The Future is Now: Climate Cases Before the ECtHR

ABSTRACT

This article evaluates the potential role of the European Court of Human Rights in adjudicating cases related to climate change. The Court is currently facing its first four climate applications, and addressing them is more than a routine process of applying existing case law. These cases speak to fundamental questions regarding the Court’s engagement with systemic problems, politically and technically challenging issues, and its own subsidiarity to state decision-making. Looking at recent environmental case law, this article identifies and discusses various possible futures for the Court’s approach to climate cases, including from admissibility, substantive, and remedial perspectives. It also considers the tendencies and factors influencing the Court’s potential response to climate claims. This includes its docket crisis, its evolution towards a ‘procedural turn’, and its approach to the balancing of competing interests and its selection of the appropriate level of scrutiny. We conclude that the Court must contribute to the search for a modus vivendi that permits competing interests to coexist and ensures a liveable future. This is not only a question of ensuring future enjoyment of human rights, but also of safeguarding the Court’s own ability to carry out its role and to thrive into the future.

KEYWORDS:

• climate change
• human rights
• European Court of Human Rights
• European Convention of Human Rights
• environmental human rights
• greenhouse gas emissions
• potential victim status
• future harms
• positive obligations

Introduction

It is by now undeniable that climate change will deeply affect the enjoyment of human rights around the world. Anthropogenic greenhouse gas emissions are already causing changes to global temperatures, weather patterns, and ecosystems,¹ and the world is currently on track to miss the targets set out under the United Nations (UN) Paris Climate Agreement, namely to limit ‘ …  the increase in the global average temperature to well below 2°C above pre-industrial levels’.² A recent report by the Intergovernmental Panel on Climate Change (IPCC) shows that the world’s climate is warming more quickly than anticipated, on course for at least 3 degrees of warming, while the harms caused by warming of only 1.5 degrees Celsius will be severe and potentially irreparable.³

As a result, to quote UN High Commissioner for Human Rights Michelle Bachelet, it seems clear that ‘[t]he world has never seen a threat to human rights of this scope’.⁴ Addressing this threat under human rights law is complex because climate change is caused by the transboundary emissions of many states, and its effects will be unequally distributed around the world. Still, as the effects of climate change continue to manifest, the question is no longer whether human rights law will engage with the climate, but how it will do so.⁵

Human rights bodies are starting to face their first climate cases, with applicants increasingly turning to human rights litigation to fill policy gaps.⁶ The brunt of climate harms may lie in the future, and these cases largely attempt to contest present-day decision-making that will shape that future. Among the bodies concerned is the European Court of Human Rights (ECtHR), which is currently facing its first four climate cases. These applications concern states’ allegedly inadequate efforts to reduce emissions, and allege numerous violations of the European Convention on Human Rights (ECHR). As the Court responds, it has an opportunity to set the course for its own future and for the future enjoyment of human rights by millions of people in Council of Europe member states and around the world. In the context of this special issue on the future of human rights, it is therefore timely and fitting to discuss the question of climate change and the ECtHR. Although there have not yet been any judgments on this topic from the Court, and alternative futures therefore remain possible, this article will set out the possibilities for adapting the Court’s case law to the realities of climate change. This provides a guide for future-proofing ECHR rights, and thus the Court itself, in the face of climate catastrophe, and it shows the range of challenges presented by climate cases. The analysis takes the main admissibility, substantive, and remedial questions relevant to climate cases in turn, reflecting the structure of the Court’s own engagement with cases. While the issues at stake cannot all be covered in depth, the aim here is to provide a roadmap to possible futures, and show the directions in which the Court’s case law could evolve as it faces the unprecedented challenge of climate change.

The analysis proceeds as follows. First, it provides an overview of the issues likely to present stumbling blocks in bringing a climate case to the Court (Part II). This includes admissibility issues (II.A), namely specific questions concerning victim status, extraterritorial jurisdiction, and the exhaustion of domestic remedies, as well as an overall discussion of the degree of flexibility with which the Court can approach admissibility. Part II.B concerns substantive issues, including the range of affected rights and their ability to capture future harms; questions of attribution and shared responsibility; the potential role of the precaution, due diligence, and ‘no harm’ principles; and the Court’s approach to evidence. In the event that a violation of the Convention is found, Part II.C provides an overview of the Court’s approach to remedies, and the ways in which it could deploy the various possibilities in climate cases. Part III contains a synthesis, and concerns avenues for future-proofing the Court against challenges to its functioning, legitimacy, and continued existence. Part IV concludes.

The Court’s Possible Responses to Climate Cases

Today, there are four applications concerning the human rights impacts of climate change pending before the ECtHR.⁷ Each case is distinct, and concerns a different set of facts and rights invoked, meaning that each merits analysis in its own right. At the same time, these four cases altogether raise key questions about the application of the Convention. The Court’s response will shape the future of human rights protection in its member states, as well as the institutional future of the Court. The present section touches on a selection of the key issues that the Court will face as it navigates its first climate applications, and thereby maps certain potential futures for the Court’s case law. These futures are hypothetical, and it is not yet clear how the Court will treat these applications and the issues raised in them. Still, understanding the potential futures now is important: it can help us to understand what is at stake, and to shape responses to climate claims as they emerge.

Admissibility issues

Victim status

One key issue of climate cases before the Court concerns the applicants’ victim status.⁸ The applicants in all four pending cases have alleged, albeit in different forms, a risk of future harm. In other words, to some extent their cases all concern human rights violations that will take place in the future due to inadequate state action. To variable extents, these applicants could accordingly be described as ‘potential’ victims of ECHR violations.⁹ For example, in Verein Klimaseniorinnen and Others v Switzerland, the applicants have alleged that the respondent state’s climate policy is putting them, as elderly women, at risk of health impacts, including death, due to future heat waves caused or exacerbated by climate change.¹⁰ In Duarte Agostinho v Portugal and 32 Other Member States, a group of Portuguese children and young people has made claims about past and future harms caused by climate change, including harms related to forest fires in Portugal.¹¹ In the pending but as yet unnamed Austrian case, the applicant has alleged that he will suffer health harms due to rising temperatures because of his specific medical conditions.¹² And in Greenpeace Nordic, six young climate activists, along with two organisations, have claimed that the Norwegian government’s plans for oil drilling in the Arctic will deprive young people of their future.¹³

Recognising potential victimhood in climate cases, alongside or instead of direct victimhood, means allowing claims about harms that have not yet taken place, and that may never take place in exactly the ways alleged. For example, the applicants in Klimaseniorinnen, who are elderly women, could potentially live out their lives without suffering direct harm from a heat wave. However, in this type of situation, waiting until the harms in question have fully manifested means allowing irreparable harms—including avoidable and to some degree predictable deaths—to happen, and condones the continuation of existing emissions, thereby tolerating even greater harms than those that will occur, for example, at 1.5 or 2 degrees Celsius of average warming. In addition, it means ignoring harms already taking place now, for example the psychological suffering associated with watching the climate crisis unfold, which is better known as ‘climate anxiety’ and particularly affects young people.¹⁴ It has been argued elsewhere that this phenomenon could be construed as a violation of the prohibition of torture and inhuman and degrading treatment and punishment found in Article 3 ECHR.¹⁵

Preventive or protective obligations—that is, obligations to take measures that protect against a given impending or future harm—are a question of substantive law, and will be discussed below. However, there is also a separate question of admissibility here, and it relates to whether the Court will allow claims from ‘potential victims’ of climate harms by finding that they are ‘ …  directly concerned by the situation and have a legitimate personal interest in seeing it brought to an end’.¹⁶ Here the Court walks an occasionally fine line between ensuring human rights protection and allowing actiones populares, meaning public interest litigation that falls outside the scope of the right of individual application in Article 34 ECHR.¹⁷ This is particularly the case because of the congruence between public and individual interests that characterises environmental human rights claims overall.¹⁸

To better understand this, it should be noted that the Court has previously allowed environmental applications that combine public and individual interests, using reasoning that could be replicated in climate cases. For example, in the 2019 Cordella v Italy case, the Court outlined the level of proximity and affectedness required to bring environmental claims to Strasbourg. It adhered to the idea that the Convention does not guarantee the general protection of the environment as such.¹⁹ In other words, applicants can only claim to be victims of Convention violations due to environmental damage where that damage has violated their own rights.²⁰ At the same time, considering evidence that pollution from the steelworks in question was linked to negative health impacts for local populations, the Court held that the ‘ …  pollution inevitably made those exposed to it more vulnerable to various diseases’²¹ without examining whether each individual applicant had suffered a pollution-related pathology. Based on the scientific evidence, it found that the pollution ‘ …  undoubtedly had adverse consequences on the well-being of the applicants concerned’.²² While Cordella has been criticised for failing to identify a structural domestic problem or engage with the Article 2 claim made by the applicants,²³ the Court here demonstrated a willingness to hear environmental claims that transcend restrictive interpretations of victim status.

If the Court chooses to replicate this reasoning in the four pending climate cases, it will likely rely on the scientific evidence, by now plentiful, of the risks to human health and well-being posed by climate change. Of course, the pool of potentially affected individuals is infinitely larger in climate cases than in Cordella, which concerned pollution in a defined region. The Court will need to deal with the scale of this challenge without writing off meritorious claims. Potentially, and as it has done in some environmental cases, it could do so by allowing claims from NGOs representing affected individuals, thereby bundling interests and claims while simultaneously easing applicants’ procedural burden.²⁴ However, the case law on the standing of associations is restrictive²⁵ and occasionally contradictory,²⁶ and the Court may need to revise some of its previous standards to create coherence as it examines the first climate cases.

If the Court does find that the applicants in climate cases have standing, it will be offering protection to applicants who have few other remedies at their disposal.²⁷ This legal avenue for climate claims may be particularly appealing to applicants (and strategic litigants) from within the European Union (EU), because it has emerged that similar protection may not be readily available within the EU system: the CJEU recently declared its ‘People’s Climate Case’ inadmissible because of locus standi requirements, finding that the claimants were not individually concerned by a legislative package of reductions measures because they were not the addressees of those acts.²⁸ Regarding this case, Gerd Winter has written that the CJEU’s ‘Plaumann’ test for standing may end up having the ‘ …  perverse effect that the more serious the damage, and hence the more persons are affected, the less access to courts is provided’.²⁹ This same argument can be applied to rights-based climate litigation overall. The risk is that the scale of the problem, and its resulting seriousness and urgency, may overwhelm (judicial) decision-makers and lead to worse, and not better, protection than that which is already being provided in relation to more manageable issues. At the same time, the fact that the EU system may no longer seem like a viable alternative for climate litigation might shift more attention to the ECtHR, particularly given the binding nature of its judgments, which distinguishes its findings from those of many other human rights bodies.³⁰

There are several potential futures for the Strasbourg Court here. One could be the application of a restrictive approach that equates climate cases to actiones populares, and defers to domestic political action. In this future, the Court deploys a formalistic approach to admissibility and refuses to examine the merits of climate cases. In an alternative future, the Court could show a degree of flexibility, either by clarifying its approach to potential and vicarious victim status, or by simply joining the issue of victim status to the substance of the applicants’ complaints. The latter option has been pursued in other cases, and the complexity of climate change cases speaks for this approach, i.e. for examining victim status together with the merits.³¹

The non-exhaustion problem

An additional hurdle facing climate cases concerns the exhaustion of domestic remedies. In some climate cases, applicants turn directly to human rights bodies without first making use of any domestic remedies. At the Court, this is true of the Duarte Agostinho case.³² In this and other regards, Duarte Agostinho is comparable to another high-profile climate case, namely the Sacchi case recently decided by the UN Committee on the Rights of the Child (CRC).³³ In both of these cases, it was argued that the exhaustion rule is ill-suited to climate claims, representing an unreasonable impediment to time-sensitive and large-scale cases brought against many states. In Duarte Agostinho, the applicants also noted the difficulties they, as children, would face in exhausting the available remedies in the 33 respondent states, as well as pointing to an ‘exceptional need’ for their absolution from exhaustion requirements to facilitate a sufficiently speedy response to their claims and avoid creating a disproportionate financial burden.³⁴

The choice not to exhaust domestic remedies may represent an insurmountable hurdle to the success of some climate cases. The Sacchi communication failed on that very criterion.³⁵ Whether Duarte Agostinho will face the same fate is unclear. It has passed the preliminary admissibility check that precedes the communication of a case at the Court, which may bode well for the applicants. Ultimately, applications that have not been put to a domestic body for the opportunity to redress potential problems put the Court in the place of a court of first instance. This is problematic because it deprives the Court of a domestic assessment of the facts and impinges on the subsidiarity of the Convention system.

Extraterritorial jurisdiction

A third key admissibility issue in climate cases concerns (extra-)territorial jurisdiction. Some of the climate cases currently pending before the Court do not have a predominantly extraterritorial framing. For example, in Klimaseniorinnen, the applicants have claimed that their own home state violated their rights by failing to take adequate measures to curb domestic emissions.³⁶ The same goes for the Austrian or Norwegian cases.³⁷ Yet there are potential extraterritorial elements to most or all climate cases. For example, the Norwegian climate application involves claims about the export of fossil fuels, and the need to conduct an impact assessment concerning exported emissions.³⁸ The extent of this extraterritorial nexus can depend on the facts and framing of a given case, but an extraterritorial element underlies all claims about states’ cross-border impacts on the global climate, which is necessarily a shared resource.

Of the four climate cases pending before the ECtHR, one is most obviously extraterritorial in nature, and it serves to highlight some of the key questions here. This is Duarte Agostinho, which concerns the responsibility of states for transboundary human rights impacts. The applicants in this case, who live in Portugal, have brought claims against 33 high-emitting Council of Europe member states, including their home state, alleging that these states all share responsibility for climate impacts suffered in Portugal. While the Court has considered over 300 environmental cases to date,³⁹ it has never issued findings concerning transboundary environmental harms. As a result, the question of how it would approach jurisdiction in this type of case remains open.

The Court’s overall approach to jurisdiction, based on its much-discussed Banković decision, is largely territorial and centres the requirement of exclusive control and authority by state agents over persons or activities abroad.⁴⁰ This model seems ill-suited to the situation of climate change.⁴¹ At the same time, the Court has previously found that domestic activities with extraterritorial effects may exceptionally engage state responsibility. This can apply where one state exposes an applicant to human rights violations in another,⁴² where this is necessary to preclude states from committing rights violations abroad that they could not commit at home,⁴³ or where the ‘direct and immediate cause’ of the harm concerned took place on the territory of the first state.⁴⁴ The Court is also preoccupied with preventing protection vacuums in the ‘legal space’, or so-called espace juridique, of the ECHR, so in the cumulative territory of the Council of Europe member states.⁴⁵ This means that it might make a distinction between cases such as Duarte Agostinho, which concerns 33 states who are all located in that ‘legal space’, as opposed to cases that involve third states.⁴⁶

As it is now being confronted with transboundary environmental harms for the first time, the Court may seek inspiration in domestic judgments on climate change and apply a comparative methodology. Inspiration in this context denotes judicial dialogue, which can take the form of a European consensus exercise⁴⁷ or see domestic judgments reflected in the Court’s reasoning.⁴⁸ The Strasbourg judges’ possible sources of inspiration are steadily growing in number, both within and outside the Convention’s legal space. Some cases, like Klimaseniorinnen, make it relatively straightforward for the Court to affirm territorial jurisdiction, as long as it accepts that a share in contributing to climate change through domestic emissions represents a share in responsibility. In others, questions beyond the transboundary impacts of domestic emissions will likely arise. These could concern the effects of emissions taking place abroad but attributable in some way to a given member state, for example through trade relationships or the activities of transnational corporations headquartered in its territory.

The question of extraterritorial jurisdiction is complex, and it is one in which the Court’s willingness to display flexibility and clarify convoluted existing standards will play a key role. The issue of extraterritoriality will accordingly be picked up again in the next section, as an example for examining the Court’s overall flexibility on admissibility issues.

The scope of the Court’s flexibility on admissibility issues

All three issues emphasised above—victim status, extraterritorial jurisdiction, and the exhaustion rule—relate to questions of admissibility, and not to material law. It is unclear how far the Court can go in departing from its established case law in these regards. This is a question of whether the Court’s interpretation of admissibility requirements can be as dynamic and as evolutive as its understanding of material rights has, in many instances, proven to be, and of whether the Court is bound by the consent and original intent of the states parties to the Convention.

Does the Court in fact have the same degree of freedom in interpreting admissibility criteria as it does in interpreting the substance of ECHR rights? Particularly when it comes to the issue of jurisdiction, this is a question of perspective and interpretative ethic. If the focus is originalist, and emphasis is placed on the ECHR as an international treaty, and thus on the intentions of states regarding territorial jurisdiction when they signed it, expansive understandings of extraterritorial jurisdiction may go beyond what can reasonably be seen to lie within the Court’s powers of interpretation. This perspective favours a restrictive approach to territorial jurisdiction, one ‘ …  defined and limited by the sovereign territorial rights of the other relevant states’,⁴⁹ in the sense perhaps of avoiding over-expansive ‘human rights imperialism’.⁵⁰ To use Marko Milanovic’s framing, it prioritises practicability in balancing universality and effectiveness.⁵¹

How the Court balances these values is far from settled. The extraterritorial application of the Convention is a divisive issue, and the Court’s account of it is both variable and contested.⁵² Since its judgment in Banković v Belgium,⁵³ it has largely displayed two models of jurisdiction: one based on territorial control, and one based on personal control.⁵⁴ However, the Court’s extraterritoriality case law is considered ‘idiosyncratic’ and ‘doctrinally incoherent’,⁵⁵ and Lea Raible notes that each new relevant judgment adds ‘ …  another layer of confusion or line of case-law’.⁵⁶ This can be traced to the fact that Article 1 ECHR, with its jurisdictional applicability clause and lack of textual clarity, not only permits but requires the Convention’s interpreters to determine the scope of its territorial applicability.⁵⁷ In other words, the interpretative task at stake goes beyond the straightforward application of public international law’s classic interpretive standards.⁵⁸

How, then, are we to go about determining the Convention’s territorial scope in the context of climate change? Does the Court possess the flexibility to find that the extraterritorial effects of greenhouse gas emissions fall under its territorial jurisdiction? Scholars and international human rights bodies alike have argued for the extraterritorial application of human rights treaties in the context of climate action.⁵⁹ Among others, the Inter-American Court of Human Rights has laid the groundwork for the exceptional extraterritorial application of human rights to climate harms.⁶⁰ By contrast, Benoit Mayer has argued against expansive extraterritorial human rights obligations to fight climate change, considering that they would mean ‘ …  betraying the text, and the object and purpose, of human rights treaties, and using them as a Trojan horse at the service of extraneous objectives’.⁶¹

To counter Mayer’s account, it can be argued that a conservative approach to extraterritorial jurisdiction fails to adapt human rights law to the new realities and challenges posed by climate change—a claim that can be expanded to cover the approach to any admissibility issue—and fails to respond to the fact that some states are more responsible for climate change-related harms than others. To fill this gap, the Court does not want for suggested models for extraterritorial jurisdiction. For example, to Violeta Lax-Moreno, identifying the Convention’s territorial scope is a question of looking at situational control, premised on the exercise of public powers.⁶² By contrast, Conall Mallory argues that, to reflect the universality of human rights, the Court must cease its halting and ad hoc expansion of the territorial scope of the ECHR, and shift considerations about feasibility and available resources from jurisdictional decision-making to the merits of a case.⁶³ In other words, universality is one source of normative guidance for the interpretation of Article 1 ECHR.

The focus on universality has its discontents,⁶⁴ and alternative sources of normative guidance are thinkable as well. For example, to Lea Raible, territorial jurisdiction is a question of power, and power, in turn, means the ability to induce ‘future states of the world’.⁶⁵ Taking up Raible’s idea of territorial jurisdiction as power, we can conceive of an approach to extraterritorial jurisdiction that is capable of capturing the power to control the future state of the global climate through greenhouse gas emissions. After all, states’ emissions will determine our planet’s future not only in ecosystemic terms, but also in terms of the enjoyment of human rights. We can expand here on the international legal principles concerning cross-border pollution, and the idea that ‘ …  no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another’.⁶⁶

While it is somewhat difficult to make the case for a progressive or living instrument interpretation of the Court’s admissibility argumentation, that does not necessarily mandate a static or originalist interpretation. An object-and-purpose-based approach can help to interpret the Convention in a realistic, practicable way, but other avenues are also possible. For example, the Court has used applicants’ vulnerability to tailor admissibility criteria in the past.⁶⁷ This kind of approach, with its inherently ad hoc and context-dependent nature, is unlikely to resolve the criticisms of the Court’s existing approach to extraterritorial jurisdiction, but it may allow applicants in individual cases to successfully bring their cases to the Court. Another approach, chosen by Margaretha Wewerinke-Singh in discussing the identification of victims from a remedial perspective, is to emphasise the principle of in dubio pro libertate et dignitate.⁶⁸ Overall, it appears possible that the Court could shape admissibility requirements in a way that facilitates climate change litigation.

The Court’s degree of interpretative flexibility has been painted with a broad brush in the present section. The example of territorial jurisdiction served to highlight the interpretative ethic at stake. It should be noted, however, that purely formal questions of admissibility—such as time limits—are difficult to compare with the more fundamental question of the Convention’s applicability in a given territorial space. A coherent account of the extraterritorial applicability of the ECHR seems long overdue, as is a revision of the approach to certain other admissibility issues, and climate cases may give the Court an opportunity to take up this challenge. This means understanding that while the Court’s living instrument approach may not be entirely appropriate in this context, the Court does have a degree of flexibility.

Substantive issues

Affected rights and future harms

The Court’s approach to the substance of environmental claims has been lamented as excessively procedural and individualistic in the past, while the fact that here is still no explicit right to a healthy environment under the Convention has been discussed as an unfortunate but surmountable hurdle to climate litigation.⁶⁹ Yet climate change does have the potential to impact a wide range of rights under the Convention. While Articles 2 and 8 ECHR (the right to life and the right to respect for private and family life, respectively) are most often invoked in this context, a wide range of claims can be made under various ECHR rights. These include claims about the prohibition of torture and inhuman and degrading treatment (Article 3 ECHR),⁷⁰ about the prohibition of discrimination (Article 14 ECHR),⁷¹ and about the rights to a fair trial and to an effective remedy (Articles 6 and 13 ECHR).⁷² In particular, cases alleging prospective harms—impacts that, at the time of the Court’s assessment, still lie entirely or partially in the future—will raise specific challenges. The following focuses on these particular issues, and largely elides past harms stemming from climate change, which does not mean that there are no issues worth discussing in that regard.⁷³

The Court’s environmental case law shows that certain risks require preventative action by the state to deter future harms related to dangerous activities.⁷⁴ These obligations do not fully reflect the preventive or precautionary principles of international environmental law.⁷⁵ For example, Jasper Krommendijk has noted that ‘ …  the ECtHR does not strictly adhere to the precautionary principle and applies a high threshold of potential adverse effects’.⁷⁶ Indeed, proving that environmental damage has caused a specific health impact or risk is often difficult. For example, in Smaltini v Italy, which concerned the same infamous steelworks as the Cordella case, the applicant unsuccessfully sought recognition of the fact that pollution from the steelworks had led to her cancer diagnosis.⁷⁷ The Court may be reluctant to make that type of pronouncement, but has shown that it is willing to find that the combination of proven health risks and a lack of diligent preventative state action has violated the Convention.⁷⁸ Simultaneously, scientific uncertainty may lead the Court to ‘minimise’ violations. In Cordella, it was willing to consider a violation of Article 8, but not one of Article 2: although both rights were invoked by the applicants, the Court considered it ‘ …  appropriate to examine the applicants’ allegations solely from the perspective of Article 8’.⁷⁹ This blurs the lines between Articles 2 and 8. Absorbing Article 8 into the more severe right to life is an understandable choice serving the interests of procedural economy.⁸⁰ However, allowing Article 8 to absorb Article 2 claims has rightly been criticised as a failure to deploy the stricter protections of the right to life, its resistance to justified interference, and its procedural obligations.⁸¹

Where there is abundant proof of the risk of future harm available on the national level, the Court may defer to this evidence, but the absence of domestic studies clearly documenting the existence of a serious danger to health, or even the existence of studies documenting the lack of such a risk, does not preclude a claim.⁸² Where there is extensive scientific evidence documenting the risk of harm, the Court may use this to find a causal link between environmental harm and health impacts.⁸³ For example, in Cordella, the Court used scientific evidence to find that the pollution in question had endangered the health of the applicants and, more generally, of the whole local population.⁸⁴

Cordella builds on previous findings that the positive obligations under the Convention require states to take ‘preventative measures’ to safeguard the right to life. In the context of dangerous activities, the positive obligations under Articles 2 and 8 ECHR largely overlap in scope.⁸⁵ As the Court held in Öneryildiz, this ‘ …  entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life’.⁸⁶ In the context of dangerous industrial activities, it means that they must ‘ …  govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks’, including by ensuring access to information.⁸⁷ These obligations are part of the ‘ …  positive duty to take reasonable and appropriate measures to secure an applicant’s rights’, as recognised in early environmental cases such as López Ostra v Spain,⁸⁸ Powell and Rayner v the United Kingdom,⁸⁹ and more recently Di Sarno and Others v Italy.⁹⁰

Climate cases could potentially evoke the application of these same standards.⁹¹ In addition, several other claims are possible even without clear proof that climate change is the exclusive cause of a physical harm. For example, issues of inter-generational justice might be relevant for the prohibition of discrimination in Article 14 ECHR. In the pending Norwegian case, arguments have been made under Article 14 about the limited ability of young people to participate in climate-related decision-making, which has been invoked along with the impacts of climate change on the culture, land, and resources of the Sami indigenous people.⁹² However, the prospects of these claims are limited by the fact that, when several Convention rights are at stake in a given case, the Court commonly decides that it is not necessary to examine Article 14.⁹³

Furthermore, applicants in climate cases can argue that their procedural rights have been violated, for example because domestic remedies are inadequate or too slow, even if a claim about physical harm is difficult to substantiate.⁹⁴ The impact of this kind of finding on the struggle for climate action is, however, likely to be more limited than a finding that states are responsible for climate harms. It might also be possible to bring claims about the rights of future generations in their own right, even beyond the auspices of Article 14 ECHR. However, the rights of future generations, with their unknowable preferences, the uncertainty at stake, and the procedural hurdles concerned, should prove difficult to claim under current Convention case law.⁹⁵ Still, the whole Convention is future-oriented in the sense of ensuring the ‘ …  maintenance and further realization of Human Rights’,⁹⁶ and these types of claims should perhaps not be written off entirely.

Overall, claims about impending or future harms facing those living today are at least possible under the Convention. States have preventive and protective obligations concerning certain types of harms, especially where dangerous activities such as industrial emissions are concerned. Thus, the Court has clearly established that states must safeguard against harms to life and limb under Articles 2, 3, and 8 ECHR.⁹⁷ These positive obligations apply to Convention violations of which the state ‘knew or ought to have known’.⁹⁸ Where there is a foreseeable risk to life, the authorities must accordingly protect against its manifestation by establishing an appropriate and deterrent legislative and administrative framework.⁹⁹

Attribution and shared responsibility

Like all climate cases, the four climate applications pending before the Court raise questions of the shared responsibility of multiple states and of attributing responsibility to individual states.¹⁰⁰ Extraterritorial jurisdiction has already been discussed above; as the Court held in Georgia v Russia (II), jurisdiction is an admissibility issue, while attribution is a merits issue.¹⁰¹ In other words, while a jurisdiction test concerns the applicability of the ECHR in territorial and other terms, an attribution test is concerned with determining who should be held responsible for a given conduct. In this regard, the Articles on the Responsibility of States for Internationally Wrongful Acts, which the Court has previously applied,¹⁰² define state responsibility as the attribution to the state of conduct (in the form of an act or omission) that breaches that state’s international obligations.¹⁰³ An attribution test is applied when a variety of actors are involved in the relevant events, and it serves to clarify which actor(s) should be held responsible for a given rights violation.

The absence of sole responsibility, i.e. the fact that a given harm is partially attributable to another state, need not preclude responsibility under the Convention,¹⁰⁴ nor under international law overall.¹⁰⁵ The fact that emissions by any one given state are difficult to causally link with climate change, or a given specific climate change-related harm, need not thwart successful claims in this context. Climate change may be a ‘death of a thousand cuts’ that is difficult to attribute to any one state’s emissions, but a cumulative assessment of these emissions shows that while direct and exclusive causality is difficult to establish, it may simply be an inappropriate standard in these types of situations.¹⁰⁶ This is particularly true if rights are to be practically and effectively protected. At the same time, sharing responsibility can render it more diffuse, thereby creating accountability gaps.¹⁰⁷ The Court should therefore be wary of ‘drop in the ocean’¹⁰⁸ argumentation. After all, climate-related complaints derive from the alleged acts and omissions of individual member states. How the Court will respond to this reality is a matter for speculation. For present purposes, it is simply noted that the multi-actor causation of climate change need not necessarily preclude the individual responsibility of states if understood as a question of shared responsibility.

The precaution, due diligence, and ‘no harm’ principles

In assessing the substance of climate cases, the Court may allow itself to be guided by the principles of international environmental law. In the past it has accordingly referred to the principles of precaution or due diligence.¹⁰⁹ For example, in Tătar v Romania, the Court noted the importance of the precautionary principle,¹¹⁰ and in Cordella, it applied a due diligence standard.¹¹¹ These references are overall still very rare, however, as are for example references to the Aarhus Convention,¹¹² and further clarification is needed to understand what the Convention requires from states in this context.

As the Court concretises these standards, a useful concept could be that of ‘no harm’ (sic utere tuo ut alienum non laedas).¹¹³ According to this principle of international environmental law, states must refrain from conduct that inflicts damage on foreign territory, including another states’ population or property.¹¹⁴ The International Court of Justice has, in the past, applied the ‘no harm’ principle to the environment,¹¹⁵ and it is also included in the 1992 Rio Declaration¹¹⁶ and the 2001 ILC Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities.¹¹⁷ It is not a human rights principle, but rather stems from respect for the equal sovereignty of states.¹¹⁸ To date, the Court has not elaborated on the ‘no harm’ principle. Still, the due diligence it entails is relevant here, as is the absence of a need to prove fault or intent, and the understanding that the space beyond a state’s borders, be it the territory of another state or the global commons, is not a vacuum into which pollution disappears.¹¹⁹

The Court’s approach to evidence

The above has already touched on the treatment of scientific evidence in environmental cases, but further comment on the Court’s treatment of evidence are in order here. In its environmental case law, in addition to its willingness to accept the existence of risks of harm where there is clear scientific evidence to that effect, the Court is willing to accept violations of the Convention in environmental cases where domestic standards such as maximum emissions values have been exceeded. For example, it has held that ‘ …  noise pressure significantly above statutory levels, unresponded to by appropriate State measures, may as such amount to a violation of Article 8 of the Convention’.¹²⁰ In other words, where domestic environmental standards have not been complied with, the Court can take this as a starting point for finding a Convention violation, without having to evaluate the scientific evidence concerning the appropriateness of those standards in detail. The respondent state’s failure to abide by its own environmental standards represents a strong indication that it has also failed to comply with its Convention obligations.

When it comes to the question of evidence and of establishing factual matters, climate cases hold in store additional challenges for the Court. Just as it is difficult for applicants to prepare complex climate cases to short deadlines, these cases present the Court itself with evidentiary difficulties. For example, in Duarte Agostinho, because there were no domestic proceedings in any of the respondent states preceding the application to Strasbourg, no domestic court had previously established the facts or evaluated the available evidence, providing the Court with little basis for its assessment. Still, and despite its lack of specific expertise in this regard, the Court has shown that it can draw its own conclusions from scientific evidence in environmental cases.¹²¹

Given the scale of the challenge and the reality that the four climate cases currently pending before the Court are unlikely to be its last, it may be necessary for the Court to acquire expertise that will allow it to more fully engage with the relevant climate science. This might take the form of third-party interventions, of conferences or research visits at the Court, or of institutional cooperation with climate scientists. However, it could also mean creating a special research department within the Court, perhaps with dedicated Registry lawyers focusing on environmental issues. Expertise on environmental law is already present within the Court,¹²² but expanding on this and especially ensuring that the Court can properly weigh the scientific evidence before it could be crucial for an adequate response to climate cases.

In this regard, it must be noted that there are structural weaknesses to the way in which international courts, the ECtHR among them, approach fact-finding and evidence.¹²³ At the ICJ, Judges Al-Khasawneh and Simma argued in their separate opinion in the Pulp Mills case that the Court’s treatment of scientific evidence was flawed, that it was not in a position to assess scientific evidence, and that its traditional methods of fact-finding were inadequate for dealing with scientifically complex and fact-intensive cases.¹²⁴ In that case, the ICJ had found that there was insufficient evidence to prove Uruguay’s alleged failure to comply with a treaty obligation to protect a river ecosystem and human health.¹²⁵ While the ICJ’s treatment of evidence has since been the subject of scholarly attention,¹²⁶ less attention has been paid to the evidentiary regime of the ECtHR. Here, weighing the evidence in climate cases might also, as the Human Rights Centre of Ghent University argued in its third party intervention in Klimaseniorinnen, mean amending the Court’s approach to evidence to substitute the need for scientific certainty with an application of the precautionary principle.¹²⁷ Elsewhere, it has been shown that the precautionary principle, and in particular a precautionary reversal of the burden of proof, can be accommodated within evidentiary regimes to allow international courts to adjudicate environmental cases.¹²⁸ It has been argued that this type of approach would ensure access to justice and procedural fairness.¹²⁹ And, unlike at the ICJ,¹³⁰ reversals of the burden of proof and a reliance on presumptions are deeply embedded in the Strasbourg case law,¹³¹ although some degree of involvement with expert evidence is inevitable in cases of this type.

Evaluation of the Court’s substantive futures

The substantive futures of Convention rights in climate cases must be considered in light of the Court’s role. According to the Court itself, that role is to be ‘the conscience of Europe’.¹³² Assuming that this description is linked to its ability to shape Europe’s ‘legal and social fabric’¹³³ in the course of its work as a supervisory body, the question here is to what extent the Court can shape that fabric to bring about an adequate and timely response to climate change. As the above has shown, there are no insurmountable barriers to finding Convention violations related to climate change, or more precisely for finding that the absence of adequate measures to protect human rights by combatting climate change has violated the Convention. But such a finding is by no means certain. Particularly given the political, scientific, and economic complexity of adequately responding to climate change, the Court may choose to emphasise its subsidiary role and defer to states’ decision-making in this context.

In this regard, the Swiss Government argued in Klimaseniorinnen that it should be granted an ‘ample’ margin of appreciation given the difficult social and technical questions at stake in the case.¹³⁴ The width of the state’s margin of appreciation, and the Court’s deference, varies situationally. For example, when it comes to the domestic evaluation of evidence, the Court regularly defers to better-placed local assessments.¹³⁵ When there has been a well-reasoned domestic decision-making process, the Court likewise defers to domestic assessments.¹³⁶ A distinction is to be made, of course, between the assessment of domestic decision-making and the application of the ECHR to that decision-making.

Here, the issue is determining the standard of scrutiny that the Court is willing to apply to climate cases. The various possibilities represent different lenses allowing the Court to look at a case more or less closely. While the lens chosen to scrutinise a right to property case will be less sharp,¹³⁷ right to life cases under Article 2 ECHR require a closer look and thus a sharper lens.¹³⁸ It is not yet clear where climate cases will fall on this spectrum. A purely deferential approach is certainly not appropriate to the scale of climate change as a threat, but the Court should simultaneously beware of overstepping its role. If climate cases are predominantly assessed under Article 8 ECHR, as many environmental cases before the Court have been so far, then the level of scrutiny is likely to fall somewhere in the middle. This is another reason why the rights invoked and considered can make a difference for the outcome of climate cases.

Even where states have a wide margin of appreciation, this must go hand in hand with the European supervision provided by the Court.¹³⁹ The Court’s role as ‘Europe’s conscience’ would be imperilled were it to abdicate its supervisory function in cases concerning climate change, especially given the problem’s scale and potential to impact human rights.¹⁴⁰ The Court supervises the protection of human rights in 47 countries, among them many high emitters, meaning that it can have a real impact on efforts to address climate change. While cases concerning this complex global phenomenon, with its difficult balances and evidentiary quandaries, will require collaboration with domestic adjudicators and policy-makers, leaving it entirely to the appreciation of states—which, as the available metrics unequivocally show, have so far failed to take sufficient climate action¹⁴¹—would imperil the long-term credibility of the Court.

The Court’s approach to remedies

The Court must come to terms with the fact that climate change can potentially affect a vast pool of applicants. Provided that it finds Convention violations in climate cases, it will need to develop an appropriate approach to remedies.¹⁴² Given the scale of the problem, i.e. the systemic nature and far-reaching causes and effects of climate change, this could mean deploying the pilot judgment procedure, or ordering general measures outside that procedure. This would be a clear step towards giving so-called ‘impact cases’ a real practical impact.¹⁴³ In doing so, the Court could frame its findings expansively, so that they apply not only the applicants involved in the concrete case, but to the entire population of the affected region. In Cordella, the Court noted the existence of ‘ …  a situation of environmental pollution endangering the health of the applicants and, more generally, that of the whole of the population residing in the areas at risk’.¹⁴⁴ Similar findings are possible regarding climate change, and while this may set off alarm bells at the Court in terms of its potential impact on the Court’s case load and docket, it may also serve to underscore the urgency of measures and empower individuals to seek change through domestic processes. The complexity of the issue may also mean that the Court decides not to order general measures, and instead leave the choice of appropriate action to the domestic authorities, under the supervision of the Committee of Ministers. Still, like in Cordella, it may choose to make some indication to states about what is expected of them, as a type of obiter dictum to its remedial orders.¹⁴⁵

One key question is whether the Court will order states to adhere to the targets set out in the Paris Climate Agreement, which was adopted at the Paris climate conference (COP21) in 2015, and sets out a global framework to limit global warming to well below 2°C.¹⁴⁶ In the past, the Court has used both hard law and soft law sources of international law to fill gaps in the text of the Convention and to develop the Convention progressively and contextually.¹⁴⁷ While it is within the remit of possibility that the Court will rely on the Paris Agreement in this way, it should be noted that the Agreement constitutes a combination of harder procedural provisions and softer substantive commitments,¹⁴⁸ that there is potential for both conflicts and synergies with human rights obligations,¹⁴⁹ and that questions remain about holding states accountable under it and about the climate justice implications of issues such as loss and damage and establishing states’ ‘fair shares’.¹⁵⁰ Still, this does not preclude the Court from taking the Paris Agreement into consideration and even ordering states to adhere to the targets worked out under the auspices of this system.

Future-Proofing the Court

Climate cases are certain to test the Court’s role. Given that states are currently failing to reduce emissions in line with what is required to avoid climate catastrophe, the Court’s future will be interlinked with climate change in any event—whether human rights are successfully mobilised to avert harms, or, more likely, because these harms are not averted, causing human rights impacts. Future-proofing the Court involves thinking about its response to the climate crisis in individual cases. But it also involves thinking more institutionally, i.e. in terms of the Court’s role and, in some regards, in extra-legal or strategic terms.

Climate change cases will be ‘hard cases’ for the Court because they push the boundaries of its capacities in terms of scientific expertise, docket, and deference. As Kanstantsin Dzehtsiarou has noted, ‘ …  decision-making in “hard cases” is a product of interaction between legal and non-legal considerations’.¹⁵¹ The latter are often not explicitly acknowledged in the Court’s decision-making, but their contours may be visible, especially in judges’ separate opinions. That is not to say that strategic considerations have no place in the Court’s work. Some, like its response to its own docket crisis and the overwhelming number of cases pending before it, are necessary to ensure that the Court can continue to function and offer redress. This is a crucial element of making the Court sustainable for the future. But it also means that the Court is very restrictive in some cases, to the detriment of applicants.

The sheer scale of climate change, the nature of its causation, and the severity of its potential impacts mean that it may well exacerbate current tensions, both in terms of the Court’s docket and in other ways. At the same time, it is precisely the serious and extensive nature of the threat that makes climate cases ‘impact cases’ in terms of the Court’s priority policy, meaning that they must be taken particularly seriously in order to ensure a ‘Court that matters’.¹⁵²

As the Court grapples with these cases, it will be faced with the existence of competing interests, including economic interests, whether framed as the general interest in economic prosperity or as a question of individual rights. If economic interests and climate protection are both understood as key public interests, the Court may be hard-pressed to prioritise one over the other without rendering itself subject to allegations of interference in domestic political decision-making. Economic interests should not be bulldozed by climate cases, nor vice versa. In any event, climate cases will require the Court to conduct a complex balancing exercise, making it particularly relevant to recall concerns about the Court’s ‘procedural turn’, which replaces substantive analysis with procedural checks in certain cases.¹⁵³ In order to ensure the effective protection of rights, presumptions of Convention compliance must remain rebuttable, and considerations about the quality of domestic procedures must also retain a degree of normative assessment.¹⁵⁴ Here the Court would do well to recall its own finding that expecting individuals to accept serious environmental and health harms in the name of societal interests, including corporate thriving, is not compatible with the Convention.¹⁵⁵ What is needed from the Court is not total deference, but a contribution to the search for a modus vivendi—that is, a way for competing interests to coexist.

The need to find such a modus vivendi is particularly acute given that recent developments, such as the decision of the Council of Europe Parliamentary Assembly to recommend the creation of a new Protocol to the ECHR safeguarding the right to a healthy environment,¹⁵⁶ show that environmental issues, and specifically climate change, will be a permanent fixture of Convention law. The Court has a key role to play here. That role should be informed by the knowledge that developed countries, many or all Council of Europe member states among them, have historically been major contributors of greenhouse gases to the world’s atmosphere.¹⁵⁷ This history, which continues to the present day, speaks for the fact that Europe—and its institutions—must play a leading role in responding to climate change.

Conclusion

The Court’s first four climate cases raise a number of complex questions. For one, they present challenges to accepted notions of the Court’s admissibility criteria and of substantive rights. These range from the issue of proving victim status and territorial jurisdiction, to the substance of rights and the Court’s treatment of scientific evidence. In addition, if Convention violations are found in any of these cases, they will raise questions concerning the appropriate remedies. Because these cases raise so many questions, they also create uncertainty: it is not yet clear how the Court will respond to climate change, and the future holds various possibilities, some of which have been discussed above. However, whatever the outcome of these cases may be, it is no longer possible to imagine a future in which the Court is exempted from engaging with the topic of climate change.

Overall, the issue of climate change highlights fundamental questions about the Court’s role. This article has discussed various tendencies that will likely influence the Court’s response to climate claims. These include its docket crisis, its penchant for proceduralism, its approach to the balancing of competing interests, and its selection of the appropriate level of scrutiny. Such tendencies must be taken into consideration to ensure a Court that can be part of the ‘future of human rights’. What is needed from the Court here, it is argued, is not total deference but a contribution to the search for a modus vivendi, meaning a way to permit competing interests to coexist and to ensure a liveable future. This is not only a question of ensuring the enjoyment of human rights, but also of safeguarding the Court’s own ability to carry out its role and to thrive into the future. The time to engage with the challenges posed by climate cases, and to ensure this future, is now.

Additional information

Funding

This work was supported by the CRRP research project, which is funded by a bequest from the late Dr. iur. Dr. h.c. Ursula Brunner [Grant number N/A].

Notes

1 For a thorough review of the scientific evidence, see Intergovernmental Panel on Climate Change, ‘Climate Change 2021: The Physical Science Basis’, AR6 report (7 August 2021) <www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_Full_Report.pdf> accessed 4 April 2022.

2 Paris Climate Agreement (adopted 12 December 2015, entered into force 4 November 2016) UNTS 3156, Article 2(1)(a); United Nations Environment Programme (UNEP), ‘Emissions Gap Report 2020’ (2020) xxi.

3 IPCC, AR6 report (n 1).

4 Opening statement by UN High Commissioner for Human Rights Michelle Bachelet at the 42nd session of the Human Rights Council, 9 September 2019.

5 UN Special Rapporteurs David R Boyd and Marcos A Orellana, Third-party intervention in Duarte Agostinho and Others v Portugal and 32 Others <https://ln.sync.com/dl/383819540/pwjktn7x-uy5x8334-sib42xf2-pk8wkc9b/view/doc/5917189570010> accessed 4 April 2022, para 17.

6 See Annalisa Savaresi, ‘Human Rights and the Impacts of Climate Change: Revisiting the Assumptions’ (2021) 11 (1) Oñati Socio-Legal Series 231.

7 Duarte Agostinho and Others v Portugal and Others App no 39371/20 (ECHR, Communicated Case, 13 November 2020); Verein Klimaseniorinnen Schweiz and Others v Switzerland App no 53600/20 (ECHR, Communicated Case, 17 March 2021); X v Austria, a yet-uncommunicated case brought against Austria on 25 March 2021 concerning the exacerbation of the applicant’s chronic illness by climate change-related warming <www.michaelakroemer.com/wp-content/uploads/2021/04/rechtsanwaeltin-michaela-kroemer-klimaklage-petition.pdf> accessed 4 April 2022; and Greenpeace Nordic and Others v Norway App no 34068/21 (ECHR, Communicated Case, 16 December 2021).

8 Jasper Krommendijk, ‘Beyond Urgenda: The Role of the ECHR and Judgments of the ECtHR in Dutch Environmental and Climate Litigation’ [2021] RECIEL 1.

9 On potential victimhood, see for example Klass and Others v Germany (1978) 2 EHRR 214; Open Door and Dublin Well Woman v Ireland (1992) 14 EHRR 131.

10 Klimaseniorinnen (n 7).

11 Duarte Agostinho (n 7).

12 X v Austria (n 7).

13 Greenpeace Nordic (n 7).

14 Elizabeth Marks and others, ‘Young People’s Voices on Climate Anxiety, Government Betrayal and Moral Injury: A Global Phenomenon’ (forthcoming 2022) The Lancet. See also Natasa Mavronicola, ‘The Future is a Foreign Country: Rethinking State Behaviour on Climate Change as Ill-Treatment’ (University of Birmingham New Approaches, 2021) <www.birmingham.ac.uk/research/climate/climate-publications/new-approaches/the-future-is-a-foreign-country-rethinking-state-behaviour-on-climate-change-as-ill-treatment.aspx> accessed 4 April 2022.

15 Mavronicola (n 14).

16 Vallianatos and Others v Greece (2014) 59 EHRR 12, para 49.

17 Di Sarno et Autres c Italie App no 30765/08 (ECHR, 10 January 2012) (in the French version, as this paragraph was omitted from the English version of the judgment), para 81; Cordella and Others v Italy [2019] ECHR 78, para 100. On this, see Paul Clark, Gerry Liston and Ioannis Kalpouzos, ‘Climate Change and the European Court of Human Rights: The Portuguese Youth Case’ (EJIL:Talk! Blog, 6 October 2020) <www.ejiltalk.org/climate-change-and-the-european-court-of-human-rights-the-portuguese-youth-case/> accessed 4 April 2022.

18 Implying the existence of a public interest, see Tătar v Romania App no 67021/01 (ECHR, 27 January 2009) para 124, and Di Sarno (n 17) para 81, where the Court noted that ‘ …  the applicants complained of a situation affecting the entire population of Campania’, but that this was nonetheless such as to ‘ …  directly affect their own well-being’ (translation by the authors).

19 Cordella (n 17) para 100. See also Kyrtatos v Greece ECHR 2003-VI (extracts), para 52.

20 Cordella (n 17) para 101, citing Fadeyeva v Russia (2007) 45 EHRR 10, para 88.

21 Cordella (n 17) para 105, translation by the authors.

22  Ibid. para 107, translation by the authors.

23 Roberta Greco, ‘Cordella et al v Italy and the Effectiveness of Human Rights Law Remedies in Cases of Environmental Pollution’ (2020) 29 RECIEL 491.

24 The Court granted victim status to the applicant associations in Gorraiz Lizarraga and Others v Spain (2007) 45 EHRR 45, Collectif national d’information et d’opposition à l’usine Melox – Collectif stop Melox et Mox v France App no 75218/01 (ECHR, 12 June 2007), and L’Erablière ASBL v Belgium Reports 2009 (extracts). Overall, see Helen Keller and Abigail Pershing, ‘Climate Change in Court: Overcoming Procedural Hurdles in Transboundary Environmental Cases’ (2021) 3(1) European Convention on Human Rights Law Review 23.

25 Natalia Kobylarz, ‘The European Court of Human Rights: An Underrated Forum for Environmental Litigation’ in Helle Tegner Anker and Birgitte Egelund Olsen (eds), Sustainable Management of Natural Resources: Legal instruments and Approaches (Intersentia 2018) 106 and 109.

26 Compare Sdružení Jihočeské Matky v the Czech Republic App no 19101/03 (ECHR, 10 July 2006), and Bursa Barosu Başkanliği and Others v Turkey App no 25680/05 (ECHR, 19 June 2018), paras 22, 114–16, to the cases cited in n 24.

27 Annalisa Savaresi, ‘The Use of Human Rights Arguments in Climate Change Litigation and its Limitations’ in David Ismangil, Karen van der Schaaf and Lars van Troost (eds), Climate Change, Justice and Human Rights: Changing Perspectives on Human Rights (Strategic Studies 2020).

28 Case C-565/19 P, Armando Carvalho and Others v Parliament and Council [2019] T-330/18.

29 Gerd Winter, ‘Armando Carvalho and Others v EU: Invoking Human Rights and the Paris Agreement for Better Climate Protection Legislation’ (2020) 9(1) Transnational Environmental Law 137, 158.

30 These judgments are binding on the respondent States (see Article 46(1) ECHR; Ilgar Mammadov v Azerbaijan App no 15172/13 (ECHR, 29 May 2019) paras 149–50 and 215).

31 Selahattin Demirtaş v Turkey (No 2) App no 14305/17 (ECHR, 22 December 2020), para 240; Regner v the Czech Republic (2018) 66 EHRR 9, para 98; Siliadin v France (2006) 43 EHRR 16, para 63; Hirsi Jamaa and Others v Italy (2012) 55 EHRR 21, para 111.

32 Duarte Agostinho (n 7).

33 UN Committee on Children’s Rights, Sacchi and Others v Argentina, Brazil, France, Germany and Turkey (22 September 2021) UN Doc CRC/C/88/D/104/2019.

34 Duarte Agostinho (n 7), original application form <https://youth4climatejustice.org/wp-content/uploads/2020/12/Application-form-annex.pdf> accessed 4 April 2022, 10, and supplementary material, para 40.

35 Sacchi (n 33).

36 Klimaseniorinnen (n 7), original application form <https://klimaseniorinnen.ch/wp-content/uploads/2020/11/201126_Application_ECtHR_KlimaSeniorinnen_extract_anonymised-2.pdf> accessed 4 April 2022.

37 X v Austria (n 7); Greenpeace Nordic (n 7).

38 Greenpeace Nordic (n 7).

39 Tim Eicke, ‘Human Rights and Climate Change: What Role for the European Court of Human Rights’ (Goldsmiths University Inaugural Annual Human Rights Lecture, 2 March 2021) <https://rm.coe.int/human-rights-and-climate-change-judge-eicke-speech/1680a195d4> accessed 4 April 2022, para 16.

40 Banković and Others v Belgium and Others (2007) 44 EHRR SE5.

41 Monica Feria-Tinta, ‘Climate Change Litigation in the European Court of Human Rights: Causation, Imminence and Other Key Underlying Notions’ (2021) (1)3 Europe of Rights & Liberties/Europe des Droits & Libertés 52; Tilmann Altwicker, ‘Transnationalizing Rights: International Human Rights Law in Cross-Border Contexts’ (2018) 29(2) European Journal of International Law 581.

42 Soering v UK (1989) 11 EHRR 439, paras 88, 90–91.

43 Ben el Mahi and Others v Denmark App no 5853/06 (ECHR, 11 December 2006).

44 Andreou v Turkey [2009] ECHR 1663, para 25.

45 Al-Skeini and Others v UK (2011) 53 EHRR 18, paras 141–42.

46 Jenny Sandvig, Peter Dawson and Marit Tjelmeland, ‘Can the ECHR Encompass the Transnational and Intertemporal Dimensions of Climate Harm?’ (EJIL:Talk! blog, 23 June 2021) <www.ejiltalk.org/can-the-echr-encompass-the-transnational-and-intertemporal-dimensions-of-climate-harm/> accessed 4 April 2022.

47 On European consensus, see Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge University Press 2015); X and Others v Austria (2013) 57 EHRR 14, paras 148–49.

48 For an overview and explanation of the Court’s judicial dialogue with domestic decisions from two of its (now former) judges, see Luis López Guerra, ‘Dialogues between the Strasbourg Court and National Courts’ and Erik Møse, ‘The ECtHR’s Use of Decisions of Domestic Courts from States Not Involved in the Case and of Other Council of Europe Bodies’ both in Amrei Müller and Hege Elisabeth Kjos (eds), Judicial Dialogue and Human Rights (Cambridge University Press 2017).

49 MN and Others v Belgium App no 3599/18 (ECHR, 5 May 2020) para 99, referring to Banković (n 40) paras 56 and 59.

50 Samantha Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts To’ (2021) 25(4) Leiden Journal of International Law 857, 858–59, 880–81, and picked up in Conall Mallory, Human Rights Imperialists: The Extraterritorial Application of the European Convention on Human Rights (Hart 2020).

51 Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press 2011).

52 For an overview of recent scholarship and practice, see Alice Riccardi, Alice Ollino and Diego Mauri, ‘Litigating Jurisdiction Before the ECtHR: Between Patterns of Change and Acts of Resistance (2021) 82 Questions of International Law ‘Zoom In’ 1.

53 Banković (n 40).

54 Georgia v Russia (II) [2021] ECHR 58, para 115.

55 Fiona de Londras and Kanstantsin Dzehtsiarou, Great Debates on the European Convention on Human Rights (Palgrave 2018) 129.

56 Lea Raible, ‘The Extraterritoriality of the ECHR: Why Jaloud and Pisari Should be Read as Game Changers’ (2016) 2 European Human Rights Law Review 161, 161.

57 Mallory (n 50) 11–12.

58 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980), 1155 UNTS 331.

59 As summarised in Benoit Mayer, ‘Climate Change Mitigation as an Obligation Under Human Rights Treaties?’ (2021) 115(3) American Journal of International Law 409, with further references.

60 Inter-American Court of Human Rights, Advisory Opinion on the Right to a Healthy Environment, OC-23/17, 7 February 2018; Annalisa Savaresi and Juan Auz, ‘Climate Change Litigation and Human Rights: Pushing the Boundaries’ (2019) 9 Climate Law 244, 255, referring to Ricardo Abello and Walter Arevalo, ‘Inter-American Court of Human Rights Advisory Opinion OC-23/17: Jurisdictional, Procedural and Substantive Implications of Human Rights Duties in the Context of Environmental Protection’ (2019) 28(2) Review of European, Comparative and International Environmental Law 217.

61 Mayer (n 59) 428 and 451.

62 Violeta Moreno-Lax, ‘The Architecture of Functional Jurisdiction: Unpacking Contactless Control—On Public Powers, SS and Others v Italy, and the “Operational Model”’ (2020) 21(3) German Law Journal 385.

63 Mallory (n 50) 13, 201–2.

64 Besson (n 50) 880.

65 Lea Raible, Human Rights Unbound: A Theory of Extraterritoriality (Oxford University Press 2020) 39–40 and 104, citing Frank Lovett, ‘Power’ in Robert E Goodin, Philip Pettit and Thomas Pogge (eds), A Companion to Contemporary Political Philosophy (2nd edn, Blackwell 2012) vol 2, 711.

66 Trail Smelter Case (United States v Canada) (16 April 1938 and 11 March 1941), Reports of International Arbitral Awards III, 1905–1982, 1965.

67 On admissibility ratione personae, see Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania [2014] ECHR 865, para 112. On non-exhaustion, see MS v Croatia (No 2) [2015] ECHR 196, para 123.

68 Margaretha Wewerinke-Singh, ‘State Responsibility for Human Rights Violations Associated with Climate Change’ in Sébastien Duyck, Sébastien Jodoin and Alyssa Johl (eds), Handbook of Human Rights and Climate Governance (Routledge 2018).

69 Ole W Pedersen, ‘The European Court of Human Rights and International Environmental Law’ in John Knox and Ramin Pejan (eds), The Human Right to a Healthy Environment (Cambridge University Press 2018); Francesco Francioni, ‘International Human Rights in an Environmental Horizon’ (2010) 21(1) European Journal of International Law 41. The recognition of such a right is currently being discussed, as discussed below (n 155).

70 As raised proprio motu by the ECtHR in Duarte Agostinho (n 7).

71 See the Greenpeace Nordic application concerning the rights of the Sami (n 7).

72 See eg Klimaseniorinnen (n 7).

73 On critiques of the Court’s current approach to environmental cases, including their indirect and anthropocentric nature, see Krommendijk (n 8).

74 See eg Taşkın and Others v Turkey (2006) 42 EHRR 50; Öneryıldız v Turkey (2004) 39 EHRR 12, para 118.

75 As recognised in Trail Smelter (n 66) 1965, and enshrined in the 1972 Stockholm Declaration (Declaration of the United Nations Conference on the Human Environment, 16 June 1972). Overall, see Leslie-Anne Duvic-Paoli, The Prevention Principle in International Environmental Law (Cambridge University Press 2018). On the convergence of prevention and precaution, see Alan Boyle and Catherine Redgwell, Birnie, Boyle, and Redgwell's International Law and the Environment (4th edn, Oxford University Press 2021), esp ch 3 ‘Rights and Obligations of States Concerning Protection of the Environment’.

76 Krommendijk (n 8).

77 Smaltini v Italy App no 43961/09 (ECHR, 24 March 2015).

78 Cordella (n 17) para 162.

79 Ibid. para 94.

80 See in addition to ibid. Budayeva and Others v Russia (2014) 59 EHRR 2.

81 Greco (n 23).

82 In Di Sarno and Others v Italy, the Court held that even though the studies submitted by the applicants had shown that there was no causal link between exposure to waste and medical pathologies, failures to take adequate steps to regulate dangerous activities meant that the State was still in violation of its Article 8 obligations: Di Sarno (n 17) paras 108–10.

83 Cordella (n 17), paras 106–7, translated from the original French by the authors.

84 Ibid. para 172.

85 Budayeva (n 80) para 133.

86 Öneryıldız (n 74) para 89, with further references.

87 Ibid. para 90; Brincat v Malta [2014] ECHR 900, para 102, with further references to the case law.

88 López Ostra v Spain (1995) 20 EHRR 277, para 51.

89 Powell and Rayner v UK (1990) 12 EHRR 355, para 41.

90 Di Sarno (n 17) para 96.

91 IPCC AR6 report (n 1).

92 Greenpeace Nordic (n 7). The full text of the application is available on Greenpeace’s website: <www.greenpeace.org/static/planet4-norway-stateless/2021/06/0392a3c0-people-vs.-arctic-oil-%E2%80%93-application-to-the-ecthr-%E2%80%93-for-distribution_skjult-innhold.pdf> accessed 4 April 2022.

93 See eg Kocherov and Sergeyeva v Russia [2016] ECHR 312, Dissenting Opinion of Judge Keller; Sarah Ganty, ‘Poverty as Misrecognition: What Role for Antidiscrimination Law in Europe?’ (2021) 21(4) Human Rights Law Review 962, 994–95 and 1003.

94 See for example the claims made in Klimaseniorinnen (n 7).

95 There is no ECtHR case law protecting the rights of future generations: see for a discussion Julie H Albers, ‘Human Rights and Climate Change: Protecting the Right to Life of Individuals of Present and Future Generations’ (2018) 28(1-4) Security and Human Rights 113. In a different but to some extent related context, the Court has been reluctant to acknowledge foetal rights: see, famously, Vo v France (2005) 40 EHRR 1.

96 ECHR, preamble, third recital.

97 Overall, see Katharina Braig and Stoyan Panov, ‘The Doctrine of Positive Obligations as a Starting Point for Climate Litigation in Strasbourg: The European Court of Human Rights as a Hilfssheriff in Combating Climate Change?’ (2020) 35 Journal of Environmental Law and Litigation 261. On Article 2, see Öneryıldız (n 74). On Article 3, see O’Keeffe v Ireland (2014) 59 EHRR 15. On Article 8, see Roche v UK (2006) 42 EHRR 30, para 157.

98 For an in-depth analysis, see Vladislava Stoyanova, ‘Fault, Knowledge and Risk within the Framework of Positive Obligations under the European Convention on Human Rights’ (2020) 33 Leiden Journal of International Law 601, 604. See also Armelle Gouritin, ‘Potential Liability of European States under the ECHR for Failure to Take Appropriate Measures with a View to Adaptation to Climate Change’ in Michael Faure and Marjan Peeters (eds), Climate Change Liability (Edward Elgar 2011).

99 Budayeva (n 80) para 158.

100 See on this Jacqueline Peel, ‘Climate Change’ in André Nollkaemper, Ilias Plakokefalos and Jessica Schechinger (eds), The Practice of Shared Responsibility in International Law (Cambridge University Press 2017).

101 Georgia v Russia (II) (n 54) para 162.

102 See eg Carter v Russia [2021] ECHR 766, para 166.

103 UN International Law Commission, ‘Draft Articles on the Responsibility of States for Internationally Wrongful Acts’ (2001), as endorsed by the UN General Assembly (adopted 28 January 2002 UNGA Res 56/83 (2001)).

104 Andrejeva v Latvia (2010) 51 EHRR 28, para 56.

105 On this, see the work of André Nollkamper and others, for example André Nollkaemper and Dov Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’ (2013) 34 Michigan Journal of International Law 359.

106 Using this concept to describe deforestation, see Jacqueline Peel, ‘Climate Change Governance: Policy and Litigation in a Multi-Level System’ (2011) 5(1) Carbon & Climate Law Review 15, 17.

107 On this, see André Nollkaemper, ‘The Duality of Shared Responsibility’ (2018) 24(5) Contemporary Politics 524.

108  Ibid.

109 Medes Malaihollo, ‘Due Diligence in International Environmental Law and International Human Rights Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris Agreement and Positive Obligations under the European Convention on Human Rights’ (2021) 68 Netherlands International Law Review 121.

110 Tătar (n 18).

111 Cordella (n 17) para 161.

112 Di Sarno (n 17) para 107.

113 Jutta Brunnée, ‘Sic utere tuo ut alienum non laedas’ in Max Planck Encyclopedia of Public International Law (2010).

114  Ibid.

115 The Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. Compare Trail Smelter (n 66) 1965. See also the ICJ’s Pulp Mills case, concerning the due diligence required concerning cross-border environmental harm (Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits) [2010] ICJ Rep 14, para 265).

116 UNGA, ‘Rio Declaration on Environment and Development’ (12 August 1992 A/CONF151/26 (vol I)), Principle 2.

117 International Law Commission, ‘Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities’ (2001), Official Records of the United Nations General Assembly, Fifty-sixth Session, Supplement No 10 (A/56/10).

118 Brunnée (n 113) n 5.

119  Ibid. n 12 and 13.

120 Deés v Hungary (2013) 57 EHRR 12, para 23.

121 Cordella (n 17) para 106.

122 See the work of Natalia Kobylarz (including n 25), who is a senior Registry lawyer with the Court.

123 For an overview of how the Court approaches evidence, see Corina Heri, ‘Evidence: European Court of Human Rights (ECtHR)’ in Max Planck Encyclopedia of International Procedural Law (2018).

124 Pulp Mills case (n 115), Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, 108–20.

125 Pulp Mills case (n 115) paras 225, 228, 239, 243, 254, 257, 259, 262.

126 See eg James Gerard Devaney, Fact-Finding before the International Court of Justice (Cambridge University Press 2016); see also Anna Riddell and Brendan Plant, Evidence Before the International Court of Justice (British Institute of International and Comparative Law 2016).

127 Eva Brems, Anne-Katrin Speck and Nele Schuldt for the Human Rights Centre of Ghent University, Third Party Intervention in the Klimaseniorinnen case, submitted on 17 September 2020 <https://hrc.ugent.be/wp-content/uploads/2021/09/2020-09_KlimaSeniorinnen-v-Switzerland_TPI-HRC.pdf> accessed 4 April 2022.

128 Caroline E Foster, Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality (Cambridge University Press 2011).

129  Ibid.

130 On inferences at the ICJ, see the Bosnian Genocide case (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43, para 206); James Devaney, ‘Evidence: International Court of Justice (ICJ)’ in Max Planck Encyclopedia of International Procedural Law (2018).

131 For an overview, see Michael O’Boyle, ‘Proof: European Court of Human Rights (ECtHR)’ in Max Planck Encyclopedia of International Procedural Law (2018).

132 Council of Europe, The Conscience of Europe: 50 Years of the European Court of Human Rights (Third Millennium 2010) 16–17.

133 Kanstantsin Dzehtsiarou and Vassilis P Tzevelekos, ‘The Conscience of Europe that Landed in Strasbourg: A Circle of Life of the European Court of Human Rights’ (2020) 1(1) European Convention on Human Rights Law Review 1.

134 Klimaseniorinnen (n 7); Comments of the Swiss Government on admissibility and the merits <www.greenpeace.ch/static/planet4-switzerland-stateless/2021/08/30b1c8c0-stellungnahme-schweiz-en.pdf> accessed 4 April 2022, para 108, with further references to the Court’s case law.

135 X v Latvia (2014) 59 EHRR 3, para 102.

136 MA v Denmark [2021] ECHR 628, para 149; overall see Oddný Mjöll Arnardóttir, ‘The “Procedural Turn” under the European Convention on Human Rights and Presumptions of Convention Compliance’ (2017) 15(1) International Journal of Constitutional Law 9.

137 For example in Fábián v Hungary (2018) 66 EHRR 26, para 47, concerning Article 1 of Protocol 1 to the ECHR.

138 For an early example, see McCann and Others v UK (1995) 21 EHRR 97, para 150.

139 Leyla Şahin v Turkey (2005) 41 EHRR 8, para 110; MA v Denmark (n 136) para 149.

140 Boyd and Orellana (n 5) para 17.

141 As reflected in the ‘Climate Action Tracker’, a source of independent scientific analysis of government climate action available at <www.climateactiontracker.org> accessed 4 April 2022.

142 On remedies in international human rights law generally, see Dinah Shelton, Remedies in International Human Rights Law (3rd edn, Oxford University Press 2015); Kent Roach, Remedies for Human Rights Violations: A Two-Track Approach to Supra-national and National Law (Cambridge University Press 2021). On the ECtHR, see eg Philip Leach, ‘No Longer Offering Fine Mantras to a Parched Child? The European Court’s Developing Approach to Remedies’ in Andreas Føllesdal, Birgit Peters and Geir Ulfstein (eds), Constituting Europe (Oxford University Press 2013); Szilvia Altwicker-Hámori, Tilmann Altwicker and Anne Peters, ‘Measuring Violations of Human Rights: An Empirical Analysis of Awards in Respect of Non-Pecuniary Damage under the European Convention on Human Rights’ (2016) 76 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1; Elisabeth Lambert and Ceren Ezgi Özlü, ‘Just Satisfaction: European Court of Human Rights (ECtHR)’ in Max Planck Encyclopedia of International Procedural Law (2019). On remedies in climate cases at the ECtHR, see Helen Keller, Corina Heri and Réka Piskóty, ‘Something Ventured, Nothing Gained? Remedies before the ECtHR and Their Potential for Climate Change Cases’ (2022) 22(1) Human Rights Law Review https://doi.org/10.1093/hrlr/ngab030.

143 ECtHR, ‘“A Court that Matters/Une Cour qui compte”: A Strategy for More Targeted and Effective Case-processing’ (17 March 2021) <https://echr.coe.int/Documents/Court_that_matters_ENG.PDF> accessed 4 April 2022.

144 Cordella (n 17) para 172, translation by the authors.

145 Ibid. para 182, where after deciding not to apply the pilot judgment procedure or order general measures (paras 180 and 181), the Court nonetheless indicated that the domestic environmental clean-up plan should be implemented expediently.

146 Paris Climate Agreement (n 2).

147 Angelika Nussberger, ‘Hard Law or Soft Law—Does it Matter? Distinction Between Different Sources of International Law in the Jurisprudence of the ECtHR’ in Anne van Aaken and Iulia Motoc (eds), The European Convention on Human Rights and General International Law (Oxford University Press 2018).

148 Jonathan Pickering and others, ‘Global Climate Governance Between Hard and Soft Law: Can the Paris Agreement’s “Crème Brûlée” Approach Enhance Ecological Reflexivity?’ (2019) 31(1) Journal of Environmental Law 1; Daniel Klein and others (eds), The Paris Agreement on Climate Change: Analysis and Commentary (Oxford University Press 2017); Geert Van Calster and Leonie Reins (eds), The Paris Agreement on Climate Change: A Commentary (Edward Elgar 2021). On the Court’s treatment of soft law, see Nussberger (n 147).

149 María Pía Carazo and Daniel Klein, ‘Implications for Public International Law: Initial Considerations’ in Daniel Klein and others (eds), The Paris Agreement on Climate Change: Analysis and Commentary (Oxford University Press 2017).

150 Kate Dooley and others, ‘Ethical Choices Behind Quantifications of Fair Contributions under the Paris Agreement’ (2021) 11 Nature Climate Change 300; Rosemary Lyster, ‘Climate Justice, Adaptation and the Paris Agreement: A Recipe for Disasters?’ (2017) 26(3) Environmental Politics 438.

151 Kanstantsin Dzehtsiarou, ‘What is Law for the European Court of Human Rights?’ (2017) 49 Georgetown Journal of International Law 89, 95.

152 ‘A Court that Matters’ (n 143).

153 Arnardóttir (n 136).

154  Ibid.

155 Cordella (n 17) para 174.

156 Parliamentary Assembly of the Council of Europe, Res 2396 (2021), provisional version, adopted by the Assembly on 29 September 2021 (see also Rec 2211 (2021)).

157 For a key early piece on the inequalities of emissions and development, see Eric Neumayer, ‘In Defense of Historical Accountability for Greenhouse Gas Emissions’ (2000) 33(2) Ecological Economics 185. See also, more recently, Friederike EL Otto and others, ‘Assigning Historic Responsibility for Extreme Weather Events’ (2017) 7 Nature Climate Change 757.