After the climate ruling: Former ECtHR judge shows how Swiss legislation could be adapted

After the climate ruling: Former ECtHR judge shows how Swiss legislation could be adapted

After the climate ruling: Former ECtHR judge shows how Swiss legislation could be adapted

The Strasbourg decision could become a gateway for new demands.

The ruling of the Strasbourg ECtHR reaches the Federal Palace.

The ruling of the Strasbourg ECtHR reaches the Federal Palace.

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For two months, Switzerland has been debating how to interpret the climate ruling of the European Court of Human Rights (ECHR). As a reminder: the Court criticizes the small Swiss state for not doing enough to combat global climate change and therefore ignoring the private and family lives of older women, who suffered especially from the rise in temperature. The left derives other demands regarding climate policy from this decision. “Climate protection is a human right,” insist the Greens and the SP, and Switzerland must now set itself much more ambitious goals, especially in the fields of agriculture and air traffic.

CO adjustment2-Law

The majority of the Council of States sees it differently. In the current summer session, the small chamber approved a declaration that the requirements of the sentence had been met and that Switzerland therefore saw no reason to pursue the sentence “further.” On Wednesday, the National Council could do the same and adopt a declaration with the same text. Translated politically, this would mean: things simply cannot continue like this in Strasbourg.

But why is all this? The ECtHR cannot impose sanctions on Switzerland if it does not respond to the ruling. So why all the fuss over a Parliament statement that supposedly has only symbolic value? Isn’t this just shadow boxing?

Research shows that Parliament has very good reasons to oppose the ruling. The decision is by no means harmless, but it can become a gateway to much more far-reaching lawsuits. At the hearing before the Legal Commission of the Council of States, Helen Keller showed how Swiss legislation could be adapted to take into account the ECtHR ruling. Keller was a Swiss judge at the ECtHR from 2011 to 2020, predecessor of Andreas Zünd. After the verdict, he spoke of an “innovative” decision, because it guarantees “the access of clubs and associations to the courts in climate cases.” The ECtHR did not recognize climate older people individually, but rather their association, as having the right to lodge complaints. Keller sees this as a “quantum leap.”

At the hearing, Keller stressed that he saw no need to act at the moment. At the same time, she pointed out the possibility of introducing a sui generis right of association to file a complaint regarding climate protection, in accordance with the new criteria and requirements of the ECtHR. Concretely, this means that it would have to be an association that has anchored its fight against climate change in its statutes, it would have to be of Swiss importance, pursue a non-economic objective and, of course, defend the interests of future generations. .

This legal situation would perfectly suit Swiss non-governmental organizations (NGOs) such as Greenpeace, WWF or even Alliance Sud. An NGO could also ensure that it meets the conditions by changing its statutes. For the former ECtHR judge, after the climate ruling it is clear that from now on Swiss courts will have to examine the legal situation of associations more closely.

One thing is clear: the introduction of a right of association to lodge complaints in the field of climate protection would have far-reaching consequences for the rule of law. While collective action in the area of ​​environmental protection has resulted in hardly any new electricity production being built in recent years, there is a possibility that the number of lawsuits in the climate area will increase significantly.

After the Swiss elders, the Indonesian islanders

The Holcim case shows where things can go. A lawsuit filed by four residents of the Indonesian island of Pari against the Swiss cement company has been pending before the Zug Cantonal Court for more than a year. The process is coordinated by the humanitarian organization of the Evangelical Reformed Church of Switzerland (Heks). Indonesians accuse Holcim of using their CO2Emissions are partly responsible for climate change and therefore also for the floods that threatened their livelihoods. They demand compensation for the climate damage suffered.

It will probably take some time before the Zug Cantonal Court decides whether a Swiss company can be held responsible for climate damage on the other side of the world. The Federal Council’s protest against the climate ruling would be a sign that they do not approve of progress towards the legalization of the climate issue and do not want climate lawsuits against Swiss companies.

Of course, that won’t be the last word. The coalition for corporate responsibility is currently being reformed. After the failed vote in 2020, this time it is trying to adapt the supply chain law recently approved by the EU to Switzerland. These are about human rights, climate protection and very specific questions: Who is the perpetrator, who is the victim? And above all: who decides?

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