Readers of this blog as well as listeners to Law Pod UK may remember the European Court of Human Rights’ controversial ruling in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. We have written about it on the UKHRB here, and it has come up in Law Pod UK epsiodes discussing the ECHR, both in our interview with Lord Sumption here and our discussion with Marina Wheeler KC and David Wolfson KC here.
The latest is an interesting and detailed post by Corina Heri, Charlotte E. Blattner and Tobias Cadalbert in the latest edition of the Blog of the European Journal of Interntional Law.
In it, the authors criticise the Committee of Ministers’ conclusion that Switzerland has effectively complied with the Strasbourg’s judgment in the Verein KlimaSeniorinnen Schweiz case. It will be recalled that the ECtHR found that Switzerland had failed to meet its obligations under Article 8 of the European Convention on Human Rights (right to respect for private and family life) by not taking adequate and timely measures to mitigate climate change. The ruling emphasised the role of national authorities, especially courts, in ensuring compliance with Convention obligations, clearly placing the onus on Switzerland to enhance its climate policy and implementation.
This ruling was reached despite the fact that Switzerland had held not one but two national referenda on what it its citizens expected the government to do in discharging the country’s obligations under the Paris agreement. The second referendum, in June 2021, rejected certain measures that would align national targets with the Paris Agreement.
Following the Strasbourg Court’s ruling, the Committee of Ministers—a supervisory body within the Council of Europe—was tasked with ensuring that Switzerland adopted adequate measures for compliance. At its first meeting regarding the case, the COM received and reviewed the Swiss government’s “action report,” which outlined legislative changes and confirmed the payment of costs awarded by the Court. The Committee initially appeared to accept Swiss assurances, suggesting an “effective” compliance.
Critique of the COM’s conclusions
The authors scrutinise the Committee of Ministers’ approach, maintaining that it was overly formalistic, inattentive to substantive deficiencies in Swiss compliance, and unduly deferential to political resistance within Switzerland. The main thrusts of this critique may be summarised as follows:
- The Swiss action report reportedly emphasised procedural measures rather than substantive legislative changes. While some payment obligations were met, the broader requirements around climate policy reform were not substantively advanced.
- The Committee is accused of favouring a quick closure of the supervisory process in the face of continued non-compliance, setting a troubling precedent for future climate litigation within the Council of Europe.
- Domestic political resistance—manifested in parliamentary statements attacking “judicial activism” and open moves to stall or soften compliance—was inadequately addressed by the Committee.
Strengths of the Article’s Critique
The authors rightly insist that genuine compliance with ECtHR judgments must be evaluated based on substantive—not merely procedural—changes. The Swiss government’s procedural formalities, such as submitting timely reports or making court-mandated payments, fall short of the transformative climate action demanded by the Court’s findings.
By noting the evolving international legal context, including advisory opinions from other courts and guidance documents on environmental rights, the authors anticipate future pressure on the Committee to toughen its supervisory role.
But there are weaknesses in these arguments, largely because they ignore the direction of travel in attitudes to the Council of Europe and its enforcement bodies.
Weaknesses and Counterpoints
While the authors suggest that the Committee rushed to accept Swiss compliance, they have bypassed critical aspects of the Committee’s powers. The Committee can, and often does, re-open supervision, schedule further meetings, adopt interim resolutions, and even refer unresolved questions back to the Court. The “closure” in this instance may be more interim and strategic, rather than definitive. The article undervalues this iterative, diplomatic process which is designed to balance state sovereignty with international oversight.
But now we get to the nub of the criticism of this post, which is essentially the same as that in the number of critiques of the original judgment, in that the ECtHR simply failed to recognise Switzerland’s margin of appreciation in coming to the decision that it did.
It should go without saying that the ECtHR and the Committee of Ministers must respect national authorities’ wide margin of appreciation in socially and politically contentious fields like climate policy. The Swiss government’s assertion that it meets climate obligations—even if questionable—happens within an internationally recognised scope for national discretion. The post could be more nuanced in addressing this aspect, instead of suggesting that anything short of wholesale Swiss legislative transformation amounts to bad faith.
Finally, we must bear in mind what the COM can realistically compel Switzerland to do. In practice, the Committee’s tools are soft-power mechanisms—monitoring, dialogue, moral suasion—not hard legal sanctions. Even in high-profile cases, real compliance depends mainly on domestic politics rather than external enforcement. Thus, the article’s implicit demand for more robust enforcement may be utopian given current institutional realities. Not in the least the mounting pressure in a number of Council of Europe Countries including the UK to withdraw from the ECHR altogether; see the Shadow Attorney’s advice to the leader of the Conservative Party, summarised on this blog here.
Authors Heri et al are correct in identifying a gap between the Swiss government’s procedural claims and the substantive requirements of the ECtHR ruling. The judgment explicitly faulted Switzerland for failing to establish a clear and effective regulatory framework—especially a quantified carbon budget and specific GHG reduction targets—and for not enforcing its own emissions targets. However, the Swiss executive and parliament have continued to emphasise existing or incremental legislative changes, sidestepping the need for urgent and robust action.
Is it relevant what the people think? The role of domestic resistance
Swiss political resistance is plainly documented—right-wing parties and even centrist lawmakers decried what they called “judicial activism,” and both houses of the legislature issued declarations calling for greater national sovereignty in the face of transnational judicial scrutiny. The Federal Council’s subsequent endorsement of parliamentary critiques, and its assertion that Switzerland already meets the court’s requirements, reflect a concerted effort to dilute compliance. This may go some way to explaining the COM mild response, under attack in the EJIL. The authors themselves observe that
“Domestic resistance to this case has been fierce. Swiss politicians and courts alike have criticized the ECtHR, with proposals in Parliament even calling to curtail the Court’s “intrusive case law.” These echoes of broader pushback against Strasbourg, reminiscent of the recent letter by nine governments on migration, send troubling signals to the CoE: push too far, and expect retaliation.”
Some responses to the KlimaSeniorinnen judgment pointed out that of all countries, Switzerland should be the last one to have its knuckles rapped in Strasbourg for environmental sloppiness. The Committee of Ministers faces systemic challenges in enforcing climate-related judgments across all the member states. Nearly half of leading ECtHR judgments remain pending implementation after several years. Is it better for the Committee to accept mere procedural compliance or political declarations, simply because this is the only realistic approach?
Conclusion: A Nuanced Appraisal
The authors’ critique in “Another Brick in the Wall of KlimaSeniorinnen” somewhat overstates the capacity of the Committee of Ministers for coercion in the face of entrenched domestic opposition.
Of course there is an urgent need for real policy transformations and for situating the Swiss case in the larger context of climate litigation and European human rights law. But whether this is the question for the Strasbourg Court, with its vaguely articulated provisions under Articles 8 and 6, is moot.
The ultimate test will be whether Switzerland, under ongoing international and domestic pressure, enacts sufficiently far-reaching measures to meet both the letter and the spirit of the ECtHR judgment. The effectiveness of the Committee’s ongoing supervision will become clear in the years ahead, as both Swiss policy and European climate jurisprudence evolve. Suffice it to say, however, that this is not a good time for any of the institutions of the Council of Europe to be indulging in judicial micromanagement of climate policy.
