1. Introduction
The ‘turn to rights’Footnote 1 in climate litigation is here to stay, with growing numbers of rights-based cases around the world contesting greenhouse gas emissions,Footnote 2 demanding adaptation measuresFootnote 3 or seeking a just clean energy transition.Footnote 4 A key turning point in this respect took place on 9 April 2024, when the European Court of Human Rights (ECtHR) issued its first climate rulings, fueling an outburst of academic interest and engagement. The Court’s judgment in the KlimaSeniorinnen case, in particular, was received as a ‘historic’ and ‘landmark’ ruling.Footnote 5 This case concerned the rights of older Swiss women who alleged a particular vulnerability to climate-aggravated heatwaves and sought more ambitious domestic emissions reductions.Footnote 6 While the Court broke new ground by finding violations of Article 8 (right to private and family life) and Article 6 (right to a fair trial) of the European Convention on Human Rights (ECHR)Footnote 7 in this case, tenacious debates have arisen about whether this case allowed an actio popularis.Footnote 8 Indeed, the Court’s reasoning on this point is not particularly transparent. Its approach leaves open core questions about how to define and ensure equity in mitigating climate change, and how to define victimhood and standing in ways that prioritize the most affected.
Together with the two inadmissibility decisions that accompanied it,Footnote 9 KlimaSeniorinnen charts a pragmatic course, tweaking victim status and standing criteria to allow for procedural and regulatory-level review of mitigation policy in some instances while simultaneously keeping the pool of potential ECHR climate cases limited in territorial, personal, substantive, and remedial ways. This restrictive engagement seems aimed at deflecting anticipated pushback from states. Such pushback did in fact manifest, with the Swiss Parliament for example describing KlimaSeniorinnen as ‘judicial activism’,Footnote 10 along with other domestic narratives that arguably fit Erik Voeten’s definition of populist backlash against courts.Footnote 11
The approach chosen by the Court leaves open a crucial question: how and to what extent can and should human rights law try to protect the rights of those most vulnerable to climate change? The present article focuses particularly on the approach to victim status and standing taken in KlimaSeniorinnen. This has been described as the ‘thorniest’ aspect of the judgmentFootnote 12 and also its main innovation.Footnote 13 The following argues that the Court’s excessively restrictive approach in this regard, along with criticisms of its ambiguous reasoning,Footnote 14 could have been avoided by adopting an intersectional understanding of vulnerability to climate impacts. This would have allowed for an assessment reflecting the situations where human rights are particularly endangered in the context of climate change (‘vulnerability’) and the ways in which these factors interact with each other to create situations of particular climate-related risk (‘intersectionality’). Applying these concepts – which are more fully explored and nuanced in Section 2 – would also have cohered with the argumentation of the applicants, who submitted that they were ‘particularly vulnerable to heatwaves and have a higher risk of mortality and morbidity than the rest of the population due to their age and gender’ and that ‘[t]hese vulnerabilities “intersect to amplify the impacts” of climate change’.Footnote 15
The Court did not follow the applicants’ argument in this respect. Other authors have already critiqued its refusal to engage with the intersecting vulnerabilities at play in KlimaSeniorinnen.Footnote 16 Yet mainstream commentary has largely lacked regard for climate-related inequities and vulnerabilities. For example, Marko Milanović considered that:
the argument that little old ladies in Switzerland are somehow especially affected by climate change [is] entirely bogus. If they are affected, why wouldn’t I be – why would their interests matter more than mine (or anyone else’s), simply because they have fewer years left to live (well I hope) and are more affected by summer heat?Footnote 17
From the perspective of substantive equality,Footnote 18 this understanding is disturbing. It dismisses the argument that the KlimaSeniorinnen applicants had been making for almost a decade, based on extensive scientific evidence: that their age and gender place them particularly at-risk during heat waves,Footnote 19 and that Switzerland is accordingly particularly endangering them with its climate policy.Footnote 20 But, and more fundamentally, it presumes that no particular protection or attention is due to those who will particularly suffer the effects of climate change. And this is the problem also of the Court’s initial response to climate cases.Footnote 21
The present article uses KlimaSeniorinnen as a starting point for pulling at a problematic thread in the Court’s case-law: one that picks and chooses which (intersecting) vulnerabilities to emphasize and which kinds of impacts or suffering to recognize, in ways that render vulnerability exceptional and risk essentializing applicants. It argues that many of the problems facing the KlimaSeniorinnen Grand Chamber in terms of the victim status and standing tests could have been solved by taking an intersectional, equity-based perspective. This goes beyond existing analyses by placing the Court’s (lack of) engagement with intersecting vulnerabilities in its climate cases in a broader overall context, troubling dismissive conceptions of vulnerability, and linking the discussion to three overarching objections to climate litigation.
In doing so, the article finds that the problems discussed here run deeper than KlimaSeniorinnen. They relate to a more general resistance to understanding rights-holders’ lives as a multi-dimensional experience shaped by the intersections of race, place, (dis-)ability, temporality, age, gender, class, and other factors.Footnote 22 Pulling at this thread allows for a more meaningful discussion of the intersecting vulnerabilities at play here, victim status in climate cases, the Court’s concept of equality, and the struggle for climate justice through litigation. Ultimately, it may help to resolve the criticisms of the Court’s approach to climate litigation as lacking a victim, and as accordingly representing an actio popularis – a discussion that stands to echo across various jurisdictions as other decision-makers engage with the issue of climate change and enter dialogue with the ECtHR’s findings.Footnote 23
The argument is structured as follows. First, the following makes the case for an intersectional approach to vulnerability, discussing what this would mean for the Court and highlighting its enduring refusal to engage with intersectionality (Section 2). The article then outlines the strategic decisions that shaped the KlimaSeniorinnen application (Section 3) before discussing why climate change must be understood as an issue of inequality (Section 4). It then argues that KlimaSeniorinnen would have looked much different – especially in terms of victim status – if the Court had been willing to engage with the intersecting vulnerabilities at its core (Section 5) before providing an outlook and an evaluation of what litigation means and prevents in this context (Section 6). Section 7 concludes.
2. In favor of an intersectional perspective
2.1. Which intersectional perspective, and why?
Intersectionality – the concept pioneered by the Combahee River CollectiveFootnote 24 and critical race scholar Kimberlé Crenshaw,Footnote 25 among othersFootnote 26 – may provide a way to interrogate the power relations that shape not only the realities of climate change, but the production of (legal) knowledge as a whole. Because intersectionality is a perspective or a method, a form of critical analysis,Footnote 27 there are different ways of using and understanding it. Crenshaw’s approach uses a metaphor about the intersection in a road where different axes of oppression come together, creating particular situations of disadvantage and marginalization.Footnote 28 By contrast, Patricia Hill Collins’ focus is on ‘six core substantive constructs …, namely, relationality, power, social inequality, social context, complexity, and social justice’.Footnote 29 In addition to these perspectives, a plethora of other accounts of intersectionality that could be discussed here.Footnote 30
In all its forms, intersectionality helps to question the idea of a homogenous, invulnerable human rights subject. It shows that identities and other factors can lead to compounded experiences of discrimination, marginalization, oppression, and suffering. And in doing so, an intersectional perspective highlights the multidimensional inequities that are both a cause and an effect of climate change. In particular, it can help to understand and contest the reality that certain groups and individuals do not have an equal voice in decisive climate policies or equal access to the protection of their rights. Used to challenge power relations,Footnote 31 intersectionality can even help to show who is ‘Othered’ by implicit conceptions of the liberal subject of rights (as outlined below in Section 5.1).
Intersectionality can help to show how the register of rights reduces or erases certain types of claims. As Patricia Hill Collins writes, ‘[o]ppressed groups are frequently placed in the situation of being listened to only if we frame our ideas in the language that is familiar to and comfortable for a dominant group. This requirement often changes the meaning of our ideas.’Footnote 32 This is arguably what happens when a case is taken to the ECtHR, or any human rights adjudicator: the need to design a case that is likely to succeed within the parameters of a given institutionalized system can mean reducing or reframing the complaint made. Where applicants stand by their own framings, they risk being accused of doing ‘too much, too soon’, which is understood as counterproductive because it potentially undermines ‘other, maybe more modest attempts at litigation’.Footnote 33 Change should, in other words, be incremental, without spooking the courts or the other branches of government – or should it?
Cautioning against doing ‘too much, too soon’ is likely to have inequitable impacts of its own. That is: it will have the most limiting impact on those most at risk, because vindicating their rights presents the greatest challenge to a liberal legal order that supports and is in fact premised on extractive, individualistic narratives and on ‘hierarchies of human suffering’Footnote 34 (as discussed in Section 5.3). To counter this, taking an intersectional perspective on climate change, and on rights-based climate litigation, is imperative. First, because it shows that the stakes are not the same for everyone, and that a rigidly universalistic, liberal understanding of rights is not enough. To cite Atrey, ‘[t]hese structures cannot be subverted until they are known’, meaning that engagement and recognition are the first step towards transforming inequalities.Footnote 35 And secondly, an intersectional approach helps to explore or even overcome certain objections to rights-based climate litigation if used to ‘center global solidarities that resist the harms of colonialism and capitalism’.Footnote 36
The present article does not contest the idea that climate change is a collective action problem, or that there is a collective interest in preventing warming of more than 1.5°C. These are treated as givens here. Instead, this piece examines common objections to climate cases made by states, which tend to downplay rights-based climate litigation’s potential to expose (some aspects of) climate inequity. This does not mean that the present piece is uncritical of climate litigation itself: no case is necessarily beneficial or benevolent. However, cases can and do serve as tools for litigants seeking to draw attention to the ways in which the state (and by extension the law) is harming them and others. They can also help to strengthen access to justice and counterbalance majoritarianism in democratic decision-making.
Against this background, the following will explore what the Court understands as vulnerability, what this could mean for climate cases, and how intersectionality could enter into play here. The understanding of intersectionality used draws on relational reimaginings of the subject of rights, in that it seeks proximity with the real, multi-dimensional, relationally maintained ways in which people are affected by and resist climate change.Footnote 37 This helps to understand what is removed from view by predominant understandings of the subject of climate rights.
2.2. The Court’s concept of vulnerability, and its rejection of intersectionality
The term ‘vulnerability’ has already been used repeatedly throughout this article, departing from the KlimaSeniorinnen applicants’ own invocation of the term in their application to the Court. This term can mean different things, and even within human rights law it can be used in at least three ways: (i) the sense of its common definition, referring generally to any kind of risk; (ii) to identify specific groups and individuals in need of special protection, or (iii) to describe – as it does in the theoretical literature – the universal condition of being human, and embodied in a needy physical form.Footnote 38 Outside the law, it can also be used in other ways, e.g. to refer to political and infrastructural factors that shape how climate harms are experienced.Footnote 39
The Court also uses this term, in the sense of the second definition set out above. To date, it has developed extensive case-law on the special protection due to the groups and individuals that it understands to be vulnerable. Much of the Court’s response to marginalization, inequality, and disadvantage is accordingly coded as a question of vulnerability, giving this concept central relevance across different Convention rights (especially Articles 3, 4, 8, and 14 ECHR) and in the present discussion. In other words, the concept of vulnerability, despite triggering engagement with inequality (which, in the Court’s usage, is largely synonymous with ‘equity’, a term that it uses less commonly), is not relevant only for the Convention’s non-discrimination norm (Article 14 ECHR), but relates to equality as an overarching value of human rights law.Footnote 40 The same is true for attention to the intersections of various vulnerabilities.
The Court’s understanding of vulnerability has led to tailored, situation-sensitive human rights protection for example for children, detainees, victims of sexual violence, and stigmatized groups such as asylum seekers, Roma, people with psychosocial disabilities and those living with HIV/AIDS.Footnote 41 This shows that vulnerability in the Court’s parlance can emerge from a variety of traits, identities, experiences, inequities and situations of dependence that require particular attention or protection from the state – including a variety of health-related vulnerabilities,Footnote 42 including on rare occasions those related to advanced age.Footnote 43
Reference to vulnerability in the Court’s case-law has a variety of effects: it can tailor procedural requirements, adapt the threshold of severity under Article 3 ECHR (the prohibition of torture and inhuman and degrading treatment) and narrow the state margin of appreciation concerning limitable rights, all by referring to vulnerability. What it does not do, however, is question the exceptionality of vulnerability. For present purposes, this means that it fails to draw rights-based consequences from the fact that ‘there is no invulnerability to climate change’, meaning that ‘climate change vulnerability remains a condition of the Other’.Footnote 44 In other words, vulnerability can have positive impacts for individual applicants before the Court. However, and even though the Court appears open to recognizing additional sources of vulnerability as they arise,Footnote 45 its approach is selective, and always involves a comparison between the vulnerable subject – who is due human rights protection – and the implied invulnerable ‘norm’ and unhelpable ‘Other’, who are both not.
Given that climate change perpetuates inequality, as set out in Section 4.1, human rights law can and should offer a framework within which the underlying power dynamics and relations can usefully be explored. This is the normative underpinning of the present analysis – and it also encourages a non-exceptional understanding of vulnerability by encouraging broader engagement with the wide array of intersecting climate-related vulnerabilities that relate to rights, as well as the vulnerability of all human life to climate-related impacts (as well as that of non-human life, which is, however, not currently recognized as bearing rights under the ECHRFootnote 46 ).
This means deploying an understanding of vulnerability that embraces duality or complexity – i.e., that understands that we are all vulnerable to climate change, all bearers of rights, and all due protection by the state, but also understands that this universal vulnerability exists in a world of inequality which values some lives, interests, and experiences over others. It also means recognizing that vulnerabilities can intersect. For example, vulnerability based on a given disability or medical condition can intersect with poverty, race, young or old age, gender, and other factors to create situations of what the Court might call ‘extreme vulnerability’.Footnote 47
In this context, is important to note that while the Court has embraced recognition of selected vulnerabilities, it has persistently rejected intersectionality, both as a term and as a perspective.Footnote 48 Not only does it refuse to refer explicitly to intersectionality, despite third-party interveners’ best efforts,Footnote 49 but it also often avoids applying an intersectional perspective in substance.Footnote 50 In doing so, it may rely on its anti-stereotyping approach to resolve cases, as it did in one key case that was, rather clearly, about the intersection of age and gender.Footnote 51
This is a conscious omission: for example, Judge Pinto de Albuquerque (joined by Judge Vehabović) lambasted the majority in Garib v. the Netherlands for failing to take into account ‘the problem of insidious, indirect, or intersectional forms of discrimination’.Footnote 52 What the Court does do, i.e., emphasizing the ‘particular’ vulnerability of certain applicants or applying an anti-stereotyping approach, is not quite the same thing in terms of its power to expose pervasive sources of injustice or highlight what systemic changes are needed.Footnote 53 To second Henningsen, ‘a more direct and articulate intersectionality methodology in the legal assessment would refine the legal reasoning and contextual analysis’.Footnote 54
Vulnerability and intersectionality are thus deeply connected notions for the purposes of the Court’s case-law, and their interplay holds significant potential for better understanding how human rights law relates to climate change. The present examination of climate-related vulnerabilities is thus concerned with pinpointing the context within which an intersectional understanding is absent, and discussing what such an understanding would add to the case-law.
2.3. Sex, gender, and the problem of describing women as (categorically) vulnerable
To reiterate: the KlimaSeniorinnen applicants argued that they were ‘particularly vulnerable to heatwaves and have a higher risk of mortality and morbidity than the rest of the population due to their age and gender’ and that ‘[t]hese vulnerabilities “intersect to amplify the impacts” of climate change’.Footnote 55 But is gender in fact a source of vulnerability, and what is meant by gender here?
On closer examination, it seems that the KlimaSeniorinnen application is in fact referring not to gender, but to a binary understanding of biological sex as the factor that causes differences in the health impacts of heat waves.Footnote 56 It also seems that the application was not necessarily interested in theorizing differences between sex and gender, likely taking its cue from the relevant scientific evidence, which often relies on binary understandings in the sense of a ‘men-versus-women dichotomy’.Footnote 57 Likewise, recent UNFCCC documents note that ‘climate change impacts on women and men can often differ owing to historical and current gender inequalities and multidimensional factors’, but leave definitions of sex and gender open.Footnote 58 This has been linked to opposition to language concerning gender, sexuality, and intersectionality by certain COP29 negotiators.Footnote 59 Here, a human rights-informed approach could help to clarify the (non-binary) categories made by incorporating regard for variations in biological and physiological characteristics (‘sex’) and societal and political roles, relations and expectations (‘gender’);Footnote 60 the same could be said for the inclusion of a gender theory perspective, which is however not covered by the present article.
Although sex notably represents a prohibited ground for different treatment under Article 14 ECHR’s prohibition of discrimination, women as such are not considered a vulnerable group under human rights law. This is intended to avoid negative stereotypes;Footnote 61 for example, as Hélène Tigroudja notes, ‘by acknowledging women’s social, economic, legal and political vulnerability, the law can have the perverse effect of essentializing these vulnerabilities, which would then be considered ontological and feed the sexist doctrines that assert men’s superiority’.Footnote 62 Seema Arora-Jonsson has likewise noted that categorically framing women as ‘virtuous’ or ‘vulnerable’ in the context of environmental harm does not necessarily create more equitable responses if it does not pay attention to more specific and intersectional reasons for climate-related impacts.Footnote 63 In other words, she argues, categorical understandings of women’s vulnerability to climate change are counter-productive and preclude further assessment, because ‘it is assumed that we know what the problem is – the vulnerability of women’.Footnote 64 Still, some contexts may lend themselves to categorical thinking: for example that of health, given, e.g., the ‘gender gap’ in medical research.Footnote 65
Separately from categorical vulnerability framed around sex or gender, there is also widespread recognition that female(-identifying) individuals may be vulnerable due to factors like victimization (i.e., gender-based violence).Footnote 66 Sex and gender can also intersect with other factors (disability, membership in a minority, age, experiences of migration, and LGBTI identity) to create particular situations of intersectional discrimination. In this vein, there is clear evidence that sex and gender intersect with other factors to create particular climate vulnerabilities.Footnote 67 For example, already in 2018, CEDAW established that:
[w]omen, girls, men and boys are affected differently by climate change and disasters, with many women and girls experiencing greater risks, burdens and impacts. Situations of crisis exacerbate pre-existing gender inequalities and compound the intersecting forms of discrimination against, among others, women living in poverty, indigenous women, women belonging to ethnic, racial, religious, and sexual minority groups, women with disabilities, refugee and asylum-seeking women, internally displaced, stateless and migrant women, rural women, unmarried women, adolescents and older women, who are often disproportionately affected compared with men or other women.Footnote 68
In doing so, CEDAW emphasized the societally constructed inequalities that create higher levels of mortality and morbidity during climate-related disasters and shape exposure to climate-aggravated health conditions.Footnote 69
The intersection of climate-related vulnerabilities has been more prominently discussed in recent years. For example, a 2024 report by the UN Special Rapporteur on Human Rights and Climate Change, Elisa Morgera, reviewed the guidance created by various UN human rights bodies and offices concerning intersecting climate-related vulnerabilities. She called on states to ‘apply international guidance on intersectionality in developing, implementing, funding, monitoring, evaluating, learning from and reviewing climate action at all levels’.Footnote 70 Separately, it has been argued that the concept of ‘One Health’,Footnote 71 which has come to prominence in the field of health studies as a way to correct tendencies to examine health variables in isolation, and which understands human health as interdependent on animal and environmental health, overlaps conceptually with intersectional, gender-sensitive understandings of health.Footnote 72
Much more could be said about the gendered dimensions of climate-related health impacts. For example, based on the example of the 1991 cyclone in Bangladesh, it has been shown that societal, moral, and material factors made women more vulnerable to drowning and violence. Footnote 73 This highlights the gendered impacts of environmental disasters given, among other things, societally accepted divisions of labour, access to legal rights (alongside with services such as healthcare), differences in care obligations and other societal conditions. Another study showed that climate shocks increase young women and girls’ risk of early and forced marriage.Footnote 74 Furthermore, Angela Hefti has argued that women face poorer political representation both domestically and in international climate negotiations.Footnote 75
Studies have also proven that women and older people – and especially older women – are disproportionately affected by heat-related mortality and morbidity.Footnote 76 Recent work by Angela Hefti, Hannah van Kolfschooten, and Aminta Ossom has reviewed medical studies showing that climate change relates to a number of health impacts – worsening asthma and respiratory diseases, causing water-borne illness, increasing risks of heatstroke, cardiovascular collapse, infections and diseases while also impacting mental health.Footnote 77 Hefti, van Kolfschooten, and Ossom use this as a point of departure to discuss the particular gendered, age-related and racialized impacts of climate change on health – including not only impacts based on societal expectations of women’s tasks in collecting food, water and fuel, but also the risks that heat poses during pregnancy.Footnote 78 They use this as a basis for arguing that climate change litigation can be strengthened using health arguments, and more particularly through intersectional health analysis.Footnote 79 Likewise, Irthe J. M. de Jong has argued in favor of an intersectional approach to climate change that factors in not only gender but also ‘being part of a generation’ as part of understanding climate-related human rights violations.Footnote 80
The present article does not aim to exhaustively map the gendered potential health impacts of climate change, whether related to societal roles or physiological characteristics. Instead, it takes the above as a basis for exploring how regard for intersecting vulnerabilities could have strengthened and clarified the reasoning of the ECtHR in its initial climate cases. In particular, such an exploration can help to counter the widespread impression that there were no affected persons (victims) at the core of the KlimaSeniorinnen case, and that the Court accordingly allowed an actio popularis here.
3. Understanding the KlimaSeniorinnen Application
3.1. Strategy, and the turn against intersectionality
What was at stake in KlimaSeniorinnen, and what role did intersectionality play in this regard? First, it should be noted that the Court’s judgments depend heavily on the scope of the cases brought before it. In particular, the litigants in the Court’s initial climate applications drew inspiration from the Dutch Urgenda judgment.Footnote 81 In this case, in 2015, a first-instance court in the Hague found that the Netherlands’ inadequate emissions reductions had violated the state’s duty of care,Footnote 82 as interpreted in light of Articles 2 and 8 ECHR (the right to life and the right to respect for private and family life, respectively).
Urgenda inspired a wave of litigation in other jurisdictions, including KlimaSeniorinnen.Footnote 83 But unlike Urgenda, which benefitted from the Dutch Civil Code’s explicit permission of collective or class actions,Footnote 84 these jurisdictions did not necessarily allow representative standing by organizations (e.g., do not allow them to claim on behalf of their members). A different approach to standing was accordingly required to achieve an Urgenda-style result, with claimants anticipating a need to demonstrate that they have been affected or even particularly affected by emissions.Footnote 85 After all, the ECtHR does not admit cases that can be construed as an actio popularis (i.e., a public interest case demanding abstract review of domestic law),Footnote 86 and applicants needed to show that they had victim status under Article 34 ECHR as well as facing other hurdles, such as sufficiently proving causation.
Much of the KlimaSeniorinnen case was geared towards clearing the Article 34 ECHR victim status requirement. That requirement is autonomous of domestic law and practice, and requires applicants to demonstrate – at least prima facie – that they were ‘directly affected’ by the contested measure.Footnote 87 While the Court also exceptionally recognizes the victim status of indirect and potential victims of Convention violations,Footnote 88 the victim status criterion creates a strategic incentive to frame climate cases as being about a particularly affected group, whether that be older women or young people. In doing so, it lends itself to ‘strategic essentialism’, a simplification to create a shared and actionable identity.Footnote 89 This is problematic in the sense that it erases complexity or non-shared differences, and does not guarantee that judicial attention is geared at those groups most imminently at risk. At the same time, applicants to the Court do not need to show that there are no others who are also affected by a given measure – the criterion is one of direct affectedness, not exclusive or peak affectedness. For KlimaSeniorinnen, this background helps to better understand the applicants’ case as it was brought to the Court, including the initial decision to structure the case around older women.Footnote 90 This was, in other words, a strategic decision – which does not mean, of course, that the case is not meritorious, or that the applicants were not actually affected in their rights.
Sußner has argued that, in framing climate cases, intersectionality can serve as a strategic tool to help applicants show that their case is not an actio popularis, and that it meets the ‘affectedness’ test for victim status under Article 34 ECHR.Footnote 91 Hefti, van Kolfschooten, and Ossom have argued this as well.Footnote 92 Indeed, intersectional thinking could have afforded the KlimaSeniorinnen Court a better solution than the one ultimately reached on individual victim status. And at one point, the applicants in the case also seemed to be making an argument in this direction. Along with arguing based on intra- and intergenerational equity, they mentioned the intersecting vulnerabilities at play in their case before the Chamber.Footnote 93 Third-party interveners also argued in favor of an intersectional perspective.Footnote 94 This argument about intersectionality was, however, dropped from the applicants’ argumentation before the Grand Chamber.Footnote 95 In other words, the applicants did not push this concept across the finish line – which may have to do with changed priorities, different drafting team compositions, or perhaps also with the fact that the Court is known to be unwilling to acknowledge intersectionality, at least explicitly. Or, as Jens T. Theilen notes, ‘the mere mention of intersectionality would be too controversial a move for some judges’.Footnote 96
It accordingly does not come as too much of a surprise that, while the applicants’ emphasis of intra- and intergenerational inequities was picked up in the Court’s judgment as an overarching consideration,Footnote 97 the discontinued arguments about intersectionality were not. This perhaps relates to a further strategic decision by the applicants, namely the one against framing the KlimaSeniorinnen application as a discrimination case (as further contextualized in the following sections).
3.2. Beware the actio popularis
The discussion above, on the KlimaSeniorinnen applicants, noted that intersectionality and equality-based arguments were not at the forefront of their case – and neither was the Convention’s non-discrimination norm, Article 14 of the ECHR. But KlimaSeniorinnen is, of course, not the Court’s only climate case (albeit the only one to result in an admissibility finding and Convention violations to date). For many of the other climate cases brought to the Court so far, over a dozen in total, the same finding holds true: they do not foreground intersectionality, equality and non-discrimination.Footnote 98 In fact, several cases that did invoke the Convention’s non-discrimination provision, including in terms of (young) ageFootnote 99 and race,Footnote 100 have been declared inadmissible. The story is of course far from over: a case against Norway,Footnote 101 which invokes the disproportionately prejudicial effects of climate inaction on young people, some of whom are also members of the Indigenous Sámi minority, whose traditions, land and resources are negatively impacted by emissions including those from new fossil fuel drilling permits, is pending. Meanwhile, the next climate case expected to be adjudicated by the Court, the Müllner v. Austria case, concerning an applicant living with a heat-sensitive disability, also does not invoke Article 14.Footnote 102
The fact that the Convention’s dedicated non-discrimination norm is taking only a background role in the context of climate litigation is unsurprising. In addition to its overall wallflower role in the Convention system,Footnote 103 this provision was not part of the Urgenda model of climate litigation. But while it is commonly argued that the Court can only decide the cases that come before it, it should be noted that it always can choose to recharacterize claims or raise new ones.Footnote 104 After all, these cases raise issues that stem from and magnify existing inequalities while also creating new ones (as expanded on in Section 4). In the face of this, climate cases are mobilizing the climate-related vulnerabilities that come with health, youth, disability, Indigeneity or old age and its intersection with gender, with arguments based on other (intersecting) vulnerabilities likely to follow. However, as they do, a key hurdle for applicants will be the need to make a convincing argument concerning victim status and standing under Article 34 ECHR.
KlimaSeniorinnen has not made this easier. The KlimaSeniorinnen approach to victim status and standing – its introduction of an inordinately high threshold for individual victim status, designed to avoid actio popularis cases, coupled with exceptional representative standing for associations – could mean that cases will only be admissible when brought through legal persons. Follow-up rulings will clarify just how high the bar is for individual victim status. If that bar is as high as KlimaSeniorinnen seems to indicate, litigating climate cases (or, at least, mitigation cases) before the Court may necessarily require an aggregation of claims, and accordingly a reduction of complexity. This is difficult to reconcile with a granular analysis of the intersecting vulnerabilities at stake. And this is a problem, for the reasons set out in the next section.
4. Understanding climate change as inequality – Why, and where
4.1. Climate change as inherently about inequality
KlimaSeniorinnen is a starting point for engaging with the human-rights implications of climate change, but it certainly does not cover all rights-relevant inequalities related to climate change. In this regard, several UN human rights bodies have beaten the Court to the punch on recognizing the inequity and intersectionality of climate-related vulnerabilities.Footnote 105 Cases before UN human rights bodies have also illuminated climate-related vulnerabilities by engaging with climate-induced displacement,Footnote 106 Indigenous rights,Footnote 107 and the rights of childrenFootnote 108 – however all, it should be noted, without finding a rights violation in the context of mitigation obligations. Meanwhile, two states – Albania and the Cook Islands – orally pled for an intersectional approach to climate change in the ICJ’s climate advisory opinion, with written submissions from Colombia, Barbados, the Organisation of African, Caribbean, and Pacific States (OACPS), Timor-Leste and Vanuatu also referring to intersectionality.Footnote 109
One particularly relevant dimension in this regard is that of place, which is in turn related to colonial, racialized and resource-extractive tendencies. After all, the most climate-affected countries and individuals are not necessarily the ones predominantly responsible for greenhouse gas emissions.Footnote 110 The spatial and racialized inequities at play here deserve to be front and center in considering the rights impacts of climate change, and critical engagement with Eurocentric narrativesFootnote 111 and the Court’s restrictive approach to extraterritorialityFootnote 112 are needed in this regard. However, the inequities at play are complex, and go beyond a North–South divide. Beyond national and regional borders, a range of factors produce the vulnerabilities and exclusions associated with climate injustice.Footnote 113 Social structures and inherent traits – such as age, gender, socio-economic status, health, ability, indigeneity, and others – affect the responsibility of given groups and individuals for the climate catastrophe, their vulnerability to suffering rights-related impacts as it progresses, and their power to shape local, national and international decision-making concerning the climate transition.Footnote 114
Although KlimaSeniorinnen was not explicitly about spatial or racialized inequalities, it offered an opportunity to clarify the intersecting vulnerabilities related to climate change. However, it did not do so. This is to some extent a reflection of the fact that the current ECHR approach to the environment, despite a long history of engaging with environmental issues and recent notable judgments such as KlimaSeniorinnen and Cannavacciuolo,Footnote 115 has ‘significant conceptual and practical limitations’.Footnote 116 Natalia Kobylarz has identified six normative limitations of this system, including its resistance to providing interim protection, restrictive victim status criteria, limited application of procedural rights to domestic proceedings, the absence of a self-standing right to ‘environmental information’, and remedial limitations.Footnote 117 Recent discussions about recognizing an explicit, independent right to a health environment for the ECHR systemFootnote 118 invite reflection on how these limitations could be overcome. This includes reflection on how ‘the relationship between humans, as rights holders, and the environment, as the object of protection, is understood through the principles of sustainability, intergenerational equity, prevention, precaution, solidarity, international cooperation, as well as the principle in dubio pro natura’.Footnote 119
In addition, it has been widely argued that ‘[t]he intersections of race, nationality, place, class, and gender shape environmental risks and vulnerability for people’ on a global scale.Footnote 120 Thinking intersectionally allows to ‘better understand how climate change deepens existing social oppressions, creating life-threatening situations’.Footnote 121 It shows that the gender-related vulnerabilities discussed in Section 2.3 intersect with others, putting some groups at particular disadvantage or meaning that they live in ‘sacrifice zones’ – places where environmental resources and humans are exploited in the interest of continued economic growth and production.Footnote 122 This includes the intersection between gender and age, which – as a report by the UN Independent Expert on the enjoyment of all human rights by older persons has recognized – renders climate-related impacts on older women invisible.Footnote 123
The importance of regard for intersectional vulnerability is underscored by the Intergovernmental Panel on Climate Change (IPCC), which exhaustively reviewed available scientific evidence to find that:
Human and ecosystem vulnerability are interdependent (high confidence). Vulnerability of ecosystems and people to climate change differs substantially among and within regions (very high confidence), driven by patterns of intersecting socio-economic development, unsustainable ocean and land use, inequity, marginalisation, historical and ongoing patterns of inequity such as colonialism, and governance (high confidence).Footnote 124
As this shows, climate change-related harms – and causes – map on to existing inequalities, and they reinforce them and create new ones. Building on, e.g., environmental racism scholarship,Footnote 125 it is clear that climate change and the associated harms – from food and water insecurity, to sea level rise and extreme weather, to climate-induced displacement, to impacts on food production or outdoor labour, to health impacts, to the destruction of the lands of Indigenous peoples – will affect human life by exacerbating existing inequalities including those around race, class, gender, age and place.Footnote 126
Vulnerability captures the reality that climate change is multi-dimensional, and engaging with it is crucial for understanding not only the impacts and risks to particular individuals and groups, but for understanding climate change as a phenomenon. This does not mean that ideas about vulnerability can be transposed directly from one arena (IPCC reports) to another (ECtHR judgments). The Court has its own understanding of what vulnerability means, and clarifying this – including by making discussion of intersectionality explicit – could help to encourage more human rights-based, intersectional understandings of vulnerability from other actors and disciplines, particularly in the interdisciplinary field of (human rights and) climate change.
4.2. The locus and register of challenge
The current state of argument within ECHR-based climate litigation is far removed from radical demands for climate justice, ecofeminist critiques,Footnote 127 and other theoretical accounts that question the anthropocentrism and individualistic liberal origins of (Western) culture, philosophy, and law.Footnote 128 These narratives are largely missing from the high-profile and often Global North-oriented cases that heavily shape scholarship around the phenomenon of rights-based climate litigation. By and large, current litigation efforts reflect the status quo within wider international human rights law: they are limited in terms of their willingness to push for a rethinking of capitalism, patriarchy, and the rights of the non-human.Footnote 129 Or, to be more precise, and especially on the regional and international level, successful climate cases have not engaged with these topics.
That does not mean that alternatives do not exist: for example, various domestic jurisdictions have recognized the rights of nature,Footnote 130 UN human rights bodies are warming up to the human right to a healthy environmentFootnote 131 , and the Inter-American Court of Human Rights has recognized Indigenous and environmental rights that render its pending climate advisory opinion of particular interest.Footnote 132 But this has not yet reached Strasbourg: efforts to challenge the global climate impacts of development-related investment decisions, racialized climate impacts, coloniality and industrial farming practices as a contributing factor to the climate crisis have all recently failed before the ECtHR.Footnote 133 This invites reflection on the impetus for strategic essentialism and the ways in which existing systems and institutions shape litigants’ ambitions – including that of the litigants in KlimaSeniorinnen, which the present article uses as a focal point to examine how litigation is shaped and constrained by existing case-law and by common objections to rights-based climate litigation.
Where do we go, having recognized this disjuncture? Some might jettison human rights altogether for their complicity in this situation. Others argue that efforts to reimagine rights in a better way, one that ensures freedom for the ‘Other’, are doomed to remain within the ‘fishbowl of liberal freedom’.Footnote 134 Some, however, see a way forward through rights. For example, Kathryn McNeilly, drawing on Ernesto Laclau and Chantal Mouffe, charts a path towards thinking human rights not as a tool of power, but as ‘an antagonistic hegemonic activity within a critical relation to power’ based on a relational understanding of its subject and a vindication of core values like liberty and equality from the distortions of power relations.Footnote 135 Other thinkers – including notably Tatiana Hansbury, in her tour de force of what law can learn from the work of Paul Ricoeur – have shown that it might be possible to reimagine rights in a way that is founded in a relational ontology, in an understanding of how people live in the world, and in doing so untangle rights from liberalism.Footnote 136
A case before a European human rights court may not be the most obvious place to do this work. Certainly, expectations of KlimaSeniorinnen must be tempered with an understanding of the Court as an actor focused on self-preservation.Footnote 137 At the same time, KlimaSeniorinnen – as a case that was minutely workshopped both inside and outside the Court – can reveal much about how we understand the subject of human rights. And while there may be no one-size-fits-all approach for capturing the many vulnerabilities that shape experiences of climate change, a fundamental interest in them is a precondition for any rights-based response worth its salt.
5. KlimaSeniorinnen through an intersectional lens: A reimagining, and roads forward
5.1. KlimaSeniorinnen and its embrace of the liberal legal subject
The Court’s approach to individual victim status in KlimaSeniorinnen is premised on the idea that climate-related impacts are ubiquitous or perhaps universal. The Court held that ‘in the climate-change context, everyone may be, one way or another and to some degree, directly affected, or at a real risk of being directly affected’.Footnote 138 This same sentiment is reflected by Marko Milanovic when he argues that ‘the argument that little old ladies in Switzerland are somehow especially affected by climate change [is] entirely bogus’.Footnote 139
In the Court’s understanding, the potential ubiquity of climate victims is a problem, in the sense that ‘potentially a huge number of persons could claim victim status under the Convention’, which in turn ‘would not sit well with the exclusion of actio popularis from the Convention mechanism and the effective functioning of the right of individual application’.Footnote 140 In other words, the Court argues that it would not be practicable or legitimate to allow everyone to bring climate cases to Strasburg. Ultimately, perhaps, it wanted to retain the ability to be selective about which climate cases it would accept, allowing it to fend off politically sensitive applications like the ones about race, coloniality, and factory farming that it had already declared inadmissible at that point in time.Footnote 141
KlimaSeniorinnen created a new test for individual victim status in climate cases, one with an especially high threshold that requires applicants to demonstrate that they are at significant risk and that there is a ‘pressing need’ to ensure their individual protection.Footnote 142 Although the Court purports to consider applicants’ ‘specificities and vulnerabilities’ in making this determination,Footnote 143 and although it noted that the scientific evidence in KlimaSeniorinnen ‘undoubtedly suggest[s] that the applicants belong to a group which is particularly susceptible to the effects of climate change’,Footnote 144 it considered that this test had not been met. In other words, despite the scientific evidence about excess mortality in older women during heat waves, the Court considered that the individual applicants had not been affected ‘with a degree of intensity giving rise to a pressing need to ensure their individual protection’, noting that they did not suffer from any ‘critical medical condition’ that could not be compensated for by governmental or personal adaptation measures.Footnote 145
KlimaSeniorinnen has been widely discussed and feted because of what the Court went on to find – that despite the lack of individual victim status, the applicant association had standing to bring the case on behalf of its members. But behind this stands the ambiguityFootnote 146 of a ruling that initially emphasizes but ultimately ignores the applicants’ intersecting vulnerabilities. What does emerge rather clearly is a message to the individuals concerned, which is part of the Court’s assessment of individual victim status: that they have a responsibility to avoid heat stress by taking adaptation measures. And while the Court also mentions governmental adaptation measures, the materials cited in this regard foreground ‘awareness-raising and information’ of vulnerable people and do not envision concrete protection measures for older populations.Footnote 147
Follow-up cases may refine how high the bar for individual victim status in climate cases actually is, and what the role of individual adaptation will be. In fact, the Müllner case already stands poised to do so.Footnote 148 Here, the applicant suffers from a ‘critical medical condition’ – or we can assume, at least, that his condition, a heat-aggravated form of multiple sclerosis, would meet this standard as set out in KlimaSeniorinnen. However, the Court’s reliance on a person’s own ability to take adaptation measures, as a determining factor for whether there is a ‘pressing need to ensure their individual protection’, is worrying. In fact, this can be seen as yet another expression of the liberal assumptions behind human rights law, which sees its subjects as ideally responsible for their own welfare as they face climate breakdown. This is an iteration of what Anna Grear describes as the ‘paradigmatic liberal legal subject’, who is ‘a socially de-contextualised, hyper-rational, wilful individual systematically stripped of embodied particularities in order to appear neutral, and, of course, theoretically genderless’.Footnote 149 To put it plainly, it expresses the idea that the state need not act as long as abstracted, self-sufficient individuals can protect themselves against climate change.Footnote 150
This approach makes rights-based demands for climate action, and especially mitigation action, exceptional. In doing so, it implicitly spares state resources and avoids stress on the Court’s legitimacy. And while this is disconcerting, to date only a minority of those responding to KlimaSeniorinnen through academic commentary have seemed interested in imagining a Court that could do more. However, more is desperately needed: KlimaSeniorinnen, while successful in achieving the Court’s first engagement with mitigation policy, provides minimalistic standards to states. Not only does it minimize the pool of those who might bring a climate case to Strasbourg, but it is also focused on the obligation to regulate emissions, requiring quantifications and targets while foregoing substantive guidance on what those targets must look like, or what an equitable response to climate change might be.
5.2. Intersectionality as an alternative to the high-bar KlimaSeniorinnen victim status test
It is a core contention of the present article that the individual victim status test designed in KlimaSeniorinnen was neither necessary nor inevitable. Instead of foregrounding individual responsibility and minimizing the pool of potential climate litigants, the Court could have addressed its fears about a docket crisis (to the extent these were not avoidable through other means, such as pilot judgments) by taking an intersectional perspective. This point has been made before,Footnote 151 so the fact that it has not resonated with the Court or much of scholarship on this case deserves attention. Why, in other words, would the Court choose an abstracted, confusing and potentially unmeetable generalized standard of victim status under Article 34 of the ECHR over regard for engagement with the case before it and the documented, intersecting vulnerabilities at play?
The Court’s central fear here seems to have been the possibility that climate change may affect ‘everyone’ in some way, meaning that ‘potentially a huge number of persons could claim victim status under the Convention’.Footnote 152 This is certainly true: anyone may be affected by climate change, just as anyone may be affected by police violence or poor detention conditions, or some other violation of ECHR rights. It seems that the problem here cannot really have been the size of the potential pool of victims – any of the 700 million people living in the Council of Europe member states could claim their Convention rights at any time – but the likelihood that many of them have been or will be affected in their rights by climate change. Digging deeper, we see that the Court is effectively declaring the human rights implications of climate change to be too big to litigate except in highly exceptional or collectivized cases.
This is a terrifying proposition from a human rights institution, rendered all the more problematic because it was avoidable. After all, not every climate-related impact will also necessarily violate human rights; distinctions of degree and severity are possible here, especially if the Court were willing to think more deeply about vulnerabilities and their intersections. In fact, the Court’s refusal to think intersectionally was in many ways at the core of the untenably high new bar for individual victim status set in KlimaSeniorinnen. This is because the Court equated the KlimaSeniorinnen applicants with every other living person within the Council of Europe, without distinction based on the particular impacts that they face given the intersection of their age and sex or gender. These factors would have allowed useful emphases to be made, such as one that factors in the documented cultural and social invisibility that faces older women,Footnote 153 as well as less useful ones (after all, exceptionalism potentially excludes valid rights claims). The Court could have discussed the medical evidence about impacts on older women and other climate-vulnerable demographics, e.g., children, as a way of contextualizing the applicants and avoiding the abstractions towards a purportedly universal, ubiquitous and dangerously litigious subject of climate rights that it ultimately made in its judgment.
In other words, the Court could have taken the applicants’ claims about their particular, intersectional vulnerability seriously. Those claims are credible and important. For, as Dina Lupin, Maria Antonia Tigre, and Natalia Urzola note,
While climate change impacts all of us, our social identities – and the experiences, exclusions, and opportunities that result from those identities – radically change the nature, timing, and extent of the harm we suffer as a result of climate impacts. Factors such as gender, age, disability, location, sexual orientation, education, and poverty, among many others, amplify the risks faced by these groups.Footnote 154
Of course, this argument could also backfire, rendering climate-related protection highly specific and exceptional. However, it may also have the opposite effect, attenuating the Court’s fears about transforming all the residents of its member states into a faceless mass of litigation-hungry potential climate litigants. These fears may on some level be a consequence of the Court’s effort to issue a model judgment here, one that will guide states and its own judges in facing further cases. However, despite the fact that climate change is a large-scale structural problem, designing institutionally and politically acceptable solutions should not happen at the expense of engaging with the inequalities at the core of such a case. And there are more suitable solutions for dealing with a large volume of victims – e.g., pilot judgments – that do not involve denying the fact that they are victims at all.
In short, making victim status in climate cases a function of (intersecting) real-life vulnerabilities would not have had the same result as the Court’s much narrower approach in KlimaSeniorinnen ultimately did, in appearing to make it nearly impossible for individual applicants to bring a case to Strasbourg. Although the alternative provided by the Court – allowing for representative standing by associations – does make it possible to challenge climate policy, this outcome simultaneously makes it exceedingly difficult to bring specific, granular claims based on the multi-dimensional experiences of individual applicants.
This is a problem that runs much deeper than KlimaSeniorinnen or even climate cases. It reflects ways in which human rights law, and specifically the ECtHR, falls short of engaging with very real inequalities that are brought into its ambit. For the Court, this is at least partially due to the fact that its findings on these matters are sieved through various constraining considerations: not only docket permacrisis, but also a tendency towards procedural efficiencyFootnote 155 and ideas about how states will respond, who merits protection, and what human rights are meant to do in the first place. These ideas are reflected in some of the common objections formulated against climate cases, which are presented in the next section as way to untangle the deeper narratives that underlie KlimaSeniorinnen, and reimagine the understanding of human rights law that it portrays.
5.3. Unpicking objections to climate cases
Three core objections made in climate cases before the ECtHR, including in KlimaSeniorinnen, are that (i) climate action and the risk of climate impacts are not as urgent as is being made out by litigants (termed, here, the counter-scientific objection); (ii) decision-making around climate change requires a complex balancing of interests (the balancing objection); and (iii) this is a political issue demanding domestic legislative efforts, meaning that it is not the place of international courts to set out standards for states to follow (the democratic objection). Exploring these objections can help expose the degree to which they are essentially premised against efforts to bring about a more equitable response to climate change and maintain existing hands-off, liberal approaches to the human rights implications of environmental and climate crises. This is also an exercise in critical engagement with the Court, because it discusses the power dynamics that shape its consideration of cases.
These objections map onto different narratives. In particular, they contain within them the figure of the overburdened state and the vulnerable Court, liable to being assailed by an endless flood of climate cases in the style of an actio popularis. Here, it is important to recall that, as Lupin, Tigre, and Urzola note, ‘[a] high threshold to establish victim status has the unavoidable effect of excluding underrepresented voices in decision-making’.Footnote 156 At the same time, the present contribution nuances these authors’ argument that ‘[w]hile not everyone should be able to claim victim status, it is crucial that certain individuals can’.Footnote 157 The position taken here is that anyone who faces climate-related rights impacts should be able to claim their rights in court, whether they are particularly vulnerable or not. The fact that some vulnerable demographics, and especially those at the intersection of certain factors, like age and sex, are facing climate impacts sooner or in particular ways should not preclude claims by others who may be affected in other ways. Neither should it be the burden of vulnerable applicants to prove that they are affected in ways that are unique to them. This is a form of the ‘balancing objection’, or of the idea that decision-making around climate change requires a complex balancing of interests – including, here, the interest of the administration of justice, which should not be overburdened – that inevitably ends up disadvantaging the already disadvantaged.
We must therefore remain critical of the idea that only intersectionally vulnerable climate applicants, and not potentially any affected person, should have the right to litigate their rights as climate change progresses. Just because vulnerable populations risk being affected first, more severely, or in particular ways, does not mean that they are the only ones who can be affected by the impacts of climate change.
In this regard, it is important to understand that there is a duality or complexity to any case. For example, the KlimaSeniorinnen applicants certainly were arguing in their own favour, but they were also arguing for climate action that would benefit humans around the world, given that the atmosphere is a shared global resource. This duality sat uneasily with the Swiss authorities. The Federal Department of the Environment, Transport, Energy, and Communications, for example, found that the applicants’ aim was ‘to reduce CO2 emissions not only in the applicants’ immediate surroundings, but worldwide [meaning that] no individual legal positions are affected in the present case’.Footnote 158 It is difficult to imagine what this means exactly, as no applicant has a personal atmosphere. On challenge by the applicants, the Federal Administrative Court of Switzerland did not take issue; it, likewise, found that the applicants had ‘no sufficient interest worthy of protection’ given that they had no particular proximity to climate protection when compared to the general public.Footnote 159 This was confirmed by the Swiss Federal Tribunal, the supreme court, which found that the applicants’ demands for general policy change should be pursued via political means, not via litigation.Footnote 160
These instances were thus unwilling to consider whether there might actually be a difference in the risks faced by the KlimaSeniorinnen applicants, as opposed to the general population. And the ECtHR was too troubled by the possibility of opening the door to claims from the general population to seriously consider this either. Here we might stop for a moment to consider whether there is, in fact, is such a thing as ‘the general population’. We might consider, too, whether this is not a device of liberalism – to create the specter of an undifferentiated mass of people desperately grasping for state resources, as a way to discourage claims with distributional implications. This objection negates the existence of particular vulnerabilities to the effects of climate change – and the existence of real, complex, situated subjects of rights – by invoking the idea of a homogenous human rights subject.
Here we can return to the objections set out at the beginning of this section. Notably, the ‘balancing objection’ does much of the same work as the ‘democratic objection’ because it frames climate policy, specifically the setting out of mitigation goals, as the outcome of a complex balancing of interests. This is accurate on its face: different and potentially irreconcilable interests must be considered here, which is difficult. However, this balancing is so heavily biased in favour of economic prosperity, corporate welfare, and the current status quo of global inequality that this objection, properly understood, refers to the privileging of corporate and economic interests over the protection of rights, and especially the rights of the vulnerable. It also invites a form of legal ‘whataboutism’ by asking applicants to show that they are more vulnerable than any other group or interest, for example asking the applicants in KlimaSeniorinnen to explain why their case should be heard when other groups are also particularly vulnerable to climate change.Footnote 161 This functions as part of an overall trend to minimize human rights violations, and to place large-scale structural problems outside the ambit of human rights law.
In doing so, this argument negates the inequalities that cause, aggravate and stem from climate change. Deprived of legal standing (the ‘democratic objection’) and reminded that their interests are not as important as economic and political considerations (the ‘balancing objection’), applicants are then also admonished that the action demanded is not yet urgent enough to warrant litigation, that they must wait and hope for changes in domestic policy. This flies in the face of irreproachable and exhaustively peer reviewed findings from the IPCC, which was specifically created to provide clear scientific assessments to guide policy change (the ‘counter-scientific objection’, which in this sense can also be described as a ‘temporal objection’Footnote 162 ).
Real regard for climate-related vulnerabilities, and their intersections, can perhaps serve as a counterpoint to these tendencies. It can, as Angela Hefti argues, ‘particularly well define who is at high risk and needs state protection from climate effects’.Footnote 163 Similarly, Elisa Fornalé argues that climate cases offer an ‘opportunity to learn from actual and potentially vulnerable subjects about how the enjoyment of their human rights has been and might be affected’.Footnote 164 Attention to what is being ignored can, at least, provide insights into the nature of existing protective frameworks.
Overall, a substantively equitable response to climate change (i.e., one that does not replicate and reinforce existing hierarchies of capital, gender, age, place, race, and indigeneity, among other factors, and their intersections), cannot be achieved by reducing complexity or creating a hierarchy of difference. This is counter-productive: it triggers a race to the bottom like the one ongoing in the Court’s vulnerability case-law on migration. There, applicants are pitted against each other: the existence of rights-bearers who are more vulnerable than a given applicant can mean that the less-vulnerable applicant is not provided with ECHR protection.Footnote 165 This reductionist perspective is incompatible with the universal protection of human rights, but it is explainable based on the minimalism and avoidance that characterize the Court in the age of backlash and docket control.Footnote 166
6. Future directions for litigation, and liberalism
Climate cases concern neoliberal power structures, and therefore an extractive approach to welfare. As a power structure, extractive capitalism externalizes the natural and shapes legislative and policy decisions on environmental protection, and the related rights, to the image of a disembodied, detached, economically motivated subject.Footnote 167 This is, at its core, a misrecognition of the fact – to use the IPCC’s formulation – that ‘[h]uman and ecosystem vulnerability are interdependent (high confidence)’,Footnote 168 which is also, e.g., at the core of the ‘One Health’ approach mentioned above.Footnote 169
The hierarchical binary between the human and the natural is layered on top of power structures to do especially with whiteness, coloniality, and gender. Unpicking these structures can mean ‘embracing the decentring of the human and the refusal of its hierarchical ontological primacy’.Footnote 170 This, in turn, might lead us to new materialist understandingsFootnote 171 or perhaps to insights about the enduring power of racialized capitalism.Footnote 172 However, and perhaps simultaneously, it can also mean re-engaging with critiques of human rights as falsely universal, as both overstretched and overly narrow, as Eurocentric, anthropocentric and individualistic, and as complicit in neoliberal and neocolonial structuresFootnote 173 – but now in ways that empower vulnerable subjects, and thus without abandoning the rights project. In other words, it may yet lead us towards a new understanding of who constitutes the rights subject, the scope of entitlements, and the types of remedies required.
The ECtHR – known among human rights scholars for its comparatively conservative nature, made more acute by years of backlashFootnote 174 – may seem like a strange place to seek such insights. The idea here is not that, if only provided the proper arguments, the Court would deliver human rights law from its critics. However, the Court is currently a significant locus for contesting climate change, presenting (at least in principle) an opportunity to discuss the colonial, extractive, inequitable and racialized roots of climate change as well. Understanding the processes that shape its engagement with these cases is simultaneously a case study of how liberalism shapes law. And perhaps it is also more than that. After all, litigation may be the only avenue of participation in the shaping of law and policy open to many vulnerable groups and individuals, and accordingly their only realistic avenue for participating in the production of legal knowledge about climate change.
Again, both litigation and the work of courts are not necessarily benevolent. Courts are just as likely to strengthen inequitable power structures as they are to challenge them. The ECtHR’s approach to individual victim status in KlimaSeniorinnen – in essence the idea that it is undesirable for all climate victims to be able to claim their rights – only underscores this. When it comes to symbolic representation and identity construction for the purposes of litigation, there is a risk that the pressures of litigation and the need to provide arguments that are salient from the perspectives of the logics of existing case-law and understandings of rights will co-opt the claims being made. As noted by Anna Kaijser and Annica Kronsell, in writing about litigation, ‘[a]part from fixing difference and turning it into categories, it also excludes those who do not fit in these static categories and denies social struggle, contestation, and the complexity and fluidity of identities’.Footnote 175 The need for intermediaries between these individuals and the law, in the form of lawyers who frame and bring these cases, can aggravate this.
In short, and drawing on the discussion above concerning the problem of strategic essentialism, fitting climate claims into the logic of the law means constraining and reshaping them. After KlimaSeniorinnen, additional arguments based on other vulnerabilities are already following. However, the arguments brought to the Court in these cases will need to choose between either slotting themselves into the set of vulnerabilities that the Court seems willing to recognize now, or contesting them and risking a negative outcome. Thus, for example, as concerns the argument for the protection of the rights of the Sámi Indigenous people in Greenpeace Nordic v. Norway,Footnote 176 it must be noted that the Court’s protection of Indigenous rights is vestigial at best,Footnote 177 as is – in turn – the Indigenous rights argument here.Footnote 178 And even drawing on well-recognized vulnerabilities may not aid climate litigants. For example, while the case-law around the vulnerability of children is well-developed, it did not lead the Court towards greater flexibility in Duarte Agostinho, e.g. as a mitigating factor for the applicants’ failure to exhaust domestic remedies.Footnote 179 In other words, even the most well-recognized sources of vulnerability under the ECHR may not successfully outweigh the docket and backlash concerns that have shaped the Court’s response to climate cases so far.
Because climate cases seek the application of the Court’s existing case-law to a new and contested area, they are likely to remain close to argumentative patterns that are recognizable to the Court. It appears strategically ill-advised, in other words, to fight on too many fronts – to do ‘too much, too soon’.Footnote 180 For example, arguments along the line of class or socio-economic status may seem out of reach given the Court’s poor record of recognizing them.Footnote 181 However, to cite the KlimaSeniorinnen applicants’ pleadings, ‘[i]f Applicants 2–5, as members of a most vulnerable group, are not “victims” within the meaning of Art. 34 ECHR, then it is hard to envisage who could be’.Footnote 182 Regard for intersecting vulnerabilities may help to guide legal reasoning through this perceived impasse.
7. Conclusion
The European Court of Human Rights has, for the first time, faced the idea of intersecting vulnerabilities as a marker for who is particularly at risk of adverse climate-related impacts. In its KlimaSeniorinnen judgment, on 9 April 2024, the Court nominally recognized that the applicants – a group of older women alleging that they faced heat-related health risks – were vulnerable to the effects of climate change. However, its real focus was elsewhere, namely on institutional concerns and on the desire to set out a model climate judgment that would guide the further climate-related case-law. The result was an overly restrictive understanding of individual victim status that was only partially compensated by the Court’s willingness to allow representative actions by associations.
The present piece has argued that taking the intersecting vulnerabilities at the heart of this case seriously might have helped the Court avoid this outcome. It has also discussed that outcome as reflecting the liberal idea of the legal subject, as a decontextualized, hyperrational, and independent actor instead of a real person embedded in social contexts and structures. The climate cases before the Court may not be at fault for this: they are shaped and constrained by the existing case-law of the Court. They are also constrained by the common objections to climate litigation discussed in this piece, namely allegations that such action is not urgent enough to justify judicial interference, that it must be balanced against other interests, and that climate change is a political issue demanding domestic legislative efforts, not litigation.
Understanding that climate change-related harms affect people differently, while relating these harms and the very existence of the phenomenon to existing inequalities, reveals the truth in the adage that climate change potentially harms everyone, but it does not harm everyone equally. This is not a trite argument: climate change is inherently, innately connected to inequality, both in its causes and its impacts. These understandings were missing from KlimaSeniorinnen, and that deficit decisively shaped the Court’s judgment. Including consideration of intersecting vulnerabilities could have strengthened the judgment in several ways. Perhaps most importantly, it would have made it clear that there were real victims at the core of this case, and that it accordingly does not represent an actio popularis.
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