The 2021 Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) underlines in stark terms the link between human activity and climate change and warns of the need for urgent action to address the crisis.
In addition to other well-known impacts, climate change interferes with the enjoyment of a wide range of human rights recognized and protected by international law. In 2014, 27 UN Special Rapporteurs and other independent experts issued a joint letter on the implications of climate change for human rights. They noted that a ‘safe, clean, healthy and sustainable environment is indispensable to the full enjoyment of human rights, including rights to life, health, food, water and housing, among many others’. Reports of the UN’s Office of the High Commissioner for Human Rights (OHCHR) and resolutions of the UN’s Human Rights Committee have also emphasized the adverse effects that climate change can have on a range of human rights, and that states have obligations to take steps to protect human rights from the harmful effects of climate change.
Litigation is a relatively recent tool used by activists to pressure states to respond better to climate change. Litigation based on the impact of climate change on human rights is growing fast: prior to 2015, there were only a handful of rights-based climate cases but since 2015, 40 cases have been brought in 22 countries and before three international bodies.
Rights-based litigation still makes up a comparatively small proportion of all climate change litigation: of 1,841 climate change cases that are ongoing or concluded, human rights arguments have been used in 112 – with 93 against governments and 16 against corporations. But scholars have observed a ‘rights turn’ in climate change litigation in the last few years, galvanized by the success of a small number of prominent cases such as The State of the Netherlands vs the Urgenda Foundation (‘Urgenda’). According to a study by the Climate Litigation Accelerator, over 90 per cent of climate cases are now argued on rights grounds. This trend is set to continue.
The objectives of this paper are twofold. First, it highlights the diverse and innovative ways in which human rights are being used as the basis for climate change litigation. These include the use of litigation: to pressure governments to increase their efforts to mitigate climate change; to enforce current climate obligations and targets; to protect human rights when governments undertake actions on climate change; and to establish the responsibilities of corporations.
Second, the paper considers the challenges inherent in rights-based climate cases and the extent to which human rights-based litigation is having – and can have in the future – an impact on climate change policy at the national and international level. To what extent is rights-based litigation an effective tool to push forward action on climate change by governments, and to generate greater awareness among policymakers, the public and the press of the need for action?