A human right to climate protection – Necessary protection or human rights proliferation?
| Author | Verena Kahl |
| DOI | 10.1177/09240519221092595 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Subject Matter | Articles |
A human right to climate
protection –Necessary
protection or human rights
proliferation?
Verena Kahl
Law Faculty, Universität Hamburg, Fakultät für Rechtswissenschaft,
Rothenbaumchaussee 33, Hamburg, Germany
Abstract
In recent years, climate change has presented itself as a new challenge to human rights dogmat ism.
The present contribution examines the hurdles caused by interpreting existing regional and inter-
national human rights standards in the context of climate change, with particular reference to
issues of causality, attribution, standing, and extraterritorial jurisdiction. As climate change does
not neatly fit into present human rights categories, and progressive interpretation bears the
risk of arbitrary and unjust results as well as overstretching the rules of interpretation, this article
makes a case for an autonomous human right to climate protection without, however, losing sight
of the risks of concomitant human rights overreach. It argues that a new human right to climate
protection would respond to basic human needs and could allow for establishing clear legal stan-
dards that have the potential to strengthen human rights protection and secure pre-existing rights.
Keywords
Human rights, climate change, right to climate protection, human rights expansionism, human
rights overreach
1. INTRODUCTION
After two years of a seemingly endless pandemic, global attention returned, at least briefly, to a
crisis of even greater magnitude in early November 2021. For a few days, all eyes were on
Glasgow, watching the wrangling over the latest climate change resolutions. At first glance, the
Corresponding author:
Verena Kahl, Universität Hamburg, Fakultät für Rechtswissenschaftc (Law Faculty), Rothenbaumchaussee 33,
20148 Hamburg, Germany.
Email: Verena.Kahl@uni-hamburg.de
Article
Netherlands Quarterly of Human Rights
2022, Vol. 40(2) 158–179
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09240519221092595
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Glasgow Climate Change Conference (COP26) has brought some progress. For the first time since
the signing of the Kyoto Protocol, direct reference is made to fossil fuels,
1
including ‘accelerating
efforts towards the phasedown of unabated coal power’.
2
Furthermore, the agreement to bring
forward the revision of Nationally Determined Contributions (NDCs) to 2022,
3
originally sched-
uled for 2025, may give cause for cautious optimism, as it moves the 1.5-degree target back into
the realm of possibility.
4
Nevertheless, the Glasgow pledges still put us on a path to 2.4 degrees
in 2100 missing by far the 1.5 target set in the Paris Agreement.
5
At the same time, urgent questions
of distributive justice, including loss and damage, remain largely unsolved.
6
A few weeks after the
26
th
Conference of the Parties, the movement that had come into the negotiations seems to have
ended up moving at a snail’s pace.
Elsewhere, growing awareness regarding the major threat climate change poses to human rights
has created a momentum: One month before COP26, the UN Human Rights Council for the first
time recognised a clean, healthy, and sustainable environment as a human right,
7
and created a
mandate for a Special Rapporteur on the promotion and protection of human rights in the
context of climate change.
8
This inherent link between climate change and human rights is not
new but has been sparked and driven by a longer process of scientific discussions and civil
society activities.
In the absence of sufficient progress in the international climate change negotiations, many indi-
viduals have taken national legal action,
9
resulting in numerous cases of climate change litigation.
10
This is hardly surprising, as the predominant inaction at the international level fails to recognise that
1. See Harro van Asselt, ‘Breaking a Taboo: Fossil Fuels at COP26’(EJIL:Talk!, 26 November 2021)
ejiltalk.org/breaking-a-taboo-fossil-fuels-at-cop26/> accessed 11 January 2022.
2. Glasgow Climate Pact, Decision CP.26 of COP26, Advance unedited version, para 20, ult/
files/resource/cop26_auv_2f_cover_decision.pdf> accessed 11 January 2022.
3. Glasgow Climate Pact, Decision CMA.3 of COP26, Advanced unedited version, para 29,
on_climate_change.pdf> accessed 11 January 2022.
default/files/resource/cma3_auv_2_cover%20decision.pdf> accessed 11 January 2022.
4. See, for example, Fiona Harvey, ‘What are the key points of the Glasgow Climate Pact’(The Guardian, 14 November
2021) nts-of-the-glasgow-climate-pact-
cop26> accessed 11 January 2022.
5. See Climate Action Tracker, ‘Warming Projections Global Update’, November 2021 [i, ii]
org/documents/997/CAT_2021-11-09_Briefing_Global-Update_Glasgow2030CredibilityGap.pdf> accessed 11
January 2022; Somini Sengupta, ‘Climate Promises Made in Glasgow Now Rest With a Handful of Powerful
Leaders’(The New York Times, 14 November 2021)
leadership.html> accessed 11 January 2022.
6. See Hannah Abdullah, ‘Climate justice at COP26 in Glasgow: Between disappointment and tentative hope’(CIDOB
Opinion 699, December 2021)
climate_justice_at_cop26_in_glasgow_between_disappointment_and_tentative_hope> accessed 11 January 2022.
7. See Human Rights Council Res 48/13 ‘The human right to a clean, healthy and sustainable environment’(8 October
2021) A/HRC/RES/48/13 para 1.
8. See Human Rights Council Res 48/14 ‘Mandate of the Special Rapporteur on the promotion and protection of human
rights in the context of climate change’(8 October 2021) A/HRC/RES/48/14 para 2.
9. See Brian J. Preston, ‘Climate Change Litigation –Part I’(2011) 5 CCLR 3; Bridget Lewis, Environmental Human
Rights and Climate Change: Current Status and Future Prospects (Springer 2018) 242.
10. For an overview on climate-related case lawsee the regularly updated Climate Change Litigation Databases provided by
the Sabin Centre for Climate Change Law at the Colombia Law School
litigation/> accessed 11 January 2022. See also generally Julie Fraser and Laura Henderson, ‘The human rights turn
in climate change litigation and responsibilities of legal professionals’(2022) 40 Netherlands Quarterly of Human
Rights 3.
Kahl 159
basic human interests are already affected or threatened by global warming. National courts world-
wide have found different, and at times creative, ways to accommodate the unprecedented crisis of
climate change in their corresponding legal systems.
In contrast, regional human rights systems have yet to decide on fundamental questions relating
to human rights and climate change. There are several reasons why the (future) decisions of regional
and international human rights bodies are of particular interest. One aspect is the mostly binding
character and the widespread impact of their decisions vis-à-vis a multitude of different Member
States. In addition, their precedents are of particular importance for the domestic, but also the
regional and international levels, as they provide guidance and seek to ensure consistency in
dealing with specific human rights issues. It further seems reasonable to tackle a global phenom-
enon like climate change on a transnational scale. In view of the urgency that is indicated by the
tipping points
11
we are currently reaching and stagnant climate change negotiations, it is exactly
the right time for human rights lawyers to address the challenges of climate change from an inter-
national human rights perspective.
The present analysis argues that the ecological, social, and economic consequences of climate
change call for a debate on new human rights standards in the context of climate protection.
After addressing the question of why the phenomenon of climate change must be qualified as a
human rights issue (Section 2), the analysis turns to the highly disputed narrative of human
rights expansion in the field of climate change. In regard to the methodological hurdles faced by
progressive interpretation of existing human rights standards set out in the present analysis, an
autonomous right to climate protection is brought into focus as one option to accommodate a
complex phenomenon like climate change, which does not neatly fit into current human rights
dogma (Section 3).
Although emblematic cases of national climate change litigation may inspire future decisions at
the regional and international level, they still reflect specific domestic approaches informed by and
based on national norms. While these cases may very well serve as sources of inspiration, it is rather
unlikely that they will be able to solve existing challenges posed to regional and international
human rights institutions that operate within their own specific normative framework.
12
In this
sense, the current analysis focuses exclusively on regional and partly international human rights
regimes that constitute appropriate fora to identify and define human rights content related to
climate change. Due to its extensive environmental case law, the European Court of Human
Rights (ECtHR) serves as a prominent example for analysing the dogmatic hurdles that arise in
the context of climate change. Furthermore, the analysis relies on the innovative approaches of
11. See IPCC ‘Climate Change 2021: The Physical Science Basis’, Contribution of Working Group I to the Sixth
Assessment Report of the Intergovernmental Panel on Climate Change, Summary for Policy Makers (2021) 21, 27.
See also IPCC ‘Global Warming of 1.5°C - An IPCC Special Report on the impacts of global warming of 1.5°C
above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the
global response to the threat of climate change, sustainable development, and efforts to eradicate poverty’(2018)
257, 262 and following.
12. See in particular the speech delivered by ECtHR Judge Tim Eicke with regard to challenges climate change litigation
faces before the Court which includes comparisons between national decisions and the ECtHR human rights regime.
Judge Tim Eicke, ‘Human Rights and Climate Change: What Role for the European Court of Human Rights’(2
March 2021) Inaugural Annual Human Rights Lecture, Department of Law, Goldsmiths University
int/human-rights-and-climate-change-judge-eicke-speech/1680a195d4#_ftnref45> accessed 11 January 2022.
160 Netherlands Quarterly of Human Rights 40(2)
the Inter-American Court of Human Rights (IACtHR) and refers to relevant decisions of the Human
Rights Committee and the Committee on the Rights of the Child.
In conclusion, it is assumed that the establishment of a new human right to climate protection is a
suitable option to shape the transformation process that the human rights regime must undergo in
the face of a phenomenon which is unparalleled in the extent and intensity of its destructive poten-
tial (Section 4). While due to the complexity of the topic many questions have to be left
unanswered, the present contribution will hopefully advance the discussion on the potential estab-
lishment of a human right to climate protection and corresponding formulations.
2. CLIMATE CHANGE AS A HUMAN RIGHTS ISSUE
In light of the existing climate change regime surrounding the UN Framework Convention on
Climate Change
13
(UNFCCC) the question may arise of why the phenomenon of climate change
should be addressed from a human rights perspective. The most obvious answer can be drawn
from climate change’s negative ecological, social, and economic effects as described above. It
would be presumptuous to believe that the devastating consequences for the human environment
and livelihood will leave human beings themselves untouched. Even though climate change as a
meteorological phenomenon cannot violate human rights,
14
it is difficult to imagine a human inter-
est that is not affected by climate change, ranging from human life and health to access to food and
water, adequate housing, and living in a healthy environment or striving for peace and self-
determination.
15
Since human existence itself is at stake, it is reasonable to look at climate
change from a human rights perspective.
International climate change agreements hardly cover the human dimension of climate change
and guarantee even less effective protection of human needs affected by climate change. Despite
the fact that both the Paris Agreement and the UNFCCC categorise climate change as a
“common concern of humankind”,
16
these treaty texts barely refer to the negative impact of
climate change on individuals and their corresponding rights.
17
Several States and NGOs have
made a case for clear and concise human rights references in the operational part of the Paris
18
a request that was still reflected in the first drafts of the text.
19
Nevertheless, what
13. UN Framework Convention on Climate Change (UNFCCC) (adopted 9 May 1992, entered into force 21 March 1994)
14. See Daniel Bodansky, ‘Introduction: Climate Change and Human Rights: Unpacking the Issues’(2010) 38 Ga J Int’l&
Comp L 511, 519. See also John H. Knox,‘Human Rights Principles and Climate Change’in Kevin R. Gray, Richard
G. Tarasofsky, Cinnamon P. Carlame (eds), Oxford Handbook of International Climate Change Law (OPU 2016) 213,
215.
15. See Lewis (n 9) 157 and following; OHCHR ‘Report of the Office of the United Nations High Commissioner for Human
Rights on the Relationship between Climate Change and Human Rights’(15 January 2009) UN Doc A/HRC/10/61 paras
20 and following.
16. UNFCCC (n 13) preamble; Paris Agreement (adopted12 December 2015, entered into force 4 November 2016) Annex
to Decision 1/CP.21, UN Doc FCCC/CP/2015/10/Add.1, preamble.
17. Silja Vöneky and Felix Beck, ‘Umweltschutz und Menschenrechte’in Alexander Proelß (ed), Internationales
Umweltrecht (De Gruyter 2017) 133, 165.
18. Compare Lewis (n 9) 153and following; Annalisa Savaresi, ‘The Paris Agreement: a new beginning?’(2016) 34 Journal
of Energy & Natural Resources Law 16, 25; Alan Boyle, ‘Climate Change, the Paris Agreement and Human Rights’
(2018) 67 ICLQ 759, 769.
19. Compare Lewis (n 9) 153; Savaresi (n 18).
Kahl 161
was left at the end of the negotiations was a single provision in the preamble of the agreement,
20
stating that:
‘Parties should, when taking action to address climate change, respect, promote and consider their
respective obligations on human rights, the right to health, the rights of indigenous peoples, local com-
munities, migrants, children, persons with disabilities and people in vulnerable situations and the right to
development, as well as gender equality, empowerment of women and intergenerational equity […].’
21
makes explicit reference to human rights,
22
the lack of its operationalisation was met with clear
criticism and disappointment.
23
The lip service paid to human rights in the preambular provision
illustrates once again that many States are not willing to give human rights a legally binding
place in the climate debate. In this sense, the human rights reference in the Paris Agreement has
been classified as a minimal contribution to the promotion of a human rights approach in the
context of climate protection.
24
tration [regarding] the slow pace of progress in tackling climate change using the traditional
politico-scientific approach’.
25
This has made individuals and States particularly vulnerable to
the detrimental effects of climate change demand the recognition of the interrelation between
climate change and human rights in different fora. The adoption of the Male’Declaration
26
as
well as the Inuit Petition to the IACHR,
27
and the following trend of human rights arguments uti-
lised in national climate change litigation
28
demonstrate that the intergovernmental agreements con-
cerning climate change are –though not superfluous –at least not effective enough to address the
devastating impact of climate change on human beings in an adequate and timely manner.
20. Indicators of a downgrading of the human rights perspective in the Paris Agreement can be found in Boyle (n 18) 769.
21. Paris Agreement (n 16) preamble.
22. Compare Savaresi (n 18).
23. ibid. See also Boyle who emphasised that ‘[t]his preamble is not a triumph for the human rights lawyers’. Boyle (n 18)
770.
24. Compare Lewis (n 9) 153; Savaresi (n 18); Daniel Bodansky, ‘The Paris Climate Change Agreement: A New Hope?’
(2016) 110 AJIL 288, 313. See also Boyle (n 18) 770.
25. Marc Limon, ‘Human Rights Obligations and Accountability in the Face of Climate Change’(2010) 38 Ga J Int’l&
Comp L 543, 546.
26. Male’Declaration on the Human Dimension of Global Climate Change, adopted in Male’on 14 November 2007 by the
representatives of the Small Island Developing States (SIDS).
27. Sheila Watt-Cloutier et al. v United States (Petition to the Inter-American Commission on Human Rights, 7 December
2005). See also Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations of the
Rights of Arctic Athabaskan Peoples Resulting from Rapid Arctic Warming and Melting by emissions of Black
Carbon by Canada (23 April 2013)
16/non-us-case-documents/2013/20130423_5082_petition.pdf> accessed 11 January 2022.
28. See Lewis (n 9) 242; JacquelinePeel and Hari M. Osofsky,‘A Rights Turn in Climate Change Litigation?’(2018) 7 TEL
37, 41. Regarding the case law see, for example, The State of the Netherlands v Urgenda Foundation No. 19/00135
(Supreme Court of the Netherlands, 20 December 2019); Kelsey Cascada Rose Juliana et al. v United States of
America Case No. 6:15-cv-01517-TC (United States District Court in the District of Oregon, 10 November 2016);
Andrea Lozano Barragán et al. v la Presidencia de la República et al. STC4360-2018 (Supreme Court of Colombia,
5 April 2018); Decision of the First Senate 1 BvR 2656/18 (German Constitutional Court, 24 March 2021), paras 1–
270 (German Constitutional Court).
162 Netherlands Quarterly of Human Rights 40(2)
Over the past two decades, different human rights-based approaches to climate change have been
developed, as the consequences of climate change for human life have become increasingly tan-
gible and international climate negotiations have failed to achieve any real success. Although all
these approaches recognise the human dimension of climate change, the nature of the relationship
between climate change and human rights and the question of whether and how human rights con-
siderations should guide our responses to climate change are still part of a multifaceted debate.
29
One way to present the existing commonalities of a variety of approaches is to divide them into
legalistic and rhetorical approaches.
30
This simplified breakdown does by no means claim exclusiv-
ity but has proven useful to categorise and illustrate different approaches in the context of human
rights and climate change.
On one hand, human rights-based language is used as a rhetorical argument in the climate
change debate.
31
Highlighting the ethical and moral dimensions of human rights protection
serves to steer the debate away from the economic and political considerations towards a
human-centric perspective.
32
On the other hand, defenders of a legalistic approach are
concerned with the identification of right-holders and their entitlements, duty-bearers with
their corresponding obligations as well as potential legal remedies by which certain claims
can be asserted.
33
Legalistic approaches have therefore already addressed the identification of
potential State obligations under existing human rights law.
34
The use of positive obligations
to address climate change in terms of human rights can be cited as an example of a legalistic
approach reflecting a dynamic interpretation of existing human rights law.
35
In its broadest
form, legalistic approaches have also led to the recognition of an independent right to climate
stability or similarly formulated guarantees.
36
The Special Rapporteur on the issue of human
rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environ-
ment, David R. Boyd, recognised that a safe climate is ‘a vital element of the right to a
healthy environment’
37
, but also explicitly referred to the right to a safe climate.
38
According
to legalistic approaches that form the main focus of the following analysis, States may be
held responsible for their failure to mitigate or adapt to the effects of climate change under
human rights law. In this sense, climate change constitutes a phenomenon that necessarily
needs to be examined through a human rights lens.
29. See Lewis (n 9) 153.
30. See, inter alia, ibid 171.
31. See ibid 152, 171.
32. See ibid 152; Bodansky (n 14) 517; Sumudu Atapattu, Human Rights Approaches to Climate Change: Challenges and
Opportunities (Abingdon 2016) 98.
33. Compare OHCHR, ‘Applying a human rights-based approach to climate change negotiations, policies and measures’
Guidance note, 2010; Lewis (n 9) 171.
34. See, for example, Katharina 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?’(2020) 35 J Envtl L & Litig 261 and following; Margaretha Wewerinke-Singh, State Responsibility,
Climate Change and Human Rights under International Law (Oxford 2019) 10f, 14, 97 and following.
35. See Braig and Panov (n 34).
36. See, inter alia, Simon Caney,‘Human rights, climate change, and discounting’(2008) 17 Env Polit 536, 538f; Steve
Vanderheiden, Atmospheric Justice: A Political Theory of Climate Change (Oxford 2008) 252.
37. Compare UNGA ‘Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of
a safe, clean, healthy and sustainable environment’(15 July 2019) UN Doc A/74/161 para 96.
38. ibid para 65.
Kahl 163
3. HUMAN RIGHTS EXPANSIONISM IN THE FIELD
OF CLIMATE CHANGE
The analysis of climate change from a legalistic perspective usually involves the expansion of the
present corpus iuris of human rights. Such an expansion may take two forms: First, the human
rights canon may grow internally through either the progressive interpretation of pre-existing
human rights norms or the development of new human rights standards. Second, human rights
themselves may reach out to other special regimes of international law, feeding their own standards
into fields as diverse as the different branches of international law, such as environmental or trade
law.
39
As already indicated, legalistic human rights-based approaches to climate change mostly refer to
the first form, which can be called internal expansion of human rights, either in the shape of a
dynamic interpretation of present human rights law or the recognition of a new human right to
climate protection. These can be considered as two sub-forms of what has been described as internal
expansion. The present analysis discusses how the phenomenon of climate change could be best
addressed under human rights law (Section 3.1), arguing that an autonomous right to climate pro-
tection may be better suited to address the complicated relationship between human rights and
climate change (Section 3.2). Aware of the potential risk of such a human rights expansion, the con-
tribution thereafter critically reflects on the risks and potential of human rights expansionism in the
context of climate change (Section 3.3).
3.1. A HUMAN RIGHT TO CLIMATE PROTECTION
One possibility to see the consequences of climate change addressed by human rights is the progres-
sive interpretation of existing human rights norms. To give a hypothetical example, a regional or
international human rights body may examine the failure of a certain State to mitigate or adapt
to the negative effects of climate change through the interpretation of a single norm, such as the
right to life, or a conglomerate of various human rights norms to assess a potential violation of
the selected standards. However, this approach is confronted with several challenges, which
require further attention.
40
These include, inter alia, questions of causality and standing, systematic
allocation, and extraterritorial application of human rights norms, which will be addressed in the
following subsections.
3.1.1. Causality and attribution
First, climate change is a meteorological phenomenon that does not per se violate human rights.
Still, it is an anthropogenic phenomenon
41
and States do contribute through emissions –either
their own or emissions emanating from their territory or under their control –to global warming
and its negative impact on human beings. However, climate change is neither caused by a single
39. See, inter alia, Puneet Pathak, ‘Human Rights Approach to Environmental Protection’(2014) 7 OIDA IJSL 17; John
Mubangizi,‘Towards a human rights-based approach to trade and investment in Africa in the context of globalisation’
(2012) 16 Law, Democracy & Development 101.
40. See speech of ECtHR Judge Tim Eicke (n 12).
41. See IPCC ‘Climate Change 2013: The Physical Science Basis’, Contribution of Working Group I to the Fifth
Assessment Report of the Intergovernmental Panel on Climate Change (2013) 15.
164 Netherlands Quarterly of Human Rights 40(2)
polluter nor limited to current contributions to global warming, as historic emissions continue to
fuel climate change even today.
42
In addition, climate change is characterised by complex feedback
effects and mechanisms of action.
43
The causal complexity of the phenomenon leads to an essential
time gap between the emission of greenhouse gases and the materialisation of the harm that Pedersen
describes as a ‘significant and forensically problematic delay’.
44
As a result, it will be difficult to attri-
bute a certain negative consequence of a climate change-related event to a specificState.
45
Tully has
therefore argued that ‘the human rights paradigm cannot address the disjuncture between “victims”
and their diffuse or distant “perpetrators”where “violations”are only predicted, rather than known
and identifiable’.
46
The question arises if the current human rights system with its canon of pre-existing
rights is prepared to address such complex questions of causality and attribution.
Similar to the ECtHR’s treatment of natural disasters or dangerous activities of third parties,
47
an
interpretation of relevant human rights norms could consider the phenomenon of climate change
under the concept of so-called positive obligations. The boundaries between positive and negative
obligations may not always be clear-cut.
48
In more detail, negative obligations can generally be
understood as protecting the individual’s rights and freedoms from illegitimate State interference,
while positive obligations require that States take the necessary measures to actively safeguard the
rights at stake.
49
It follows that the responsibility of the State may be triggered not only by its
actions but also, in specific cases, by its omissions.
50
Positive obligations have particularly been
used in the rulings of human rights courts regarding environmental cases. The ECtHR has based
its ‘greening’of the European Convention of Human Rights (ECHR) and related documents,
51
spe-
cifically on positive obligations.
52
Similarly, the IACtHR relied on positive obligations when it
derived State obligations from the right to life and personal integrity of the American
Convention on Human Rights in the context of environmental protection.
53
It, therefore, stands
to reason that positive obligations may also be applied to the negative effects of changes in the cli-
matic system, which is part of the environment.
54
An example of such a potential positive obliga-
tion could be the duty of a State to regulate Greenhouse Gas (GHG) Emissions in its jurisdiction to
42. See Atapattu (n 32) 18; Alan Boyle, ‘Human Rights and the Environment: Where Next?’(2012) 23 EJIL 613, 640 and
following.
43. See IPCC ‘Climate Change 2013’(n 41) 57 and following, 93 and following.
44. Ole W. Pedersen,‘Climate Change and Human Rights: Amicable or Arrested Development?’(2010) 1 J
Hum Rights Environ 236, 246.
45. See OHCHR, 2009 Report (n 15) para 70; Boyle (n 42) 618; Knox (n 14) 225. See also Bodansky (n 14) 523.
46. Stephen Tully, ‘Like Oil and Water: A Sceptical Appraisal of Climate Change and Human Rights’(2008) 10 Aust ILJ
213, 221.
47. See Council of Europe ‘Manual on Human Rights and the Environment’(2nd edn, 2012) 18.
48. See Sandra Fredman, ‘Human Rights Transformed: Positive Duties and Positive Rights’(2006) 38 Oxford Legal Studies
Research Paper 498f; Keegan v Ireland App no 16969/90 (ECtHR, 26 May 1994) para 49.
49. See, inter alia, Stephen P. Marks, ‘Emerging Human Rights: A New Generation for the 1980s?’(1981) 33 Rutgers L
Rev 435, 438; L.C.B. v United Kingdom App no 4/1997/798/1001 (ECtHR, 9 June 1998) para 36.
50. See Olivier De Schutter, International Human Rights Law: Cases, Materials, Commentary (Cambridge University Press
2014) 188. See also The Environment and Human Rights Serie A No. 23 (IACtHR, 15 November 2017) para 119.
51. The term greening of human right refers to the integration of environmental concerns into the interpretation of existing
human rights standards. See for example Boyle (n 42) 614.
52. Compare Braig and Panov (n 34) 272.
53. See, for example, The Environment and Human Rights (n 50) paras 108, 119, 215, 221.
54. See the definitions provided in Philippe Sands and Jacqueline Peel, Principles of International Environmental Law
(Cambridge University Press 2018) 15.
Kahl 165
reduce the negative effects of climate change on human beings in form of floods, heatwaves, sea-
level rise, or other phenomena.
However, such an approach faces several hurdles. The primary obstacle leads back to questions
of causality. Braig and Panov envisaged a three-step process in determining the causality link in
climate change cases: (i) State interference with the climate system, that (ii) causes or results in
extreme weather phenomena or slow onset events, which (iii) affect specific human rights in a
serious, significant, and specific manner.
55
As already indicated, due to a multitude of polluters,
historic emissions, and complex feedback effects, it will be difficult to prove that a certain State
has interfered with the climate change system in a way that a specific weather event can be attrib-
uted to climate change in general and the specific State in particular. Although the attribution of a
specific event to climate change is rather difficult, in some cases scientific data may be able to
provide evidence that a specific environmental effect is caused by global warming.
56
In this sense, it must be borne in mind that climate change is caused by all States since all GHG
emissions contribute to climate change.
57
Where everyone contributes to climate change but attri-
bution to a specific actor is impossible, human rights institutions could decide to turn away from
issues of primary causality and resort to positive obligations. In the environmental context, positive
obligations have been utilised by the ECtHR in situations of natural disasters where primary caus-
ality is irrelevant,
58
or cases related to dangerous activities in which the specific harm can be attrib-
uted to third parties.
59
In such a scenario the focus would shift from the perpetrator or phenomenon
that caused the harm to the question whether the State failed to protect individuals from the specific
harm, for example the harmful effects of a mudslide
60
or the toxic emissions from a factory.
61
However, even if it is left aside whether the State has contributed through its GHG emissions to
the phenomenon of climate change in general and to the specific event in particular, another hurdle
related to causality awaits. The applicant would still have to prove a causal link between the envir-
onmental degradation or –in the case of climate change –the specific weather phenomenon or slow
onset event and the impairment of his or her rights.
62
Even if the harm has already occurred, it will be difficult to prove the causal link to the specific
situation or event,
63
except if the assessment of evidence is based on standards of probability, as
suggested by Braig and Panov.
64
However, probability considerations comparable to those
applied in extradition-related cases
65
rather refer to negative obligations regarding potential
55. Compare Braig and Panov (n 34) 287 and following.
56. See John H. Knox, ‘Linking Human Rights and Climate Change at the United Nations’(2009) 33 Harv Envtl L Rev 477,
488 and following.
57. Compare ibid 489.
58. See the Manual on Human Rights and the Environment that describes natural disasters as ‘beyond human control’,
Council of Europe ‘Manual on Human Rights and the Environment’(n 47) 18.
59. See ibid.
60. See Budayeva and Others v Russia App Nos 15339/02, 21166/02, 20058/02, 11673/02 and 115343/02 (ECtHR 20
March 2008).
61. See Öneryıldız v Turkey [GC] App No 48939/99 (ECtHR, 30 November 2004).
62. See, inter alia,The Environment and Human Rights (n 50), para 120; Ta
̆tar v Romania App no 67021/01 (ECtHR, 27
January 2009) para 106.
63. Braig and Panov (n 34) 288 and following.
64. Braig and Panov suggest the application of a legal analogy from extradition proceedings with regard to probabilities as
part of legal standard assessment, Compare ibid 288 and following.
65. See Soering v United Kingdom App No 14038/88 (ECtHR, 7 July 1989) paras 90-91.
166 Netherlands Quarterly of Human Rights 40(2)
victims. An exampl e is the obligation not to extr adite in c ase a person faces a real risk of
being subjected to torture. In case of the transfer of this obligation to climate change cases,
it would still be necessary to prove the existence of a ‘real risk’to the applicant’s
rights posed by the specific weather phenomenon or slow onset event.
66
Proving such a real
change-related harm is not concretely foreseeable and its potential materialisation is not
located in the near future.
It might in any case be more convincing to borrow from probability standards already used in
environmental cases. However, the degree of probability applied in these cases seems to depend
imminent risk’,
67
68
between
the event and the right at stake is required. It has yet to be seen whether such a lower standard
of probability would be considered appropriate for climate change cases and if a certain
percentage or level of probability as applied in climate change science would be sufficient to
prove a corresponding causal link between the meteorological phenomenon and human
rights infringement.
Apart from the question of causality, when a violation of the right to life is alleged, it has to
be established that the authorities knew or should have known about the real and imminent risk
to human life.
69
Although this standard of attribution is applied in cases regarding risks to life,
it is clear from ECtHR case law that a breach of positive obligations can only exist if the State
was aware or should have been aware of the risk of a human rights violation.
70
As for today, due
to well-known scientific evidence a general awareness of States regarding the adverse effects of
climate change on human rights can be assumed.
71
Still, a successful application will depend on
whether it is required that the State was aware or should have been aware of the dangers of
climate change in general or the specific risk to the rights of the applicant(s) emanating from
a weather phenomenon or slow onset event caused by climate change, which would be far
more difficult to prove.
Although both the IACtHR and the ECtHR have made general reference to the precautionary
principle in their environmental jurisprudence,
72
one could only speculate if human rights insti-
tutions would require States to take preventive action in climate change-related cases. This is
due to the fact that despite clear scientific knowledge on climate change in general, uncertainty still
exists with regard to the attribution of specific weather events to global warming or even specific activ-
ities –an uncertainty that is further aggravated when these events lie in the (distant) future. Besides, a
strict application of the precautionary principle –for example in the case of absent scientific knowledge
66. Compare Braig and Panov (n 34) 289.
67. See The Environment and Human Rights (n 50) para 120; Öneryıldız v Turkey (n 61) para 101.
68. See, for example, McGinley and Egan v United Kingdom App Nos 21825/93 and 23414/94 (ECtHR, 9 June 1998) para
97.
69. See The Environment and Human Rights (n 50) para 120; Osman v United Kingdom App no 23452/94 (EctHR, 28
October 1998) para 116.
70. With regard to Article 8 ECHR see Fadeyeva v Russia App No 55723/00 (EctHR, 9 June 2005) para 90; López Ostra v
Spain App No 16798/90 (EctHR, 9 December 1994) para 53.
71. The evaluation of scientific knowledge regarding the dangers of climate change would be similar to the consensus
assessment utilised by the ECtHR in the evaluation of dangers emanating from asbestos, Brincat and Others v Malta
App Nos 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11 (ECtHR, 24 July 2014), para 105.
72. See The Environment and Human Rights (n 50) paras 175–180; Ta
̆tar v Romania (n 62) paras 107, 120.
Kahl 167
regarding the risks posed by a certain weather event to human rights –would require a threat of serious
or irreversible damage to the environment.
73
3.1.2. Standing
A large number of cases related to climate change will concern future impacts of global warming.
74
This is due to the fact that a lack of action on part of the State today may result in future damages
when the effects of climate change materialise.
75
However, human rights violations are regularly
established after the harm has occurred.
76
Before a human rights body decides on a corresponding
petition or application, individuals seeking redress for a potential violation of human rights in the
context of climate change need to make the case that they are victims of a violation of the corre-
sponding human rights instrument.
77
In Aalbersberg v The Netherlands, the Human Rights
Committee stated that ‘[f]or a person to claim to be a victim of a violation of a right protected
by the Covenant, he or she must show either that an act or an omission of a State party has
already adversely affected his or her enjoyment of such right, or that such an effect is imminent’.
78
79
–
neither includes potential victims, referring to individuals that have not yet but will or may
suffer a violation of their rights in the future, nor actio popularis.
80
Therefore, an individual
could successfully claim standing only if future negative effects of climate change were added
as another exception regarding the acceptance of potential victims. In this case, it would be on
the victim to provide ‘reasonable and convincing evidence of the likelihood that a violation affect-
ing him or her personally will occur’.
81
In this sense, the granting of potential victim status is also a
question of causality. Similarly to cases in which the harm has already occurred, the individual
would therefore need to prove that a certain weather phenomenon or slow onset event will result
in a violation of his or her rights. With regard to potential victims in environmental cases, the
between the event or situation and the human right invoked,
82
while mere tenuous connections
or remote consequences have been considered to be not sufficient.
83
In the context of the right
73. See Rio Declaration on Environment and Development, United Nations Conference on Environment and Development
(June 3 to 14 1992) UN Doc A/CONF.151/26/Rev.1 (Vol. 1), Principle 15.
74. See OHCHR, 2009 Report (n 15) para 70.
75. See Knox (n 14) 225; Lewis (n 9) 188.
76. Compare OHCHR, 2009 Report (n 15), para 70; Lewis (n 9)188.
77. See, for example, ECtHR ‘Practical Guide on Admissibility Criteria’(last updated on 30 April 2020) 9. See also Article
47(b) of the American Convention on Human Rights.
78. Aalbersberg v The Netherlands, Communication No 1440/2005 (Human Rights Committee, 12 July 2006), para 6.3.
79. See, for example, ECtHR ‘Practical Guide on Admissibility Criteria’(n 77) 14. See also OHCHR, 2009 Report (n 15)
para 70.
80. See ECtHR ‘Practical Guide on Admissibility Criteria’(n 77) 14 and following. With regard to actio popularis the
ECtHR stated that ‘the Convention does not allow complaints in abstracto alleging a violation of the Convention.
The Convention does not provide for the institution of a meaning that applicants may not complain against a provision
of domestic law, a domestic practice or public acts simply becausethey appear to contravene the Convention.’Centre for
Legal Resources on behalf of Valentin Câmpeanu v Romania [GC], App No 47848/08 (ECtHR, 17 July 2014) para 101.
81. ibid 14.
82. See, inter alia,Taşkın and Others v Turkey App No 46117/99 (ECtHR, 10 November 2004), para 113;
Balmer-Schafroth and Others v Switzerland [GC] App No 22110/93 (ECtHR, 26 August 1997) para 39.
83. See Balmer-Schafroth and Others v Switzerland (n 82) para 40.
168 Netherlands Quarterly of Human Rights 40(2)
to a fair trial, earlier jurisprudence has established that the applicability of Article 6 ECHR requires
a serious, specific, and above all imminent risk.
84
However, more recent case law indicates a certain
softening of this strict standard, particularly when the risk has been established by prior national risk
assessments.
85
Therefore, the outcome of a decision regarding standing would –if climate change
were accepted as an exception regarding potential victim status –largely depend on the applicability
of the right invoked and the meaning given to the requirement of a ‘sufficiently close link’.
While the IACtHR and the ECtHR have –so far –not issued judgments regarding cases related
to the adverse effects of climate change, the UN Human Rights Committee has had the opportunity
to decide on an application regarding a Kiribati citizen denied refugee status in New Zealand, claim-
ing that the effects of climate change forced him to migrate from his home country.
86
Ioane Teitiota
v New Zealand passed the admissibility hurdle as the Committee granted the author of the commu-
nication victim status based on the following considerations:
‘[T]he Committee considers that the author sufficiently demonstrated, for the purpose of admissibility,
that due to the impact of climate change and associated sea level rise on the habitability of Kiribati and
on the security situation on the islands, he faced a real risk of impairment to his right to life under article
6 of the Covenant as a result of the State party’s decision to remove him to Kiribati.’
87
In the end, the Committee denied a violation of Article 6 (right to life) of the International
Covenant on Civil and Political Rights stating that the 10 to 15 years until the island would
become uninhabitable due to sea-level rise ‘could allow for intervening acts by Kiribati, with the
assistance of the international community, to take affirmative measures to protect and, where neces-
sary, relocate its population’.
88
After all, however, standing was granted on the basis of the real risk
faced by Ioane Teitiota to his right to life. Still, it has to be taken into account that the case was
related to the specific situation of deportation, which might have lowered the admissibility thresh-
old.
89
Furthermore, although the case did not concern hypothetical future harm according to the
Committee, the author of the communication was not able to jump the merit-hurdle due to the time-
frame that still allowed for adaptation measures.
90
Therefore, the threshold for standing and causality criteria concerning future harm will most
probably continue to pose significant obstacles for future climate change litigation before human
rights bodies. Nonetheless, Ioane Teitiota v New Zealand may indicate a new pathway in
dealing with standing in climate change cases, particularly where the effects of climate change
have already materialised. This does, however, not solve the lack of actio popularis, so that
NGOs would not be able to claim the violation of relevant human rights standards in the context
of climate change. There are good reasons to reject the concept of actio popularis as it
would open the door to a flood of applications and is therefore also referred to as ‘dissolution
84. See Athanassoglou and Others v Switzerland App No 27644/95 (ECtHR,6 April 2000) paras 46, 51.
85. See Taşkın and Others v Turkey (n 82), para 133; Okyay and Others v Turkey App No 36220/97 (ECtHR, 12 July 2005)
para 66.
86. Ioane Teitiota v New Zealand Communication No. 2728/2016 (UN Human Right Committee, 24 October 2019), para
1.1.
87. ibid para 8.6.
88. ibid para 9.12.
89. See the explanation of the Committee, ibid para 8.5.
90. See ibid para 9.12.
Kahl 169
of locus standi’.
91
Likewise, a limited acceptance of actio popularis –for example in the form of
class action
92
or subject to certain restrictive criteria in the context of a loosened locus standi –
could do justice to the fact that climate change will sooner or later, in one way or another, affect
every human being. Domestic cases of climate change litigation, such as The State of the
Netherlands v Urgenda Foundation,
93
could serve as a blueprint for such a change in regional
human rights jurisprudence regarding actio popularis and standing of potential victims.
However, it must be seen if the ECtHR is willing to adapt its rather strict standards with regard
to standing on the basis of innovative, but at times distinct, national approaches.
3.1.3. Extraterritorial jurisdiction
Besides standing,the territorial application of humanrights instruments poses furtherchallenges in the
contextof climate change. Citizensof Small Island DevelopingStates affected bythe adverse effects of
climate changemight prefer to file an application againsta high-emitting State rather thanagainst their
own home country,of which the emissions contributeto global warming only to a very small extent.
94
However, individuals affectedor potentially affected by the effectsof climate change can file an appli-
cation against a State only if they are subject to the State’s jurisdiction. In this sense, the exercise of
jurisdiction is a necessary prerequisite to hold a State accountable for alleged violations of an indivi-
dual’s rights and freedoms.
95
Generally, the term ‘jurisdiction’is predominantly understood territori-
ally.
96
In this sense, ‘jurisdiction’refers to imputable conducts exercised in the State’sterritory,
97
in
which theperson alleging a violationof human rights norms is physicallypresent.
98
The extraterritorial
application of humanrights instruments –referring to acts performed or producing effects outside the
territory of the State
99
–is admitted only in exceptional cases.
100
In the jurisprudence of the ECtHR extraterritorial conduct within a State’sjurisdictionincludesthe
exercise of effective control over an area orthe authority and control over persons located in another
State through the State of origin’s agents operating either lawfully or unlawfully in that respective
territory.
101
Most of these cases are related to military interventions or military occupation and do
not fit the scenario of transboundary environmental harm or the adverse effects of climate change
91. Anthony Arnull, ‘Private Applicants and the Action for Annulment under Article 173 of the EC Treaty’(1995) 32 CML
Rev 7. See also William J. Aceves, ‘Actio Popularis –Class Action in International Law’(2003) U Chicago Legal F
353, 398 and following.
92. See Aceves who clearly distinguishes between actio popularis and class action (n 91).
93. See The State of the Netherlands v Urgenda Foundation (n 28).
94. See Knox (n 14) 228.
95. Compare Ilaşcu and Others v The Republic of Moldova and Russia App No 48787/99 (ECtHR, 8 July 2004) para 311.
See also The Environment and Human Rights (n 50) para 72.
96. See, inter alia, ECtHR ‘Practical Guide on Admissibility Criteria’(n 77) 53.
97. See, for example, N.D. and N.T. v Spain App Nos 8675/15 and 8697/15 (ECtHR, 13 February 2020) paras 103, 105.
98. See The Environment and Human Rights (n 50) para 73. This conclusion can also be drawn from reference to the excep-
tions to this rule in ECtHR ‘Practical Guide on Admissibility Criteria’(n 77) para 216.
99. Compare Bankovic
́and Others v Belgium and Others [GC] App no 52207/99 (ECtHR, 12 December 2001) para 67.
100. See ibid and The Environment and Human Rights (n 50) para 81. See also Braig and Panov (n 34) 290.
101. See ECtHR ‘Practical Guide on Admissibility Criteria’(n 77) paras 213, 214. Concerning effective control over a ter-
ritory see Ilaşcuand Others v Moldova and Russia (n 95) paras 314–319; Chiragov and Others v Armenia [GC] App
No 13216/05 (ECtHR, 16 June 2015) paras 169–186. For authority and control over persons abroad see Öcalan v
Turkey [GC] App No 46221/99 (ECtHR, 12 May 2005) para 91; Al-Skeini and Others v United Kingdom [GC]
App No 55721/07 (ECtHR, 7 July 2011) paras 134, 136, 149.
170 Netherlands Quarterly of Human Rights 40(2)
crossing international borders.
102
In these cases, the State of origin rarely exercises effective control
over the territory of the State concerned or over the persons present in that territory.
103
In its Advisory Opinion No. 23 concerning the environment and human rights, the IACtHR has
therefore further developed these standards and adapted them to scenarios of transboundary envir-
onmental harm.
104
According to the IACtHR, in the case of transboundary environmental damage,
a person is subject to the jurisdiction of the State of origin, if i) there is a causal link between the
domestic activity or incident and the violation of that person’s human rights, and ii) the State of
origin exercises effective control over the activities that have caused the damage and the resulting
human rights violation.
105
While in the context of the European Human Rights System a new
exception of extraterritorial application of the ECHR to adverse effects of climate change would
be needed, the IACtHR’s progressive development of extraterritorial application standards with
regard to transboundary harm may leave room for extending tendencies. Although the Court did
not include adverse effects of climate change in its analysis and determination of extraterritorial jur-
isdiction, it did make general reference to the fact that climate change affects the enjoyment of
human rights.
106
Furthermore, transboundary environmental harm is a likely consequence of
global warming caused by GHG emissions. Therefore, if a State has control over GHG emitting
activities and these activities cause transboundary environmental harm and corresponding human
rights violations, the persons whose rights have been violated could be under the jurisdiction of
the State of origin. However, an applicant filing a corresponding case would face the problem of
having to prove the causal link between the GHG emitting activity and the violation of human
rights.
107
This would be –at least –a two-step process: i) demonstrating a causal link between
the activity and the environmental harm, and ii) proving a causal link between the environmental
harm and the human rights violation. Due to the multitude of polluters, historic emissions, and
complex feedback effects, it would be nearly impossible to prove that a particular GHG emitting
activity has caused a specific environmental harm. At the same time, establishing a causal link
between environmental harm and human rights violation remains as challenging as in the
context of causality under positive obligations or standing. It becomes obvious that in cases of
extraterritorial jurisdiction there also seems to be no way around issues of causality.
In addition, it must be taken into account that both the ECtHR and the IACtHR generally con-
sider extraterritorial jurisdiction an exceptional scenario. It seems, however, that the new standards
developed by the IACtHR in its Advisory Opinion No. 23 turn the actual exception into the new
rule.
108
As the Court has developed requirements of extraterritorial jurisdiction in environmental
scenarios detached from an individual case, it has to be seen how the Court will address issues
of extraterritorial jurisdiction in future contentious cases and whether the Court will open the
102. See The Environment and Human Rights (n 50) para 80.
103. Compare Verena Kahl, ‘Ökologische Revolution am Interamerikanischen Gerichtshof für Menschenrechte –
Besprechung des Rechtsgutachtens Nr. 23 ‘Umwelt und Menschenrechte’(OC-23/17)’(2019) 17(2) J Eur Environ
Plan Law 110, 118 and following.
104. See The Environment and Human Rights (n 50) paras 95 and following.
105. Compare ibid paras 101, 103, 104 h.
106. See ibid paras 47, 49, 54.
107. See ibid paras 101, 103, 104 h.
108. Compare Kahl (n 103) 121. Similarly, Monica Feria-Tinta and Simon Milnes, ‘The Rise of Environmental Law in
International Dispute Resolutions: The Inter-American Court Human Rights Issues a Landmark Advisory Opinion
on the Environment and Human Rights’(2016) 27 YB Int’l Env L 64, 78.
Kahl 171
application of these standards also to climate change cases. It stands to reason that there is a signifi-
cant difference whether transboundary environmental harm is caused by adverse effects crossing
one single border or extraterritorial jurisdiction is applied to a global phenomenon like climate
change. Therefore, it remains to be seen if the Court will apply a broad approach corresponding
to the standards developed in the advisory opinion or whether it will impose certain restrictions
depending on the specific case.
109
If probability considerations, for example, inspired by the pre-
cautionary principle, are sufficient to jump the ‘causal link’hurdle will particularly depend on
the requirements of burden of proof.
Nevertheless, Advisory Opinion No. 23 has inspired a recent decision of another international
human rights body. In Sacchi et al. v Argentina,
110
the Committee on the Rights of the Child made
ground-breaking findings regarding jurisdiction. While in the view of the Committee ‘extraterritorial
jurisdictionshould be interpretedrestrictively’,the communication ‘raisesnovel jurisdictionalissues of
transboundary harm related to climate change’.
111
Applying the parameters set by the IACtHRin its
Advisory Opinion No. 23, the Committee established that in thecase of transboundary harm
‘children are under the jurisdiction of the State on whose territory the emissions originated for the pur-
poses of article 5 (1) of the Optional Protocol if there is a causal link between the acts or omissions of the
State in question and the negative impact on the rights of children located outside its territory, when the
State of origin exercises effective control over the sources of the emissions in question.’
112
The Committee concluded that Argentina had ‘effective control over the sources of emissions
that contribute to causing reasonably foreseeable harm to children outside its territory’
113
and
affirmed the complainants’victim status.
114
The Committee also seemed to assume the existence
of a sufficient causal link, without however making explicit statements of its own.
115
The com-
plaints were ultimately declared inadmissible, as the complainants had failed to exhaust domestic
remedies.
116
In this sense, further details on complex questions regarding the significant causal link
conundrum could at least be expected in future decisions. Nevertheless, an open letter to the com-
plainants shows that despite its ground-breaking findings about extraterritoriality, the Committee
‘had to work within the limits of the legal powers given to [it] under the Optional Protocol on a
Communications Procedure (OPIC)’.
117
While some voices also propose the application of the duty to cooperate in the context of human
rights and climate change,
118
there are several reasons why this duty may fail to deliver what it
seems to promise. First, the duty to cooperate is not a human rights obligation sensu stricto as it
109. See Kahl (n 103) 121.
110. Sacchi et al v Argentina No. 104/2019 (Committee of the Rights of the Child, 22 September 2021).
111. ibid paras 10.4 and following.
112. ibid para 10.7.
113. ibid para 10.12.
114. See ibid para 10.14.
115. See ibid para 10.12.
116. See ibid para 10.21.
117. Open letter to the authors of Sacchi et al v Argentina and four similar cases of the Committee on the Rights of the Child
118. See, for example, OHCHR, 2009 Report (n 15) paras 84 and following; UNEP ‘Climate Change and Human Rights’,in
cooperation with Sabin Centre for Climate Change Law of the Colombia Law School (December 2015) 23 and
following.
172 Netherlands Quarterly of Human Rights 40(2)
applies between States while traditional human rights duties operate between individuals as right-
holders and States as duty-bearers. A duty to cooperate will therefore not help an individual located
outside the territory of a high emitting State to jump the hurdle of extraterritorial application, if that
individual seeks redress for (potential) violations related to GHG emitting activities. Second, the
duty to cooperate remains largely vague in the context of human rights. Nonetheless, the
IACtHR has defined the obligation to cooperate by means of a further breakdown into several sub-
obligations, including the duties to notify, consult, and negotiate.
119
These duties make sense espe-
cially in cases of transboundary environmental harm concerning one or at least a few national
borders, for example in the case of an industrial megaproject that could affect human rights of indi-
viduals located in one or several neighbouring States. In the case of a global phenomenon like
climate change, to which all States contribute in manifold ways, the duty to cooperate would
lead to an endless and senseless circle of notifications, consultations, and negotiations, as every
Member State would have to cooperate with every other Member State regarding any
GHG-emitting activity that could have detrimental effects on possibly any individual’s rights. In
this sense, the duty to cooperate carries the high risk of being reduced to the Member States’obli-
gation to strive for the agreement of adequately strict GHG reduction targets at the international
level. Caught in a circular argument, climate change litigation would as a result of an application
of the human rights duty to cooperate be thrown back on the hitherto unsuccessful climate negotia-
tions in the UNFCCC framework from which it originally emerged.
The preceding analysis has shown that where climate change cases already face difficulties in
terms of causation, attribution, and standing, extraterritorial jurisdiction poses a further challenge
that seems even more difficult to overcome under current human rights law. As noted, the
IACtHR’s Advisory Opinion No. 23 could be a useful precedent, although the time and manner
in which the established standards will be applied to future contentious cases are questionable.
Nevertheless, the Committee on the Rights of the Child has opened the door to new future prece-
dents by using the parameters established by the IACtHR regarding extraterritorial jurisdiction. It
remains to be seen whether other regional and international human rights bodies will follow its
example.
3.2. ADVANTAGES OF AN AUTONOMOUS RIGHT TO CLIMATE PROTECTION
Climate change cases pose several complicated questions of causality, attribution, and standing to
human rights methodology. The case-law of the ECtHR and the jurisprudence of the IACtHR indi-
cate that positive obligations could solve some of the issues inherent to human rights cases based on
the adverse effects of climate change. Nonetheless, the examination of potential answers to ques-
tions of causality, attribution, and standing has also shown that there are certain limits to the
approach of positive obligations under the current human rights regime and that the hurdles
faced by human rights institutions cannot –or at least not easily –be overcome without essential
adjustments. The success of climate change litigation before human rights institutions would
depend on new exceptions to victim status and on the specific rights invoked. In this sense, the
environmental case law of the ECtHR reveals a fragmented picture, where legal standards may
vary according to the norm under which the matter is treated and on the specific case under
examination.
119. See The Environment and Human Rights (n 50) paras 186 and following.
Kahl 173
Furthermore, the human rights body will also be confronted with the question to which specific
right the negative effects of climate change could be allocated. As indicated above, climate change
affects the full range of human rights norms. It is therefore questionable if the impact of climate
change can be attributed to a single right, such as the right to life, or a chosen group of rights.
Should the human rights institution decide not to allocate those effects to a specific right, but
rather choose the corresponding right(s) on a case-by-case basis, the question arises of whether
the standards of the specific right apply or whether common prerequisites for these scenarios are
developed, as issues of causality, attribution, and standing are independent of the right at stake,
thereby potentially leading to arbitrary and unjust results.
Although an autonomous right to climate protection may not solve all the challenges mentioned
above, there are certain advantages to treating climate change cases under a new specific and sep-
arate right. Instead of facing troubles to allocate the negative consequences of climate change to a
certain pre-existing right or choosing the applicable standards on a case-by-case basis, an autono-
mous right to climate protection could delineate common standards with regard to questions of
causality, attribution, and standing for climate change cases. It would thereby avoid arbitrary
and possibly unjust results. The creation of a new right –whether by amendment or dynamic inter-
pretation –would allow for the application of new standards, which consider the specificities of
climate change. Exceptions to potential victim status could help tackle the time gap between the
emission of GHG and the materialisation of the damage. States could be required to take preventive
action in cases where climate change poses a risk to human rights, but the risk is not yet imminent,
as the harm will not materialise in the nearest future.
Moreover, the application of clear probability standards couldhelp to lower the applicants’burden
to prove complexcausality links. At the sametime, the utilisation of the precautionary principlemight
lower standardsof attribution where scientificknowledge is absentor uncertain. While positiveobliga-
tions appliedin environmental casesso far are predominantly of a proceduralnature
120
and substantive
obligationswould at best require the adoption of adaptationmeasures, an autonomous right to climate
changecould also include obligationsto mitigate the effectsof climate change. Theseobligations could
be shaped by the interpretation of international agreements related to climate change, which require
States to regulate the GHG emissions on their territory or under their control.
121
Addressing climate
change in the context of a new human right to climate protection could thereby prove beneficial for
other human rights, as GHG emissions affect various rights equally. At the same time, the determin-
ation of a violationof other rights, suchas the right to life, would not be excludedif the respective stan-
dardswere fulfilled. The inclusionof obligations to mitigatewould furthermore considerthe preventive
measures necessaryto limit the devastating consequences of climatechange at least to a certain degree
and do justice to situations where adaptation is no longer possible.
A new right to climate protection could establish further exceptions regarding extraterritorial jur-
isdiction. In this sense, new standards might be required to adapt to a phenomenon that does not
stop at national borders. This would apply particularly to obligations of mitigation, as a national
from a low-lying island State faced with the risk of submergence would most probably demand
one or more high-emitting countries to reduce their GHG emissions rather than to grant assistance
120. Compare Braig and Panov (n 34) 274; Vöneky and Beck (n 17) 155, 181. With regard to the development of procedural
environmental rights see Boyle (n 42) 621 and following.
121. See, for example, the argumentation utilised in Duarte Agostinho and Others v Portugal and Others (communicated
case) - 39371/20, Information Note on the Court’s case-law 246 (ECtHR, December 2020).
174 Netherlands Quarterly of Human Rights 40(2)
for adaptation measures. However, it must be borne in mind that such an application of extraterri-
torial jurisdiction to climate change would most probably turn the exception into a rule. As all
human beings and States contribute to a certain extent to the global phenomenon of climate
change, reference has been made to the concept of ‘shared responsibility’
122
in order to deal
with the multitude of polluters. Future analysis will demonstrate whether and to what extent this
concept could be applied to human rights doctrine.
Still, an autonomous right to climate protection would provide the opportunity to determine
uniform standards which apply to all claims that invoke human rights violations based on the
adverse effects of climate change. It would therefore guarantee a coherent application of the law
suited to the specific features of climate change.
3.3. POTENTIAL AND DANGERS OF HUMAN RIGHTS EXPANSIONISM IN THE CONTEXT OF CLIMATE
CHANGE
Both the emergence of a new right to climate protection and the dynamic interpretation of pre-
existing human rights norms would in the end result in an expansion of the current human rights
regime. The phenomenon of human rights expansion is the object of a multifaceted debate. For
decades, the emergence of new human rights is the bone of contention:
‘Why speak of “new”rights when the “old”ones are not properly respected? Is there not a danger that
these “new”rights will supplant the “old”? Might it not be true that the more rights introduced the less
weight they carry? Does not the term ‘third generation’imply that the ‘first generation’rights have
become dated?’
123
Concerns have been raised that expanding tendencies would cause a so-called human rights over-
reach or overselling
124
that could ultimately weaken their legitimacy and acceptance.
125
In this
sense, Hannum warns that ‘human rights are on the verge of becoming a victim of their own
success’
126
and that ‘the unintended consequence of this [human rights] expansion […] may be to
set back an entire movement that is based on the proposition that all human beings enjoy certain uni-
versal rights that their governments must protect’.
127
Pessimistic voices proclaim the ‘endtimes’
128
of human rights, as others seek to ‘rescue’
129
or ‘save’
130
human rights from limitless expansionism.
122. Compare Braig and Panov (n 34) 264. See also generally Franziska Martinsen and Johanna Seibt, ‘Climate Change and
the Concept of Shared Responsibility’(2013) 35(2) Environ Ethics 163.
123. NGO-UNESCO Standing Committee –Working Group on the Teaching of Human Rights, ‘The Rights of Solidarity:
An Attempt at Conceptual Analysis’(9 July 1980) UNESCO Doc. SS.80/CONF.806/6 para 5.
124. Compare Hurst Hannum, Rescuing Human Rights –A Radically Moderate Approach (Cambridge University Press
2019) xvii, 4. See also Joseph Raz, ‘Human Rights Without Foundations’(2007) Oxford Legal Studies Research
Paper 14/2007, 4; George Weigel, ‘Are Human Rights Still Universal’(1995) 99 Commentary 43.
125. Compare Hannum (n 124) xvii; John Tasioulas, ‘Saving Human Rights from Human Rights Law’(2019) 52 Vand J
Transnat’l L 1167, 1185 and following.
126. Hannum (n 124) 3.
127. ibid 5; A critical assessment of the hostility regarding human rights proliferation can be found in Marks (n 49), 451 and
following.
128. See Stephen Hopgood, The Endtimes of Human Rights (Cornell University Press 2013).
129. See Hannum (n 124).
130. See Tasioulas (n 125) 1167 and following.
Kahl 175
While some of the doomsday scenarios predicted in academia may appear to be somewhat far-
fetched, the core criticism should nevertheless be taken seriously. Overburdening human rights with
exaggerated expectations carries the risk that the support and acceptance of human rights institu-
tions by Member States will crumble.
131
An overambitious interpretation and proliferation of
human rights law may on the one side cause blurred lines between human rights and human inter-
ests.
132
On the other side, it can lead to strong criticism or –even worse –complete rejection of
current human rights systems.
133
A multitude of rights formulated in vague language could
prove counterproductive when it comes to guiding States’conduct and implementation.
134
At
the same time, the utilisation of human rights for every political agenda could lead to their
ongoing dilution.
135
As a consequence, this may lead to confusion as to the distinction between
duties and pure aspirations. Thus, it would become difficult to identify one of the greatest strengths
of human rights: their legally binding nature.
136
Therefore, human rights-based approaches –
whether rhetoric or legalistic –should accept that human rights are neither a panacea for all
issues that arise in international law or politics
137
nor a tool to pursue ‘all of the moral and political
ideals we properly recognise’.
138
Still, the history of human rights illustrates their capacity to adapt to human developments and
newly arising challenges.
139
Human rights have always been part of a temporal and dynamic
process.
140
The necessity of human rights transformation and development is described by
Alston, who emphasises that
‘the vitality and enduring significance of the human rights tradition depend in large measure on the
extent to which it can respond to new needs and can accommodate the concern with which the majority
of the peoples of the world are pre-occupied.’
141
As indicated by the existence of three human rights generations, new human rights norms have
been the logical response to new pressing needs that arose due to human development. It stands to
reason that also in the future human rights cannot be separated from continuing human
131. See Hannum (n 124) 166.
132. Tasioulas (n 125) 1179 and following, particularly 1181, 1183 and following.
133. See, for example, the Declaration on the Inter-American System of Human Rights, adopted on 11 April 2019 by the
governments of Argentina, Brazil, Chile, Colombia and Paraguay, addressed to the Executive Secretary of the
Inter-American Commission of Human Rights, available in Spanish only
embajadas-y-consulados/gobiernos-de-argentina-brasil-chile-colombia-y-paraguay-se-manifiestan-sobre-el-sistema-
interamericano-de-derechos-humanos?fbclid=IwAR24ZiaqFhGvQniznEnL3SX2MMu71itqud8-p2CBo98cnMNleC_
6OdHg&ccm_paging_p=164> accessed 11 January 2022.
134. See Eric A. Posner, ‘Human Welfare, Not Human Rights’(2008) 108 Colum. L. Rev. 1758, 1779.
135. Fittingly, Hannum states that human rights have ‘become to mean almost anything that anyone thinks that it should
mean’, Hannum (n 124) 3, 5. See also John Raz, ‘Human Rights Without Foundations’(n 124) 15.
136. See Tasioulas (n 125) 1179.
137. See Hannum (n 124) xvii, 157. See also Tasioulas (n 125) 1191.
138. Tasioulas (n 125) 1191.
139. Marks (n 49) 439.
140. Compare Carl Wellmann, ‘Solidarity, the Individual and Human Rights’(2000) 22(3) Hum Rts Q 639, 640. See also
Farooq Hassan,‘Solidarity Rights: Progressive Evolution of International Human Rights Law?’(1983) 1 NYL Sch J
Hum Rts 51, 69, 72, 73.
141. Philip Alston,‘A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International
Human Rights Law?’(1982) 29 Nethl Int’l L Rev 307, 316.
176 Netherlands Quarterly of Human Rights 40(2)
development. It also follows from the fundamental nature of human rights that not every human
interest is deemed to end up as a human right.
142
The UN General Assembly has therefore
adopted certain guidelines for the development of new human rights norms that require new
norms, inter alia, to i) be consistent with the current human rights framework, ii) be of fundamental
character, iii) be sufficiently precise, iv) provide for effective implementation and v) attract broad
international support.
143
While a detailed application of these guidelines to an autonomous right to
climate protection exceeds the present analysis, some conclusions can be drawn concerning the
legitimacy of such a human rights expansion.
Climate change is as an anthropogenic phenomenon part of and caused by human development.
Its devastating short and long-term effects on the whole range of human rights has resulted in new
needs and the articulation of corresponding demands for climate protection on a global scale. Since
basic human interests as life, health, food, water, or housing are affected by global warming, the
protection of the climatic system has reached fundamental importance for human beings world-
wide. In the end, climate change is caused by and affects every State and human being including
future generations, which further underlines the phenomenon’s global dimension and significance.
It would be surprising if the transformative process of human rights history skipped over climate
change of all things. While previous analysis has demonstrated that an autonomous right to
climate protection might be better suited to allow for the necessary adaptation to the specifics of
climate change, there are further advantages to a stand-alone right. If such a right were created
by amendment, it would receive the necessary support of Member States. Moreover, the enshrine-
ment of a right to climate protection –whether through amendment or progressive interpretation –
would respond to basic human needs and could provide for establishing clear legal standards so that
the corresponding States’obligations could easily be identified.
In contrast, an adaptation of single human rights norms through expansive interpretation may
lead to varying standards depending on the right concerned and thus to a certain level of inconsist-
ency or, at worst, arbitrariness. In the end, such an interpretation also risks falling back on existing
standards applicable to natural disasters that do not do justice to climate change as a global phenom-
enon with devastating and in part irreversible consequences in the future, requiring more than con-
tingency plans or the restitution of harms that have already materialised. Even in the case that
building dikes and other adaptation measures would form part of such a dynamic interpretation,
we may still pose the question of whether the human rights dimension of climate change can be
reduced to adaptation obligations. In addition, if progressive interpretation trespasses existing stan-
dards in environmental human rights jurisprudence, it may lead to overstretching relevant interpret-
ation criteria, which would be water on the mills of already renegade States, that could feel
prompted to withdraw from existing human rights systems.
It is rather rhetorical approaches that risk mixing political aspirations with unspecific legal obli-
gations and may dilute existing human rights norms,
144
which could in the end lead to a general
weakening of the entire system. On the contrary, clear legal guidelines that use sufficiently
precise terminology with regard to human rights obligations would have the potential to strengthen
human rights protection and secure pre-existing rights. It can therefore be assumed that a future
142. See Marks (n 49) 451.
143. Compare UNGA ‘Setting international standards in the field of human rights’(4 December 1986) UN Doc A/RES/41/
120 para 4.
144. See also Tasioulas (n 125) 1191.
Kahl 177
right to climate protection would be of fundamental character and could, through sufficiently
precise language generally in line with existing human rights terminology and methodology,
attract broad international support.
The innovative approach applied by the German Federal Constitutional Court in its recent
climate change decision
145
could in part serve as a role model for a new right to climate protection.
Particularly the carbon budget approach may help to overcome hurdles of standing and causality in
light of potential future harms.
146
While the carbon budget concept could have as well (and maybe
even better) been applied to positive obligations,
147
the reference to a variety of unspecified free-
doms could speak in favour of a human right to climate protection. Where an allocation to specific
rights becomes difficult, an autonomous right would be able to bundle the diverse effects on fun-
damental human interests through a consolidated approach.
4. CONCLUSION
Even if a right to climate protection may not remove all the dogmatic hurdles that stand in the way
of a successful climate protection claim before regional and international human rights institutions,
the previous analysis has shown the benefits that such a right would entail. In light of complex ques-
tions of causality, standing, or attribution, there is much to be said for a new right to climate pro-
tection. In particular, such a right could open the door for methodological adaptations necessary to
capture governmental activities and omissions that are responsible for human rights violations con-
nected to climate change.
Although every expansion of human rights law has to be cautiously weighed against the risks of
dilution of existing human rights norms, the benefits of a stand-alone right in terms of methodology
are also accompanied by further advantages compared to rhetorical approaches. A human right to
climate protection would be based on the fundamental need of human beings seeking protection
from climate change that human rights should respond to. Furthermore, the establishment of
clear legal guidelines and specific State obligations would strengthen the existing corpus of
human rights, while rhetorical approaches could end up confusing non-binding aspirations and pol-
itical agenda with human rights law.
Still, it has to be seen which path States and human rights institutions will choose to tackle the
phenomenon of climate change. It therefore remains to be seen whether regional and international
human rights regimes will opt for a progressive interpretation of existing human rights norms,
inspired by domestic case law, or for the establishment of an autonomous right to climate protec-
tion. The UN Human Rights Committee has made a first small step towards the solution of meth-
odological issues in the context of climate change. Similarly, the Committee on the Rights of the
Child has paved the way for innovative approaches regarding extraterritorial jurisdiction, although
its decision on Sacchi et al v Argentina ended in a declaration of inadmissibility. Whereas the
IACtHR has not yet had the opportunity to rule on an application based on the adverse effects
of climate change, on the 13
th
of November 2020 the ECtHR issued a landmark communication
145. Decision of the First Senate (n 28).
146. See ibid paras 119, 185, 216.
147. See Ammar Bustami and Verena Kahl, ‘Auf den zweiten Blick –BVerfG zwischen innovativem Klimarechtsschutz
und Pflicht ohne Schutz?’(JuWiss, 7 May 2021)
178 Netherlands Quarterly of Human Rights 40(2)
in which it accepted its first climate change case.
148
Duarte Agostinho and Others v Portugal and
32 other States was granted priority status according to Article 41 of the Rules of Court,
149
and was
shortly followed by another climate change-related case.
150
Therefore, there might be a chance that
by next year the ECtHR will have taken a decision, revealing the standards applied to standing and,
if applicable, to further issues of causality and attribution. Whatever the result, in the long run
human rights law cannot escape the transformation process needed in light of a rapidly changing
climate. As the world is constantly heating up, artificially freezing the existing human rights
corpus could literally lead to a dead end.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publi-
cation of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
ORCID iD
Verena Kahl https://orcid.org/0000-0002-3722-3780
148. See Duarte Agostinho and Others v Portugal and 32 other States App no 39371/20 (ECtHR, 13 November 2020). On
several hurdles, see also Ole W. Pedersen,‘The European Convention of Human Rights and Climate Change –
Finally!’(EJIL: Talk!, 22 September 2020)
climate-change-finally/> accessed 15 May 2021.
149. Duarte Agostinho and Others v Portugal and 32 other States (n 148).
150. Verein Klima Seniorinnen Schweiz and others v Switzerland App No 53600/20 (ECtHR, 26 November 2020).
Kahl 179
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