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Climate Change and Human Rights – Has a Tipping Point Now Been Reached?

Climate Change and Human Rights – Has a Tipping Point Now Been Reached?

Climate Change

This blog post is based on and updates the content of a talk given on 24 May 2021 as part of FTB’s quarterly programme of Environmental Seminars. The presentation can be viewed here.

Over the past five or so years, there has been what can only be described as a soar in the number of cases being brought around the world relating to climate change.  According to the most recent publication of “Global trends in climate litigation” (2021) (an annual “snapshot” publication produced by LSE’s Grantham Research Institute on Climate Change and the Environment and others), globally the cumulative number of climate change related cases has more than doubled since 2015 – whilst just over 800 such cases were filed between 1986-2014, over 1,000 of them have been brought in the last six years.  Perhaps that is not surprising, in light of how much time leading scientists are saying we have left to control emissions (i.e. the next 10 years will be crucial).

However, from a legal perspective, one trend that has been particularly marked (particularly within the last year or so) is the increasing reliance, in climate change litigation, on human rights-based arguments. The 2021 Global trends report notes (p.6) that over 100 human rights/climate change cases have been identified globally, with 29 of these cases having been filed in 2020 and a further five in the first half of 2021.  Before 2015 (pre the Paris Agreement), only 5 such rights-based climate change cases had been filed worldwide (see the previous 2020 Global trends report, p. 14).  Interestingly, these cases have been filed across the world, against governments and companies and in a myriad of venues (i.e. national courts, international courts and human rights committees).

Urgenda Foundation v State of the Netherlands (December 2019) is often considered to be somewhat of a watershed (although it was by no means the first rights-based climate change decision, see e.g. Leghari v Federation of Pakistan (2018)).  In short, the Dutch government was ordered by the Netherlands Supreme Court to raise its target for emissions reductions, with the case having been based on rights-based grounds (namely, Articles 2 and 8 of the European Convention on Human Rights (ECHR) (the details of the Urgenda decision are not discussed here, but if of interest see e.g. here).

What is startling is what we have seen in the past year and a half since the Urgenda decision.  The following is a sample list (only) of some of the cases brought, and decisions reached, since December 2019 raising human rights based arguments related to climate change (to reiterate again, it is by no means exhaustive (!)):

1.    Torres Strait Islanders (Torres Strait 8) (filed 2019) – UN Human Rights Committee 
2.    Saachi et al v Argentina et al (filed 2019) – UN Committee on the Rights of the Child 
3.    Agostinho et ors v Portugal et ors (filed 2020, decided October 2021) – European Court of Human Rights (ECtHR)
4.    Union of Swiss Senior Women for Climate Protection v Swiss Federal Council et ors (filed 2020) – ECtHR
5.    Climate Case Ireland (decision 2020) - Supreme Court of Ireland
6.    Association Oxfam France et ors v France (decision Feb 2021) - Paris Administrative Court
7.    Petition seeking to redress violations of the rights of children in Cité Soleil, Haiti (filed 2021) – Inter-American Commission on Human Rights
8.    Mex M v Austria (filed 2021) – ECtHR (ECHR)
9.    Neubauer et al v Germany (decision April 2021) – German Supreme Constitutional Court
10.  Plan B Earth et ors v Prime Minister (filed 2021) – the High Court of England and Wales
11.  Milieudefensie et al v Royal Dutch Shell (decision May 2021) – the Hague District Court

Without going through all of these in details, a few takeaways are worth noting:

  • Firstly, cases are being brought both in domestic and international courts, as well as before international human rights bodies.  However, interestingly in terms of the latter, just this month the UN Committee on the Rights of the Child published its decisions in the Saachi et al v Argentina et al matter – a communication brought by Greta Thunberg and 15 other children against 5 countries on grounds that their failure to take sufficient action to cut emissions violated the communicants’ rights under the UN Convention on the Rights of the Child.  The Committee found the communication to be inadmissible because of a failure to exhaust domestic remedies (notwithstanding the Committee found that the authors of the communication had (for purposes of establishing jurisdiction) sufficiently shown that the impairments of their rights as a result of the State parties’ acts and/or omissions relating to emissions in their territory was reasonably foreseeable).  I.e. the Committee signalled that this case was not ready to be brought before an international human rights body – it needed to go through domestic legal processes first. 
     
  • Secondly, there have been some recent and significant “wins” for claimants. Most notably, see:

(1)    Association Oxfam France et ors v France – said by some to be the “case of the century” - in which the Paris Administrative Court found that France had failed to fully meet its goals in reducing emissions (and, more recently last week, ordered the State to take immediate and concrete actions to comply with its commitments on cutting emissions and repair the damage caused by its inaction by December 31, 2022).
(2)    Neubauer et al v Germany – a decision of the German Supreme Constitutional Court, agreeing with the claimants that the German government’s measures in the Climate Protection Act 2019 were insufficient to protect future generations, thereby violating their human rights (for more details see eg. here).  The German government responded quickly saying there would be a swift change in the law.
(3)    Milieudefensie et al v Royal Dutch Shell – a decision of the District Court of the Hague following a lawsuit brought by several environmental NGOs led by Friends of the Earth Netherlands, along with 17,000 co-plaintiffs.  The court ordered Shell to reduce its CO2 emissions by 45% from 2019 levels by 2030, making its order provisionally enforceable so that Shell is required to meet it even pending any appeal.  The case is one of the first times any court has imposed a duty on a company to take action in relation to its contribution to climate change.  However, do note that Shell has confirmed that it will appeal the decision (see here).

  • Thirdly, many of these cases are raising interesting connections between health impacts and climate change, as well as relying on tangible evidence of how climate change is specifically impacting on the plaintiffs’/claimants’ human rights:
    • For example, the Petition seeking to redress violations of the rights of children in Cité Soleil, Haiti – which relates to toxic trash disposal in the residential district of Cité Soleil which has been causing various health risks, most acutely affecting children – considers the impact of climate change in exacerbating the harms to children through inter alia the exacerbation of waterborne diseases.  
    • Mex M v Austria – a case filed in the ECtHR earlier this year – concerns an Austrian citizen who has a temperature-dependent form of Multiple Sclerosis that will only get worse as temperatures increase.  
    • In Agostinho et ors v Portugal et ors the claimants have highlighted how heat waves and past (and expected future) wildfires in Portugal have impacted on their lives, including their experiences of reduced energy levels, difficulty sleeping and climate anxiety, as well as restrictions in their freedom to spend time outdoors during heatwaves.  

All of this is in a wider context in which courts have shown a willingness to tackle the science, for example in Urgenda the court relied on, and was willing to accept, the scientific and international consensus on what degree of action needed to be taken, drawing particularly on the IPCC reports (see the decision at eg. 7.2.7 and 7.2.11).
 

  • Fourthly, courts have been recognising, and grappling with, the particular complications associated with the need for collective (and global) action to address climate change.  Perhaps this might have been considered a potential stumbling block for legal actions that seek to hold individual actors (i.e. individual states) responsible in the courts. However it seems that courts are willing to recognise that each actor still needs to do “its part”, see e.g. Urgenda at 8.3.4 of the decision (emphasis added):

This case involves an exceptional situation. After all, there is the threat of dangerous climate change and it is clear that measures are urgently needed, as the District Court and Court of Appeal have established and the State acknowledges as well (see 4.2-4.8 above). The State is obliged to do ‘its part’ in this context (see 5.7.1-5.7.9 above). Towards the residents of the Netherlands, whose interests Urgenda is defending in this case, that duty follows from Articles 2 and 8 ECHR, on the basis of which the State is obliged to protect the right to life and the right to private and family life of its residents (see 5.1-5.6.4 and 5.8-5.9.2 above). The fact that Annex I countries, including the Netherlands, will need to reduce their emissions by at least 25% by 2020 follows from the view generally held in climate science and in the international community, which view has been established by the District Court and the Court of Appeal (see 7.2.1-7.3.6 above). The policy that the State pursues since 2011 and intends to pursue in the future (see 7.4.2 above), whereby measures are postponed for a prolonged period of time, is clearly not in accordance with this, as the Court of Appeal has established. At least the State has failed to make it clear that its policy is in fact in accordance with the above (see 7.4.6 and 7.5.1 above).

Similarly, and more recently, in the Saachi et al v Argentina et al decision, the UN Committee on the Rights of the Child made the following finding on State party’s individual responsibility in relation to each of the communications (albeit in the context of assessing jurisdiction only):

In accordance with the principle of common but differentiated responsibility, as reflected in the Paris Agreement, the Committee finds that the collective nature of the causation of climate change does not absolve the State party of its individual responsibility that may derive from the harm that the emissions originating within its territory may cause to children, whatever their location.

  • Fifthly, it is worth noting how the courts have been handling these cases procedurally.  Taking the Agostinho case as one example, the European Court of Human Rights fast-tracked the case in October 2020 (one month after it was filed) and refused (in February 2021) to reverse that fast-tracking decision (see case timeline here).  Similarly, in Union of Swiss Senior Women for Climate Protection v Swiss Federal Council et ors the European Court of Human Rights communicated the case to the Swiss government in March this year, affording the case priority status and requiring a response from the government by July 2021.  It appears, from all of this, that the courts may be recognising – not only in their substantive decisions (see the first two sentences in the quote from Urgenda above) but also through their procedural decision-making - the urgency of the situation.

Conclusions
Overall, there has clearly been considerable growth over recent years in the numbers of rights-based climate change cases that are being brought around the world.  Many, if not most of these, have been based on alleged infringements of basic human rights, such as the right to life (Article 2 of the ECHR).  There have also been some significant wins for claimants over the past year, albeit these have all been domestic court decisions and it remains to be seen how international courts, such as the European Court of Human Rights, will consider the issue.  It is certainly “one to watch” for anybody interested in, or practising in, environmental law.

Merrow Golden is a barrister at Francis Taylor Building specialising in environmental, planning and public law.

For anybody interested in the use of a rights-based approach in environmental law more generally and the question of whether a “right to a healthy environment” should be recognised internationally, see also the recent ELB post here by current Pupil Barrister at FTB, Mark O’Brien O’Reilly. For a recent domestic example, see the casenote on R (on the application of Richards) v Environment Agency [2021] EWHC 2501 (Admin) also published on this blog.

(*Special thanks to those behind the Climate Change Litigation Databases (available here). An incredibly useful resource for anybody interested in climate change litigation developments around the world.)