December 15, 2025
By Dr Corina Heri
***
Between the 12th and the 22nd of December, Strasbourg Observers is hosting a blog symposium entitled ‘The Role of the European Court of Human Rights: Progressive, Conservative, or Both?‘ The introduction to the symposium can be found here.
***
The ECHR is under pressure. Under the guise of subsidiarity, reasonableness, interpretative ethic and continued institutional well-being, States are pushing for reforms of the Convention and its Court. The result is a new age of backlash – one that is all the more worrying in the era of democratic decay, disinformation and, yes, climate crisis. On paper, these pressures are ascribed to the progressive nature of certain strands of case-law, for example on migration or the climate. But the Court, in both regards, is in fact cautious and driven more by subsidiarity and deference than a taste for revolution. Still, it finds itself accused of judicial activism. The present contribution examines these realities against the background of an implicit narrative of progress over time – one that has deeply shaped the interpretation and evolution not only of the ECHR, but of international law as a whole. Particularly emphasizing the Court’s climate case-law, it seeks insights for weathering the present storm within the temporal dimensions of human rights adjudication.
As pressures continue, the risk that the Court will seek to keep the peace through retrogressive case-law – walking back protection for those whose rights garner objections from States – grows. In other words, institutional survival and keeping States engaged with the system may be prioritized over the principled, comprehensive, equal application of Convention rights. Likewise, there is a risk of limiting engagement with systemic issues and principles like practical and effective protection.
In the current environment, judges might be forgiven for putting their institution first. But this same tradeoff threatens functional institutional survival – not in terms of State compliance or continued formal existence, but in terms of carrying out the essential functions that the Court performs in modern-day European democracies. These include protecting the rights of all individuals against majoritarian and other threats, safeguarding the rights of marginalized minorities, and, in the words of one of its Vice-Presidents, acting as “[a] bulwark against ending up in oppression, abuse and war again”. The question, then, is whether more deferential engagement now will secure an institution that can thrive – or at least persist – and continue to perform these functions in the future. Or, on the other side of the coin, whether disengagement with rising tides of populism, authoritarianism and anti-rights rhetoric undermines the Court’s function as an “alarm” against these tendencies. Where is the line, then, between a Court that does “too much, too soon” and “too little, too late”?
Recent international legal scholarship has identified a “rhetoric of progress” that imagines the law in “permanent orientation towards a better future” (Eliana Cusato). Authors including Julia Dehm and David M. Scott have written about the temporal narratives that shape expectations of the law – and, more specifically, the implicit narratives of progress over time that shape legal interpretation and evolution. Or, as Fleur Johns has put it, “[i]nternational law sequences time and distributes humans and nonhumans within those sequences, according to narratives of progress, modernity, and development”.
In other words, international law-making and law-application are accompanied by a “rhetoric of progress” that imagines the law in “permanent orientation towards a better future” – and, particularly in Europe, is juxtaposed against an unspeakable, “never again” past. But within the moment of interpretation, bookended by the indefensible past and the promise of a better future, progress-related narratives of negative liberty, growth, sovereignty and scarcity limit what we consider feasible to demand from the law. In doing so, these narratives shape how we understand the living instrument approach to interpretation, namely as benevolently incremental. But, as the following argues, the progress it offers in key contested areas is limited and sporadic. More recently, it has even been presented as an instrument for retrogression, if attitudes evolve against human rights.
The living instrument approach is an expression of the narrative of progress over time, based on the idea that ECHR must be interpreted gradually and under the conditions of the present moment. This approach has allowed for important adjustments to the interpretation of Convention rights over time, for example creating protection of children born out of wedlock, LGBTQI+ people and relationships, and the exercise of human rights through new technologies. Some states now hark back to an age where the Convention-based case-law had not recognized these rights, emphasizing a textualist approach to the Convention. However, such an approach has never described its interpretation (a poignant example of this concerns Article 3 ECHR, which the drafters intentionally left open to interpretation, considering it “dangerous to want to say more, since the effect of the Convention is thereby limited”).
In other words, as Judges Sicilianos and Raimondi once argued, there is no tension between originalist and evolutive interpretations, because an evolutive interpretation was the original plan. Anything else is revisionist history. Or, to put it differently: the living instrument approach is already a compromise. And it implies that there’s time for more improvements later, which is a move that restrains evolutive interpretation in the moment and is always firmly contingent on what the present allows. A metaphor, perhaps, would be to liken the Court’s living instrument approach to a set of stairs – one that ultimately leads to a brighter future, but that we must climb one step at a time. It has taken decades to climb part of the way up these steps, with State backlash threatening to push us, the hapless interpreter, back to their very bottom. Better, then, to stay on the current step for the time being – or is it?
The problem with this, of course, is its implication of future progress that may never come. Neither is there just one linear path or stairway to progress. The ongoing triple planetary crisis – the increasing disruption of the climate system, coupled with pollution and biodiversity crises – makes this particularly clear. Planetary tipping points cannot be uncrossed and the prospect of a technological solution remains uncertain. And for some applicants, and especially for members of vulnerable and marginalized groups, it particularly seems like progress will never come; their rights perpetually remain aspirations for the future. Progress, particularly for them, might be regressive or cyclical.
The following examines two topics, framed as progress for whom and progress where, to explain how a temporal perspective helps to appreciate the deep limitations of the Court’s existing engagement, and counter the allegations of judicial activism or inflationism currently facing the Court.
The Court has now amassed several findings – all negative – on individual victim status in the face of climate change. In KlimaSeniorinnen, the individual applicants lacked victim status because they had not demonstrated affectedness “beyond the usual effects which any person belonging to the group of older women might experience” (para. 534). In Greenpeace Nordic, the Court found in the face of a complaint from Indigenous youth that “it cannot conclude that the hardships [to] the three applicants personally are of ‘high intensity’” (para. 303). In Engels and Others v. Germany, it denied victim status because the applicants lacked “specific vulnerabilities [or] exceptional circumstances”. And in Fliegenschnee, victim status claims failed on the absence of individualized medical evidence.
It is now clear that only the most imminently affected and vulnerable applicants enjoy individual victim status in climate cases. This is an application of KlimaSeniorinnen’s climate change victim status test, which sets an extremely high bar for victim status in climate cases (and only climate cases – a – and perhaps only Articles 2 and 8). Balancing this approach with the Court’s willingness to allow representative actions by NGOs only partly and inadequately compensates for the strictness of this test.
Although it might not seem like it at first blush, an exceptionalist understanding of the individual climate applicant is very much about temporality and notions of progress over time. It insinuates that climate applicants are getting ahead of themselves, that the requisite impacts are not sufficiently imminent yet to warrant judicial intervention. And it is built on the idea that while resources – judicial, political or economic – may be scarce now, progress is inevitable and solutions will be found in the future, whether through law or some other means. The problem with this is that climate change will not be solved through a continuation of the status quo; it is in fact a symptom of its unsustainability. And failing to engage with climate-related impacts, injustices and inequalities now only makes them more severe in the future.
The Court’s initial engagements with climate change also impose spatial limitations. Climate cases can only come from within a Member State, in a move I have described elsewhere as a key part of ‘domesticating’ climate change. In Duarte Agostinho, the Court noted that climate impacts result from “a chain of effects that is both complex and more unpredictable in terms of time and place and are therefore particularly diffuse, making it difficult to establish the respective contributions to the adverse impact of the emissions abroad” (para. 207, emphasis mine).
Time and place are, as the Court itself recognizes, connected. In terms of spatiality, the Court has made useful findings about scope 3 and embedded (consumption) emissions – those indirectly resulting from an activity, regardless of where they are emitted, or those imported from abroad. However, these findings stand alongside a rejection of extraterritoriality that means that impacts on rights holders located outside a Member State’s territorial jurisdiction are not the problem of that State. They’re a problem for other States, who need to mobilize their own resources and reduce their own emissions by developing in their own time. The resulting concept of jurisdiction takes predictability for (European) States as its guiding consideration, and uses it to justify spatial limitations to human rights protection. Meanwhile, European States’ continuing emissions subtract from the remaining global climate budget, in ways that impact all States and their residents. Here, there is an urgent need to engage critically with ‘domesticated’ approaches, and how they impact the enjoyment of human rights in the future. This not only means engaging with equitable allocation of remaining carbon emissions, but situating them within the legacies of resource extraction and environmental racism reproduced within the global climate crisis. Or, as Dehm puts it, to reckon with “[l]ong-repressed questions about ecological debts and reparations for ecological harms”.
Approaching backlash against the Court, including against its climate cases, through a lens of temporality reveals that the interpretation of the Convention is currently reckoning with its own expectations of the future, as a place of anticipated progress in technology, in welfare and in human rights. But that future, both for individual rights holders and the collective, is rapidly being compromised. And that reality should limit the acceptability of complacency in the present.
Today, the Court stands falsely accused of judicial activism. Its actual approach is far from an activist one – it is deeply shaped by deference and subsidiarity. In the face of this reality, the States now pushing for even more deference from the Strasbourg judges stand to undermine the equal and equitable protection of human rights, and thus the functional if not factual survival of the Court.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
Strasbourg Observers would not be possible without the valued work of countless guest bloggers. Visit the “Contact” page on our website to find out how to become one!
