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FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
I. Origin and context
1 Article 74 of the Constitution—first introduced in 1971—is the result of a long legislative debate. Two observations formed the backdrop to this debate: the increase in pollution during the period of economic growth following World War II and the need to address these nuisances. These considerations, coupled with a convergence of political factors favorable to taking into account the need to protect the environment, were the driving forces behind the discussions. This constitutional provision thus evolved in tandem with political, collective, and health awareness of ecological fragility and the intrinsic link between the environment and human existence. The progression of these concerns in public international law also played a crucial role in the evolution of Article 74 of the Constitution.
2 In this context, the purpose of this provision is to clarify the Confederation's powers in the field of environmental protection in the broadest sense and to serve as a guideline, alongside the principle of sustainable development (Art. 73 Cst.), for Section 4 of Chapter 2 of Title 3 of the Constitution entitled “Environment and Spatial Planning.” Art. 74 Cst. introduces the “catalogue of powers” of the Confederation, the cantons, and the municipalities in the field of the environment. This catalog has been formed in successive layers and reflects the fragmentation of environmental law sources within the Swiss legal system, as the subject matter has become more complex and developed in line with the gradual increase in scientific knowledge in this field.
A. Art. 24septies aCst.
3 Art. 74 of the current Constitution is a reproduction of Art. 24septies aCst. This first version of environmental competence was introduced following a parliamentary motion tabled by National Council member Julius Binder of the Christian Democratic Party on March 13, 1964, at a time when Switzerland was experiencing a significant increase in pollution. In his speech, the politician urged the Swiss authorities to take measures to combat noise, vibrations, and smoke or gas emissions, which were “increasing at an alarming rate [...] and posing a significant danger to human and animal health.” His text received widespread attention when it was submitted. Indeed, it aimed to combine an anthropocentric and ecocentric approach to environmental protection, which distinguished it from other positions at the time and enabled it to gain support from a wide range of stakeholders. Parliament adopted the Binder motion without opposition, although the majority of the Federal Council was against it. The Federal Council was then obliged to act on it and chose to do so by introducing a suitable provision on environmental protection into the Constitution, which reproduced the wording of the motion.
4 Before the adoption of Article 24septies aCst., the environment was certainly mentioned in the Constitution, but only specific elements such as water, forests, and heritage were included. It was primarily addressed at the federal level through police regulations related to issues arising from the exercise of hunting and fishing rights, and its protection was ensured by initiatives taken at the cantonal level. At that time, the environment was a subject of legal concern in federal legislation mainly because of its hazards—such as floods or landslides, for example—or through specific sectoral issues (combating deforestation, regulating the chemical industry and its water pollution, etc.). It was not addressed in a holistic manner, taking into account its essential qualities for human and non-human life. Only spatial planning included an environmental component at that time, but it remained marginal.
5 It was not until the second half of the 20th century that the concept of the environment found its place in the Constitution as a subject of protection in its own right.
In its 1970 message on the introduction of Art. 24septies aCst., the Federal Council stated that this provision was intended to serve as the basis for "general protection under public law against harmful and inconvenient effects ." De facto, in the face of increasing pollution, the Binder motion had revealed the inadequacy of the existing legislative framework—in particular the provisions concerning neighbor law and private liability—to deal with the scale of the damage and its consequences. The Federal Council, following this observation, considered that there was a lack of specialized expertise in the field of the environment, a need to adopt harmonized measures to protect it, but also that the cantons had made only limited use of their power to regulate environmental protection, so that there was a pressing need to remedy this lack of action. The Federal Council's areas of priority concern in its Message were primarily the deterioration in air quality and the increase in noise pollution linked to industry. In addition, in support of its Message, the Federal Council emphasized what seemed obvious: the growing explosion of pollution and damage to the environment is “always [the product of] human activity” and not a contingent terrestrial process, as some members of the public and certain political circles have since tried to argue.
6 Art. 24septies was adopted by a large majority of the population in 1971, following a consultation process that received mostly enthusiastic feedback. Art. 24septies aCst. thus confirmed the federal government's authority to legislate and take measures to combat harmful and/or nuisance damage.
B. The rise of international environmental law and the adoption of the LPE
7 After a period of unbridled pollution linked to the economic recovery in the years following the Second World War, the 1970s heralded the beginning of a shift towards environmental protection in Swiss law. The political debate was dominated by public concern about the decline of forests, in addition to the threat of pollution. In this context, the adoption of Art. 24septies aCst. offered some relief to the electorate, as it appeared to demonstrate a political will to take action and adopt – in the near future – legislation providing general protection for the environment.
8 On the international stage, due to the supranational and cross-border nature of the issues at stake – the effects of pollution know no borders and certain common goods are at risk of significant degradation or even disappearance – states also took a stand. This led to the rise of international environmental law. Under the auspices of the United Nations, a first conference on the environment was organized. This led in 1972 to the Stockholm Declaration and the creation of the United Nations Environment Programme (UNEP). Similar to Art. 24septies aCst., Principle 2 of this declaration reflects the commitment of states to preserving the environment and calls for the fight against various forms of pollution.
9 Although this decade saw a flurry of activity on the issue of threats to the environment, 14 years passed between the adoption of Art. 24septies aCst and its implementation through the Environmental Protection Act of October 7, 1983 (LPE), which came into force on January 1, 1985. However, legislative work began quickly after the adoption of the constitutional provision, under the aegis of a commission of experts chaired by Prof. Leo Schürmann. Nevertheless, the preliminary draft submitted for consultation in 1974 was considered too ambitious by economic circles and certain political groups, as it provided, in particular, for the possibility of compelling the cantons to adopt implementing standards. In retrospect, the text can be described as “visionary” because of its reference to the concept of “sustainable development.” Faced with criticism of the draft and for political reasons, the Federal Councilor in charge of the dossier opted for inaction until 1977, when a new commission of experts presented a revised draft. This new draft incorporated developments in international environmental law that had taken place in the meantime, as well as the criticisms made during the first consultation in 1974, which enabled it to obtain the approval of the various political parties. The LPE was therefore adopted on October 7, 1983, at the end of this tedious process.
10 Art. 1 para. 2 LPE enshrines the principles of prevention and precaution (see II.B and II.C below) and Art. 2 LPE enshrines the “polluter pays” principle (see II.D below), which were subsequently incorporated into Art. 74 para. 2 of the Constitution. Although this federal law is not the only one that gives concrete expression to the constitutional mandate to protect the environment, it plays a central role in this regard due to its cross-cutting and general nature. Legal doctrine also presents the LPE as a kind of “general section” of environmental law.
11 A decade after the process that led to the adoption of the LPE, international environmental law also developed. A new United Nations conference was held in Rio between June 3 and 14, 1992. It resulted in a new Declaration that specifies the commitment of States to environmental protection and invites them to legislate on this subject. The United Nations Framework Convention on Climate Change (UNFCCC) was adopted on this occasion. It reflects the evolution of States' environmental concerns in the face of specific threats such as climate change, biodiversity loss, and desertification. The UNFCCC enshrines the principle of common but differentiated responsibility of actors in global warming and generalizes the principle of causality. It was in light of these various principles that the wording of Art. 24septies aCst. was amended during the total revision of the Federal Constitution in 1999.
12 As part of this 1999 revision of the Constitution, it was decided to amend the text of Art. 24septies aCst. to include a reference to these general principles and to remove references to noise and air pollution, in order to give this provision a comprehensive scope. The Chambers considered the text of the provisions relating to environmental powers to be consensual. Only their reorganisation within the new title of the section “Environment and spatial planning” was the subject of discussion during the sessions. Ultimately, the Chambers agreed that federal environmental powers should take precedence over those relating to spatial planning, as they are a prerequisite for the latter. Art. 24septies aCst. thus became Art. 74 Cst.
13 In May 2018, a federal popular initiative was submitted to amend Art. 74 Cst. by adding a para. 2bis. Entitled “For a Switzerland free of synthetic pesticides,” it aimed to ban the use of this type of pesticide in agriculture. It was rejected at the polls on June 13, 2021, by 60% of the electorate. Considerations related to the risk of higher prices for agricultural products and the desire not to interfere with farmers' choices seem to have been decisive in voters' decisions, even though opposition to the use of pesticides is a widely shared concern among the population, according to polls. Article 74 of the Constitution has therefore remained unenforced since the 1999 revision.
II. Commentary
A. General remarks
14 Article 74 of the Constitution forms the “epicenter” of environmental law in Switzerland. It forms the basis for Swiss constitutional environmental law due to its cross-cutting nature. Its purpose is to guide all environmental policies. It is the counterpart to Article 191 TFEU in European Union law and reflects some general principles of international environmental law (the principles of prevention, precaution and causality).
15 Thus, like Articles 2(2) and 4 of the Constitution and Article 73 of the Constitution, Article 74 of the Constitution emphasizes the need to preserve conditions favorable to life on the planet for living beings and future generations. To this end, it grants the Confederation general competence to address the environment in its various aspects. Articles 75 to 80 of the Constitution specify this mandate in relation to particular aspects of the environment and its components.
16 The responsibility established by Article 74 of the Constitution concerns public authorities. This provision does not mention private actors. However, the latter are expected to take into account the information provided to them regarding the need to protect the environment, in order to encourage them to adopt voluntary behavior in this regard. Public authorities are also empowered to take measures against these private entities, by virtue of the powers assigned to them.
B. Art. 74 para. 1 – Protection against harmful and nuisance effects
17 The first paragraph of Art. 74 Cst. establishes concurrent legislative authority that is not limited to the principles in favor of the Confederation. Cantonal law may therefore remain in force or supplement federal law, provided that the Confederation has not exhausted its authority or reserved it. The means by which the authority intends to fulfill its mandate are not specified in Art. 74 of the Constitution, so that the federal legislature has considerable leeway in this area.
18 This room for maneuver is more limited when it comes to environmental taxes. In this regard, the authority must comply with the requirements imposed in the area of taxation, namely a high degree of precision and a formal law for the introduction of a tax (Art. 127 Cst.). These requirements are more flexible for incentive taxes, which do not involve any specific state consideration or universality. Such taxes may in fact originate from a power such as that enshrined in Art. 74 Cst. Their existence must nevertheless satisfy the requirements of the principle of legality. Therefore, the adoption of taxes such as those provided for in Art. 29 ff. CO2 Act or Art. 32e LPE is permissible in principle, as it constitutes a special-purpose tax, the principles of collection and maximum amounts of which are regulated at the level of the law.
19 The purpose of the mandate granted to the Confederation is to protect human beings and their environment. This scope of application has been specified in Art. 1 LPE, which states that the purpose of this legislation is to protect “humans, animals and plants, their biocoenoses and biotopes against harmful or inconvenient effects, and to conserve natural resources, in particular biological diversity and soil fertility, on a sustainable basis.” Similarly, the concept of harm has been clarified in the LPE, which focuses on harm caused by humans and their installations in the form of pollution (Art. 7 para. 1 LPE). This law is the most important legislative implementation of federal constitutional competence, which is why its main provisions are briefly summarized below.
20 The EPA distinguishes between two types of harm against which measures must be taken: harmful harm and nuisance harm. Harmful damage within the meaning of the LPE refers to “influences that harm human life or physical or mental health or cause damage to the natural environment,” while nuisance damage "is characterized by the fact that it disturbs people in their daily lives without causing them any real harm. [...] This results in an infringement of personality and, by the same token, of the freedom of those affected." Thus, in the case of noise pollution, for example (which does not cause physical harm, but which has been shown to affect the heart rate and cause discomfort when exposed to it for prolonged periods), it will be classified as harmful. This classification means that non-human entities exposed to similar infringements will not be protected in such cases and that any action aimed at limiting infringements that are harmful to an animal population alone will be doomed to failure due to the lack of measurable harm. This distinction is representative of the anthropocentrism that characterizes Swiss environmental law, from which the LPE is no exception.
21 The protection mechanism at the heart of the LPE for achieving its objective is the limitation of damage in two stages (Art. 11 LPE). This mechanism aims to prevent damage by taking action at the point of emission, regardless of existing environmental damage, for example through building regulations. In order to comply with the limit values, an initial measure is taken directly at the point of emission, followed by a second measure at the point where the effects of the emissions occur. Through this mechanism, the federal law gives concrete expression to the general principles of prevention and precaution, as well as the principle of causality—in terms of cost allocation—since the measures must be borne primarily by the emitting facility. Thresholds are therefore set in the form of emission or immission values that must be complied with. In the event of a violation, remediation or protective measures may be required. At the same time, impact studies and appeals by associations are two complementary instruments that also aim to ensure compliance with the constitutional mandate of Art. 74 para. 1 of the Constitution.
22 Due to its primarily technical nature, the LPE contains a number of delegation clauses in favor of the Federal Council. Numerous dependent ordinances therefore supplement the implementation of this law and, a fortiori, the mandate of Art. 74 of the Constitution. This process guarantees a certain degree of adaptability of the law, which can be an advantage. However, it also has the disadvantage of a loss of democratic legitimacy. Ordinances are not the product of the elected legislature, but of the federal administration, and are not subject to referendum or an external consultation procedure similar to that for federal laws. As a result, essential elements relating in particular to permissible concentration limits for substances or pollutants are not subject to public scrutiny. In the area of railway noise, for example, the Federal Council—contrary to its duty to set an example and its delegated mandate of protection—has refrained from enacting immission limits for economic reasons, as remediation would place too great a burden on the state. This illustrates the tensions that can arise between the will of the people and its implementation.
23 Alongside the LPE, other federal laws give concrete expression to the mandate of Art. 74 of the Constitution, such as the CO2 Act and the Genetic Engineering Act, to name but a few. These standards add to the arsenal of environmental protection legislation.
C. Art. 74 para. 2 – The main principles
24 Para. 2 of Art. 74 of the Constitution enshrines three key principles of environmental law, namely prevention (1.), precaution (2.) and causality (3.). All three principles have a cross-cutting and programmatic scope for Swiss environmental law as a whole. All state bodies are required to comply with them. These are principles that impose implementation obligations on the authorities. In the event of a gap or deficiency in protection, litigants may invoke them for interpretative purposes to justify the need for action, even though these principles are often also embodied in infra-constitutional norms with a scope that may be similar.
25 No subjective right can be directly inferred from Article 74 of the Constitution, although the issue has been debated. Case law and legal doctrine consider that the legislature did not intend this to be the case and that it is therefore not possible for individuals to invoke this provision to obtain benefits from the state.
26 In this regard, however, several clarifications are in order. First, it should be noted that the principles enshrined in Art. 74 Cst. must be implemented and that a lack of legislation or implementation may be invoked in connection with other rights in the event of litigation.
27 Secondly, this lack of enshrined subjective rights does not deprive the case law of the European Court of Human Rights on human rights and environmental damage of its effectiveness and applicability. Thus, even in the absence of a fully-fledged “right to a healthy environment” in the Convention or the Constitution, human rights include various components relating to the effects of inadequate environmental protection on individuals, in particular in connection with the rights enshrined in Articles 2, 6, 8, 10, and 11 of the ECHR (right to life, fair trial, right to privacy, and freedom of expression and association). However, in the context of litigation relating to these various rights, the principles of Article 74 of the Constitution have an effect and must be taken into account when assessing compliance with state obligations. Thus, in the case of Verein Klimaseniorinnen Schweiz and others v. Switzerland, the ECtHR examined the positive obligations of the State in relation to climate policy. At the end of its analysis, the ECtHR concluded that Switzerland had violated Articles 6 and 8 of the ECHR by Switzerland, as it had not adopted sufficient greenhouse gas emission reduction targets (no carbon budget or other quantification instrument and no appropriate measures to meet sufficiently precise reduction targets) and had failed to guarantee the applicants' access to justice. In its decision, the ECtHR reiterated that the precautionary principle plays a key role in assessing States' compliance with human rights in the environmental context, giving it a scope that, while not that of an independent subjective right, is intrinsically linked to these other subjective rights.
28 Thirdly, it should also be noted that the Aarhus Convention, ratified by Switzerland on March 3, 2014, provides that access to the courts must be guaranteed in order to establish deficiencies in climate and environmental protection, a right currently linked in doctrine to Art. 74 of the Constitution in the event of a protection gap.
29 Finally, in connection with Art. 74 of the Constitution and the developments just mentioned, a growing part of legal doctrine considers that an unwritten constitutional right of access to the courts in environmental matters should be recognized and linked to Art. 74 Cst., interpreted in the light of the Aarhus Convention, but also Articles 6 and 8 of the ECHR. The purpose of such a right would be to “establish a lack of legislative protection, in the implementation of legislation or in the absence of other remedies in this area.”
30 In view of the above, it should be noted that although Art. 74 of the Constitution does not enshrine any subjective rights, it nevertheless has significant potential in terms of environmental litigation and human rights. Its programmatic scope also remains.
1. The principle of prevention
31 The principle of prevention involves minimizing any harm which, alone or in combination with other factors, could become harmful or inconvenient. As specified in the Message on the new Federal Constitution, it translates the motto “prevention is better than cure” into legal terms ." In the face of various types of pollution, it requires risk reduction measures to be taken at both the planning and implementation stages. A known or certain environmental risk must exist in order for this principle to be invoked, which requires scientific knowledge.
32 In accordance with the principle of prevention, measures may be required in the areas of waste, noise, and the concentration of pollutants. These measures may include the adoption of remediation measures. The principle of prevention is reflected in the two-tier protection mechanism of the LPE, which requires action to be taken first and foremost on emissions from installations. Art. 1 para. 2 LPE also states that “impacts that could become harmful or inconvenient shall be reduced preventively and at an early stage.” This is therefore an obligation to achieve a specific result.
33 The case law of the European Court of Human Rights also recognizes the principle of prevention in similar terms. The conclusions of the Osman decision have been extended to environmental risks over the years and as a European consensus has emerged on the need to protect the environment in relation to other human rights. The principle of prevention has thus been applied in particular to assess violations of Articles 2 or 8 of the ECHR. The ECtHR has also considered that the role of citizens' access to information is essential in preventing environmental damage in the context of dangerous activities, highlighting the potential of this principle in relation to the rights guaranteed by the Aarhus Convention.
2. The precautionary principle
34 This second fundamental principle of environmental law complements the principle of prevention where there is scientific uncertainty about the effects of a substance, facility, or action and state intervention is nevertheless necessary. This principle therefore plays a central role in the areas of new products and technologies. The precautionary principle can be summed up by the Latin adage in dubio pro securitate, which amounts to an invitation to “not be overly optimistic when it comes to protecting people and their environment, and thus prevent damage even if the risks are uncertain.”
35 From a philosophical point of view, according to Dunia Brunner, the rise of this second principle reflects an evolution in the human relationship with science, which is now also understood with its uncertainties and not only as the result of deductive reasoning. Some legal scholars have also emphasized the similarity between this principle and the Aristotelian virtue of prudence, which highlights the human and fallible nature of all science and calls for all living beings and their environment to be considered as a single community with a shared destiny marked by uncertainty.
36 The precautionary principle is one of the general principles of international environmental law. It is found in Article 15 of the Rio Declaration, which states that "to protect the environment, precautionary measures should be taken by States according to their capabilities. 15 of the Rio Declaration, which states that “in order to protect the environment, precautionary measures should be widely applied by States according to their capabilities. Where there is a risk of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing the adoption of effective measures to prevent environmental degradation.” It is also present in the case law of the European Court of Human Rights, where it first appeared in the case of Tatar v. Romania. In that case, the European Court of Human Rights stated that a hypothetical risk may be sufficient to constitute a violation of positive obligations. Many other instruments of international environmental law also refer to precaution in a similar sense.
37 The wording of Art. 74 para. 2 does not explicitly mention precaution. However, there is no longer any doubt that this principle is linked to and included in it. Indeed, the preparatory and legislative work relating to it has always referred to the precautionary principle as one of the fundamental pillars of environmental law enshrined in this provision. It is also enshrined in domestic law in numerous provisions, in particular in Article 11(3) of the Environmental Protection Act, Article 4 of the Nuclear Energy Act and Article 9 of the Law on Epizootic Diseases.
38 The precautionary principle establishes an obligation of means. In practice, its application must be balanced against the principle of proportionality and the public interest. While caution is essential in environmental matters, zero risk is impossible to guarantee. Thus, in order to be admissible, the risk in question must appear plausible and, at a minimum, be based on a rational assessment. In this regard, in recent years, the concept of “planetary boundaries” has redefined the contours of precaution, since exceeding these thresholds can no longer be considered an uncertain risk and this principle is therefore applicable to them. Finally, in addition to the notion of plausibility, for precaution to prevail in a given situation, the intervention of the authority must appear to be necessary and must not disproportionately infringe on other rights. Such a balancing act inevitably leads to tension with regard to rights such as the guarantee of property or economic freedom in particular. Consequently, in the absence of a hierarchy between these guarantees and in the event of conflicts between fundamental rights, other rights could override the application of the precautionary principle in its component as a prerequisite to the right to a healthy environment, even in the presence of a plausible risk, if justified by significant special circumstances.
3. The principle of causality
39 The principle of causality, also known as the “polluter pays” principle, aims to make the cost of environmental protection measures borne by those who cause damage. Its application is intended to "[...] encourage a shift from dangerous and environmentally damaging behavior to behavior that takes cost into account [...] and has the effect of correcting or eliminating distortions of competition insofar as [the internalization of costs] makes cheap but environmentally harmful manufacturing processes more expensive but harmful to the environment, in favor of products manufactured using more expensive but also more environmentally friendly processes." Behind this principle lies the influence of economic theories known as “redistributive taxation”—the cornerstone of which is to highlight the social cost of pollution and the impossibility of relying on simple market self-regulation in this regard—and environmental taxation.
40 In international environmental law, this principle is enshrined in Article 16 of the Rio Declaration. It had already been formulated in 1972 in the OECD Recommendations. In domestic law, the “polluter pays” principle has been implemented in particular in Articles 2 LPE, 32 LPE, 3a of the Water Act (LEaux), 4 of the Air Pollution Control Act (LRaP), and Articles 59 of the Environmental Protection Act (LPE) and 54 of the Water Act (LEaux).
41 For the principle of causality to apply, the measures to be taken must be attributable to a responsible entity. This is the case if it is possible to identify “those who can be blamed for a specific action or omission that caused the damage.” There must then be a causal link between the behavior of that entity and the damage. Finally, the law specifies the extent to which the costs of a measure are payable by a disruptive entity, as well as the means of protection that must be financed by its contribution.
D. Art. 74 para. 3 – Cantonal enforcement
42 Paragraph 3 of Art. 74 of the Constitution explicitly reiterates the general principle of Art. 46 para. 1 of the Constitution, which stipulates that the cantons shall implement federal law in accordance with the Constitution and the law. Paragraph 3 therefore has a declaratory legal significance.
43 As an exception to the above-mentioned general principle, the Confederation has reserved its own enforcement powers in the areas of genetic engineering and waste. In other areas, the Confederation retains a supervisory role over cantonal enforcement. This task is specified in particular in Articles 37 and 38 of the Environmental Protection Act (EPA).
44 In the context of the monitoring carried out, the Confederation does not have specific sanctions at its disposal against cantons that do not adopt the necessary measures or fail to implement them properly. In this regard, some legal scholars criticize a lack of implementation, which is regrettable from the point of view of the effectiveness of environmental law.
III. Conclusion
45 Art. 74 of the Constitution was designed as a provision allowing for broad and preventive action against environmental damage. It therefore has great potential. However, to date, this provision has not fulfilled its initial promise due to shortcomings in its implementation and a lack of political will to adopt binding measures in the sectors with the highest emissions.
46 In light of this situation, we are seeing a myriad of initiatives from civil society to strengthen environmental law. Through their commitment, citizen movements are pressing authorities and other members of society to adopt a more holistic view of the environment. Voices are being raised, for example, to highlight the inadequacy of an approach focused on facilities in the face of the omnipresence of immissions, or the failure to take into account the interests of non-human entities or the need to protect biodiversity. The participation of these movements raises democratic questions that are essential to the development of an emancipatory protection regime for all, such as: “How are technical and ecological policy decisions currently made? By whom? And in whose interests?” Only by addressing these issues can effective solutions that serve the public interest be outlined and the mandate of Article 74 of the Constitution be fully fulfilled.
About the author
Clémence Demay is a doctor of law and a lawyer. She was awarded the Bippert Prize, the Walther Hug Prize, and the Swiss Association for Legal and Social Philosophy Prize for her doctoral thesis entitled “The law and civil disobedience. How should we categorize an unidentified legal object?” Schulthess Geneva/Zurich 2022. After completing her legal internship, she began a research project at the University of Lausanne (UNIL) within the Sustainable Transformation Research Initiative (STRIVE) program in February 2025. She lectures there and continues her research on human rights, the environment, the links between law and society, and strategic litigation. Clémence Demay is a member of FRI – Swiss Institute for Feminist Legal Studies and Gender Law – and the Walras Pareto Center for Interdisciplinary Studies. Her publications can be viewed at the following link: https://orcid.org/0000-0001-7394-3083.
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