Litigation concerning climate change mitigation and adaptation increasingly invokes human rights. The databases curated by the Sabin Centre for Climate Change Law at Columbia Law School and the Grantham Research Institute on Climate Change and the Environment show a rising tide of rights-based climate change cases all over the world, ‘pushing the boundaries’ of human rights law to prompt state and corporate actors to reduce greenhouse gas emissions, or to obtain redress for climate harms .
Faced with this ‘rights turn’ in climate litigation, a new special issue of the Journal of Human Rights and the Environment sets out to make sense of global and regional trends in this new and burgeoning area of legal practice. The articles collected in the special issue go beyond the single case, drawing general inferences on the role of human rights law and remedies in the climate emergency.
This GNHRE blogpost series features posts from selected contributors to the special issue, which reflect general trends in rights-based climate litigation globally and regionally.
The series starts with a post by Annalisa Savaresi and Joana Setzer, who in their JHRE article draw up a global map of human rights-based climate litigation, detailing who has brought cases, against whom, where, and on the basis of which human rights and arguments. They point out that, while there has been a rise in lawsuits that align with climate mitigation and adaptation objectives, the literature has so far largely ignored those that do not. They argue that this ‘just transition litigation’ needs to be better understood, in order to fully appreciate the role of human rights law and remedies in the climate emergency.
The second post, by Dennis van Berkel, Sarah Mead and Lucy Williams (Urgenda Foundation) looks to the next frontier of climate litigation, which in their JHRE article they describe as judicially manageable standards to determine whether a state has adopted ‘reasonable’ and ‘appropriate’ measures to mitigate climate change pursuant to its obligations to protect human rights. They propose a framework for such standards, drawing upon the principles established by the Dutch Supreme Court in Urgenda v the Netherlands and recent judgments of other national courts, as well as proceedings that are underway.
In the third post, Marc Willers and Jacques Hartmann examine extant rights-based climate change litigation before regional European courts. They point to the difficulties experienced in bringing this type of cases before the Court of Justice of the European Union and the comparatively better prospects before the European Court of Human Rights.
In the fourth post, Birsha Ohdedar draws attention to case law which contends with the drivers of vulnerability in the climate emergency. Using India as a case study, he analyses the links between climate vulnerability and human rights, assessing how these are embedded within climate litigation.
In the fifth post, Juan Auz identifies and analyses opportunities and constraints for adjudicating rights-based climate cases in Latin America. He cautions that political economy considerations might hinder the development, inclusivity and long-term effectiveness of this litigation.
In the sixth post, Lisa Benjamin and Sara Seck consider recent developments in human rights-based climate litigation brought against the Canadian state, as well as the potential for future transnational corporate accountability cases before national courts.
Together, these posts sketch a global map of rights-based climate litigation, building a storyline that goes beyond the individual case. Like the special issue, these posts advance the debate on a new chapter in the literature on human rights and the environment, providing welcome food for thought.