The issue of climate change resonates in all areas of human life, and the legal world is no different. Although climate litigation is not a novelty, it is within the last three years that it has become an issue for the highest European courts to address - i.e., the issue of a human rights approach to environmental litigation. What are the current trends in this area?
It is primarily the domestic courts of European countries that are currently dealing with the phenomenon of so-called climate litigation. The essence of such lawsuits is that the plaintiffs invoke the lack of legislative initiative of the State in environmental aspects. They do so by referring to constitutional law, administrative law, private law, or specific rules related to the protection of consumers. Naturally, such claims are also interconnected with the human rights dimension of the national and international legal order.
In the last 3 years, France, the Netherlands, and even the Czech Republic have seen this particular type of action, usually brought on behalf of a large number of plaintiffs. In this respect, the most significant decision is the one of the Dutch Supreme Court issued in 2019, known as the Urgenda case. The environmental NGO, Urgenda Foundation, brought the action, claiming that the Netherlands failed to fulfill its international obligation to pursue reducing greenhouse emissions, as outlined by the Paris Agreement. In its judgement, which is considered the first of its kind, the court found the Netherlands liable for breach of the civil duty to prevent hazardous situations. Naturally, it is the worsening climate that poses this risk.
The Netherlands has not implemented the international agreements on improving the climate, which should have been reflected in national legislation, quickly or effectively enough. According to the Dutch Supreme Court, the State "has a duty of care to mitigate as quickly and as much as possible." Furthermore, the court held that the guarantees under Articles 2 and 8 of the European Convention on Human Rights (ECHR, Convention) also include the prevention of risks connected to climate change.
Is there a right to a healthy environment?
There is no common consensus in the European area on whether environmental damage can be linked to human rights claims. Both the European Court of Human Rights (the ECtHR) and the Court of Justice of the European Union (the CJEU) were initially somewhat against the existence of a right to a healthy environment, being reluctant to constitute the link between environmental issues and human rights. Nevertheless, there have been gradual changes in this direction given the current dynamics in society.
The well-known living instrument doctrine  has contributed to the development of the ECtHR case law. Through such an interpretation of the European Convention on Human Rights, the Court has not infrequently held that, although the Convention system does not explicitly include a guarantee of a clean environment, favourable environmental conditions are necessary for the enjoyment of other rights guaranteed by the Convention.
The CJEU appears to be slightly more reluctant in this field, emphasizing procedural environmental rights stemming from the Aarhus convention (see, for example, the Wasserleitungsverband Nördliches Burgenland and Others case, or the Stichting Varkens in Nood case). On the other hand, EU legislation has long been programmatically and intensely devoted to the topic of climate protection, which to some extent provides specific guarantees of individual rights, such as consumer’s rights or, on the contrary, right to conduct business without being discriminated. However, a more profound link to the human rights aspect is still awaited.
An inconspicuous first swallow or a significant precedent?
There are other bodies as well that have had something to say about the human rights dimension of climate protection. Quite surprisingly, it was the UN Committee on the Rights of the Child that issued a ground-breaking decision in October 2021. In adjudicating a claim brought by 16 children from 12 countries, it ruled that Argentina, Brazil, France, Germany, and Turkey had violated the claimants' right to life, health, and culture under the Convention on the Rights of the Child in the context of insufficient climate protection.
Although the complaint was formally declared inadmissible since the claimants had not exhausted the domestic remedies, given the substantive reasoning of the Committee, it is still considered relevant. According to the Committee, the collective nature of the causes of climate change is not a reason for individual polluters to avoid responsibility for worsening environmental conditions. Given that the countries in question exercised effective control over the polluting activities, it could be sufficiently demonstrated that there was a causal link between the acts or omissions of the states and the harm caused to the plaintiffs.
Another important, albeit not binding decision, was issued by the Human Rights Council (the HRC) in 2021. The HRC held that a clean, healthy and sustainable environment is a human right, a conclusion that is likely to be taken into account also within the future reasoning trends of both domestic and international courts.
A chance for the European Court of Human Rights
The decision of the UN Committee on the Rights of the Child can undoubtedly serve as an interesting source of inspiration. As mentioned earlier, the ECtHR has so far been reluctant to explicitly recognise the existence of a right to a healthy environment. However, it can be said that environmental claims are generally rather open-ended. The opportunity for a landmark decision is already on the table.
In September 2020, a group of young people from Portugal lodged a complaint alleging that 33 European countries that represent the most significant polluters had violated their right to life, protection of family and private life, and non-discrimination under the Convention. They claim that, as a result of climate change, their lives are threatened by the fires frequently occurring in Portugal. Furthermore, due to the increased temperatures, they prefer to avoid spending time outdoors, which undermines their physical and mental well-being.
The case known as Duarte Agostinho can be expected to present a watershed opportunity to draw a clearer link between environmental protection and human rights instruments. Recently, two other applications have been lodged to the Court (Verein Klima Seniorinnen Schweiz and Others v. Switzerland and Greenpeace Nordic and others v. Norway). Therefore, it will be interesting to see how the ECtHR proceeds in a situation where any significant step in this direction will be closely monitored by the entire international community.
 The living instrument doctrine is an interpretative approach of the ECtHR that allows the Court to adjust the interpretation of the ECHR to the present day conditions.
Cenevska, I. (2016). Environmental Rights in the Dialogue between the EU Court of Justice and the European Court of Human Rights. Available from Geneva Jean Monet: https://www.ceje.ch/files/2314/6762/6879/Geneva_JMWP_16-Cenevska.pdf
Climate Change Litigation Databases. (2022). Duarte Agostinho and Others v. Portugal and 32 other countries. Available from: http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200902_3937120_complaint.pdf
Climate Change Litigation Databases. (2022). Urgenda Foundation v. State of the Netherlands. Available from: http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200113_2015-HAZA-C0900456689_judgment.pdf
The European Court of Human Rights. (2022). Guide on the case-law of the European Court of Human Rights - Environment. Available from: https://www.echr.coe.int/Documents/Guide_Environment_ENG.pdf
EUR-Lex. (2022). Environment and Climate Change. Available from: https://eur-lex.europa.eu/summary/chapter/20.html
UN Treaty Body Database. (2022). CRC - Convention on the Rights of the Child, 88 Session (06 Sep 2021 - 24 Sep 2021). Available from: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID=1351&Lang=en
Climate protection requires systemic change. System change, not climate change, author: Chris Yakimov, 27 September 2019, source: Flickr, CC BY-NC 2.0, edits: cropped.