an extension of the scope of application of the ECHR,” the Federal Council said.
The apparent rejection of the landmark judgment has drawn sharp criticism from both environmental groups and human rights organisations. They say the Federal Council’s position is unlikely to satisfy the committee tasked with implementing the Court’s judgment.
Beyond just climate action, the Federal Council’s statement has raised concerns about Switzerland’s commitment to the European human rights law system.
The Swiss Human Rights Institution (SHRI) – Switzerland’s independent national human rights institution – has called the government’s position “worrying”. Criticism of how the ECHR was interpreted, it adds, makes the Federal Council’s support for the Court “ambiguous to say the least”.
What the SHRI takes issue with specifically is Switzerland acknowledging its membership of the Council of Europe and the system of the ECtHR while rejecting the idea that human rights law can be adapted to cover climate change.
It cautions the government against “indirectly strengthening the position of those who are calling for Switzerland to distance itself from, or even leave, the ECHR”.
The human rights organisation also predicts that the Federal Council’s current position is unlikely to satisfy the Committee of Ministers of the Council of Europe. This is the body responsible for ensuring that the judgments of the European Court are implemented by the member states.
The Center for International Environmental Law (CIEL) called the Swiss government’s rejection of the climate ruling an “embarrassment”.
“The government’s statement rejecting the Klimaseniorinnen judgment threatens to undermine the authority and the core role of the Court in the human rights system – which Switzerland claims to support,” says Sébastien Duyck, campaign manager for human rights and climate change and senior attorney at CIEL.
“The Swiss government could have used the Court’s near-unanimous ruling to strengthen its climate policy in accordance with undisputed science. Instead, it doubled down in the defence of its inadequate responses to climate change, refusing to be held accountable.”
The landmark judgment is already changing the potential outcomes of both international and domestic climate cases.
Regardless of Switzerland’s criticisms, it has already become case law upon which future rulings will be based with several cases even held back in anticipation of this ruling.
A case has been brought to the ECtHR against Austria by an individual with multiple sclerosis who says his symptoms worsen in higher temperatures. He is arguing that Austria has failed to mitigate the impact of climate change and in particular to reduce greenhouse-gas emissions, which cause global average temperatures to rise.
Following the Klimasenoirinnen judgement, this case was prioritised with the Court demanding a statement from the Austrian government on various issues. Most of the questions it posed are based on the human rights requirements for climate protection developed by April’s landmark ruling.
New cases are being brought to domestic courts too. In Finland, NGOs are building on this ruling as they take the government to court for a lack of adequate climate action. Tens of thousands of people have got involved in a climate lawsuit which is being taken to Germany’s Federal Constitutional Court.
And, at an Inter-American Court of Human Rights hearing to establish an expert opinion on human rights and climate change in April, various states also referenced the ECtHR judgement.
The KlimaSeniorinnen and Greenpeace are calling for an independent scientific analysis of Switzerland’s national carbon budget and how it fits with the global target to keep global warming below 1.5C.
The global carbon budget is the maximum carbon dioxide emissions possible before global warming breaches this target. Each country’s own budget needs to ensure they are not emitting more than their fair share.
Climate Action Tracker’s latest data shows that if all countries followed Switzerland’s current approach, the world would be heading for 3C of warming.
“If Switzerland would commission such an independent analysis of the carbon budget, the idea then is that a Swiss climate strategy is based on that carbon budget,” lawyer for the KlimaSeniorinnen, Cordelia Bähr, tells Euronews Green.
She explains that there are already several calculations which show the country’s climate policy is “grossly insufficient and needs to be strengthened”.
But these kinds of calculations often depend on what numbers and parameters are chosen so can be subject to value judgements. This is why an independent analysis is needed.
The next step would be for Switzerland to implement climate policy based on these calculations.
“In the end, Swiss climate strategy until 2050 has to make sure to stay within that carbon budget, so it will lead to a significant strengthening of the Swiss climate strategy if [the government] would do so,” Bähr says.
Though there are worries about what this means for Switzerland and the European Convention on Human Rights, there’s a long process to go through before such extremes are reached. It isn’t unusual for countries to drag their feet.
No longer than six months after a judgment is made by the ECtHR, it becomes legally binding. The state concerned must submit a plan of action for implementing the verdict to the Committee of Ministers.
For the Klimasenoirinnen case, this is the 9 October by which Switzerland needs to produce a detailed report on its action plan. Following this, there will be an extended back-and-forth between the complainants, civil society, the state and Committee of Ministers members.
It can be a long and incredibly complicated process before the 46 members of the Committee reach a consensus – especially for unprecedented cases like this one. The Committee only meets four times a year to monitor compliance on rulings like this.
Nearly half of all leading judgments handed down by the court in the last decade are still pending full implementation, according to the European Implementation Network. They have taken on average more than six years to resolve.
In exceptional circumstances, the Committee can refer cases back to the Court but this has only happened twice in its 65-year history. Though Switzerland could theoretically be expelled or choose to leave the ECHR, legal experts say this is unlikely.
What a country or political figures say publicly also may not align completely with what they officially submit to the Committee. And it remains to be seen what official position Switzerland will take when submitting its plan.