Contributed by Annalisa Savaresi
In recent years, litigants around the world have increasingly tried to push the boundaries of the law, by filing test cases before national, regional and international judicial and quasi-judicial bodies to prompt state and corporate actors to reduce greenhouse gas emissions, or to redress harm associated with the impacts of climate change.
While so far relatively few climate cases have relied in whole or in part on human rights, the trend is growing and accelerating. In June 2020, there are 37 human rights cases listed in global climate litigation databases curated by the Sabin Centre for Climate Change Law and the Grantham Research Institute in Climate Change and the Environment. These cases preponderantly involve states (e.g. citizens suing governments), but increasingly target also non-state actors (e.g. citizens suing corporations).
On 8 June 2020 the GNHRE kicked off its new series of monthly webinars on human rights strategies in climate change litigation. The series is aimed to take stock of developments in human-rights based climate litigation across the world. Building on the network’s global membership, the series will bring together academic experts and practitioners from all continents to draw comparative perspectives on how human rights strategies are being used in climate litigation in South Asia, Latin America, Europe, North America, the Pacific, and Africa.
In these cases, human rights strategies have been used to prop up those based on private or public law, to push for greater state and corporate efforts to reduce greenhouse gas emissions. At the same time, human rights remedies have been used as an avenue to seek redress for harms associated with climate change, which can be framed in terms of human rights violations (Savaresi and Auz, 2019).
However, human rights remedies offer little, if any, compensatory relief for the impacts of climate change, and limited means to deter further harm and emissions. So why use them? Human rights law and remedies have long been used as a gap-filler to provide protection and remedies where other areas of the law do not, especially in the environmental context. It is thus hardly a surprise that human rights are increasingly used in climate change litigation.
The surge in climate-related human rights litigation has come after a decade of increased attention to the relationship between human rights and climate change law. The preamble to the Paris Agreement acknowledges this relationship and reminds Parties that when taking action to address climate change, they should ‘respect, promote and consider their respective obligations on human rights’.
Since 2008, human rights bodies have shown that obligations associated with both substantive human rights (e.g. the right to life, adequate housing, food, and the highest attainable standard of health) and procedural human rights (e.g. the right to access to remedies and to take part in the conduct of public affairs) take on a specific character in relation to climate change. The UN Special Rapporteurs on the Right to a Healthy Environment have prepared two dedicated reports on human rights and climate change. Amongst others, these reports emphasise states’ obligation to ‘enable affordable and timely access to justice and effective remedies for all, to hold states and businesses accountable for fulfilling their climate change obligations’ (A/74/161, 2019, para 64).
The success of human rights based climate litigation depends upon whether a victim can substantiate a claim that a duty-bearer has failed to comply with the obligations to protect, respect and fulfil human rights. Human rights arguments associated with climate change can be formulated in two main ways: applicants may complain that failure to act (e.g. a failure to adopt and/or implement climate change legislation) has resulted in human rights violations; or, conversely that certain actions (e.g. permits or licenses to extract fossil fuels or log forests) have led to human rights violations.
As an example of the first, through a series of stunning court victories the Urgenda Foundation and a group of Dutch citizens successfully challenged the Dutch government for not taking sufficiently ambitious action to reduce greenhouse gas emissions.
As an example of the second, in 2018 a group of Colombian youth successfully challenged the Colombian government for failure to tackle deforestation in the Amazon, thereby breaching several human rights enshrined both in the Colombian Constitution and in international instruments. Similar cases have been initiated elsewhere and presently remain pending before judicial and quasi-judicial bodies at the national and the international levels.
The series started with a webinar where world-renowned experts introduced some core notions on climate litigation.
Joana Setzer (London School of Economics) shed light on the state of play on climate litigation globally, based on data gathered in Grantham Research Institute in Climate Change and the Environment litigation database. She explained how in recent years, an ever increasingly large number of cases have been filed before national, regional and international judicial and quasi-judicial bodies, to prompt state and corporate actors to reduce greenhouse gas emissions, or to redress harm associated with the impacts of climate change.
Hari Osofsky (Penn State Law)reflected on the rights turn in climate litigation, explaining that an increasing number of climate cases are being brought, on the basis of rights recognised in national and international law. She reflected on the original human rights-based climate case (the so-called Inuit Petition) and how litigation has moved on since, with more and more sophisticated and ambitious complaints.
Tessa Khan (Urgenda Foundation) shared insights from the famous Urgenda court victories against the Dutch Government, which have brought about significant impacts already, including new climate legislation. She further reflection on the impacts of the victories on human rights-based climate change strategies worldwide.
Finally, David Boyd outlined his recent interventions in climate change litigation, as part of his mandate as the UN Special Rapporteur on Human Rights and the Environment. He explained that he was planning an amicus curiae submission in a case concerning the expansion of Artic oil explorations in Norway; the closure of a coal mine in South Africa; and in support of a complaint submitted by 16 children to the Committee on the Rights of the Child to protest against 12 countries’ lack of action on the climate crisis.
Nearly 250 participants asked the speakers a series of questions, which led to a lively discussion on the future of human rights-based climate litigation. The webinar and discussions was moderated by Annalisa Savaresi, Director for Europe at GNHRE. A sample of the questions and excerpts from the panellists’ answers:
- What do you think about the role of litigation in Global South in addressing climate change?
Climate litigation in the Global South is spreading unevenly, but it certainly has an important role to play in pushing from greater ambition, especially in places where governments have expressed limited commitment to the climate cause.
- Urgenda basically claims to protect the interests of all of the world’s present and future generations, but without consulting them first. How do you know that you actually have the support of those on whose behalf you litigate, i.e. all people in this world? This is important, because your “opponent” is a democratically elected government.
Even democratically elected governments have to be challenged on their climate record, and the whole point of activism is exactly that to push for change. In this connection, litigation is just another tool in the hands of climate activists.
- What is your key recommendation for overcoming challenges related to access to information for purposes of climate litigation?
States have specific obligations in relation to access to information, which are widely recognised in national and international law. So citizens and groups should first and foremost demand that their human rights are fully complied with.
- What do you think is the benefit of a right to a safe environment in bringing cases against states and corporations? Is such a right necessary or is the “greening” of other human rights “enough”?
The recognition of the right to a healthy environment can bolster action against state and corporations, which both have specific duties and responsibilities in relation to climate change. The right to a healthy environment is already recognised in the constitution of over 150 states, and the UN Special Rapporteurs have recommended that the UN formally recognise such a right.
A recording of the webinar and the Q&A is available at: Human Rights Strategies in Climate Change Litigation First Webinar