Rights-based climate change litigation needs to be understood and assessed in conjunction with other strategies such as policy advocacy and public campaigns, and as one of an array of tools being used to highlight the human rights risks of climate change, including legal institutions and mechanisms, alliances and mass mobilization.
Rights-based litigation has to be run strategically and sensitively in order to have impact. Otherwise there is a risk that a case can polarize opinion and provoke a backlash. The human rights dimension also has to be carefully situated and explained. Rights activists are increasingly acting in concert with other activists and movements, and drawing on and involving other parts of the international human rights law ecosystem – including interventions by UN Special Rapporteurs, submissions before UN human rights treaty bodies and the participation of human rights NGOs – in building rights-based cases before domestic and regional courts.
It is too early to reach thorough conclusions about the impact of the ‘rights turn’ in climate litigation, as it remains a relatively recent trend. Many rights-based cases are either pending or on appeal, and their implementation can take years. But some initial observations can be made.
Even if a case is successful, its impact will substantially depend on proper implementation of the judicial remedy by the government or corporate respondent. Some of the cases cited in this paper led to direct regulatory impacts, such as a change of law or a government decision to adopt more robust targets.
Following Urgenda, for example, the Dutch government adopted 30 of the proposals in Urgenda’s 54 Climate Solutions Plan, which was drawn up in collaboration with 800 civil society groups and other organizations. The government plan to comply with the court’s decision also included a 75 per cent reduction in capacity at the country’s three coal-fired power stations, opened within the last five years, and a €3 billion package of measures to reduce Dutch emissions by 2020. The response of the German parliament to the Neubauer et al. case was similarly swift – in June 2021, the Bundestag passed an amendment to legislation that commits Germany to become greenhouse gas neutral by 2045, five years ahead of its previous target. A 65 per cent reduction in greenhouse gas emissions is also required by 2030.
But in other cases, implementation of the remedy has not been so forthcoming or is more challenging due to appeals by the government or company involved. For example, in the Earthlife decision against the government of South Africa, following the High Court’s ruling that the government’s review of plans for a new coal-fired power plant was invalid, the Minister of Environmental Affairs again gave authorization for the plant. It was only when the claimants brought a further case challenging the decision that an agreement was reached to set aside all government authorizations for the plant.
Run strategically, rights-based climate cases can have a mobilizing power beyond the individual case concerned, by building a narrative about the need for stronger action to tackle climate change, which increases public awareness. These cases can also play a role in reducing misinformation through evidence, and in promoting a shared understanding of reality on climate action. Such cases can also lead to greater sensitization of legal institutions to the nature of climate change, and increased perception among governments that they may be challenged and held to account in court for their actions.
Run strategically, rights-based climate cases can have a mobilizing power beyond the individual case concerned, by building a narrative about the need for stronger action to tackle climate change, which increases public awareness.
Even where rights-based climate cases are unsuccessful – of the 40 cases mentioned in the introduction, outcomes have been evenly split so far – they may still influence future litigation by helping to establish normative standards that have impact beyond the particular project or issue under consideration. In Ioane Teitiota vs New Zealand (2020), the UN Human Rights Committee’s individual petition procedure was invoked to raise the issue of rising sea levels and its implications for low-lying islands and communities. The claimant relied upon the duty of states under Article 6 of the International Covenant on Civil and Political Rights not to deport a person when there is a real risk of irreparable harm to the right to life.
In its January 2020 decision, the Human Rights Committee accepted Teitiota’s claims that rising sea levels are likely to render Kiribati uninhabitable in 10–15 years’ time, but found that there was enough time for the Kiribati state to take remedial measures, so that the decision to deport was not unlawful. While the case failed, the Committee noted that, ‘without robust national and international efforts, the effects of climate change in receiving States may expose individuals to a violation of their rights under articles 6 or 7 [the right to life and the right not to be subject to cruel inhuman or degrading treatment] of the Covenant, thereby triggering the non-refoulement obligations of sending States’. This decision is likely to have useful precedential value for future challenges relating to asylum protection from the effects of climate change.
Even strong dissenting decisions can be useful in moving public opinion, as in the Juliana case, where Judge Staton’s dissent – ‘The majority laments that it cannot step into the shoes of the political branches… but appears ready to yield even if those branches walk the Nation over a cliff.’ – is having a galvanizing effect on youth activists.
Cases against corporations, even if unsuccessful, put businesses such as the ‘carbon majors’ on notice of the legal and financial risk to which they are increasingly exposed through their operations. Shareholder activism and commercial law avenues for holding corporations to account for climate change are also likely to be strengthened by developments in human rights-based climate change litigation, nudging behavioural change in the business community.
As in other domains such as technology regulation, international human rights law has an important role to play in providing a substantive and procedural framework for climate litigation. At a substantive level, it provides hard rights which, when combined with the Paris framework targets, create a lens through which to hold governments to account. We are likely to see an increased range of rights invoked in future, including the right to housing and family life, given predictions that there may be up to 1 billion climate refugees by 2050.
At the procedural level, human rights law helps to elaborate due diligence standards and procedural guarantees for both governments and corporations. In this way, rights-based claims can also help fill the enforcement gap between national and international law, as seen in Urgenda.
While rights-based litigation has scored some notable and impactful wins, ultimately the success of any strategic litigation initiative is not in the immediate outcome of particular cases but the extent to which such efforts give impetus to popular discourse and policy outcomes. In the US, Brown vs Board of Education in 1954 preceded and probably influenced the Civil Rights Act of 1964, but it would be not until many decades later that the impact of the change from that initiative took effect. In relation to climate change, however, there is no time for a long learning curve.