Democracy dies in international law

Is it a crime against humanity for a democratically elected government to refuse, or fail, to satisfy the demands of environmentalists? Not under any rational analysis.

However, the European Court of Human Rights has ruled that Switzerland violated human rights by failing to reduce greenhouse emissions fast enough. The court agreed with a group of old Swiss ladies — Senior Women for Climate Protection — who claimed that the government took “insufficient” measures to mitigate “climate change” and that it therefore violated their human rights, including their right to life. The court noted that the Swiss government was not meeting its own emissions targets.

The court’s ruling illustrates once again the profoundly anti-democratic implications of ceding authority to international bodies like the European Court of Human Rights. In a democracy, the public, through its elected representatives, decides what measures to take to address issues like threats (and alleged threats) to public health and the environment

In making these decisions, the publicly elected representatives, as a collective, will balance the likely danger posed by the threats to health and safety against the cost of measures to counter them. They might not get the balance right, but they’re at least as likely to get it right as a subset of the public, like an organization of old ladies. And they’re at least as likely to get it right as unelected judges, especially foreign judges.

Moreover, if publicly elected representatives and officials seem to be getting it wrong, the public has a remedy. If the government sets inadequate targets to address threats to the environment, the public can vote it out of office. If it sets reasonable targets but doesn’t do enough to meet them, the remedy is the same. Vote those responsible out.

But what remedy does the public have when judges get it wrong? None.

Left-wing environmentalists applauded the ruling against Switzerland. An attorney for the Center for International Environmental Law gushed, “We expect this ruling to influence climate action and climate litigation across Europe and far beyond.”

He was too modest. The ruling opens the door for much more than “climate litigation.”

Think about the Covid pandemic. While it raged, many governments imposed strict lockdowns, but some did not.

Under the rationale by which Switzerland was found to have committed a human rights crime, why couldn’t a government that didn’t lock down the economy during a pandemic be found to have committed the same crime? After all, at its peak, Covid was killing thousands of Americans, Italians, and Spaniards (for example) every week.

There’s no evidence that “climate change” is having anything close to such a deadly effect. A study of Europe’s scorching summer of 2022 found more than 61,000 heat-related deaths in the continent as a whole. But it’s likely that only a small fraction of those can reasonably be attributed to climate change. And it’s almost certain that only a small fraction of that small fraction occurred in Switzerland, where summers are not scorching.

Therefore, I see no principle that would stop the European Court of Human Rights from finding that Sweden, that did not lockdown its economy during Covid, violated human rights, including the right to life. It’s true that Sweden had fewer Covid deaths per capita than most European nations. However, the court could compare the Swedish death rate to neighboring Norway, which locked down and had a lower rate. And as far as I can tell, the court would be under no obligation to weigh the economic, social, and psychological benefits of not locking down.

We should be thankful that the United States has thus far avoided submitting itself to the jurisdiction of bodies like the European Court of Human Rights. But we should also be worried because left-liberals have have pushed for us to join such bodies. We need to meet John Kerry’s “global test,” don’t you know.

Meanwhile, what will Switzerland to do? According to the Washington Post, the court’s decision “is binding, but governments do not always comply.” The Swiss government sounded non-committal about whether it would comply.

In the past, Swiss voters have rejected stringent measures to cut greenhouse gas emissions. So the Swiss government will have to decide, in effect, whether it’s answerable to Swiss citizens or to European jurists.

Only one answer is compatible with democratic governance.