Climate Change as Inhuman Treatment

In one of the most recent climate litigation cases, Duarte Agostinho and Others v. Portugal and Others, the European Court of Human Rights asked the responding states to consider whether their inaction concerning climate change affects the applicants’ rights under article 3 of the European Convention of Human Rights (i.e. the prohibition of torture or inhuman or degrading treatment or punishment). What makes the invocation of article 3 distinctive is that it involves a very narrow set of absolute rights; that is, the rights that are not subject to the proportionality test, and which correlate with legal obligations that are non-derogable and non-negotiable even in times of war or other public emergencies. Therefore, finding that anthropogenic climate change violates the rights against torture, or inhuman or degrading treatment may have potentially significant legal consequences and accordingly, may further strengthen the human rights approach to climate change. Finding the violation of said prohibitions, however, is easier said than done since there are many hurdles some of which relate to human rights in general, and others that are distinctive of the said prohibitions, including the lack of specified normative foundations. In the paper, I focus on developing the normative foundations of the prohibition of inhuman treatment and applying this to the context of climate change. I argue that the right not to be subjected to inhuman treatment protects the fundamental interest in autonomy understood as the ability to develop and pursue long-term plans. Inhuman treatment then is about a substantial limitation of autonomy through the significant diminishment of the range of options previously available to the victim. I argue that anthropogenic climate change poses a new threat to the interest in autonomy by undermining the ability to make and pursue long-term plans, and also by threatening to remove future-oriented options from the range of options to choose from. I further develop the idea that present generations are dependent on the future ones since the value and meaning of many of our activities today depend on the existence of future generations, whoever they may be (Heyd 1992; J. O’Neill 1993; Meyer 1997; Davidson 2008; Scheffler 2018; 2021). As opposed to these previous arguments, I argue that this interest is sufficiently important to ground the right of present people against substantial diminishment of options to choose from and the correlative duty not to significantly decrease the number of available options, including future-oriented ones.