By Maria Antonia Tigre
The last few days saw two major developments in international rights-based climate litigation, with the adoption of a new resolution by the United Nations Human Rights Council (HRC) and a long-awaited decision on a climate case by the Committee on the Rights of the Child (CRC). This post takes note of the progressive development of human rights and the environment, and climate change, in particular, while placing them within the broader context of rights-based climate litigation.
Recent Developments on rights-based climate litigation
On October 8, 2021, at the HRC’s 48th session, forty-three nations adopted resolution 48/13, recognizing the right to a safe, clean, healthy, and sustainable environment as a human right. The resolution is a landmark moment in a years-long evolution – at the HRC, within the Office of the High Commissioner of Human Rights, in the work of the Special Rapporteur on human rights and the environment, elsewhere around the United Nations, and in advocacy and legal scholarship. While the resolution is not legally binding, it represents a significant political statement that could shape global standards. In particular, the recognition can embolden stakeholders and courts, to adopt a rights-based approach to climate litigation. On October 12, 2021, the CRC published its decision in Sacchi et al. v. Argentina et al. (dated September 22, 2021). While the CRC rejected the youth petitioners’ claim as inadmissible, it found that each State has duties to address climate harm outside its own territory, and therefore can be held responsible for the negative impact of its carbon emissions on the rights of children within and outside its territory.
The rise of rights-based climate litigation
After the adoption of the Paris Agreement, which included a notable recognition of the human rights dimensions of climate change, courts have seen a rights turn in climate litigation. A rights-based approach provides the missing link between international promises and domestic action, and has prompted courts worldwide to demand increased ambition from governments. Indeed, human rights and climate change cases are growing exponentially. According to one study, over 90% of cases brought since 2015 outside the United States have been argued on human rights grounds. A limited few have reached a decision, with the majority still pending. Most cases rely on “traditional” human rights, such as the right to life, health, and human dignity. Although the right to a healthy environment has been recognized in the constitutions of over 100 countries, only a limited number of decisions that demanded increased climate action were specifically grounded on the right to a healthy environment.
For example, in Urgenda Foundation v. State of the Netherlands, the Dutch Supreme Court found an obligation of the Dutch government to protect the rights to life, private and family life from the threat of climate change. In Neubauer, et al. v Germany, the constitutional complaint argued that a fundamental right to an ecological minimum standard of living requires the German government to increase its climate ambition. Though the German Federal Constitutional Court ruled in favor of the petitioners it failed to address this particular argument.
The decisions in which a high court specifically relied on the right to a healthy environment to call for additional climate action from a government arise in the Global South. In Leghari v. Federation of Pakistan, the Lahore High Court found that the citizen’s fundamental rights, such as the right to life (which according to the court in this case includes the right to a healthy and clean environment and the right to human dignity), were infringed by the government’s climate inaction. The court noted that climate justice links human rights and development to achieve a human-centered approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly.
In Future Generations v. Ministry of the Environment and Others, the Colombian Supreme Court found that the deforestation of the Amazon rainforest and its contribution to climate change infringed the constitutional right to a healthy environment of present and future generations, and that the environmental rights of future generations demand environmental commitments from the state in order to take care of and promote stewardship of natural resources for the future. In Shrestha v. Office of the Prime Minister et al., the Nepalese Supreme Court found that the absence of a climate change law infringed the constitutional right to a clean environment, and that the right to a clean environment specifically requires the Nepal government to take climate mitigation and adaptation action.
HRC’s Resolution 48/13: potential impact for future climate litigation
The recognition of the right to a healthy environment by the HRC could bolster similar decisions in other jurisdictions around the globe. The resolution references climate change in the preamble of the declaration, where the HRC recalls prior climate change multilateral environmental agreements, bringing the obligations made in the international climate change framework to the realm of the progressive developments made here; recognizes that the impact of climate change interferes with the enjoyment of a clean, healthy and sustainable environment; and notes that climate change, environmental degradation and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy human rights, effectively reinforcing the importance of the inter-linkages of climate change and human rights. While the language adopted in the recognition of the right to a healthy environment does not extend it to future generation, the inclusion of future generations in the preambulatory language is significant. Despite these limited references to climate change, the resolution effectively brings environmental concerns – and climate change specifically – into the realm of human rights law.
The HRC resolution included an invitation to the General Assembly (UNGA) to consider the matter. A future resolution by the UNGA could reach a more comprehensive range of countries since it involves all 193 UN nations, as opposed to the forty-seven who are members of the HRC. The establishment of the right to water (resolution 64/292) underwent a similar process. In addition, the HRC adopted resolution 48/14, establishing a Special Rapporteur on the human rights impacts of climate change. The Special Rapporteur will have the mandate to identify how the adverse effects of climate change affect the full and effective enjoyment of human rights and work to strengthen the integration of human rights concerns in climate change policy. The Special Rapporteur should be appointed in the coming months.
Decision by the CRC
Sacchi et al. v. Argentina et al. was brought by 16 children and youth against five States (Argentina, Brazil, France, Germany, and Turkey) in 2019. The claimants argued that the States violated the Convention on the Rights of the Child and their rights to life, health, and culture, by not taking effective actions to reduce their carbon emissions. The CRC issued five mainly identical decisions, one for each State involved, addressing the issues of jurisdiction, extraterritorial responsibility, and exhaustion of local remedies.
The Committee accepted the claimants’ arguments that States are legally responsible for the harmful effects of emissions originating in their territory on children outside their borders. The fact that all states are causing climate change does not absolve states of individual responsibility to reduce their own share of emissions. The Committee also found that the youth are victims of foreseeable threats to their rights to life, health, and culture. The CRC’s prior Joint Statement on Human Rights and Climate Change had already expressed the risks posed by climate change to the enjoyment of rights protected by the Convention, and clarified that failure to prevent foreseeable human rights harm caused by climate change, or to regulate activities contributing to such harm, could constitute a violation of States’ human rights obligations.
On the matter of jurisdiction, the CRC said that communications may only be submitted by those “within the jurisdiction of a State party, claiming to be victims of a violation by that State party.” While neither the Convention nor the Optional Protocol make reference to “territory,” extraterritorial jurisdiction should be interpreted restrictively. However, the Committee noted that the communication raises novel jurisdictional issues of transboundary harm related to climate change.
Following the reasoning of the Inter-American Court of Human Rights (IACtHR)’ 2017 advisory opinion, the CRC found that countries have extraterritorial responsibilities related to carbon pollution. The IACtHR noted that when transboundary harm affects treaty-based rights, it is understood that the persons whose rights have been violated are under the jurisdiction of the State of origin, if there is a causal link between the act that originated in its territory and the infringement of the human rights of persons outside its territory. Jurisdiction arises when the State of origin exercises effective control over the activities that caused the damage and consequent human rights violation and is in a position to prevent them from causing transboundary harm. (See more here). As such, when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated if there is a causal link between the acts or omissions of the State in question and the negative impact on the rights of children located outside its territory, when the State of origin exercises effective control over the sources of the emissions in question.
While the Committee said that the children had shown, for jurisdictional purposes, that the impairment of their rights as a result of the State party’s acts or omissions regarding the carbon emissions originating within its territory was reasonably foreseeable, it held that the complaint was inadmissible for a failure to exhaust local remedies.
The Committee had announced earlier this year that it is drafting a general comment on children’s rights and the environment with a special focus on climate change (see here). This development also follows the HRC’s 2020 resolution calling on States to recognize the right to a healthy environment in their national legislation and to ensure, in particular, children’s rights (see more here).
Relevance for future claims
Taken together, these developments provide further support for a rights-based approach to the climate crisis. The recognition of a healthy environment as a human right by the HRC – and specifically how the impacts of the climate crisis affect human rights – broadens the reach of legal mechanisms available to prompt a more active role from governments, as well as other stakeholders, such as private companies, to adopt measures to mitigate climate change, and adapt to it. This recognition puts to rest a decades-long debate on the status of environmental rights at the international level.
As a result, more domestic courts may find a breach of the right to a healthy environment through government inaction, similarly to the decisions cited here. The HRC resolution also arguably allow for a wider range of responses to noncompliance at the international level. While regional human rights courts (see e.g., Duarte Agostinho and Others v. Portugal and 32 Other States, Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others, Arctic Athabaskan petition) and UN special procedures (e.g., Teitiota communication, Torres Strait Islanders petition) have been prompted to respond to climate claims, the recognition by the HRC – and potentially by the UNGA in the near future – reinforces the argument of the infringement of fundamental rights by the effects of climate change, potentially leading to new claims and perhaps even more decisions siding with the claimants.
The CRC’s decision might also impact rights-based claims worldwide, reinforcing the intergenerational equity aspect of climate claims. The decision has been heavily criticized by the claimants for failing to assign any responsibility to the States in question. However, the definition of jurisdiction and extraterritorial responsibility by the CRC is groundbreaking, especially considering the cross-fertilization of human rights courts and the role of the IACtHR’s advisory opinion in the reasoning by the CRC. Although exhausting local remedies can be a lengthy and cumbersome process, especially in the Global South where access to justice is in many instances quite challenging, future cases will eventually be able to meet the standards set by the Committee as the jurisdictional and causation issues establish a basis for future claims.