The outcry at the so-called ‘Swiss Grannies case’ in early April—in which the European Court of Human Rights told the Swiss government that, as a matter of human rights law, its efforts to reach net zero were not good enough—was entirely predictable. Nevertheless, there may be hope yet, in that it reminded commentators very effectively of just what is wrong with the whole scheme of the European Convention on Human Rights (ECHR) as currently interpreted.
To recap: the Verein Klimaseniorinnen Schweiz, a pressure-group of elderly Swiss climate activists, sued unsuccessfully in the Swiss courts complaining that their government’s failure to take legislative steps to impose net zero by 2050 and enact other anti-climate-change measures infringed their human rights. They took the case to Strasbourg. The human rights court, with one dissent (the UK’s Judge Eicke), agreed with them. True, the ECHR says nothing about climate change; but this did not worry the majority. A human right to net zero could be hung on other pegs, in particular the right to private life or possibly to life itself, which do appear in the Convention. Some climate-induced cataclysm might, after all, make an elderly person’s life extremely unpleasant or even kill them. There had therefore been an infringement of the applicant’s human rights and the Swiss government was bound to do something about it.
The decision is deeply problematic. If ever there were a complex subject, it would be climate law, combining complexity with open-endedness and interest-balancing while deciding how clear legal prescriptions should jockey for position with extensive state regulatory powers. Courts are used to deciding individual rights rather than nations’ fates, issuing orders in the fairly simple form “Do X” or “Don’t do Y.” International courts (as the dissenting English judge pointed out, much to his credit) are about the worst agencies one can think of to dictate the content of climate legislation or decide how to balance the myriad interests involved. However, this is only the beginning of the problems demonstrated by the decision.
First, it trenchantly confirmed, if confirmation were needed, that even if the operative words defining the rights remained the same, today’s interpretation of the ECHR is entirely different from the ECHR which war-weary European governments signed in 1950. At that time, the ECHR was a limited instrument aimed simply at discouraging a return to the kind of enormities associated with the activities of the Nazis and Fascists up to 1945. (If you look up the rights protected, they all fairly neatly reflect these concerns: the right to life corresponds to mass murder, the right to privacy corresponds to unlimited searches of homes, and so on. Enforcement was seen as primarily a matter of state pressure, in particular the naming and shaming of backsliders on the international plane. Regular litigation was not contemplated: indeed, individuals could not complain at all unless a state specifically agreed to the right of individual petition, and the current European Court of Human Rights only came into being a good deal later, in 1959.
Compare matters today. The tail of individual petitions now well and truly wags the dog of treaty obligation. The Strasbourg court decides thousands of cases a year. It states that the ECHR is a “living instrument” open to constant development; takes the view that the rights under it should be interpreted so as to reflect progressive state practice and discourage states from holding out against it; and sees as a matter of pride rather than concern the fact that its interpretations of the instrument might go far beyond what anyone would have imagined in 1950. In short, the European court, far from being a little-used backstop against truly horrendous acts, now prefers to take on the mantle of a kind of super-arbiter of constitutional virtue, applying the ECHR as if it were a kind of constitutional palimpsest.
This change matters for a number of reasons. The first, and most obvious, is that no state ever deliberately signed up to these new ideas. The Strasbourg court, free from any governmental control and acting on its own initiative, simply arrogated its new function to itself and assumed (unfortunately correctly) that European governments would be too embarrassed to cry foul at its new role as self-appointed super-arbiter of constitutional virtue. And while on the subject of constitutions, it’s worth pointing out that they can generally be expected to be established deliberately and democratically by states, interpreted by state judges, and amendable by democratic processes, even if those processes are often more cumbersome than those affecting ordinary legislation. The ECHR and its attendant Strasbourg court have none of these features. No democratic vote established the ECHR; the Strasbourg judges are deliberately set up to be transnational and free from state ties; and there is no democratic means to amend the terms of the ECHR.
Second, the case demonstrates that the court does not merely consider itself entitled to interpret the existing rights contained in the ECHR so widely as almost to escape recognition. It is also prepared, with the barest of fig-leaves to cover its nakedness, to invent and force on states entirely new human rights if it thinks them important enough. Its justification for holding the Swiss government in breach despite the ECHR’s complete lack of any reference to environmentalism was, in essence, that if such a right weren’t included, then it should be: everyone now recognised that climate change mattered and it was vital to address it. This, again, matters. The more the Strausbourg court behaves like this, the more it will be seen as a body with a determination to use its position to press a progressive political agenda.
Third, even though the Strasbourg court was officially established merely to interpret the ECHR, this recent decision laid bare that it can act far more ambitiously. A point the majority repeatedly made to justify its decision was that, in 2015, Switzerland had signed another treaty that required it to take steps to mitigate climate change, the Paris Agreement. The problem with this argument is not difficult to spot: the fact that a party has broken Treaty A is no reason to hold that they have also broken Treaty B. Furthermore, unlike the ECHR, the Paris Agreement did not set up any court formally to tell states whether they were obeying it. If so, it seems to say at the very least somewhat presumptuous for the Strasbourg judges to bypass this restriction.
Fourth, the decision raised yet again—and this time very directly—the question of the democratic legitimacy of the Court’s free-wheeling human rights regime. ECHR rights, it has to be remembered, have to be applied without regard to what voters or representatives may think. With the limited ECHR in 1950, this end-run around democracy was acceptable: democratic decision-making cannot justify things like state murder, torture, or the wholesale suppression of all dissent. But with the extended rights now recognised by the Court, this is a much harder position to promote. Extensive rights to privacy, to equality, or (as here) to government measures aimed at climate change may be a good thing. But are they so important that those promoting them need to be given a way to bypass the democratic political process? That’s a hard argument to make.
It is especially difficult to make such a case in the context of Switzerland, whose own constitution provides for compulsory referendums on matters of importance, and had indeed put to a national vote a law of the sort that the claimants were demanding, only to have it rejected. It follows that what we have here is a demand by the unelected members of a transnational court applying norms voted on by no-one. The ruling necessarily sidelines Switzerland’s constitution and ignores the will of its own people on a matter of social policy of immense importance. This may be technically right as a matter of international law: the accepted rules say that a state cannot justify breach of a treaty commitment by citing its own internal laws. But politically, it is very difficult indeed.
It’s hard to avoid the conclusion that, in the Swiss climate change case, the Strasbourg court has managed to illustrate by a single decision almost everything wrong with human rights as practised in Europe today. The resulting calls from England to withdraw from the ECHR were predictable. But on this occasion, these were supplemented, unprecedentedly, by a demand for a Swiss exit, originating from a senior member of one of the heavyweight Swiss political parties, the Swiss People’s Party. To precipitate a call of that kind from the normally stolid and uncomplaining Swiss takes some doing. The Strasbourg court needs to take note. If it does not realise that there are limits to how far it can push states using its self-declared powers, it will arguably have only itself to blame if the system it has so laboriously created begins to break down.