Amnesty International has called on Switzerland’s Parliament to honour the ruling of the European Court of Human Rights (ECHR) on the country’s climate action. The Swiss Senate will vote today on whether they will comply with the ECHR ruling. Following the ECHR decision, the Senate’s Legal Affairs Committee concluded that the court had “overreached its authority”, a move that was criticised by the KlimaSeniorinnen, the group that had brought the case to the ECHR.
Daniel Jositsch, chairman of the Senate’s Legal Affairs Committee wants the Senate to adopt the Committee’s declaration. He told SRF that he believes the ECHR is violating the separation of powers by stepping in the shoes of the legislator and that decisions such as these are “weakening the international courts and their acceptance”.
The ECHR’s decision in KlimaSeniorinnen
In April 2024, in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the ECHR decided that countries have the legal responsibility to protect their citizens from the adverse effects of climate change. The ECHR held it is a violation of the Article 8 human right to a private and family life where a state fails to implement sufficient measures to combat climate change where it is affecting citizens’ lives, health, well-being, and quality of life.
The ECHR found that Switzerland’s climate policy did not comply with this positive obligation under the European Convention of Human Rights (the Convention). Among other things, the ECHR cited the failure to quantify its greenhouse gas emissions limitations and the failure to meet past emissions targets. The ECHR also recognised that countries retain discretion in how they meet their positive obligation under the Convention. Switzerland had however failed to appropriately implement the measures and legislation that would be needed.
Separation of Powers in KlimaSeniorinnen
The ECHR had actually addressed the issue of separation of powers in its ruling, stating: “the Court must also bear in mind its subsidiary role and the necessity of affording the Contracting States a margin of appreciation in the implementation of policies and measures to combat climate change, as well as the need to observe appropriate respect for the prevailing constitutional principles, such as those relation to the separation of powers”.
The ECHR continued to argue that while national governments have a wide margin of appreciation as to how they ensure the rights and freedoms as included in the Convention, adherence to the Convention will remain subject to the ECHR’s supervision. In other words, the ECHR recognises its subsidiary role and grants national governments a margin of appreciation when implementing policies like those combating climate change. This means the ECHR defers to governments’ choices within a reasonable range.
The Sabin Center for Climate Change Law, an intervener in KlimaSeniorinnen, has also put forward the argument that other courts had determined the judiciary should step in where government action or inaction threatens human rights, but that governments in the comparative context would retain discretion in establishing the actual climate targets.
In essence, the ECHR seeks a balance between respecting national decision-making and ensuring governments uphold human rights protected by the Convention. The separation of powers principle plays a role in this by preventing any branch from completely overriding the others.
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