GNHRE Blog post series: Rights-based Climate Change Litigation – Global and Regional Perspectives

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.

Astrid Milena Bernal

By Astrid Milena Bernal

Astrid Milena Bernal Rubio is a Colombian LL.M student at Pennsylvania State University (concentrations in International Law and Energy and Environmental Law). She is a lawyer from the Universidad Católica de Colombia, Magister in Environmental Law from the Complutense University of Madrid and Specialist in human rights and critical legal studies from the Latin American Council of Social Sciences (CLACSO) Latin American School of Public Policy- ELAP.

As part of the technical team of GFLAC (climate finance group for Latin America and the Caribbean), she supported the creation of the MRV system (monitoring, reporting and verification) for climate finance in Colombia. In addition, she has been a consultant for the WRI (World Resources Institute) and The Access Initiative (TAI), working as the National researcher for the Environmental Democracy Index (EDI). Also, she has worked as a consultant for AVINA Foundation, The Bogotá’s drainage and sewerage company (EAAB). She has worked as a lawyer and researcher on issues associated with public participation, access to information, forests, carbon markets, rights of indigenous peoples and rural communities in Colombia.

Astrid was a volunteer for the Network for Environmental Justice in Colombia and promoted the creation and growth of the climate justice division at the Environment and Society Association (AAS) of Colombia. She worked as the Climate Justice division coordinator for five years. Astrid was a senior research coordinator in a joint research project with UNICEF to contribute to the fulfilment of the SDGs (6), focusing its work on guaranteeing the rights of access to sanitation for rural, indigenous and Afro-descendant populations in Colombia. She is also part of the founders of the Colombian NGO- CAMBIUM (Climate, Environment and Research-Action Uniting Worlds). This organization aims to, directly and indirectly, influence processes carried out by civil society and decision-makers related to climate change.

Currently, she works at the Global Forest Coalition as an associate for the Unsustainable Livestock Campaign. Astrid also supports the work of Pivot Point and the CLARA group (Climate, Land, Ambition and Rights Alliance), promoting the understanding and participation of CSOs to ensure higher ambition of NDC (Nationally Determined Contributions) in Spanish speakers countries.

Astrid is a research assistant at Penn State University identifying how different kinds of transboundary river basin organizations have written and used dispute resolution mechanisms in both the bilateral agreements between the US, Mexico and Canada (NAFTA-USMCA) and the Autonomous Binational Authority of the Basin of Lake Titicaca (Bolivia, Peru).

Astrid is member of the core team in the Global Network for Human Rights and the Environment (GNHRE), she is part of the global network of environmental lawyers (ELAW) and collaborates as a volunteer for The Capital Area Immigrants’ Rights Coalition- CAIR coalition.