Could Human Rights Law and the ECHR play a key role in tackling climate change?
In Duarte Agostinho v Portugal and 32 Other Member States, filed in November 2021, a group of Portuguese young people made claims about past and future harms caused by climate change, including harms related to forest fires in Portugal. The case reinforces the potential for the ECHR and the protection of human rights to play a key role in the future for holding countries accountable to carry out their climate obligations.
In this case, the applicants have challenged the legislative inaction of Portugal and 32 other states parties to the Paris Agreement. Their collective failure to take adequate measures to reduce global warming has contributed to significant loss of life as a result of climate change through heatwaves and wildfires, which is likely to contribute to further loss of life in the future (article 2) , unless imminent measures are put in place across all of them. The case conceptualises responsibility for violations of human rights as âsharedâ amongst the member states. The case thereby challenges the traditional concept of jurisdiction by holding that the impact of the violations may be felt more strongly in some member states , other states also bear responsibility for the violation. Similarly, climate litigation challenges the limits of the existing positive obligations doctrine.
following this trend now in 2023, the governments of Switzerland and France have been accused of breaching the human rights of their citizens by not acting decisively enough on climate change, at a landmark legal hearing in Strasbourg. The European Court of Human Rights will hear cases against France and Switzerland over alleged failings to protect the environment made by a a group of Swiss women over the age of 64 who are supported by Greenpeace Switzerland. The applicants have alleged that heatwaves, caused due to climate change and the inaction of their countries, have impacted the health of senior citizens therefore impacting their right to life. The outcome of this case is highly anticipated and will determine the scope and potential of climate litigation going forward.
ECtHRâs case law under Articles 2 and 8 ECHR mean that the Convention already has the potential to capture the elements of this litigation that rest upon past harm. However, both causality and the prospective nature of climate litigation are key challenges, which will now have to be considered comprehensively by the Court going into the future.










