EJIL Analysis

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Klimaseniorinnen: the Innovative and the Orthodox

In his dissenting opinion in Klimaseniorinnen, Judge Eicke argues that the majority has gone “well beyond … the permissible limits of evolutive interpretation” in finding a violation of Article 8 [3]. In his view the majority took three innovative steps: (i) expanding the concept of victim status/standing to allow NGOs to have standing even where their members would not have victim-status if taken individually; (ii) creating a “new” right to protection from the effects of climate change; and (iii) imposing a new duty on states to adopt measures to mitigate those effects. For Judge Eicke, none of these three innovations had “any basis in Article 8 or any other provision of or Protocol to the Convention” [4]. Indeed, it is not just the critics of the majority’s judgment who think it innovative – counsel for the applicants labelled it “ground-breaking”. Moreover, the Court itself said that although its existing environmental jurisprudence could “offer guidance up to a point” [414], climate change cases had special features which justified the adoption of a “tailored approach”…

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A Human Right to Carbon Import Restrictions? On the Notion of ‘Embedded Emissions’ in Klimaseniorinnen v Switzerland

The European Court of Human Rights’ (ECtHR) climate decisions are out, and comments followed suit (for general overviews: here, here, and here; for related discussions of the notion of a carbon budget in the decisions: here and here). If anything about the decisions’ legal and factual…

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Common Article 1 Does Prohibit Complicity in IHL Violations, Through Arms Transfers or Otherwise

Last week, over on Articles of War, I read with great interest a post on Common Article 1 (CA1) of the Geneva Conventions by my good friends Mike Schmitt and Sean Watts. Their post, building on their prior work, argues that CA1 should not be understood as having any external dimension. It…

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Inter-generational Equity, Future Generations and Democracy in the European Court of Human Rights’ Klimaseniorinnen Decision

It was immediately evident that the European Court of Human Rights judgment in Verein  KlimaSeniorinnen v. Switzerland was groundbreaking in multiple regards and will prove fundamentally important in terms of shaping and, in many ways, advancing climate justice litigation at the European, international and domestic law levels. That decision, as well as those in…

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A Swiss human rights budget?

In his vigorous, thoroughly readable, partly dissenting opinion to the recent ECtHR climate change ruling (Verein KlimaSeniorinnen Schweiz and Others v. Switzerland), Judge Eicke wonders whether the court has ‘tried to run before it could walk’ (para. 68). In particular, he is exercised by the Court’s attempt to apply a set of criteria by which…

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