Guest Blog: Implementing KlimaSeniorinnen: Evaluating the Initial Swiss Response – Climate Law Blog

What happens after a landmark climate case? This question has repeatedly been posed following the European Court of Human Rights’ climate rulings of 9 April 2024, and specifically its much-discussed KlimaSeniorinnen judgment. Certain initial steps – or rather, missteps – by the domestic authorities in response to the judgment have received extensive attention. This is especially true for a recent statement from Switzerland’s Parliament, which accused the Court of “judicial activism” and argued that no further action is needed to implement the Court’s ruling. The present post argues that while this statement is problematic for several reasons, it is neither convincing in substance nor determinative of Switzerland’s ultimate response to the case, and its importance should accordingly not be overstated.

How to implement KlimaSeniorinnen?

KlimaSeniorinnen is a landmark ruling: for the first time, the Court found violations of the European Convention on Human Rights (ECHR) in the context of climate change. Implementing this judgment will mean reckoning with the violations of Switzerland’s obligations under two provisions of the ECHR. The first concerns a violation of the State’s regulatory obligations (positive obligation to take adequate regulatory action) under Article 8 ECHR, given especially the absence of interim emissions reductions targets and quantified reductions goals in the domestic legislation. The second concerns a violation of Article 6(1) ECHR, the right of access to court, given the domestic judiciary’s failure to sufficiently engage with the applicant association’s case.

The Court did not spell out the specific changes to the domestic legal order required to comply with the judgment, refusing to indicate general measures under Art. 46 ECHR. In doing so, it found itself “unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment” (para. 657). Implementation is thus left to Switzerland, under the execution of the Council of Europe’s Committee of Ministers; this reflects the Court’s standard approach in its overall case-law.

In terms of its demands on the State, KlimaSeniorinnen is not all that revolutionary: it applies well-established ECHR principles, including the obligation to regulate known environmental risks. It is predominantly the Court’s willingness to apply these standards to the polarized context of climate change that is innovative, and not the standards themselves. Notably, the State is granted a differentiated margin of appreciation as concerns its regulatory obligations: the Court found that States have a reduced margin of appreciation when it comes to committing to climate action and setting out objectives, but a wide one concerning the choice of means and calculation methods (paras. 543 and 572).

Overall, the judgment is deferential to the State, and it holds back on making concrete demands. What seems clear for now is that:

1. The lacunae of Swiss climate policy need to be addressed through a quantification of remaining emissions and the setting of interim reductions targets. The KlimaSeniorinnen themselves have called for an independent scientific analysis in this regard, and have deferred to the political process instead of seeking a reopening of domestic proceedings.

2. Similar cases will need to be taken seriously by the domestic courts in future. While the judgment does not appear to require the creation of a dedicated collective redress mechanism to challenge legislative decisions (see its paras. 503, 600 and 609), and does not require a shift in the domestic limitations on constitutionality review of legislation, it does indicate that the Swiss legislator and judiciary were not taking climate change seriously enough at the time of the Court’s consideration, which ended on 14 February 2024.

Initial responses

Mere hours after the KlimaSeniorinnen judgment was issued, and again a month later, the largest political party in Switzerland – the right-wing Swiss People’s Party (SVP) – called for the country to leave the ECHR. This is not the first such call by the SVP: an SVP-triggered popular vote in 2018 saw the Swiss people overwhelmingly vote to stay within the Convention system.

Although repeated by some other parliamentarians, the SVP’s call to leave the ECHR has not been picked up more broadly in the weeks following the KlimaSeniorinnen ruling. Instead, the bicameral Swiss Parliament – first its 46-member Council of States (Ständerat), and then its 200-member National Council (Nationalrat) – issued statements concerning the judgment on 5 June and 12 June 2024, respectively. These identical statements make two core arguments: first, they state that the Court overstepped the limits of its “living instrument” approach to interpretation, thereby raising concerns about its legitimacy and subsidiarity; and secondly, they urge the Swiss federal executive (the seven-member Federal Council or Bundesrat) to communicate to the Committee of Ministers that no further action is needed to comply with the judgment.

Two things need to be understood about this latter point. The first is that it is not the job of Parliament to create an action plan in response to ECtHR judgments. The parliamentary statement was accordingly not a necessary or even a planned step in the implementation process. Instead, implementation is primarily the task of the executive, which has six monthsto prepare its response to the judgment. In other words, the parliamentary statement is merely an invitation to the Bundesrat to act in a certain way, and does not mean that Switzerland will in fact act accordingly.

Secondly, it is important to note the language used, which intends to guide communication with the Committee of Ministers by indicating that no further action is needed here. In other words, the statement respects existing procedures and obligations by continuing dialogue with the Council of Europe. It is not framed as an invitation to ignore the ruling; instead, it contends that recent measures have already sufficiently amended domestic legislation, bringing it into line with ECHR obligations.

The Bundesrat’s response is still pending: it has clearly stated that it will not communicate about the judgment until after its summer recess, with further developments expected in August. While one of the Bundesrat’s seven members (SVP member Albert Rösti, who is head of the Federal Department of the Environment, Transport, Energy and Communications) broke ranks to state that no additional measures seem to be necessary, there is no official position as of yet. In other words, as I have noted elsewhere (in Dutch), there is currently no indication that Switzerland will fail to comply with the KlimaSeniorinnen ruling.

Problems with the Parliamentary response

The argument that Switzerland has already complied with KlimaSeniorinnen is a dubious one. To make this point, Parliament invoked changes to domestic law that took place after the end of the domestic proceedings – specifically, the adoption of the 2022 Climate Act, which envisages net‑zero emissions by 2050 and sets interim targets for the post-2031 period. However, these targets were already part of the Court’s assessment: the cut-off point for the Court’s consideration was on 14 February 2024. The domestic legislative situation has evolved somewhat since then in terms of interim goal-setting, but it is by no means clear that Switzerland has already complied with the ruling in full. There is still no clear and equitable quantification of Switzerland’s remaining emissions, to say nothing of the failure to address the violation of Article 6(1) ECHR established in the judgment.

When read in light of the public parliamentary debates that preceded its adoption, the parliamentary statement also raises additional issues. These include Parliament’s understandings of the judgment’s content, the idea of judicial impartiality, and the nature of the separation of powers.

First, the debates reflect misunderstandings about the content of the KlimaSeniorinnen judgment, for example by arguing that the Grand Chamber recognized a right to a healthy environment and thereby exceeded the limits of the Convention’s text. No such right was recognized by the Court and, in fact, separate negotiations on this issue remain ongoing. The novelty of KlimaSeniorinnen, again, lies in applying existing standards to a new issue, that of climate change, as well as in its approach to victim status and standing – not in the creation of a new right.

Secondly, members of Parliament displayed a worrying misunderstanding of the judicial role. This was apparent when individual members insinuated that the Swiss judge, Andreas Zünd, was “incompetent” for failing to vote according to the government’s position. This is at odds with the impartial, independent role of ECHR judges, and if anything it should reinvigorate domestic interest in depoliticizing the judiciary, which is currently made up of political party members who pay a portion of their salaries to their parties. In a related vein, parliamentarians made unfounded but potentially damaging allegations about supposed NGO meddling in judicial elections at the Council of Europe. Such unsubstantiated attacks on the judiciary’s impartiality are inappropriate within a democratic state operating in adherence with the rule of law.

Thirdly, given the deferential nature of the Court’s ruling and the fact that it is well-supported by legal, political and scientific developments, the allegations around disregard for the separation of powers are flawed. The Court’s judgment is replete with consideration for the role of the domestic authorities, including legislatures and domestic courts. For example, it establishes at the outset that it must exercise “substantial deference to the domestic policy-maker and the measures resulting from the democratic process” (para. 450). Its strictness on individual victim status, its focus on regulatory obligations and not obligations of result, and its refusal to order concrete measures all reflect this. In fact, it is Parliament’s attempt to replace the Court’s findings with its own interpretation of Article 8 ECHR that raises a problem of the separation of powers, and encroaches on the Court’s role.

As Charlotte Blattner has noted, it is “important to disentangle justified criticism from “opportunistic” criticism, which merely uses the ruling to express general disapproval of the ECtHR and climate lawsuits more broadly.” There is certainly room for justified criticism of KlimaSeniorinnen – for my taste, its approach to victim status is overly restrictive, it insufficiently foregrounds equity concerns and differential climate-related vulnerabilities, and it conflates abstract complaints with potentially numerous ones. However, the allegations of “judicial activism”, overreach, and a surpassing of the limits of the living instrument approach are wholly unfounded and represent political opportunism that will hopefully be replaced with more Convention-compliant and rule-of-law-minded understandings as the situation evolves. The Court itself may also soon have an opportunity to weigh in on these discussions, through follow-up litigation like the recently-communicated Müllner case.

Conclusion

The implementation of the KlimaSeniorinnen case is already attracting significant domestic and international attention. However, first steps in this regard are worrying. While the Swiss Parliament’s response to the KlimaSeniorinnen judgment is aimed at cooperation with the Council of Europe, its idea that Switzerland has already complied with the judgment is questionable. In addition, when read in the context of the accompanying parliamentary debates, the statement is highly problematic for at least three reasons. This post has identified the ways in which this statement (i) misunderstands the content of the judgment, (ii) disrespects judicial impartiality, and (iii) displays a flawed understanding of the separation of powers. At the same time, the statement is not an indication for how Switzerland will actually respond to the judgment: it is the federal executive (Bundesrat), and not Parliament, that is responsible for creating an implementation plan to be communicated to the Committee of Ministers. Given the importance of this landmark ruling, and the close attention that will be paid to its implementation, it is to be hoped that the official response of the Bundesrat will not reflect the parliamentary position when it is published in the fall.