Suing states for their responsibility for climate change-related damage caused by non-state actors in the European context

This paper seeks to answer the question: to what extent do domestic and regional courts’ decisions contribute to establish responsibility and liability of States for climate change damages caused by non-State Actors (NSAs) in the European context? It is argued that the human rights approach to the responsibility for climate change helps bridge a gap in the international climate change law in addressing the States’ obligations towards the emitting activities of NSAs. To answer this question and test this argument, this paper analysed the relevant practice of European human rights judicial bodies and performed a multi-case study analysis on rulings of three European countries (the Netherlands, Germany, and Norway) on State’s climate responsibility claims for emitting activities of NSAs. The paper concluded that the case law of the European Court of Human Rights (ECtHR) supports that the State is responsible for the climate harmful emitting activities of NSAs based on its due diligence and precautionary obligations, albeit this responsibility is limited to the State’s territorial jurisdiction. The domestic courts in the three cases considered cited difference, however. This difference can be traced to the judges’ discretion of the relationship between the State’s climate policy on the one hand and the climate change-related damage on the other.