There is well-established jurisprudence on the duties that states have to respect, protect and fulfil the human rights of individuals within their jurisdiction. These arguments have been developed and honed in the context of human rights-based environmental litigation over the past 20 years. Increasingly, we are seeing litigators seek to extend these arguments to the climate change context.
Adoption of adequate response measures to address climate change
Over 80 per cent of rights-based climate cases are aimed at pressuring governments to do more to mitigate climate change, for example through challenging emission reduction plans. The 2015 Paris Agreement on climate change provides a useful baseline for such claims, by setting benchmarks against which to assess governments’ climate action. The Paris Agreement was the first climate treaty to explicitly recognize the relevance of human rights to climate change, and that actions to address climate change must comply with human rights obligations. The Agreement also commits states to minimize the economic, social and environmental impacts that may result from the implementation of response measures to mitigate or adapt to climate change.
The Urgenda judgment of 2019 was the first case in the world to establish that there was a legal duty on a government to prevent dangerous climate change. In that case, the claimants sought an injunction to compel the Dutch government to reduce its greenhouse gas emissions, on the basis that the government had taken inadequate action. The NGO Urgenda asked the Dutch Supreme Court to set an exact standard for carbon emissions – a reduction of 25 per cent. The litigants argued that human rights impose positive duties on governments to adopt adequate measures, including legislation to reduce greenhouse gas emissions and to adapt to the impacts of climate change. The court held that reducing emissions with the highest possible level of ambition amounts to a ‘due diligence standard’ for complying with these human rights obligations.
The litigants argued that human rights impose positive duties on governments to adopt adequate measures, including legislation to reduce greenhouse gas emissions and to adapt to the impacts of climate change.
In Urgenda, human rights arguments were technically peripheral to the grounds of the case, which centred on Dutch tort law. But they ended up being decisive to the result as they were utilized by the court to fill in the content of due diligence standards owed under the duty of care considered by the court. The case is a progressive example of how regional and domestic courts can actively use the substantive and procedural provisions of international human rights law, together with soft law provisions such as targets agreed under the Paris framework, to interpret domestic law, and to bridge the gap between the international law obligations of the state concerned and its domestic law. The Dutch Supreme Court’s finding that risks of climate change fell within the European Convention on Human Rights (ECHR) – especially Articles 2 (right to life) and 8 (right to private and family life) – has provided a useful precedent for future rights-based cases.
The court used the ‘common ground’ approach pioneered by the European Court of Human Rights (ECtHR), under which a respondent state need not have ratified the entire collection of instruments applicable. Rather, it is sufficient if the instruments concerned represent ‘a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and shows, in a precise area, that there is common ground in modern societies’. This common ground approach is increasingly invoked in climate mitigation cases, enabling a court to draw on a ‘baseline of norms’ (arising from both hard law treaties and soft law instruments such as the Paris Agreement and IPCC reports) in relation to climate rights.
International law was also used by a court to help interpret domestic law in the case of Earthlife Africa Johannesburg vs Minister of Environmental Affairs and Others, brought against the South African government in 2017. The South African Constitution requires domestic law to be interpreted in line with both South Africa’s Bill of Rights and international law. The High Court read the constitutional provision protecting the right to environment, along with the UN Framework Convention on Climate Change (UNFCCC) to which South Africa is a party, to find for the claimant that South Africa had to consider climate change as part of the environmental impact assessment required prior to deciding on the authorization of a coal-fired power plant.
Another successful case that sought to require the adoption by a government of adequate measures in relation to climate change was Future Generations vs Ministry of Environment, Colombia (2018). In that case, 25 youth plaintiffs sued several bodies within the Colombian government, Colombian municipalities and several corporations for failure to enforce their claimed rights to a healthy environment, life, health, food and water, as a result of the failure to tackle deforestation of the Amazon or make adequate efforts to reach targets set in relation to the Paris Agreement and Colombia’s National Development Plan.
The Colombian Supreme Court held that the Colombian Amazon is a ‘“subject of rights”, entitled to protection, conservation, maintenance and restoration by the State and the territorial agencies’. The court ordered various government agencies, with the participation of the claimants, the affected communities and the interested population in general, to formulate short, medium-, and long-term action plans within four months, ‘to counteract the rate of deforestation in the Amazon, tackling climate change impacts’.
Regional human rights courts are also being used by litigants to bring rights-based climate cases. The Inter-American Commission on Human Rights is currently considering a petition filed in September 2019 by organizations from multiple Latin American countries about the impact of climate change on indigenous peoples, claiming violations of their right to health, property and culture – particularly the right of indigenous people to follow their practices. The court is also hearing a petition filed by a Canadian indigenous group alleging lack of action on the part of Canada to prevent the melting of Arctic glaciers, on the basis that it is affecting their health, property, way of life and livelihood.
In September 2020, in Duarte Agostinho and others vs Portugal and 32 other states, six Portuguese youths alleged inaction on climate change on the part of Portugal and 32 other Council of Europe member states. The applicants’ claim alleges not just violations of the right to life and right to privacy, but also age-based discrimination on the basis that ‘children and young adults are being made to bear the burden of climate change to a far greater extent than older generations’. A number of organizations, as well as a group of UN Special Rapporteurs, have filed supporting briefs in this case.
Enforcement of existing commitments and targets
Some cases have been brought on the basis that states have positive duties to enforce legislation in which they have committed to address climate change, and to provide redress to those suffering the impacts of climate change. The rights basis of this argument is that states cannot respect, protect and fulfil human rights while breaching legislation they themselves have adopted.
Courts in jurisdictions where environmental rights are directly provided for in the state’s constitution, as is more commonly the case in the Global South, have sometimes found it easier to adapt rights-based claims to the climate change context. For example, in Leghari vs Federation of Pakistan (2015), the Lahore High Court held that the right to life, right to human dignity, right to property and right to information under Articles 9, 14, 23 and 19A of the Constitution, which already had been interpreted to provide for the right to a healthy environment, must now also extend to cover climate change.
The court found that these provisions ‘provide the necessary judicial toolkit to address and monitor the Government’s response to climate change’ and ordered the government to appoint a climate change focal point in certain departments. It also ordered the government to publish an adaptation action plan realizable within a few months of the order and to establish a Climate Change Commission to monitor progress.
In another such case, PSB et al. vs Brazil, the applicants are alleging that the Brazilian government’s failure to implement its Action Plan for the Prevention and Control of Deforestation in the Legal Amazon has violated the fundamental rights of indigenous people and future generations and contributed to dangerous climate change.
Obligations on states to protect human rights when undertaking actions on climate change
A growing number of rights-based climate change cases focus not on the inadequacy of states’ responses to climate change, but rather on the argument that states’ negative obligations require them to ensure that their mitigation and adaptation activities in response to climate change do not themselves contribute to human rights violations. The Paris Agreement preamble focuses only on states’ response measures, not the human rights implications of climate change itself. OHCHR advocates a broader approach, underlining that states should not authorize activities or adopt policies leading to environmental impacts that in turn affect the enjoyment of human rights (for example, the right to life, family life or property). The UN’s Human Rights Committee has also sought to emphasize the importance of incorporating human rights concerns into climate advocacy.
For example, applicants have challenged measures to reduce emissions that they allege encroach on traditional land uses and livelihoods. Such cases often allege violation by the state of procedural obligations, including inadequate consultation with, or provision of information to, affected groups. There have been several cases in Mexico brought by indigenous people alleging that the authorization of wind farms took place without a process of fair, prior and informed consent.
This kind of litigation puts pressure on governments to expand their approach to tackling climate change beyond purely a regulatory one to a more holistic strategy that takes account of the intersection between climate change and other social justice issues. As governments increasingly have to make trade-offs between the pursuit of climate objectives (such as the achievement of net zero) and other societal concerns, including the position of vulnerable or minority groups such as the poor, farmers and indigenous people, we are likely to see an increase in this kind of litigation.
Cases against corporations
As noted above, most human rights-based climate litigation cases to date have been brought against states rather than against businesses. This is unsurprising, as traditionally states are the bearer of human rights obligations, and the issue of whether corporations have similar obligations remains contested. The UN Guiding Principles on Business and Human Rights (UNGPs) set out the responsibility of businesses not to cause (directly or indirectly) harm to human rights as a result of their business activities. But the UNGPs are non-binding soft law, which makes litigation more of a challenge.
Nevertheless, rights-based climate cases against corporations are also on the rise. In the domain of environmental law, there exists a wide body of jurisprudence of how corporations can be held accountable for human rights violations, which is now starting to inform climate change litigation.
Increasingly, the human rights responsibilities of companies are being concretized into binding legal obligations through domestic legislation mandating human rights due diligence by companies.
In 2021, the Dutch courts delivered a pioneering victory for rights-based climate change litigation, in one of the world’s first human rights claims against a corporation in relation to climate change. In Milieudefensie et al. vs Royal Dutch Shell PLC (2021), 17 NGOs and more than 17,000 individuals filed an action before the Hague District Court against Royal Dutch Shell plc (Shell). The claimants sought a declaration that the annual carbon dioxide (CO₂) emissions of the global Shell group constituted an unlawful act against the claimants for which Shell was responsible. The claimants argued that Shell has a tort law duty of care under Article 6:162 of the Dutch Civil Code interpreted in light of Articles 2 (right to life) and 8 (right to a private life, family life) ECHR.
As in the Urgenda case, the court used human rights law, including international treaties and the UNGPs, to define the parameters of the corporate duty of care and of due diligence obligations under Dutch law. The court noted that while the UNGPs are not legally binding, they ‘are suitable as a guideline in the interpretation of the unwritten standard of care’. The court concluded that Shell should be ordered to reduce its CO₂ emissions by a net rate of 45 per cent at the end of 2030, relative to 2019 figures, through its group corporate policy. Shell is appealing the decision.
While the Shell case is currently an exception, increasingly the human rights responsibilities of companies are being concretized into binding legal obligations through domestic legislation mandating human rights due diligence by companies. Several governments have recently enacted, or are enacting, laws that require companies to safeguard human rights and the environment, including in their global supply chain operations (e.g. in Australia, France, Germany and the EU). These binding obligations can then form the basis of rights-based legal challenges in the courts, as they did in Notre Affaire à Tous and Others vs Total (2021), a claim based on France’s corporate due diligence legislation. The claimants sought a court order requiring Total to issue a corporate strategy that identifies the risks resulting from its greenhouse gas emissions, the risks of serious climate-related harms being committed by Total as outlined in the IPCC special report of October 2018, and the action the company will take to ensure its activities align with a trajectory compatible with the climate goals of the Paris Agreement.
Although the Court of Appeal ultimately held that the Commercial Court should hear the case, the case has inspired other claimants seeking to hold major companies to higher standards of climate responsibility. In a case brought against the global retailer Groupe Casino in France in March 2021, claimants relied on the same due diligence law, and international indigenous rights law, to demand that Casino supermarkets take all necessary measures to exclude beef tied to deforestation and the taking of indigenous territories from its supply chains in Brazil, Colombia and elsewhere.
In April 2021, the environmental law NGO ClientEarth filed an action against the National Bank of Belgium for buying bonds in carbon-intensive corporations. Among other things, the suit bases its claims on the EU Charter of Fundamental Rights, which imposes duties in relation to environmental protection.