The ‘rights turn’ is here to stay
It is clear that litigants are learning from past rights-based cases, for example improving the prospects of justiciability of their own cases by framing arguments in relation to the compatibility of specific legislation with rights, rather than challenging government policy as a whole.
The range of cases highlighted above also shows that rights-based climate litigation is being conducted both in the Global North and the Global South. In the latter, there is generally more scope to base claims on constitutional rights in general, or on socio-economic rights, and to apply for a broader range of remedies. Rights-based climate cases in Colombia, India, Pakistan, the Philippines and South Africa have been able to draw on doctrines and remedies developed over the years in the context of claims challenging the violation of socio-economic rights such as the right to housing, health, food and work in these jurisdictions. Indigenous rights litigation has also provided a useful body of case law relevant to climate change litigation, including on the requirement for free, prior and informed consultation and consent of relevant communities. Global South countries that have led the way in socioeconomic rights litigation and jurisprudence are therefore likely to be particularly fertile jurisdictions for human rights-based climate cases in future.
Global South countries that have led the way in socio-economic rights litigation and jurisprudence are likely to be particularly fertile jurisdictions for human rights-based climate cases in future.
In the Global South, the type of remedies available may also be broader. For example, in South Asia, courts have a history of pressurizing the executive and legislature to promulgate instruments and set up supervisory mechanisms to monitor the efficacy of executive plans. This is reflected both in the Leghari case discussed above and in the Nepali Supreme Court’s 2015 decision to direct parliament to pass legislation on climate change.
The trend for bringing human rights-based climate change cases is likely to continue as governments come under increasing pressure to do more in this area, and as courts and human rights bodies elucidate and entrench the relationship between rights and climate change through caselaw. On 8 October 2021, the UN’s Human Rights Council voted 42–1 in favour of a resolution to recognize the right to a safe, clean, healthy and sustainable environment as a human right. While not legally binding, this political statement is likely to strengthen the basis of rights-based climate litigation before national courts, especially in countries where such a right is not explicitly recognized by domestic law. A General Comment on children’s rights and the environment with specific reference to climate change, which the UN’s Human Rights Committee is in the process of preparing, is likely to do the same.
Whereas to date most rights-based cases have been brought on the basis of substantive obligations rather than procedural issues, we are likely to see more cases raising procedural questions. This will include challenges to governments on the basis of the right to access information, the right to access justice or the right to participation. In a recent procedural challenge in the UK case of R (Plan B Earth & others) vs Secretary of State for Transport (2018), the applicants argued that the government should have considered the Paris Agreement goals in its policy framework for the expansion of Heathrow Airport.
Growth in cases brought by youth activists
It is striking how many rights-based cases – including Future Generations vs Minister of the Environment, Neubauer et al. vs Germany (2021) and Juliana – involve young people using the courts to hold governments to account for the effects of climate change, both now and for future generations. Grounding the cases in human rights enables litigants to highlight the disproportionate impact that the failure to tackle climate change is having on vulnerable groups, including children. Organizations mobilizing these litigation efforts are increasingly drawing the public into the litigation process.
In these claims on behalf of future generations, international human rights law is being invoked in a forward-looking way, distinct from the more linear, backward-looking responsibility model of typical human rights claims. Cases filed on behalf of young plaintiffs connect future human rights violations to the present by showing that people alive today will suffer the negative impacts predicted for 2050 and beyond. In Neubauer et al. vs Germany, the German Federal Constitutional Court, upholding the complainants’ challenge, stated that ‘fundamental rights [are] intertemporal guarantees of freedom’, positioning human rights as dynamic rather than static, and extending into the future as well as into the past.
Youth activists are also petitioning UN bodies (as in the case brought by Greta Thunberg and others cited above) and regional human rights courts. In The People vs Arctic Oil, an ECtHR case brought by six individuals aged 20–27, as well as Greenpeace and Young Friends of the Earth, the claimants are arguing that Norway’s oil drilling in the Arctic deprives young people of their future. In the high-profile ECtHR case of Duarte Agostinho and others vs Portugal and 32 other states, the six youth applicants allege not just violations of the right to life and right to privacy, but also discrimination against the youth, 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’.
If the case is held to be admissible by the court, the applicants will argue that the respondent states share a responsibility for dangerous climate change that, on its current trajectory, far exceeds the Paris Agreement’s 1.5°C target and may expose them to the possibility of living to see as much as 4°C of global warming. This argument puts the burden on the respondent states to demonstrate the adequacy of their climate change mitigation efforts. The outcome of the case will set the tone, not just for the ECtHR’s approach to climate change, but for all 47 contracting states within the Council of Europe.