Climate Change Litigation and the European Court of Human Rights - A Strategic Next Step?

Abstract

The purpose of the article is to analyse if bringing a case before the European Court of Human Rights (ECtHR) could be impactful in forcing greater climate change action. Part of this analysis is built upon the review of two climate change cases brought before national courts, since they have different outcomes even though both use the fundamental human rights of the European Convention on Human Rights (ECHR) as their legal bases. The cases are the Urgenda Foundation v. Kingdom of the Netherlands and the Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others. The Urgenda case establishes a link between the rights in article 2 and 8 ECHR, and climate change, which creates a positive obligation for a state to protect these rights by acting to combat climate change. The Swiss Climate Protection case, however, is dismissed. Both cases highlight some of the challenges regarding climate change in relation to the fundamental human rights of the ECHR. Judgments by the ECtHR are final, and the formally and informally binding nature of case law from the court is argued to indicate the possibility of a powerful tool in relation to climate change action since 47 states will be affected by the court’s decisions. However, if a case brought before the ECtHR has an unfavourable outcome in relation to forcing greater governmental action in combating climate change, this may also have greater consequences than such an outcome of a domestic challenge, since it will set a minimum standard of care, or completely exclude climate change in relation to human rights. The article argues that it should be considered worth the identified risks to bring a claim before the ECtHR even though it is uncertain if the evolving nature of the charter is ready to establish obligations in relation to climate change, due to the unprecedented and severe threat that climate change constitutes.