Human rights and climate change litigation: should temporal imminence form part of positive rights obligations?

Abstract

This article examines how the concept of temporal imminence has evolved to become a precondition to a violation of a positive human rights obligation in a number of jurisdictions. We trace the case law back to its roots, especially in the European Court of Human Rights and the Inter-American Court of Human Rights, and find no clear rationale for its inclusion as a criterion of positive obligations in some cases, and serious divergence between cases with apparently similar facts. This analysis elucidates how temporal imminence has found its way into the recent decisions in Urgenda and Teitiota, which considered the link between climate change and positive human rights obligations. We consider how temporal imminence is a particularly inappropriate factor in climate change cases given the long-range nature of the threats. With courts across the world considering climate change and human rights arguments for the first time, we conclude with a note of caution against importing temporal imminence as an element of positive human rights obligations or otherwise introducing it. We argue that in the context of climate change, courts should avoid setting a requirement for a connection between a specific action and event, and rather, observe the wider context of alleged rights violations.