CYIL vol. 12 (2021)

CYIL 12 (2021) THE (MISSING) RIGHT TO A HEALTHY ENVIRONMENT IN INTERNATIONAL HUMAN … about the extent of greenhouse gas emissions. These are Duarte Agostinho and Others v. Portugal and 32 Other States 19 and Verein KlimaSeniorinnen Schweiz and Others v. Switzerland . 20 In both cases, the applicants claim violations of a number of articles mentioned above. 3.3 The ‘victim’ requirement and the implementation of judgments Although it might seem that there is sufficient space for interpretation of environmental matters in the Convention, a significant hurdle for complex environmental cases is presented in Article 34, which states that only victims can lodge an application before the Court. That means that persons, groups of individuals or inter-governmental organizations may lodge a complaint only if they have been affected by harm to their human rights. In other words, there is no option for actio popularis . Moreover, some rights which are inherently attributable to natural persons, such as the right to life or the right to a private life, cannot be claimed by legal persons such as NGOs. Therefore, the scope of access to the Court in environmental cases is rather narrow. Nevertheless, it needs to be stressed that the role of associations in environmental cases is important as complex issues are difficult for individuals to deal with. 21 Furthermore, decisions of the Court on environmental matters often have specific consequences in terms of reparations to be implemented. In the case of finding a violation, the Court usually orders the respective State to pay just satisfaction to the victim, which is an individual measure in the form of compensation. However, as environmental harm often has wider consequences, the Department for the Execution of Judgments often identifies certain general measures to be adopted by the State and the Committee of Ministers of the Council of Europe then supervises the implementation. In such a situation, the general measures might have various forms such as changing the law, relocating individuals exposed to harmful substances or terminating certain industrial activity. Their timely implementation by the State can then prevent violations of rights in other cases. 4. Recent jurisprudential developments in other bodies Future developments will show us how the case law of the European Court of Human Rights will evolve. However, in this context it should be noted that besides the Urgenda decision mentioned in the introduction, a number of significant cases concerning environmental matters emerged in recent years. The Human Rights Committee, a quasi-judicial body which serves as a monitoring mechanism for the International Covenant on Civil and Political Rights, ruled on an individual complaint in 2020 in the case of Ioane Teitiota v. New Zealand, which related to the question of climate refugees. Mr Teitiota was a national of Kiribati, a small island state in the Pacific, who applied for asylum in New Zealand, arguing that as a consequence of climate change and rising sea levels he was forced to leave Kiribati. His application was rejected by New Zealand. The Committee was considering his return to Kiribati with respect to Article 6 para. 1 of the 19 Case no. 39371/20. See also PEDERSON, Ole W. The European Convention on Human Rights and Climate Change – Finally! EJIL: Talk! 22 September 2020, accessed 1 August 2021. 20 Case no. 53600/20. 21 With regard to access, the European system is the strictest regional human rights system as neither the Inter- American nor the African systems contain the ‘victim’ requirement. See GRANT, Evadne, supra note 5, pp. 165 and 167–168. As for procedural rights of NGOs, see PETERS, Birgit, supra note 9, pp. 22–27.

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