Now that the European Court of Human Rights delivered its first violation judgment in a human rights-based lack of climate mitigation ambition case, in Verein Klima Seniorinnen v. Switzerland, all eyes turn to how this judgment will be executed.
As with all judgments of the Court, Verein Klima Seniorinnen v. Switzerland is currently pending for execution before the Committee of Ministers of the Council of Europe. This is the inter-governmental peer review body that is tasked with monitoring the execution of the judgments of the Court under Article 46 ECHR. Under the relevant rules, Switzerland and the Committee of Ministers must agree on what specific individual and general measures are needed to implement this judgment within six months of the publication of the judgment. For this, Switzerland will first submit an action plan to the Committee of Ministers outlining how it aims to implement the judgment. The deadline for the submission of this execution plan is set for 9 October 2024. Swiss, European or international non-governmental organizations can participate in this process by making submissions (known as Rule 9.2 submissions) before the Committee of Ministers to indicate what the action plan for executing this case should look like. Further down the line, civil society organisations can also intervene before the Committee of Ministers with their assessments of whether the measures have been implemented adequately. The case will remain pending before the Committee of Ministers until all agreed measures are fully implemented.
The importance of how the execution of Verein Klima Seniorinnen v. Switzerland will unfold before the Committee of Ministers cannot be underestimated. How this case is executed will set a precedent for future similar cases (see inter alia, other pending climate mitigation cases such as Müllner v. Austria, Engels v. Germany). The execution of this case also has global significance. The Committee of Ministers, by virtue of its functions under the ECHR, will be the first inter-governmental body to monitor climate action of a member state following an international court judgment. As is well known, the Paris Agreement requires states to take mitigation measures, but the Paris Agreement Implementation and Compliance (PAIC), an expert body appointed by the state parties, does not have powers to monitor such measures.
Against this background, our aim in this blog post is to examine challenges in the first step for the execution of Verein Klima Seniorinnen v. Switzerland: identification of the specific remedial measures required by this judgment: an Article 8 compatible climate mitigation legal framework.
The Court decides: A judgment with no specific remedial orders
The European Court of Human Rights is well-known for its declaratory judgments and its sparse use of indicating specific remedies to repair violations or prevent their repetition. Verein Klima Seniorinnen is no exception. In paragraph 657 of the judgment, the Court explains at length that this judgment is declaratory:
In the present case, having regard to the complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment. Given the differentiated margin of appreciation accorded to the State in this area (see paragraph 543 above), the Court considers that the respondent State, with the assistance of the Committee of Ministers, is better placed than the Court to assess the specific measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State, the adoption of measures aimed at ensuring that the domestic authorities comply with Convention requirements, as clarified in the present judgment.
In practical terms, this means that Switzerland, the Committee of Ministers, Verein Klima Senniorinnen (as well as other civil society organisations interested in the exeuction of this case) all must read the merits sections of the judgment with a view to identify what specific remedies are required by this judgment. Only once a concrete list of general measures are identified, the monitoring of the effective implementation of those measures will commence.
Executing declaratory judgments
The process of identifying what a declaratory judgment requires at the execution stage is both a legal-technical and an interpretative (as well as political) exercise. It is legal-technical because each identified execution measure must clearly flow from the legal findings of the judgment. It is, however, also interpretive and political, given that what the findings of a Court’s judgment requires can be understood in multiple ways and, leaves a space for manuevre to states and the Committee of Ministers, which, after all, is a political organ.
It is common for state parties to read the implementation requirements of the judgments in restrictive ways and litigants and NGOs in broader ways. Consider the well-known story of the race to the bottom implementation of the Abulaziz Balkandali v. UK judgment. In that judgment, the Court found that the UK immigration rules, making it easier for male migrant workers to pursue family reunification with their spouse than for female migrant workers, to be discriminatory under Article 14 ECHR. In implementing the judgment, the UK eroded the spousal family reunification prospects of male migrant workers instead of bolstering the right of female migrant workers. The Committee of Ministers did not contest this and closed the execution of the case. Twenty years on, the tendency of states to aim for minimum execution persists, but the Committee of Ministers practice, has become more stringent, largely thanks to the civil society participation in the executive process.
What does then the Verein Klima Seniorinnen judgment require?
The Court’s discussion of the Article 8 violation in this judgment leaves a large legal technnical as well as interpretive and political space of manuevour. The judgment is extremely long. The Court offers a rich set of discussions and as this is a seminal judgment, sets out a large number of principles. A central question, therefore, is which paragraphs of the judgment are going to be central for specifying the remedies required by this judgment. Below, we show that there are multiple ways to go, namely, focussing narrowly only on paragraphs 555-573 of the judgment, where the Court explains what is deficient in the Swiss legislative context or focussing on paragraphs 555-573 of the judgment together with paragraphs 547-553 of the judgment, where the Court explains the general principles that it will apply to assessing the adequacy of any mitigation measures that would be Article 8 compliant. As we will see below, the list of general measures that can be generated by focussing on these different parts of the judgment may differ significantly in scope and detail.
A narrower vision of execution: paragraphs 555-573
These are the paragraphs where the Court explains why the Swiss regulatory framework falls short of an Article 8 compliant framework. The Court specifically identifies two types of general measures that Switzerland needs to take in this part of the judgment.
- Introduction of a new legislation specifying concrete mitigation measures after 2024
In paragraphs 555-573, the Court clearly holds that Switzerland needs to enact new legislation that specifies concrete climate mitigation targets for the period after 2024. The Court has reached this finding after having analysed the legislative efforts since the 2011 CO2 Act and found that there exists a legislative lacunae for specifying the concrete mitigation measures after 2024 and in particular between 2024-2030. (paragraphs 555-568).
- New legislation must specify a carbon budget
The Court does not only indicate the need for new law regulating the period between 2024 and 2030, but also finds the overall lack of a carbon budget in the Swiss regulatory framework necessitates a remedy. The Court under para. 570, specifically holds that ‘…the Court is not convinced that an effective regulatory framework concerning climate change could be put in place without quantifying, through a carbon budget or otherwise, national GHG emissions limitations’ as set out in paragraph 550 (a) of the judgment. In doing so, the Court explicitly rejects the argument that reliance on Switzerland’s nationally determined contributions (NDCs) can compensate the lack of a carbon budget and policy (paragraph 571).
A broader vision of execution: Paragraphs 555-573 when read together with paragraphs 547-553
Unlike paragraphs 555-573, the Court, under paragraphs 547-553, sets out key principles to assess how any legislative measure taken by ECHR state parties can be Article 8 complaint. These paragraphs indicate that just having a legislation covering measures in a certain time frame or having carbon budgets in such legislation would generally be not enough.
Paragraphs 547-553 in particular provide additional prescriptive benchmarks. First, it holds that any future climate legislation must consist of timely targets to achieve carbon neutrality, (or another method of quantification of future GHG emissions). As pointed out by Chris Hilson in EJIL Talk!, ,however, referring both to reduction of CO2 (also known as carbon neutrality) and the reduction of methane and other GHG gases (net neutrality) (paragraphs 250, 547-548) as two possible ways to assess suitability of legislation is ambiguous. As Hilson highlights, carbon neutrality matters more than net neutrality in the context of taking immediate mitigation measures and is a better benchmark for effective climate action. The use of both terms in paragraphs 547-548 of the judgment signals that this point needs to be reconsidered in the course of the monitoring of the execution of this judgment.
Second, there needs to be intermediate GHG emission reduction targets and pathways in national policies and there must be procedures in place to track compliance with these targets. Third, the legal framework must enable the updating of reduction targets in a timely and continuous manner and in the light of the best available science.
In addition, under paragraph 552, the Court states that, in devising Article 8 compliant measures, ‘mitigation measures must be supplemented by adaptation measures aimed at alleviating the most severe or imminent consequences of climate change, taking into account any relevant particular needs for protection’ and ‘in accordance with the best available evidence’. The Court goes on to note, under paragraph 553, that states must ensure that ‘procedural safeguards available to those concerned will be especially material in determining whether the respondent State has remained within its margin of appreciation.’
Under paragraph 554, the Court lays out two procedural safeguards. First, public availability of information and measures, particularly available to those who are affected by the measures. This implies, that states must adopt procedures to provide the public access to information, relevant studies and assessments of risks. Second, procedures to allow public participation in the decision-making process. This means, procedures must be available to ensure public views are integrated in the decision-making process, especially from stakeholders who are at risk due to the decision-making.
The range of benchmarks developed under the general principles section of the judgment therefore provide an important road map for the Committee of Ministers to monitor whether the legislative measures that Switzerland proposes to take are compatible with the spirit of the judgment as a whole.
Mind the gap in a long road ahead
As shown by this analysis, what the Verein Klima Seniorinnen requires in terms of its execution leaves a number of both legal-technical, as well as interpretive (and political) questions to be resolved.
A non-binding motion of the Swiss Parliament, issued on 12 June 2024, shows that resolution of these questions is likely to be an uphill battle. This is because, a majority of 111 to 77 in the lower house Swiss Parliament not only raised their disagreement with the ECtHR’s decision, but also argued that the judgment requires absolutely no new measures whatsoever because Switzerland is already doing enough to combat climate change. This motion is not binding on the Federal Swiss Government, the responsible branch of government for devising the action plan for the execution of this judgment. It is, however, not a good sign as the Government needs to work with the legislature to execute the judgment.
It is therefore important to closely engage with the implementation of this judgment. This is a space to watch not only for Verein Klima Seniorinnen, but also for all who seek to trigger effective climate action through human rights litigation before international courts and tribunals.
Watch this space: Executing Article 8 Compliant Climate Mitigation Legislation in Verein KlimaSeniorinnen v. Switzerland
Written by Başak Çali and Chhaya BhardwajNow that the European Court of Human Rights delivered its first violation judgment in a human rights-based lack of climate mitigation ambition case, in Verein Klima Seniorinnen v. Switzerland, all eyes turn to how this judgment will be executed.
As with all judgments of the Court, Verein Klima Seniorinnen v. Switzerland is currently pending for execution before the Committee of Ministers of the Council of Europe. This is the inter-governmental peer review body that is tasked with monitoring the execution of the judgments of the Court under Article 46 ECHR. Under the relevant rules, Switzerland and the Committee of Ministers must agree on what specific individual and general measures are needed to implement this judgment within six months of the publication of the judgment. For this, Switzerland will first submit an action plan to the Committee of Ministers outlining how it aims to implement the judgment. The deadline for the submission of this execution plan is set for 9 October 2024. Swiss, European or international non-governmental organizations can participate in this process by making submissions (known as Rule 9.2 submissions) before the Committee of Ministers to indicate what the action plan for executing this case should look like. Further down the line, civil society organisations can also intervene before the Committee of Ministers with their assessments of whether the measures have been implemented adequately. The case will remain pending before the Committee of Ministers until all agreed measures are fully implemented.
The importance of how the execution of Verein Klima Seniorinnen v. Switzerland will unfold before the Committee of Ministers cannot be underestimated. How this case is executed will set a precedent for future similar cases (see inter alia, other pending climate mitigation cases such as Müllner v. Austria, Engels v. Germany). The execution of this case also has global significance. The Committee of Ministers, by virtue of its functions under the ECHR, will be the first inter-governmental body to monitor climate action of a member state following an international court judgment. As is well known, the Paris Agreement requires states to take mitigation measures, but the Paris Agreement Implementation and Compliance (PAIC), an expert body appointed by the state parties, does not have powers to monitor such measures.
Against this background, our aim in this blog post is to examine challenges in the first step for the execution of Verein Klima Seniorinnen v. Switzerland: identification of the specific remedial measures required by this judgment: an Article 8 compatible climate mitigation legal framework.
The Court decides: A judgment with no specific remedial orders
The European Court of Human Rights is well-known for its declaratory judgments and its sparse use of indicating specific remedies to repair violations or prevent their repetition. Verein Klima Seniorinnen is no exception. In paragraph 657 of the judgment, the Court explains at length that this judgment is declaratory:
In the present case, having regard to the complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment. Given the differentiated margin of appreciation accorded to the State in this area (see paragraph 543 above), the Court considers that the respondent State, with the assistance of the Committee of Ministers, is better placed than the Court to assess the specific measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State, the adoption of measures aimed at ensuring that the domestic authorities comply with Convention requirements, as clarified in the present judgment.
In practical terms, this means that Switzerland, the Committee of Ministers, Verein Klima Senniorinnen (as well as other civil society organisations interested in the exeuction of this case) all must read the merits sections of the judgment with a view to identify what specific remedies are required by this judgment. Only once a concrete list of general measures are identified, the monitoring of the effective implementation of those measures will commence.
Executing declaratory judgments
The process of identifying what a declaratory judgment requires at the execution stage is both a legal-technical and an interpretative (as well as political) exercise. It is legal-technical because each identified execution measure must clearly flow from the legal findings of the judgment. It is, however, also interpretive and political, given that what the findings of a Court’s judgment requires can be understood in multiple ways and, leaves a space for manuevre to states and the Committee of Ministers, which, after all, is a political organ.
It is common for state parties to read the implementation requirements of the judgments in restrictive ways and litigants and NGOs in broader ways. Consider the well-known story of the race to the bottom implementation of the Abulaziz Balkandali v. UK judgment. In that judgment, the Court found that the UK immigration rules, making it easier for male migrant workers to pursue family reunification with their spouse than for female migrant workers, to be discriminatory under Article 14 ECHR. In implementing the judgment, the UK eroded the spousal family reunification prospects of male migrant workers instead of bolstering the right of female migrant workers. The Committee of Ministers did not contest this and closed the execution of the case. Twenty years on, the tendency of states to aim for minimum execution persists, but the Committee of Ministers practice, has become more stringent, largely thanks to the civil society participation in the executive process.
What does then the Verein Klima Seniorinnen judgment require?
The Court’s discussion of the Article 8 violation in this judgment leaves a large legal technnical as well as interpretive and political space of manuevour. The judgment is extremely long. The Court offers a rich set of discussions and as this is a seminal judgment, sets out a large number of principles. A central question, therefore, is which paragraphs of the judgment are going to be central for specifying the remedies required by this judgment. Below, we show that there are multiple ways to go, namely, focussing narrowly only on paragraphs 555-573 of the judgment, where the Court explains what is deficient in the Swiss legislative context or focussing on paragraphs 555-573 of the judgment together with paragraphs 547-553 of the judgment, where the Court explains the general principles that it will apply to assessing the adequacy of any mitigation measures that would be Article 8 compliant. As we will see below, the list of general measures that can be generated by focussing on these different parts of the judgment may differ significantly in scope and detail.
A narrower vision of execution: paragraphs 555-573
These are the paragraphs where the Court explains why the Swiss regulatory framework falls short of an Article 8 compliant framework. The Court specifically identifies two types of general measures that Switzerland needs to take in this part of the judgment.
In paragraphs 555-573, the Court clearly holds that Switzerland needs to enact new legislation that specifies concrete climate mitigation targets for the period after 2024. The Court has reached this finding after having analysed the legislative efforts since the 2011 CO2 Act and found that there exists a legislative lacunae for specifying the concrete mitigation measures after 2024 and in particular between 2024-2030. (paragraphs 555-568).
The Court does not only indicate the need for new law regulating the period between 2024 and 2030, but also finds the overall lack of a carbon budget in the Swiss regulatory framework necessitates a remedy. The Court under para. 570, specifically holds that ‘…the Court is not convinced that an effective regulatory framework concerning climate change could be put in place without quantifying, through a carbon budget or otherwise, national GHG emissions limitations’ as set out in paragraph 550 (a) of the judgment. In doing so, the Court explicitly rejects the argument that reliance on Switzerland’s nationally determined contributions (NDCs) can compensate the lack of a carbon budget and policy (paragraph 571).
A broader vision of execution: Paragraphs 555-573 when read together with paragraphs 547-553
Unlike paragraphs 555-573, the Court, under paragraphs 547-553, sets out key principles to assess how any legislative measure taken by ECHR state parties can be Article 8 complaint. These paragraphs indicate that just having a legislation covering measures in a certain time frame or having carbon budgets in such legislation would generally be not enough.
Paragraphs 547-553 in particular provide additional prescriptive benchmarks. First, it holds that any future climate legislation must consist of timely targets to achieve carbon neutrality, (or another method of quantification of future GHG emissions). As pointed out by Chris Hilson in EJIL Talk!, ,however, referring both to reduction of CO2 (also known as carbon neutrality) and the reduction of methane and other GHG gases (net neutrality) (paragraphs 250, 547-548) as two possible ways to assess suitability of legislation is ambiguous. As Hilson highlights, carbon neutrality matters more than net neutrality in the context of taking immediate mitigation measures and is a better benchmark for effective climate action. The use of both terms in paragraphs 547-548 of the judgment signals that this point needs to be reconsidered in the course of the monitoring of the execution of this judgment.
Second, there needs to be intermediate GHG emission reduction targets and pathways in national policies and there must be procedures in place to track compliance with these targets. Third, the legal framework must enable the updating of reduction targets in a timely and continuous manner and in the light of the best available science.
In addition, under paragraph 552, the Court states that, in devising Article 8 compliant measures, ‘mitigation measures must be supplemented by adaptation measures aimed at alleviating the most severe or imminent consequences of climate change, taking into account any relevant particular needs for protection’ and ‘in accordance with the best available evidence’. The Court goes on to note, under paragraph 553, that states must ensure that ‘procedural safeguards available to those concerned will be especially material in determining whether the respondent State has remained within its margin of appreciation.’
Under paragraph 554, the Court lays out two procedural safeguards. First, public availability of information and measures, particularly available to those who are affected by the measures. This implies, that states must adopt procedures to provide the public access to information, relevant studies and assessments of risks. Second, procedures to allow public participation in the decision-making process. This means, procedures must be available to ensure public views are integrated in the decision-making process, especially from stakeholders who are at risk due to the decision-making.
The range of benchmarks developed under the general principles section of the judgment therefore provide an important road map for the Committee of Ministers to monitor whether the legislative measures that Switzerland proposes to take are compatible with the spirit of the judgment as a whole.
Mind the gap in a long road ahead
As shown by this analysis, what the Verein Klima Seniorinnen requires in terms of its execution leaves a number of both legal-technical, as well as interpretive (and political) questions to be resolved.
A non-binding motion of the Swiss Parliament, issued on 12 June 2024, shows that resolution of these questions is likely to be an uphill battle. This is because, a majority of 111 to 77 in the lower house Swiss Parliament not only raised their disagreement with the ECtHR’s decision, but also argued that the judgment requires absolutely no new measures whatsoever because Switzerland is already doing enough to combat climate change. This motion is not binding on the Federal Swiss Government, the responsible branch of government for devising the action plan for the execution of this judgment. It is, however, not a good sign as the Government needs to work with the legislature to execute the judgment.
It is therefore important to closely engage with the implementation of this judgment. This is a space to watch not only for Verein Klima Seniorinnen, but also for all who seek to trigger effective climate action through human rights litigation before international courts and tribunals.
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