Last week, the Council of States adopted a declaration criticizing the ECtHR’s recent ‘climate ruling’ and the National Council is set to deliberate on a similar declaration on 12 June. This post argues why this would be harmful to the rule of law and urges the National Council not to echo the Council of States.
11.June 2024
On April 9th, the European Court of Human Rights (ECtHR) ruled in favor of the Association Verein Klimaseniorinnen Schweiz. This landmark decision marked the first time an international court has established that a state’s failure to take climate action is a human rights violation. In this exceptionally detailed and scientifically precise ruling, the Court found that Article 8 of the Convention, which provides for the right to respect for private and family life, includes a right to effective protection by state authorities against the adverse effects of climate change.
The ruling has provoked criticism and sparked debates about the judiciary’s role in politicised matters and the balance between national sovereignty and international legal obligations. Last week, the Council of States passed a declaration criticizing the decision of the Court, calling upon the Federal Council not to follow up on the judgment in any particular manner. On Wednesday, June 12th, the National Council is set to deliberate on a similar declaration.
Switzerland and the ECtHR: non-compliance as an option?
Switzerland, as a member of the Council of Europe, is bound by the European Convention on Human Rights (ECHR). By ratifying the Convention, Switzerland voluntarily submitted to the jurisdiction of the ECtHR in Strasbourg, which enforces states’ obligations under the ECHR. Article 46 of the Convention outlines the binding nature of the judgments issued by the ECtHR.
The ECtHR has been a cornerstone of Europe’s efforts to protect human rights, democracy, and the rule of law, catalyzing numerous positive reforms. It is sometimes only thanks to the ECtHR that federal laws can be indirectly reviewed on their conformity with the fundamental rights.
However, the last few years have seen a significant issue arise: the non-implementation of ECtHR judgments. Switzerland generally has a good reputation among the Council of Europe member states for having a relatively strong track record of implementation of ECtHR rulings. Switzerland’s foreign policy has always been directed towards the promotion of a strong rules-based human rights system in Europe and setting the example.
The National Council should show more tact than the Council of States
Contrary to what could be perceived from media articles, the national parliament does not have the competence to decide not to do anything about the ECtHR’s judgment. First, the Federal Supreme Court will probably need to revise its judgment that was contested at the ECtHR in this case and take the decision from Strasbourg into account. The Federal Council will also have to inform the Council of Europe’s Committee of Ministers on the status of implementation of the judgment. Parliament will only really have a clear role if and when complying with the judgment would require legislative change.
While having no legal effect, the declaration of the Council of States on the Klimaseniorinnen case is lacking in tact. It appears as a breach of trust between the Council of States and the ECtHR. The rule of law is based on trust between institutions. This trust must be upheld as far as possible. While it is possible to criticize the Court’s reasoning, a formal declaration voted in plenary session was a disproportionate means of doing so. Parliamentarians could have made their criticisms known through open letters to the Federal Council and the Court. The authors of this post urge the National Council not to act hastily, to consider alternatives, and to avoid adopting a similar declaration to that of the Council of States.
The ECtHR and the Council of Europe are currently facing various challenges. Russia had to be excluded from the Council; the United Kingdom is considering sending asylum seekers to Rwanda in a manner potentially contrary to the ECtHR’s orders. These developments highlight the fragility of the rule of law as protected by those institutions. In such a context, it is in Switzerland’s interest — which recognizes the promotion of the rule of law as a priority in its foreign policy — to show full support for the Council of Europe and its Court. This is even more true as a former Federal Councillor is currently a candidate for the position of Secretary General of the Organization.
