By Annalisa Savaresi and Joana Setzer
In 2018 Jacqueline Peel and Hari Osofsky identified a ‘rights turn’ in climate litigation. The use of human rights law and remedies to address concerns related to climate change has since intensified and become more complex. A new special issue of the Journal of Human Rights and the Environment sets out to make sense of this body of so-called ‘rights-based climate litigation’ by focusing on the role human rights claims play in this rapidly growing area of legal practice.
In this post, we summarise the findings of our contribution to the special issue, titled ‘Rights-based litigation in the climate emergency: mapping the landscape and new knowledge frontiers’. Our article draws the first global map of rights-based climate litigation. Using data from the world’s largest climate litigation databases, we identified 112 climate ‘cases’ – including judicial and non-judicial complaints – that rely in whole or in part on human rights. We analyse these cases to determine the main trends in this form of litigation, as well as areas that deserve further investigation. We argue that, so far, the literature has focused on rights-based litigation that aligns with climate mitigation and adaptation objectives. However, litigation that does not align with these objectives has largely been overlooked; while there is awareness of its existence, it has neither been systematically collected nor analysed.
In an earlier edition of the paper, we compare these facets of rights-based litigation in the climate emergency to the two sides of the moon. On the ‘near side of the moon’, we have rights-based litigation that aligns with climate objectives, by demanding state and corporate actors to undertake climate change adaptation and/or mitigation strategies. On the ‘far side of the moon’, we have rights-based litigation that does not align with climate objectives, and opposes climate adaptation and/or mitigation projects, policies or legislation.
We therefore point to the need to look beyond the near side of the moon and to consider all rights-based litigation concerning climate action, in order get a clearer and more comprehensive appreciation of the role of human rights law and remedies in the climate emergency. In doing so, our article takes stock of the rich landscape of rights-based climate litigation and identifies a significant gap in knowledge that requires further research.
The near side of the moon
In the first part of our paper we analysed the 112 climate aligned cases with the aid of well-established categories in climate litigation literature, collating data on who filed them, whom the cases were filed against and where they were filed. This allowed us to identify the main trends in rights-based climate litigation, and to compare these results with trends in general climate litigation. This comparison revealed some striking peculiarities.
Geographically, rights-based climate cases have been predominantly filed in Europe, followed by North America, Latin America, the Asia-Pacific and Africa. The majority of cases were recorded in regions endowed with regional human rights bodies that have historically been sympathetic to the use of human rights complaints to pursue environmental objectives. Roughly 13% of rights-based complaints have been lodged before international and regional human rights bodies. This geographical distribution significantly differs from trends observed in general climate litigation, where the vast majority of cases have been brought in the US, followed by Europe and the Asia Pacific. In a similar vein, only a very small number of climate cases (0.7%) were filed before international bodies.
Chronologically, rights-based climate litigation is a relatively recent phenomenon, when compared to general climate litigation. Human rights arguments began to feature more prominently in climate litigation after the adoption of the Paris Agreement in 2015. Because a rights-based climate approach is so recent and many of the cases are still pending, it is too early to draw any definitive conclusions on their outcomes. Our preliminary analysis of decided cases (final decision vis-à-vis the requests of the applicants) suggests that the majority of rights-based cases have been decided against the applicants (56% against and 44% in favour– for a total of 57 decided cases), and that not all court victories are attributable to successful human rights arguments.
Applicants in rights-based climate litigation are typically individuals and groups, as these are the main rights-bearers under human rights law. This stands in contrast with general climate litigation, where corporate actors have historically initiated the majority of climate cases, challenging regulations or the withdrawal of licenses and permits. However, defendants in all climate cases are typically states and public authorities. This is to be expected, as in human rights law, states are the primary duty-bearers. Yet, there is a small but rapidly increasing number of rights-based climate cases that specifically target corporations, asking domestic courts and non-judicial bodies to interpret corporate due diligence obligations in light of human rights law and of the temperature goal enshrined in the Paris Agreement. These cases have attracted considerable attention, due to their ground-breaking nature and potentially revolutionary impacts.
In the second part of our paper, we identified the human rights most frequently invoked in rights-based climate cases, against states (figure 1) and against corporate actors respectively (figure 2), using standard categorisations deployed in the literature on human rights and the environment and the articulation of human rights obligations vis-à-vis climate change made by the UN Special Rapporteurs on Human Rights and the Environment (A/HRC/31/52 and A/74/161).
Figure 1: States’ human rights obligations associated with climate change – number of cases in brackets
We discovered that applicants in these cases often opt for a classic strategy in rights-based litigation: a demand for the fulfilment of a positive or negative obligation from states. These typically involve asking states to take legislative and/or executive action to tackle climate change that affects the enjoyment of human rights (e.g. Urgenda for mitigation and Torres Strait Islanderson adaptation) or demanding the enforcement of legislation, arguing that states cannot respect, protect and fulfil human rights while breaching legislation they have themselves adopted (e.g. Leghari). In IEA v Brazil applicants also requested the recognition of a new human right – the right to a stable climate system.
In other cases, applicants rely on states’ negative obligations, arguing that they should refrain from authorising activities or adopting policies leading to environmental impacts that would violate the enjoyment of human rights, such as those to life, family life, property or the right to a enjoy an environment of a certain quality (e.g. Nature and Youth and Greenpeace Norway v. the Government of Norway).
Very few rights-based climate cases rely on procedural human rights obligations, such as the provision of access to information (e.g. Greenpeace Luxembourg v. Schneider), participation in environmental decision-making (e.g. Greenpeace Canada v Ministry of Environment) and access to justice (e.g. Klimaseniorinnen v Switzerland). However, as these lawsuits fail, applicants are more likely to resort to higher courts or to international human rights bodies to complain about lack of access to justice.
In rights-based climate cases brought against corporations, applicants typically argue that corporate actors have a positive duty to reduce emissions (e.g. Milieudefensie) or a positive duty to support, rather than oppose, climate policies and their enforcement (e.g. Carbon Majors inquiry). Applicants also rely (sometimes simultaneously) on corporations’ negative duty to refrain from activities causing harm (e.g. Carbon Majors inquiry and Notre Affaire à Tous and Others v. Total).
Figure 2: Corporate human rights responsibilities associated with climate change – number of cases in brackets
We found only two rights-based cases relying on corporate procedural duties. Both were lodged with the National Contact Points (NCP) established under the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises and alleged insufficient disclosure of emissions, climate vulnerability and stranded assets (Development YES v. Group PZU S.A.) and failure to consult affected communities (Market Forces v. Sumitomo Mitsui Banking Corporation et al). As of now, there is no evidence of cases alleging a breach of corporations’ duty to provide remedies against adverse impacts on human rights that they have caused or contributed to.
Our analysis of rights-based climate litigation prompted us to reflect on the significant gap in our knowledge over lawsuits where human rights law and remedies are used to challenge measures and projects designed to deliver climate change adaptation and/or mitigation. In our paper we call these lawsuits ‘just transition litigation’, which we define as cases that rely in whole or in part on human rights to question the distribution of the benefits and burdens of the transition away from fossil fuels and towards net zero emissions.
Just transition litigation may marginally overlap with so-called ‘antiregulatory’, ‘defensive’ or simply ‘anti’ climate litigation, but should be regarded as a separate litigation category. In contrast to ‘anti’ climate litigation, just transition litigation does not object to climate action in and of itself, but rather to the way in which it is carried out and/or to its impact on the enjoyment of human rights.
We found evidence of just transition litigation targeting corporate actors and states for breaches of human rights obligations associated with the rights of Indigenous Peoples (e.g. ProDESK v EDF; Quechan Tribe v. US Dept. of Interior ). International human rights bodies have also received complaints challenging measures to reduce forest emissions and the construction of hydroelectric dams, alleging, amongst others, breaches of the human rights to culture, food, water and the rights of Indigenous Peoples. In other just transition cases, applicants allege breaches of the right to access to justice, associated with the adoption of climate change projects, such as the authorisation of wind farms (e.g. Fägerskiöld v. Sweden; Vecbaštika and Others v Latvia). Similarly, both the UK and the EU have been found to have breached their obligations under the Aarhus Convention for having adopted renewable energy laws and policies without adequate public participation.
This phenomenon of opposition to climate action on human rights grounds — which other scholars and databases have already identified, without analysing it systematically — is hardly a surprise. While fossil fuel-based economies have created winners and losers, changing the status quo entails striking new equilibria between competing societal interests.In this connection, the notion of a ‘just transition’ has been invoked to highlight that the benefits of decarbonisation should be shared, and that those who stand to lose should be supported.
The rise of just transition litigation emphasises the importance of safeguarding both procedural and substantive rights, and of protecting individuals and groups from the arbitrary and unjust decisions of governments and corporations. Going forward, there seems to be a clear need to collect and systemically analyse just transition litigation. Greater understanding of this litigation is necessary to appreciate the tensions associated with a transition towards zero carbon societies, and the ways in which they may be resolved through the adoption of a rights-based approach to climate change decision making, — as advocated for in the recent decision of the Human Rights Council, creating a UN Special on Human Rights and Climate Change.
Mapping the whole of the moon
Our article carried out the first systematic analysis of rights-based litigation that aligns with climate objectives, revealing the main trends and patterns in this burgeoning area of legal practice. It predicts that, as both climate legislation and litigation progressively mature, more and more rights-based litigation will focus on the enforcement of extant climate legislation, as well as on the protection of procedural rights associated with it. We believe that in future human rights law and remedies will continue to be used to propel the energy transition away from fossil fuels, while also protecting those most affected by it. We therefore highlight the need to explore the new frontier of just transition litigation to better understand how governments and corporations can address the climate emergency and deliver net zero emissions, and an energy transition that is inclusive and in line with human rights.