Recently, I have commenced my research on climate change litigation in the area of European human rights. One of the first relevant topics of my investigation is the question of the legal nature of rights, which might make it possible to sue for climate protection in a human rights court.
And this is how it came about:
Europe’s Struggle with Collectivity
When following European human rights jurisprudence, one can hardly have failed to notice the Klimaseniorinnen decision in the spring of this year.[1] The decision had been eagerly awaited in specialist circles, as it is the first of its kind before the ECtHR to be – at least partially – ruled in favour of the applicants.[2]
In the judgement, various aspects emerged which represent a novelty for the case law of the ECtHR and point in a certain direction: The subsumption of collective rights under the ECHR.
This can be seen in the following aspects, which I Summarize briefly[3]:
1. Victim status under art 34 ECHR could not be made sufficiently credible in the present case, as the individual applicants (mostly elderly women over 70), in the opinion of the court, were not affected by climate change in an outstanding manner.[4]
2. However, the court did not demand any victim status in relation to the association KlimaseniorinnenSchweiz (which had also been a plaintiff in the case) – it attested said association locus standi (formal power of representation) and allowed this to suffice for the admissibility of the action.[5]
This circumstance is highly unusual for a court in the European human rights tradition, as individual harm is almost always required to reach admissibility. Normally, this is literally provided for in the procedural rules of the courts.[6]
The latter is usually explained by the fact that, in the European philosophy of human rights, human rights are individual rights which derive from considering human beings as God’s highest creation on earth or as humans having an inherent value that must not be denied under any circumstances.[7]
For this reason, I very quickly reached the question: Do collective rights actually fit into the European human rights system? And what exactly is a collective right?
Retracing other Concepts
In European jurisprudence, this search does not get very far. One reads frequently that ‘third generation’ human rights are also those of the collective[8], but, so far, such definitions have not really been relevant in practice.
I have therefore continued my search in other parts of the legal world and am currently in the middle of my research – so please bear with me if the following picture is only of a fragmentary nature.
First of all, the question was quite fundamental: What do other parts of the world understand by ‘human rights’?
Relatively quickly, I came across a scientist called Claude Ake, who states: ‘[Africans] put less emphasis on the individual and more on the collectivity [… and] do not allow that the individual has any claims which may override that of the society.’[9]
If we assume that the idea of human rights is based on some kind of pre-legal or supra-legal authority – such as morality, ethics, religion or a general consensus [10] – in Africa, this seems to mean the following when looking at Ake: If human rights indeed exist as a supra-legal principle according to this definition, then perhaps in a different way than in Europe, as the collective has its own value and sometimes even a higher one than the individual.
This seems to also be reflected in what is probably the continent’s best-known human rights document: The African Charter on Human and People’s Rights.
The preamble, for example, already states, that the contracting parties are
‚[r]ecognizing on the one hand, that fundamental human rights stem from the attributes of human beings which justifies their national and international protection and on the other hand that the reality and respect of people’s rights should necessarily guarantee human rights‘
To me, it then became clear, that people can only fully enjoy their human rights, if the community is healthy and stable – it is, so to speak, prerequisite ‘zero’ for the enjoyment of human rights.
Concluding Thoughts
This thought then led me to the following: the two elucidated concepts are not actually opposed to each other – rather, Europeans have forgotten about the importance of community. Originally, according to Hobbes, Europeans also submitted to the Leviathan in order to secure a guarantee of their own rights.[11] Nowadays, we have forgotten what it is like when the protective hand of the state is not hovering over us – we take our community for granted, it is overlooked and neglected.
Maybe that’s why many people don’t seem to care that our community can hardly continue to exist if our environment is destroyed to such an extent that it barely allows us to continue living. Then, dignified human coexistence will hardly be possible.
For this reason, concerning my research, I am currently thinking: Many communities on the African continent have not yet forgotten this prerequisite for a healthy life – on the contrary, they strongly value it: A functioning community. It ensures well-being and guarantees (legal) security, which is why it must be protected at least as much as the individual. Because it is, so to speak, ‘prerequisite zero’ for a healthy human life, it would therefore simply be grossly negligent not to include the collective and its basis of life – nature – under the concept of human rights. The Continent seems to know that, I will be continuing to research philosophical and legal theories supporting this thesis – and I am convinced, that European jurisprudence has a lot to learn from the continent’s concept.
[1] ECtHR: Verein KlimaSeniorinnen Schweiz and others/Switzerland (ECtHR, 9 April 2024– 53600/20).
[2] Two other cases were decided simultaneously and were not successful: ECtHR: Duarte Agostinho and others/Poertugal and 32 others (ECtHR, 9 April 2024 – 39371/20); ECtHR: Carême/France (ECtHR, 9 April 2024 – 7189/21); some other cases are still pending, eg: EctHR: Müllner/Austria (Appl.-No 18859/21).
[3] I reviewed the judgement thoroughly in my essay: Josephine Astfalk: Climate Change Litigation vor dem EGMR: Opfereigenschaft versus Schutzpflicht für das Kollektiv (DÖV 20 2024) 868-874.
[4] ECtHR (09 April 2024 – 53600/20) para 527 ff.
[5] ECtHR (09 April 2024 – 53600/20) para 502.
[6] Art 34 ECHR or eg art 93 para 1 no 4a german basic law.
[7] Luise Katharina Müller: Rawls’s Relational Conception of Human Rights. In: Reidar Maliks/ Johan Karlsson Schaffer (eds.) ‘Moral and Political Conceptions of Human Rights: Implications for Theory and Practice.’ (Cambridge University Press 2017) 58 ff.
[8] Frans Viljoen: ‘International Human Rights Law in Africa’ (Oxford University Press, 2nd edition 2012) 5; Roman Schmidt-Radefeldt: ‘Ökologische Menschenrechte’ (Nomos 2000) 45.
[9] Claude Ake: ‘The African Context of Human Rights’ (Africa Today, Vol. 34 No 1/2 1087) 8.
[10] I have to admit that, again, this is a European understanding of human rights prominently argued for by: Robert Alexy: Die Institutionalisierung der Menschenrechte im demokratischen Verfassungsstaat‘ in: Stefan Gosepath (ed): Philosophie der Menschenrechte (1st edition 1998 Suhrkamp) 262 ff.
[11] Thomas Hobbes: ‚Leviathan or the Matter, Form and Power of a Common-Wealth ecclesiastical and civil.’ (Andrew Crooke London 1651) 1.
