The future of environmental cases in the European Court of Human Rights: extraterritoriality, victim status, treaty interpretation, attribution, imminence and 'due diligence' in climate change cases

Abstract

Ever since the Urgenda case was filed in the Netherlands, followed by climate change cases reaching the United Nations treaty-bodies complaint procedures, first in the Torres Strait Islanders case (against Australia) before the Human Rights Committee, and second in the 16 Children case before the Committee for the Rights of the Child, it was a mere matter of time before climate change litigation would reach the European Court of Human Rights. This article examines some of the key emerging topics in international climate change litigation before international human rights organs likely to be relevant for the adjudication of such cases under the European Convention on Human Rights. These international factors will inevitably influence the future of Strasbourg jurisprudence in the area of climate change litigation. These are (i) jurisdictional issues; (ii) whether climate change treaties are relevant for interpreting the European Convention on Human Rights; (iii) causation and whether it is relevant or not under the Rules of State Responsibility underlying the Convention; (iv) The notion of 'imminence'; and (v) the notion of due diligence - duty to protect.