Swiss Rejection Of Climate Ruling Shows Limits Of International Courts/ Paris Agreement

Jon McGowan
Contributor
I am an attorney who writes about ESG policy, laws, and regulations.Follow
Jun 17, 2024

Protesters hold a banner reading "The climate's seniors" during a rally before the European Court of ... 

On April 9, the European Court of Human Rights issued a landmark opinion establishing protection from the effects of climate change as a human right under European law. The opinion, directed at Switzerland, was praise by climate activists as a monumental victory. However, on June 12, the Swiss Parliament voted to reject the ruling, showcasing the limits of international courts and treaties like the Paris Agreement.

The ECtHR found that inaction by Switzerland to meet its legal requirements under the Paris Agreement violated the plaintiffs’ right to respect for private and family life. Verein KlimaSeniorinnen Schweiz and Others v. Switzerland was brought by “four women and a Swiss association, Verein KlimaSeniorinnen Schweiz, whose members are all older women concerned about the consequences of global warming on their living conditions and health.” They claimed that the Swiss authorities failed to take sufficient legislative action to mitigate the effects of climate change, as required under the Paris Agreement.

The Paris Agreement, adopted by 196 parties at the COP21, the 2015 UN Climate Change Conference in Paris France, set a goal to limit global warming to 1.5° C by reducing greenhouse gas emissions to 45% by 2030, and reaching net zero by 2050. While the Paris Agreement is legally binding, the enforcement of those obligations has yet to be truly tested.

In March 2023, the United Nations General Assembly requested the International Court of Justice to issue an advisory opinion on the legal obligations of countries in preventing climate change. The opinion, Obligations of States in respect of Climate Change, while non-binding, will give an indicator of how the court may interpret future climate related litigation and guide future legislative development. That opinion will most likely not be released until 2025 or 2026.

In Verein KlimaSeniorinnen Schweiz v. Switzerland, the Court found that enforcement of the Paris Agreement could be made through the European Convention on Human Rights. Specifically, they point to Articles 2 (Right to life), 6, (Right to a fair trial), and 8 (Right to respect for private and family life).

While this was a major victory for climate change activists, the reach of the impact was limited. Verein KlimaSeniorinnen Schweiz v. Switzerland is specifically targeted at the actions of Switzerland but does open the door to further litigation and could influence the interpretation of a state’s obligations relating to climate change in their respective courts.

That impact was further limited by the opinion itself. While the court stated that the Swiss were in violation of the convention, the penalty was minimum. The Swiss government was ordered to pay EUR 80,000 to cover legal costs and expenses of the plaintiffs. No further damages were awarded as the plaintiffs did not ask for any. The court also did not direct specific action by the Swiss government, leaving it to the leaders of the Council of Europe to find a solution.

The Swiss were due to submit an implementation plan in October, but the Swiss government is pushing back. On June 5, the upper house of the Swiss parliament voted 31-11 to reject the ECtHR ruling. Seven days later, the lower house voted 111-72 to take the same action. While the motion was non-binding, it signals the intent of the parliament, and signs indicate the Swiss Federal Council is likely to follow their lead.

If the Swiss do officially reject the ruling, it showcases an unspoken reality of international law. Simply, it doesn’t really exist. Unlike national laws that are created through a legislative process, codified into a set of laws, and imposed on the population, generally, international law is created through treaty. Countries negotiate terms, then vote to voluntarily impose those terms on themselves. If a country, or its new leaders, no longer like the terms or interpretation of the treaty, they can simply leave the treaty.

The same standard applies to courts created to enforce treaties. International courts only have the authority granted to them through the treaty that established them. If a country does not like the opinion of a court, they can leave the treaty, and the court will have no enforcement authority.

This applies to the Paris Agreement as well. While the Paris Agreement is considered legally binding, it is only legally binding if a country is a signor of the treaty. If a country chooses to leave the treaty, as the United States did under President Trump, the authority of the treaty ceases to exist. As international courts begin to weigh in more and more on climate change, there is a real possibility that countries may find the burden too high, and the treaty could fall apart.

It is unclear what action the Swiss will take. The Federal Council may reject Parliament’s assertion and comply with the agreement. The Swiss may reject the ruling and make the European Council decide if this is a fight they want to fight. Alternatively, the Swiss may leave one of the two treaties that have imposed the ruling. If the Swiss leave the European Convention on Human Rights, as some throughout Europe have called for, it could create an interesting conflict with the Council of Europe. The Swiss could also leave the Paris Agreement, which would then remove a significant part of the legal justification for the ECtHR opinion.

Whatever action Switzerland takes, it showcases the fragility of the Paris Agreement and the limited authority of international courts. This could be an early indicator of how countries will react to the ICJ advisory opinion on climate change, if the court issues an opinion that some countries believe is overly burdensome. A strong victory for climate activists in the Court may lead to the Paris Agreement collapsing.

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