How a climate-focused court is threatening democratic principles
[Editor's note: This story originally was published by Real Clear Wire.]
By Michel de Rougemont
Real Clear Wire
It was always to be expected that the judicialization of the climate issue would become one of the principal avenues of climate activism. That threat must be taken even more seriously following the recent ruling by the European Court of Human Rights (ECHR) that Switzerland is in breach of the European Convention on Human Rights with respect to what the ECHR deems its inadequate climate policies.
Four elderly ladies and the association “Aînées pour le climat” (Female seniors for the climate) lodged an application with the ECHR alleging that the Swiss authorities “are not taking sufficient action . . . to mitigate the effects of climate change.” Although the victim status of the four women was not recognized, the association that backed them was granted standing to sue on the grounds that climate change is of a specific nature, is of concern to all humanity, and that the effort to mitigate it must be shared between generations. As the plaintiffs’ rights are not themselves affected, it is the exposure of other individuals to “specific threats or adverse effects of climate change on their life, health, well-being and quality of life” that gave the association the right to bring a complaint.
The Court found that “the Swiss Confederation had failed to comply with its duties (‘positive obligations’) under the Convention concerning climate change.” In plain English: the hypothetical people on whose behalf the association is taking Switzerland to court are not sufficiently protected by the Confederation. The “State has a legal obligation to select, subject to supervision by the Committee of Ministers” – the foreign ministers of the 46 member states of the Council of Europe, of which Switzerland is a member – “the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation,” the Court ruled. Switzerland must also pay Aînées pour le climat 80,000 euros in respect of costs and expenses.
In making its ruling, the Court presumes to judge that the Swiss authorities have not acted in a timely or appropriate manner. Switzerland has legally binding commitments under the 1997 Kyoto Protocol and is required to submit periodic “nationally determined contributions” (NDC) in accordance with the provisions of the 2015 Paris climate agreement.
Moreover, Switzerland has the most advanced form of direct democracy of any signatory of the European Convention on Human Rights. It cannot have escaped the Court’s attention that in Switzerland, policies are governed by the vote of the citizens, who rejected an amendment to the federal “CO2 Law” in a referendum held on 13 June 2021. The Swiss people subsequently approved, by a 59:41 margin in a referendum held on June 18, 2023, a new “Climate Law” in which, among other things, a net zero emission goal is set for 2050. In blaming the Swiss Confederation for inadequate climate policies, the ECHR insults its citizens and its cantons, not their authorities because in Switzerland, sovereignty resides with the people. It is not within the ECHR’s remit to overturn or even criticize the decisions of citizens who cast their votes in two climate referendums and to abrogate the sovereignty of the Swiss people.
Like a Church, the ECHR has adopted a dogma of climate change that it will establish as a legal precedent throughout Europe to be imposed on sovereign states, which can be summarized thus:
- Anthropogenic climate change is underway.
- Its serious adverse impacts constitute a threat to the enjoyment of human rights.
- States that are parties to the Convention can and must prevent the increase of greenhouse gases in the atmosphere.
- Climate risks would be reduced if warming is limited to 1.5°C and urgent action is taken.
- Current global mitigation efforts are not sufficient to meet that target.
- The dogma is silent on the efficacy of adaptation, implying that this approach has no substantive role to play.
- Future generations risk bearing the growing burden of today’s failures and omissions.
- The future effects of climate change are known to be harmful and serious, even if they have not yet been manifested.
The Court’s judges consulted many climate experts. All too predictably, they did not seek out the views of critics of the climate orthodoxy and, for unspecified reasons, only emissions reductions are deemed by the Court to be a valid policy response. Yet a climate-adapted and resilient population no longer needs to fear the effects of climate change. It is duly protected as required by the Convention. The Court’s implicit dismissal of adaptation demonstrates its bias and motivation to arrogate to itself and to the Council of Europe policy choices that properly belong in the domain of national democratic decision-making.
The Court presumes to specify alleged “critical gaps” in Switzerland’s climate policy framework – specifically, the lack of a carbon budget and national limits on greenhouse gas emissions – but then notes that Switzerland has not achieved its past targets. So, in fact, Switzerland does have national targets, which the Court claims it lacks! The Court further accuses the Swiss authorities of not acting in a timely or appropriate manner. Thus far, the Court has not revealed the objective basis, balancing costs and benefits, that enabled it to arrive at this conclusion. Policymaking inevitably involves trade-offs between different objectives. Instead, the Court behaves outside of its competencies in an arbitrary and capricious fashion prioritizing one objective above all others, whatever the costs and harms might be.
In a final twist, having opined that Switzerland’s climate policies are inadequate, the Court disclaims having any climate policy expertise: “the Court found that it could not be detailed or prescriptive as regards any measures to be implemented.” How, then, could it know that the Swiss Confederation’s measures were deficient? On the basis of its lack of policy competence, the Court “left it to the Committee of Ministers to supervise, on the basis of the information provided by the State, the adoption of measures.” In this way, the Court seeks to transfer control over Switzerland’s climate policies from the Swiss people to the 46 foreign ministers making up the Council of Europe so that they become the ultimate arbiters of Switzerland’s climate policy. Such a denial of Swiss sovereignty is as absurd as it is implausible.
Judicializing government action on climate policy means using – instrumentalizing – the Courts to negate democratic control over climate policy. With its ruling on an application from Aînées pour le climat – a group that is little more than a lobby representing special interests – the ECHR has mounted a direct assault on Swiss democracy and on scientific common sense. From being a protector of citizens’ political rights, the ECHR now becomes their usurper.
Michel de Rougemont is a PhD chemical engineer and an independent consultant. His sole conflict of interest in relation to the subject of this article is being a Swiss citizen.
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