Switzerland – 2022 Review of Environmental Law: The Paris Agreement’s ‘Bottom-Up’ Approach Taken to the Extreme

Abstract

In view of the obligation to define climate change commitments in ‘Nationally Determined Contributions’ (NDCs), the transition from the ‘Kyoto Protocol’ to the ‘Paris Agreement’ is usually referred to as a shift from a ‘top-down’ to a ‘bottom-up’ approach. From this perspective, Switzerland, owing to federalism and direct democracy, takes the ‘bottom-up’ approach to climate change law to the extreme. Direct democracy allows for any law enacted at any level of political governance (Federation, constituent states, local government) that implements obligations under international climate change law to be challenged in a referendum and decided by the citizens themselves. This has implications for the functioning of representative democracy. It makes coalition-building around climate policy a prudent political strategy. This, in turn, comes at the expense of incrementalism. Federalism, however, opens up the possibility for local authorities, based on the preferences of their citizens, to take the lead and adopt more ambitious climate policies. This paper analyses these mechanisms in light of the year under review. It also assesses Switzerland’s plans to use ‘internationally transferred mitigation outcomes’ (ITMOs) under the Paris Agreement to meet its NDCs. As part of its efforts, Switzerland not only entered into further cooperation agreements in 2022, but also signed the world’s first climate protection project based on such a bilateral treaty on ITMOs, the 2020 ‘Cooperation Agreement between the Swiss Confederation and the and the Republic of Ghana for the implementation of the Paris Climate Agreement’ that is. This report furthermore examines attempts to strengthen biodiversity through both international environmental law and instruments of direct democracy. It provides a cautionary tale of how environmental protection, especially biodiversity and nature conservation, tends to be hastily sacrificed in the wake of the looming energy crisis when constitutional law and the rule of law are neglected.

Keywords: ‘bottom-up’ approach in climate change law, Paris Agreement, the world's first project re: internationally transferred mitigation outcomes (ITMOs), biodiversity, nature conservation, democracy and climate change, energy crisis and environmental protection, environmental federalism, direct democracy

JEL Classification: K23, K32, K33, K41, Q54