Climate Change and the EC(t)HR : a Study of the Potential and Limitations of a Climate Change Litigation Case in the Context of the EC(t)HR

This thesis deals with the questions on whether it would be possible to consider the European Convention on Human Rights (ECHR), more precisely Article 2 (the right to life) and Article 8 (the right to private and family life), to impose positive obligations on its Member States to prevent climate change and whether a Member State failing to prevent climate change sufficiently could be considered violating the ECHR. Climate change is a human rights issue. The effects of climate change are projected to interfere with the enjoyment of most, if not all, human rights, if further dangerous climate change is not prevented. Despite this fact, neither the international community, nor national states, have been able to address and prevent climate change sufficiently. As a counteraction to these failures, civil society has attempted to take the matter into its own hands, and turned to so-called climate change litigation as a possible solution to prevent further climate change. What first seemed impossible, holding a State liable for not preventing climate change sufficiently, was recently achieved on a domestic level. In October 2018, the Dutch Appeal Court interpreted Article 2 and 8 of the ECHR to create a positive obligation to prevent climate change and found the Dutch state, due to its insufficient climate policies, to be in breach with such obligation. This groundbreaking case created ripples on the water, and several climate change litigation cases have since then emerged around the world. The aim of this thesis has been to consider the potential and limitations of bringing a climate change case in the context of the ECHR and European Court of Human Rights (ECtHR). This thesis has considered if there is foundation to argue that Article 2 and 8 of the ECHR impose a positive obligation on its Member States to prevent climate change (research question 1). This was done by turning to the existing positive ‘environmental’ obligations that have been developed by the ECtHR, without the right to a ‘healthy environment’ or similar being enshrined in the ECHR. An analogy between the existing green jurisprudence and its positive obligations and climate change was attempted. Although encountering some difficulties, it was concluded that there is foundation to argue that climate change and its effects both are within a State’s awareness and to be considered a real and immediate threat, thus creating a positive obligation on States to prevent further climate change. In other words, the first research question of this thesis was answered with cautious optimism. This thesis has also considered if a State failing to prevent climate change sufficiently could be considered in violation with Article 2 and 8 of the ECHR (research question 2). In order to answer this question, some of the challenges a climate change case would face were presented. It was noted that a climate change case, in particular framed from a preventative angle, would have a difficult time even passing the admissibility stage, as it is likely that such an application would be considered actio popularis and not fulfil the victim status required. In addition, the doctrine of margin of appreciation, which generally is considered wide in the context of the environment, was perceived as a major obstacle, which a climate change case most likely would not be able to overcome. In addition, causality and uncertainty, generally being known to create difficulties for climate change cases, would also be challenging in the context of the ECHR and ECtHR. However, it was also noted that the ECHR is to be interpreted as a living instrument in the light of present-day conditions. It was considered that the doctrine of living interpretation could provide somewhat of an avenue for the ECtHR to take a more activist approach, and adapt a more evolutive interpretation. This could provide a solution to at least some of the challenges a climate change would face. It was, however, also noted that utilising the doctrine to its max, might come with consequences that may have negative impacts on the legitimacy of the ECtHR. Thus, the conclusion was that based on a traditional interpretation on the ECHR and existing case law, it would be unlikely fhat the ECtHR would consider the failure to prevent climate change sufficiently to constitute a violation of Article 2 and 8. In other words, the second research question was answered negatively. In conclusion, this thesis argues that there is foundation to consider that Article 2 and 8 of the ECHR could impose a positive obligation to prevent climate change, whilst it would be unlikely that the ECtHR would consider a State, failing to prevent climate change sufficiently, to be in violation with such obligation