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

Abstract

AbstractIn 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.