Climate Change before the European Court of Human Rights: Capturing Risk, Ill-Treatment and Vulnerability

Abstract

Abstract Human rights law is increasingly being mobilized to litigate against the effects of anthropogenic climate change. This now includes proceedings before the European Court of Human Rights, which is currently considering its first five climate cases. The present article contends that an examination of climate change as a human rights issue by the Strasbourg Court, although requiring transformations of existing case law, is not only possible but also normatively desirable. It does so while examining two interlinked topics that could prove crucial to this type of case. The first is the assessment of risk – that is, the ability of the European Convention on Human Rights (ECHR) to capture impending harms through the doctrine of positive obligations. Second, the article frames climate claims as a matter for Article 3 of the ECHR (the prohibition of torture and inhuman and degrading treatment). This right has gone largely ignored in the relevant scholarship and the Court’s environmental cases to date. The resulting discussion of positive climatic obligations is interlinked with a discussion of climate-related vulnerabilities, which could potentially shape state obligations and lower the procedural and substantive hurdles that imperil the success of climate cases before the Court.