Content uploaded by Katharina Franziska Braig
Author content
All content in this area was uploaded by Katharina Franziska Braig on Apr 27, 2020
Content may be subject to copyright.
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
[261]
KATHARINA FRANZISKA BRAIG* AND STOYAN PANOV†
The Doctrine of Positive Obligations as a
Starting Point for Climate Litigation in
Strasbourg: The European Court of Human
Rights as a Hilfssheriff in Combating
Climate Change?
Abstract ............................................................................................ 262
Introduction ...................................................................................... 263
I. Protection of the Environment in the ECHR System as a
Starting Point for Climate Change-Related Cases ................ 265
A. The IPCC Definition of Climate Change ....................... 270
II. Relevance of the Doctrine of Positive Obligations ............... 272
A. The Role of Positive Obligations in the Field of the
Environment ................................................................... 272
B. The Doctrine of Positive Obligations Developed in
the Field of the Environment as a Ground to Tackle
Threats Posed by Climate Change? ............................... 274
*Dr. Katharina Franziska Braig, LL.M., received her education at the University of
Strasbourg, University of Basel, and University of London. Dr. Braig has published on the
European Convention of Human Rights and environmental law. She currently works for the
German development agency Deutsche Gesellschaft für Internationale Zusammenarbeit
(GIZ) GmbH. The opinions expressed in this Article are the author’s own and do not reflect
the view of GIZ. Email: katharina.braig@giz.de
†Dr. Stoyan Panov, LL.M., is a lecturer of international law and jurisprudence at
University College Freiburg, Albert-Ludwigs University of Freiburg. He has received his
education at the University of Birmingham (Birmingham Law School, Ph.D.), Leiden
University, Georgetown University, and DePauw University. Dr. Panov has published on
topics such as liability for international crimes, the role of the judiciary in anti-corruption
policies, and human rights protections in preventive confiscation and seizure of assets and
property. Email: stoyan.panov@ucf.uni-freiburg.de
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
262 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
1. Access to Information Related to the Risks of
Climate Change and Public Participation in
Decision-Making in the Field of Climate Change .... 274
2. Access to Courts Regarding Climate Change
Matters ...................................................................... 276
3. Obligation to Enact Legislation on Climate
Change Issues ........................................................... 277
4. Duty to Monitor and Control .................................... 278
5. Obligation to Conduct Studies, Research, and
Environmental Impact Assessments to Ensure
Compliance with the Precautionary Principle .......... 279
6. Fulfillment of Adequate Safety Precautions ............. 280
7. Prosecution and Punishment of Polluters Causing
Damage to the Climate ............................................. 281
8. Omissions by the States and Inefficient Measures ... 281
III. Possible Challenges to Positive Obligations in the Field of
Climate Change ..................................................................... 282
A. Public Interest ................................................................ 283
B. Burden of Proof, Insufficient Causal Link, or
Insufficient Probability of Occurrence ........................... 285
C. The Causal Link Conundrum ......................................... 287
D. Narrowness of the Doctrine of Extraterritoriality .......... 290
E. Establishing Shared Liability in the Context of
Climate Change .............................................................. 292
F. Necessity of Awareness of the Negative Impacts of
Climate Change and Problems with Victim Status of
Potential Victims and NGOs .......................................... 293
IV. Lessons from Domestic Attempts to Adjudicate Climate
Change-Related Cases ........................................................... 293
Concluding Remarks and Outlook ................................................... 296
ABSTRACT
Climate change is a severe threat to the realization of several
fundamental human rights, such as the right to life, the right to private
life, and the right to health. In order to guarantee that the protection of
the European Court of Human Rights (ECtHR) remains effective, we
might have to acknowledge that climate change also poses a threat to
the rights protected under the European Convention on Human Rights
(ECHR). Although the ECtHR has not yet explicitly developed case law
on climate change-related cases, this Article discusses the applicability
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 263
Starting Point for Climate Litigation in Strasbourg
and suitability of the ECtHR in protecting the rights of individuals
against the implications of climate change.
Climate change does not fall into the traditional logic of
territoriality and the causal link between the act and the damage.
Nevertheless, future claims will likely include elements of shared
liability and extraterritoriality, legal doctrines well established and
recognized in the ECtHR jurisprudence. This Article’s discussion
serves as a starting point for the legal analysis of the doctrine of
positive obligations in the field of the environment, including climate
change.
INTRODUCTION
he Office of the United Nations High Commissioner for Human
Rights has underlined the urgency of climate change-related
human rights violations for many years.
1
The environment has been in
a crux condition for the enjoyment of a variety of human rights.
2
Climate change has an undeniable global impact on the enjoyment of
human rights, such as the right to life and the right to private life.
3
As
these rights are enshrined in the European Convention on Human
Rights (ECHR), we can assume that climate change can also have a
negative impact on the scope of protection under the European human
rights regime. Hence, the pending issue is to what extent can the
European Court of Human Rights (ECtHR) play a role in protecting
individuals against the negative impacts of climate change.
This Article attempts to address and assess the suitability of the
doctrine of positive obligations, developed by the ECtHR, as a basis to
evaluate claims related to the negative effects of climate change. The
framework of the ECtHR was established primarily to process
individual claims on a territorial basis. In theory, this framework does
not prevent the ECtHR from affording in practice effective and
practical safeguards to the victims of human rights infringements
related to the environment. One purpose of this study is to demonstrate
1
See U.N. High Comm’r for Human Rights, Report of the Office of the United Nations
High Commissioner for Human Rights on the Relationship Between Climate Change and
Human Rights, ¶ 20, U.N. Doc. A/HRC/10/61 (Jan. 15, 2009).
2
See U.N. High Comm’r for Human Rights, Analytical Study on the Relationship
Between Human Rights and the Environment, ¶ 7, U.N. Doc. A/HRC/19/34 (Dec. 16, 2011).
3
U.N. High Comm’r for Human Rights, Understanding Human Rights and Climate
Change (Nov. 27, 2015), https://www.ohchr.org/Documents/Issues/ClimateChange/COP21.
pdf [https://perma.cc/9JAP-5WMG].
T
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
264 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
to what extent it is possible to establish state responsibility through the
doctrine of positive obligations under the ECHR, even though the
phenomenon of climate change is inherently global in nature.
This Article analyzes the appropriateness of the ECtHR for climate
change and human rights litigation and provides references on how the
argumentation of the ECtHR could be formed in the climate change
context. The ECtHR has established extraterritorial human rights
obligations
4
and shared responsibility,
5
which provide guiding
principles for climate change litigation, even though there is no explicit
“green jurisprudence” on these doctrines. The current ECtHR
environmental protection jurisprudence,
6
and above all the Hatton v.
United Kingdom case on pollution caused by Heathrow Airport,
7
provides a foundation to develop discussion on the climate change-
related liability.
4
Heta-Elena Heiskanen & Jukka Viljanen, Reforming the Strasbourg Doctrine on
Extraterritorial Jurisdiction in the Context of Environmental Protection, 11 EUR. L. REP.
285, 286 (2014).
5
See Alan E. Boyle, Making the Polluter Pay? Alternatives to State Responsibility
in the Allocation of Transboundary Environmental Costs, in INTERNATIONAL
RESPONSIBILITY FOR ENVIRONMENTAL HARM 378 (Francesco Francioni & Tullio Scovazzi
eds., 1991).
6
Most of the more relevant cases were already decided by the ECtHR a few years ago.
The more recent cases deal with the conflict between property and environmental protection.
See, e.g., Calancea v. Republic of Moldova, App. No. 23225/05 (Eur. Ct. H.R. Feb. 6, 2018),
http://hudoc.echr.coe.int/eng?i=001-181419 [https://perma.cc/UTL4-W22R] (decision on
the admissibility); Kristiana Ltd. v. Lithuania, App. No. 36184/13 (Eur. Ct. H.R. Feb. 6,
2018), http://hudoc.echr.coe.int/eng?i=001-180555 [https://perma.cc/R53Z-KSW8];
O’Sullivan McCarthy Mussel Dev. Ltd. v. Ireland, App. No. 44460/16 (Eur. Ct. H.R. June
7, 2018), http://hudoc.echr.coe.int/eng?i=001-183395 [https://perma.cc/M93S-4HDR];
Beinarovič v. Lithuania, App. Nos. 70520/10, 21920/10, 41876/11 (Eur. Ct. H.R. June 12,
2018), http://hudoc.echr.coe.int/eng?i=001-183540 [https://perma.cc/Q5ZN-XWL9].
7
Hatton v. United Kingdom, 2003-VIII Eur. Ct. H.R. 189 (judgment of the Grand
Chamber). In this case, in which the Grand Chamber came to a different conclusion than the
Chamber, the applicants, who lived about 12 kilometers from Heathrow Airport, claimed
that noise from night flights caused significant disturbance to their sleep. In 1993, the
Secretary of State for Transport adopted a quota system of night flying restrictions (the
“1993 Scheme”) aimed at striking a proper balance between the local residents’ needs and
the economic interest of maintaining a 24-hour international airport. The Court ruled that
there was no violation of Article 8 ECHR on the ground that the interests of the applicants
were properly taken into consideration when deciding to implement the 1993 Scheme. The
Court relied on statistical information to conclude that the noise disturbances to the
applicants surrounding Heathrow Airport were “negligible,” and therefore did not outweigh
the substantial economic community interest of maintaining this airport. The Court also
noted that the applicants could have found new residences without a significant loss. Thus,
in evaluating the competing interests of the individual and the community as a whole, the
Court believed that the national authority should be given a wide margin of appreciation in
taking measures to mitigate the noise from the airport.
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 265
Starting Point for Climate Litigation in Strasbourg
Our study commences with an overview of environmental protection
in the ECtHR jurisprudence. The emphasis of this Article is on the role
of positive obligations under the ECHR regime in environmental cases.
The analysis includes contentious legal issues such as access to
information related to the risks of climate change and public
participation in the decision-making process, access to judicial review
in environmental cases, the duty to monitor and control environmental
activities by state authorities, and the obligation to conduct
Environmental Impact Assessments (EIA), among others. The crux of
the Article is the application of these legal principles and procedures to
climate change cases. Part III on challenges to the positive obligations
under the Convention concerning climate change includes a calibrated
analysis of the public interest balancing test, the burden of proof
problems, the issues with meeting legal thresholds, and standards such
as the insufficient impairment and extraterritoriality limitations. The
Article concludes with an assessment of the current standing and future
developments in the field of climate change litigation in the European
context.
I
PROTECTION OF THE ENVIRONMENT IN THE ECHR SYSTEM AS A
STARTING POINT FOR CLIMATE CHANGE-RELATED CASES
The ECtHR has dealt with a very diverse range of environmental
issues to date: environmental risks and access to information;
8
industrial pollution;
9
mobile phone antennas;
10
air traffic and aircraft
noise;
11
neighboring noise;
12
road traffic noise;
13
wind turbines and
8
See generally Brincat v. Malta, App. Nos. 60908/11, 62110/11, 62129/11, 62312/11,
62338/11 (Eur. Ct. H.R. July 24, 2014), http://hudoc.echr.coe.int/eng?i=001-145790
[https://perma.cc/HR8Y-Y275].
9
See generally Apanasewicz v. Poland, App. No. 6854/07 (Eur. Ct. H.R. May 3, 2011),
http://hudoc.echr.coe.int/eng?i=001-104672 [https://perma.cc/BG79-4ZCL].
10
See generally Luginbühl v. Switzerland, App. No. 42756/02 (Eur. Ct. H.R.
Jan. 17, 2006), http://hudoc.echr.coe.int/eng?i=001-72459 [https://perma.cc/R65M-ZPY4]
(decision on the admissibility).
11
See generally Flamenbaum v. France, App. Nos. 3675/04, 23264/04 (Eur. Ct. H.R.
Dec. 13, 2012), http://hudoc.echr.coe.int/eng?i=001-115143 [https://perma.cc/RK7Y-HLPD].
12
See generally Zammit Maempel v. Malta, App. No. 24202/10 (Eur. Ct. H.R. Nov. 22,
2011), http://hudoc.echr.coe.int/eng?i=001-107514 [https://perma.cc/EF4C-QVXH].
13
See generally Grimkovskaya v. Ukraine, App. No. 38182/03 (Eur. Ct. H.R. July 21,
2011), http://hudoc.echr.coe.int/eng?i=001-105746 [https://perma.cc/5YTG-A89K].
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
266 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
wind energy farms;
14
industrial noise pollution;
15
rail traffic;
16
respirable dust emissions of diesel vehicles;
17
urban development;
18
waste collection, management, treatment, and disposal;
19
and water
supply contamination.
20
López Ostra v. Spain
21
established that Article
8 ECHR (Right to Respect for Private and Family Life)
22
provides for
some environmental protections. Increasingly, other articles have been
similarly interpreted.
23
Under Article 2 (Right to Life), for example,
24
14
See generally, e.g., Fägerskiöld v. Sweden, App. No. 37664/04 (Eur. Ct. H.R.
Feb. 26, 2008), http://hudoc.echr.coe.int/eng?i=001-85411 [https://perma.cc/M6AB-KVJF]
(decision on the admissibility); Vecbaštika v. Latvia, App. No. 52499/11 (Eur. Ct. H.R.
Aug. 18, 2011), http://hudoc.echr.coe.int/eng?i=001-116293 [https://perma.cc/32QC-
PEDV] (pending application).
15
See generally Borysiewicz v. Poland, App. No. 71146/01 (Eur. Ct. H.R. July 1, 2008),
http://hudoc.echr.coe.int/eng?i=001-87213 [https://perma.cc/R66M-BNKP].
16
See generally Bor v. Hungary, App. No. 50474/08 (Eur. Ct. H.R. June 18, 2013),
http://hudoc.echr.coe.int/eng?i=001-120959 [https://perma.cc/FJ24-9WDV].
17
See generally Greenpeace e.V. v. Germany, App. No. 18215/06 (Eur. Ct. H.R.
May 12, 2009), http://hudoc.echr.coe.int/eng?i=001-92809 [https://perma.cc/9KRM-
LM4L] (decision on the admissibility).
18
See generally Kyrtatos v. Greece, 2003-VI Eur. Ct. H.R. 275.
19
See generally, e.g., Brânduşe v. Romania, App. No. 6586/03 (Eur. Ct. H.R.
Apr. 7, 2009), http://hudoc.echr.coe.int/eng?i=001-92073 [https://perma.cc/B59D-SCGR];
Locascia v. Italy, App. No. 35648/10 (Eur. Ct. H.R. June 23, 2010), http://hudoc.echr.coe.
int/eng?i=001-118326 [https://perma.cc/9WEQ-MRTE] (pending case).
20
See generally Dzemyuk v. Ukraine, App. No. 42488/02 (Eur. Ct. H.R. Sept. 4, 2014),
http://hudoc.echr.coe.int/eng?i=001-146357 [https://perma.cc/C77T-ABHL].
21
López Ostra v. Spain, App. No. 16798/90 (Eur. Ct. H.R. Dec. 9, 1994),
http://hudoc.echr.coe.int/eng?i=001-57905 [https://perma.cc/UXH7-2NQD] (which is often
regarded as one of the seminal cases relating to the environmental interpretation of ECHR
guarantees. It focused on the high concentration of leather industries in the town where the
applicant lived. She complained in particular of the municipal authorities’ inactivity
regarding the nuisance caused by a waste treatment plant situated a few meters away from
her home. She successfully held the Spanish authorities responsible, alleging that they had
adopted too passive an attitude.).
22
European Convention on Human Rights art. 8, Nov. 4, 1950, E.T.S. No. 5
[hereinafter ECHR], https://www.echr.coe.int/Documents/ConventionENG.pdf [https://
perma.cc/8YKT-TLR8] (amended 2010). Article 8 stipulates:
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.
Id.
23
See Alan Boyle, Human Rights or Environmental Rights? A Reassessment,
18 FORDHAM ENVTL. L. REV. 471, 485 (2006).
24
ECHR, supra note 22, at art. 2. Article 2 stipulates:
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 267
Starting Point for Climate Litigation in Strasbourg
the Court has dealt with dangerous industrial activities,
25
exposure to
nuclear radiation,
26
industrial emissions and health,
27
and natural
disasters.
28
Under Article 6(1) ECHR (Right to a Fair Trial),
29
access
to the Court,
30
lack of legal review,
31
and the failure to enforce final
judicial decisions
32
have been raised in an environmental context.
1. Everyone’s right to life shall be protected by law. No one shall be deprived of his
life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this
Article when it results from the use of force which is no more than absolutely
necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
Id.
25
See generally Öneryildiz v. Turkey, 2004-XII Eur. Ct. H.R. 79115, 125 (judgment of
the Grand Chamber).
26
See generally L.C.B. v. the United Kingdom, 1998-III Eur. Ct. H.R.
27
See generally Smaltini v. Italy, App. No. 43961/09 (Eur. Ct. H.R. Mar. 24, 2015),
http://hudoc.echr.coe.int/eng?i=001-153980 [https://perma.cc/L3B5-V6TJ] (decision on the
admissibility); Cordella v. Italy, App. Nos. 54414/13 and 54264/15 (Eur. Ct. H.R. Jan. 24,
2019), http://hudoc.echr.coe.int/eng?i=001-192164 [https://perma.cc/PJ6A-A3Z2].
28
See generally Özel v. Turkey, App. Nos. 14350/05, 15245/05, and 16051/05 (Eur. Ct.
H.R. Feb. 5, 2016), http://hudoc.echr.coe.int/eng?i=001-158803 [https://perma.cc/4ZB2-
DS8D].
29
ECHR, supra note 22, at art. 6. Article 6 stipulates:
1. In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded from all or part of the
trial in the interests of morals, public order or national security in a democratic
society, where the interests of juveniles or the protection of the private life of the
parties so require, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice.
Id.
30
See generally Athanassoglou v. Switzerland, 2000-IV Eur. Ct. H.R. (judgment of the
Grand Chamber); Ahunbay v. Turkey, App. No. 6080/06 (Eur. Ct. H.R. Jan. 29, 2019),
http://hudoc.echr.coe.int/eng?i=001-191120 [https://perma.cc/4US6-ZGVK] (decision on
the admissibility).
31
See generally Andersson v. Sweden, App. No. 29878/09 (Eur. Ct. H.R.
Sept. 25, 2014), http://hudoc.echr.coe.int/eng?i=001-146399 [https://perma.cc/5UTA-
B7AJ]; Steenbergen v. Netherlands, App. No. 19732/17 (Eur. Ct. H.R. Nov. 22, 2017),
http://hudoc.echr.coe.int/eng/?i=001-179526 [https://perma.cc/UB9Y-82RU] (pending
application).
32
See generally Apanasewicz v. Poland, App. No. 6854/07 (Eur. Ct. H.R. Mar. 5, 2011),
http://hudoc.echr.coe.int/eng?i=001-104672 [https://perma.cc/R6R6-ZGKK]; Başkanlığı v.
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
268 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
Under Article 3 ECHR (Prohibition of Torture and Inhuman and
Degrading Treatment),
33
the Court has discussed the issue of passive
smoking in detention.
34
In addition, the protection of the environment
has also been tackled under Article 10 ECHR (Freedom of
Expression),
35
Article 11 ECHR (Freedom of Assembly and
Association),
36
Article 13 ECHR (Right to an Effective Remedy),
37
Turkey, App. No. 25680/05 (Eur. Ct. H.R. June 19, 2018), http://hudoc.echr.coe.int/
eng?i=001-183860 [https://perma.cc/ZR9D-5TJ7].
33
ECHR, supra note 22, at art. 3. Article 3 stipulates: “No one shall be subjected to
torture or to inhuman or degrading treatment or punishment.” Id.
34
See generally Elefteriadis v. Romania, App. No. 38427/05 (Eur. Ct. H.R. Jan. 25,
2011), http://hudoc.echr.coe.int/eng?i=001-103007 [https://perma.cc/LH6M-NA9K].
35
ECHR, supra note 22, at art. 10. Article 10 stipulates:
1. Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. This article shall not prevent States
from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.
Id.; see generally Steel v. United Kingdom, 2005-II Eur. Ct. H.R.; Ahunbay, App. No.
6080/06 (decision on the admissibility).
36
ECHR, supra note 22, at art. 11. Article 11 stipulates:
1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as
are prescribed by law and are necessary in a democratic society in the interests of
national security or public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freedoms of
others. This article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the police or of the
administration of the State.
Id.; see generally Popa v. Romania, App. No. 47558/10 (Eur. Ct. H.R. July 26, 2016),
http://hudoc.echr.coe.int/eng?i=001-162206 [https://perma.cc/PD25-LJ7T].
37
ECHR, supra note 22, at art. 13 (stipulating that “[e]veryone whose rights and
freedoms as set forth in this Convention are violated shall have an effective remedy before
a national authority notwithstanding that the violation has been committed by persons acting
in an official capacity”); see generally Kolyadenko v. Russia, App. Nos. 17423/05,
20534/05, 20678/05, 23263/05, 24283/05, and 35673/05 (Eur. Ct. H.R. Feb. 28, 2012),
http://hudoc.echr.coe.int/eng?i=001-109283 [https://perma.cc/3T2E-66S6].
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 269
Starting Point for Climate Litigation in Strasbourg
Article 1 of Protocol No. 1 (Protection of Property),
38
and Article 5
ECHR (Right to Liberty and Security).
39
These enumerated rights suggest that the protection provided by the
judicial system is founded on a causal link between environmental
degradation and harm to human health and personal integrity. Even
though not explicitly mentioned in the provisions of the ECHR,
European case law recognizes the right to a healthy environment
through broad application of other rights expressly provided for in the
Convention.
40
However, not all infringements of the right to a healthy
environment can be invoked before the ECtHR “[as] other international
instruments and domestic legislation are more pertinent.”
41
The ability
of the ECHR to promote environmental protection has been questioned
in the past.
42
Indeed, the anthropocentrically focused environmental
38
ECHR, supra note 22, at Protocol No. 1, art. 1. Article 1 reads:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
No one shall be deprived of his possessions except in the public interest and subject
to the conditions provided for by law and by the general principles of international
law.
The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.
Id.; see generally Malfatto v. France, App. No. 40886/06 (Eur. Ct. H.R. Oct. 6, 2016),
http://hudoc.echr.coe.int/eng?i=001-166949 [https://perma.cc/Y2BD-CA8H]; Calancea v.
Republic of Moldova, App. No. 23225/05 (Eur. Ct. H.R. June 2, 2018), http://hudoc.echr.
coe.int/eng?i=001-181419 [https://perma.cc/Z9MV-55H9] (decision on the admissibility);
Kristiana Ltd. v. Lithuania, App. No. 36184/13 (Eur. Ct. H.R. Feb. 6, 2018),
http://hudoc.echr.coe.int/eng?i=001-180555 [https://perma.cc/9KSR-GWA3]; O’Sullivan
McCarthy Mussel Dev. Ltd. v. Ireland, App. No. 44460/16 (Eur. Ct. H.R. June 7, 2018),
http://hudoc.echr.coe.int/eng?i=001-183395 [https://perma.cc/225G-Y7MY]; Beinarovič v.
Lithuania, App. Nos. 70520/10, 21920/10, and 41876/11 (Eur. Ct. H.R. June 6, 2018),
http://hudoc.echr.coe.int/eng?i=001-183540 [https://perma.cc/RXR2-URL4].
39
See generally Mangouras v. Spain, 2010-IV Eur. Ct. H.R. (judgment of the Grand
Chamber).
40
See, e.g., Dinah Shelton, Human Rights, Health and Environmental Protection:
Linkages in Law and Practice, 1 HUM. RTS. & INT’L LEGAL DISCOURSE 9 (2007).
41
Kyrtatos v. Greece, 2003-VI Eur. Ct. H.R. 256, ¶ 52. Even though today it is often
argued that the ECtHR has recognized a right to a clean and healthy environment under the
ECtHR, this contrasts sharply with some judgments in which the Court emphasized that the
Convention does not guarantee such a right. See, e.g., Kania v. Poland, App. No. 12605/03
¶ 98 (Eur. Ct. H.R. July 21, 2009), http://hudoc.echr.coe.int/eng?i=001-93650 [https://
perma.cc/J9JP-65HJ].
42
See Malgosia Fitzmaurice, The European Convention on Human Rights and
Fundamental Freedoms and the Human Right to a Clean Environment: The English
Perspective, in LAW OF THE SEA, ENVIRONMENTAL LAW AND SETTLEMENT OF DISPUTES:
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
270 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
protection afforded by the ECtHR is limited by the fact that only those
who can claim to be personally affected by an incident causing
environmental degradation can bring such a claim before the ECtHR.
A direct link between the serious infringement of the protected right
and the degradation shall be established.
43
Furthermore, the Strasbourg
legal system has been designed to protect against concrete and
imminent hazards rather than to avert only potential risks.
44
Against the background of these objections, it is easy to forget that
the ECtHR has in the meantime recognized that an intact environment
is a conditio sine qua non for the enjoyment of most human rights. The
ECtHR has explicitly stated that according to Article 8 ECHR, which
has become a residual right in relation to other relevant environmental
norms of the Convention,
45
the individual has a right to live in a healthy
environment.
46
In most cases, however, only the environment in the
immediate vicinity of the individual fell within the scope of the
Convention.
47
A. The IPCC Definition of Climate Change
As the Court has not explicitly dealt with the term “climate change”
in its jurisprudence, it might be relevant to understand what the term
connotes. Climate change is an issue interlinked with the use of fossil
fuels and the emission of certain gases that affect the climate system of
the Earth.
48
A higher concentration of gases such as carbon dioxide,
methane, and CFC, among others, results in increased concentration of
energy in the troposphere, which leads to an increase in the average
LIBER AMICORUM JUDGE THOMAS A. MENSAH 53 (Tafsir Malick Ndiaye, Rüdiger
Wolfrum & Chie Kojima eds., 2007) (providing details on this debate).
43
PIERRE-MARIE DUPUY & JORGE E. VINUALES, INTERNATIONAL ENVIRONMENTAL
LAW 300 (2015).
44
See Balmer-Schafroth v. Switzerland, 1997-IV Eur. H.R. Rep. ¶ 40 (judgment of the
Grand Chamber); Hardy v. United Kingdom, App. No. 31965/07, ¶¶ 187– 92 (Eur. Ct. H.R.
Feb. 14, 2012), http://hudoc.echr.coe.int/eng?i=001-109072 [https://perma.cc/N9RL-
D8TD].
45
See COUNCIL OF EUROPE, MANUAL ON HUMAN RIGHTS AND THE ENVIRONMENT
(2nd ed., 2012) (providing a broad overview on the jurisprudence of the ECtHR in the field
of the environment); Katharina Franziska Braig, The European Court of Human Rights and
the Right to Clean Water and Sanitation, 20 WATER POL’Y 282 (2018) (addressing the more
specific sphere of water).
46
Karen Morrow, After the Honeymoon: The Uneasy Marriage of Human Rights and
the Environment Under the European Convention on Human Rights and in UK Law Under
the Human Rights Act 1998, 43 REVUE GÉNÉRALE DE DROIT 317, 328 (2013).
47
See, e.g., Kyrtatos v. Greece, 2003-VI Eur. Ct. H.R. 257, ¶ 52.
48
DUPUY & VINUALES, supra note 43, at 141–42.
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 271
Starting Point for Climate Litigation in Strasbourg
global temperature.
49
Climate change includes not only the global
warming process but also encompasses “greater climate variability . . .
to a higher frequency of extreme weather events such as heat waves,
heavy rains, violent storms, [and] droughts.”
50
The International Panel of Climate Change (IPCC) has established
with high confidence in its latest report that “[h]uman activities are
estimated to have caused approximately 1.0°C of global warming
above pre-industrial levels, with a likely range of 0.8°C to 1.2°C.”
51
The human-caused (anthropogenic) emissions will likely persist for a
long time, which will result in long-term changes in the climate system
and affect the environment. The observable and high-confidence
projected effects of climate change are an increase of “mean
temperature[s] in most land and ocean regions,” heat extremes in
various regions, and an increase of the sea level.
52
Climate change
affects the “risks to health, livelihoods, food security, water supply,
human security, and economic growth.”
53
The IPCC opines with high
confidence that “[p]opulations at disproportionately higher risk of
adverse consequences with global warming of 1.5°C and beyond
include disadvantaged and vulnerable populations, some indigenous
peoples, and local communities dependent on agricultural or coastal
livelihoods.”
54
Additionally, the report concludes that heat-related
morbidity and mortality will be higher if the temperature increases to
an average of 2°C instead of 1.5°C to pre-industrial levels.
55
Increased
temperatures could lead to “risks across energy, food, and water sectors
[that] could overlap spatially and temporally, creating new and
exacerbating current hazards, exposures, and vulnerabilities that could
affect increasing numbers of people and regions.”
56
49
Id. at 141.
50
Id. at 142.
51
INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE [IPCC], GLOBAL WARMING OF
1.5°C: SUMMARY FOR POLICYMAKERS 4 (2018), https://www.ipcc.ch/site/assets/uploads/
sites/2/2019/05/SR15_SPM_version_report_HR.pdf [https://perma.cc/V5BR-FG8M].
52
Id. at 7.
53
Id. at 9.
54
Id.
55
Id.
56
Id. at 10.
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
272 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
II
RELEVANCE OF THE DOCTRINE OF POSITIVE OBLIGATIONS
A. The Role of Positive Obligations in the Field of the Environment
The regime of human rights protection and the environment follows
the traditional three-tier structure of correlative obligations: (1) a duty
to respect the content of the protected right, (2) a positive obligation to
protect the right from infringements by third parties, and (3) a duty to
progressively fulfill the conditions for the full scope enjoyment of the
relevant right.
57
The “greening” of the ECHR is based, in particular, on
an evolutionary-dynamic interpretation—that is, on the interpretation
of the ECHR as a “living instrument”
58
—and on the doctrine of positive
obligations.
59
The interpretation methods are primarily based on
progressive or teleological interpretations which necessitate certain
adjustment to social needs or changes.
60
This is because the ECHR
predates most environmentally related international or regional
treaties.
61
The ECtHR has elaborated on the doctrine of positive
obligations by requiring States to actively protect human rights within
their jurisdictions through an interpretive design of using the human
health and integrity consideration as the prism through which the
effects of environmental degradation are measured onto the realization
of the full scope of the protected rights.
62
In more recent cases, the
ECtHR has also been more open to interpreting the effects of severe
environmental pollution on the well-being and enjoyment of private
57
DUPUY & VINUALES, supra note 43, at 304.
58
See, e.g., Paul Mahoney, Judicial Activism and Judicial Self-Restraint in the European
Court of Human Rights: Two Sides of the Same Coin, 11 HUM. RTS. L.J. 57 (1990); Stefan
Theil, Is the “Living Instrument” Approach of the European Court of Human Rights
Compatible with the ECHR and International Law?, 23 EUR. PUB. L. 587 (2017); see also
Selmouni v. France, 1999-V Eur. Ct. H.R. 149.
59
Usually, positive obligations comprise obligations under the ECHR which the state
needs to fulfill “in determining the steps to be taken to ensure compliance with the
Convention with due regard to the needs and resources of the community and of
individuals.” Lautsi v. Italy, 2011-III Eur. Ct. H.R. 61, 91. Positive obligations may be
defined in contrast to negative obligations, where the state is mainly obliged not to interfere
with the personal sphere of an individual; see Alastair Mowbray, The Creativity of the
European Court of Human Rights, 5 HUM. RTS. L. REV. 57, 75 (2005); Laurens Lavrysen,
Causation and Positive Obligations Under the European Convention on Human Rights:
A Reply to Vladislava Stoyanova, 4 HUM. RTS. L. REV. 705, 709 (2018).
60
See Loizidou v. Turkey, App. No. 15318/89, ¶ 72 (Eur. Ct. H.R. Mar. 23, 1995),
http://hudoc.echr.coe.int/eng?i=001-57920 [https://perma.cc/B7DZ-LN8F] (judgment on
preliminary objections).
61
DUPUY & VINUALES, supra note 43, at 305.
62
See id. at 301–09 (explaining cultural considerations in inter-American and African
systems).
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 273
Starting Point for Climate Litigation in Strasbourg
and family life without strictly linking it to endangerment to health.
63
This approach may include the adoption of preventive and repressive
measures against the infringements of human rights perpetrated not
only by the State’s action but also by private individuals. The present
Article will outline the positive obligations through which the ECtHR
has contributed to the formation of environmental law in Europe.
64
Then it examines to what extent these obligations apply to a climate
change context.
Today, the Strasbourg case law includes several positive obligations
on the environmental field, including such procedural and substantive
duties as (1) an obligation to grant access to environmental
information;
65
(2) an obligation to guarantee public participation in
environmental decision-making;
66
(3) an obligation to grant access to
courts regarding environmental matters;
67
(4) an obligation to enact
environmental legislation;
68
(5) a duty to conduct studies, research, and
environmental impact assessments to ensure compliance with the
precautionary principle;
69
(6) an obligation to meet adequate safety
precautions;
70
(7) an obligation to prosecute and punish polluters
causing environmental damage;
71
and (8) an obligation to deal with
omissions by the States and inefficient measures.
72
63
See López Ostra v. Spain, 303-C Eur. Ct. H.R. (ser. A) ¶ 51 (1994).
64
See, e.g., Alexios Antypas et al., Linking Environmental Protection, Health, and
Human Rights in the European Union, An Argument in Favour of Environmental Justice
Policy, 20 ENVTL. L. & MGMT. 8 (2008); see also Locascia v. Italy, App. No. 35648/10
(Eur. Ct. H.R. June 23, 2010), http://hudoc.echr.coe.int/eng/?i=001-118326 [https://perma.
cc/MWE2-X5DA] (pending case); Cordella v. Italy, App. Nos. 54414/13 and 54264/15
(Eur. Ct. H.R. Jan. 24, 2019), http://hudoc.echr.coe.int/eng?i=001-192164 [https://perma.cc/
G6SZ-BTD8] (pending case).
65
See generally Guerra v. Italy, 1998-I Eur. Ct. H.R., ¶ 60 (judgment of the Grand
Chamber).
66
See generally Hatton v. United Kingdom, 2003-VIII Eur. Ct. H.R. 189, 227 (judgment
of the Grand Chamber).
67
See generally Moor v. Switzerland, App. Nos. 52067/10 and 41072/11 (Eur. Ct.
H.R. Mar. 11, 2014), http://hudoc.echr.coe.int/eng?i=001-141952 [https://perma.cc/P3VT-
CC2N].
68
See generally Öneryildiz v. Turkey, 2004-XII Eur. Ct. H.R. 79 (judgment of the Grand
Chamber).
69
See generally Tătar v. Romania, App. No. 67021/01, ¶ 114 (Eur. Ct. H.R. Jan. 27,
2009), http://hudoc.echr.coe.int/eng?i=001-90981 [https://perma.cc/W5S5-ZYEH].
70
Budayeva v. Russia, 2008-II Eur. Ct. H.R. ¶ 156.
71
Öneryildiz, 2004-XII Eur. Ct. H.R., ¶ 91 (judgment of the Grand Chamber).
72
Oluic v. Croatia, App. No. 61260/08 ¶ 66 (Eur. Ct. H.R. May 20, 2010),
http://hudoc.echr.coe.int/eng?i=001-98829 [https://perma.cc/SKG6-9EXT].
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
274 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
B. The Doctrine of Positive Obligations Developed in the Field of
the Environment as a Ground to Tackle Threats Posed by
Climate Change?
To what extent can the doctrine of positive obligations in the field
of the environment serve as a basis for assessing climate change
policies with regard to their potential implications for human rights? If
applied to threats posed by climate change, the picture of positive
environmental obligations—most of them procedural safeguards
73
—
presents itself as follows in the subsections below.
74
1. Access to Information Related to the Risks of Climate Change and
Public Participation in Decision-Making in the Field of Climate
Change
According to the current jurisprudence of the ECtHR, the public has
a right to information concerning environmental risks that could
potentially cause considerable damage to its health.
75
This approach
generally follows the Aarhus Convention framework.
76
States are
obliged to collect relevant environmental information and to guarantee
an effective information system for their citizens.
77
Thus, States must
ensure access to an independent body that allows the members of the
public to obtain information relevant to their physical integrity.
78
The
activities are qualified by their significant effect on the environment,
especially when “proposed activities in locations where the
characteristics of proposed development would be likely to have
significant effects on the population” or “giving rise to serious effects
on humans.”
79
According to the ECtHR in Brânduşe, the public must
have access “to the conclusions of the studies . . . and information to
assess the risk to which [the population is] exposed.”
80
In this case, in
73
See Jean-François Akandji-Kombe, Positive Obligations Under the European
Convention on Human Rights, A Guide to the Implementation of the European Convention
on Human Rights, in HUMAN RIGHTS HANDBOOKS 58–64 (2007) (distinguishing between
procedural and substantive safeguards in the context of positive obligations).
74
See generally ECHR, supra note 22, at art. 8 (setting out source of law for obligations
imposed by the European Court of Human Rights).
75
L.C.B. v. United Kingdom, 1998-III Eur. Ct. H.R., ¶ 38.
76
See Aarhus Convention, arts. 2(3), 4–8, June 25, 1998, 2161 U.N.T.S. 447.
77
McGinley v. United Kingdom, 2000-I Eur. Ct. H.R., ¶¶ 99, 102.
78
Roche v. United Kingdom, 2005-X Eur. Ct. H.R., ¶ 169 (judgment of the Grand
Chamber).
79
Espoo Convention on Environmental Impact Assessment in a Transboundary Context,
appendix III, ¶ 1, Feb. 25, 1991, 1989 U.N.T.S. 309.
80
Brânduşe v. Romania, App. No. 6586/03, ¶ 74 (Eur. Ct. H.R. Apr. 7, 2009),
http://hudoc.echr.coe.int/eng?i=001-92131 [https://perma.cc/6LYQ-7AQL].
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 275
Starting Point for Climate Litigation in Strasbourg
which the ECtHR found a violation of Article 8 ECHR, the Court held
that the public had been insufficiently informed of the risk before and
even after the contested accident, which had polluted large quantities
of river water with cyanide.
81
According to the Court, the state inaction
was because no precautionary measures had been taken regarding
further potential incidents.
82
According to the ECtHR, the government
must also be able to demonstrate the efforts made to enable the
applicant to have effective access to the results of EIAs and to
information that would enable him to assess the health risk to which he
was exposed.
83
The EIAs are clearly recognized under general
international law as the practice
has gained so much acceptance among States that it may now be
considered a requirement under general international law to
undertake an environmental impact assessment where there is a risk
that the proposed industrial activity may have a significant adverse
impact in a transboundary context, in particular, on a shared
resource.
84
Arguably, such an obligation to inform the public about the results
of an EIA and to provide other relevant information includes risks
posed by climate change. Access to information on general and specific
aspects of climate change is essential for preventive measures. Such
access to adequate and specific information could help an individual in
a coastal area assess the risks related to housing, choose a place to live
in a low-risk area, or—in a flood event—evacuate in due time.
Moreover, according to the established case law of the ECtHR,
States must guarantee public participation in decision-making
processes that may affect the environment.
85
Such public participation
is required for the approval of projects with a significant environmental
impact, such as industrial plants and new infrastructure projects.
86
According to the Court, the national decision-making process in
environmental protection decisions must include two basic
prerequisites. These prerequisites are expert opinions (which are
81
Tătar v. Romania, App. No. 67021/01, ¶ 98 (Eur. Ct. H.R. Jan. 27, 2009), http://
hudoc.echr.coe.int/eng?i=001-90981 [https://perma.cc/KX34-NHPQ].
82
Id. ¶ 124.
83
Id. ¶ 115.
84
Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 135, ¶ 204
(Apr. 20, 2010).
85
See Giacomelli v. Italy, 2006-XII Eur. Ct. H.R. 347, 363–64.
86
Tătar, App No. 67021/01, ¶ 124.
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
276 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
collected beforehand) and a right to information and participation.
87
Only when citizens have been adequately involved in the decision-
making process leading to an alleged environmental degradation does
the Court consider that a fair balance has been found between the
conflicting interests.
88
If public participation in the authorization
procedure is required by national law, it must be carried out in
accordance with the case law on Article 8 ECHR.
89
Thus, one could argue that an inclusionary approach to tackling
future climate risks would be a logical next step in the reasoning of the
ECtHR. It is possible that in formulating responses to climate change
risks, the ECtHR will call for public participation, for example, when
it comes to coastal management, or other climate change adaptation
actions, that are organized at a non-global scale.
90
Consequently, the
ECtHR could argue that adaptive measures are often place- and
context-specific, with implications for a relatively delimited set of
stakeholders and required know-how tailored to local conditions.
2. Access to Courts Regarding Climate Change Matters
According to Article 6 ECHR, comprehensive access to justice in
environmental matters must be granted.
91
First, if individual interests
have not been sufficiently taken into account, the persons concerned
must be granted the possibility to take legal action against government
acts and omissions.
92
Even before carrying out potentially polluting
activities, the public must have the possibility to open legal proceedings
if it finds that its interests have not been adequately considered in the
planning process.
93
Second, it must be guaranteed that the issue of state
responsibility for alleged environmental degradation can be effectively
investigated and adjudicated by a court or an administrative authority.
94
Third, there should be no unnecessary delays in the proceedings
87
See generally Hatton v. United Kingdom, 2003-VIII Eur. Ct. H.R. 189, 223 (judgment
of the Grand Chamber).
88
Id. at 228.
89
Giacomelli, 2006-XII Eur. Ct. H.R., at 366.
90
See IPCC, supra note 51, at 12.
91
See Moor v. Switzerland, App. Nos. 52067/10 and 41072/11, ¶ 74–80 (Eur. Ct. H.R.
Mar. 11, 2014), http://hudoc.echr.coe.int/eng?i=001-141567 [https://perma.cc/6RK5-
9FL3].
92
See Taşkın v. Turkey, 2004-X Eur. Ct. H.R. 179, 206 (providing an example of the
ECtHR referring to Art. 8 ECHR in this context).
93
Tătar v. Romania., App. No. 67021/01, ¶ 124 (Eur. Ct. H.R. Jan. 27, 2009),
http://hudoc.echr.coe.int/eng?i=001-90909 [https://perma.cc/WFD4-KC2R].
94
See generally Budayeva v. Russia, 2008-II Eur. Ct. H.R. 267, 295–96.
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 277
Starting Point for Climate Litigation in Strasbourg
brought before the Court, and where a rapid procedure is provided for
in national law, it must be used.
95
Fourth, judicial decisions, in which
business activities that pollute the environment are determined as
unlawful, must be implemented.
96
Political decision makers should not
be able to revise these decisions through a ministerial decision, for
example.
97
Article 8 ECHR also triggers a right of access to a court.
98
Individuals, who should be involved in the decision-making process,
considering that their interests have not been given sufficient weight,
must have a recourse to appeal to a court. In this manner, their
complaint may be not only about an improper decision-making process
but also about individual scientific studies requested by the public
authorities even in cases when the necessary documents have not been
made publicly available.
99
In this respect, the right of access to a court
based on Article 8 ECHR appears broader than that of Article 6 ECHR,
since the former does not require the outcome of court proceedings to
determine an applicant’s rights.
100
Article 8 does not require a
possibility of grave danger, which in contrast serves as the prerequisite
for the recognition of the right to access a court under Article 6.
101
Thus,
climate-related claims might also be discussed under Article 8.
When applied to the context of climate change, the comprehensive
access to justice could, for example, allow the public to initiate legal
proceedings if its interests have not been adequately considered in the
planning process. Legal proceedings should be permitted before
industrial activities that considerably contribute to climate change (by
emitting large quantities of greenhouse gases (GHG)) are carried out.
3. Obligation to Enact Legislation on Climate Change Issues
According to the established case law of the ECtHR, States are
obliged to adopt environmental legislation. In particular, legislation
95
Mileva v. Bulgaria, App. Nos. 43449/02 and 21475/04, ¶ 100 (Eur. Ct. H.R. Nov. 25,
2010), http://hudoc.echr.coe.int/eng?i=001-101815 [https://perma.cc/4Y4E-MZAC].
96
Giacomelli v. Italy, 2006-XII Eur. Ct. H.R. 345, 366.
97
Lemke v. Turkey, App. No. 17381/02, ¶ 52 (Eur. Ct. H.R. June 5, 2007),
http://hudoc.echr.coe.int/eng?i=001-80859 [https://perma.cc/P8BU-6HSW].
98
See generally Mileva, App. Nos. 43449/02 and 21475/04, ¶ 102.
99
See generally Grimkovskaya v. Ukraine, App. No. 38182/03, ¶ 69 (Eur. Ct. H.R. July
21, 2011), http://hudoc.echr.coe.int/eng?i=001-105746 [https://perma.cc/5PH9-RHD4].
100
See generally Taşkın v. Turkey, 2004-X Eur. Ct. H.R. 179, 209–10; Lemke, App. No.
17381/02, ¶ 53.
101
Taşkın, 2004-X Eur. Ct. H.R., at 207.
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
278 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
must regulate dangerous activities and guarantee a decision-making
process based on studies and evaluations of the possible existence of
environmental and health risks.
102
For example, States must have
adequate procedures for the approval, operation, and monitoring of
industrial plants.
103
In addition, States are obliged to implement and
execute any existing environmental regulations in an appropriate
manner.
104
When adapted to the more specific context of climate change, it is
likely that the ECtHR would, in the light of its case law, come to the
conclusion that a positive obligation exists for States to implement and
execute adequate legislative provisions to evaluate and mitigate climate
change.
4. Duty to Monitor and Control
According to the established case law of the ECtHR, the physical
integrity of the individual can be impaired not only by lack of adequate
environmental protection laws but also when existing requirements are
not (adequately) applied. States are able to learn about dangerous
situations in a timely manner, and inform the public if necessary, only
if they have a functioning system to control and monitor environmental
dangers at all levels of responsibility.
105
Therefore, the failure to rectify
the ineffective enforcement of existing environmental law can also lead
to a breach of Article 8 ECHR.
106
In the context of climate change, this could mean that there is an
infringement of the Convention if a State fails to control highly
polluting industries to ensure an adequate decrease of GHG emissions.
In the case Kolyadenko v. Russia, the Court already concluded that an
infringement of the Convention occurs if a State fails to closely monitor
flood risks.
107
The reasoning of the Court in this case could also be
102
Tătar v. Romania, App. No. 67021/01, ¶ 88 (Eur. Ct. H.R. Jan. 27, 2009),
http://hudoc.echr.coe.int/eng?i=001-90909 [https://perma.cc/5264-GQS7].
103
See generally Öneryildiz v. Turkey, 2004-XII Eur. Ct. H.R. 79, 115 (judgment of the
Grand Chamber).
104
Cf. Mangouras v. Spain, 2010-V Eur. Ct. H.R. 317, 334 (2009) (judgment of the
Grand Chamber).
105
See generally Dimitris Xenos, Asserting the Right to Life (Article 2, ECHR) in the
Context of Industry, 8 GERMAN L.J. 231 (2007).
106
Brânduşe v. Romania, App. No. 6586/03, ¶ 71 (Eur. Ct. H.R. Apr. 7, 2009),
http://hudoc.echr.coe.int/eng?i=001-92073 [https://perma.cc/5F5H-23FB].
107
Kolyadenko v. Russia, App. Nos. 17423/05, 20534/05, 20678/05, 23263/05,
24283/05, and 35673/05, ¶ 216 (Eur. Ct. H.R. Feb. 28, 2012), http://hudoc.echr.coe.int/
eng?i=001-109283 [https://perma.cc/W7PU-N5DH].
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 279
Starting Point for Climate Litigation in Strasbourg
applied by analogy to scenarios involving a rising sea level, caused by
climate change, which might come along with a considerable danger
for the life and property of coastal residents if there is no effective
monitoring.
5. Obligation to Conduct Studies, Research, and Environmental
Impact Assessments to Ensure Compliance with the
Precautionary Principle
In the past, the Court claimed that when it comes to complex
environmental issues, “the decision-making process must . . . involve
. . . appropriate investigations and studies, so as to prevent and evaluate
in advance the effects of those activities that may be harmful to the
environment and the rights of individuals. . . .”
108
According to the case
law of the Court, the authorities are not allowed to fulfill this obligation
a posteriori.
109
The ECtHR stated that the existence of a serious and
material risk to the health and well-being of the applicant would, in any
case, create a positive obligation for the State to evaluate and assess
such a risk.
110
The Tătar case lays down specific requirements for EIAs
(e.g., the environmental impact report must be accessible to the
public).
111
Moreover, the ECtHR expressly referred, for the first time,
to the precautionary principle: the fact that the operating company in
casu was allowed to continue the operation after a serious accident was
incompatible with the precautionary principle. The precautionary
principle requires authorities to take measure in foreseeable
circumstances of more than hypothetical scientific uncertainty rather
than waiting for the realization of the seriousness of the risks in reality
that may cause significant, serious, or substantial harm.
112
108
Öçkan v. Turkey, App. No. 46771/99, ¶ 43 (Eur. Ct. H.R. Mar. 28, 2006),
http://hudoc.echr.coe.int/eng?i=001-72910 [https://perma.cc/PGU2-P466].
109
Giacomelli v. Italy, 2006-XII Eur. Ct. H.R. 345, ¶ 82–83.
110
Tătar v. Romania, App No. 67021/01, ¶ 114 (Eur. Ct. H.R. Jan. 27, 2009),
http://hudoc.echr.coe.int/eng?i=001-90909 [https://perma.cc/4YPJ-HRB2]; see also Gaida
v. Germany, App. No. 32015/02 (Eur. Ct. H.R. July 3, 2007), http://hudoc.echr.coe.int/
app/conversion/pdf/?library=ECHR&id=001-81875&filename=001-81875.pdf&TID=
lbdlqbchek [https://perma.cc/QM5W-R2QF] (decision on the admissibility).
111
Tătar, App No. 67021/01, ¶¶ 114–15.
112
Id. ¶ 70; see also Case T-74/00, Artegodan GmbH v. Comm’n, 2002 II-4948; 1996
Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes
and Other Matter, Nov. 7, 1996, 36 I.L.M. 1 (discussing marine pollution); Convention on
Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79 (discussing biodiversity and marine
living resources); United Nations Framework Convention on Climate Change, art. 3(3), May
9, 1992, 1771 U.N.T.S. 107; Convention on the Protection and Use of Transboundary
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
280 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
It is fair to assume that the ECtHR would not considerably defer
from this jurisprudence in serious and material climate change-related
risks to the health and well-being of applicants. Thus, the precautionary
principle could help deal with scientific uncertainties of the long-term
effects of climate change.
6. Fulfillment of Adequate Safety Precautions
It can be deduced that the ECHR contains a duty to provide adequate
safety precautions concerning potentially dangerous situations for the
environment and in fine for humans.
113
The State does not comply with
this obligation if, for example, it fails to install a warning system or
poorly maintains protective infrastructure, despite foreseeable
dangers.
114
In particular, the State must take appropriate safeguards to
prevent any infringement of the Convention if national authorities have
received complaints about a planned polluting activity,
115
or if such an
activity is illegal.
116
If necessary, appropriate protective measures must
be taken both in advance—for example, prior to the approval of a
potentially dangerous enterprise,
117
—as well as ex post—after an
accident or occurrence of environmental degradation.
118
Here, risks to
the environment, which may bear no direct influence on the health and
well-being of people, are included.
119
Thus, whenever there is a foreseeable danger emanating from
climate change, it is likely that the ECtHR would apply the same
threshold and require the State to meet adequate safety precautions.
Similar to the ECtHR’s argumentation in Öneryildiz (in which the
Watercourses and International Lakes, Mar. 17, 1992, 1936 U.N.T.S. 269 (discussing
international watercourses); Bamako Convention on the Ban of the Import into Africa and
the Control of Transboundary Movement and Management of Hazardous Wastes within
Africa, Jan. 30, 1991, 2101 U.N.T.S. 177 (discussing transboundary trade in hazardous
waste); Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, 1513
U.N.T.S. 293.
113
See generally Vilnes v. Norway, App. Nos. 52806/09 and 22703/10 (Eur. Ct. H.R.
Dec. 5, 2013), http://hudoc.echr.coe.int/eng?i=001-138597 [https://perma.cc/YF9Z-7H2N].
114
Budayeva v. Russia, 2008-II Eur. Ct. H.R. 267, 285–86, ¶ 116.
115
See, e.g., Moreno Gómez v. Spain, 2004-X Eur. Ct. H.R. 327, 342.
116
Oluic v. Croatia, App. No. 61260/08, ¶ 62 (Eur. Ct. H.R. May 20, 2010),
http://hudoc.echr.coe.int/eng?i=001-98829 [https://perma.cc/7GGT-JZBT].
117
Fadeyeva v. Russia, 2005-IV Eur. Ct. H.R. 255, 282, ¶ 89.
118
Tătar v. Romania, App No. 67021/01, ¶ 114 (Eur. Ct. H.R. Jan. 27, 2009),
http://hudoc.echr.coe.int/eng?i=001-90909 [https://perma.cc/4YPJ-HRB2].
119
Mileva v. Bulgaria, App. Nos. 43449/02 and 21475/04, ¶¶ 97, 99 (Eur. Ct. H.R. Nov.
25, 2010), http://hudoc.echr.coe.int/eng?i=001-101815 [https://perma.cc/MF7K-PMKL].
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 281
Starting Point for Climate Litigation in Strasbourg
Court found a violation of Article 2 ECHR),
120
the District Court of the
Hague argued in Urgenda, in the context of climate change policies,
that if there is a high risk of dangerous climate change with severe and
life-threatening consequences for humans and the environment, the
State has the obligation to protect its citizens by taking appropriate and
effective measures.
121
7. Prosecution and Punishment of Polluters Causing Damage to the
Climate
In the case of an environmental impairment, which is a priori not in
line with the Convention, it is not sufficient if the concerned parties are
being offered alternatives to genuine and effective investigation. The
State not only must prohibit the disputed behavior but also is
encouraged to initiate effective inquiries
122
in order to identify the
persons responsible for illegal environmental impacts at all levels of
responsibility.
123
If necessary, the State must bring such persons to
justice and punish them appropriately.
124
The sanctions applied must
encourage the polluter of the environment to take necessary protective
measures.
125
As the severe breach of laws on climate change mitigation can also
entail a negative impact for the environment, it is likely that the same
obligations will apply to the prosecution and punishment of private
parties causing damage to the climate.
8. Omissions by the States and Inefficient Measures
The principle of effectiveness limits considerably the freedom of
States to select from different measures in environmental matters.
126
Unsuitable means of protection against environmental pollution, as
120
Öneryildiz v. Turkey, 2004-X Eur. Ct. H.R. 1, 37–38, 41–42, ¶ 89–90, 100–02
(judgment of the Grand Chamber).
121
Urgenda Found. v. Netherlands, Hague Ct. Rep., 2015 HAZA C/09/00456689 (June
24, 2015).
122
Cf. Ergi v. Turkey, App. No. 66/1997/850/1057, ¶ 82 (Eur. Ct. H.R. July 28, 1998),
http://hudoc.echr.coe.int/eng?i=001-58200 [https://perma.cc/5FEC-FWDH].
123
Budayeva v. Russia, 2008-II Eur. Ct. H.R. 267, ¶ 123.
124
See, e.g., Mangouras v. Spain, 2010-V Eur. Ct. H.R., 317, 335 (judgment of the
Grand Chamber).
125
See, e.g., Fadeyeva v. Russia, 2005-IV Eur. Ct. H.R., 255, 292.
126
Oluic v. Croatia, App. No. 61260/08, ¶¶ 65–66 (Eur. Ct. H.R. May 20, 2010),
http://hudoc.echr.coe.int/eng?i=001-98829 [https://perma.cc/Z4ZX-ZSBT].
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
282 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
well as inactivity, infringe the State’s positive obligations.
127
If, by
virtue of passive conduct, a State fails to enforce prohibitions or fails
to carry out necessary controls,
128
the government authorities bear a
(co-)responsibility for the (continuing) existence of the negative
impacts, which can lead to an infringement of the ECHR obligations.
129
Even if some environmental protection measures have been taken,
there can be an infringement of the Convention if protection measures
are not sufficient to create a fair balance between the conflicting
interests.
130
The measures taken must also take effect within a
foreseeable period.
131
The ECtHR is thus not limited to pure “actionism” by national
authorities in combating environmental pollution but the Court calls for
protective measures that are indeed proven to be effective.
132
This
means that climate change mitigation measures, considered to be
beneficial to the environment as a whole, have to be equally effective,
adequate, and proven.
III
POSSIBLE CHALLENGES TO POSITIVE OBLIGATIONS IN THE FIELD
OF CLIMATE CHANGE
After establishing the positive obligations under the ECHR, there is
still leeway for the protection of newly emerging environmental
hazards and risks related to climate change. The following section
offers an overview of the main challenges to the application of the
Court’s jurisprudence to climate change-related cases.
127
Cf. Plattform “Ärzte für das Leben” v. Austria, App. No. 10126/82, ¶¶ 30–31
(Eur. Ct. H.R. June 21, 1988), https://hudoc.echr.coe.int/eng?i=001-57558 [https://perma.
cc/84ML-XDF6].
128
See, e.g., Mileva v. Bulgaria, App. Nos. 43449/02 and 21475/04, ¶ 99 (Eur. Ct.
H.R. Nov. 25, 2010), http://hudoc.echr.coe.int/eng?i=001-101815 [https://perma.cc/DZ8B-
Z44G].
129
See, e.g., Moreno Gómez v. Spain, 2004-X Eur. Ct. H.R., ¶¶ 61–62.
130
See, e.g., Fadeyeva, 2005-IV Eur. Ct. H.R., ¶¶ 132–34.
131
See, e.g., Ledyayeva v. Russia, App. Nos. 53157/99, 53247/99, 53695/00, and
56850/00, ¶ 110 (Eur. Ct. H.R. Oct. 26, 2006), http://hudoc.echr.coe.int/eng?i=001-77688
[https://perma.cc/D3WL-REK7].
132
See, e.g., Oluic v. Croatia, App. No. 61260/08, ¶¶ 48–66 (Eur. Ct. H.R. May 20,
2010), http://hudoc.echr.coe.int/eng?i=001-98829 [https://perma.cc/Z4ZX-ZSBT].
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 283
Starting Point for Climate Litigation in Strasbourg
A. Public Interest
The first challenge is related to the acceptance in society of a certain
residual risk when environmental protection is assessed.
133
The Court
considers that justification of the full scope of protection under Article
8(2) of the ECHR can be established if the public interest inter alia in
the form of the overall economic interest of a country in accordance
with the law and necessary in a democratic society is at stake.
134
This
margin is particularly large in environmental matters.
135
This might
lead the ECtHR to decide that Article 8(2) protections extend to
climate-related issues.
Nonetheless, there are clearly established restrictions: “Financial
imperatives and even certain fundamental rights, such as ownership,
should not be afforded priority over environmental protection
considerations[.]”
136
The ECtHR has also argued that environmental
considerations can constitute a public interest.
137
As the ECtHR
provides no legal definition of public interest, it is difficult to judge
whether, and at what point in time, the ECtHR is ready to recognize the
mitigation of climate change as a public interest. Before the recognition
of the environment as a public interest, the ECtHR has taken into
consideration growing tendencies to tackle environmental depletion on
not only domestic but also European and international levels.
138
Such tendencies might be particularly relevant for rights linked to
economic activities. Article 1 Protocol 1, in substance, guarantees the
right to property and peaceful enjoyment of possessions. This right is
133
See, e.g., Fadeyeva, 2005-IV Eur. Ct. H.R., ¶¶ 66–70; Kania v. Poland, App. No.
12605/03, ¶¶ 100–04 (Eur. Ct. H.R. July 21, 2009), http://hudoc.echr.coe.int/eng?i=001-
93650 [https://perma.cc/FUQ3-6QHW]; Trouche v. France, App. No.19867/92 (Eur. Ct.
H.R. Sept. 1, 1993), http://hudoc.echr.coe.int/eng?i=001-25439 [https://perma.cc/D3BD-
5L57] (decision on the admissibility).
134
See, e.g., Zammit Maempel v. Malta, App. No. 24202/10, ¶ 67 (Eur. Ct. H.R.
Nov. 22, 2011), http://hudoc.echr.coe.int/eng?i=001-107514 [https://perma.cc/JE86-96GL];
G. v. Norway, App. No. 12671/87 (Eur. Ct. H.R. Oct. 3, 1983), http://echr.ketse.com/
doc/9278.81-en-19831003/view/ [https://perma.cc/BSA6-BGFB] (decision on the
admissibility); Noack v. Germany, 2000-VI Eur. Ct. H.R. (decision on the admissibility).
135
See Hana Müllerová, Environment Playing Short-Handed: Margin of Appreciation
in Environmental Jurisprudence of the European Court of Human Rights, 24 REV. EUR.,
COMP. & INT’L ENVTL. L., 83, 83–84 (2015).
136
Turgut v. Turkey, App. No. 1411/03, ¶ 90 (Eur. Ct. H.R. July 8, 2009),
http://hudoc.echr.coe.int/eng?i=001-87441 [https://perma.cc/D6UV-X6SM].
137
Steel v. United Kingdom, 2005-II Eur. Ct. H.R., ¶ 89.
138
Mangouras v. Spain, 2010-V Eur. Ct. H.R. 317, ¶ 86 (judgment of the Grand
Chamber).
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
284 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
subject to state interference to protect the public interest in line with
conditions provided for by law, and the general principles of
international law, including control of property use in accordance with
the general interest, among others.
139
Consequently, in a scenario
similar to the Hatton case (in which the ECtHR had to balance
economic interests against environmental considerations),
140
the
ECtHR could decide that a strict climate change policy serves a
legitimate public interest to limit the rights under Article 1 Protocol 1
of the Convention. Environmental protection is considered to fall
within the scope of public interest as “the environment is a cause whose
defence arouses the constant and sustained interest of the public, and
consequently the public authorities.”
141
Thus, the ECtHR has
established that “[f]inancial imperatives . . . should not be afforded
priority over environmental protection considerations, in particular
when the State has legislated in this regard.”
142
The notion of the public
interest is extensive and the States enjoy a wide margin of appreciation
as to what constitutes public interest in their jurisdictions, unless the
principle is applied “manifestly without reasonable foundation.”
143
If
the ECtHR were to assess whether the mitigation of climate change can
be assessed as a public interest, it presumably would come to the same
conclusion, especially in light of the growing consensus on the harmful
effects of climate change in the international community.
144
Such a
pattern is clearly illustrated in several European States, which have
passed domestic legal frameworks to combat climate change
145
—a
momentum that reflects ongoing societal change. Therefore, the
adoption of measures contrary to the international commitments of a
State to reduce its emissions would not be in line with the public
interest test under Article 8(2) of the Convention.
139
See generally, e.g., Turgut, App. No. 1411/03.
140
See generally Hatton v. United Kingdom, App. No. 36022/97 (Eur. Ct. H.R.
Oct. 2, 2001), http://hudoc.echr.coe.int/eng?i=001-59686 [https://perma.cc/7R6M-5XXE]
(judgment of the Grand Chamber).
141
Hamer v. Belgium, 2007-V Eur. Ct. H.R. 73, ¶ 79.
142
Id.
143
Vistins v. Latvia, 2014-I Eur. Ct. H.R. 427, ¶ 106; see Nagy v. Hungary, App. No.
53080/13, ¶ 113 (Eur. Ct. H.R. Dec. 13, 2016), http://hudoc.echr.coe.int/eng?i=001-169663
[https://perma.cc/52XS-T9HA] (judgment of the Grand Chamber).
144
Naomi Oreskes, The Scientific Consensus on Climate Change, 306 SCI. 1686, 1686
(2004); see generally IPCC, supra note 51.
145
See generally Diana Reckien et al., Climate Change Response in Europe: What’s the
Reality? Analysis of Adaptation and Mitigation Plans from 200 Urban Areas in 11
Countries, 122 CLIMATIC CHANGE 331 (2014).
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 285
Starting Point for Climate Litigation in Strasbourg
Article 8(2) inherently engages the proportionality test, which is
based on balancing the interests of the States against the rights of the
applicant through the “necessary in a democratic society” test. A
margin of appreciation is given to States when establishing the pressing
social need for the interference at hand in order to consider whether the
reasons for the justification are relevant and sufficient and whether the
measures are proportionate to the pursued legitimate aim.
146
The principle of proportionality plays a crucial role in environmental
litigation because many potentially polluting activities, including those
that are detrimental to third parties, need to be balanced and assessed
by their suitability, necessity, and restrictiveness to support the
functioning of an industrial society.
147
Thus, it is likely that the ECtHR
would also apply the proportionality principle in order to perform the
balancing test in assessing activities that may pose, to some extent, a
threat to the climate.
B. Burden of Proof, Insufficient Causal Link, or Insufficient
Probability of Occurrence
In the climate context, it will undoubtedly be difficult to prove that
a specific environmental hazard was caused by climate change, even
though there exists scientific evidence that climate change increases
extreme weather conditions. Such evidence is the cornerstone in a
climate change regime. In the ECtHR, the burden of proof primarily
rests with the applicant to establish whether “the authorities knew or
ought to have known”
148
about risks to the protection of life, such as
climate change. According to the jurisprudence of the ECtHR, States
have an obligation to regulate risks for the environment and human
health.
149
146
Z v. Finland, 1997-I Eur. Ct. H.R., ¶ 94.
147
See López Ostra v. Spain, A303-C Eur. Ct. H.R., ¶¶ 7, 49, 56 (1994); L.C.B. v. United
Kingdom, 1998-III Eur. Ct. H.R., ¶ 36; Băcilă v. Romania, App. No. 19234/04, ¶ 69
(Eur. Ct. H.R. Mar. 30, 2010), http://hudoc.echr.coe.int/eng-press?i=003-3082022-3410931
[https://perma.cc/SUY7-FGVQ]; see generally Hatton v. United Kingdom, App. No.
36022/97 (Eur. Ct. H.R. Oct. 2, 2001), http://hudoc.echr.coe.int/eng?i=001-59686
[https://perma.cc/7R6M-5XXE] (opinion of Judge Greve); Ward v. United Kingdom, App.
No. 31888/03 (Eur. Ct. H.R. Nov. 9, 2004), http://hudoc.echr.coe.int/eng?i=001-67643
[https://perma.cc/E78C-TR6Z] (decision on the admissibility); Chiş v. Romania, App. No.
55396/07 (Eur. Ct. H.R. Sept. 9, 2014), http://hudoc.echr.coe.int/eng?i=001-146998
[https://perma.cc/K4Z4-RPHN] (decision on the admissibility).
148
Osman v. United Kingdom, App. No. 23452/94, ¶ 116 (Eur. Ct. H.R. Oct. 28, 1998),
http://hudoc.echr.coe.int/eng?i=001-58257 [https://perma.cc/Q23J-2Q97].
149
See López Ostra, App. No. 16798/90, ¶¶ 50–51.
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
286 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
In Tătar, this obligation was emphasized by the explicit recognition
by the ECtHR of the precautionary principle.
150
In this case, the
applicant was exempt from the burden of proof and did not have to
prove the existence and certainty of a risk.
151
The line of argumentation
followed in this case is particularly relevant for climate change
scenarios. In cases such as Tătar, the opportunity to submit evidence
of the point in time at which the State becomes aware of the risks
related to climate change may be an unreasonable task for an applicant.
The State may be in a better position than the individual applicant to
provide evidence that it has not failed to fulfill its obligations. Thus, in
principle, it is also possible for the burden of proof to shift to the
State.
152
The ECtHR has established that adjusting the burden of proof
is affected by considerations such as the seriousness of the case;
153
the
accessibility of the evidence; compelling reasons for different
treatment known exclusively to the authorities;
154
and “the coexistence
of sufficiently strong, clear, and concordant inferences or of similar
unrebutted presumptions of fact.”
155
There has been criticism that the
ECtHR may require an unnecessarily high threshold before transferring
the burden of proof from an individual to the State.
156
It is likely that
the threshold would likewise be demanding in the case of climate
change claims.
150
Tătar v. Romania, App. No. 67021/01, ¶ 109–20 (Eur. Ct. H.R. Jan. 27, 2009),
http://hudoc.echr.coe.int/eng?i=001-90981 [https://perma.cc/59KB-KG4F].
151
Id. ¶¶ 105, 124–25 (In this case, the applicants, father and son, alleged in particular
that the technological process (involving the use of sodium cyanide in the open air) used by
a company in their gold mining activity put their lives in danger. Part of the company’s
activity was located in the vicinity of the applicants’ home. The Court further noted that, in
the light of what was currently known about the subject, the applicants failed to prove the
existence of a causal link between exposure to sodium cyanide and the asthma diagnosed
with the son. It observed, however, that the company had been able to continue its industrial
operations after a severe accident in breach of the precautionary principle.).
152
See Aksoy v. Turkey, App. No. 21987/93, ¶ 61 (Eur. Ct. H.R. Dec. 18, 1996),
http://hudoc.echr.coe.int/eng?i=001-58003 [https://perma.cc/8BRV-U6Y]; Abdulaziz v.
United Kingdom, App. Nos. 9214/80, 9473/81, and 9474/81, ¶ 78 (Eur. Ct. H.R. May 28,
1985), http://hudoc.echr.coe.int/eng?i=001-57416 [https://perma.cc/8F4P-JNRV]; Creangă
v. Romania, App. No. 29226/03, ¶ 88 (Eur. Ct. H.R. Feb. 23, 2012), http://hudoc.echr.coe.
int/eng?i=001-109226 [https://perma.cc/9RKM-8LWL].
153
See Salman v. Turkey, 2000-VII Eur. Ct. H.R. 365, ¶ 100.
154
See Abdulaziz, App. Nos. 9214/80, 9473/81, and 9474/81, ¶ 78.
155
El-Masri v. Former Yugoslav Republic of Macedonia, 2012-VI Eur. Ct. H.R. 263,
¶ 151.
156
Armelle Gouritin, Can International Environmental Law and Human Rights Law Fill
the Gaps of EU Environmental Law? The Case of Environmental Responsibility, 171–73
(2012) (unpublished Ph.D. dissertation, Vrije Universiteit Brussels).
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 287
Starting Point for Climate Litigation in Strasbourg
C. The Causal Link Conundrum
In principle, States have positive obligations in the field of the
environment if the causal link between environmental degradation and
an infringement of the Convention is sufficiently well established.
157
The applicant is responsible for proving that existing exposure to
environmental risk compounds to a concrete threat to the applicant’s
individual rights.
158
Whether a State needs to take positive action
depends on various circumstances, such as the severity and length of
the impairment
159
and its physical and psychological effects.
160
The
intensity threshold for achieving an intervention must be determined
by objective criteria because the protection afforded under the
European human rights regime is based on establishing a direct link
between environmental degradation and an encroachment of human
rights.
161
The characterization of the link between severity and directness is
particularly important for climate change-related claims. Climate
change effects may be characterized on some occasions as “slow onset
events.” This may cause some issues with incorporating climate change
analysis under the link requirement that the applicant needs to establish
to show that the State, through its acts or omissions, has interfered with
the applicant’s rights. An overview of the existing legal scholarship
indicates that the causality link in climate change cases is interpreted
as a three-step process: first, the State interferes with the climate
system; second, such interference causes or results in an extreme
157
Cf. Tobias Thienel, The Burden and Standard of Proof in the European Court of
Human Rights, 50 GERMAN Y.B. INT’L L. 543, 563 (2007) (retracing the historic
development of the burden of proof-jurisprudence in Strasbourg).
158
See Asselbourg v. Luxemburg, 1999-VI Eur. Ct. H.R. 399, 410 (decision on the
admissibility); Gronus v. Poland, App. No. 29695/96, ¶ 31 (Eur. Ct. H.R. May 28, 2002),
http://hudoc.echr.coe.int/eng?i=001-60483 [https://perma.cc/4DRL-PHV7]; Taškın v.
Turkey, 2004-X Eur. Ct. H.R. 179, ¶ 113; Christopher Hilson, Risk and the European
Convention on Human Rights: Towards a New Approach, 11 J. MATERIAL CYCLES &
WASTE MGMT. 353, 354 (2009); Francesco Francioni, International Human Rights in an
Environmental Horizon, 21 EUR. J. INT’L L. 41, 41–50 (2010); Mathew Creven, Human
Rights and the Environment, The Case of Balmer-Schafroth and Others v. Switzerland, 7
REV. EUR. COMP. & INT’L ENVTL. L. 93, 93 (1998); Malgosia Fitzmaurice, The European
Convention of Human Rights, Environmental Damage and the Applicability of Article 8 of
the European Convention on Human Rights and Fundamental Freedoms, 13 EDINBURGH
L. REV. 107, 108 (2011).
159
See Moreno Gómez v. Spain, 2004-X Eur. Ct. H.R. 327, ¶ 61–62.
160
See Mileva v. Bulgaria, App. Nos. 43449/02 and 21475/04, ¶ 90 (Eur. Ct. H.R. Nov.
25, 2010), http://hudoc.echr.coe.int/eng?i=001-101815 [https://perma.cc/M92Z-T8HM].
161
See Fadeyeva v. Russia, 2005-IV Eur. Ct. H.R. 255, ¶ 68.
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
288 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
weather phenomenon (heat wave, hurricane) or slow onset event (ice
cap melting, sea level rise); and, third, the extreme or slow onset event
affects the protected human right in a serious, significant, and specific
manner.
162
As shown above, GHG emissions are considered to be the
main contributing factor to climate change, which may result in
environmental degradation or threat, although the attribution of a
specific weather-related event to climate change is scientifically
measured in probability. Based on limited litigation efforts before
regional human rights bodies, such as the Inter-American Commission
on Human Rights, the problematic second causal link is more implicit
because ascertaining how the specific event happens on a specific date
or place resulting in specific impairment of a human right might be
challenging.
163
One possible solution to the complex causal link conundrum is to
apply a legal analogy from a field that deals with probabilities in a legal
standard assessment manner, such as extradition proceedings. It is an
established principle in environmental jurisprudence that the ECtHR
must assess a certain minimum level of severity, which “is relative and
depends on all the circumstances of the case, such as the intensity and
duration of nuisance, and its physical or mental effects.” A minimum
level of severity must be established for the infringement to fall under
the scope of the ECHR.
164
Moreover, for an application of Article 2
ECHR, or even Article 3 ECHR, particularly serious interventions are
necessary.
165
These criteria would also be applicable for cases relating
to climate change because the ill-treatment standard must be attained
for Article 3 ECHR to apply:
[T]he assessment of this minimum is, in the nature of things, relative;
it depends on all the circumstances of the case, such as the nature and
context of the treatment, the manner and method of its execution, its
duration, its physical or mental effects and, in some instances, the
sex, age and state of health of the victim.
166
In climate change cases, the first causal link follows a similar pattern
of scientifically based assessment: the main contributing factors to
162
DUPUY & VINUALES, supra note 43, at 328.
163
Id. at 328–29; see also INUIT CIRCUMPOLAR CONFERENCE, PETITION TO THE INTER
AMERICAN COMMISSION ON HUMAN RIGHTS SEEKING RELIEF FROM VIOLATIONS
RESULTING FROM GLOBAL WARMING CAUSED BY ACTS AND OMISSIONS OF THE US
(2005).
164
Fadeyeva, 2005-IV Eur. Ct. H.R., ¶ 69.
165
See, e.g., Öneryildiz v. Turkey, 2004-XII Eur. Ct. H.R. 79 (judgment of the Grand
Chamber).
166
Kudla v. Poland, 2000-XI Eur. Ct. H.R. 197, ¶ 91.
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 289
Starting Point for Climate Litigation in Strasbourg
climate change, which result in environmental degradation or threat,
are scientifically ascertainable with a degree of probability and
correlation.
The second causal link is more complex in climate change cases;
namely, it is difficult to assess whether the specific event took place on
a specific date or place, resulting in specific impairment of a human
right. The solution may be found again in extradition-related cases
where the requested State incurs prospective responsibility because it
has reasonable grounds to anticipate that a violation of human rights
would occur in the requesting State if it extradites the fugitive.
167
The
established standard for engaging state responsibility on the ECHR
extraditing State is whenever “substantial grounds have been shown for
believing that the person concerned, if extradited, faces a real risk of
being subjected to torture or to inhuman or degrading treatment or
punishment in the requesting country.”
168
The establishment of such
responsibility inevitably involves an assessment of conditions in the
requesting country under the standards of Article 3 as “it is liability
incurred by the extraditing Contracting State by reason of its having
taken action which has as a direct consequence the exposure of an
individual to proscribed ill-treatment.”
169
By analogy, whenever there are substantial scientific grounds to
believe or ascertain that a person’s rights face a real risk of being
affected or infringed by a specific climate change event at an
ascertainable place and time, the obligation on the part of the State is
engaged in climate change cases and assessment must be performed on
the substantive grounds of the claim. Such an analogical application
would offer a solution to the extraterritorial scope of the climate change
litigation as established in Section D below.
170
The jurisprudence of the ECtHR demands that the States take
preventive measures to protect human rights, if “the authorities knew
or ought to have known . . . of the existence of a real and immediate
167
See generally Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989); see also
Stoyan Panov, The Obligation Aut Dedere Aut Judicare in International Law (Jan. 2016)
(Ph.D. dissertation, University of Birmingham) (on file with author).
168
Soering, 161 Eur. Ct. H.R. (ser. A), ¶ 91; see also Chahal v. United Kingdom, 1996-
V Eur. Ct. H.R., ¶¶ 80–81.
169
See Soering, 161 Eur. Ct. H.R. (ser. A), ¶ 91.
170
See, e.g., Stoyan Panov, Harmonize, Recognize or Minimize: A Borderless European
Judicial Space? The Application of the European Arrest Warrant and Its Effect on EU
Integration, 3 BIRMINGHAM J. FOR EUR. 7, 8 (2014).
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
290 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
risk to the life of an identified individual or individuals.”
171
Thus,
pursuing a successful human rights claim on the basis of an inadequate
act or omission of the State to prevent climate change requires
sufficient evidence that it was aware, or should have been aware, of the
grave consequences of climate change. In the case of Brincat v. Malta,
the ECtHR used a consensus assessment to determine whether Malta
knew, or should have known, the health risks related to asbestos.
172
The
ECtHR assessed the state of scientific knowledge of asbestos at the
time when the applicants were exposed.
173
The jurisprudence
developed in the Vilnes v. Norway case,
174
according to which scientific
uncertainty may create grounds for the State to take preventive
measures,
175
might also become relevant for climate change scenarios.
D. Narrowness of the Doctrine of Extraterritoriality
Theoretically, the extraterritorial liability doctrine of the ECtHR can
provide protection from threats in States that are not part of the
ECtHR.
176
Therefore, in the future, victims of climate change-related
threats (for example, in developing countries) could benefit from this
protection. However, the current doctrine of extraterritoriality is fairly
narrow. The following conditions must be satisfied: (a) The ECtHR
must be convinced that exceptional circumstances exist for it to impose
extraterritorial jurisdiction under Article 1 of the Convention,
177
(b) the
acts take place inside or outside national boundaries,
178
(c) the act must
171
Osman v. United Kingdom, 1998-VIII Eur. Ct. H.R., ¶ 116.
172
Brincat v. Malta, 249 Eur. Ct. H.R. (ser. A), ¶ 105 (2014).
173
Id. ¶ 106.
174
Vilnes v. Norway, App. Nos. 52806/09 and 22703/10 (Eur. Ct. H.R. Dec. 5, 2013),
http://hudoc.echr.coe.int/eng?i=001-138597 [https://perma.cc/9TCS-A4CQ].
175
Id.
176
See D. v. United Kingdom, 1997-III Eur. Ct. H.R. (The Court applied Rule 39 of its
Rules of Court, requesting the Government of the United Kingdom not to deport to St. Kitts
the applicant, who was HIV-positive and at an advanced stage of illness, because he would
not have been able to receive medical treatment if he had been sent there. In this case, the
Court took account of the “very exceptional circumstances” and “compelling humanitarian
considerations”: the applicant was critically ill and appeared to be close to death, could not
be guaranteed any nursing or medical care in his country of origin and had no family there
willing or able to care for him or provide him with even a basic level of food, shelter, or
social support.).
177
See, e.g., Al-Skeini v. United Kingdom, 2011-IV Eur. Ct. H.R., ¶¶ 134–36.
178
See Soering v. United Kingdom, 2011-IV Eur. Ct. H.R., ¶ 88; Vilvarajah v.
United Kingdom, App. Nos. 13163/87, 13164/87, 13165/87, 13447/87, and 13448/87,
¶¶ 107–27 (Eur. Ct. H.R. Oct. 30, 1991), http://hudoc.echr.coe.int/eng?i=001-57713
[https://perma.cc/SX9X-CRQF].
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 291
Starting Point for Climate Litigation in Strasbourg
have adverse effects outside the territory of the responsible State,
179
and
(d) the State must have effective control or effective authority
180
over
the person
181
or territory (e.g., military actions).
182
The current doctrine of extraterritorial liability accepts only the acts
of state actors.
183
However, this might change: the doctrine of positive
obligations of the States has also been expanded over time to include
the supervision of the acts of private parties.
184
Analogous to the Ilascu
case,
185
the ECtHR might deal with the question of whether a
corporation, holding a major impact on a specific area, can be
compared to a state actor. International corporations may in fact have
a de facto extraterritorial power in a specific area (e.g., exploitation of
raw materials located outside the country of registration) and may
cause significant emissions there.
186
The state in which a corporation is
domiciled may control the activities of the latter, even when pursued
abroad, either directly or through a subsidiary with a distinct legal
personality.
187
International developments, such as the Maastricht Principles on
Extraterritorial Obligations by the International Commission of
Jurists,
188
could provide inspiration for an extension of the current
179
Loizidou v. Turkey, App. No. 15318/89, ¶¶ 61–62 (Eur. Ct. H.R. Mar. 23, 1995)
http://hudoc.echr.coe.int/eng?i=001-57920 [https://perma.cc/4SGF-VPLN] (judgment on
preliminary objections).
180
See Issa v. Turkey, App. No. 31821/96, ¶¶ 69–71 (Eur. Ct. H.R. Nov. 16, 2004),
http://hudoc.echr.coe.int/eng?i=001-67460 [https://perma.cc/NSY3-NMG4].
181
Hirsi Jamaa v. Italy, 2012-II Eur. Ct. H.R.; Öcalan v. Turkey 205-IV Eur. Ct. H.R.,
¶ 91.
182
Loizidou, App. No. 15318/89, ¶ 61 (ECHR preliminary objections Mar. 23, 1995).
183
See generally EUROPEAN COURT OF HUMAN RIGHTS, FACTSHEET: EXTRA-
TERRITORIAL JURISDICTION OF STATES PARTIES TO THE EUROPEAN CONVENTION ON
HUMAN RIGHTS (July 2018).
184
Heiskanen & Viljanen, supra note 4, at 288.
185
Ilascu v. Moldova, 2004-VII Eur. Ct. H.R., ¶ 318.
186
Franceso Francioni, Exporting Environmental Hazard Through Multinational
Enterprises: Can the State of Origin Be Held Responsible?, in INTERNATIONAL
RESPONSIBILITY FOR ENVIRONMENTAL HARM 275, 275 (Franceso Francioni & Tullio
Scovazzi eds., 1991) (discussing that the home state may be held responsible for the
activities of the investor for pollution of the environment).
187
Olivier De Schutter, The Challenge of Imposing Human Rights Norms on Corporate
Actors, in TRANSNATIONAL CORPORATIONS AND HUMAN RIGHTS 1, 22–23 (Olivier De
Schutter ed., 2006).
188
See John H. Knox, Diagonal Environmental Rights, in UNIVERSAL HUMAN RIGHTS
AND EXTRATERRITORIAL OBLIGATIONS 82 (Mark Gibney & Sigrun Skogly eds., 2010).
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
292 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
doctrine on extraterritoriality,
189
also keeping in mind the doctrines of
cross-fertilization of rights and of the Convention as a living
instrument.
E. Establishing Shared Liability in the Context of Climate Change
As climate change is caused by both state and private actors around
the world, it can be difficult to establish the sole responsibility of a
single state.
190
However, the Urgenda case
191
affords a solution. The
Hague District Court held that even though there are multiple parties
causing global emissions, it is within the power of the State to control
the collective emissions levels inside its country. The Dutch court took
the Netherlands’ voluntary commitment to international climate
change agreements as acceptance of this responsibility.
192
The ECtHR has established a model of shared liability for two or
more states, also known as the joint venture approach.
193
In Hussein v.
Albania, the threshold used required active and direct involvement and
a common act of joint enterprise instead of sole participation in a joint
enterprise.
194
A strict reading of this case would imply that joint action
and intent are not present in the context of climate change as the
phenomenon has developed over the years without proper joint control.
However, in specific circumstances, it might be possible to establish
joint liability on the basis of joint venture. Under international law, a
State that aids or assists another State in the commission of an
internationally wrongful act is internationally responsible if the State
does “so with knowledge of the circumstances of the internationally
wrongful act” and “the act would be internationally wrongful if
committed by the State.”
195
If two or more States shared a significant
energy project using sources of energy, which resulted in major climate
189
Nicola Vennemann, Application of International Human Rights Conventions to
Transboundary State Acts, in TRANSBOUNDARY HARM IN INTERNATIONAL LAW 295, 296
(Rebecca M. Bratspies & Russell A. Miller eds., 2006).
190
Heiskanen & Viljanen, supra note 4, at 291.
191
Urgenda Found. v. Netherlands, Hague Ct. Rep., 2015 HAZA C/09/00456689
(June 24, 2015); see also Ingrid Leijten, Human Rights v. Insufficient Climate Action:
The Urgenda Case, 37 NETH. Q. HUM. RTS. 112, 112–18 (2019).
192
Urgenda, Hague Ct. Rep., 2015 HAZA C/09/00456689.
193
See generally Hess v. United Kingdom, App No. 6231/73, (Eur. Ct. H.R. May 28,
1975), http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-73854&
filename=001-73854.pdf [https://perma.cc/VH9E-8ZXQ] (decision on the admissibility).
194
See Hussein v. Albania, App No. 23276/04, at 3–4 (Eur. Ct. H.R. Mar. 14, 2006),
http://hudoc.echr.coe.int/eng?i=001-72789 [https://perma.cc/ZM3A-Z28C].
195
Int’l Law Comm’n, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, with Commentaries, U.N. Doc. A/56/10, at 65 (2001).
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 293
Starting Point for Climate Litigation in Strasbourg
change emissions, threats to the realization of the rights of the affected
population, and acts or omissions which constituted a wrongful act
under international law attributable to the State(s), in theory, joint
liability could be established. Although the joint venture approach is
theoretically one feasible way to establish shared liability in climate
change, the scope is extremely narrow and difficult to establish.
196
F. Necessity of Awareness of the Negative Impacts of
Climate Change and Problems with Victim Status of Potential
Victims and NGOs
Even though there seems to be a recent tendency to treat claims from
NGOs in a more generous way, due to their lack of victim status,
potential victims and NGOs can benefit from the positive obligations
under the Convention only to a limited degree.
197
This can make it
difficult for NGOs active in the fight against climate change to
successfully bring cases to the ECtHR. Another discernible issue is that
the ECHR is built on the personal injury paradigm in which indirect
effects of environmental degradation are difficult to litigate under the
scope of protected rights.
198
IV
LESSONS FROM DOMESTIC ATTEMPTS TO ADJUDICATE CLIMATE
CHANGE-RELATED CASES
As the challenges for climate change litigation before the ECtHR
surmount, domestic courts have taken important steps to offer plausible
solutions and frameworks for successful climate change claims.
Several domestic courts in Europe have had the opportunity to discuss
the nexus between the ECHR, the green jurisprudence of the ECtHR,
196
See generally Rantsev v. Cyprus, 2010-I Eur. Ct. H.R.
197
See generally Gorraiz Lizarraga v. Spain, 2004-III, Eur. Ct. H.R., ¶ 36; Collectif
national d’information et d’opposition à l’usine Melox – Collectif stop Melox et Mox v.
France, App No. 75218/01, ¶ 4 (Eur. Ct. H.R. Mar. 28, 2006), http://hudoc.echr.coe.int/
eng?i=001-81006 [https://perma.cc/G89X-NDG3] (decision on the admissibility); Tatiana
Sainati, Human Rights Class Actions: Rethinking the Pilot-Judgment Procedure at the
European Court of Human Rights, 56 HARV. INT’L L.J. 147 (2015); Christian Schall, Public
Interest Litigation Concerning Environmental Matters Before Human Rights Courts:
A Promising Future Concept?, 20 J. ENVTL. L., 417 (2008). But see generally L’Erablière
A.S.B.L. v. Belgium, 2009-II Eur. Ct. H.R.; Zakharov v. Russia, 2015-VIII Eur. Ct. H.R.
(judgment of the Grand Chamber) (finding that the applicant was entitled to claim to be a
victim of a violation of the Convention, even though he was unable to allege that he had
been the subject of a concrete measure of surveillance).
198
DUPUY & VINUALES, supra note 43, at 308–09.
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
294 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
and climate change. One case that has attracted the attention of
environmental lawyers is the above-mentioned Urgenda case in the
Netherlands.
199
Urgenda could serve as an inspiration for the ECtHR
for climate change-related cases as the District Court of The Hague
found that the participation of the Netherlands in international climate
change agreements proved that the State was aware of the risks of
climate change.
In particular, this case concerned a citizens’ platform including 886
individuals suing the Netherlands at the District Court of The Hague
due to the State’s inaction to reduce its emissions. In June 2015, the
District Court of The Hague ruled that the Dutch government must cut
its greenhouse gas emissions by at least twenty-five percent by the end
of 2020 (compared to 1990 levels). The ruling required the government
to immediately take more effective action on climate change. In its
judgment, the District Court of The Hague extensively referred to the
green jurisprudence of the ECtHR. Despite not accepting the
applicability of Articles 2 and 8 of the ECHR, due to failure to meet the
victim criteria, the District Court of The Hague stated that the ECHR
standards could be used in assessing the degree of discretionary power
the State is entitled to in how it exercises the tasks and authorities given
to it and in determining the minimum degree of care the State is
expected to observe. The appeal by the Dutch government was heard
at The Hague Court of Appeal on May 28, 2018. In October 2018, The
Hague Court of Appeal issued a decision upholding the lower court’s
decision finding that the Netherlands is breaching its duty of care by
“failing to pursue a more ambitious reduction”
200
of GHG emissions
and agreeing with the lower court’s finding that the State should reduce
its emissions by at least twenty-five percent by the end of 2020. The
Court of Appeal stated that “it is appropriate to speak of a real threat of
dangerous climate change, resulting in the serious risk that the current
199
See Urgenda Found. v. Netherlands, Hague Ct. Rep., 2015 HAZA C/09/00456689
(June 24, 2015); see also Appeal Lodged in Climate Case Ireland, FRIENDS IRISH ENV’T
(Sept. 23, 2019), https://www.friendsoftheirishenvironment.org/climate-case
[https://perma.cc/9SVW-YW64].
200
Kingdom of the Netherlands v. Urgenda Found., Case No 200.178.245/01 (Hague
Ct. App. 2018) (unofficial translation https://uitspraken.rechtspraak.nl/inziendocument?id=
ECLI:NL:GHDHA:2018:2610) [https://perma.cc/2EH9-6S5N], ¶ 76. The Supreme Court of
the Netherlands upheld the Court of Appeal judgment on Dec. 20, 2019. See de
Rechtspraak, Dutch State to Reduce Greenhouse Gas Emissions by 25% by the End of
2020, HOGE RAAD DER NEDERLANDEN NIEUWS (Dec. 20, 2019), https://www.rechtspraak.
nl/Organisatie-en-contact/Organisatie/Hoge-Raad-der-Nederlanden/Nieuws/Paginas/Dutch-
State-to-reduce-greenhouse-gas-emissions-by-25-by-the-end-of-2020.aspx [https://perma.cc/
6AMK-M4LC].
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 295
Starting Point for Climate Litigation in Strasbourg
generation of citizens will be confronted with loss of life and/or a
disruption of family life . . . . [T]he State has a duty to protect against
this real threat.”
201
As the Dutch government has the option to appeal the decision to the
Supreme Court, it is possible that the case will end up before the
ECtHR. This Dutch case inspired other currently pending cases, such
as the People v. Arctic Oil case in Norway,
202
the Swiss Senior case,
203
the Vienna Airport case,
204
or the Klimaatzaak case in Belgium.
205
In
Portugal, with the support of the NGO Global Legal Action Network
and lawyers, children are currently planning to sue several States before
the ECtHR after being affected by severe forest fires.
206
This use of
mass claims might be appropriate in environmentally related cases as
the environmental degradation linked to climate change affects many
201
Id. ¶ 45.
202
The Climate Lawsuit Against the Norwegian Government, PEOPLE VS. ARCTIC OIL
(Aug. 11, 2017), https://www.peoplevsoil.org/en/peoplevsarcticoil/background-documents/
[https://perma.cc/SN8X-FJBU]. In this case, Greenpeace and a citizens’ movement claimed
that expanding oil production by issuing more permits for oil exploration in the Arctic is
contrary to the constitutional right to a healthy environment and the international obligations
on climate change. After the district court of Oslo ruled against the applicants, the case is
currently under appeal by Greenpeace. See Megan Darby, Greenpeace Appeals Norway
Arctic Oil Drilling Case, CLIMATE HOME NEWS (May 2, 2018, 1:09 PM), http://www.
climatechangenews.com/2018/02/05/greenpeace-appeal-norway-arctic-oil-drilling-case
[https://perma.cc/8H4H-LQDP]; see also Föreningen Greenpeace Norden v. Staten ved
Olje-og energidepartementet, Case No. 16-166674TVI-OTIR/06 (Oslo District Court
Apr. 1, 2018).
203
See English Summary of Our Climate Case, KLIMASENIORINNEN, https://
klimaseniorinnen.ch/english [https://perma.cc/GMC2-DLAU] (last visited Apr. 12, 2020).
In this case, 770 women argued, with the support of Greenpeace Switzerland, that the failure
of the Swiss Government to reduce emissions effectively constituted a violation of Articles
2 and 8 of the ECHR. They claim that elderly people are particularly vulnerable to heat
waves caused by climate change. After the Swiss Federal Administrative Court ruled against
the applicants in December 2018, the case is now under appeal. Id.
204
See Lisa Sturdee, Austrian Court Opens Door for New Vienna Runway,
Despite Climate Ramifications, CLIMATE LIABILITY NEWS (Aug. 1, 2017), https://www.
climateliabilitynews.org/2017/08/01/in-austria-at-least-paris-climate-commitments-grow-
some-legal-teeth [https://perma.cc/LRP2-U4KG]. The case revolved around the proposed
addition to a runway at the Vienna International Airport, which was first blocked by a federal
administrative court that ruled the runway would increase carbon emissions and thus ran
contrary to the country’s ambitious promises to the international climate accord.
Subsequently, the decision was overturned.
205
VZW Klimaatzaak v. Kingdom of Belgium, Tribunal de Première Instance
[Civ.] [Tribunal of First Instance] Brussels, 2015.
206
Children -v- Governments of Europe & Climate Change, CROWDJUSTICE,
https://www.crowdjustice.com/case/climate-change-echr/ [https://perma.cc/8ZL4-ZYBM]
(last visited Feb. 1, 2020).
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
296 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
people, and victims usually differ in their positions regarding degree of
exposure and vulnerability.
207
The ECtHR might be reorienting its
approach to mass claims or claims that affect particular groups, as
illustrated in the Di Sarno case.
208
CONCLUDING REMARKS AND OUTLOOK
The purpose of this Article is to establish if, and to what extent, the
jurisprudence of the ECtHR can contribute to environmental protection
and to individuals affected by the negative impacts of climate change.
The analysis is structured to provide a platform for discussion of this
topic with focus on some general issues that could illustrate or
showcase some of the problems related to climate change-related
claims before human rights courts. Hence, the situations dealt with are
complex and encompassing because individual human rights violations
caused by environmental pollution or climate change-induced hazards
create threats to populations. Each of the cases analyzed touches upon
diverse human rights infringements, aspects of attributability, and
standards of proof. In the future, the ECtHR will have to address the
particular problems of human rights litigation in cases concerning
climate change, such as attributability, extraterritoriality, causal link,
and issues relating to the burden of proof. Nonetheless, this Article has
demonstrated that the current ECtHR doctrines are suitable for climate
change litigation. ECtHR doctrines provide guiding principles for
future climate change litigation through dynamic interpretation and
legal analogy.
Future climate change cases may be based on the failure of the state
to fulfill its positive obligations. In the climate change context, these
positive obligations could include sufficient mitigation measures, such
as policies to decrease the emissions, and the effective implementation
and control of such policies. Climate change policy frequently involves
balancing economic interests. At the time of the ruling in Hatton, the
climate change discussion was not entirely incorporated into the
arguments about the legitimacy of increasing air traffic. Domestic
litigation processes already acknowledge that the increase in GHG
emissions is not in compliance with climate change agreements.
There are a number of other potential challenges, which the Court
might have to deal with in the upcoming years, including complex
207
DUPUY & VINUALES, supra note 43, at 324.
208
See Di Sarno v. Italy, App No. 30765/08 (Eur. Ct. H.R. Jan. 10, 2012),
http://hudoc.echr.coe.int/eng?i=001-108480 [https://perma.cc/8QAA-A7TC].
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
2020] The Doctrine of Positive Obligations as a 297
Starting Point for Climate Litigation in Strasbourg
scenarios such as (a) traditional cross-border harm when the harm is
primarily caused in State X, but also has harmful effects in State Y; (b)
multinational corporations causing severe environmental problems
entailing violations of human rights of local and/or indigenous
communities; (c) environmental refugees who cannot be returned to
their countries of origin due to the principle of non-refoulement; or (d)
environmental pollution caused by collective global pollution, such as
climate change.
In conclusion, it can be assumed that the number of individual
applications, and particularly strategic litigation, before the ECtHR in
the environmental field will continue to increase. This is especially true
against the background of the de facto extended right for associations
to bring legal actions before the courts. Shared liability would take into
account the fact that climate change emissions cannot be attributed to
one single polluter. However, the current doctrines impose strict
conditions on the requirements for state involvement to fall under
shared liability. Hence, developments, such as the entry into force of
Protocol 16 of the ECHR,
209
could also lead to further ECtHR
jurisprudence in the field of climate change mitigation.
209
Protocol No. 16 to the European Convention on Human Rights, opened for signature
Oct. 2, 2013, C.E.T.S. No. 214, https://rm.coe.int/CoERMPublicCommonSearchServices/
DisplayDCTMContent?documentId=0900001680084832 [https://perma.cc/5UA6-NYSF]
(providing for the Constitutional Courts or Courts of last instance to refer pending cases to
the ECtHR for questions relating to the interpretation of the ECHR).
BRAIG (DO NOT DELETE) 4/25/20 8:00 PM
298 J. ENVTL. LAW AND LITIGATION [Vol. 35, 261
