Climate: viable routes to progress


Climate activism has recently declared another victory. The European Court of Human Rights declared Switzerland in breach of the Convention due to inadequate climate mitigation efforts. The Court threw out two other cases — one against France and another against 32 other countries.

The ruling has been hailed as a ‘landmark’ ruling. That may well be true. The question is: a landmark to what?

Inevitably, this ruling has raised howls of protests about judicial overreach undermining democracy by interfering in decisions that are properly political. After all, Swiss citizens rejected a number of net zero policy initiatives in a referendum. In the UK, the decision has given more ammunition to those arguing that Britain should withdraw from the Convention.

What about the consequences of the decision for climate action?

The first thing to say is that, as with much international law, there are no effective enforcement mechanisms for such decisions. Compliance relies on the goodwill of the nation states involved and the political balance between compliance with the ruling and being seen not to comply. The Court itself did not prescribe any specific actions, rather dumping that responsibility on to the Council of Ministers.

Some have pointed out the disconnect between a Court that feels confident to rule that a country is not doing enough while declaring itself unqualified to define what doing enough actually means.

Still, the net result is that, whatever the Court has ruled, the ultimate decisions will remain political.

Switzerland, could, if it chooses, ignore the decision, make some symbolic changes or statements that have little practical consequence but give the impression of doing something. Or it could make substantial, practical changes to its approach by placing the Strasbourg Court’s ruling above the expressed wishes of its citizens.

The main risk of non-compliance is reputational. But, realistically, it will take a lot more than a single ruling of this nature for us all to start thinking about Switzerland as a ‘human rights violator’. This is Switzerland, arguably the most democratic country in the world, not North Korea.

That said, there aren’t many countries that would want to find themselves in such a position. In that context, what might transpire following such a ruling?

Activism has been successful in the past by challenging what was accepted previously, even in the field of human rights. Activism gave women the vote, drove civil rights for people of colour in America, and so on. Yet climate change is a much more complex issue.

Giving women the vote, decriminalising homosexuality and, later, legalising same sex marriage – all could be achieved at the stroke of a pen. New laws and it was done.

Climate policy and achieving a just transition, on the other hand, involves fundamental and broad-based changes. It affects almost all areas of policy – social policy, environmental policy, industrial policy, fiscal policy, economic policy, and on it goes.

Navigating all of that is, to put it mildly, complex as well as highly political. It is no wonder that the Court has shied away from making any concrete suggestions.

The activists who brought this suit will hope that it will galvanise Switzerland and others to redouble their efforts at climate mitigation. That is possible though, in my view, highly unlikely. Though many activists will disagree, most countries believe they are already doing whatever is economically viable and socially acceptable – in other words what is politically possible – around climate mitigation.

As long as some citizens believe that they are going too fast too soon, others believe that progress is nowhere near fast enough, and yet others are more concerned with other issues in their life, politicians will feel that they have probably got the balance broadly right. That a ruling of one non-national court around one country while throwing out two other cases will significantly change that calculus may represent a triumph of hope over reality.

There is another possibility that, unfortunately, may turn out to be more likely.

It is becoming increasingly clear that, in signing up to the Paris Agreement, many countries signed up to legally binding targets while having no idea how they could achieve them in practice. The more litigation there is in the wake of those decisions, the greater the possibility that more countries will be determined never to make the same mistake again. This could make climate negotiators much more cautious in the future while increasing the difficulty of reaching any agreement at future COP gatherings.

If that were to transpire, this ruling would represent a pyrrhic victory for climate activism. It might end up making further progress more rather than less difficult.

Litigation around climate issues is becoming normalised. NGOs sue companies for not living up to commitments. Companies sue NGOs for protests that endanger life and limb. Now the above human rights-based litigation.

For climate activists, the pursuit of their aims through litigation bears some reflection and, maybe, some calibration. In all negotiations, litigation represents a shift from persuasion and reasonable compromise to conflict and attempted coercion. Is conflict and attempts at coercion more or less likely to engender progress? Are they likely to result in meek submission on the part of the targets, or more likely to generate increased resistance?

These question bear reflection. What would be regrettable is if litigation becomes the equivalent of climate cocaine – a series of short-term highs every time there is a favourable ruling only to create long-term self-harm.

Activism is an essential part of the democratic process. As always, the challenge is to find which routes are most likely to lead to practical success. Litigation may have a role to play. The challenge is to define such a role thoughtfully and in ways that maximise the chances of success over the long-term.

This post first appeared in Joe’s Random Thoughts newsletter on LinkedIn.

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Radix is the radical centre think tank. We welcome all contributions which promote system change, challenge established notions and re-imagine our societies. The views expressed here are those of the individual contributor and not necessarily shared by Radix.

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