The Role of the ECHR in Climate Change - Difficulties and Solutions in Implementing an Obligation to Combat Climate Change

Sammanfattning: This thesis examines the ECHR with the aim of exploring the possible existence of positive substantive obligations connected to climate change and pertaining to the right to life and right to health as expressed in article 2 and 8 of the Convention. It departs by compiling how a positive substantive obligation is found in the ECHR system. It concludes that there must be a threat of harm to the right of life or health of a specific individual or a group of people. Moreover, three criteria must be answered affirmatively. Firstly, the state must have had or ought to have had knowledge about the threat. Secondly, the omission to act or the inadequate action of the state in order to stop the threat must somehow pertain to the harm, showing causation. Thirdly, holding the state responsible must be reasonable, and the obligation levied against it cannot impose an unreasonable or disproportionate burden. It is further found that these criteria intertwine and mutually affect each other in several places. In the next chapter the thesis moves on to establish and summarize the best available science concerning climate change and how Europe will be affected by these changes. It is found that the greatest threats to the right of life and health will be posed by the rising temperature itself and its direct effects, such as heatwaves and rising sea levels, as well as the increased precipitation and its compound effects, such as floods and landslides. These effects are concluded to already constitute a threat to the enjoyment of the right to life and health, with continued and increased global warming only resulting in worsening the impacts of the threats. The text finishes by tackling the main question of the thesis, mainly proposing that there two possible substantive positive obligations could exist. Described in abstract they would both consist of an obligation to create regulatory frameworks to safeguard the rights laid down in the Convention. The first proposed obligation is one requiring adaptation. As climate change causes threats to appear this obligation would require states to implement adaptations to protect the people under their jurisdiction from these threats. The second proposed obligation is an inward-looking obligation of cooperation requiring mitigation in connection to a states nationally determined contributions in the Paris Agreement. The criterium of state knowledge is deemed as fulfilled due to the objective available science and the signing of both the Paris Agreement and the UNFCCC. Problems of implementation are however found when the investigation moves on to causation and reasonableness. It could be hard to connect the omissions of states to limit global warming to the harm experienced by people and depending on the deliberations of the Court the proposed obligations could be seen as unreasonable. It is suggested that some of the found problems could be solved by leaning heavily on the Paris Agreement and the scientific knowledge, allowing them to inform the content of the obligations.