Intersectional Victims as Agents of Change in International Human Rights-Based Climate Litigation

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EUROPE: HUMAN RIGHTS

16 and 22 April 2024 (paper and contribution in a blog)

1.) Angela HEFTI, «Intersectional Victims as Agents of Change in International Human Rights-Based Climate Litigation», Transnational Environmental Law, 2024, p. 1-26.
The author of this article argues that climate change affects people at the intersection of several inequalities in a way that makes them uniquely and, as a consequence, directly affected by climate change. She considers therefore that they have the status of victims under Art. 34 ECHR. Furthermore, she argues that the minimal participation of victims to political processes also justify their recognition as victim for procedural climate justice.
The author first argues that intersectionality could be taken into account when determining whether applicants are victims (section 2). She explains how several identity categories intersect, shape each and therefore create a distinct social experience. She also proposes the use of Art. 14 ECHR, including the concept of indirect discrimination, as a model to integrate the concept of intersectionality in the analysis of victim status of climate change politics. With the help of the KlimaSeniorinnen against Switzerland and Duarte Agostinho against Portugal and 32 other states cases, she then examines how climate changes intersect with several forms of inequality. In the first case, elderly women and their association argued to bear a disproportionate burden from heatwaves. In the second case, six children and young people living in areas at risk of forest fires argued that they would suffer more from climate effects. In both cases, she argues that the applicants can face intersecting disavantages. In her opinion, the European Court of Human Rights «should identify at least two intersecting axes of oppression affected by climate change to carve out the unique disadvantage the applicants face based on both factors at the same time» because with the focus on only one factor, the group of people taken into account would be so large that the action could be considered as an actio popularis (section 3). The author then explains that the intersectional impact of climate change can empower women and children, who are likely marginalized from climate decision making, to challenge unequal power structures. This would contribute to procedural climate justice, which namely seeks to allow everyone affected by climate decisions to participate to them. However, she warns against the exploitation of people facing the intersectional impacts of climate change as instruments for climate cases. She uses examples to show that climate litigation can be empowering for these people (section 4). Finally, she invites the European Court of Human Rights to «acknowledge the victim status of marginalized groups with intersecting experiences of climate harm to amplify those voices that have only just started to speak up» (section 5).

2.) Angela HEFTI, «Intersectionality and Standing in Climate-Related Human Rights Cases», contribution of 22 April 2024 in the Harvard Human Rights Reflections blog
The European Court of Human Rights has declared the application lodged before it in the Duarte Agostinho case inadmissible for several procedural reasons in a judgement of 9 April 2024. In a judgement of the same day, it has also denied the victim status of the four members of the association KlimaSeniorinnen who had also lodged the application. However, it has decided that the application of the association KlimaSeniorinnen was admissible and that Switzerland had violated Art. 8 ECHR because of climate inaction (see our Editorial in German or in French).
The author of this blog contribution shows the potential of intersectionality to meet the requirements formulated in the judgement KlimaSeniorinnen for a recognition of the victim status of individuals in climate case. These requirements are a «(a) high intensity of exposure of the applicant to the adverse effects of climate change; and (b) a pressing need to ensure the applicant’s individual protection» (§ 527 of the judgement KlimaSeniorinnen). The author explains that intersectionality can 1.) «particularly well define who is at high risk and needs state protection from climate effects»; and 2.), «[...] also seek to empower and include underrepresented voices in decision-making». Regarding the KlimaSeniorinnen, she argues their age, their gender – taking into account the inequalities suffered by the applicants in their lifes because of their gender – and their potential disability could have created the high risk required for a victim status in climate cases. She contends that in further climate claims before the European Court of Human Rights, intersectionality «could well serve to carve out the group of applicants that is particularly affected by climate change, aside from traditional health related climate claims» and that «distinct climate related social disadvantages» could constitue arguments for the recognition of the victim status.

Direct to the article (https://www.cambridge.org)
Direct to the blog contribution (https://hrp.law.harvard.edu)