**The Morteratsch Glacier tongue receded by 2,185 m from 1900 to 2010. It has since almost entirely disappeared.** Wikimedia

The human right to be cold

The climate-induced melting of Switzerland’s glaciers is not just an environmental issue, the legal implications are also huge. National sovereignty, the cornerstone of fundamental constitutional rights, is suddenly on thin ice (pardon the pun). Climate change impacts a whole host of international human rights. This raises the question of how we in Switzerland can guarantee the next global generation’s right to be cold irrespective of national borders.

Debjani Bhattacharyya

Prof Debjani Bhattacharyya is a historian and holds the Chair of the History of the Anthropocene at the University of Zurich. Her research focuses on the interface between climate history, legal history and the Anthropocene.

In August 2022, a summer of record temperatures for Switzerland, hikers on the Chessjen Glacier in the Alps discovered human bones that were several decades old. And that’s not the only thing to have been found by mountaineers in the Alps recently. As the glaciers recede, new objects keep resurfacing, such as the wreck of an airplane that crashed in 1968, shoes, human remains and rare archaeological artefacts.

Following the discovery of Ötzi in 1991 in South Tyrol, the Swiss Alps have also given up some secrets since 2003. In 2017, the remains of a mountaineering couple were found on a glacier. From a missing persons’ enquiry to a climate change issue. The human remains of a couple who went missing in 1942, Tsanfleuron Glacier, 2017. Glacier 3000, Gstaad

In autumn 2018, Geschichtsmuseum Wallis, the History Museum of Valais, curated an exhibition entitled Aus dem Eis: Spuren in Gefahr (From the ice: glacial secrets revealed). Some of the exhibited items dated from around 6000 B.C. while others were more recent, about a year old in some cases. The exhibition thus contained an unusual collection of artefacts from the pre-Modern era, which would normally be found in a natural history museum, and contemporary items usually found in modern museums. The melting glaciers are the source of this heterogeneous collection: hence the name given to the emerging discipline of “glacier archaeology”. Switzerland’s glaciers lost half of their volume between 1931 and 2016. A contemporary climate model shows that the alpine glaciers may have melted by the end of the century, even if emissions were to quickly come down and temperatures were to immediately stabilise at the levels of the last decade. Covering the glaciers with blankets may extend the usability of the ski slopes, but it also accelerates shrinkage. Hence the plastic covers used can be likened to 'shrouds'.

Switzerland’s glaciers are melting so fast that the difference is visible from photos taken within relatively short timespans. The Morteratsch Glacier (pictured here) had almost entirely disappeared by the start of the 2020s. Morteratsch Glacier, photos taken by Jürg Alean on 10. 7.1985, 8. 7.2007 and 9. 7.2021. Jürg Alean

The receding glaciers impact the environment in many different ways, particularly with regard to water availability, changes to biodiversity and the dangers inherent in a glacier-free landscape. The legal consequences are also huge. In the summer of 2022, we saw how the Italian-Swiss border was changed by the melting of the Theodul Glacier. Tourists and hikers in the “Rifugio Guide del Cervino” mountain hut, near the 3,480-metre summit called Testa Grigia are now literally and figuratively on shaky ground, as the melting glaciers have caused the mountain hut to move from Italy towards Switzerland. This has led to considerable diplomatic activity, the outcome of which remains to be seen. Climate change is altering coastlines and even, as with the Italian-Swiss border issue, raising questions of national sovereignty. As long as the matter remains unresolved, the mountain hut will be shown by a dotted line on swisstopo maps instead of the solid pink band denoting national borders. The fundamental rights of the Swiss people guaranteed by the Federal Constitution are based on sovereign territory, and it is this very territory that is now susceptible to change resulting from receding glaciers. Territorial disputes may be no more than the tip of this melting iceberg.

The Theodul Glacier used to mark the border between Switzerland and Italy. Now that it has receded, the precise location of the border is undefined. The official swisstopo maps currently mark the border with a dotted line by the “Rifugio Guide del Cervino” mountain hut near Testa Grigia peak. The border must now be redrawn. Federal Office of Tophography swisstopo

Glacier shrinkage and resulting changes to the Alps are more than just a Swiss issue. So, now is not the time for blinkered environmental agendas focused within national borders. Instead, global warming raises questions about the future of human rights, which apply across national borders. Meanwhile, there is broad consensus that climate change will directly and indirectly impact a whole host of international human rights, including the right to health, housing, water and food. Those at greatest risk from climate change live on small islands, near water and on low-lying coastal zones, arid regions and at the poles. This raises the question of how we in Switzerland can address a future global fundamental right. This new approach must include both temporal and geographical aspects. The temporal dimension involves thinking about how we can create the necessary conditions to protect the right of future generations to a healthy and fulfilled life on this planet. Whereas the geographical dimension entails envisioning a Swiss fundamental right with global reach. There are precedents for both approaches. In March 2021, Germany’s Federal Constitutional Court made a historic ruling that the Federal Climate Change Act of 2019 was incompatible with the fundamental rights of future generations, as measures for reducing greenhouse gas emissions by 2050 were inadequate. The plaintiffs, including young climate activists, made the court consider rights across generations. Their argument was that the Federal Climate Change Act contained insufficient measures to reduce CO2 emissions from 2030 to 2050, giving Germany a very narrow window to achieve climate neutrality, thereby drastically curtailing the fundamental rights of the German people and placing a disproportionate burden on future generations. This is an innovative legal position that establishes a basis for a fundamental right in the future while at the same time, especially, justifying it in a way that is also applicable to Switzerland. To uphold this right, we must also address the geographical dimension, i.e. ensure its cross-border legal validity. The geographical aspect brings us back to the icy ground on which this journey started. On 7 December 2005, Sheila Watt-Cloutier, a member of the Canadian Inuit community, submitted a 163-page petition to the Inter-American Commission on Human Rights (IACHF) calling on the United States, as one of the biggest emitters of greenhouse gases, to take immediate steps to uphold the Inuit people’s human rights.

Inuit activist Sheila Watt-Cloutier and the petition submitted to the Inter-American Commission on Human Rights. The signatories claim that the USA is contravening the human rights of the Inuit by failing to respond appropriately to global warming. Portrait of the activist by Chris Windeyer in Canada, 2010. THE CANADIAN PRESS

Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States, presented by Sheila Watt Cloutier, Canada, 2005. — *Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States*, presented by Sheila Watt Cloutier, Canada, 2005.

This was a watershed development as it changed the substance of the environmental protection debate from endangered polar bears and melting glaciers into a human rights issue. In her groundbreaking book The Right to be Cold: One Woman’s fight to Protect the Arctic and Save the Planet from Climate Change she argues for ensuring the cultural right of communities indigenous to the polar regions to ice, snow and cold. This not only helps preserve the Arctic but also the entire planet. Now that sovereign states are exhibiting an increasing tendency to selfishly assert their individual rights to access their own fossil fuels in the name of “national” development, it may be time to think of fundamental Swiss rights as being global in scope. To paraphrase Watt-Cloutier: what must we do today to guarantee future generations in Switzerland the right to be cold?

The Swiss Confederation is committed to the long term preservation of natural resources.

Federal Constitution of the Swiss Confederation of 1999, Article 2, paragraph 4

More of: Federal Constitution 20th / 21st century Nature Archaeology

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Right to fair proceedings a latecomer to Switzerland

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