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Victim Status of Individuals in Climate Change Litigation before the ECtHR

Between Old Certainties and New Challenges

In: The Italian Review of International and Comparative Law
Author:
Antonio Mariconda Department of Law, University of Naples Federico ii, Napoli, Italy

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Abstract

The climate change applications currently pending before the European Court of Human Rights (ECtHR) present substantial challenges to the status quo of the Strasbourg system, encompassing both merits and admissibility issues. Of particular concern is their compliance with the admissibility requirement outlined in Article 34 of the European Convention of Human Rights (echr), which stipulates that applicants must be victims of a violation of the Convention by a State to file a case before the Court. Given the diffuse nature of the harms stemming from climate change, identifying individuals as victims of its effects and, consequently, whose rights are allegedly infringed upon, becomes a complex task. Furthermore, establishing a direct causal link between the harm endured and the actions or omissions of a single State proves to be equally challenging. Therefore, the aim of this article is to scrutinize how this admissibility requirement might operate in the cases at hand. In particular, it argues that, albeit with some caveats, it is legally possible to consider some climate change applicants as both direct and potential victims, as per the definitions established by the case law of the ECtHR. Nevertheless, this solution could pose significant challenges to the legitimacy and efficiency of the Strasbourg system, which the Court will have to prevent when deciding these cases.

1 Introduction

It is now beyond doubt that climate change affects a vast range of human rights.1 However, “it is less obvious whether, and to what extent, [its] effects can be qualified as human rights violations in a strict legal sense”.2 This tangled interplay has indeed been the object of the so-called strategic rights-based climate change litigation before domestic courts and international judicial and quasi-judicial bodies, which variously addressed the issue.3

In the last three years, this kind of litigation has reached the European Court of Human Rights (ECtHR). As matters stand, twelve applications founded on climate change effects on human rights have been submitted before the Strasbourg Court: three of these have been relinquished to the Grand Chamber and given priority,4 seven have been adjourned until such time as the Grand Chamber has ruled in the cases before it5 and two have been declared inadmissible.6 The facts underlying these cases are different, but they are pooled by the invocation of the responsibility of the respondent States for the detrimental effect that the failure to comply with international obligations on climate change has or will have on the enjoyment of the applicants’ human rights. The primary objective of these applications is to influence and correct environmental policies of the States which are deemed inconsistent with international standards and emission reduction commitments.

In these cases, the same above-mentioned difficulties emerge. From a substantive standpoint, the Court has never inferred from the European Convention on Human Rights (echr) any obligation to mitigate greenhouse gas (ghg) emissions or to adapt to climate change7 and the nature of the phenomenon makes it difficult to attribute the responsibility for ghg emissions to a single State8 or to identify standards of conduct.9 From a procedural and jurisdictional standpoint, several obstacles could stand in the way of the admissibility of these applications, i.e. the need to exhaust domestic remedies, the locus standi of the applicants and the jurisdiction ratione materiae, ratione temporis and ratione loci of the Court.10

This article deals with the issue of victim status of individual applicants in climate change litigation before the ECtHR. Being a victim of a violation by a State is indeed necessary to have locus standi before the Strasbourg Court. This requirement proves problematic in climate change applications, due to the collective nature of the harms stemming from this phenomenon. This paper aims to demonstrate that it is nonetheless possible in the light of ECtHR case law to consider some of the applicants as victims, with some caveats. To this end, however, the Court should contextually deal with its jurisdiction ratione materiae, given the complex nature of the interplay between human rights and climate change. It is important to note that the article will only investigate the victim status of individuals, not considering the distinct problem of ngo s’ locus standi.11

Therefore, this paper will be structured as follows: the second section will introduce the issue of victim status before the ECtHR, shedding further light on the issue raised in this introduction; the third section will explore the substantive issues, as premises for an assessment of victim status; the fourth and fifth sections will address the direct and potential victim status of individuals in the pending climate cases, respectively; finally, the sixth section will provide a conclusion.

2 Victim Status and the ECtHR

In dictating admissibility requirements of individual applications before the ECtHR, Article 34 echr requires the applicants to be “victim[s] of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”. This condition must be maintained throughout the whole proceeding12 and the Court can examine it motu proprio.13 The lack or loss of victim status clearly results in the inadmissibility of the application and the non-activation of the protection mechanisms provided by the Convention.14

Therefore, in the context of individual applications, the Court cannot assess the compatibility of national laws and practices with the echr in abstracto but can determine whether the way they were applied to the applicant gave rise to a violation of the Convention. In other words, the Convention does not provide for the institution of an actio popularis.15

The ECtHR, as is the case with all echr standards, has shaped and clarified the meaning of Article 34, developing a doctrine detached from the domestic rules on locus standi.16 In this regard, the Court has thereby repeatedly stated that this requirement should not be interpreted in a rigid and formalistic manner,17 pointing out that a static interpretation of the victim status requirement would inevitably undermine the function of the European system for the protection of human rights.18

In the light of these general considerations, the Strasbourg Court has identified three categories of victims under Article 34: direct, indirect, and potential victims. A direct victim is an applicant who has been directly affected by a State’s action or omission and demonstrates that there is a sufficiently direct link between them and the loss which they consider they have suffered as a result of the alleged violation.19 An indirect victim is an applicant who has not been directly affected by the violation, but to whom the violation would cause harm or who has a valid and personal interest in seeing it brought to an end.20 Finally, the Court exceptionally recognized potential victim status to applicants who produced reasonable and convincing evidence of the likelihood that a violation affecting them personally would occur, mere suspicion or conjecture being insufficient.21

In pending cases concerning climate change effects, individual applicants claim to be both direct and potential victims of the effects of climate change. For example, the applicants in Duarte Agostinho complain, among others, of the harm to their right to private and family life stemming from not being able to live outdoors and for the subsequent anxiety caused by this condition, which, according to the six young applicants, is due to climate change-related wildfires around their houses.22 As far as potential victimhood is concerned, the applications rely on the fact that a phenomenon like climate change, if not adequately tackled, can only worsen. In the future, this will lead to a foreseeable harm to certain rights protected under the echr.

However, the victim status of these applicants is particularly problematic if a strict interpretation of this requirement is favored.23 In fact, to complain about a violation of their human rights, applicants should first demonstrate that the human interference with the climate system caused an extreme weather event (e.g. the heat waves in KlimaSeniorinnen or the wildfires in Duarte Agostinho) or a slow onset one, and then that such an event resulted in an impairment of a human right protected by the echr.24 Furthermore, applicants also claim to be potential victims, which means that they complain of “harms that have not yet taken place, and that may never take place in exactly the ways alleged”.25 Finally, in these cases, the individual interest to change States’ adaptation and mitigation policies on climate change coincides with the collective one. This would entail a public interest litigation, while ECtHR is the most rigid regional human rights Court in denying the admissibility of actiones populares.26

As is evident, victim status is thereby inextricably intertwined with the substance of the disputes.27 Thus, to deal with the locus standi of individual applicants, it must be first clarified what the States’ obligations in climate matters are under the echr. To this end, the article will now assess whether climate change adaptation and mitigation obligations might fall into the ECtHR jurisdiction ratione materiae.

3 The Existence of an Obligation as a Premise for Assessing Victim Status: Climate Change Adaptation and Mitigation under the echr?

As mentioned, applicants in climate change cases complain about the violation of the positive obligations to take sufficient climate change mitigation and adaptation measures. They thereby ask the Court to adjudge that the effects of climate change, not adequately tackled by States, substantiated a violation of their rights to life (Article 2 echr), private and family life (Article 8 echr), and – in some cases – to fair trial (Article 6 echr), to an effective remedy (Article 13 echr), to non-discrimination (Article 14 echr), to not be subject to torture or inhuman or degrading treatment or punishment (Article 3 echr), and to the peaceful enjoyment of possessions (Article 1 of Protocol No. 1 to the echr).

However, the Convention does not explicitly provide a right to a healthy environment, and no climate change case has been decided in Strasbourg so far. This leads to uncertainty as to whether climate change adaptation and mitigation obligations could be considered as falling within the scope of the echr. For the purposes of defining victim status, this question is of utmost relevance. It is indeed logically impossible to determine whether an individual is victim of the violation of a State’s obligation without defining the latter’s obligation content. If one rigidly separates the two analyses, there is a risk that the uncertain nature of these obligations determines the inadmissibility of the applications, a priori precluding their discussion.28 As a consequence, to establish applicants’ victim status, the Court must assess its jurisdiction ratione materiae, or, in other words, it has to assess whether the echr contains climate change adaptation and mitigation obligations.

This analysis cannot but start from the ECtHR case law on the positive obligations of States in environmental matters.29 The principle underlying this case law is that the echr is not “specifically designed to provide general protection of the environment as such”30 but “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their [human rights]”.31 In environmental matters, the State has consequently not only the negative obligation not to interfere with the enjoyment of these rights, but also the positive obligation to ensure their full enjoyment. This case law involves all the Articles invoked by climate change applicants.

Firstly, under Article 2, the High Contracting Parties have a due diligence obligation to do everything in their power when the right to life of those under their jurisdiction is threatened. Hence, through “a legislative and administrative framework designed to provide effective deterrence against threats to the right to life”,32 States must prevent the loss of lives in cases of dangerous activities or natural disasters. The same kind of positive obligations arise under Article 8, where environmental degradation has a direct harmful effect on or seriously risks the enjoyment of private and family life, home and correspondence,33 and under Article 1 of Protocol No. 1, when it risks harming the peaceful enjoyment of possessions.34

From this background, the Court inferred some procedural obligations, such as the duty to inform the public about environmental risks and to involve the general population in decision-making processes related to environmental matters.35 Moreover, these positive obligations entail that, under Article 13, the State must provide a domestic remedy for cases of non-compliance with these obligations, and under certain conditions, grant an access to a Court under Article 6.36

Finally, Article 3 has also been invoked in lato sensu environmental matters.37 Indeed, Article 3 not only dictates an obligation to refrain from infliction of ill-treatment by agents of the State but also imposes a positive obligation on States to take specific action to protect individuals from prohibited treatments or to provide them with adequate standards of care.38 It is important to highlight the possible application of this Article because – notwithstanding its invocation in only three of the climate applications (Humane Being, Plan B Earth, and Soubeste), two of which have already been declared inadmissible – the Court explored its applicability in its written questions to the parties.

These obligations are triggered whenever public authorities know or ought to know of the existence of a severe, real, and imminent risk to the rights of those under its jurisdiction.39 In this respect, they have a duty to act to guarantee these rights, even when they are threatened by private persons or activities that are not directly connected with the State.40 Hence, States must take appropriate measures to prevent a violation,41 even if they cannot eliminate the threat on their own.42

Against this backdrop, it should now be clarified whether adaptation and mitigation measures fall into the jurisdiction ratione materiae of the ECtHR. Notably, the issue of the “incorporation” of climate change adaptation and mitigation obligations into human rights treaties has been intensely disputed. This debate can be said to have sparked in 2019, following the Dutch Supreme Court judgment in the Urgenda case.43 In its ground-breaking ruling, the Court declared that the Dutch Government was responsible under Articles 2 and 8 echr for its insufficient climate change adaptation and mitigation actions. As a consequence of that successful experience, climate litigation spread in domestic courts, with mixed success.44 More recently, the Human Rights Committee (hrc) adopted some historical views in the Torres Strait Islanders case, explicitly stating that the failure to take sufficient adaptation measures was a violation of Articles 17 (right to private and family life) and 27 (right of minority indigenous groups) iccpr45 and that it was not precluded from examining States’ mitigation measures.46 In the light of this very recent case law, some authors denied the relevance of human rights law to enforce mitigation and adaptation obligations, because the causal chain of climate change is too weak and the human rights’ subjects and objectives are too different;47 others limit the possibility to use human rights to adaptation obligations, excluding mitigation,48 or reducing its scope of applicability.49 Finally, a third strand of scholars claims that it is possible to “incorporate” adaptation and mitigation obligations in human rights treaties50 and, more specifically, in the echr.51

In this regard, it is the author’s opinion that it is possible to interpret the echr as imposing adaptation and mitigation measures. This conclusion, as it will be seen, can be mainly inferred from the aforementioned case law of the ECtHR.

Adaptation measures can be defined as “the process[es] of adjustment to actual or expected climate and its effects, in order to moderate harm or exploit beneficial opportunities”.52 As pointed out, when a State is aware of a risk of harm to the above-mentioned rights enshrined in the echr, it must take all necessary steps to prevent it, thereby protecting those under its jurisdiction. Thus, to maintain that these Articles impose climate change adaptation, it must first be demonstrated that the State is aware of the risk of an imminent and serious harm. To this end, one can make use of the so-called best available science, i.e. the most advanced scientific expertise available to mankind at the time of the decision.53 In the field of climate change, gaining insight into this knowledge can be achieved by drawing on reports of special bodies, whose role is to assess the foreseeable risks of non-compliance with emission reduction obligations. The most important of these is the International Panel on Climate Change (ipcc), a UN body composed of experts that summarize and systematize scientific literature on climate change, also foreseeing future scenarios.54 Its reports are approved by governments, which give their approval to the forecasts made.55

In its last report, the Sixth Assessment Report, the ipcc explicitly concluded that “[c]ontinued greenhouse gas emissions will lead to increasing global warming and […] [e]very increment of global warming will intensify multiple and concurrent hazards”.56 Moreover, the report specifically described the causal link between climate change, extreme weather events and the impairment of life quality of human communities.57 Consequently, States can in no way be considered unaware of the future effects of current emission levels, since they subscribe to ipcc reports. Therefore, applying the environmental case law, there is no doubt that the relevant Articles oblige the High Contracting Parties to take adequate adaptation measures.58 Admittedly, the extent of State’s obligations will depend on the circumstances of the particular case,59 e.g. the extent to which a particular human community can be considered to be imminently threatened by climate change and, therefore, in need of State adaptation measures.60

In turn, mitigation measures are defined as the “human intervention to reduce emissions or enhance the sinks of greenhouse gases”.61 In order to understand whether the echr can impose the adoption of such measures, it is necessary, in addition to the best available science, to resort to systemic integration62 under Article 31(3)(c) of the Vienna Convention on the Law of Treaties.63 Notably, according to this norm, “any relevant rule of international law applicable in the relations between the parties” may be taken into account in the interpretation of a treaty.64 The echr is no exception, and the ECtHR has recalled that it “cannot be interpreted […] in a legal vacuum but must be interpreted in harmony with the principles of general international law”.65 In the climate change field, the relevant conventional instruments are the United Nations Framework Convention on Climate Change (unfccc)66 and the Paris Agreement,67 which are ratified almost universally68 and essentially require States “to stabilize the concentration of greenhouse gases in the atmosphere in order to prevent dangerous anthropogenic interference with the climate system”69 and, more significantly, to limit warming “well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius”.70 To this end, each member State sets its Nationally Determined Contribution (ndc), making progressively ambitious efforts.71

Furthermore, EU law72 (for EU Member States) and general international law73 might play a role in shaping States’ climate obligations. Through this interpretative tool, it can be concluded that States, being aware that inaction will have a detrimental effect on the enjoyment of human rights – as they have subscribed to ipcc reports – must take the mitigation measures to which they are obliged under the unfccc, the Paris Agreement, and EU and general international law. Clearly, this implies that, a fortiori, States have a negative obligation not to take any decisions that would lead to an increase in emissions in its territory – e.g., licensing by Norway of oil drilling in the Barents Sea in the Greenpeace Nordic application. Not setting mitigation targets or failing to meet them would thereby mean to ignore a serious risk, attested by the best available science, taken by those under the jurisdiction of the State.74 This would be clearly contrary to the positive obligations described earlier.75

In the light of the above, it can be concluded that, through the “progressive”76 interpretation proposed here, inspired by the Court’s “living instrument” doctrine,77 climate change adaptation and mitigation obligations could fall within the jurisdiction ratione materiae of the ECtHR.78

4 The Status of Direct Victims in Climate Change Litigation: The Old Certainties

Having clarified the extent of States’ climate change obligations contained in the echr, one might investigate who has victim status to enforce them before the Court. The ECtHR declared two of the twelve climate applications inadmissible for lacking this admissibility requirement. Other applications were considered admissible at a preliminary stage and given priority, which probably means that the ECtHR intends to find a way to grant applicants victim status.79 However, respondent States raised objections about a lack of victim status, asserting that these applications are actiones populares. These objections led scholarship to speculate about the possible ways to reconcile the Strasbourg personal-injury-based human rights system and climate change applications.80

In this regard, the international case law appears fragmented. On the one hand, the Court of Justice of the European Union (cjeu) declared inadmissible an appeal asserting that climate change affects every individual, and the applicants didn’t demonstrate any harm “peculiar to them or […] circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually”.81 On the other hand, the hrc and the Committee for the Rights of the Child (crc) granted victim status to applicants in climate change cases.82 However, these differences are due both to different procedural rules83 and the peculiar factual backgrounds of the cases.84 The same holds true before domestic courts, which obviously apply national laws with different rules on the locus standi.85 Therefore, only little guidance can be drawn from these external precedents, and the analysis has to focus on the echr context. We contend that, in that context, it is possible to deem the applicants as direct and potential victims, albeit with some caveats.

As for the status of direct victims, it would not seem that the situation of applicants in climate change cases differs much from that of victims of environmental disasters or industrial pollution.86 Indeed, as shown in the previous sections, in those cases they have been considered victims even though the event was not directly caused by the State. This was because the State was responsible for failing to fulfil its positive due diligence obligations to protect those under its jurisdiction. In the same vein, the applicants in the cases at hand are direct victims of events stemming from climate change. Therefore, their applications are admissible as far as they complain about the failure by the State to discharge its due diligence obligations, in those cases composed by adaptation and mitigation measures.

However, climate change applicants must overcome two additional hurdles: the demonstration of the causal link between climate change and an extreme weather event (or a slow onset one) and between the event resulting from climate change and the harm suffered. To this end, alongside with the applicants, the best available science and amici curiae have an important role to play. In fact, the best available science, such as ipcc reports, can prove that climate change leads to extreme weather phenomena or slow onset ones, and amici curiae, like ngo s, can prove that a local phenomenon is directly due to climate change and affects human rights.87 In this respect, the Court’s environmental case law can once again offer further guidance.

Indeed, in Cordella, the ECtHR granted victim status to all the residents of an area exposed to noxious emissions by a steel plant. To this end, the Court relied upon a scientific report which demonstrated the casual link between the steel plant’s emissions and the diseases affecting the population. As a result, the Court granted victim status not only to the 180 applicants but to the entire population of the affected area.88 Similarly, the applicants in the cases at hand could equally demonstrate the causal link between a climate-related extreme weather event or a slow onset one and the harm suffered by relying on scientific reports.89

While describing the possible shortcomings concerning victim status, we also raised another problem, i.e. that of public interest litigation. In the cases at hand, the applicants appear to rely on the interests of the entire community, proposing actiones populares. Notably, in climate change litigation, individual interests often converge with collective ones. Once again, guidance can be drawn from the same ECtHR case law. Alongside Cordella, in Di Sarno the Court declared admissible an application linked to a waste disposal emergency, although “[] the applicants complained of a situation affecting the entire population of Campania”.90 Thus, if applicants demonstrate that they have been directly affected by the effects of climate change, the fact that their interest overlaps with that of the entire community does not prevent the admissibility of their applications.91

In short, regarding already occurred damage, the principles already underlying ECtHR environmental case law could lead the Court to consider climate applicants as direct victims.

However, there is unquestionably a difference between the effects of climate change and the previous ECtHR environmental case law. The effects of climate change affect many more people than toxic fumes from a factory or poor waste management, potentially leading to numerous applicants resorting to the ECtHR. In this respect, it should be noted that, in addition to the threshold of victim status, there are other ratione personae filters in the echr (not to mention the other admissibility requirements). For example, applicants must have suffered a significant disadvantage, pursuant to Article 35 (3)(b) echr. This means that not every direct victim’s application reaches the merits stage. Moreover, even if these applicants reach the merits stage, the harm suffered should surpass the severity threshold laid down in the case law on Articles 2,92 8,93 or 394 echr. Therefore, in the light of previous ECtHR case law, nothing prevents the applicants in climate cases from being considered direct victims when they have been directly affected by a climate-related event. However, they also must have suffered a significant disadvantage, and during the merits stage, it will be evaluated whether this damage surpasses the severity threshold of Articles 2, 3 or 8 echr.

5 The Status of Potential Victims in Climate Change Litigation: The New Challenges

As far as potential victimhood is concerned, applicants essentially claim that the current level of emissions will undermine their rights under the echr in the future. Thus, since it is crucial to act in the present to avoid future harm, the applicants request to be recognized as potential victims. Respondent States, on the contrary, claim that this approach would substantiate an actio popularis, aimed at assessing in abstracto States’ compliance with adaptation and mitigation obligations. Climate change applicants have already been recognized as potential victims before the hrc when their “risk of being affected [was] more than a theoretical possibility”,95 even “if the law or practice has not already been concretely applied to the detriment of […] an individual”96 and before domestic courts.97 However, once again, to draw useful guidance one must turn to the Strasbourg system.

In this regard, we briefly mentioned that the ECtHR has exceptionally granted in its case law potential victim status to those who “produce reasonable and convincing evidence of the likelihood that a violation affecting him or her personally will occur; mere suspicion or conjecture being insufficient”.98 This general construction has led the Court to recognize this status to three different situations: first, in cases where States enact legislation authorizing secret measures, and applicants don’t actually know whether they are under the scope of this legislation or not;99 second, those who, being aliens in an High Contracting Parties, were the subject of a removal order not executed yet, if they demonstrated that, should the order be executed, they would have been subject to inhuman and degrading treatment (Article 3) or treatment contrary to Article 8 in their country of origin (non-refoulement);100 and, lastly, when a law is susceptible to be applied to a specific section of the population, of which the applicant is part, even in the absence of concrete execution measures,101 or when such a law forces applicants to change their behavior to avoid a criminal sanction.102

Part of the scholarship speculated that climate applicants could fit into some of these categories by analogy. For example, in non-refoulement cases, the rationale for granting potential victim status was to prevent applicants from suffering foreseeable inhuman and degrading treatment in their country of origin in the future. In the same vein, by qualifying climate change effects as inhuman and degrading treatment, climate applicants would currently be potential victims of a future foreseeable violation of Article 3.103 According to these authors, this perspective would be even more interesting, because it takes into consideration the vulnerability of some of the climate change applicants. In non-refoulement cases, the evaluation concerning the future risk of harm is subjective, meaning that the specific age, gender, social condition, etc. of the subjects are considered to evaluate whether they are at risk of being victims of treatment contrary to Article 3 echr. Similarly, the Court could take into account the vulnerability of certain applicants to climate change.104 This would make it easier to grant victim status to children in Duarte Agostinho, which is the classical vulnerable category under the echr,105 but also to elderly women in KlimaSeniorinnen and to the applicant affected by multiple sclerosis in Mullner.106 Other scholars take a more nuanced approach, noting that “here the Court walks an occasionally fine line between ensuring human rights protection and allowing actiones populares”,107 while others explicitly qualified these applications as actiones populares.108

In this respect, it is the author’s position that it is possible to consider vulnerable applicants as potential victims. However, due to the nature of climate change, this could lead to drawbacks for the European system of human rights protection, which must be addressed.

As we have seen, climate change applicants can demonstrate through the best available science that there is reasonable and convincing evidence of the likelihood that a violation affecting them personally will occur. Thus, it is reasonable to infer that the applicants will be victims of these effects. In this assessment, the Court could highlight the applicants belong to vulnerable groups or vulnerable areas, which makes it more likely that their human rights will be impaired by detrimental effects of climate change.109 This reasoning could also be relied upon by the Court when assessing potential discrimination of these applicants in enjoying their rights in the future, as they will be more affected than the general population by this phenomenon.110

However, one might easily object that if this framework is accepted, every vulnerable individual under the jurisdiction of a High Contracting Party would be considered a potential victim. Climate change effects are diffuse and, by definition, harm the whole population. This would be problematic because the ECtHR, already overwhelmed with an enormous case flow, would have to manage a potentially infinite number of applications. Although the Court recently developed some tools to better manage its docket,111 such an opening could still be seen as challenging. Indeed, even limiting the locus standi before the Court to vulnerable groups, every member of one of them could refer to the Court. This means that every child, elderly woman, multiple sclerosis patient, etc. would have standing before the Court without further demonstration of harm.

This concern, while understandable, is not insurmountable. Indeed, the Court could deal with these docket concerns at the remedial stage by dictating general measures pursuant to Article 46, i.e. the so-called “consequential orders”. These measures are aimed at ending Convention violations and the Court dictates them to guide Respondent States in this task. The ECtHR has ordered this kind of remedies in few environmental cases, in which, far from analytically dictating the measures to take, it stated that action was necessary to comply with the ECtHR.112

Thus, the Court could adopt a similar approach in climate change cases.113 Indeed, when finding a violation, it could indicate that a certain level of adaptation and mitigation measures is required to comply with the echr. However, the Court should avoid specifically indicating which measures are needed, as it is a politically sensitive matter114 that falls under the purview of domestic authorities.115 The ECtHR might in this fashion order climate action before the harm materializes and, at the same time, respond to the docket concern. If the Court were to issue just satisfaction awards (Article 41 echr) in these cases, it could potentially lead to an overabundance of applications on climate change.116 In contrast, by ordering Article 46 measures, the Court could consider any subsequent climate change applications about the same State as a matter of implementation, under the responsibility of the Committee of Ministers. Therefore, any new application, unless it raises a new issue that has not been decided by a previous judgment,117 would not be under the Court’s jurisdiction ratione materiae.118 In this respect, it should be noted that the Court has already made use of Article 46 remedies to explicitly respond to docket concerns in advance. For example, in the Kuric119 case, “although there were only a few similar applications pending, a potential inflow of future cases was anticipated”120 by dictating general measures.

This remedy-oriented perspective highlights the importance of recognizing the status of potential victim in climate change applications, alongside that of direct victim. In fact, should the Court only recognize the direct victim status, it would likely dictate only declaratory judgments or just satisfaction awards, as in most environmental cases.121 However, the main objective of this strategic litigation is to bring a systemic change in policies and legislation of the respondent States. Therefore, recognizing that the current level of emissions will impair the applicants as potential victims in the future would legitimize the Court’s ordering general measures under Article 46 echr before the States. Resorting to general measures at a remedial stage could thereby address the docket problems caused by the recognition of the potential victim status and, at the same time, make this climate litigation more effective.

In short, to grant potential victim status to climate change applicants is possible in the light of the ECtHR case law and it is crucial for the effectiveness of this strategic litigation. However, granting this status might lead to systemic problems for the ECtHR, which must be dealt with in advance to avoid the Court being overwhelmed by applications. In this respect, a possible option might be to address these docket problems at a remedial stage, through the adoption of consequential measures under Article 46 echr.

6 Conclusion

In conclusion, the ECtHR could play an important role in rights-based climate change litigation, but achieving this would require a flexible approach to certain assumptions of its previous case law. Procedural rules, particularly the admissibility requirement of victim status, stand as a key indicator of the necessary transformation. This article has tried to demonstrate that it is legally possible to interpret the echr in a way that allows the admissibility of climate applications by individuals, although with some caveats.

However, it should be noted that before the ECtHR and in the Council of Europe system there are some alternative options that might circumvent many of the problems raised.

The first option is to make the ECtHR’s approach to ngo s’ standing more flexible, as feared by certain applicants and as hinted by the President of the Court in its question during the Grand Chamber KlimaSeniorinnen hearing.122

The second is to valorize the advisory jurisdiction of the Court, as this instrument has recently appeared promising in other international jurisdictions involved in climate change matters.123 This led both ECtHR judges124 and scholars125 to suggest that an advisory opinion by the Court would be the best option, as it would circumvent admissibility problems and represent an authority which domestic courts could rely on in the future.

A third scenario is to wait for an amendment of the echr explicitly providing for the right to a healthy environment. In 2021, the Parliamentary Assembly of the Council of Europe proposed a new additional protocol to the European Convention on Human Rights which would recognize the right to a safe, clean, healthy and sustainable environment.126 The Proposal must now be considered by the European Committee of Ministers.127 Meanwhile, the Steering Committee invited States to recognize this right at a domestic level.128

Notwithstanding these options which seem more adequate, several climate change cases are already pending, and the Court has to rule on them. Thus, the Court must decide now whether it wants to stretch its case law, risking a loss of legitimacy and trust from Member States, or to adopt a conservative approach, which would avoid conflicts with domestic authorities but would exclude the ECtHR from the historic challenge of climate change.

1

bodansky, brunee and rajamani, International Climate Change Law, 2nd ed., Oxford, 2017, p. 296 ff.

2

UN Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights (a/hrc/10/61), para. 70.

3

For an overview of this phenomenon, see savaresi and setzer, “Rights-based litigation in the climate emergency: mapping the landscape and new knowledge frontiers”, Journal of Human Rights and the Environment, 2022, p. 1 ff. and misonne, torre-schaub and adam, “Cronique sur la Justice Climatique en Europe (2015–2022)”, Revue Trimestrielle de Droit de l’Homme, 2023, p. 454 ff.

4

Duarte Agostinho and Others v. Portugal and 32 other States, Application No. 39371/20, Court communication of 30 November 2020; Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, Application No. 53600/20 of 26 November 2020 and Carême v. France, Application No. 7189/21, Relinquishment of 28 January 2021.

5

De Conto v. Italy and 32 other States, Application No. 14620/21 of 3 March 2021 and Uricchio v. Italy and 32 other States, Application No. 14615/21 of 3 March 2021; Müllner v. Austria, Application No. 18859/21 of 25 March 2021; Greenpeace Nordic v. Norway, Application No. 34068/21 of 15 June 2021; The Norwegian Grandparents’ Climate Campaign and Others v. Norway, Application No. 19026/21; Soubeste and 4 other applications (five young people case) v. Austria and 11 other States, Applications Nos. 31925/22, 31932/22, 31938/22, 31943/22, and 31947/22; Engels v. Germany, Application No. 46906/22.

6

Plan B Earth and Others v. United Kingdom, Application No. 36959/22, Decision of inadmissibility of 1 December 2022 and Humane Being v. United Kingdom, Application No. 35057/22, Decision of inadmissibility of 13 December 2022.

7

See siwior, “The Potential of Application of the echr in Climate Change Related Cases”, International Community Law Review, 2021, p. 197 ff. and hartmann and willers, “Protecting rights through climate change litigation before European courts”, Journal of Human Rights and the Environment, 2022, p. 1 ff.

8

thornton, “The Absurdity of Relying on Human Rights Law to Go After Emitters”, in mayer and zahar (eds.), Debating Climate Law, Cambridge, 2021, p. 159 ff.

9

See the question asked by Judge Bošnjak in the KlimaSeniorinnen hearing held on 29 March 2023 in pedersen, “Climate Change hearings and the ECtHR”, ejil: Talk! Blog of the European Society of International Law, 4 April 2023.

10

keller and pershing, “Climate Change in Court: overcoming Procedural Hurdles in Transboundary Environmental Cases”, European Convention on Human Rights Law Review, 2022, p. 23 ff. and willers, “Climate Change Litigation in European Regional Courts: Jumping Procedural Hurdles to Hold States to Account?” in alogna, bakker and gauci (eds.), Climate Change Litigation: Global Perspectives, Leiden, 2021, p. 294 ff.

11

On ngo s standing before the Court, see, in general, M. scheinin, “Access to Justice before International Human Rights Bodies: Reflections of the Practice of the UN Human Rights Committee and the European Court of Human Rights”, in francioni (ed.), Access to Justice as a Human Right, Oxford, 2007, p. 135 ff. and vajic, “Some Concluding Remarks on ngo s and the European Court of Human Rights”, in treves et al. (eds), Civil Society, International Courts and Compliance Bodies, 2004, pp. 103–104; For the most recent case law, see acconciamessa, “L’ammissibilità ratione personae dei ricorsi alla Corte europea di individui estremamente vulnerabili: uguaglianza sostanziale e tutela del diritto di accesso alla giustizia internazionale”, Diritti umani e diritto internazionale, 2021, p. 317 ff.

12

Siliadin v. France, Application no. 73316/01, Judgment of 26 July 2005, para. 61.

13

Buzadji v. Moldova, Application No. 23755/07, Judgment of 5 July 2016, para. 70.

14

Hristozov and Others v. Bulgaria, Applications Nos. 47039/11 and 358/12, Judgment of 13 November 2012, para. 73.

15

Roman Zakharov v. Russia, Grand Chamber, Application No. 47143/06, Judgment of 4 December 2015, para. 164. Generally speaking, the admissibility of actio popularis in international law is a matter of debate (see, among others, ahmadov, The Right of Actio Popularis before International Courts and Tribunals, Leiden, 2018). The International Court of Justice in the South-West Africa case defined it as the “right resident in any member of a community to take legal action in vindication of a public interest”, South-West Africa (Etiopia and Liberia v. South Africa), Second Phase, Judgment of 18 July 1966, icj Reports, 1966, p. 6 ff., para. 88. However, on the same occasion it declared that the concept is not known in international law and cannot be considered a principle as referred to in Art. 38, para. 1 lett. c) of the icj Statute (ibid.). Despite this apparent rejection, the following case law developed the idea of erga omnes obligations, which is strictly intertwined with the notion of action popularis (on this case law, see bonafé, “La violation d’obligations envers la communauté internationale dans son ensemble et la compétence juridictionnelle de la Cour internationale de Justice”, in cannizzaro (ed.), The Present and Future of Jus Cogens, Rome, 2015, p. 145 ff.). This led scholars to conclude that icj case law is not conclusive on the status of actio popularis in general international law (see gattini, “Actio popularis”, Max Planck Encyclopedia of Public International Law, 2019, para. 22).

16

Gorraiz Lizarraga and Others v. Spain, Application No. 62543/00, Judgment of 27 April 2004, para. 35.

17

Stukus and Others v. Polonia, Application No. 12534/03, Judgment of 1 April 2008, para. 35.

18

Karner v. Austria, Application No. 40016/98, Judgment of 23 July 2003, para. 25.

19

Tănase v. Moldova, Application No. 7/08, Judgment of 27 April 2010, para. 104.

20

Vallianatos and Others v. Greece, Applications Nos. 29381/09 and 32684/09, Judgment of 7 November 2013, para. 47.

21

Senator Lines GmbH v. Austria and Others, Application No. 56672/00, Decision of inadmissibility of 10 March 2004.

22

See Duarte Agostinho and Others v. Portugal and 32 other States case, cit. supra note 4, p. 8.

23

As confirmed by the first two hearings held before the Grand Chamber on 29 March 2023 on the KlimaSeniorinnen and Carême cases, in which the discussion about victim status has been one of the main focuses. See pedersen, cit. supra note 9.

24

dupuy and viñuales, International Environmental Law, 2nd ed., Cambridge, 2018, p. 395 ff.

25

keller and heri, “The Future is Now: Climate Change Cases Before the ECtHR”, Nordic Journal of Human Rights, 2022, p. 1 ff., p. 4.

26

Indeed, it is worth noting that the African system allows applications from people or groups that are not themselves the victims of the violation by the State, since the African Convention textually recognizes that collective rights are justiciable rights. As far as the Inter-American system is concerned, even though the Commission and the Court stated that abstract petitions cannot be processed, from the case law on indigenous communities it can be inferred that the access to justice is broad and might be compared to an actio popularis. See hampson, martin and viljoen, “Inaccessible apexes: Comparing access to regional human rights courts and commissions in Europe, the Americas, and Africa”, International Journal of Constitutional Law, 2018, p. 161 ff., p. 180.

27

keller and heri, cit. supra note 25, p. 6.

28

schmid, “Victim Status before the ECtHR in Cases of Alleged Omissions: The Swiss Climate Case”, ejil: Talk! Blog of the European Society of International Law, 30 April 2022; Verein KlimaSeniorinnen and Others v. Switzerland case, cit. supra note 4, Third party intervention by Schmid and Boillet, 17 September 2021, p. 4.

29

braig and 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?”, Journal of Environmental Law and Litigation, 2020, p. 261 ff.

30

Kyrtatos v. Greece, Application No. 41666/98, Judgment of 23 May 2003, para. 52.

31

López Astra v. Spain, Application No. 16798/90, Judgment of 9 December 1994, para. 51.

32

Öneryildiz v. Turkey, Application No. 48939/99, Judgment of 30 November 2004, para. 89.

33

Moreno Gómez v. Spain, Application No. 4143/02, Judgment of 16 November 2004, para. 61.

34

Budayeva and Others v. Russia, Application Nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, Judgment of 20 March 2008, para. 172.

35

Taşkin and Others v. Turkey, Application No. 46117/99, Judgment of 10 November 2004, para. 119.

36

Council of Europe, Manual on Human Rights and the Environment, 3rd ed., 2022, p. 83 ff.

37

See Florea v. Romania, Application No. 37186/03, Judgment of 14 September 2010 and Elfteriadis v. Romania, Application No. 38427/05, Judgment of 25 January 2011.

38

Kudła v. Poland, Application No. 30210/86, Judgment of 26 October 2000, para. 94.

39

Osman v. United Kingdom, Application No. 23452/94, Judgment of 28 October 1998, para. 116.

40

See the case law reported in heri, “Climate Change before the European Court of Human Rights: Capturing Risk, Ill-Treatment and Vulnerability”, European Journal of International Law, 2022, p. 1 ff., p. 9.

41

Budayeva and Others v. Russia case, cit. supra note 34, para. 175.

42

E. and Others v. United Kingdom, Application No. 33218/96, Judgment of 26 November 2002, para. 99. This case law belies the defences of respondent States (e.g. Switzerland in KlimaSeniorinnen), which claim that they are only responsible for a small amount of emissions and that, therefore, even if they had acted correctly for the applicants, nothing would have changed. In fact, the Court explicitly stated that no “but-for” test is required in the ECtHR context.

43

Supreme Court (The Netherlands), State of the Netherlands (Minister of Economic Affairs and Climate Policy) v. Stichting Urgenda, Judgement of 20 December 2019. On this judgement see, among others, de schutter, “Changement Climatique et droits humains: l’affaire Urgenda”, Revue Trimestrielle des droits de l’Homme, 2020, p. 567 ff. and passarini, “Ambiente. cedu e cambiamento climatico, nella decisione della Corte Suprema dei Paesi Bassi nel caso Urgenda”, Diritti Umani e Diritto Internazionale, 2020, p. 777 ff.

44

For an overview of these cases, see maxwell, mead and van berkel, “Standards for Adjudicating the Next Generation of Urgenda-Style Climate Cases”, Journal of Human Rights and the Environment, 2022, p. 2 ff., p. 28 ff.

45

United Nations Human Rights Committee, Daniel Billy and others v. Australia (Torres Strait Islanders Petition), Views of 22 September 2022, para. 8.12 ff. For a comment, see feria-tinta, “Torres Strait Islanders: United Nations Human Rights Committee Delivers Ground-Breaking Decision on Climate Change Impacts on Human Rights”, ejil: Talk! Blog of the European Journal of International Law, 27 September 2022 and voigt, “unhrc is Turning up the Heat: Human Rights Violations Due to Inadequate Adaptation Action to Climate Change”, ejil: Talk! Blog of the European Journal of International Law, 26 September 2022.

46

Daniel Billy and others v. Australia, cit. supra note 45, para. 7.8.

47

See, among others thornton, cit. supra note 8, pp. 159–169.

48

zahar, “The Limits of Human Rights Law: A Reply to Corina Heri”, European Journal of International Law, 2022, p. 1 ff.

49

mayer, “Climate Change Mitigation as an Obligation under Human Rights Treaties?”, American Journal of International Law, 2021, p. 409 ff.

50

pain, “Human Rights Law Can Drive Climate Change”, in mayer and zahar (eds.), Debating Climate Law, Cambridge, 2021, pp. 145–158.

51

See all the literature cited in the following pages.

52

See ipcc, Annex vii, glossary, p. 2216.

53

The importance of this instrument for the judges called to adjudicate on highly technical issues has been highlighted both by domestic courts deciding on climate change, see maxwell, mead and van berkel, cit. supra note 44, p. 14 and by the ECtHR itself, see Öneryildiz v. Turkey case, cit. supra note 32, paras. 59, 71, 90 and 93.

54

On the origins and functioning of the ipcc, see dupuy and viñuales, cit. supra note 24, p. 173.

55

The procedure of approval of ipcc reports is available at <https://www.ipcc.ch/about/preparingreports/>.

56

ipcc, Synthesis Report of the ipcc Sixth Assessment Report (ar6), Summary for Policy Makers, 2023, p. 12.

57

Ibid., p. 5 ff.

58

feria-tinta, “The future of environmental cases in the European Court of Human Rights: extraterritoriality, victim status, treaty interpretation, attribution, imminence and ‘due diligence’ in climate change cases”, Journal of Human Rights and the Environment, 2022, p. 172 ff., p. 185.

59

L.C.B. v. United Kingdom, Application No. 23413/94, Judgment of 9 June 1998, paras. 37 – 41.

60

In this respect, the Daniel Billy and others v. Australia case, cit. supra note 45, before the hrc is particularly explanatory. Indeed, on that occasion, the Committee declared the Australian adaptation measures insufficient to protect the Torres Strait indigenous community because of the latter’s territory and culture being particularly vulnerable to climate change.

61

ipcc, Annex vii, Glossary, p. 2239.

62

feria-tinta, cit. supra note 58, pp. 182–184.

63

Vienna Convention on the Law of Treaties, 23 May 1969, entered into force 27 January 1980.

64

For the use of this interpretative tool in international human rights law, see, more generally, rachovitsa, “The Principle of Systemic Integration in International Human Rights Law”, International and Comparative Law Quarterly, 2017, p. 557 ff.

65

Nada v. Switzerland, Application No. 10593/08, Judgment of 12 September 2012, para. 169.

66

United Nations Framework Convention on Climate Change (unfccc), 9 May 1992, entered into force 21 March 1994.

67

Paris Agreement under the UN Framework Convention on Climate Change, 12 December 2015, entered into force 4 November 2016.

68

The unfccc has 198 Contracting Parties, while 194 Parties joined the Paris Agreement.

69

unfccc, cit. supra note 66, Art. 2.

70

Paris Agreement, cit. supra note 67, Art. 2.

71

Ibid., Art. 3.

72

For a description of EU laws on climate change, see European Commission, Third party intervention in the Duarte Agostinho case, cit. supra note 4. This intervention shows the Commission’s view about the interplay between climate obligations in EU law and the echr. Contra this view, see Climate Action Network, Third party intervention in the Duarte Agostinho case, cit. supra note 4.

73

About principles of general international environmental law, see dupuy and viñuales, cit. supra note 24, p. 58 ff.

74

feria-tinta, cit. supra note 58, p. 192 f. and heri, cit. supra note 40, p. 10; wewerinke-singh, State Responsibility, Climate Change and Human Rights under International Law, London, 2019, p. 132. This is also consistent with the approach of the Urgenda case, cit. supra note 43, paras. 5.4.3, 5.7.5 and 7.3.6 and Supreme Court (Colombia), Lozano Barragán and Others v. Presidency of the Republic of Colombia and Others, Judgement of 5 April 2018, paras. 6 and 13. available at:

<https://elaw.org/system/files/attachments/publicresource/Colombia%202018%20Sentencia%20Amazonas%20cambio%20climatico.pdf>.

75

For Human Rights in general, see Boyd, Human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc. A/74/161 (2019), para. 74, who explicitly stated that “[a] failure to fulfil international climate change commitments is a prima facie violation of the State’s obligations to protect the human rights of its citizens.”

76

heri, “Legal Imagination, and the Turn to Rights in Climate Litigation: a Rejoinder to Zahar”, ejil: Talk! Blog of the European Society of International Law, 6 October 2022.

77

Tyrer v. United Kingdom, Application No. 5856/72, Judgment of 25 April 1978, para. 31.

78

keller and pershing, cit. supra note 10, p. 31.

79

hartmann and willers, cit. supra note 7, p. 12.

80

keller and pershing, cit. supra note 10, pp. 23–46 and willers, cit. supra note 10, p. 294 ff.

81

Case T-330/18, Armando Ferrão Carvalho and Others v. The European Parliament and the Council, 2019, para. 49.

82

Daniel Billy and others v. Australia, cit. supra note 45, paras. 7.9–7.10 and United Nations Committee on the Rights of the Child, Sacchi and Others v. Argentina and Others, Decision of 8 October 2021, para. 10.13 ff.

83

For example, the cjeu has developed the so-called Plaumann test, which is particularly onerous for the applicants.

84

For example, in the case before the crc, the applicants were children and thereby considered victims mainly for specific reasons linked to their age. The same can be said about hrc, which considered the members of the Torres Strait indigenous community as victims for their specific vulnerability to climate change.

85

Justiciability has been one of the most debated issues before domestic courts. Not only as far as locus standi is concerned but also as regards the separation of powers issue. See pane, “Pro e Contro dei rimedi domestici: prospettive di sinergia nel contenzioso climatico domestico”, Ordine Internazionale e Diritti Umani, 2023, p. 375 ff. and eckes, “Separation of Powers in Climate Cases: Comparing Cases in Germany and the Netherlands”, Verfassungsblog, 10 May 2021.

86

heri, cit. supra note 40, p. 10.

87

In this respect, one may mention attribution studies, which investigate how climate change influenced the intensity and likelihood of an extreme weather event. A database of these studies is available at the Carbon Brief website, <https://www.carbonbrief.org/mapped-how-climate-change-affects-extreme-weather-around-the-world/>.

88

Cordella v. Italy, Application No. 54414/13 54264/15, Judgment of 24 January 2019, para. 100 ff.

89

What is more, the Court stated that, in the context of Art. 8, this kind of harm should not necessarily be a health-related one, see López Astra v. Spain, cit. supra note 31, para. 51. Similarly, in Di Sarno and Others v. Italy, Application No. 30765/08, Judgment of 10 January 2012, paras. 108–110, the Court declared Art. 8 has been violated because the State didn’t discharge its positive protective obligations. Notwithstanding the reports submitted by the applicants, which demonstrated that there was no causal link between the incorrect waste management and the harm suffered.

90

Di Sarno and Others v. Italy, cit. supra note 89, para. 81.

91

pavoni, “Public Interest Environmental Litigation and the European Court of Human Rights: No Love at First Sight”, in lenzerini and vrdoljak (eds.), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature, Oxford, 2014, p. 331 ff.

92

To apply Art. 2 echr, life has to be threatened, see Budayeva and Others v. Russia case, cit. supra note 34, paras. 137 and 142.

93

Fadeyeva v. Russia, Application no. 55723/00, Judgment of 9 June 2005, paras. 68–69.

94

Savran v. Denmark, Application No. 57467/15, Judgment of 7 December 2021, para. 122.

95

United Nations Human Rights Committee, Teitiota v. New Zealand, Decision of 7 January 2020, paras. 8.4–8.6. See maneggia, “Non-refoulement of Climate Change Migrants: Individual Human Rights Protection or ‘Responsibility to Protect’? The Teitiota Case Before the Human Rights Committee”, Diritti umani e diritto internazionale, 2020, p. 635 ff.

96

Daniel Billy and others v. Australia case, cit. supra note 45, para. 7.9.

97

Urgenda case, cit. supra note 43, para. 5.6.2; District Court of the Hague, Milieudefensie v. Royal Dutch Shell, 26 May 2021, para. 4.2.4; Brussels Court of First Instance (Belgium), vzw Klimaatzaak v. Kingdom of Belgium, 17 June 2021, paras. 50–51, available at <http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2021/20210617_2660_judgment-1.pdfpp>; Federal Constitutional Court (Germany), Neubauer and Others v. Germany, 29 April 2021, paras. 96–99, 101–102, 108–110, available at <http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2021/20210324_11817_order-1.pdf>; Federal Court (Australia), Minister for the Environment v. Sharma, 14 April 2022, paras. 4, 297, 488, available at <https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2022/20220422_VID-389-of-2021-2021-FCA-560-2021-FCA-774-2022-FCAFC-35-2022-FCAFC-65_judgment.pdf>.

98

Senator Lines GmbH v. Austria and Others, cit. supra note 21.

99

Klass and Others v. Germany, Application No. 5029/71, Judgment of 6 September 1978, para. 38, and Roman Zakharov v. Russia, cit. supra note 15, paras. 173–178.

100

Soering v. United Kingdom, Application No. 14038/88, Judgment of 7 July 1989.

101

Dudgeon v. United Kingdom, Application No. 7525/76, Judgment of 22 October 1981.

102

Tănase v. Moldova, cit. supra note 19, para. 104.

103

See mavronicola, “The Future is a Foreign Country: Understanding State (In)Action on Climate Change as Ill-Treatment”, Strasbourg Observers Blog, 19 October 2021 and heri, “The ECtHR’s Pending Climate Change Case: What’s Ill-Treatment Got to Do with It?”, ejil: Talk! Blog of the European Society of International Law, 22 December 2020.

104

heri, cit. supra note 40, p. 18 ff.

105

See O’Keeffe v. Ireland, Application No. 35810/09, Judgement of 28 January 2014, para. 144.

106

See, on the category in general, timmer, “A Quiet Revolution: Vulnerability in the European Court of Human Rights”, in fineman and grear (eds.), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics, Abingdon, 2013, p. 147 ff.

107

keller and heri, cit. supra note 25, p. 4.

108

pedersen, “Human Rights and Climate Change, Finally!”, ejil: Talk! Blog of the European Journal of International Law, 22 September 2020.

109

For an interesting perspective on the interplay between vulnerability and admissibility, see acconciamessa, cit. supra note 11.

110

For the effects of climate change on vulnerable population, see International Network for Economic Social and Cultural Rights, Third party intervention in the Duarte Agostinho case, cit. supra note 4, p. 5 ff; specifically for children see All Youth, Third party intervention in the Duarte Agostinho case, cit. supra note 4, p. 5 ff.

111

See, ECtHR, “A Court that Matters/Une Cour qui compte: A Strategy for More Targeted and Effective Case-processing”, 17 March 2021, available at: <echr.coe.int/Documents/Court_that_matters_ENG.PDF>.

112

Cordella v. Italy case, cit. supra note 88, para. 182.

113

keller, heri and piskóty, “Something Ventured, Nothing Gained? Remedies before the ECtHR and Their Potential for Climate Change Cases”, Human Rights Law Review, 2022, p. 1 ff., p. 17.

114

The political and discretionary nature of measures needed to tackle climate change makes consequential measures more adequate than pilot judgements. Indeed, the Court in its environmental case law preferred the former over the latter when it came to “hard cases”, in which the measures to take to comply with the judgement were of a highly technical or discretionary nature. On this difference in general, see saccucci, La Responsabilità Internazionale dello Stato per violazioni strutturali dei dirittti umani, Napoli, 2018, p. 35 ff. On a recent example of this remedial approach in the Court’s environmental case law, see the Cordella v. Italy case, cit. supra note 88, para. 180, on which greco, “Cordella et al v Italy and the effectiveness of human rights law remedies in cases of environmental pollution”, Review of European, Comparative and International Environmental Law, 2020, p. 491 ff.

115

Moreover, a recent study demonstrated that the so-called holistic decisions, i.e., those decisions which dictate the specific measures to be taken, are quite ineffective. See mayer, “Prompting climate change mitigation through litigation”, International and Comparative Law Quarterly, 2023, p. 233 ff.

116

keller, heri and piskóty, cit. supra note 113, p. 18.

117

Verein Gegen Tierfabriken Schweiz (vgt) v. Switzerland (No. 2), Application No. 32772/02, Judgment of 30 June 2009, para. 62.

118

Egmez v. Cyprus, Application No. 12214/07, Decision of inadmissibility of 18 September 2012, para. 48 ff.

119

Kurić and Others v. Slovenia, Application No. 26828/06, Judgment of 26 June 2012, paras. 414 – 415.

120

schabas, The European Convention on Human Rights: A Commentary, Oxford, 2015, p. 870.

121

See case law about non-pecuniary damages in keller, heri and piskóty, cit. supra note 113, p. 14 ff.

122

See the question asked by President O’ Leary in the KlimaSeniorinnen hearing in pedersen, cit. supra note 9.

123

See unga Resolution A/77/L.58, Request for an advisory opinion on the obligations of States with respect to climate change to the icj, 1 March 2023; itlos, Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (Request for Advisory Opinion submitted to the Tribunal), 12 December 2022 and Inter-American Court of Human Rights, Request for an advisory opinion on the scope of the state obligations for responding to the climate emergency, 9 January 2023; see also Inter-American Court of Human Rights, State Obligations in relation to the Environment in the context of the protection and guarantee of the Rights to life and to Personal Integrity: interpretation and scope of articles 4(1) and 5(1) in relation to articles 1(1) and 2 of the American Convention on Human Right, Advisory Opinion oc-23/17 of 15 November 2017.

124

eicke, “Human Rights and Climate Change: What Role for the European Convention on Human Rights?”, Inaugural Annual Human Rights Lecture, Department of Law, Goldsmiths University, 2 March 2021, para. 41.

125

pedersen, cit. supra note 108.

126

Parliamentary Assembly of the Council of Europe (pace), “Anchoring the right to a healthy environment: need for enhanced action by the Council of Europe”, Resolution No. 2396 (2021), available at <https://pace.coe.int/pdf/658d3f594762736ba3c0f378798b2c9529cf4be34aa45a8c38616ecd18fa80c0/res.%202396.pdf>.

127

However, it should be noted that several previous attempts to introduce these rights have failed, including a previous proposal by the Parliamentary Assembly in 2009.

128

Steering Committee, 1444th meeting of 27 September 2022, Recommendation cm/Rec(2022)20, available at: <https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680a7b73e>.

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