The necessity defence in (the Swiss) climate protest cases: Democratic contestation in the age of climate activism

• Published date: 01 May 2023
• Author: Paolo Mazzotti
• Date: 01 May 2023
• DOI: http://doi.org/10.1111/eulj.12497

SPECIAL ISSUE ARTICLE

The necessity defence in (the Swiss) climate

protest cases: Democratic contestation in the age

of climate activism

Paolo Mazzotti

*

Abstract

The transnational movement of climate activists is resorting increasingly often to acts of civil disobe-

dience. Upon being prosecuted for those acts, climate activists across various jurisdictions arestarting

to plead the general criminal law defence of necessity. The present article takes the cases in which

that defence was pleadedbefore Swiss courts as a case study to analyse the legalquestions raised by

the ‘climate necessity defence’, conceptualised as an instance of climate litigation. The article hence

situates the Swiss cases withina broader framework, trying to draw interpretive insightsfrom interna-

tional environmental law and climate science, as well as the transnational case-law on the climate

necessity defence. The article's overarching submission is that a broad interpretation of the defence,

tending towards accepting its applicability, is more in line with the current legal thinking on environ-

mental matters than a restrictive interpretation rejecting aprioriclimate necessity claims.

1|INTRODUCTION: CLIMATE CHANGE ACTIVISM, CIVIL

DISOBEDIENCE AND THE CLIMATE NECESSITY DEFENCE

On 3 July 2022, the Marmolada glacier in Northern Italy collapsed because of the abnormal temperatures recorded

in the Alps over the summer, resulting in one of the largest climate change–related casualties ever affecting the

Alpine region.

1

The extreme heatwave which raged over Europe in the summer of 2022, exacerbating the drought

experienced by many European countries throughout that year,

2

can be direly contrasted with the floods which

heavily impacted the continent in the summer of 2021, also imposing a major death toll on European societies.

3

The

*Max-Planck-Institute for Comparative Public Law and International Law, Im Neuenheimer Feld 535, 69120 Heidelberg (Germany)

1

See H. Horton, ‘Events like Italian Glacier Collapse Likely to Increase as Planet Heats’,The Guardian, 4 July 2022, <https://www.theguardian.com/

environment/2022/jul/04/marmolada-italian-glacier-collapse-likely-to-increase-as-planet-heats>.

2

See A. Toreti et al., ‘Drought in Europe—July 2022’(Publications Office of the European Union, 2022), <https://publications.jrc.ec.europa.eu/repository/

bitstream/JRC130253/JRC130253_01.pdf>.

3

See M. Eddy, ‘Hundreds Missing and Scores Dead as Raging Floods Strike Western Europe’,The New York Times, 15 July 2021, <https://www.nytimes.

com/2021/07/15/world/europe/flooding-germany-belgium-switzerland-netherlands.html>.

Received: 18 September 2022 Revised: 20 March 2024 Accepted: 22 March 2024

DOI: 10.1111/eulj.12497

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2024 The Author. European Law Journal published by John Wiley & Sons Ltd.

Eur Law J. 2023;29:393–421. wileyonlinelibrary.com/journal/eulj 393

materialisation of the impacts of climate change is thus starting to impose major human and societal costs on the

Global North. Such costs, while nowhere comparable to those borne by the Global South,

4

are engendering signifi-

cant pressure on European and North American societies, and growing demand for upscaled ambition in climate poli-

cies. In fact, whereas climate change laws and policies are thriving and being adopted at an unprecedented pace

worldwide,

5

such efforts still largely lag behind the degree of ambition which would be needed to abide by the Paris

Agreement's temperature objectives.

6

Against this background, climate mobilisation is on the rise. Spearheaded by the massive success of the Fridays

for Future (FFF) movement, a new wave of environmental activism shook Europe and the world from 2018 onwards.

The mounting tide of activism ultimately led to the emergence of more radical groups, such as Extinction Rebellion.

7

Such groups often engaged in acts of civil disobedience, influentially defined by Rawls (whose definition is accepted

for the purposes of the present article) as ‘a public, nonviolent, conscientious yet political act contrary to law usually

done with the aim of bringing about a change in the law or policies of the government’.

8

Recent high-profile initia-

tives in this context include disturbances of the Tour de France by activists in France

9

and massive blockades of

streets in Germany.

10

Such actions typically garner extensive media coverage, amounting to an extremely effective

political means for activists to make their claims known to the public. At the same time, they involve, by definition,

breaches of the law, for which activists face the serious risk of administrative and criminal sanctions. The present

article is devoted to the strategy, which is gaining increasing prominence amongst activists in Europe and beyond, of

reacting to the threat of those sanctions by raising the general defence of necessity—thereby engaging in what will

be referred to in the following as the ‘climate necessity defence’.

The necessity defence is a general defence widely recognised in criminal law systems worldwide (or, at least,

those subject to the influence of so-called Western law).

11

Precise conceptualisations of the defence can vary,

4

See, seminally, S. Huq et al., ‘Mainstreaming Adaptation to Climate Change in Least Developed Countries (LDCs)’, (2004) 4 Climate Policy, 25, 27–31.

5

At the time of finalising this article, the renowned database ‘Climate Change Laws of the World’, jointly run by the Grantham Research Institute on

Climate Change and the Environment and the Sabin Center for Climate Change Law, counts 3128 such laws and policies worldwide: see <https://climate-

laws.org/legislation_and_policies>. The impressiveness of the figure can be fully grasped if one considers that, in 2018, the same database counted 1500

laws and policies in force, which in itself amounted to an exponential rise from the 72 items first counted in 1997: see M. Nachmany and J. Setzer, ‘Global

Trends in Climate Change Legislation and Litigation: 2018 Snapshot’(Grantham Research Institute on Climate Change and the Environment, 2018),

<https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2018/04/Global-trends-in-climate-change-legislation-and-litigation-2018-snapshot-3.

pdf>, 2–4.

6

Paris Agreement [2015] 3156 UNTS, Art 2. See United Nations Environment Programme (UNEP), ‘Emissions Gap Report 2022: The Closing Window:

Climate Crisis Calls for Rapid Transformation of Societies’(UNEP, 2022), <https://wedocs.unep.org/bitstream/handle/20.500.11822/40874/EGR2022.

pdf?sequence=3>; Stockholm Environment Institute (SEI) et al., ‘The Production Gap Report 2021’(SEI, 2021), <https://productiongap.org/wp-content/

uploads/2021/11/PGR2021_web_rev.pdf>.

7

See B.J. Richardson, ‘Editorial—Climate Strikes to Extinction Rebellion: Environmental Activism Shaping Our Future’, (2020) 11 Journal of Human Rights

and the Environment,1,1–4.

8

J. Rawls, A Theory of Justice [1971] (Harvard University Press, Rev. edn, 1999), 320.

9

See Watson, ‘Le Tour de France bloqué par des activistes du climat’,Watson, 12 July 2022, <https://www.watson.ch/fr/sport/cyclisme/831227886-le-

tour-de-france-bloque-par-des-activistes-du-climat>.

10

See M. Fürstenau, ‘Ziviler Ungerhorsam für die gute Sache’,Deutsche Welle, 25 February 2022, <https://www.dw.com/de/ziviler-ungehorsam-f%C3%

BCr-die-gute-sache/a-60898612>.

11

The reference to ‘Western’law should be understood here as a mere heuristic shortcut to refer to the modern, State-based legal systems of Anglo-Saxon

countries and continental Europe, and not as supporting the foundationalist and essentialising claims often inherent in concepts such as that of ‘Western

legal tradition’. The classical critique in this respect has been formulated in P.G. Monateri, ‘Black Gaius: A Quest for the Multicultural Origins of the

“Western Legal Tradition”’, (2000) 51 Hastings Law Journal, 479 (particularly at 506–513). Subject to this disclaimer, an attempt at sketching a general

theory on the necessity defence is undertaken in U. Neumann, ‘Necessity/Duress’, in M.D. Dubber and T. Hörnle (eds.), The Oxford Handbook of Criminal

Law (Oxford University Press, 2014) (although the author extensively relies on German and, to a lesser extent, US debates and materials). In a broader

perspective (also encompassing Dutch and UK law, while, however, still exhibiting a strongly Germano-centric tendency), see J. Blomsma and D. Roef,

‘Justifications and Excuses’, in J. Keiler and D. Roef (eds.), Comparative Concepts of Criminal Law (Intersentia, 3rd edn, 2019), at 226–234. The widespread

recognition of the necessity defence in criminal legal systems worldwide is attested to by its codification into Art 31(d) of the Rome Statute of the

International Criminal Court (1998) 2187 UNTS 3 (although, perpetuating a fundamental conceptual ambiguity deriving from the common law debate, the

Statute formally speaks only of ‘duress’; on this point, see Albin Eser and Kai Ambos, ‘Art. 31: Grounds for Excluding Criminal Responsibility’, in K. Ambos

(ed.), Rome Statute of the International Criminal Court: Article-by-Article Commentary (C.H. Beck-Hart-Nomos, 4th edn, 2022), 1370–1372). Such codification

came about after necessity (along with other defences) had already made its way in the case-law of international criminal tribunals as part of the general

principles of (criminal) law: see W.A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2nd edn, 2016),

637–638 and 645–646.

394 MAZZOTTI