When courts meet the climate crisis: How far should human rights law go?

Fourth-year LLB student Jasmine Messelles Janne compares two supra-national approaches to human rights law in the wake of the climate crisis

Climate change is often discussed as a political and scientific problem. Yet it is increasingly becoming a legal one too. Courts are being asked to decide whether governments have done enough to protect people from climate-related harm, and whether existing human rights can respond to a crisis that is inherently global is acting gradually and difficult to attribute to any single actor.

A recent conference I attended on ‘Inter-judicial Dialogue on Climate Change and Human Rights’ in Vienna on my study exchange this year brought this tension into sharp focus for me. The conference featured contributions from Darian Pavli, a judge of the European Court of Human Rights, and Nancy Hernández López, President of the Inter-American Court of Human Rights.

The discussions compared the cautious approach of the European Court of Human Rights (ECtHR) with the more ambitious reasoning of the Inter-American Court of Human Rights. Although the two courts operate in different legal systems, their contrasting approaches raise a common question: should judges protect the limits of their institutions, or push human rights law to meet the urgency of the climate crisis?

The problem of access to justice

The ECtHR’s decision in Verein KlimaSeniorinnen Schweiz and Others v Switzerland is a useful starting point. The case concerned Switzerland’s alleged failure to take sufficient action against climate change. The Court held that Switzerland had violated Article 8 of the European Convention on Human Rights, which protects private and family life. It also found a violation of Article 6, concerning access to a court, because the domestic courts had not properly examined the association’s complaint and the scientific evidence supporting it.

However, the Court did not allow every applicant to bring a climate claim. The individual applicants, who were elderly women, were not recognised as victims for the purposes of the Convention. By contrast, the association, KlimaSeniorinnen, was allowed to proceed.

This distinction reflects the ECtHR’s concern about a general public-interest claim, sometimes described as an actio popularis. The Convention system is not designed to allow anyone to challenge a government’s conduct simply because they disagree with it. Applicants generally need to show that they are personally affected by the alleged breach.

In climate cases, that requirement is difficult. Climate change affects everyone, but not necessarily in the same way or with the same intensity. The Court therefore required individuals to demonstrate a high level of exposure to adverse effects and an urgent need for individual protection. This is a demanding threshold, particularly when harm may develop over decades and result from emissions produced across the world.

At first, this approach may appear disappointing. If climate change is a threat to human rights, why should individuals face such a high barrier to justice? A strict approach could prevent vulnerable people from bringing claims before the harm becomes immediate and personal. It may also overlook the fact that those least responsible for climate change can be among those most affected by it.

There is nevertheless a principled argument for the Court’s caution. If the threshold were lowered significantly, the ECtHR could become a forum for reviewing almost every aspect of national climate policy. Judges would be required to assess complex scientific, economic and political choices affecting entire populations. That could place the Court in tension with democratic institutions and risk turning it into a general climate regulator.

The recognition of association standing offers a partial compromise. An organisation can represent a group facing a common threat while still meeting limits designed to prevent unlimited litigation. The judgment therefore opens an important route to climate justice without completely abandoning the Convention’s traditional rules on standing.

A more transformative model

The Inter-American Court has taken a different direction. In its Advisory Opinion OC-32/25 on the Climate Emergency and Human Rights, requested by Chile and Colombia and adopted on 29 May 2025, the Court set out a broad framework for states’ obligations in responding to climate change.

The opinion treats the climate emergency as a direct threat to the enjoyment of human rights. It discusses duties relating to mitigation, adaptation, equality, access to information, public participation and access to justice. It also pays particular attention to groups that experience climate impacts disproportionately, including Indigenous and tribal peoples, children and people living in poverty.

One striking feature is the Court’s treatment of nature. Rather than viewing the environment only as something valuable because it supports human life, the opinion recognises nature as a subject of rights. This moves beyond a purely human-centred model of human rights protection and reflects, among other things, Indigenous approaches in which ecosystems are understood as having value in their own right.

That development is potentially significant. If nature itself is legally protected, environmental destruction does not need to be framed solely through its effect on an identifiable individual. Rivers, forests and ecosystems become part of the legal conversation in their own right. This could strengthen protection for places and communities whose interests are often poorly represented in conventional litigation. This can be seen in the UK’s River Wye litigation, where residents, businesses and environmental groups have sought legal remedies for alleged pollution and ecological damage. The case demonstrates both the growing willingness to use litigation to protect rivers and the limitations of a system in which the river itself cannot bring a claim.

The Court also considered whether the obligation not to cause irreversible damage to the climate and the environment has the status of jus cogens. In simple terms, jus cogens refers to fundamental rules of international law from which states cannot depart. Examples commonly include the prohibitions of genocide, slavery and torture. The Court’s discussion therefore places environmental protection at the highest level of international legal importance.

This is an ambitious step, but it also raises difficult questions. Climate change has no single perpetrator. Responsibility is spread across states, businesses and individuals, and the effects of particular emissions may be separated from the resulting harm by time and geography. By contrast, the clearest examples of jus cogens involve conduct that can be more easily identified and prohibited.

The legal consequences are also uncertain. Even if the protection of the climate were accepted as a peremptory norm, courts and governments would still need to determine what specific conduct is prohibited, what level of emissions is unlawful and which actors are responsible. Without clear answers, the language of jus cogens may express the moral seriousness of the climate crisis without immediately creating a workable enforcement mechanism.

Which approach is more effective?

The ECtHR and the Inter-American Court can be understood as responding to different institutional circumstances. The ECtHR emphasises limits: standing, subsidiarity and the separation of powers. Its approach seeks to ensure that courts remain legitimate decision-makers rather than substitutes for elected governments.

The Inter-American Court places greater emphasis on transformation. Its opinion responds to the scale of the crisis by developing detailed duties, recognising the interests of future generations and expanding the legal significance of nature. It is prepared to test the boundaries of existing doctrine where established approaches may be inadequate.

Neither approach is entirely satisfactory on its own. A court that is too cautious may leave serious climate-related rights violations without an effective remedy. A court that is too ambitious may produce principles that are difficult for domestic institutions to apply or enforce. The central challenge is to combine urgency with legal clarity. For that reason, the most important stage may come after international judgments and advisory opinions. Domestic courts, legislators and public authorities must translate broad principles into practical measures: credible emissions targets, transparent decision-making, protection for vulnerable communities and meaningful opportunities to challenge government inaction.

Climate litigation cannot replace political action. Courts do not have the scientific expertise, democratic mandate or administrative capacity to design every aspect of climate policy. They can, however, require governments to act consistently with rights obligation provide explanations for their decisions and take foreseeable harm seriously.

The emerging judicial dialogue shows that human rights law is no longer separate from the climate crisis. The ECtHR reminds us that legal institutions need boundaries. The Inter-American Court reminds us that boundaries should not become an excuse for inaction. The effectiveness of climate justice will depend on whether courts can preserve both principles at once: institutional restraint and meaningful protection.

Jasmine is a fourth-year LLB Law student at the University of Southampton, having recently completed an exchange year at the University of Vienna. She is interested in commercial law, international arbitration and the energy sector.