Swiss climate ruling full of holes

Dr Oliver Hartwich
16 April, 2024

Once upon a time, it was the role of parliaments to make laws, governments to execute them, and the role of courts to uphold them. Civil Law jurisdictions, such as those in Europe, do not share the Anglosphere’s tradition of judge-made law (known as the ‘Common Law’). In these jurisdictions the role of courts has been circumscribed even more clearly.

But the democratic climate is changing. The change is driven by the issue of our time: climate change.

You may have missed the ruling of the European Court of Human Rights (ECHR) last week, but it is symptomatic of the blurring lines between lawmakers and law enforcers. In a landmark case, the ECHR ruled that Switzerland’s climate policy is inadequate and thus violates the human rights of its citizens.

The case was brought forward by a group of Swiss senior women, the “KlimaSeniorinnen” (female climate seniors). They contended that the country’s purportedly insufficient action on climate change infringes on their right to life and health.

The court sided with them, declaring that Switzerland’s measures to reduce greenhouse gas emissions are not enough to meet the Paris Agreement’s target of keeping global warming to 1.5 degrees above pre-industrial levels.

But the court did not stop at admonishing Switzerland. It went a step further, effectively prescribing how the country should conduct its climate policy. The judges laid out a set of principles that Switzerland – and by extension, all 46 member states of the Council of Europe – must now adhere to.

According to the ruling, states must set binding targets to reach carbon neutrality by 2050. They must also define clear pathways to meet these goals, and act swiftly and consistently to implement the necessary laws and regulations.

In essence, the court has thus established a high standard for what it considers adequate climate action under human rights law. That standard that applies not just to Switzerland, but to every country under the court’s jurisdiction.

At first glance, this might seem like a positive development. Yes, there is a climate problem, and if courts can compel governments to take more ambitious action, might that not be a good thing?

However, there is a fundamental issue at stake here. It goes to the heart of how democracies function.

In a democratic system, it is the elected representatives of the people who are tasked with making policy decisions. Politicians are accountable to their constituents, who can vote them out of office if they are unsatisfied with their policies. This accountability is the cornerstone of democratic governance.

Judges, on the other hand, are not elected. Their role is to interpret and apply the law, not to create it. When courts start dictating policy, they are overstepping their bounds and encroaching on the domain of the legislative and executive branches.

The consequences of judicial overreach are even more pronounced when it comes to supranational courts like the ECHR. The judges on this court are not even directly accountable to the governments of the countries they pass judgment on, let alone their voters. They are appointed through a process that is far removed from the democratic politics of individual nations.

Yet with this ruling, the ECHR is effectively legislating climate policy for 46 countries. It is telling democratically elected governments what to do. They are setting specific targets and timelines that they must meet. This is a significant incursion into the policy-making prerogative of national governments.

It sets a troubling precedent, suggesting that an unelected, unaccountable international body can override the will of national parliaments and voters. It is a circumvention of the democratic process, and one that could have major unintended consequences down the line.

Proponents of the ruling might argue that the severity of the climate crisis justifies this kind of judicial intervention. They might say that governments have been dragging their feet, and that the slow pace of political change necessitates a more forceful approach.

And yes, bold and urgent action may be needed to avert severe consequences. But does that mean we should be willing to compromise democratic principles? Is it a good idea to concentrate more power in the hands of unelected judges, even if they are acting with the best of intentions?

These are not easy questions to answer, but they merit serious consideration. Democracy is not perfect. Even so it remains the best approach to making collective decisions in a way that is fair, legitimate, and accountable. If societies chip away at democratic norms in the name of expediency, even for a cause as important as climate action, the foundations of our political system are imperilled.

Solving the climate crisis should not require judges and courts. If citizens are sufficiently concerned about the climate, they need to elect leaders who are committed to bold action – and hold them accountable if they fail to deliver. That requires robust public debates, not court proceedings.

Of course, this is not an easy task. Democracy often is not as straightforward as issuing a court ruling. Democratic decision-making can be messy, slow, and frustrating. But it is also the best way to establish legitimacy and ensure the durability of political decisions.

Once societies start to bypass democratic processes in the name of climate action, they set a worrying precedent. Today it might be climate policy that is at issue – but what will it be tomorrow? What other pressing challenges will be deemed too important to leave to the vagaries of democratic decision-making?

Human rights implications can be construed in any area of public policy, but that should not make these areas the playgrounds of high courts. Just imagine what legal rights could be construed in health policy from the right to life. Or what human rights might be taken to mean for the setting of benefit levels.

The Swiss climate case, for all its good intentions, raises profound questions about the role of the judiciary in shaping policy. It is a reminder that in the fight against climate change, we cannot lose sight of the democratic principles that underpin our societies.

Effective climate action and robust democracy need not be mutually exclusive. In fact, they should go hand in hand. The challenge is to find ways to accelerate progress on emissions reductions while also strengthening democratic institutions and processes.

Courts have an important role to play in interpreting and applying the law. But they cannot be a substitute for the hard work of democratic politics.

The ECHR’s ruling in the Swiss climate case is a wake-up call, not primarily about the urgency of the climate crisis, but about the fragility of democratic institutions.

The path to a sustainable future must run through the public square, not the courtroom.

To read the article on the Newsroom website, click here.

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