Climate Protection before the European Court of Human Rights: The KlimaSeniorinnen and Duarte Agostinho Cases in Perspective

The European Court of Human Rights has largely developed its interpretation of human rights in environmental cases addressing actual harm from close-by sources and linear chains of causation. In the KlimaSeniorinnen and Duarte Agostinho cases, the multi-causal, distant and long-term causation of climate change and its effects inspired the Court to develop its case law further by drawing on the conception that regards the European Convention on Human Rights as a living instrument. The Court introduced two innovations – accepting a collective right to action and establishing an ambitious set of positive obligations on states – but it also rejected two other claims, namely opening up the standing of individuals to the generalised concerns of younger or older generations and extending jurisdiction to the causation of transborder effects of greenhouse gas (GHG)emissions. This article analyses these doctrinal moves by placing them within the context of a wider range of doctrinal options. The focus is on the transnational reach of human rights, the locus standi of individuals and associations, the interference with rights and the positive obligations to take mitigating measures. Particular attention is paid to how it is possible to determine a state’s share in causing and reducing emissions. Besides these doctrinal issues, the article touches on general aspects of the Court’s function as were raised in a dissenting opinion.