Introduction
The 2025 TU Dresden Summer School, titled “Navigating Change - Contemporary Perspectives on Human Rights,” explored how human rights law can develop in the face of emerging global challenges such as climate change, artificial intelligence, and public health crises. Over the first four days, participants engaged in lectures, interdisciplinary discussions, and ‘coffee talks’ that brought together legal theory and interdisciplinary practical perspectives. On the final day, a fully interactive conference allowed participants — acting as state representatives and International Law Commission experts — to engage with a self-drafted treaty proposal on the availability, accessibility and affordability of healthy food. The Summer School’s theme resonates closely with the author’s doctoral research, which examines whether procedural requirements of the individual complaints mechanisms of (quasi-)judicial human rights bodies under the auspices of the United Nations, Council of Europe, Organization of American States and African Union should be reinterpreted or reformed to effectively, justly and coherently respond to climate change. Bringing these threads together, this blog post analyses how interpretative techniques can be applied to facilitate access to justice in climate change litigation.
Human Rights Treaties as Living Instruments
Human rights treaties reflect the historical and political contexts in which they were created, yet they are not ‘end-game’ instruments; their content can evolve through interpretation. To ensure that treaty provisions remain viable and responsive to contemporary challenges, human rights bodies have adopted specific techniques of interpretation and application. Among these, the living instrument doctrine (LID) has become particularly influential in, for example, the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights, and the Human Rights Committee.
Rooted in the international legal principle of effet utile, the rationale of the LID is clear: supervisory bodies may interpret treaties in a manner that reflects not only the historical intentions of their drafters but also relevant contemporary circumstances and factual changes in society. This enables human rights law to remain effective and meaningful over time by evolving the substance of treaty provisions without formal amendment.
What About Procedure?
Although the application of the LID to substantive provisions is and adhered to by (quasi-)judicial human rights bodies as a means of developing treaty provisions through interpretation, its application to procedural provisions is less obvious. The procedural provisions of human rights treaties, including the admissibility requirements that form the focus of the author’s research, ensure the proper functioning of their supervisory bodies by allowing them to assess petitions at a preliminary stage and restrict the access to court. Only after fulfilling the procedural requirements can a case be examined on its merits; these preliminary conditions therefore represent the very first ‘obstacle’ to those seeking justice via human rights machinery.
At first glance, the content of procedural provisions, like the requirements of locus standi or exhaustion of domestic remedies, is not self-evident or readily apparent. As such, human rights bodies have the power to fine-tune the meaning of procedural requirements through interpretation and application. Both the ECtHR and the Inter-American Commission on Human Rights have recognized the LID as a suitable method to interpret procedural requirements. Accordingly, human rights bodies are equipped with a specific interpretative tool that allows them to align procedural human rights norms with present-day realities.
Climate Change as a Factual Change in Society
One of the above-mentioned realities, which has changed significantly since the adoption of international human rights treaties, is the increasing legal awareness of climate change. The factual changes in society stemming from this phenomenon, such as rising sea levels, destruction of ecosystems, and extreme weather events, may necessitate human rights bodies to ensure the effective protection of human rights through progressive interpretation. By adopting the LID and interpreting treaty provisions in light of contemporary circumstances, the consequences of climate change can be accounted for in international human rights law provisions that were not initially devised to do so.
It is important to recognize that the possibility to interpret human rights treaties in light of the societal changes brought about by climate change does not only exist for its substantive provisions, but also for its procedural framework. Considering that these procedural provisions were similarly devised before the (legal) awareness of climate change, they have the potential to put an undue burden on applicants seeking to bring climate cases. For example, the requirement to exhaust domestic remedies does not take into account the urgency of climate change, or the nearing ‘tipping points’ that could lead to irreversible damage. Furthermore, the requirement of state jurisdiction prevents applicants from bringing cases against states under whose jurisdiction they do not fall, thus disregarding the transboundary effects of domestic greenhouse gas emissions.
To ensure that human rights law and its institutions remain relevant in modern society, it is crucial that climate litigation can be brought to human rights bodies. Therefore, the procedural requirements should not form an excessive burden on the applicants attempting to bring such cases. Within the boundaries of the legitimacy of the court and the certainty of the law, the LID could therefore be used to reinterpret procedural provisions in such a way that allows climate victims access to justice.
In Verein KlimaSeniorinnen v Switzerland the ECtHR has revealed what reinterpretation of procedural requirements in the context of climate change might look like in practice. While the ECtHR reaffirmed its traditionally narrow approach to individual standing in line with Article 34 of the European Convention on Human Rights, which stipulates that applications may only come from “any person, non-governmental organisation or group of individuals claiming to be the victim of a violation”, it simultaneously broadened this procedural provision by allowing associations, under certain circumstances, to act as applicants even when they are not themselves victims of a violation. This progressive interpretation of a procedural norm has empowered associations to act as representatives of climate victims. Accordingly, this case demonstrates how the LID can evolve legal norms in order to accommodate factual changes in society, by ensuring that that the accessibility of human rights bodies is not unduly impeded by procedural requirements predating the phenomenon of climate change.
In conclusion, it can be argued that the LID is a necessary tool for keeping human rights law practical and effective in light of changing circumstances. As climate change continues to reshape the factual landscape in which human rights bodies operate, procedural requirements cannot remain frozen in time. Progressive interpretation of the procedural framework is proving necessary to facilitate access to court for the victims of climate change and, ultimately, to achieve climate justice.
Bio
Lianne Baars is a PhD Candidate at the Grotius Centre for International Legal Studies, Leiden University. Her research focuses on rights-based climate litigation, specifically procedural requirements at international human rights institutions.