Climate in the courtroom
4th February 2021
Climate change is one of the most urgent issues of our time. As a result, there has been an explosion of climate litigation since 2015. This litigation frames climate change as a threat to human rights. The uptake in cases can be seen as a direct consequence of inaction by governments on the issue. As of May 2019 more than 1,300 climate related litigation has been identified in global climate litigation spanning over 28 countries and 4 supranational jurisdictions. This number will continue to rise if inaction persists.
The first case to articulate a human rights-based approach to climate change was Leghari v Pakistan. In this case, a Pakistani farmer affected by climate change sued the national government of Pakistan for failure to implement the Climate Change Policy 2012 and the associated implementation framework. The legal argumentation was based on Pakistan’s constitution. He argued that failure to adopt the plan breached his fundamental constitutional rights, including the right to life and inviolability of human dignity. The Court found in his favour and acknowledged that while Pakistan was not a major global emitter, strong action was needed in order to allow for climate justice which requires global accountability. As a result of this case, a climate change commission was created and concrete goals were set for long term actions. This case inspired others in different jurisdictions.
Possibly the most famous case it inspired is that of Urgenda. In Urgenda it was argued using a human rights framework that the Dutch state was obliged to reduce emissions by at least 25% compared to 1990 levels. This was required in order to prevent a violation of the right to life and the right to respect for private and family life pursuant to A.2 and A.8 of the European Convention on Human Rights (ECHR). The governments’ arguments that the risks are not specific enough, of a global nature and the ECHR does not specifically protect a right to a healthy environment were all rejected by the court. They were rejected as there was a common ground on the basis of reductions needed which was reflected in the IPCC climate reports and the Paris Agreement. The Supreme court also reached their conclusion by stating that A.2 and A.8 could be argued in the domestic court and meant that the state has positive obligations to take measures against the risk of dangerous climate change. The outcome of the case was that the court required the Dutch state to take measures to reduce its greenhouse gas emissions in line with international standards. The implementation of this plan remains within the government powers, therefore upholding the separation of powers doctrine. As the case was heard in the Dutch Supreme court there is no binding effect beyond the Netherlands however it has had influence in other countries.
This influence was seen in Climate case Ireland. This case argued that Ireland’s national mitigation plan to tackle climate change was inadequate and did not comply with law as it did not set out how the state would transition to a low carbon economy by 2050, in-line with the climate action and low carbon development act 2015. The applicants also argued, inspired by Urgenda that the mitigation plan violated human rights, namely A.2 and A.8 of the ECHR. The case won on the legality ground at the Supreme Court but failed on the human rights argumentation. The failure of human rights basis was directly linked to the issue of standing. Standing is a procedural requirement and refers to the courts competence to hear and review a case. Without it a case cannot proceed. As Ireland does not allow a petition by individuals on behalf of a public interest and a particular individual was not joined to the case the human rights argument was rejected. The Court did leave the door open for a case to be taken by an individual applicant in the future as they stated that the arguments would have been considered had an individual been joined to the proceedings. This may not be accessible to most due to the prohibitive costs of the Irish legal system. So, although the case was won it was not on the basis of the human rights approach which has been highlighted in other cases.
European Court of Human Rights by CherryX on Wikipedia Commons
Cases are therefore not always successful based on human rights argumentation. This can be seen in the recent case of the People v Arctic Oil. This case was taken by Greenpeace Nordic Association and Nature and Youth (Young Friends of the Earth Norway) and reached the Supreme Court. It primarily challenged the grant of licenses to oil and gas companies to explore additional petroleum in the South Barents Sea. The applicants argued that allowing this exploitation was a failure to protect human rights, namely the right to a healthy environment enshrined in the constitution. The Supreme court ruled that Norway had not violated these rights when they handed out licenses for oil and gas exploration in 2016. The court stated that there was enough of a link between the granting of licenses and the breach of human rights as there was no real and immediate risk of harm to life and no direct and immediate link between the decision and the resulting harm. This case has been criticised as a failure of the Supreme Court to protect the environment and uphold the constitution. Greenpeace has stated that they are now considering an application before the European Court of Human Rights.
The European Court of Human Rights is the strictest regional regime in terms of standing before the court. In order to bring a case, one must show that they are a victim personally affected and the violation of rights must have occurred unless there are exceptional circumstances. This means that groups of people and communities who are affected by climate change cannot bring claims under the ECHR without showing that there is or will be a direct serious impact on a particular person. This is obviously problematic in climate cases where the impacts are not well defined and are felt by everyone equally.
However, there is hope that the court will begin to take climate change cases. Currently, there is a case pending before the European Court in which six young children and young adults from Portugal have issued an application against 33 Council of Europe Member states in respect of the profound impact that climate change is having on them (Youth4climate). Climate litigation is a powerful way for younger generations to have a voice in policy when they are not of age to vote.
The case goes beyond national level and alleges that the states share responsibility for existing and future harms caused by climate change and that the court should analyse whether states are doing their ‘fair share’ to mitigate climate change impacts. The case also takes a human rights-based approach and argues under A.2, A.8 and A.14 (right to be free from discrimination- in this case age discrimination) of the convention. When the case was communicated to the Court, the Court also stated that the right to freedom from ill-treatment under A.3 may also be applicable. This would be the first time A.3 on ill treatment would be considered in relation to a climate issue.
The court has communicated the case to the defendant countries and a response is expected by February 2021. It is predictable that the governments will challenge this case, especially with regard to standing. The case shows that creative legal thinking is needed when there are inconsistencies in how domestic courts are applying the ECHR. If the case is successful, it will provide a baseline and consistent way for states to interpret their positive obligations in terms of climate change mitigation. Time will tell what will happen.
When considering the impact of these cases, it should be borne in mind that they are not the silver bullet to solving the climate crisis. A multifaceted approach is needed if climate change is to be dealt with in a holistic manner. These cases are only one piece of the puzzle.
Featured photo by United Nations Photo on Flickr