Human Rights and Climate Change
The previous post referred to the view that fundamental law “already includes our obligations towards the future interests of people living now or of people who will live in the future.” (Behrendt, 2024). Legal obligations towards future generations were seen as grounded in the human rights expressed in texts such as the EU Charter of Fundamental Rights and the Universal Declaration of Human Rights.
Olsson
(2023) examined the relation between Climate Change and Human Rights in the
context of the European Convention on Human Rights, giving prominence to Article
2 which establishes the right to life and Article 8 which states that everyone
has the right to respect for private and family life, home and correspondence
and referring to Article 34, which addresses the nature of victimhood in
climate change. She cited three cases which were pending at the time of writing
but have now been decided: KlimaSeniorinnen v. Switzerland, Carême v. France,
and Duarte Agostinho and Others v. Portugal and 32 Other States. She argued
that the “living instrument” doctrine which allows human rights protections to evolve
in response to societal and technological changes gave the European Court of
Human Rights a foundation on which to “acknowledge and confront the
multifaceted global impacts of climate change.”
European
climate litigation cases are reviewed by Eckes (2024) who listed a range of
climate related cases brought before the European Court of Human Rights (ECtHR),
some of which will be outlined below. Information on climate change cases more
generally is available from Climate Change Litigation Databases (CCLD, 2024a).
Urgenda was
the first climate case to succeed against a State. The Urgenda Foundation, an
environmental organisation, and 896 Dutch citizens commenced proceedings
against the Dutch State in 2013, seeking an order requiring it to reduce GHG
emissions in accordance with international obligations. The Hague District Court found in
favour of the Plaintiffs in 2015 and ordered that the State reduce its GHG
emissions to 25% by 2020. The State lodged an appeal to the Supreme Court which
was rejected in December 2019, and the State was ordered to immediately reduce
its greenhouse gas (GHG) emissions to 25% by 2020 in accordance with its human
rights obligations. The Court’s decision was grounded predominantly on human
rights obligations (Lutak, 2020).
Urgenda was
followed by a case brought by Friends of the Irish Environment in 2020. The Irish
Supreme Court held the Government of Ireland accountable for its inaction on
climate change, but Eckes describes this ruling as on “narrow legal grounds of ultra
vires action” rather than on human rights grounds, and so it “did not
bolster the potential of human rights as a basis for future climate litigation”.
The case of Neubauer
originated in a legal challenge to Germany’s Federal Climate Protection Act brought
by a group of German youth who argued that the national greenhouse gas
emissions reduction target was insufficient. The case was decided in 2021, and Eckes
considers that it “differs from Urgenda in the role of human rights at least in
two important respects”: while there was a human rights violation, the German
Constitutional Court did not conclude that a duty of care was infringed; the
Court also considered that the temperature goals in the national climate
protection act could be relied on.
Eckes
described some cases which were only partially successful. The commune of Grande-Synthe
alleged in 2020 that the French government had not taken enough action to
reduce greenhouse gas emissions to fulfil its commitments in domestic and
international law. The Conseil d'État ruled in 2021 that the French government must act to
comply with the objectives of the Paris Agreement, and in 2023 found that
government action had not been sufficient and so decided to monitor future
compliance. A second case in France was that of Notre Affaire à Tous which
sought to hold the French State to its obligations under the 2015 Paris
Agreement. The court ordered an investigation before ruling on the plaintiff’s
request, and when this was complete “the court ordered France to take immediate
and concrete actions to comply with its commitments on cutting carbon emissions
and repair the damages caused by its inaction ... The court further ruled that
France had exceeded its emissions budget between 2015-2018, and that it must
compensate for these excess emissions by further reducing emissions planned
between 2021 and 2022” (Mougeolle, P., 2021).
In Belgium Klimaatzaak
(climate case) was brought in 2015 by an organization of concerned citizens,
along with 58,000 citizen co-plaintiffs. Their argument was that Belgian public
authorities had undertaken insufficient climate action and they called for more
aggressive measures to reduce greenhouse gas emissions. Their claim was based both on alleged
civil liability of a public authority and alleged violation of human rights,
Articles 2 and 8 of the European Convention on Human Rights Articles 6 and 24 of
the International Convention on the Rights of the Child. Eckes reported that
the Court of First Instance in Brussels agreed in 2021 that “the global
dimension of the climate emergency could not absolve the Belgian state from its
responsibility” and in 2023 the Brussels Court of Appeal ordered the relevant
authorities to make significant reductions in greenhouse gas emissions
(Klimaatzaak, 2024)
In the UK
Net Zero Strategy case, the judges stressed the “lack of concretization,
explanation, and quantification of how the government’s plans would achieve the
emissions targets set out by the legislature” and found that the Government’s
plan had failed to meet its obligations under the Climate Change Act of 2008. The
Department for Business, Energy, and Industrial Strategy was ordered to
present, by April 2023, a report explaining “how the government’s policies in
the net zero strategy would contribute towards emissions reductions.” (Eckes).
Eckes also
noted some failed cases. Plan B is a UK charitable foundation which together
with Friends of the Earth brought a legal case against the UK Government on the
grounds that the proposed expansion of Heathrow airport was incompatible with
the Paris Agreement of 2015. In 2020 the Supreme Court gave permission for a third
runway, overturning an earlier ruling that the Government had failed to take
account of its own climate commitments when it approved the scheme. It found
that the Paris Agreement had been acknowledged by the Secretary of State;
however, according to Lord Sales he was “not legally required to give it more
weight than he decided was appropriate, in line with the advice of the
Committee on Climate Change.” (ITV, 2020). Duarte Agostinho and Others v.
Portugal and 32 Other States refers to a complaint filed with the European
Court of Human Rights in 2020 by six Portuguese youth. It “alleges that the
respondents have violated human rights by failing to take sufficient action on
climate change and seeks an order requiring them to take more ambitious action”
(CCLD, 2024b). The ECHR fast-tracked the case, which attracted considerable
support, but in 2024, the European Court declared the application inadmissible
as territorial jurisdiction was only established in respect of Portugal,
and the applicants had failed to exhaust
domestic remedies in Portugal. Carême v. France references an application
introduced in 2019 by the former mayor of the city of Grande-Synthe which is in
a part of France considered at very high risk of exposure to climate risks. The applicant asked the Council of State to
cancel the Government's refusal to take additional measures to meet Paris
Agreement objectives. In 2021 the Council of State found for the claimants and ordered
the Government to take additional mitigation measures. In 2024, the European
Court declared the application inadmissible as the applicant had moved away
from France and could no longer claim victim status (CCLD, 2024c).
Natur og
Ungdom is a Norwegian youth environment protecting organisation, which together
with Greenpeace brought a case opposing the national executive’s decision to
grant petroleum licences, citing non-compliance with Article 112 of the
constitution. The court argued that this Article which “guarantees the right to
a healthy environment could only be invoked if the state failed to shoulder
responsibility for the environment and climate” and dismissed the case in 2022.
In 2023 the two environmental organisations sued the Norwegian state, “arguing
that the government's green light to develop the Tyrving, Breidablikk and
Yggdrasil fields had not been preceded by sufficient climate impact studies”
and in January 2024 the “Oslo district court sided with the two groups” (The Local, 2024). The Norwegian government has appealed
against the decision.
The
association Czech Climate Litigation (Klimatická žalobačr) “brings together 285
Czech residents who are concerned about the state’s inaction on climate
protection” (Klimatická, 2024). Their lawsuit was filed with the Municipal
Court in Prague in 2021 and accused the Czech Government and relevant
ministries of insufficient emission reduction and adaptation to climate change
and demanded additional measures. In 2022 the Municipal Court ordered the
responsible ministries to take additional measures: Klimatická comments on its
website: “Unfortunately, there is no protection against the ministries ignoring
an administrative judgment in the Czech legal system.” In early 2023 the Supreme
Administrative Court overturned the judgment and returned the lawsuit to the
Municipal Court. Later that year the Municipal Court sided with the Supreme
Administrative Court and dismissed the lawsuit. A decision on a second appeal is
expected during 2024.
In 2022,
Greenpeace and the Finnish Union for the Conservation of Nature filed Finland’s
first climate case. They claimed that the Finnish Government had breached its
obligations under Finland’s 2022 Climate Change Act, which includes the target
for Finland to become carbon neutral by 2035 (CCEEL, 2023a). The Supreme
Administrative Court of Finland gave its decision in June 2023 finding the
appeal against the Finnish Government to be inadmissible on procedural grounds.
“Although the outcome was disappointing from the perspective of the NGOs, the
Court’s reasoning as well as the dissenting opinion attached to the decision
stress the link between climate change and human rights. Overall, the Court’s
decision contains positive, even ground-breaking elements in context of the
Finnish legal system” (CCEEL, 2023b).
KlimaSeniorinnen
v. Switzerland has been described as a landmark European Court of Human Rights
case. In 2016 a group of senior women filed suit against various bodies of the Swiss Government
alleging that it “had violated articles 10 (right to life), 73 (sustainability
principle), and 74 (environmental protection) of the Swiss Constitution and by
articles 2 and 8 ECHR” (CCLD, 2024d). In 2020 “After having exhausted all
national remedies available … [they] took the Swiss government to the European
Court of Human Rights because their health is threatened by heat waves made
worse by the climate crisis.” In 2024 the court ruled that Switzerland violated
the European Convention on Human Rights by failing to adequately address
climate change.
In view of
the urgency of addressing climate change, the time taken to decide some of the
cases outlined above may seem discouraging, but it could be argued that merely
to bring to court a case relating climate action to human rights can
concentrate minds, not only in governments but in organisations responsible for
GHG emissions. The World Economic Forum published an article on research by the
Columbia Law School, commissioned by the United Nations Environment Programme,
which documented the growth of climate litigation worldwide, and indicated its
potential for combating the climate crisis. The WEF writer commented that “Lawyers
may seem unlikely allies in the fight against the climate emergency but … they
are playing an increasingly important role in holding corporations and
governments accountable for failures to tackle the climate crisis” (WEF, 2023).
References
Behrendt,
S., 2024, Facing the Future: Conceiving Legal Obligations Towards Future
Generations, Politics and Governance, online, accessed 21 May 2024
https://www.cogitatiopress.com/politicsandgovernance/article/view/7839/3737
CCEEL, 2023a,
Finland’s first climate lawsuit: Watching the forest sink, The Center for
Climate Change, Energy and Environmental Law, online, accessed 10 June 2024
https://sites.uef.fi/cceel/finlands-first-climate-lawsuit-watching-the-forest-sink/
CCEEL,
2023b, Finland’s first climate judgment: Putting the government on notice, The
Center for Climate Change, Energy and Environmental Law, online, accessed 10
June 2024, online, accessed 10 June 2024
https://sites.uef.fi/cceel/finlands-first-climate-judgment-putting-the-government-on-notice/
CCLD, 2024a,
Climate Change Litigation Databases, Sabin Center for Climate Change Law, online, accessed 8 June 2024
CCLD, 2024c,
Carême v. France, Climate Change Litigation Databases, Sabin Center for Climate
Change Law, online, accessed 11 June 2024,
https://climatecasechart.com/non-us-case/careme-v-france/
CCLD, 2024d,
Association of Swiss Senior
Women for Climate Protection v. Federal Department of the Environment
Transport, Energy and Communications (DETEC) and Others, Climate
Change Litigation Databases, Sabin Center for Climate Change Law, online,
accessed 11 June 2024
Eckes, C.,
2024, Constitutionalising Climate Mitigation Norms in Europe, in Constitutionalism
and Transnational Governance Failures, Petersmann, E-U. and Steinbach, A. (eds),
World Trade Institute Advanced Studies, Leiden, Brill, Nijhoff, online, accessed 7 June 2024
https://cadmus.eui.eu/handle/1814/76709
ITV, 2020, Heathrow
Airport: Supreme Court gives go-ahead to third runway after legal challenge,
ITV, online, accessed 10 June 2024
Klimaatzaak,
2024, The lawsuit in which everyone wins, Klimaatzaak, online, accessed 10 June
2024
Klimatická,
2024, Czeck Climate Litigation, online, accessed 10 June 2024
https://www.klimazaloba.cz/en/
Lutak, O.,
2020, The Urgenda decision: The landmark Dutch climate change case, leidenlawblog,
online, accessed 8 June 2024
https://www.leidenlawblog.nl/articles/the-urgenda-decision-the-landmark-dutch-climate-change-case
Mougeolle,
P., 2021, The Success and Remaining Challenges of French Climate Litigation,
Oxford Human Rights Hub, online, accessed 10 June 2024
https://ohrh.law.ox.ac.uk/the-success-and-remaining-challenges-of-french-climate-litigation/
Olsson, E.,
2023, Greening the European Convention on Human Rights A Study on the
Intersection of Climate Change and Human Rights in the European Court of Human
Rights, master’s thesis, online, accessed 7 June 2024
https://gupea.ub.gu.se/bitstream/handle/2077/79888/olssonevelina_108596_8122253_Evelina_Olsson-1.pdf
The Local,
2024, 'A big win for the climate': Greenpeace celebrates victory over Norway, The
Local No, online, accessed 7 June 2024
https://www.thelocal.no/20240118/a-big-win-for-the-climate-greenpeace-celebrates-victory-over-norway
WEF, 2023, UN
says climate litigation has doubled in the past 6 years, World Economic Forum,
online, accessed 13 June 2024
https://www.weforum.org/agenda/2023/08/legal-action-fighting-climate-crisis/
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