The road (not) taken: implications of health-focused arguments for rights-based climate change litigation in Europe

Rights-based climate change litigation has become central toadvancing mitigation ambition across the globe. This articleanalyses trends in legal argumentation in such litigation at thesupranational level and identifies two principal argumentscommonly employed by litigants: the adverse effects of climatechange on human health or culture. The study reveals that claimsbased on the European Convention on Human Rights (ECHR)almost exclusively engage with health-based arguments, whileculture-based arguments are more prevalent in cases broughtunder the International Covenant on Civil and Political Rights andthe American Convention on Human Rights. Various factors areexplored to elucidate the reason for this distinction, including thetypes of applicants, the absence of an explicit right to culture inthe ECHR, the European Court of Human Rights’ earlierenvironmental jurisprudence, and perceptions of justiciability. Indoing so, the analysis sheds light on the potential implications ofthe differing approaches to rights-based climate change litigationbefore the European Court of Human Rights. This includes theCourt’s landmark judgment in Verein KlimaSeniorinnen and othersv Switzerland as well as implications for future cases. This researchoffers critical insights on the strategic direction of rights-basedclimate change litigation, including its possible limitations.