Climate change before the European and Inter‐American Courts of Human Rights: Comparing possible avenues before human rights bodies

Abstract

In the light of an increasing trend of climate change-related litigation before human rights bodies, this article assesses and compares the possible outcomes of cases submitted before the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR). First, it assesses what rights can be used in a climate change-related case. Second, it analyses the collective causation arguments that may be raised. Third, it assesses the conditions of victimhood hand-in-hand with the causal link between greenhouse gas emissions and the harm suffered. Third, it considers States' jurisdiction under human rights treaties to assess if climate change-related obligations are also extraterritorial. Finally, it assesses the possible ruling of these courts in climate change-related cases. Our main finding is that it is likely that the ECtHR and the IACtHR will follow a similar reasoning and that it is possible that both courts will end up declaring a human rights violation related to States' failure to adopt adaptation policies (and, to a lesser extent, mitigation policies also). However, it may be more difficult to set out what remedies are owed to the applicants. | INTRODUCTIONThe massive impact of human-induced climate change is challenging the enjoyment of human rights, including the rights to life and physical integrity, to health, of access to food and water, to one's home and family life or to a healthy environment. The United Nations (UN) Human Rights Council has repeatedly stated that 'climate change poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights', 1 but mitigation and adaptation policies raise similar concerns. 2 That the enjoyment of human rights is challenged by climate change does not mean that the European Court of Human Rights (ECtHR) or the Inter-American Court of Human Rights (IACtHR) will enforce the UN Framework Convention on Climate Change (UNFCCC) and other treaties adopted under its aegis, but these norms are relevant for both courts when and to the extent that greenhouse gas (GHG) emissions and the resulting disruption in the climate system adversely affects the enjoyment of human rights. When climate-related cases are brought before the ECtHR or the IACtHR, both courts may map States' obligations and 1 Human Rights Council 'Resolution 7/23, Human Rights and Climate Change' UN Doc A/HRC/7/78 (14 July 2008).