Ch. 15-International Human Rights by NYU Law Center for Human Rights and Global Justice

Chapter 15. Climate Change, the Environment and the Right to Development

In 1972, the UN Conference on the Human Environment, in Stockholm, proclaimed that the environment is essential to human ‘well-being and to the enjoyment of basic human rights – even the right to life itself’ (UN Doc. A/CONF.48/14/Rev.1 (1973), 3). This realization prompted many states to accord constitutional recognition to the right to live in a healthy environment, starting with Portugal (1976) and Spain (1978). In 1994 a UN Sub-Commission Special Rapporteur, Fatma Zohra Ksentini, proposed 27 ‘draft principles on human rights and the environment’, the second of which was that ‘all persons have the right to a secure, healthy and ecologically sound environment.’ (UN Doc. E/CN.4/Sub.2/1994/9). Governments took no action on her report.

But by 2022, the UN Special Rapporteur on human rights and the environment, David Boyd, reported that the right was recognized in the constitutions of 110 States and incorporated in national legislation in over 100 states (see UN Docs. A/77/284 (2022) and A/HRC/43/53 (2019)). It is also reflected in regional treaties ratified by 133 States, including the African Charter on Human and Peoples’ Rights, the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (1998) and its Inter-American counterpart, the Escazú Agreement (2018), the San Salvador Protocol to the American Convention, and the Arab Charter on Human Rights.

The culmination of these efforts was the recognition of a ‘human right to a clean, healthy and sustainable environment’ by the UN Human Rights Council in 2021 (Res. 48/13) and the General Assembly in 2022 (Res. 76/300).

Parallel to these developments, the existential threat to the planet and humankind posed by climate change has been on the international agenda since the 1992 UN Framework Convention on Climate Change (FCCC), supplemented first by the Kyoto Protocol of 1997, and then by the Paris Agreement of 2015. By 2024, there were 198 parties to the UNFCCC. A vital component in promoting informed awareness has been the work of the Intergovernmental Panel on Climate Change (IPCC), set up by the UN Environment Program and the World Meteorological Organization in 1988 to provide the best available scientific evidence to governments. In 2024, it consisted of 195 experts.

The IPCC’s 2023 Sixth Assessment Report confirmed that:

A.1 Human activities, principally through emissions of greenhouse gases, have unequivocally caused global warming … . [42 percent of cumulative net CO2 emissions between 1850 and 2019 occurred after 1990.]

A.2.1 It is unequivocal that human influence has warmed the atmosphere, ocean and land. … Evidence of observed changes in extremes such as heatwaves, heavy precipitation, droughts, and tropical cyclones, and, in particular, their attribution to human influence, has further strengthened since [the previous assessment in 2014]. Human influence has likely increased the chance of compound extreme events since the 1950s, including increases in the frequency of concurrent heatwaves and droughts … .

A.2.2 Approximately 3.3–3.6 billion people live in contexts that are highly vulnerable to climate change. Human and ecosystem vulnerability are interdependent. Regions and people with considerable development constraints have high vulnerability to climatic hazards. … Between 2010 and 2020, human mortality from floods, droughts and storms was 15 times higher in highly vulnerable regions, compared to regions with very low vulnerability. …

A.2.3 Climate change has caused substantial damages, and increasingly irreversible losses, in terrestrial, freshwater, cryospheric, and coastal and open ocean ecosystems (high confidence). Hundreds of local losses of species have been driven by increases in the magnitude of heat extremes (high confidence) with mass mortality events recorded on

land and in the ocean (very high confidence). Impacts on some ecosystems are approaching irreversibility such as the impacts of hydrological changes resulting from the retreat of glaciers, or the changes in some mountain (medium confidence) and Arctic ecosystems driven by permafrost thaw (high confidence).

Jeff Goodell, in The Heat Will Kill You First: Life and Death on a Scorched Planet (2023), at 18, puts the case in less technical terms:

The harshest truth about life on a superheated planet is this: as temperatures rise, a lot of living things will die, and that may include people you know and love. A study in The Lancet … estimated that 489,000 people worldwide died from extreme heat in 2019. That's far more than all other natural disasters combined, including hurricanes and wildfires. It is also more than the number of deaths from guns or illegal drugs. And those are only the deaths that are directly attributable to heat. There are also deaths caused by the heat-related amplification of ground-level ozone pollution (aka smog), or the smoke from wildfires in desiccated forests. The smoke can drift thousands of miles, lofting tiny particulates into the atmosphere. When you inhale them, they can trigger a variety of health problems, from asthma to heart attacks. The toll is enormous: globally, between 260,000 and 600,000 people die each year inhaling smoke from wildfires. …

Despite the overwhelming strength of the scientific evidence, over the past three decades, climate denialism, often funded and promoted by fossil fuel companies like ExxonMobil and other corporate interests, has flourished (see UN Doc. A/HRC/41/39, paras. 32-35). Misinformation campaigns, large-scale advertising efforts, political campaign contributions, intensive lobbying, and reinforcement from major media actors such as News Corporation and its Fox News outlet, have provided the material on the basis of which conservative politicians in many countries have opposed efforts to mitigate global warming. U.S. President Donald Trump called climate change a ‘hoax’.

Each year there is a Conference of the Parties (COP) to the FCCC to negotiate specific targets and commitments. In opening COP27 on 7 November 2022, UN Secretary-General, António Guterres, sought to ring the alarm bells:

We are in the fight of our lives. And we are losing. Greenhouse gas emissions keep growing. Global temperatures keep rising. And our planet is fast approaching tipping points that will make climate chaos irreversible. We are on a highway to climate hell with our foot still on the accelerator. … It is unacceptable, outrageous and self-defeating to put it on the back burner.

Except for an ‘in principle’ agreement to establish a ‘loss and damage’ fund to compensate poorer nations, the conference achieved little in concrete terms. At COP28 in 2023, the major achievement was acknowledging for the first time the need for ‘transitioning away from fossil fuels’, but governments stopped short of calling for a ‘phaseout’ of reliance on oil, coal and gas.

In retrospect, the human rights community has been slow to react to the threat posed by climate change, although the former UN High Commissioner for Human Rights, Mary Robinson, has long called for a human rights approach to climate change, and climate justice. In 2005 she argued that:

[W]e can no longer think about climate change as an issue where the rich give charity to the poor to help them to cope with its adverse impacts. Rather, this has now become an issue of global injustice that will need a radically different framing to bring about global justice.644

The OHCHR began issuing regular climate change reports in 2009 (UN Doc. A/HRC/10/61; and for 2023, see A/HRC/53/45). The major international NGOs showed little interest until recently. In 2015, Amnesty’s senior leadership team decided that ‘climate change was not … a priority in Amnesty’s strategic goals for 2016–

644 M. Robinson, ‘Climate Change and Justice’, Barbara Ward Lecture, London (11 December 2006).

2019’.645 And the Executive Director of Human Rights Watch from 1993 to 2022, Kenneth Roth, often suggested that human rights were of marginal relevance and added little to environmental and climate change concerns. 646 Some scholars also questioned the value of the linkage. Kathryn Sikkink noted that ‘climate change is one of the most pressing issues of our age, but it is not an issue where the framing in terms of human rights is particularly helpful.’647 Instead, in her view, the emphasis should be on the responsibilities of governments, corporations, and other actors.

The following report provides a snapshot of some of the human rights-related challenges:

PHILIP ALSTON, CLIMATE CHANGE AND POVERTY: REPORT OF THE SPECIAL RAPPORTEUR ON EXTREME POVERTY AND HUMAN RIGHTS UN DOC. A/HRC/41/39 (2019)

II. The scale of the challenge

3. David Wallace-Wells began The Uninhabitable Earth by observing that global warming “is worse, much worse, than you think”. Carbon is being added to the atmosphere 100 times faster than at any point in pre-industrial human history and more damage has been done in the three decades since the [IPCC was established] in 1988 than in the whole of human history up to that time.

4. The last five years have been the hottest in the modern record and global carbon dioxide emissions began rising again in 2017 after three years of levelling off. World energy consumption is projected to grow 28 per cent between 2015 and 2040. The consequences today are attested to by record temperatures, rapidly melting icecaps, unprecedented wildfires, frequent so-called “thousand year” floods and devastating, more frequent hurricanes. Millions face malnutrition due to devastating drought and many more will have to choose between starvation and migration. Rising ocean temperatures are killing marine ecosystems that support food systems for hundreds of millions of people and climate change is threatening food production and posing dire economic and social threats.

5. The most widespread scientific benchmark for measuring global warming is the rise in temperature relative to pre-industrial levels, already 1°C. The 2015 Paris Agreement aims to ensure no higher than a 2°C rise by 2100 and endeavours to limit it to 1.5°C, but even those increases would be catastrophic for many people.

6. A rise of only 1.5°C rather than 2°C could mean reducing the number of people vulnerable to climate-related risks by up to 457 million; 10 million fewer people exposed to the risk of sea level rise; reducing exposure to floods, droughts, and forest fires; limiting damage to ecosystems and reductions in food and livestock; cutting the number of people exposed to water scarcity by half; and up to 190 million fewer premature deaths over the century.

7. However, the scale of change required to limit warming to 1.5°C is historically unprecedented and could only be achieved through “societal transformation” and ambitious emissions reduction measures. Even 1.5°C of warming – an unrealistic, best-case scenario – will lead to extreme temperatures in many regions and leave disadvantaged populations with food insecurity, lost incomes and livelihoods, and worse health. As many as 500 million people will be exposed and vulnerable to water stress, 36 million people could see lower crop yields and up to 4.5 billion people could be exposed to heat waves. In all of these scenarios, the worst affected are the least well-off members of society.

III. The impact on human rights, poverty and inequality

A.Humanrights

645 Amnesty International 33rd International Council meeting, ‘Circular 10: human rights aspects of climate change’.

646 See, for example, K. Roth, ‘Discussion: Accountability Beyond States’, in C. Booth Walling and S. Waltz (eds.), Human Rights: From Practice to Policy (2010) 68; and, at http://bigthink.com/ideas/4064 (2007), he noted that ‘rhetorical rights language doesn’t add appreciable weight to the arguments against global warming’.

647 K. Sikkink, ‘Human Rights, Responsibilities, and Democracy’, 52 Vand J. Transnat’l L. (2019) 1315.

8. Climate change threatens the full enjoyment of a wide range of rights (A/HRC/31/52, paras. 23–32). Rapid action and adaptation can mitigate much of this, but only if done in a way that protects people in poverty from the worst effects.

9. According to the World Bank, at 2°C of warming, 100–400 million more people could be at risk of hunger and 1–2 billion more people may no longer have adequate water. Climate change could result in global crop yield losses of 30 per cent by 2080, even with adaptation measures. Between 2030 and 2050, it is expected to cause approximately 250,000 additional deaths per year from malnutrition, malaria, diarrhoea and heat stress….

10. People in poverty face a very real threat of losing their homes [on displacement, see A/HRC/56/47 (2024)] By 2050, climate change could displace 140 million people in sub-Saharan Africa, South Asia and Latin America alone. Flooding and landslides can weaken already degraded infrastructure and housing, especially for people living in unplanned or unserviced settlements. Since 2000, people in poor countries have died from disasters at rates seven times higher than in wealthy countries. In addition, the authorities have a history of prioritizing wealthier areas for protection, further endangering people in poverty.

B.Poverty

11. Climate change will … have the most severe impact in poor countries and regions, and the places where poor people live and work. Developing countries will bear an estimated 75–80 per cent of the cost of climate change.

12. People in poverty tend to live in areas more susceptible to climate change and in housing that is less resistant; lose relatively more when affected; have fewer resources to mitigate the effects; and get less support from social safety nets or the financial system to prevent or recover from the impact. Their livelihoods and assets are more exposed and they are more vulnerable to natural disasters that bring disease, crop failure, spikes in food prices and death or disability.

C.Inequality

14. Perversely, the richest people, who have the greatest capacity to adapt and are responsible for and have benefited from the vast majority of greenhouse gas emissions, will be the best placed to cope with climate change, while the poorest, who have contributed the least to emissions and have the least capacity to react, will be the most harmed. The poorest half of the world’s population – 3.5 billion people – is responsible for just 10 per cent of carbon emissions, while the richest 10 per cent are responsible for a full half. A person in the wealthiest 1 per cent uses 175 times more carbon than one in the bottom 10 per cent.

15. In addition to the economic benefits rich countries have already reaped from fossil fuels, one recent study found that climate change itself has already worsened global inequality and that the gap in per capita income between the richest and poorest countries is 25 percentage points larger than it would be without climate change.

50. Rather than helping the world adapt to climate change, privatizing basic services and social protection may be a form of maladaptation. When hurricane Sandy wreaked havoc in New York in 2012, stranding low-income and vulnerable New Yorkers without access to power and healthcare, the Goldman Sachs headquarters was protected by tens of thousands of its own sandbags and power from its generator. Private white-glove firefighters have been dispatched to save the mansions of high-end insurance customers from wildfires. An over-reliance on the private sector could lead to a climate apartheid scenario in which the wealthy pay to escape overheating, hunger, and conflict, while the rest of the world is left to suffer.

A. RECOGNIZING A RIGHT TO A CLEAN, HEALTHY AND SUSTAINABLE ENVIRONMENT

1. The United Nations

Between 2012 and 2021, the UN Human Rights Council adopted seven resolutions on human rights and the environment. In 2012, John Knox was appointed an independent expert on the issue, and became Special Rapporteur in 2015. He and his successor, David Boyd, played an important role in cajoling and facilitating more significant engagement on the part of the Council, which finally paid off with its 2021 resolution, followed by General Assembly Res. 76/300 (28 July 2022) entitled ‘The human right to a clean, healthy and sustainable environment’:648

The General Assembly,

…

Reaffirming the [UDHR, the outcomes of the Vienna, Stockholm and Rio conferences, and the Declaration on the right to development] and relevant international human rights treaties, and noting other relevant regional human rights instruments,

Reaffirming also that all human rights are universal, indivisible, interdependent and interrelated,

…

Recalling States’ obligations and commitments under multilateral environmental instruments and agreements, including on climate change …,

Recalling also Human Rights Council resolution 48/13 of 8 October 2021, entitled “The human right to a clean, healthy and sustainable environment”,

Recalling the Guiding Principles on Business and Human Rights …,

Noting also that a vast majority of States have recognized some form of the right to a clean, healthy and sustainable environment through international agreements, their national constitutions, legislation, laws or policies,

1. Recognizes the right to a clean, healthy and sustainable environment as a human right;

2. Notes that the right to a clean, healthy and sustainable environment is related to other rights and existing international law;

3. Affirms that the promotion of the human right to a clean, healthy and sustainable environment requires the full implementation of the multilateral environmental agreements under the principles of international environmental law;

4. Calls upon States, international organizations, business enterprises and other relevant stakeholders to adopt policies, to enhance international cooperation, strengthen capacitybuilding and continue to share good practices in order to scale up efforts to ensure a clean, healthy and sustainable environment for all.

648

The resolution, initially co-sponsored by Costa Rica, Maldives, Morocco, Slovenia and Switzerland, was adopted by a vote of 161-0-8 (States abstaining were: Belarus, Cambodia, China, Ethiopia, Iran, Kyrgyzstan, Russia, Syria). China explained its position by noting that there is no agreement as ‘to the definition and scope of the right to the environment and its relationship with other human rights.’ It also regretted that ‘the principle of common but differentiated responsibilities is … not included in the text’. India noted that because the terms clean, healthy and sustainable were not defined, they ‘remain open to subjective interpretation, thereby diluting the very objective of the recognition’ of the right (UN Doc. A/76/PV.97).

In an ‘Explanation of Position’ (28 July 2022), the United States indicated its acceptance of the importance of such a right, but added:

We note that [the resolution] is not legally binding or a statement of current international law. International law has yet to establish [such] a right … as a matter of customary international law, nor does treaty law provide for such a right. … [I]n voting “YES” on this resolution the United States does not recognize any change in the current state of conventional or customary international law. There is not yet a shared understanding of what the basis for the right would be and/or what its scope would entail.

[In relation to paragraph 3, we] do not agree with any suggestion that multilateral environmental agreements are implemented “under the principles of international environmental law” or have any bearing on any State’s international legal obligations. There is no single set of principles under which multilateral environmental agreements operate, and such agreements are each implemented in accordance with their own provisions and are applicable only to those States that have joined them. We emphasize that development and enforcement of strong domestic environmental laws and policies is what leads to a healthy environment.

U.S. support for the resolution … does not establish or support legally binding requirements on the United States or a private right of action under U.S. law. …

The United Kingdom took a more nuanced position. It stated that: ‘[t]here is no international consensus on the legal basis’ of this right: ‘[r]ecognizing rights without due consideration and a common understanding at an international level of what those rights comprise creates ambiguity’; General Assembly resolutions are not legally binding; and this right ‘derives from existing international economic and social rights law as a component of the right to an adequate standard of living or the right to the enjoyment of the highest attainable standard of physical and mental health’ (UN Doc. A/76/PV.97, 11-12).

2. The Council of Europe

In 2021, the Parliamentary Assembly of the Council of Europe (Recommendation 2211) called upon the Member States to adopt an additional protocol to the European Convention on Human Rights (ECHR) concerning the right to a safe, clean, healthy and sustainable environment.649 The recommendation proposed the following text:

Section I – Definition

Article 1

For the purposes of this Additional Protocol, “the right to a safe, clean, healthy and sustainable environment” means the right of present and future generations to live in a non-degraded, viable and decent environment that is conducive to their health, development and well-being.

649 See also Council of Europe Parliamentary Assembly, Doc. 15955 of 28 March 2024.

Section 2 – General principles

[Article 2]

Every generation has a duty to protect the environment and biodiversity and to prevent any irreparable and irreversible damage to life on Earth, so as to ensure the right of subsequent generations to live in a safe, clean, healthy and sustainable environment.

Every generation shall ensure that natural resources are used and managed in an environmentally sustainable manner, and that scientific and technological progress in all areas does not harm life on Earth.

Every generation is responsible for protection of the environment and has a duty to:

a. prevent environmental damage;

b. remedy environmental damage.

[Article 3]

a. No one can be discriminated against on account of his/her belonging to a particular generation.

b. Each High Contracting Party shall see to it that discrimination is prohibited and shall ensure equal and effective protection against discrimination to enable all individuals, groups and peoples to enjoy a safe, clean, healthy and sustainable environment.

c. Each High Contracting Party shall ensure that additional measures are taken to protect the rights of persons who are more vulnerable to or particularly threatened by environmental harm.

[Article 4]

Where a risk of harm to the environment and biodiversity has been established, measures for preventive action and rectification, as a priority at source, shall be put in to avoid the occurrence of environmental damage.

Where there are threats of severe damage to the environment or to human, animal or plant health, lack of scientific certainty shall not be used as a reason for postponing costeffective measures to prevent the degradation of the environmental and biodiversity.

a. Any rolling back of legal protection of the environment or of access to environmental justice shall be prohibited.

b. National and international provisions on the environment may be subject only to continuous improvement, having regard to the current state of scientific and technological knowledge.

In case of doubt, all matters before courts, administrative agencies and other decisionmakers must be resolved in a way most likely to favour the protection and conservation of nature, with preference to be given to alternatives that are least harmful to the environment.

Section 3 – Substantive right

[Article 5]

Everyone has the right to a safe, clean, healthy and sustainable environment.

[Article 6]

Everyone is entitled to access information relating to the environment held by public authorities, without having to prove an interest.

If a project, programme or policy has an impact on the environment and biodiversity, everyone shall be entitled to be consulted in advance in order to be heard by the decisionmaking bodies regarding the authorization and development of that project.

Everyone has the right of access to justice in matters relating to the environment.

Everyone whose rights set forth in this Protocol are violated shall have an effective remedy.

A 2022 Briefing Paper by the UK-based Environmental Rights Recognition Project suggested the following benefits of such a protocol: (1) symbolism; (2) putting environmental considerations at the heart of policy making; (3) requiring legislators to factor environmental impact into their work; (4) increasing civic participation; (5) filling the gap that results from only 13 of the 46 Member States having no existing constitutional or legislative right to a healthy environment; (6) creating a level playing field by setting a ‘pan-European baseline’; (7) clarifying obligations and promoting legal certainty; and (8) improving overall environmental performance.

But rather than deciding to draft a new protocol, the Committee of Ministers of the Council of Europe recommended to its 46 member governments that they ‘reflect on the nature, content and implications of the right to a clean, healthy and sustainable environment and, on that basis, actively consider recognising [it] at the national level’ (Recommendation CM/Rec(2022)20 (27 September 2022)). It added that in implementing the recommendation, they should ‘ensure the respect of general principles of international environmental law, such as the no harm principle, the principle of prevention, the principle of precaution and the polluter pays principle, and take into account the need for intergenerational equity.’ In relation to the role of corporations, they recommended that:

Member States should encourage or, where appropriate, require business enterprises to act in compliance with their human rights responsibilities related to the environment, including by applying a smart mix of measures– national and international, mandatory and voluntary.

3. The Regional Systems

As early as 2001, the African Commission on Human and Peoples’ Rights decided that the right to a healthy environment imposed on States the obligation to take reasonable measures to prevent pollution and ecological degradation, to promote conservation, and to secure ecologically sustainable development and use of natural resources. 650

Until 2024, the European Court of Human Rights had interpreted the ‘right to respect for private and family life’ in Article 8 of the ECHR cautiously in relation to environmental harm. But several major cases that had been referred to the Grand Chamber were decided on 9 April 2024. In the lead-up to these cases, commentators questioned whether the ‘Court’s often deferential, inconsistent and unreasoned remedial practice’ was likely to provide an adequate basis for remedies in relation to climate change.651 But while two of the cases were declared inadmissible, the third proved to be a major turning point in climate litigation.

In the first of the cases, Carême v. France (Grand Chamber, Application No. 7189/21 (9 April 2024) the Court held inadmissible a complaint by the former mayor of the municipality of Grande-Synthe that France had failed to take sufficient steps to prevent climate change thereby violating his right to life and the right to respect for

650 African Commission on Human and Peoples’ Rights, Social and Economic Rights Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, Communication 155/96 (Decision of 27 October 2001) paras. 52 and 53.

651 H. Keller, C. Heri, and R. Piskóty, ‘Something Ventured, Nothing Gained?: Remedies Before the ECtHR and Their Potential for Climate Change Cases’, 22 Hum. Rts L. Rev. (2022) 000; N. Kobylarz and E. Grant (eds.), Human Rights and the Planet: The Future of Environmental Human Rights in the European Court of Human Rights (2022).

his private and family life and home. The complaint emphasized the risk of climate change induced flooding in the period 2030 40. But after submitting the complaint, the applicant had ceased to be mayor and had moved to another country, and retained no significant links to Grande-Synthe. Accordingly, the court found that he could not claim to have victim status under the approach spelled out in the KlimaSeniorinnen case below.

In the second case, Duarte Agostinho and Others v. Portugal and 32 Others (application No. 39371/20) of 9 April 2024, six young Portuguese nationals complained of the present and future impacts of climate change. They cited increased temperatures and extreme heat and resulting wildfires and claimed that Portugal and 32 other respondent states bore responsibility. They relied on provisions of the ECHR, the 2015 Paris Agreement, the UN Convention on the Rights of the Child, and various reports and expert findings. Most notably, they argued that their generation was particularly affected by climate change and that, given their ages, the interference with their rights was more marked than in the case of previous generations. The court held that territorial jurisdiction was established in respect of Portugal, but not in relation to the other states.

208. In sum, extending the Contracting Parties’ extraterritorial jurisdiction on the basis of the proposed criterion of “control over the applicants’ Convention interests” in the field of climate change – be it within or outside the Convention’s legal space – would lead to an untenable level of uncertainty for the States. Action taken in relation to some of the basic human activities … or any omission in managing the activity’s potential harmful effects on climate change, could lead to the establishment of a State’s extraterritorial jurisdiction over the interests of persons outside its territory and without any particular link with the State concerned. More importantly, accepting the applicants’ arguments would entail an unlimited expansion of States’ extraterritorial jurisdiction under the Convention and responsibilities under the Convention towards people practically anywhere in the world. …

And since the applicants had not pursued any legal avenue in Portugal that complaint was also inadmissible for non-exhaustion of domestic remedies. But, it was the 260-page judgment in the third case that proved to be path-breaking in many respects:

VEREIN KLIMASENIORINNEN

SCHWEIZ AND OTHERS V. SWITZERLAND EUROPEAN COURT OF HUMAN RIGHTS, GRAND CHAMBER, APPLICATION NO.

53600/20 (9 APRIL 2024)

[The first applicant is Verein KlimaSeniorinnen Schweiz, a non-profit association established under Swiss law to promote and implement effective climate protection on behalf of its members. The latter are women living in Switzerland, and the average age of the more than 2,000 members is 73. The second to fifth applicants are individual members of the same association.]

C.TheCourt’sassessment

1. Preliminary points

410. At the outset, the Court notes that climate change is one of the most pressing issues of our times. …

412. Judicial intervention, including by this Court, cannot replace or provide any substitute for the action which must be taken by the legislative and executive branches of government. However, democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law. The remit of domestic courts and the Court is therefore complementary to those democratic processes. The task of the judiciary is to ensure the necessary oversight of compliance with legal requirements. The legal basis for the Court’s intervention is always limited to the Convention … . …

…

414. … The particular nature of the problems arising from climate change in terms of the Convention issues raised has not so far been addressed in the Court’s case law. …

415. The Court’s existing case law in environmental matters concerns situations involving specific sources from which environmental harm emanates. …

416. In the context of climate change, the key characteristics and circumstances are significantly different. First, there is no single or specific source of harm. GHG emissions arise from a multitude of sources. The harm derives from aggregate levels of such emissions. Secondly, CO2 – the primary GHG – is not toxic per se at ordinary concentrations. The emissions produce harmful consequences as a result of a complex chain of effects. These emissions have no regard for national borders.

417. Thirdly, that chain of effects is both complex and more unpredictable in terms of time and place than in the case of other emissions of specific toxic pollutants. … In the longer term, some of the consequences risk destroying the basis for human livelihoods and survival in the worst affected areas. …

418. Fourthly, the sources of GHG emissions are not limited to specific activities that could be labelled as dangerous. …

419. Fifthly, combating climate change, and halting it, does not depend on the adoption of specific localised or single sector measures. Climate change is a polycentric issue. Decarbonisation of the economies and ways of life can only be achieved through a comprehensive and profound transformation in various sectors. …

420. … [I]ntergenerational burden sharing assumes particular importance … . … [F]uture generations are likely to bear an increasingly severe burden of the consequences of present failures and omissions to combat climate change … . By their commitment to the UNFCCC, the States Parties have undertaken the obligation to protect the climate system for the benefit of present and future generations of humankind … . …

421. Lastly, while the challenges of combating climate change are global, both the relative importance of various sources of emissions and the necessary policies and measures required for achieving adequate mitigation and adaptation may vary to some extent from one State to another depending on several factors such as the structure of the economy, geographical and demographic conditions and other societal circumstances. …

422. Because of these fundamental differences, it would be neither adequate nor appropriate to follow an approach consisting in directly transposing the existing environmental case law to the context of climate change.

(b) Issues of proof

427. One of the key features of climate change cases is the necessity for the relevant court to engage with a body of complex scientific evidence. …

428. A mere allegation that the State failed to comply with certain domestic rules and environmental or technical standards is not in itself sufficient … . ... [I]n some cases, the Court may need to have regard to the relevant international standards … .

429. The Court also relies on studies and reports by relevant international bodies … . As regards climate change, the Court points to the particular importance of the reports prepared by the IPCC … . … These reports provide scientific guidance on climate change regionally and globally, its impact and future risks, and options for adaptation and mitigation .

432. The findings of the IPCC … have not been challenged or called into doubt by the respondent or intervening States. …

433. Moreover, the IPCC findings correspond to the position taken, in principle, by the States in the context of their international commitments to tackle climate change. … Moreover, the respondent Government in the

present case, as well as the many third-party intervener Governments, have not contested that there is a climate emergency.

436. In sum, on the basis of the above findings, the Court will proceed with its assessment of the issues arising in the present case by taking it as a matter of fact that there are sufficiently reliable indications that anthropogenic climate change exists, that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States are aware of it and capable of taking measures to effectively address it, that the relevant risks are projected to be lower if the rise in temperature is limited to 1.5oC above pre-industrial levels and if action is taken urgently, and that current global mitigation efforts are not sufficient to meet the latter target.

(e) The issue of the proportion of State responsibility

…

442. … [T]he global climate regime established under the UNFCCC rests on the principle of common but differentiated responsibilities and respective capabilities of States. … [A] respondent State should not evade its responsibility by pointing to the responsibility of other States, whether Contracting Parties to the Convention or not.

…

444. Lastly, as regards the “drop in the ocean” argument implicit in the Government’s submissions – namely, the capacity of individual States to affect global climate change – it should be noted that in the context of a State’s positive obligations under the Convention, the Court has consistently held that it need not be determined with certainty that matters would have turned out differently if the authorities had acted otherwise. The relevant test does not require it to be shown that “but for” the failing or omission of the authorities the harm would not have occurred. Rather, what is important, and sufficient to engage the responsibility of the State, is that reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm. …

(f) Scope of the Court’s assessment

451. … [T]here is force in the argument put forward by the UN Special Rapporteurs that the question is no longer whether, but how, human rights courts should address the impacts of environmental harms on the enjoyment of human rights.

3. Admissibility

(a) Victim status/locus standi (representation)

…

464. The Court reiterates that the issue of victim status should be distinguished from the issue of locus standi. The latter relates to the questions of representation of the (direct) victims’ complaints before the Court. …

(α) Victim status of individuals

465. In order to fall into the category of direct victims, the applicant must be able to show that he or she was “directly affected” by the measure complained of. …

466. However, this does not necessarily mean that the applicant needed to be personally targeted by the act or omission complained of. What is important is that the impugned conduct personally and directly affected him or her.

(β) Locus standi (representation) by associations

…

475. … [A]lthough in the absence of a measure directly affecting them the Court does not normally grant victim status to associations, even if the interests of their members could be at stake, there may be “special

considerations” where an association represents individuals, even in the absence of a measure directly affecting the association in question.

487. In sum, the Court finds that in order to claim victim status [in the climate change context] … an applicant needs to show that he or she was personally and directly affected by the impugned failures. This would require the Court to establish … the following …:

(a) the applicant must be subject to a high intensity of exposure to the adverse effects of climate change, that is, the level and severity of (the risk of) adverse consequences of governmental action or inaction affecting the applicant must be significant; and

(b) there must be a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm.

488. The threshold for fulfilling these criteria is especially high. … [T]he Court will have due regard to circumstances such as the prevailing local conditions and individual specificities and vulnerabilities. The Court’s assessment will also include, but will not necessarily be limited to, considerations relating to: the nature and scope of the applicant’s Convention complaint, the actuality/remoteness and/or probability of the adverse effects of climate change in time, the specific impact on the applicant’s life, health or well-being, the magnitude and duration of the harmful effects, the scope of the risk (localised or general), and the nature of the applicant’s vulnerability.

(β) Standing of associations

502. … In order to be recognised as having locus standi to lodge an application [in a climate change case] … the association in question must be: (a) lawfully established in the jurisdiction concerned or have standing to act there; (b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and (c) able to demonstrate that it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention.

In this connection, the Court will have regard to such factors as the purpose for which the association was established, that it is of non-profit character, the nature and extent of its activities within the relevant jurisdiction, its membership and representativeness, its principles and transparency of governance and whether on the whole, in the particular circumstances of a case, the grant of such standing is in the interests of the proper administration of justice. …

…

(iii) Application of these principles to the present case

(b) Applicability of the relevant Convention provisions

(α) Article 2

513. In sum, in order for Article 2 to apply to complaints of State action and/or inaction in the context of climate change, it needs to be determined that there is a “real and imminent” risk to life. However, such risk to life in the climate-change context must be understood in the light of the fact that there is a grave risk of inevitability and irreversibility of the adverse effects of climate change, the occurrences of which are most likely to increase in frequency and gravity. Thus, the “real and imminent” test may be understood as referring to a serious, genuine and sufficiently ascertainable threat to life, containing an element of material and temporal proximity of the threat to the harm complained of by the applicant. This would also imply that where the victim status of an individual applicant has been established …, it would be possible to assume that a serious risk of a

significant decline in a person’s life expectancy owing to climate change ought also to trigger the applicability of Article 2.

(β) Article 8

519. … Article 8 must be seen as encompassing a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life. 520. However, in this context, the question of “actual interference” or the existence of a relevant and sufficiently serious risk entailing the applicability of Article 8 essentially depends on the assessment of similar criteria to those set out in paragraphs 487 to 488 above concerning the victim status of individuals, or in paragraph 502 above concerning the standing of associations. These criteria are therefore determinative for establishing whether Article 8 rights are at stake and whether this provision applies. …

(ii) Application of these principles to the present case

(α) Article 8 of the Convention

[The court found, on the basis of the criteria it had established, that the applicant association had the necessary locus standi in this case.]

533. However, while it may be accepted that heatwaves affected the [quality of life of applicants 2-5], it is not apparent from the available materials that they were exposed to the adverse effects of climate change, or were at risk of being exposed at any relevant point in the future, with a degree of intensity giving rise to a pressing need to ensure their individual protection … . It cannot be said that the applicants suffered from any critical medical condition whose possible aggravation linked to heatwaves could not be alleviated by the adaptation measures available in Switzerland or by means of reasonable measures of personal adaptation given the extent of heatwaves affecting that country. It should also be reiterated that victim status in relation to future risk is only exceptionally admitted by the Court and the individual applicants have failed to demonstrate that such exceptional circumstances exist in their regard.

535. … [A]pplicants nos. 2 5 do not fulfil the victim-status criteria … [and so] their complaints should be declared inadmissible … .

[The Court decided to examine the association’s complaint solely in terms of Article 8, but noted that the same principles were largely applicable to an Article 2 analysis relating to environmental issues.]

(ii) Content of the States’ positive obligations

544. … [T]he Court already held long ago that the scope of protection under Article 8 of the Convention extends to adverse effects on human health, well-being and quality of life arising from various sources of environmental harm and risk of harm. Similarly, the Court derives from Article 8 a right for individuals to enjoy effective protection by the State authorities from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change.

545. … In this context, the State’s primary duty is to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change. This obligation flows from the causal relationship between climate change and the enjoyment of Convention rights … and the fact that the object and purpose of the Convention, as an instrument for the protection of human rights, requires that its provisions must be interpreted and applied such as to guarantee rights that are practical and effective, not theoretical and illusory

…

548. … [E]ffective respect for the rights protected by Article 8 of the Convention requires that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels,

with a view to reaching net neutrality within, in principle, the next three decades. … [F]or the measures to be effective, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner.

549. Moreover, in order for this to be genuinely feasible, and to avoid a disproportionate burden on future generations, immediate action needs to be taken and adequate intermediate reduction goals must be set for the period leading to net neutrality. Such measures should, in the first place, be incorporated into a binding regulatory framework at the national level, followed by adequate implementation. The relevant targets and timelines must form an integral part of the domestic regulatory framework, as a basis for general and sectoral mitigation measures. …

550. When assessing whether a State has remained within its margin of appreciation, the Court will examine whether the competent domestic authorities, be it at the legislative, executive or judicial level, have had due regard to the need to:

(a) adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;

(b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;

(c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub-paragraphs (a) (b) above);

(d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and

(e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures. …

567. In these circumstances, given the pressing urgency of climate change and the current absence of a satisfactory regulatory framework, the Court has difficulty accepting that the mere legislative commitment to adopt the concrete measures “in good time”, as envisaged in the Climate Act, satisfies the State’s duty to provide, and effectively apply in practice, effective protection of individuals within its jurisdiction from the adverse effects of climate change on their life and health.

573. In conclusion, there were some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations. Furthermore, … the State had previously failed to meet its past GHG emission reduction targets. By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context.

574. The above findings suffice for the Court to find that there has been a violation of Article 8 of the Convention.

657. In the present case, having regard to the complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply

with the present judgment. Given the differentiated margin of appreciation accorded to the State in this area (see paragraph 543 above), the Court considers that the respondent State, with the assistance of the Committee of Ministers, is better placed than the Court to assess the specific measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State, the adoption of measures aimed at ensuring that the domestic authorities comply with Convention requirements, as clarified in the present judgment.

PARTLY CONCURRING PARTLY DISSENTING OPINION OF JUDGE EICKE

INTRODUCTION

1. To my regret, I am unable to agree with the majority either in relation to the methodology they have adopted or on the conclusions which they have come to both in relation to the admissibility (and, in particular, the question of “victim” status) as well as on the merits. …

2. … The disagreement is of a more fundamental nature and, at least in part, goes to the very heart of the role of the Court within the Convention system and, more generally, the role of a court in the context of the unique and unprecedented challenges posed to humanity (including in but also across our societies) by anthropogenic climate change.

3. … [T]he majority in this case has gone well beyond what I consider to be, as a matter of international law, the permissible limits of evolutive interpretation.

4. In doing so, it has, in particular, unnecessarily expanded the concept of “victim” status/standing … and has created a new right (under Article 8 and, possibly, Article 2) [see paras. 519 and 544 above] … and/or imposed a new “primary duty” on Contracting Parties [see para. 545 above] … .

BACKGROUND

5. … [M]y disagreement with the majority does not relate in any way to the nature or magnitude of the risks and the challenges posed by anthropogenic climate change. I completely share their understanding of the urgent need to address this issue … .

CONCLUSION

68. … [T]he Court would already have achieved much if it had focussed on a violation of Article 6 of the Convention and, at a push, a procedural violation of Article 8 relating in particular to (again) the right of access to court and of access to information necessary to enable effective public participation in the process of devising the necessary policies and regulations and to ensure proper compliance with and enforcement of those policies and regulations as well as those already undertaken under domestic law. However, in my view, the majority clearly “tried to run before it could walk” and, thereby, went beyond what was legitimate for this Court … by means of “interpretation and application of the Convention”, to do.

69. I also do worry that, in having taken the approach and come to the conclusion they have, the majority are, in effect, giving (false) hope that litigation and the courts can provide “the answer” without there being, in effect, any prospect of litigation (especially before this Court) accelerating the taking of the necessary measures towards the fight against anthropogenic climate change. In fact, there is a significant risk that the new right/obligation created by the majority (alone or in combination with the much enlarged standing rules for associations) will prove an unwelcome and unnecessary distraction for the national and international authorities, both executive and legislative, in that it detracts attention from the on-going legislative and negotiating efforts being undertaken as we speak to address the – generally accepted – need for urgent action. Not only will those authorities now have to assess and, if considered necessary, design and adopt (or have adopted) new “regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change” but there is also a significant risk that they will now be tied up in litigation about whatever regulations and measures they have adopted (whether as a result or independently) or how those regulations and measures have

been applied in practice and, where an applicant was successful, lengthy and uncertain execution processes in relation to any judgments. …

QUESTION

Did the Court succeed in striking a balance among the many competing considerations in the Verein KlimaSeniorinnen Schweiz case, or did it overstep as argued by the sole dissenting member of the 17-judge Grand Chamber?

The Inter-American system has gone furthest in recognizing environmental rights.652 The foundation was laid in an Advisory Opinion (OC-23/17, of 15 November 2017) by the Court on ‘The Environment and Human Rights’. Colombia had sought clarification of states’ environment-related obligations under the Convention by reference to the right to life (Art. 4) and the right to humane treatment (Art. 5) in light of the Convention’s general Article 1 obligation to respect rights. The context involved largescale infrastructure projects that threatened transboundary harm to the Caribbean marine environment, thereby jeopardizing the human rights of coastal and island residents. Colombia’s dispute with Nicaragua before the International Court of Justice lay behind the request, but Nicaragua was not actually mentioned in the application.

The Court noted that Article 11 of the Protocol of San Salvador expressly recognizes ‘the right to live in a healthy environment’. But since only 16 states have ratified that treaty, it was highly significant that the Court also determined that the right is covered by the American Convention by virtue of the general provision in Article 26 relating to economic, social and cultural rights. It then addressed the nature of the right and its broader application to nature:

59. The human right to a healthy environment has been understood as a right that has both individual and also collective connotations. In its collective dimension, the right to a healthy environment constitutes a universal value that is owed to both present and future generations. That said, the right to a healthy environment also has an individual dimension insofar as its violation may have a direct and an indirect impact on the individual owing to its connectivity to other rights, such as the rights to health, personal integrity, and life. Environmental degradation may cause irreparable harm to human beings; thus, a healthy environment is a fundamental right for the existence of humankind.

62. The Court considers it important to stress that, as an autonomous right, the right to a healthy environment, unlike other rights, protects the components of the environment, such as forests, rivers and seas, as legal interests in themselves, even in the absence of the certainty or evidence of a risk to individuals. This means that it protects nature and the environment … because of their importance to the other living organisms with which we share the planet that also merit protection in their own right. In this regard, the Court notes a tendency, not only in court judgments, but also in Constitutions, to recognize legal personality and, consequently, rights to nature.

The Court also had to determine that it had jurisdiction in these matters, and held unanimously (para. 244) that:

2. The concept of jurisdiction under Article 1(1) … encompasses any situation in which a State exercises authority or effective control over an individual, either within or outside its territory … .

4. … [I]ndividuals whose rights under the Convention have been violated owing to transboundary harm are subject to the jurisdiction of the State of origin of the harm, because that State exercises effective control over the activities carried out in its territory or under its jurisdiction … .

652 See D. Mejía-Lemos, ‘The Protection of the Environment through International Human Rights Litigation: Taking Stock of Challenges and Opportunities in the Inter-American System’, 22 Hum. Rts L. Rev. (2022) 000.

5. … States have the obligation to prevent significant environmental damage within or outside their territory and, to this end, must regulate, supervise and monitor activities within their jurisdiction that could produce significant environmental damage …

6. States must act in accordance with the precautionary principle … .

7. … States have the obligation to cooperate, in good faith, to ensure protection against significant transboundary harm to the environment. …

8. … States have the obligation to ensure the right of access to information concerning potential environmental damage, the right to public participation of persons subject to their jurisdiction in policies and decision-making that could affect the environment, and also the right of access to justice in relation to the State environmental obligations … .

The Inter-American Court subsequently applied this reasoning in relation to the right to a healthy environment in the Case of Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina, IACtHR Series C400 (6 February 2020), although there was also a strong dissent.653 On 9 January 2023, Chile and Colombia requested an Advisory Opinion from the Court on states’ climate change-related obligations. An indication of the wideranging nature of the request is provided by the first of six sets of questions put to the Court:654

2. … [W]hat measures should States take to minimize the impact of the damages …? … [W]hat differentiated measures should be taken with respect to populations in situations of vulnerability or intersectional considerations?

2.A. What considerations should a State take to implement its obligation to (i) regulate; (ii) monitor and oversee; (iii) require and approve social and environmental impact studies; (iv) establish a contingency plan; and (v) mitigate activities within its jurisdiction that aggravate or may aggravate the climate emergency?

2.B. What principles should inspire mitigation, adaptation and response actions to the losses and damages generated by the climate emergency in the affected communities?

For its part, the Inter-American Commission, in Res. 3/2021 entitled ‘Climate Emergency: Scope of InterAmerican Human Rights Obligations’ called on states to ‘adopt and implement policies aimed at reducing greenhouse gas emissions that reflect the greatest possible ambition, foster resilience to climate change and ensure that public and private investments are consistent with low-carbon and climate-resilient development’ (paragraph 1); to ensure ‘that climate norms, policies and actions are constructed, updated and/or reexamined in a transparent and participatory manner with all social actors ensuring that climate actions do not adversely affect people’s rights’ (paragraph 3); and ‘to move towards a gradual but determined decarbonization of the economies of the region’ (paragraph 4).

B. LITIGATION

Although litigation is only one of the many measures that can be taken to stem global warming and compel key actors to change their policies, there has been a surge of litigation in this area in recent years. The first major international case was lodged in 2005, when Sheila Watt-Cloutier, an Inuk woman and Chair of the Inuit Circumpolar Conference, petitioned the Inter-American Commission on Human Rights ‘seeking relief from violations resulting from global warming caused by acts and omissions of the United States’. She submitted it ‘on behalf of herself, 62 other named individuals, and all Inuit of the arctic regions of the United States of America and Canada who have been affected by the impacts of climate change described in [the 175-page] petition.’ Almost one year later, the Commission’s Assistant Executive Secretary, Ariel Dulitzky, indicated that it would not be taken up because ‘the information provided does not enable us to determine whether the alleged

653 For a critique of the judgment, see L. Mardikian, ‘The Right to a Healthy Environment Before the Inter-American Court of Human Rights’, 72 ICLQ (2023) 945.

654 Electronic translation from Spanish.

facts would tend to characterize a violation of rights protected by the American Declaration.’ Despite its rejection, the petition gave an important impetus to advocacy in international organizations and litigation in national and international courts invoking human rights-based claims to challenge governments, corporations, and other actors for fueling global warming. Since that time, litigation has expanded rapidly, as explained below.

CÉSAR RODRÍGUEZ-GARAVITO, LITIGATING

THE CLIMATE

EMERGENCY IBID.

(ED.), LITIGATING THE CLIMATE EMERGENCY: HOW HUMAN RIGHTS, COURTS, AND LEGAL MOBILIZATION CAN BOLSTER CLIMATE ACTION (2022) 9.

… [L]itigants have predominantly followed a two-pronged strategy. They have (1) asked courts to take the goals of the climate regime (as set out in the Paris Agreement, IPCC reports, and other authoritative sources) as benchmarks to assess governments’ climate action and (2) invoked the norms, frames, and enforcement mechanisms of human rights to hold governments legally accountable for such goals. In the face of governments’ reluctance or hostility toward taking the urgent measures that are needed to address the climate emergency, HRCC [Human Rights and Climate Change] litigation can be fruitfully viewed as a bottom-up mechanism … .

1.1ThePost-ParisRegimeandClimateRightsLitigation

… [I]nternational climate governance went from an unsuccessful effort to establish an integrated, top-down regime (the 1997 Kyoto Protocol to the UN Framework Convention on Climate Change) to an ongoing attempt to consolidate a bottom-up, experimental regime (the Paris Agreement) that creates incentives for states to act on climate change through an iterative process of international negotiations, domestic civil society pressure, emissions reporting based on IPCC methodologies, and periodic stocktaking and peer review of progress on climate mitigation and adaptation.

The Paris Agreement does not establish a binding obligation for states to implement their nationally determined contributions (NDCs) to emission cuts, nor does it specify any procedure to ensure that states are transparent in their accounting of those contributions. Since the success of the Paris system hinges on transparency, the model will only work if states have material and reputational incentives … .

The large majority of HRCC suits and complaints (which focus on emissions cuts) can be understood as strategies to provide the post-Paris climate regime with procedural and substantive mechanisms for translating the aforementioned targets into legally binding commitments at the domestic level. … [S]tates are the target of all but 22 of the 148 cases filed between 2015 and 2021. …

1.2KeyQuestionsandEmergingNormsinClimateRightsLitigation

Despite the diversity of jurisdictions, litigants, and adjudicators involved in them, HRCC lawsuits tend to revolve around a common set of questions and norms. …

The ideal-typical HRCC case proceeds in three steps …:

1.2.1TheBaselineNorms:AnInternational“CommonGround”onClimateRights

… In determining the relevant legal standards … litigants and courts have often used the European Court of Human Rights’ (ECtHR) doctrine of the legal “common ground” applicable to domestic human rights cases [which] includes other “elements of international law,” states’ interpretations of such elements, and state practice reflecting common values. As the ECtHR put it in Demir and Baykara v. Turkey, a judgment widely used by litigants and courts in European climate rights cases: “It is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the

case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern society.”

Importantly, the common ground [includes] the Paris Agreement and the IPCC’s reports. …

If confirmed by future litigation, the emerging recognition of an international normative common ground would consolidate the convergence of human rights, environmental protection, and climate governance. …

1.2.2AJusticiableRighttoClimateAction

… The key question here is: Do governments have justiciable legal obligations, as a matter of international human rights and climate change law, to reduce GHG emissions?

… [In] almost invariably answer[ing] this question in the affirmative … two emerging norms have been upheld … .. First, a justiciable right to a climate system capable of sustaining human life … . [S]ome rulings have homed in on the rights of young people and future generations to a livable planet. …

The second norm relates to the legal competence of courts to enforce governments’ duties regarding climate action in general and emissions reduction in particular. The question of justiciability raises issues concerning the harmonization of (1) the protection of rights with deference for governmental policy discretion and (2) the duty of courts to provide remedies for rights violations with the principle of the separation of powers. Although common in human rights and public interest litigation writ large, those issues are compounded by the scale, temporality, and uncertainty that characterize the problem of global warming.

Unsurprisingly, judges have given a range of different answers to this question, in line with contrasting jurisprudential traditions on the redressability of rights violations by courts in different jurisdictions. … Although granting governments latitude in setting climate goals and choosing policies to attain them, most courts have held that such decisions are not exempt from judicial review and that governmental discretion is not absolute. …

… While adjudicators have recognized that governments have a wide margin of appreciation in dealing with the complexities of climate policy, they have tended to conclude that climate change is a regulatory and scientific issue that is amenable to judicial scrutiny based on national and international standards on climate change and human rights, as opposed to a political issue in which governments have full policy discretion. …

1.2.3TheLegallyEnforceable“FairShare”ofClimateMitigation

The final step [is to inquire]: What levels of ambition and urgency with regard to national emission reductions are compatible with such rights and duties? This is the question, for instance, at the core of the average European lawsuit … . … In other suits, rather than the level of ambition itself, plaintiffs challenge the consistency of government-authorized projects or policies with the mitigation target that the government has formally adopted through national or international law. …

Both modalities of litigation raise complex questions about how to set and enforce a country’s level of mitigation ambition. The controversy over different criteria of equity for determining countries’ appropriate share of GHG emission cuts involves core issues of climate ethics and politics … . … [L]itigants and courts … have tended to take a cautious approach by closely tying their claims and remedies to the ambition levels prescribed by the Paris Agreement and the IPCC.

This approach has been translated into two embryonic norms. First, with regard to a country’s share of emission reductions, HRCC cases have articulated a view that stresses individual states’ duties. States’ line of defense in mitigation lawsuits has hinged on the nature of the climate system as a public good. From this perspective, since emission reductions by one country will not make a dent in preventing global warming without other countries contributing their share, citizens have no justiciable rights-based claim to state climate action.

In contrast, litigants and courts have relied on a responsibility-based interpretation of the Paris Agreement. In this view, states have a duty to contribute their “minimum fair share” to emissions reduction, regardless of other countries’ actions. As noted, the determination of a country’s fair share has been guided by estimates stemming from the IPCC’s recommendations and reports.

The most explicit articulation of the “minimum fair share” norm can be found in the Dutch Supreme Court’s decision in [State of the Netherlands v. Stichting Urgenda (2019)]. According to the court, under the European Convention on Human Rights and the global climate regime, “the Netherlands is obliged to do ‘its part’ in order to prevent dangerous climate change, even if it is a global problem.” The court bases its legal opinion on an interpretation of the UNFCCC whereby “all countries will have to do the necessary” to attain global emission targets, as well as on the generally accepted principle of international law according to which countries must avoid causing harm to others. “This approach justifies partial responsibility: each country is responsible for its part and can therefore be called to account in that respect” in judicial forums. Using the heuristics of a “carbon budget” – the amount of GHG that is left for humanity to burn before surpassing the 1.5 degrees Celsius to 2 degrees Celsius threshold of global warming – the court concludes that “no reduction is negligible,” as all emissions contribute to using up the global budget, regardless of the size of the country or its emissions.

… … [T]his norm remains underspecified. Given that the meaning of “minimum fair share” varies according to the criterion of fairness used, this remains an open question in HRCC litigation. …

1. National Courts

Litigation in national courts faces many obstacles. In Friends of the Irish Environment v. Ireland, (Appeal No: 205/19 (judgment of 31 July 2020)) a domestic advocacy group challenged the 2017 National Mitigation Plan, claiming that it violated the relevant legislation as well as the Irish Constitution and the government’s European Convention on Human Rights obligations relating to the right to life and the right to private and family life. On appeal, the Supreme Court ultimately ruled that the Plan was insufficient to meet the legislative obligation and ordered that a new plan be drawn up. But the court also held that FIE lacked standing to bring its rights-based claims under the Constitution or the ECHR, and Chief Justice Clarke, writing for the court, was deeply skeptical of the claim that there was or should be a derived constitutional right to a healthy environment:

8.10 … What exactly does it mean? How does it fit into the constitutional order? Does it really advance rights beyond the right to life and the right to bodily integrity? If not, then what is the point of recognising such a right? If so, then in what way and within what parameters?

8.11 … [The right] either does not bring matters beyond the right to life or the right to bodily integrity, in which case there is no need for it. If it does go beyond those rights, then there is not a sufficient general definition (even one which might, in principle, be filled in by later cases) about the sort of parameters within which it is to operate.

In Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020), ‘twenty-one young citizens, an environmental organization, and a “representative of future generations”’ sought ‘an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.”’ The court noted that ‘[s]ome plaintiffs claim psychological harm, others impairment to recreational interests, others exacerbated medical conditions, and others damage to property’ and that the causes of action were based on due process, equal protection, and the public trust doctrine. Writing for the panel, Judge Hurwitz began by noting that ‘the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.’

To establish redressability, the court held that the plaintiffs needed to identify relief that was both “(1) substantially likely to redress [its] injuries” and “(2) within the district court’s power to award.” In terms of the latter, the court said:

There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular. But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs' requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches. … These decisions range, for example, from determining how much to invest in public transit to how quickly to transition to renewable energy, and plainly require consideration of “competing social, political, and economic forces,” which must be made by the People's “elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.”

In dissent, Judge Staton replied:

My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary. … But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.

Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation's willful destruction. So viewed, plaintiffs' claims adhere to a judicially administrable standard. … [E]ven a partial and temporary reprieve would constitute meaningful redress [and would be] much like the desegregation orders and statewide prison injunctions the Supreme Court has sanctioned … ., …

Compare the Juliana case with this case from the Supreme Court of the State of Hawaiʻi:

LIGHT COMPANY, INC., APPEAL FROM THE PUBLIC UTILITIES COMMISSION

DOCKET NO. 2017-0122 (13 MARCH 2023)

OPINION OF THE COURT BY EDDINS, J.

Over ten years ago, energy company Hu Honua … sought regulatory approval to supply energy to Hawaiʻi Island using a biomass power plant. Last summer, approval for that energy deal was denied. Hu Honua appeals the denial, arguing that the Public Utilities Commission (PUC) misunderstood its mandate and held Hu Honua to an unfair standard.

We disagree. The PUC understood its public interest-minded mission. It faithfully followed our remand instructions to consider the reasonableness of the proposed project’s costs in light of its greenhouse gas emissions and the project’s impact on intervenor Life of the Land’s members’ right to a clean and healthful environment. …

…

II. … B.

Hu Honua’s interpretation of HRS § 269-6(b) is equally strained. “HRS Chapter 269 is a law relating to environmental quality that defines the right to a clean and healthful environment under article XI, section 9 by providing that express consideration be given to reduction of greenhouse gas emissions in the decision-making of the Commission.” …

HRS § 269-6(b) sets out specific factors the PUC must consider to determine whether the costs of a proposed energy project are reasonable. These include (1) price volatility; (2) export of funds for fuel imports; (3) fuel supply reliability risk; and (4) greenhouse gas emissions. The PUC then subjects these factors to “public interestminded balancing.”…

HAWAIʻI ELECTRIC

Hu Honua maintains that when applying these factors to a renewable energy project, the “only permissible” comparison for the PUC to draw is with fossil-fuel plants. … If Hu Honua is right, the only relevant question before the PUC was: is burning trees better than burning coal?

Neither the language of HRS § 269-6(b) nor the legislative intent behind it supports this blinkered approach.

But the legislature intended the PUC to consider “potentially harmful climate change due to the release of harmful greenhouse gases.” … We do not lightly assume that the legislature would sabotage its climate goals by limiting the PUC to artificial and unhelpful analyses.

… C.

…

The people of Hawaiʻi have declared “a climate emergency.” Hawaiʻi faces immediate threats to our cultural and economic survival: sea level rise, eroding the coast and flooding the land; ocean warming and acidification, bleaching coral reefs and devastating marine life; more frequent and more extreme droughts and storms. For the human race as a whole, the threat is no less existential.

The reality is that yesterday’s good enough has become today’s unacceptable. The PUC was under no obligation to evaluate an energy project conceived of in 2012 the same way in 2022. Indeed, doing so would have betrayed its constitutional duty.

Because the PUC’s actions aligned with its statutory and constitutional obligations, we affirm PUC Order Nos. 38395 and 38443.

CONCURRING OPINION BY WILSON, J.

I.Introduction

… In its emergency declaration, the Hawaiʻi legislature called for “an immense increase of scale in endeavors to conserve our biosphere[.]” …

The [PUC] … has the daunting task of saving Hawaiʻi from the existential threat of climate change by reducing carbon emissions from Hawaiʻi’s energy system. In so doing, the PUC protects the constitutional right of Hawai‘i’s people to a life-sustaining climate system. ...

IV.UrgentStateActionisNecessary

Although climate change is an international issue, the United States is responsible for approximately 20% of the world’s historic and cumulative greenhouse gas emissions. … Unlike [some other] jurisdictions … the federal courts of the United States have thus far abdicated responsibility to apply the rule of law to claims that allege knowing contamination of the atmosphere with deleterious levels of greenhouse gas emissions.

One of the most prominent examples of a federal court abdicating its responsibility to leave future generations a habitable planet is the Ninth Circuit’s [decision] … in Juliana v. United States. …

The conclusion that the due process right to “life, liberty [and] property” under Article I, section 5 subsumes the right to a life-sustaining climate is supported by the fact that a life-sustaining climate system underlies all other constitutional guarantees. Juliana, 217 F. Supp. 3d at 1248-49 (D. Or. 2016) (“Often, an unenumerated fundamental right draws on more than one [c]onstitutional source. The idea is that certain rights may be necessary to enable the exercise of other rights, whether enumerated or unenumerated”) … . In other words, the right to a life-sustaining climate system is deserving of fundamental status as essential to our scheme of ordered liberty because it is “preservative of all rights.” …

…

… A stable climate system is fundamental to Hawai‘i’s constitutional guarantees, including “the right to personal security[,]”and the right to bodily integrity.If the PUC continues to permit energy projects which emit high levels of greenhouse gases, it will be contributing to the destruction of resources essential to public health and Hawaiian culture, which in turn undermines all fundamental rights guaranteed by the Hawaiʻi Constitution.

The climate system is a “natural resource” held in trust by the State for the benefit of present and future generations. …

… The public trust “does not remain fixed for all time, but must conform to changing needs and circumstances.” …

… In applying the PUC’s public trust duty to its decision whether to approve or deny the amended PPA, Article XI, section 1 of the Hawaiʻi Constitution requires the PUC to consider the Project’s contribution to, or mitigation of, the climate emergency. An agency’s constitutional public trust obligations are independent of its statutory mandates, but they operate in tandem.

VII.Conclusion

We are facing a sui generis climate emergency. The lives of our children and future generations are at stake. With the destruction of our life-sustaining biosphere underway, the State of Hawai‘i is constitutionally mandated to urgently reduce its greenhouse gas emissions … .

In addition to the Urgenda case, described by Rodriguez-Garavito, two other cases are especially important in illustrating different issues and approaches in this area, the first from Germany and the second from the Netherlands.

NEUBAUER ET AL. V. GERMANY FEDERAL CONSTITUTIONAL COURT OF GERMANY (ORDER OF 24 MARCH 2021)

Facts of the case:

[Four different groups filed complaints. Two were groups of young people, one was an environmental NGO, and another was a group of individuals from Bangladesh and Nepal. The complaints were considered jointly by the court.]

…[T]he complainants primarily claim that the state, in enacting § 3(1) and § 4(1) third sentence [of the Federal Climate Change Act of 12 December 2019 (the KSG)] in conjunction with Annex 2, has failed to introduce a legal framework sufficient for swiftly reducing greenhouse gases, … to limit the increase in the Earth’s temperature to 1.5°C, or at least to well below 2°C. … [T]he complainants − some of whom live in Bangladesh and Nepal − rely primarily on constitutional duties of protection arising from Art. 2(2) first sentence GG and Art. 14(1) GG, as well as on a fundamental right to a future in accordance with human dignity and a fundamental right to an ecological minimum standard of living, which they derive from Art. 2(1) GG in conjunction with Art. 20a GG and from Art. 2(1) GG in conjunction with Art. 1(1) first sentence GG. With regard to future burdens arising from the obligations to reduce emissions for periods after 2030 – which they describe as an “emergency stop” – the complainants rely on fundamental freedoms more generally.

[Note the following provisions of the Basic Law (the GG):

Art. 1(1): Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

Art. 2(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.

Art. 2(2): Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.

Art. 20a: Mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.]

Key considerations of the Senate:

I. Where the complainants are natural persons, their constitutional complaints are admissible. The two environmental associations, however, have no standing to lodge a constitutional complaint. …

II. It cannot be ascertained that duties of protection arising from Art. 2(2) first sentence GG and Art. 14(1) GG are violated due to the risks posed by climate change.

The protection of life and physical integrity under Art. 2(2) first sentence GG encompasses protection against impairments caused by environmental pollution, regardless of who or what circumstances are the source of the impairment. The state’s duty of protection arising from Art. 2(2) first sentence GG also encompasses the duty to protect life and health against the risks posed by climate change, including climate-related extreme weather events such as heat waves, forest fires, hurricanes, heavy rainfall, floods, avalanches and landslides. It can furthermore give rise to an objective duty to protect future generations. Since climate change can moreover result in damage being caused to property such as agricultural land or real estate (e.g. due to rising sea levels or droughts), the fundamental right to property under Art. 14(1) GG also imposes a duty of protection on the state with regard to the property risks caused by climate change.

Given the leeway afforded to the legislator in fulfilling these duties of protection, no violation of these duties can be ascertained. …

There is no need to decide at this point whether duties of protection arising from fundamental rights also place Germany under an obligation vis-à-vis the complainants living in Bangladesh and Nepal to take action against impairments – both potential and actual – caused by global climate change. Ultimately, no violation of a duty of protection arising from fundamental rights could be ascertained here either.

III. However, fundamental rights are violated by the fact that the emission amounts allowed until 2030 … substantially narrow the remaining options for reducing emissions after 2030, thereby jeopardising practically every type of freedom protected by fundamental rights. As intertemporal guarantees of freedom, fundamental rights afford the complainants protection against comprehensive threats to freedom caused by the greenhouse gas reduction burdens that are mandatory under Art. 20a GG being unilaterally offloaded onto the future. The legislator should have taken precautionary steps to ensure a transition to climate neutrality that respects freedom – steps that have so far been lacking.

1. The challenged provisions have an advance interference-like effect on the freedom comprehensively protected by the Basic Law.

2. It cannot presently be ascertained that § 3(1) second sentence and § 4(1) third sentence KSG in conjunction with Annex 2 violate Art. 20a GG.

a) Art. 20a GG places the state under an obligation to take climate action and is aimed at achieving climate neutrality. Climate action does not take absolute precedence over other interests. In cases of conflict, it must be balanced with other constitutional interests and principles. However, given that climate change is currently deemed to be almost entirely irreversible, any behaviour that leads to an exceeding of the critical temperature threshold for achieving the constitutional climate goal would only be justifiable under strict conditions – such

as for the purpose of protecting fundamental rights. Within the balancing process, the obligation to take climate action is accorded increasing weight as climate change intensifies.

The obligation to take climate action arising from Art. 20a GG is not invalidated by the fact that the climate and global warming are worldwide phenomena and that the problems of climate change cannot therefore be resolved by the mitigation efforts of any one state on its own. The climate action mandate enshrined in Art. 20a GG possesses a special international dimension. Art. 20a GG obliges the state to involve the supranational level in seeking to resolve the climate problem. The state cannot evade its responsibility by pointing to greenhouse gas emissions in other states. On the contrary, the particular reliance on the international community here gives rise to the constitutional necessity to actually implement one’s own climate action measures at the national level and not to create incentives for other states to undermine the required cooperation.

The open normative content of Art. 20a GG and its explicitly formulated reference to legislation do not preclude constitutional review of compliance with the obligation to take climate action; Art. 20a GG is a justiciable legal provision designed to commit the political process to a favouring of ecological interests, partly with a view to future generations who will be particularly affected.

In declaring under § 1 third sentence KSG that the Act is based on the Paris target, the legislator is exercising its mandate and prerogative to specify the constitution by formulating the climate goal of Art. 20a GG in a permissible manner, setting out that the increase in the global average temperature should be limited to well below 2°C and preferably 1.5°C above pre-industrial levels. This must also form part of the basis for constitutional review.

b) …

… [Based on IPCC figures], the German Advisory Council on the Environment has calculated a specific remaining national budget for Germany from 2020 onwards that would be compatible with the Paris target. Due to the uncertainties and assumptions involved in the approach, the calculated size of the budget cannot, at this point, serve as an exact numerical benchmark for constitutional review. Some decision-making leeway is retained by the legislator. However, the legislator is not entirely free when it comes to using this leeway. If there is scientific uncertainty regarding causal relationships of environmental relevance, Art. 20a GG imposes a special duty of care on the legislator. This entails an obligation to even take account of mere indications pointing to the possibility of serious or irreversible impairments, as long as these indications are sufficiently reliable.

At this point, no violation of the aforementioned duty of care can be ascertained. …

3. § 3(1) second sentence and § 4(1) third sentence KSG in conjunction with Annex 2 do not, however, satisfy the requirement arising from the principle of proportionality that the reduction in CO2 emissions to the point of climate neutrality that is constitutionally necessary under Art. 20a GG be distributed over time in a forwardlooking manner that respects fundamental rights.

a) According to this requirement, one generation must not be allowed to consume large portions of the CO2 budget while bearing a relatively minor share of the reduction effort if this would involve leaving subsequent generations with a drastic reduction burden and expose their lives to comprehensive losses of freedom. At some point in the future, even serious losses of freedom may be deemed proportionate and justified under constitutional law in order to prevent climate change. This is precisely what gives rise to the risk of having to accept considerable losses of freedom. However, since the current provisions on allowable emission amounts have now already established a path to future burdens on freedom, the impacts on future freedom must be proportionate from today’s perspective. Furthermore, the objective duty of protection arising from Art. 20a GG encompasses the necessity to treat the natural foundations of life with such care and to leave them in such condition that future generations who wish to continue preserving these foundations are not forced to engage in radical abstinence.

The efforts required under constitutional law to reduce greenhouse gas emissions after 2030 will be considerable. Whether they will be so drastic as to entail unacceptable impairments of fundamental rights from today’s perspective is impossible to determine. However, the risk of serious burdens is significant and can only be reconciled with the potentially affected fundamental rights if precautionary steps are taken to manage the

reduction efforts anticipated after 2030 in ways that respect fundamental rights. This also requires initiating the transition to climate neutrality in good time. In specific terms, this means that transparent guidelines for the further structuring of greenhouse gas reduction must be formulated at an early stage, providing orientation for the required development and implementation processes and conveying a sufficient degree of developmental urgency and planning certainty. Here, it is imperative under constitutional law that further reduction measures are defined in good time for the post-2030 period, extending sufficiently far into the future. Moreover, further annual emission amounts and reduction measures must be defined in such detail that sufficiently specific orientation is provided.

c) … The legislator must at the very least determine the size of the annual emission amounts to be set for periods after 2030 itself or impose more detailed requirements for their definition by the executive authority responsible for issuing the ordinance.

[Note: In response, the legislature adopted new reduction targets, effective from 31 August 2021, to achieve a 65 percent reduction in GHGs from 1990 levels by 2030.]

MILIEUDEFENSIE ET AL. V. ROYAL DUTCH SHELL PLC THE HAGUE DISTRICT COURT (JUDGMENT OF 26 MAY 2021)

[The co-plaintiffs were Milieudefensie, Greenpeace Nederland, Fossielvrij NL, Waddenvereniging, Both Ends, Jongeren Milieu Actief, ActionAid, and 17,379 individual claimants. Royal Dutch Shell (RDS) is a public limited company, established under the laws of England and Wales, and with its head office in The Hague. It is the top holding company of the Shell group, which also includes ‘intermediate parents, Operating Companies and Service Companies’. RDS is the direct or indirect shareholder of over 1,100 separate companies worldwide. It was claimed that Shell’s contributions to global warming violated its duty of care under Dutch law and human rights.]

4.2. Admissibility

1.Admissibilityofclassactions

4.2.2. The class actions of Milieudefensie et al. are public interest actions. Such actions seek to protect public interests, which cannot be individualized because they accrue to a much larger group of persons, which is undefined and unspecified. The common interest of preventing dangerous climate change by reducing CO2 emissions can be protected in a class action. … [The issue is whether] the interests in question [are] suitable for bundling so as to safeguard an efficient and effective legal protection of the stakeholders.

4.2.3. The court is of the opinion that the interests of current and future generations of the world’s population … is not suitable for bundling. Although the entire world population is served by curbing dangerous climate change, there are huge differences in the time and manner in which the global population at various locations will be affected by global warming … . …

4.2.4. However, the interests of current and future generations of Dutch residents and … of the inhabitants of the Wadden Sea area, a part of which is located in the Netherlands … are suitable for bundling, even though in the Netherlands and in the Wadden region there are differences in time, extent and intensity [of future climate change] caused by CO2 emissions. …

4.2.5. The interest served with the class action must align with the objects stated in the articles of association and must also actually be promoted. Milieudefensie, Greenpeace Nederland, Fossielvrij NL, Waddenvereniging, Both Ends and Jongeren Milieu Actief meet this requirement. ActionAid does not meet this requirement, as it does not promote the interests of Dutch residents sufficiently for its collective claim to be allowable. ActionAid’s object … pertains to the world with a special focus on Africa. …

2.Locusstandiofindividualclaimants

4.2.7. … [B]esides a class action there is only room for the claims of individual claimants if they have a sufficiently concrete individual interest. That is not the case here … .

4.4. RDS’ reduction obligation

4.4.1. RDS’ reduction obligation ensues from the unwritten standard of care laid down in Book 6 Section 162 Dutch Civil Code, which means that acting in conflict with what is generally accepted according to unwritten law is unlawful. From this standard of care ensues that when determining the Shell group’s corporate policy, RDS must observe the due care exercised in society. The interpretation of the unwritten standard of care calls for an assessment of all circumstances of the case in question.

4.4.2. In its interpretation of the unwritten standard of care, the court has included: (1.) the policy- setting position of RDS in the Shell group, (2.) the Shell group’s CO2 emissions, (3.) the consequences of the CO2 emissions for the Netherlands and the Wadden region, (4.) the right to life and the right to respect for private and family life of Dutch residents and the inhabitants of the Wadden region, (5.) the UN Guiding Principles, (6.) RDS’ check and influence of the CO2 emissions of the Shell group and its business relations, (7.) what is needed to prevent dangerous climate change, (8.) possible reduction pathways, (9.) the twin challenge of curbing dangerous climate change and meeting the growing global population energy demand, (10.) the ETS system and other ‘cap and trade’ emission systems that apply elsewhere in the world, permits and current obligations of the Shell group, (11.) the effectiveness of the reduction obligation, (12.) the responsibility of states and society, (13.) the onerousness for RDS and the Shell group to meet the reduction obligation, and (14.) the proportionality of RDS’ reduction obligation. …

(1.) the policy-setting position of RDS in the Shell group

4.4.4. From the facts as presented … it follows that RDS determines the general policy of the Shell group. The companies in the Shell group are responsible for the implementation and execution of the policy, and must comply with applicable legislation and their contractual obligations. The implementation responsibility of the Shell companies does not alter the fact that RDS determines the general policy of the Shell group.

(2.) the Shell group’s CO2 emissions

4.4.5. … [T]he Shell group is a major player on the worldwide market of fossil fuels [and] … is responsible for significant CO2 emissions all over the world. …

(3.) the consequences of CO2 emissions for the Netherlands and the Wadden region

4.4.6. The temperature rise in the Netherlands (approximately 1.7 degrees above the pre- industrial temperature) has so far developed about twice as fast as the global average … . …

(4.) the right to life and the right to respect for private and family life of Dutch residents and the inhabitants of the Wadden region

4.4.9. Milieudefensie et al invoke the right to life and the right to respect for private and family life [in the ECHR and the ICCPR]. … [They] cannot directly invoke these human rights with respect to RDS. Due to the fundamental interest of human rights and the value for society as a whole they embody, the human rights may play a role in the relationship between Milieudefensie et al. and RDS. Therefore, the court will factor in the human rights and the values they embody in its interpretation of the unwritten standard of care.

4.4.10. From the Urgenda ruling it can be deduced that Articles 2 and 8 ECHR offer protection against the consequences of dangerous climate change due to CO2 emissions induced global warming. [The court then

refers to the Human Rights Committee’s General Comment No. 36 and the 2019 report of the Special Rapporteur on environment.] …

RDS’ argument that the human rights invoked by Milieudefensie et al. offer no protection against dangerous climate change therefore does not hold. The serious and irreversible consequences of dangerous climate change … pose a threat to the human rights of Dutch residents and the inhabitants of the Wadden region.

(5.) the UN Guiding Principles (UNGP)

4.4.11. In its interpretation of the unwritten standard of care, the court follows the UN Guiding Principles (UNGP). The UNGP constitute an authoritative and internationally endorsed ‘soft law’ instrument … . … Due to the universally endorsed content of the UNGP, it is irrelevant whether or not RDS has committed itself to the UNGP, although RDS states on its website to support the UNGP. [The court then undertakes a lengthy analysis of the UNGP.]

…

4.4.37. In answering the question what can be expected of RDS, the court considers that an important characteristic of the imminent environmental damage in the Netherlands and the Wadden region at issue here is that every emission of CO2 and other greenhouse gases, anywhere in the world and caused in whatever manner, contributes to this damage and its increase. … [The fact] that RDS is not the only party responsible for tackling dangerous climate change in the Netherlands and the Wadden region does not absolve RDS of its individual partial responsibility to contribute to the fight against dangerous climate change according to its ability. … [M]uch may be expected of RDS in this regard, considering it is the policy- setting head of the Shell group, a major player on the fossil fuel market and responsible for significant CO2 emissions, which incidentally exceed the emissions of many states … . …

(11.) the effectiveness of the reduction obligation

4.4.49. RDS argues that the reduction obligation will have no effect, or even be counterproductive, because the place of the Shell group will be taken by competitors. Even if this were true, it will not benefit RDS. Due to the compelling interests which are served with the reduction obligation, this argument cannot justify assuming beforehand there is no need for RDS to not meet this obligation. …

4.4.50. The question also is whether this argument of RDS is actually valid. What this argument assumes is perfect substitution, whereby the place of the Shell group will be taken over one-on-one by other parties. However, it remains to be seen whether this circumstance will transpire. …

(12.) the responsibility of states and society

4.4.51. … According to RDS, private parties cannot take any steps until states determine the frameworks. RDS also argues that government policy is needed to bring about the required change of the energy market. RDS also claims that the energy transition must be achieved by society as a whole, not by just one private party. …

4.4.52. … [The undisputed] responsibility of other parties and the uncertainty whether states and society as a whole will manage to achieve the goals of the Paris Agreement, do not absolve RDS of its individual responsibility … . Due to the compelling interests which are served with the reduction obligation, RDS must do its part with respect to the emissions over it has control and influence. It is an individual responsibility that falls on RDS, of which much may be expected. …

(13.) the onerousness of the reduction obligation on RDS

4.4.53. RDS argues that imposing a reduction obligation on it will lead to unfair competition and a disruption of the ‘level playing field’ on the oil and gas market. RDS has failed to specify this argument. … The court assumes that the reduction obligation will have far-reaching consequences for RDS and the Shell group. … However, the interest served with the reduction obligation outweighs the Shell group’s commercial interests …

. Due to the serious threats and risks to the human rights of Dutch residents and the inhabitants of the Wadden region, private companies such as RDS may also be required to take drastic measures and make financial sacrifices to limit CO2 emissions to prevent dangerous climate change. For these reasons, RDS’ argument, namely that accepting the reduction obligation, as advocated by Milieudefensie et al., is highly unusual and has no precedent, does not benefit RDS.

Conclusion on RDS’ reduction obligation

4.4.55. The court concludes that RDS is obliged to reduce the CO2 emissions of the Shell group’s activities by net 45% at end 2030, relative to 2019, through the Shell group’s corporate policy. This reduction obligation relates to the Shell group’s entire energy portfolio and to the aggregate volume of all emissions … . It is up to RDS to design the reduction obligation, taking account of its current obligations. The reduction obligation is an obligation of result for the activities of the Shell group. …

4.5. Policy …

4.5.3. … There is no room for weighing interests. Therefore, the court disregards RDS’ argument about the desirability/undesirability of claims such as this one, and whether or not this invites everyone in global society to lodge claims against each other. RDS’ argument that it is not appropriate to impose a court order on one private party fails on the basis of the considerations on RDS’ legal obligation … .

…

[Note: On 20 July 2022, Shell appealed the decision.]

M K RANJITSINH & ORS. V. UNION OF INDIA & ORS. SUPREME COURT OF INDIA ORIGINAL CIVIL JURISDICTION, WRIT PETITION (CIVIL) NO.

838 OF 2019

JUDGMENT

DR DHANANJAYA Y, CHANDRACHUD, CJI

OF MARCH 21, 2024

[The case involved an application for measures to protect the Great Indian Bustard and the Lesser Florican, both of which are threatened with extinction. The Indian Government and others objected to the sweeping nature of the orders given by the Court on 19 April 2021, and appealed for modifications.]

C. The mission to combat climate change

I.India’scommitmentunderinternationalconventions

[The Court reviewed India’s engagement in the Kyoto Protocol, the UNFCC, and the Paris Agreement.]

II.Therighttoahealthyenvironmentandtherighttobefreefromtheadverseeffectsofclimate change

19. … [T]here is no single or umbrella legislation in India which relates to climate change and the attendant concerns. However, this does not mean that the people of India do not have a right against the adverse effects of climate change.

20. Article 48A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Clause (g) of Article 51A stipulates that it shall be the duty of every citizen of India to protect and improve the natural environment … . Although these are not justiciable provisions of the Constitution, they are indications that the Constitution recognises the importance of the natural world. The importance of the environment … becomes a right in other parts of the Constitution. Article 21 recognises the right to life and personal liberty while Article 14 indicates that all persons

shall have equality before law and the equal protection of laws. These articles are important sources of the right to a clean environment and the right against the adverse effects of climate change.

21. In M.C. Mehta v. Kamal Nath, this Court held that Articles 48A and 51A(g) must be interpreted in light of Article 21 … .

22. In Virender Gaur v. State of Haryana, this Court recognised the right to a clean environment in the following terms:

“7. … The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. … [T]here is a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment.”

23. In Karnataka Industrial Areas Development Board v. C. Kenchappa, this Court took note of the adverse effects of rising sea levels and rising global temperatures. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group, this Court recognised that climate change posed a “major threat” to the environment.

24. Despite a plethora of decisions on the right to a clean environment …, it is yet to be articulated that the people have a right against the adverse effects of climate change. … As the havoc caused by climate change increases year by year, it becomes necessary to articulate this as a distinct right. It is recognised by Articles 14 and 21.

25. Without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised. The right to health (which is a part of the right to life under Article 21) is impacted due to … [many factors]. The inability of underserved communities to adapt to climate change or cope with its effects violates the right to life as well as the right to equality. …

27. The right to equality under Article 14 and the right to life under Article 21 must be appreciated in the context of the decisions of this Court, the actions and commitments of the state on the national and international level, and scientific consensus on climate change and its adverse effects. …

28. [The Court quoted extensively from a 2019 joint statement by five UN treaty bodies noting that] “…State parties have obligations, including extra-territorial obligations, to respect, protect and fulfil all human rights of all peoples. Failure to take measures 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.”

[The Court invoked the preamble of the Paris Agreement linking climate change and human rights, referred to analyses by the UN Special Rapporteur on Human Rights and the Environment, and noted the Inter-American Court’s 2017 advisory opinion in 2017 on the right to a healthy environment.]

35. … [T]he right to a healthy environment encapsulates the principle that every individual has the entitlement to live in an environment that is clean, safe, and conducive to their well-being. By recognizing the right to a healthy environment and the right to be free from the adverse effects of climate change, states are compelled to prioritize environmental protection and sustainable development, thereby addressing the root causes of climate change and safeguarding the well- being of present and future generations. It is imperative for states like India, to uphold their obligations under international law, including their responsibilities to mitigate greenhouse gas emissions, adapt to climate impacts, and protect the fundamental rights of all individuals to live in a healthy and sustainable environment. …

44. Climate change litigation serves as a pivotal tool in advancing rights-based energy transitions and promoting energy justice, intertwined with human rights principles. …

45. Internationally, courts have been confronted with the challenging task of adjudicating cases where significant issues related to climate change are at stake….

[The Court then recounts the details of several cases, including State of the Netherlands v. Urgenda Foundation, Sacchi, et al. v. Argentina (UN Committee on the Rights of the Child), Ioane Teitiota v. New Zealand (UN Human Rights Committee).]

50. These cases, all instituted and decided in the past decade, indicate the type of concerns which will travel to the courts in the next few years.

58. India’s international obligations and commitments in the present case (detailed in the preceding segments of this judgment) have not been enacted in domestic law. Regardless, the Court must be alive to these obligations while adjudicating writ petitions which seek reliefs that may hinder these obligations from being fulfilled or otherwise interfere with India’s international commitments as well as the right to be free from the adverse effects of climate change.

…

61. Moreover, the decision on whether to convert the overhead power transmission lines into underground lines is a matter of environmental policy. While adjudicating writ petitions which seek reliefs which are of the nature sought in the present case, this Court must conduct judicial review while relying on domain experts. Those who are equipped and trained to assess the various facets of a problem which is litigated before the Court must be consulted before a decision is taken. If this is not done, the Court may be in danger of passing directions without a full understanding of the issue in question. Consequently, in the absence of evidence which forms a certain basis for the directions sought, this Court must be circumspect in issuing sweeping directions. … [I]t will be appropriate if an expert committee is appointed. The committee may balance the need for the preservation of the GIB which is non- negotiable, on one hand, with the need for sustainable development, especially in the context of meeting the international commitments of the country towards promoting renewable sources of energy, on the other hand. By leveraging scientific expertise and engaging stakeholders in meaningful consultations, this approach ensures that conservation efforts are grounded in evidence and inclusive of diverse perspectives.

70. We request the Committee to complete its task and submit a report to this Court through the Union Government on or before 31 July 2024. …

2. International and Regional human Rights Bodies

The Human Rights Committee, the Committee on the Rights of the Child, and the Inter-American Commission and Court have all made important contributions to the climate change debate. Before reading those, consider the caution urged by Benoit Mayer, in ‘Climate Change Mitigation as an Obligation Under Human Rights Treaties?’, 115 Am. J. Int’l L. (2021) 409:

[H]ow far a human rights treaty requires a state to comply with its general mitigation obligations … depends on the personal scope of the treaty and the importance of the right at issue, as well as the potential benefits of climate change mitigation for the enjoyment of the right, and its unintended consequences for the enjoyment of rights, within the state’s territory or under its jurisdiction.

… [H]uman rights treaties may have a rather limited role to play with regard to climate change mitigation. In fact, the interpretation of human rights treaties as the source of mitigation obligations faces some of the major hurdles that have hindered international cooperation on climate change mitigation in the last three decades. For one thing, human rights treaties view nature mostly in instrumental terms, and largely ignore the interests of future generations. Overall, international human rights law encourages each state to

protect the rights of individuals within its territory rather than to cooperate on the global common good. This inherent tension between national interests and international cooperation will not be solved through an incremental extension of international human rights law, be it through the recognition of new rights (e.g., to a healthy environment or a sustainable climate), the identification of fictitious rights-holders (e.g., “future generations” or “Mother Earth”), or the extension of the extraterritorial application of human rights treaties not, that is, without betraying the text, and the object and purpose, of human rights treaties, and using them as a Trojan horse at the service of extraneous objectives.

IOANE TEITIOTA V. NEW ZEALAND U.N. HUMAN RIGHTS COMMITTEE, FINAL VIEWS, UN DOC. CCPR/C/127/D/2728/2016 (24 OCTOBER 2019)

1.1 The author of the communication is Ioane Teitiota, a national of Kiribati born in the 1970s. His application for refugee status in New Zealand was rejected. He claims that the State party violated his right to life under the Covenant by removing him to Kiribati in September 2015. …

Factual background

2.1 The author claims that the effects of climate change and sea level rise forced him to migrate from the island of Tarawa in Kiribati to New Zealand. The situation in Tarawa has become increasingly unstable and precarious due to sea level rise caused by global warming. Fresh water has become scarce because of saltwater contamination and overcrowding on Tarawa. Attempts to combat sea level rise have largely been ineffective. Inhabitable land on Tarawa has eroded, resulting in a housing crisis and land disputes that have caused numerous fatalities. Kiribati has thus become an untenable and violent environment for the author and his family.

2.2 The author has sought asylum in New Zealand, but the Immigration and Protection Tribunal issued a negative decision concerning his claim for asylum. … The Court of Appeal and the Supreme Court each denied the author’s subsequent appeals concerning the same matter.

Issues and proceedings before the Committee … Consideration of the merits

9.2 The Committee notes the author’s claim that by removing him to Kiribati, the State party subjected him to a risk to his life in violation of article 6 of the Covenant, and that the State party’s authorities did not properly assess the risk inherent in his removal.

[The Committee recalls relevant provisions of its General Comment No. 31 (2004) and No. 36 (2018).]

9.5 … [E]nvironmental degradation can compromise effective enjoyment of the right to life, and … severe environmental degradation can adversely affect an individual’s well-being and lead to a violation of the right to life.

9.6 In the present case, … the Immigration and Protection Tribunal found … that there was no evidence that: (a) the author had been in any land disputes in the past, or faced a real chance of being physically harmed in such a dispute in the future; (b) the author would be unable to find land to provide accommodation for himself and his family; (c) the author would be unable to grow food or access potable water; (d) the author would face life-threatening environmental conditions; (e) the author’s situation was materially different from that of every other resident of Kiribati; or (f) the Government of Kiribati had failed to take programmatic steps to provide for the basic necessities of life, in order to meet its positive obligation to fulfil the author’s right to life. …

9.7 In assessing whether the State party’s authorities provided the author with an adequate and individualized assessment of the risk of a threat to his right to life, the Committee first notes the author’s claim that the increasing scarcity of habitable land on Tarawa has led to violent land disputes that have resulted in fatalities. In that connection, the Committee considers that a general situation of violence is only of sufficient intensity to create a real risk of irreparable harm under articles 6 or 7 of the Covenant in the most extreme cases, where there is a real risk of harm simply by virtue of an individual being exposed to such violence on return, or where the individual in question is in a particularly vulnerable situation. In assessing the author’s circumstances, the Committee notes the absence of a situation of general conflict in Kiribati. … While the Committee does not dispute the evidence proffered by the author, it considers that the author has not demonstrated clear arbitrariness or error in the domestic authorities’ assessment as to whether he faced a real, personal and reasonably foreseeable risk of a threat to his right to life as a result of violent acts resulting from overcrowding or private land disputes in Kiribati.

9.8 The Committee also notes the author’s claims before the domestic authorities that he would be seriously harmed by the lack of access to potable water on Tarawa … [but concludes] that the author has not provided sufficient information indicating that the supply of fresh water is inaccessible, insufficient or unsafe so as to produce a reasonably foreseeable threat of a health risk that would impair his right to enjoy a life with dignity or cause his unnatural or premature death.

9.9 The Committee further notes the author’s claim before the domestic authorities that his right to life had been violated because he had been deprived of his means of subsistence, as his crops had been destroyed due to salt deposits on the ground. … The information made available to the Committee does not indicate that when the author’s removal occurred, there was a real and reasonably foreseeable risk that he would be exposed to a situation of indigence, deprivation of food and extreme precarity that could threaten his right to life, including his right to a life with dignity. …

9.12 In the present case, the Committee accepts the author’s claim that sea level rise is likely to render Kiribati uninhabitable. However, it notes that the time frame of 10 to 15 years, as suggested by the author, could allow for intervening acts by Kiribati, with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population. …

9.14 Without prejudice to the continuing responsibility of the State party to take into account in future deportation cases the situation at the time in Kiribati and new and updated data on the effects of climate change and rising sea levels thereupon, the Committee is not in a position to hold that the author’s rights under article 6 of the Covenant were violated upon his deportation to Kiribati in 2015.

CHIARA SACCHI ET AL. V. TURKEY

COMMITTEE ON THE RIGHTS OF THE CHILD, DECISION UNDER THE OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON COMMUNICATION NO. 108/2019, UN DOC. CRC/C/88/D/108/2019 (22 SEPTEMBER 2021)

[Complaints were also brought by the same authors against Argentina, Brazil, France, and Germany, resulting in separate but virtually identical analyses by the Committee.]

655

1.1 The authors of the communication are Chiara Sacchi, a national of Argentina [and nationals from Brazil, France, Germany, India, the Marshall Islands, Nigeria, Palau, South Africa, Sweden, Tunisia, and the USA. All were then under the age of 18.] They claim that, by failing to prevent and mitigate the consequences of climate change, the State party has violated their rights under articles 6, 24 and 30, read in conjunction with article 3, of the Convention. The Optional Protocol entered into force for [Turkey] on 26 March 2018.

…

655 See also Committee on the Rights of the Child, General Comment No. 26 (2023) on children’s rights and the environment, with a special focus on climate change.

Facts as submitted by the authors

2. The authors claim that, by causing and perpetuating climate change, the State party has failed to take the necessary preventive and precautionary measures to respect, protect and fulfil the authors’ rights to life, health and culture. They claim that the climate crisis is not an abstract future threat. The 1.1°C rise in global average temperature is currently causing devastating heat waves, forest fires, extreme weather patterns, floods and sea level rise, and fostering the spread of infectious diseases, infringing on the human rights of millions of people globally. Given that children are among the most vulnerable, physiologically and mentally, to these lifethreatening impacts, they will bear a far heavier burden and for far longer than adults.

Complaint

…

3.7 The authors request that the Committee find: (a) that climate change is a children’s rights crisis; (b) that the State party, along with other States, has caused and is perpetuating the climate crisis by knowingly acting in disregard of the available scientific evidence regarding the measures needed to prevent and mitigate climate change; and (c) that, by perpetuating life-threatening climate change, the State party is violating the authors’ rights to life, health and the prioritization of the best interests of the child, as well as the cultural rights of the authors from indigenous communities.

3.8 The authors further request that the Committee recommend: (a) that the State party review and, where necessary, amend its laws and policies to ensure that mitigation and adaptation efforts are accelerated to the maximum extent of available resources and on the basis of the best available scientific evidence to protect the authors’ rights and make the best interests of the child a primary consideration, particularly in allocating the costs and burdens of climate change mitigation and adaption; (b) that the State party initiate cooperative international action – and increase its efforts with respect to existing cooperative initiatives – to establish binding and enforceable measures to mitigate the climate crisis, prevent further harm to the authors and other children, and secure their inalienable rights; and (c) that, pursuant to article 12 of the Convention, the State party ensure the child’s right to be heard and to express his or her views freely, in all international, national and subnational efforts to mitigate or adapt to the climate crisis and in all efforts taken in response to the authors’ communication.

Issues and proceedings before the Committee Consideration of admissibility

…

Jurisdiction

9.2 The Committee notes the State party’s submission that the complaint is inadmissible for lack of jurisdiction as none of the authors reside in the State party and as they have no legal or factual relationship with it. The Committee also notes that authors’ argument that they are within the State party’s jurisdiction as victims of the foreseeable consequences of the State party’s domestic and cross-border contributions to climate change and the carbon pollution knowingly emitted, permitted or promoted by the State party from within its territory. The Committee further notes the authors’ claims that the State party’s acts and omissions perpetuating the climate crisis have already exposed them throughout their childhood to the foreseeable, life-threatening risks of climate change caused by humans.

9.3 Under article 2 (1) of the Convention, States parties have the obligation to respect and ensure the rights of “each child within their jurisdiction”. Under article 5 (1) of the Optional Protocol, the Committee may receive and consider communications submitted by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party of any of the rights set forth in the Convention. The Committee observes that, while neither the Convention nor the Optional Protocol make any reference to the term “territory” in its application of jurisdiction, extraterritorial jurisdiction should be interpreted restrictively.

9.4 The Committee notes the relevant jurisprudence of the Human Rights Committee and the European Court of Human Rights referring to extraterritorial jurisdiction. Nevertheless, that jurisprudence was developed and

applied to factual situations that are very different to the facts and circumstance of this case. The authors’ communication raises novel jurisdictional issues of transboundary harm related to climate change.

9.7 [T]he Committee finds that the appropriate test for jurisdiction in the present case is that adopted by the Inter-American Court of Human Rights in its Advisory Opinion on the environment and human rights. This implies that, when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated for the purposes of article 5 (1) of the Optional Protocol 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. The Committee considers that, while the required elements to establish the responsibility of the State are a matter of merits, the alleged harm suffered by the victims needs to have been reasonably foreseeable to the State party at the time of its acts or omissions even for the purpose of establishing jurisdiction.

9.8 The Committee notes the authors’ claims that, while climate change and the subsequent environmental damage and impact on human rights it causes are global collective issues that require a global response, States parties still carry individual responsibility for their own acts or omissions in relation to climate change and their contribution to it. The Committee also notes the authors’ argument that the State party has effective control over the source of carbon emissions within its territory, which have a transboundary effect.

9.9 The Committee considers that it is generally accepted and corroborated by scientific evidence that the carbon emissions originating in the State party contribute to the worsening of climate change, and that climate change has an adverse effect on the enjoyment of rights by individuals both within and beyond the territory of the State party. The Committee considers that, through its ability to regulate activities that are the source of these emissions and to enforce such regulations, the State party has effective control over the emissions.

9.10 In accordance with the principle of common but differentiated responsibilities, 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.

9.11 Regarding the issue of foreseeability, the Committee notes the authors’ uncontested argument that the State party has known about the harmful effects of its contributions to climate change for decades … . [Thus] the potential harm of the State party’s acts or omissions regarding the carbon emissions originating in its territory was reasonably foreseeable to the State party.

9.12 … [T]he Committee must now determine whether there is a sufficient causal link between the harm alleged by the authors and the State party’s actions or omissions for the purposes of establishing jurisdiction. …

Victim status

9.13 … The Committee considers that, as children, the authors are particularly affected by the effects of climate change, both in terms of the manner in which they experience its effects and the potential of climate change to have an impact on them throughout their lifetimes, particularly if immediate action is not taken. Due to the particular impact on children, and the recognition by States parties to the Convention that children are entitled to special safeguards, including appropriate legal protection, States have heightened obligations to protect children from foreseeable harm.

9.14 Taking the above-mentioned factors into account, the Committee concludes that the authors have sufficiently justified, for the purposes of establishing jurisdiction, that the impairment of their Convention rights as a result of the State party’s acts or omissions regarding the carbon emissions originating within its territory was reasonably foreseeable. It also concludes that the authors have established prima facie that they have personally experienced real and significant harm in order to justify their victim status. …

Exhaustion of domestic remedies

9.15 … [T]he Committee notes the State party’s argument that domestic remedies are available to the authors … [and] that non-nationals, including children, have standing in said procedures and that legal aid is available. The Committee further notes the authors’ argument that it is most likely that the domestic courts would dismiss their claims for lack of standing.

9.17 In the present case, the Committee notes that the authors have not attempted to initiate any domestic proceedings in the State party … . … In the absence of further reasoning from the authors as to why they did not attempt to pursue these remedies, other than generally expressing doubts about the prospects of success of any remedy, the Committee considers that the authors have failed to exhaust all domestic remedies that were reasonably effective and available to them to challenge the alleged violation of their rights under the Convention.

9.19 The Committee notes the authors’ argument that pursuing remedies in the State party would be unreasonably prolonged and notes that the authors refer to one case in the State party which took 14 years to decide. Nevertheless, the Committee considers that the authors have failed to establish the connection of that case with the remedies that would be available within the State party to address their specific claims or to otherwise indicate how the deciding periods would be unreasonably prolonged or unlikely to bring relief … . The Committee concludes that … the authors have failed to exhaust domestic remedies.

9.20 Consequently, the Committee finds the communication inadmissible for failure to exhaust domestic remedies under article 7 (e) of the Optional Protocol.

DANIEL BILLY ET AL. V. AUSTRALIA

HUMAN RIGHTS COMMITTEE, VIEWS UNDER THE OPTIONAL PROTOCOL, COMMUNICATION NO. 3624/2019

(21 JULY 2022)

1.1 The eight authors of the communication are Daniel Billy, Ted Billy, Nazareth Fauid, Stanley Marama, Yessie Mosby, Keith Pabai, Kabay Tamu and Nazareth Warria, born in 1983, 1957, 1965, 1967, 1982, 1964, 1991 and 1973, respectively. They are nationals of Australia and residents of the Torres Strait region. They act in their own names and on behalf of five children … .

The facts as submitted by the authors

2.1 The authors belong to the indigenous minority group of the Torres Strait Islands and live on … four islands … . The indigenous people of the Torres Strait Islands, especially the authors who reside in low-lying islands, are among the most vulnerable populations to the impact of climate change.

2.3 Sea level rise already caused flooding and erosion on the authors’ islands, and higher temperature and ocean acidification produced coral bleaching, reef death, and the decline of seagrass beds and other nutritionally and culturally important marine species. …

2.4 With respect to the impact of climate change on the islands, the village on Boigu … is flooded each year. Erosion has caused the shoreline to advance and has detached a small area from the island. On Masig, a cyclone in March 2019 caused severe flooding and erosion and destroyed buildings. The cyclone resulted in the loss of three metres of shoreline. Approximately one metre of land is lost every year. In addition, a tidal surge in recent years has destroyed family graves, scattering human remains. On Warraber, high tides and strong winds cause seawater to flood the village centre every two to three years. On Poruma, erosion has washed away much of the island’s sand over the past few decades.

2.5 Sea level rise has caused saltwater to intrude into soil of the islands, such that areas previously used for traditional gardening can no longer be cultivated. … Patterns of seasons and winds play a key role in ensuring the authors’ livelihoods and subsistence but are no longer predictable. Precipitation, temperature and monsoon seasons have changed, making it harder for the authors to pass on their traditional ecological knowledge. Seagrass beds and dependent species have disappeared. While crayfish is a fundamental source of food and income for the authors, they no longer find crayfish in areas where coral bleaching has occurred.

2.7 The State party has failed to implement an adaptation programme … [d]espite numerous requests for assistance and funding made to the state and federal authorities … . …

2.8 The State party has also failed to mitigate the impact of climate change. … The State party ranked 43rd out of 45 developed countries in reducing its greenhouse gas emissions [between 1990 and 2016 and] has actively pursued policies that have increased emissions by promoting the extraction and use of fossil fuels, in particular thermal coal for electricity generation.

2.9 There are no available or effective domestic remedies to enforce their rights under articles 2, 6, 17, 24 and 27 of the Covenant. The authors’ rights under the Covenant are not protected in the Constitution or any other legislation applicable to the federal Government. …

Observations of the State party on admissibility and the merits

4.1 … [T]he State party maintains that the communication is inadmissible. The alleged violations of international climate change treaties [and the ICESCR], are inadmissible ratione materiae because they are outside the scope of the present Covenant. … [T]here are stark and significant differences between the Paris Agreement and the Covenant. The two instruments have different aims and scopes. … [I]nterpreting the Covenant through the Paris Agreement would be contrary to the fundamental principles of international law. The ordinary meaning of one treaty cannot be used to supplant the clear language of the Covenant.

4.2 … [As for the authors claim to be victims, there] is no evidence that [they] face any current or imminent threat of a violation of any of the rights they invoked. Moreover, the authors have not shown any meaningful causation or connection between the alleged violations of their rights and the State party’s measures or alleged failure to take measures. … It is not possible, under the rules of State responsibility under international law, to attribute climate change to Australia. … [T]he authors invoke a risk that has not yet materialized.

4.3 … None of the alleged failures to take mitigation measures fall within the scope of the Covenant. It is not possible under international human rights law to attribute climate change to the State party. As a legal matter, it is not possible to trace causal links between the State party’s contribution to climate change, its efforts to address climate change, and the alleged effects of climate change on the enjoyment of the authors’ rights. …

4.4 The authors’ claims with respect to adaptation measures are also without merit, as the alleged adverse effects of climate change have yet to be suffered, if at all, by the authors. Nor are such alleged violations imminent.

4.5 The State party describes in detail the adaptation and mitigation measures it is taking with respect to climate change.

Issues and proceedings before the Committee Consideration of admissibility

7.5 … The Committee observes that it is not competent to determine compliance with other international treaties or agreements. However, to the extent that the authors are not seeking relief for violations of the other treaties before the Committee but rather refer to them in interpreting the State party’s obligations under the Covenant, the Committee considers that the appropriateness of such interpretations relates to the merits of the authors’ claims under the Covenant. …

7.6 [Australia’s claim that it] … cannot be held responsible – as a legal or practical matter – for the [relevant] climate change impacts … require[s] the Committee to contemplate whether … a State party may be considered to have committed a violation of the Covenant rights of an individual, where the harm to the individual allegedly resulted from the failure of the State party to implement adaptation and/or mitigation measures … .

7.7 With respect to adaptation measures, the [authors] have invoked articles 6, 17, 24 (1) and 27, each of which entails positive obligations of States parties to ensure the protection of individuals under their jurisdiction against violations of those provisions.

7.8 With respect to mitigation … information provided by both parties indicates that the State party is and has been in recent decades among the countries in which large amounts of greenhouse gas emissions have been produced. The Committee also notes that the State party ranks high on world economic and human development indicators. In view of the above, the Committee considers that the alleged actions and omissions fall under the State party’s jurisdiction … .

7.9 … [A] person can only claim to be a victim in the sense of article 1 of the Optional Protocol if he or she is actually affected. It is a matter of degree how concretely that requirement should be taken. However, individuals claiming to be a victim of a violation of a right protected under the Covenant must demonstrate either that a State party has, by act or omission, already impaired the exercise of their right or that such impairment is imminent … . If the law or practice has not already been concretely applied to the detriment of such an individual, it must in any event be applicable in such a way that the individual’s risk of being affected is more than a theoretical possibility.

7.10 … [T]he authors – as members of peoples who are the longstanding inhabitants of traditional lands consisting of small, low-lying islands that presumably offer scant opportunities for safe internal relocation – are highly exposed to adverse climate change impacts. It is uncontested that the authors’ lives and cultures are highly dependent on the availability of the limited natural resources to which they have access, and on the predictability of the natural phenomena that surround them. … [They] would likely be unable to finance adequate adaptation measures themselves, on an individual or community level, to adjust to actual or expected climate and its effects in order to moderate harm. The Committee therefore considers that the authors are among those who are extremely vulnerable to intensely experiencing severely disruptive climate change impacts.

Consideration of the merits

Article 6

8.3 The Committee notes the authors’ claim that the events in this case constitute a violation by act and omission of their right to a life with dignity under article 6 of the Covenant, owing to the State party’s failure to perform its duty to provide adaptation and mitigation measures to address climate change impacts that adversely affect their lives, including their way of life. With respect to the State party’s position that article 6 (1) of the Covenant does not obligate it to prevent foreseeable loss of life from climate change, the Committee recalls that the right to life cannot be properly understood if it is interpreted in a restrictive manner, and that the protection of that right requires States parties to adopt positive measures to protect the right to life. The Committee also recalls its general comment No. 36 (2018) on the right to life, in which it established that the right to life also includes the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death (para. 3). The Committee further recalls that the obligation of States parties to respect and ensure the right to life extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life. States parties may be in violation of article 6 of the Covenant even if such threats and situations do not result in the loss of life. The Committee considers that such threats may include adverse climate change impacts, and recalls that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life. The Committee recalls that States parties should take all appropriate measures to address the general conditions in society that may give rise to direct threats to the right to life or prevent individuals from enjoying their right to life with dignity.

8.4 … While the State party notes that socioeconomic entitlements are protected under a separate Covenant, the Committee observes that the preamble of the present Covenant recognizes that the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy their civil and political rights, as well as their economic, social and cultural rights.

8.5 The Committee observes that both it and regional human rights tribunals have established that environmental degradation can compromise effective enjoyment of the right to life … the Committee notes that the TSRA, a government agency, recognised in its report entitled “Torres Strait Climate Change Strategy 2014-18” the vulnerability of the Torres Strait Islands to significant and adverse climate change impacts that affect ecosystems and livelihoods of the Islands’ inhabitants. …

8.6 The Committee … notes that while the authors evoke feelings of insecurity engendered by a loss of predictability of seasonal weather patterns, seasonal timing, tides and availability of traditional and culturally important food sources, they have not indicated that they have faced or presently face adverse impacts to their own health or a real and reasonably foreseeable risk of being exposed to a situation of physical endangerment or extreme precarity that could threaten their right to life, including their right to a life with dignity. [Their claims] mainly relate to their ability to maintain their culture, which falls under the scope of article 27 of the Covenant.

8.7 Regarding the authors’ assertion that their islands will become uninhabitable in 10 years (Boigu and Masig) or 10 to 15 years (Poruma and Warraber) in the absence of urgent action, the Committee recalls that without robust national and international efforts, the effects of climate change may expose individuals to a violation of their rights under article 6 of the Covenant. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized. … The Committee considers that the time frame of 10 to 15 years, as suggested by the authors, could allow for intervening acts by the State party to take affirmative measures to protect and, where necessary, relocate the alleged victims. The Committee considers that the information provided by the State party indicates that it is taking adaptive measures to reduce existing vulnerabilities and build resilience to climate change-related harms in the Islands. Based on the information made available to it, the Committee is not in a position to conclude that the adaptation measures taken by the State party would be insufficient so as to represent a direct threat to the authors’ right to life with dignity.

8.8 In view of the foregoing, the Committee considers that the information before it does not disclose a violation by the State party of the authors’ rights under article 6 of the Covenant.

Article 17

8.9 … The Committee recalls that States parties must prevent interference with a person’s privacy, family or home that arises from conduct not attributable to the State, at least where such interference is foreseeable and serious. Thus, when environmental damage threatens disruption to privacy, family and the home, States parties must prevent serious interference with the privacy, family and home of individuals under their jurisdiction.

8.10 The Committee recalls that the authors depend on fish, other marine resources, land crops, and trees for their subsistence and livelihoods, and depend on the health of their surrounding ecosystems for their own wellbeing. The State party has not contested the authors’ assertions in that regard. The Committee considers that the aforementioned elements constitute components of the traditional indigenous way of life of the authors, who enjoy a special relationship with their territory, and that these elements can be considered to fall under the scope of protection of article 17 of the Covenant. … [It] obligates States parties to adopt positive measures … .

8.11 The Committee takes note of the State party’s extensive and detailed information that it has taken numerous actions to address adverse impacts caused by climate change and carbon emissions generated within its territory. …

8.12 … [The State party] has not contested the factual allegations set forth by the authors concerning the concrete climate change impacts on their home, private life and family. … The Committee considers that when climate change impacts – including environmental degradation on traditional [indigenous] lands in communities where subsistence is highly dependent on available natural resources and where alternative means of subsistence and humanitarian aid are unavailable – have direct repercussions on the right to one’s home, and the adverse

consequences of those impacts are serious because of their intensity or duration and the physical or mental harm that they cause, then the degradation of the environment may adversely affect the well-being of individuals and constitute foreseeable and serious violations of private and family life and the home. … [B]y failing to discharge its positive obligation to implement adequate adaptation measures to protect the authors’ home, private life and family, the State party violated the authors’ rights under article 17 of the Covenant.

Article 27

8.13 The Committee recalls that article 27 establishes and recognizes a right which is conferred on individuals belonging to minority indigenous groups and which is distinct from, and additional to, the other rights which all persons are entitled to enjoy under the Covenant. The Committee recalls that, in the case of indigenous peoples, the enjoyment of culture may relate to a way of life which is closely associated with territory and the use of its resources, including such traditional activities as fishing or hunting. Thus, the protection of this right is directed towards ensuring the survival and continued development of the cultural identity. The Committee further recalls that article 27 of the Covenant, interpreted in the light of the United Nations Declaration on the Rights of Indigenous Peoples, enshrines the inalienable right of indigenous peoples to enjoy the territories and natural resources that they have traditionally used for their subsistence and cultural identity. Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion.

8.14 The Committee notes the authors’ assertion that their ability to maintain their culture has already been impaired … . … [T]he State party has not refuted the authors’ arguments that they could not practice their culture on mainland Australia, where they would not have land that would allow them to maintain their traditional way of life. The Committee considers that the climate impacts mentioned by the authors represent a threat that could have reasonably been foreseen by the State party, as the authors’ community members began raising the issue in the 1990s. While noting the completed and ongoing seawall construction on the islands where the authors live, the Committee considers that the delay in initiating these projects indicates an inadequate response by the State party to the threat faced by the authors. … [T]he Committee considers that the information made available to it indicates that the State party’s failure to adopt timely adequate adaptation measures to protect the authors’ collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture and traditions and use of land and sea resources discloses a violation of the State party’s positive obligation to protect the authors’ right to enjoy their minority culture. Accordingly, the Committee considers that the facts before it amount to a violation of the authors’ rights under article 27 of the Covenant.

The adoption of these different sets of views by the Human Rights Committee and the Committee on the Rights of the Child has, as was to be expected, significantly increased the relevant committee’s level of awareness and concern in these areas. In August 2023, for example, the latter committee adopted General Comment No. 26 (2023) on ‘children’s rights and the environment, with a special focus on climate change’.

C. CIVIL AND POLITICAL RIGHTS

An important but neglected dimension of the relationship between climate change and human rights is the threat posed to democracy and civil and political rights. These threats come from various directions. Eve Darian-Smith, in Global Burning: Rising Antidemocracy and the Climate Crisis (2022) 136, draws attention to the relevance of growing authoritarianism:

As far-right leaders roll back environmental protections and promote extractive industries such as logging, mining, and industrial-scale agriculture, they are also rolling back elements of democracy such as a free press, nonpartisan judges, public health programs, public education, and the right to vote and protest injustice and suppression. The call for law and order and the mobilization of militarized police are common among authoritarian

leaders anxious to prevent public demonstrations against them. Violently suppressing citizens opposing the government is deeply entangled with leaders defending extractive industries through state-backed military and police force. Anti-environmentalism has become a marker of extreme-right parties and political agendas as well as a common theme among the radical media and movements that support them.

Declarations of emergency are increasingly common in the context of severe weather upheavals and these often involve significant restrictions on the exercise of rights. As popular protests grow in response to the widespread reluctance of governments to take the measures needed to meet the Paris goals, many governments have sought to restrict protests. In October 2022, the Home Secretary of the United Kingdom successfully amended a bill to restrict protests to allow her to apply for injunctions against anyone she deems ‘likely’ to carry out protests that could cause ‘serious disruption’ to ‘key national infrastructure’, prevent access to ‘essential’ goods or services, or have a ‘serious adverse effect on public safety’. The police could arrest anyone suspected of breaching such an injunction.656

In the United States, many comparable measures are already in place, according to the International Center for Not-for-profit Law, ‘Analysis of US Anti-Protest Bills’, updated 12 January 2022:

Many anti-protest bills restrict the freedom of assembly by creating extreme penalties for common infractions connected to protests. A 2020 law enacted in Tennessee makes obstructing a sidewalk or street an offense punishable by a year in jail, even though most protests occur on sidewalks and streets. … In Louisiana, a law enacted in 2018 makes it a felony, punishable by five years in jail, to trespass near a pipeline … .

Many anti-protest bills use sweeping definitions of “rioting” and other offenses that can penalize nonviolent protest activity. In Florida, a law enacted in 2021 makes it a felony to “riot.” However, “rioting” is defined in a manner that can capture peaceful protesters who are simply part of a larger crowd where a few individuals engage in property destruction even something as minor as kicking over a trash can. In fact, under the law, no actual property destruction needs to occur for those in a crowd to be guilty of “rioting” just the “imminent danger” of damage is sufficient. …

A number of anti-protest bills create chilling new risks for organizations and individuals who are not directly involved in protests. Under a 2017 law enacted in Oklahoma, organizations that “conspire” with protesters who trespass near an oil or gas pipeline are liable for up to $1 million … .

Many anti-protest bills create new protections for individuals who harm protesters. An Iowa law enacted in 2021 … shields drivers from civil liability if they injure or kill someone who is unlawfully blocking a road during a “protest, demonstration, riot, or unlawful assembly,” as long as the driver was exercising “due care.” In 2020 alone, there were over one hundred instances of protesters being hit by vehicles. … [A] Florida law enacted in 2021, protect someone who injures or even kills a protester from being sued, as long as the victim was most likely participating in a “riot.” …

Another dimension is that the uncertainty and insecurity generated by global warming, combined with largescale movements of people both internally and across borders, will pose immense and unprecedented challenges to governance. Migration flows through Mexico to the United States and from Syria and other countries into Europe have already caused upheavals. Mass migration is likely to stimulate nationalist, xenophobic, racist and

656 https://bills.parliament.uk/bills/3153/stages/16631/amendments/10001084.

other responses. Maintaining a balanced approach to civil and political rights, whether in a society that is determinedly seeking to mitigate climate change or one that is in denial, will be extremely challenging.

Finally, there is the attraction of authoritarian responses to intractable problems. Ross Mittiga, in ‘Political Legitimacy, Authoritarianism, and Climate Change’, 116 Am. Pol. Sci. Rev. (2022) 998, discerns a ‘growing chorus of praise for “authoritarian environmentalism.” … [W]hile authoritarianism is in general lamentable, having a government unencumbered by democratic procedures or constitutional limits on power could be advantageous when it comes to implementing urgently needed climate action.’ He concludes that:

[L]egitimacy requires that governments ensure the safety and security of their citizens, now and into the future; governments that cannot or will not perform this function, are, for that reason, illegitimate. … Legitimacy also requires that governments exercise their power in broadly acceptable ways. What counts as acceptable, however, varies considerably across generational and cultural lines and in light of different circumstances. For this reason, even the most widely celebrated standards including the protection of basic rights and adherence to democratic processes remain open to contestation and reconfiguration and, in this sense, are contingent.

D. FUTURE DIRECTIONS

There is no shortage of proposed measures to combat global warming while using the framework of human rights and seeking to ensure that any measures taken are compatible with human rights standards. Consider three such options. At the international level, states have endorsed several requests for advisory opinions from international courts. Strategic litigation, often funded by private investors, is also playing an increasingly important role. We then consider the role that might be played by a national human rights institution, and the options outlined by a UN Special Rapporteur.

In addition to the advisory opinion sought from the Inter-American Court of Human Rights in January 2023, the UN General Assembly, on a proposal initially coming from Vanuatu, requested an advisory opinion from the International Court of Justice on the following question (Res. 77/276 of 29 March 2023, adopted unanimously):

Having particular regard to the Charter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment and the duty to protect and preserve the marine environment,

(a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations;

(b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:

(i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?

(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?

While an advisory opinion from the Court could give strong impetus to the development of international obligations to combat global warming, it could also amount to a significant setback if the Court does not move beyond its existing jurisprudence.657

In 2021 Antigua and Barbuda and Tuvalu set up the Commission of Small Island States on Climate Change and International Law (COSIS). By 2024, it had nine member states. As an international organization, it was able to request an advisory opinion from the International Tribunal on the Law of the Sea (ITLOS). On 12 December 2022 it requested one on the scope of state obligations under the UN Convention on the Law of the Sea (UNCLOS) in relation to greenhouse gas emissions. Thirty-four states, nine international organizations, and a number of other groups subsequently made submissions to the Tribunal and participated in the proceedings.

The Tribunal’s unanimous Advisory Opinion, delivered on 21 May 2024, based itself on international environmental law, broadly defined, but made only one single fleeting reference to human rights and none to the implications of international human rights obligations. The Opinion found that greenhouse gas emissions (GHG) constitute pollution of the marine environment under the Convention and that States have an obligation to take all necessary measures to control such pollution. The Tribunal also found that States have special obligations to protect and preserve the marine environment in relation to climate change impacts. It characterized the findings of the IPCC as reflecting the scientific consensus (para. 208) but added that in the absence of scientific certainty, States must apply the precautionary approach (para. 213).

The Tribunal recognized that the ‘principle of common but differentiated responsibilities’, acknowledged in the UNFCCC and the Paris Agreement, applies in relation to the law of the sea (para. 229). This meant that States parties 'with greater means and capabilities must do more to reduce such emissions than States with less means and capabilities' (para. 227), and that developed States have a specific duty to assist developing States, and especially those vulnerable to climate change, in their efforts to address GHG-related marine pollution (paras. 338-339).

Obligation to exercise ‘stringent’ due diligence

The Tribunal held that the Convention’s Art. 194 due diligence-type obligation in relation to marine pollution requires each state to put in place a national system, including legislation, administrative procedures, and an enforcement mechanism to regulate GHG emitting activities (para. 235), but no mention was made of human rights due diligence obligations

Strategic Litigation

Amnesty International (https://www.amnesty.org/en/strategic-litigation/) defines ‘strategic human rights litigation’ as litigation that is ‘consciously designed to advance the clarification, respect, protection and fulfilment of rights. The idea is to change laws, policies and practice, and to secure remedies or relief following violations. [It] is also often about raising public awareness of an injustice.’ While this technique has long been used in a wide range of cases, as illustrated by Brown v. Board of Education of Topeka (347 U.S. 483, 1954) which found school racial segregation in the United States to be unconstitutional, it is assuming particular prominence today in the areas of environmental protection and climate change.658

Prominent public interest actors working in the human rights field include the Open Society Justice Initiative 659 and the European Center for Constitutional and Human Rights.660 But private investors and commercial law firms are also increasingly involved. Suneal Bedia and William C. Marra, in ‘The Shadows of Litigation Finance’, 74 Vand. L. Rev. (2021) 563, define litigation finance as ‘the practice where a third party provides capital to a litigant or law firm in connection with a legal claim. [It] is usually provided to plaintiffs seeking money damages … [and] provided by a funder with a profit motive.’ They note that the starting premise for those in this business is ‘that a legal claim is an asset, the same way a person’s home or a company’s inventory is an asset. Litigation

657 See D. Bodansky, An ICJ Advisory Opinion on Climate Change: Ten Questions and Answers, Center for Climate and Energy Solutions, (October 2022).

658 See generally S. Baer, ‘Democracy in Peril: A Call for Amici and Amicae Curiae and Critical Lawyering’, 10 Transnat’l Legal Theory (2019) 140; J. Goldston, ‘Human Rights in the Crosshairs’, Just Security 23 August 2022.

659 OSJI, Strategic Litigation Impacts: Insights from Global Experience (2018).

660 W. Kaleck, Law versus Power: Our Global Fight for Human Rights (2019).

finance allows claimholders, or law firms with contingent fee interests in claims, to secure financing against those assets … .’

One of the principal benefits, according to the authors, is that such litigation promotes the goals of the legal system ‘by ensuring legal outcomes track the strength of a party’s claim, not the size of its bank account.’ But they also note concerns that ‘litigation finance will spur frivolous litigation and allow profit-seeking investors to take over our civil justice system [and questions about] whether litigation finance threatens the legal profession, interferes with counsel’s professional independence, and impairs the principle of party control.’ In their view, litigation financiers: (i) introduce greater competition into the market for legal services; (ii) provide capital that allows law firms to litigate plaintiff-side cases that they otherwise would be reluctant to pursue; and (iii) provide a broader suite of options to liquidity- and risk-constrained clients.

One of the largest groups working on environmental and climate litigation is ClientEarth (https://www.clientearth.org/). In the Netherlands, the non-profit Planet Prosperity Foundation enabled Roger Cox to litigate both the Urgenda and Milieudefensie cases, excerpted above. But a recent example of forprofit litigation financing is provided by Camilla Hodgson, in ‘The Money Behind the Coming Wave of Climate Litigation’, The Financial Times (5 June 2023). After a 2009 oil spill in the Timor Sea, a petroleum exploration company, PTTEP Australasia, without admitting liability, paid compensation of US$127 million to settle the claims of some 15,000 Indonesian farmers. A British firm, Harbour Litigation Funding, spent over $21 million on the case, and received $53 million in return, or just over 40 percent of the award.

A report by the European Parliamentary Research Service, Responsible Private Funding of Litigation (2021) acknowledged that third-party litigation funding (TPLF) ‘may represent a tool to support private citizens and businesses in accessing justice and constitute a mechanism for transferring the risk of the uncertain outcome of the dispute to the litigation funder.’ But it also cautioned that ‘it may pose risks and entail conflicts of interests. If not properly regulated, it could lead to excessive economic costs and to the multiplication of opportunity claims, problematic claims and so called “frivolous claims”.’ For victims of human rights violations and groups advising or representing them, the question is whether, or under what circumstances, such approaches are an ideal, or perhaps just adequate, way to proceed. What are the advantages and disadvantages, and the potential pitfalls of strategic litigation, both in general and when privately funded?

COMMISSION ON HUMAN RIGHTS OF THE PHILIPPINES, NATIONAL INQUIRY ON CLIMATE CHANGE REPORT

(DECEMBER 2022)

On 22 September 2015, Greenpeace Southeast Asia, Philippine Rural Reconstruction Movement, Philippine Alliance of Human Rights Advocates, Philippine Human Rights Information Center, and other groups and individuals petitioned the Commission on Human Rights of The Philippines (CHRP) to investigate the role of the ‘Carbon Majors’ in relation to climate change-caused human rights violations. They named the world’s largest 47 fossil fuel producers, including Chevron, ExxonMobil, British Petroleum, and Royal Dutch Shell. The Philippines is hit by some twenty typhoons each year and Typhoon Haiyan in 2013 killed over 6,000 people.

The CHRP is an independent office created by the Constitution and is the official National Human Rights Institution (NHRI). The Commission reported in May 2022, having held eight public hearings in Manila, two in New York, and two in London, hearing 65 witnesses and receiving 239 submissions. It had neither subpoena power nor the capacity to issue penalties, and proceeded on the basis of persuasion and cooperation. It summed up the spirit in which it proceeded by observing that:

The challenge to NHRIs is to test boundaries and create new paths; to be bold and creative, instead of timid and docile; to be more idealistic or less pragmatic; to promote soft laws into becoming hard laws; to see beyond technicalities and establish guiding principles that can later become binding treaties; in sum, to set the bar of human rights protection to higher standards.

It took administrative notice of IPCC reports. It found that the Carbon Majors had ‘engaged in willful obfuscation of climate science, which has prejudiced the right of the public to make informed decisions about their products, concealing that their products posed significant harms to the environment and the climate system [and delaying] meaningful environmental and climate action (at 108). It concluded that carbon majors within Philippine jurisdiction ‘may be compelled to undertake human rights due diligence and to provide remediation.’ It noted that the ‘non-binding nature’ of the UNGPs did not prevent their incorporation into domestic law. It also found that, on the basis of the ‘enterprise theory of corporate personhood’, the responsibility to refrain from contributing to climate change impacts extends to all business enterprises within each Carbon Major’s respective value chains (at 112-13).

In its extensive recommendations, the Commission called upon states to, inter alia: discourage dependence on fossil fuels, including by terminating tax breaks and subsidies, offering tax credits and other incentives for renewable or clean energy technologies; require private actors and businesses receiving any form of assistance to have decarbonization and net-zero plans; collaborate on innovative climate action and guarantee that the benefits of science and technology are enjoyed by all, including ensuring that global intellectual property regimes do not obstruct climate change efforts; cooperate in creating a legally binding instrument to strengthen the implementation of the UNGPs, and provide redress mechanisms for victims of human rights harms caused by businesses; concretize the responsibility of businesses in the context of climate change; ensure that all persons have the necessary capacity to adapt to climate change, and guarantee equality and non-discrimination in climate adaptation and mitigation measures; ensure a just transition towards an environmentally sustainable economy; fulfill climate finance commitments and devise new mechanisms for loss and damage; support and provide adequate legal protection to environmental defenders and climate activists; promote climate change awareness and education; include the military in carbon accounting; and strengthen shared efforts to conserve and accelerate the restoration of forests and other terrestrial ecosystems.

For their part, the Carbon Majors (and other carbon-intensive industries) should: publicly disclose due diligence and climate and human rights impact assessment results; desist from all activities that undermine the findings of climate science; cease further exploration of new oil fields, keep fossil fuel reserves in the ground, and lead the transition to clean energy; contribute to a green climate fund for the implementation of mitigation and adaptation measures; and continually engage with experts, CSOs and other stakeholder for the assessment and improvement of corporate climate response.

Other recommendations were also addressed to financial institutions and investors, the UN and other international bodies, NHRIs, courts, NGOs, CSOs and the legal profession, and global citizens.

In October 2021, the UN Human Rights Council appointed a Special Rapporteur to address climate change. Resolution 48/14 received 42 votes in favor, one against (Russia), and four abstentions (China, Eritrea, India and Japan). In his first report to the General Assembly (UN Doc. A/77/226 (2022)), the ‘Special Rapporteur on the promotion and protection of human rights in the context of climate change’ laid out an ambitious and wide-ranging agenda:

90. [With respect to mitigation, the General Assembly should]

(a) Request the Secretary-General to host a high-level mitigation commitment forum … to reduce global emissions by at least 55 per cent by 2030;

(b) Recommend the repeal of the Energy Charter Treaty;

I Agree to establish an internationally legally binding fossil fuel financial disclosure mechanism, to require Governments, businesses and financial institutions to disclose their investments in the fossil fuel and carbon intensive industries;

(d) Establish an international human rights tribunal to hold accountable Governments, business and financial institutions for their ongoing investments in fossil fuels and carbon intensive industries and the related human rights effects that such investments invokI(e)

Pass a resolution to ban any further development of fossil fuel mining and other harmful mitigation actions;

(f) Recommend that the International Criminal Court include an indictable offense of ecocide.

91. Also with respect to mitigation, [COP27 should]:

(a) Include human rights considerations in their nationally determined contributions and other planning processes and ensure that market-based mechanisms have effective means for protecting human rights and effective compliance and redress mechanisms to this effect;

(b) Ensure that food security and the protection of the rights of indigenous peoples take precedent over land-based mitigation actions.

92. [With respect to loss and damage, a fund should be created and the General Assembly should, inter alia]:

(h) Create a redress and grievance mechanism to allow vulnerable communities to seek recourse for damages incurred, including legal measures to determine criminal, civil or administrative liability, and providing comprehensive restitution and guarantee of non-repetition;

(i) Establish international legal protections to persons internally displaced and displaced across international borders as a consequence of climate change;

(j) Explore legal options to close down tax havens as a means of freeing up taxation revenue for loss and damage.

94. The Special Rapporteur recommends that the International Law Commission be mandated to develop, within a two-year time frame, an international legal procedure to give full and effective protection to environmental and indigenous human rights defenders, including by establishing an international tribunal for the prosecution of perpetrators of violence against and the killing of environmental and indigenous human rights defenders.

95. The Special Rapporteur recommends that the International Law Commission be mandated to include in the definition of ecocide those actions against environmental and indigenous human rights defenders.

98. The Special Rapporteur further recommends that the General Assembly encourage all States to give standing to children and young people, including indigenous children and young people international, national and subnational court systems.

QUESTIONS

1. In an ideal scenario, what would be the impact of the UN’s recognition of the human right to a clean, healthy and sustainable environment in General Assembly Resolution 76/300 (28 July 2022)?

2. In its ‘Explanation of Position’ on the resolution, the United States objected that there is still no ‘shared understanding’ of what such a right entails. Is that a fatal flaw, or can a right be recognized before all of its implications have been identified? How helpful is the Council of Europe’s Parliamentary Assembly’s resolution in this regard?

3. Researchers have claimed that global warming projections documented by and in many cases modeled by Exxon and ExxonMobil Corp scientists between 1977 and 2003 accurately forecast much of what has happened in terms of climate change, while at the same time the company’s public statements denying the reality of global warming contradicted the relevant data.661 Under the UN Guiding Principles on Business and Human Rights, would the company have any obligations to publicly acknowledge such findings, or to take any action as a result?

4. What are the main threats that climate change might pose to the enjoyment of civil and political rights, today, in ten years, and in fifty years?

5. What are the strengths and weaknesses of strategic litigation in this area? Use examples from the cases studied above.

6. Consider the following criticisms662 of the approach adopted in Billy v. Australia: (i) ‘the majority did not rigorously apply General Comment 36 on the right to life’, see Ch. 9, above; (ii) the ‘real and foreseeable risk’ standard applied is appropriate in a refugee case such as Teitiota v. New Zealand, but sets the bar too high in this situation;663 and (iii) the Committee overlooked Article 6 violations that have already occurred, while accepting assurances about projects yet to be completed.

7. A common approach in both litigation and broader advocacy is to rely in part on the interests of future generations.664 In 2023, a group of experts adopted the Maastricht Principles on the Human Rights of Future Generations.665 Principle 13 provides that:

a) States have obligations to respect, protect, and fulfil the human rights of future generations.

b) These obligations extend to all conduct of States, whether through actions and omissions, and whether undertaken individually or collectively, including decisions made in their capacity as members of international or regional organizations. Such conduct includes, but is not limited to, the adoption or implementation of policies, practices, programs and legislation.

c) Failure to comply with these obligations constitutes a violation of the rights of future generations.

d) States must ensure an effective remedy for failure to respect, protect and fulfil these rights as set out in section.

Compare that approach with the following analysis:

An appeal to the responsibility towards future generations is attractively simple: an exhortation to act, drawing on a powerful imagery of obligation, an altruistic duty towards our children and grandchildren, an invitation to global solidarity. [But, in fact, such an appeal] instead stands to elide numerous existing loci of responsibility in climate matters that are more concrete, more coherent, more demanding, more easily understood and more effectively articulated in law. It tends to fold those to whom responsibility is owed in the present into those owing responsibility and so annihilates the former's claim to a present and a future alike. Responsibilities towards those alive today surround us; they swell, if we choose to see them. And, if acted upon, the consequences will flow into the future … .666

661 G. Supran et al., ‘Assessing ExxonMobil’s Global Warming Projections’, 379 Science (2023).

662 N. Barrett and A. Gupta, ‘Why Did the UN Human Rights Committee Refuse Broader Protections for Climate Change Victims?’, Opinio Juris (10 May 2022).

663 Cf. M. Foster and J. McAdam, ‘Analysis of “Imminence” in International Protection Claims: Teitiota v New Zealand and Beyond’, 71 Int’l & Comp. L. Q. (2022) 975.

664 B. Lewis, ‘Protecting Environmental Human Rights for Future Generations’, in W. Baber and J. May (eds.), Environmental Human Rights in the Anthropocene: Concepts, Contexts, and Challenges (2023) 31.

665 A. M. Suárez Franco and S. Liebenberg, ‘The Maastricht Principles on the Human Rights of Future Generations’, Spotlight on Global Multilateralism (2023) 58.

666 S. Humphreys, ‘Against Future Generations’, 33 Eur. J. Int’l L. (2022) 1061, at 1091.

E. THE RIGHT TO DEVELOPMENT

Claims for a right to development emerged at around the same time as the environmental rights considered above. Some commentators have pointed to the links between the two, but much depends on the way in which the right to development is defined.

Article 56 of the UN Charter commits all member states to take ‘joint and separate action in co-operation’ with the UN for the achievement of the purposes identified in Article 55, which includes human rights, ‘higher standards of living … and conditions of economic and social progress and development’ and ‘solutions of international economic, social, health and related problems’. Similarly, Article 28 of the UDHR provides that ‘[e]very one is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized’. These provisions, although expressed at a level of great generality, have often been invoked by those who posit the existence of a broad international ‘duty to cooperate’ or a ‘right to solidarity’. In a world of deep-rooted and growing inequalities among nations, the question inevitably arises whether the international community bears some responsibility for assisting states whose resources are inadequate to ensure the human rights of their own citizens, or for providing direct assistance to those individuals in dire need.

Since 1977 much of this debate has been pursued within the field of human rights under the rubric of the ‘right to development’. The debate touches upon a number of themes raised in earlier chapters: the basis for recognition of new rights, the priority to be accorded to the different sets of rights, the links between human rights and democratic governance and the relationship between individual and collective rights (including peoples’ rights).

The list of internationally recognized human rights is by no means immutable. Just as the British sociologist T. H. Marshall characterized the eighteenth century as the century of civil rights, the nineteenth as that of political rights and the twentieth as that of social rights so, too, have some commentators over the past three decades put forward claims for the recognition of the new rights, in particular a category known as the ‘third generation of solidarity rights’. By analogy with the slogan of the French Revolution these rights have been said to correspond to the theme of fraternité, while first-generation civil and political rights correspond with liberté and second-generation economic and social rights with egalité. Karel Vasak’s list of solidarity rights included ‘the right to development, the right to peace, the right to environment, the right to the ownership of the common heritage of mankind, and the right to communication’.667

Of these, the most debated and contentious at the international level has been the right to development. First recognized by the UN Commission on Human Rights in 1977 (CHR Res. 4 (XXXIII)), it was enshrined in the Declaration on the Right to Development (General Assembly Res. 41/28 (1986)). The 1993 Vienna World Conference on Human Rights declared it to be ‘a universal and inalienable right and an integral part of fundamental human rights’. Subsequently, a Working Group was established in 1998, a Special Rapporteur was appointed in 2016,668 and an Expert Mechanism created in 2019. In October 2023, The Human Rights Council (Res. 54/18 adopted by a vote of 29-13-5) submitted this draft ‘covenant’ to the General Assembly ‘for its consideration, negotiation and subsequent adoption’.

DRAFT INTERNATIONAL COVENANT ON THE RIGHT TO DEVELOPMENT

Preamble

Part I

Article 1 Object and purpose

667 K. Vasak, ‘A 30-Year Struggle’, UNESCO Courier, November 1977, 29; for a critique, see S. Jensen and C. Walton, ‘Not “Second-Generation Rights”: Rethinking the History of Social Rights’, in ibid., Social Rights and the Politics of Obligation in History (2022) 1.

668 Special Rapporteur Surya Deva has spelled out a new vision for the right to development in UN Docs. A/HRC/54/27 (2023) and A/78/160 (2023.

The object and purpose of the present Covenant is to promote and ensure the full, equal and meaningful enjoyment of the right to development by every individual and all peoples everywhere, and to guarantee its effective operationalization and full implementation at the national and international levels.

Article 3 General principles

To achieve the object and purpose of the present Covenant and to implement its provisions, the States Parties shall be guided by, inter alia, the principles set out below:

(a) Development centred on the individual and peoples: the individual and peoples are the central subjects of development and must be the active participants and beneficiaries of the right to development;

(b) Principles common to all human rights: the right to development should be realized in a manner that reflects the universality, inalienability, indivisibility, interdependence and interrelatedness of all human rights and integrates the principles of equality, non-discrimination, intersectionality, empowerment, participation, transparency, accountability, equity, inclusion, accessibility and subsidiarity;

(c) Human rights-based development: as development is a human right that is indivisible from and interrelated and interdependent with all other human rights, the laws, policies and practices of development, including development cooperation, must be normatively anchored in a system of rights and corresponding obligations established by international law. Accordingly, the promotion of, respect for and enjoyment of certain human rights and fundamental freedoms cannot justify the denial of other human rights and fundamental freedoms;

Part II

Article 4 Right to development

1. Every individual and all peoples have the inalienable right to development, by virtue of which they are entitled to participate in, contribute to and enjoy civil, cultural, economic, environmental, political and social development that is indivisible from and interdependent and interrelated with all other human rights and fundamental freedoms.

2. Every individual and all peoples have the right to active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom.

Article 5 Relationship with the right of peoples to self-determination

1. The right to development implies the full realization of the right of all peoples to self- determination. …

Article 6 Relationship with other human rights

States Parties reaffirm that all human rights, including the right to development, are universal, inalienable, interrelated, interdependent, indivisible and equally important.

States Parties agree that the right to development is an integral part of human rights and must be realized in conformity with the full range of civil, cultural, economic, environmental, political and social rights.

Article 7

Relationship with the responsibility of everyone to respect human rights under international law

… [A]ll natural and legal persons, peoples, groups and States have the general duty under international law to refrain from participating in the violation of the right to development.

Part III

Article 8 General obligations of States Parties

States Parties shall respect, protect and fulfil the right to development for all, without discrimination of any kind

Article 9 General obligations of international organizations

… [I]nternational organizations also have the obligation to refrain from conduct that aids, assists, directs, controls or coerces, with knowledge of the circumstances of the act, a State or another international organization to breach any obligation that the State or the latter organization may have with regard to the right to development.

Article 10 Obligation to respect

States Parties shall refrain from conduct, whether expressed through law, policy or practice, that:

(a) Nullifies or impairs the enjoyment and exercise of the right to development;

(b) Impairs the ability of another State or an international organization to comply with that State’s or that international organization’s obligations with regard to the right to development;

(c) Aids, assists, directs, controls or coerces, with knowledge of the circumstances of the act, another State or an international organization to breach that State’s or that international organization’s obligations with regard to the right to development;

…

Article 11 Obligation to protect

States Parties shall adopt and enforce all necessary, appropriate and reasonable measures, including administrative, legislative, investigative, judicial, diplomatic and others, to ensure that natural or legal persons, peoples, groups or any other State or agents that the State is in a position to regulate do not nullify or impair the enjoyment and exercise of the right to development within or outside their territories when:

(a) Such conduct occurs, partially or fully, on the territory of the State Party;

(b) The natural or legal person has the nationality of the State Party;

(c) The State Party has the requisite legal duty under either domestic or international law to supervise, regulate or otherwise exercise oversight, through, inter alia, requiring human rights due diligence, of the conduct of the legal person engaging in business activities, including those of a transnational character.

Article 12 Obligation to fulfil

1. Each State Party shall take measures, individually and through international assistance and cooperation, with a view to progressively enhancing the right to development … .

2. To this end, each State Party shall take all necessary measures at the national level, and shall ensure, inter alia, non-discrimination and equality of opportunity, including through digital inclusion where applicable, for all individuals and peoples in their access to basic resources, education, health services, food, housing, water and sanitation, employment, and social security and protection, and in the fair distribution of income, and shall carry out appropriate economic and social reforms with a view to eradicating all social injustices.

Article 13 Duty to cooperate

States Parties reaffirm and shall implement their duty to cooperate with each other, through joint and separate action, in order to:

(a) Solve international problems of an economic, social, cultural, political, environmental, health-related, educational, technological or humanitarian character;

(b) End poverty in all its forms and dimensions, including by eradicating extreme poverty;

2. To this end, States Parties have primary responsibility, in accordance with the general principle of international solidarity described in the present Covenant, for the creation of international conditions favourable for the realization of the right to development for all, and shall take deliberate, concrete and targeted steps, individually and jointly, including through cooperation within international organizations and engagement with civil society:

(a) To ensure that natural and legal persons, groups and States do not impair the enjoyment of the right to development; …

3. States Parties shall ensure that financing for development and all other forms of aid and assistance given or received by them, whether bilateral or under any institutional or other international framework, adhere to internationally recognized development cooperation effectiveness principles and are consistent with the provisions of the present Covenant.

4. States Parties recognize their duty to cooperate to create a social and international order conducive to the realization of the right to development by, inter alia:

(a) Promoting a universal, rules-based, open, non-discriminatory, equitable, transparent and inclusive multilateral trading system;

(b) Implementing the principle of special and differential treatment for developing countries, in particular least developed countries, as defined in applicable trade and investment agreements;

(c) Improving the regulation and monitoring of global financial markets and institutions, and strengthening the implementation of such regulations;

(d) Ensuring enhanced representation and voice for developing countries, including least developed countries, in decision-making in all international economic and financial institutions, in order to deliver more effective, credible, accountable and legitimate institutions;

Part IV

[In terms of implementation, the draft envisages the establishment of a Conference of States Parties which would ‘periodically examine voluntary reports by States Parties’ and an ‘implementation mechanism’ of independent experts ‘to facilitate, coordinate and assist, in a non-adversarial and non-punitive manner, the implementation and promotion of compliance’ with the Covenant. This treaty body would ‘make suggestions and general recommendations’ based on states’ reports, and ‘review requests by rights holders to comment on situations in which their right to development has been adversely affected’.]

* * *

The right to development has never ceased to be controversial among governments as well as among scholars and commentators, although it has achieved constitutional recognition in 31 countries. 669 In international debates, the right is generally grounded in claims relating to the material conditions required to ensure realization of the full range of existing human rights, but it is also sometimes grounded in claims of appropriate reparations for colonialism and other forms of exploitation of the South by the North, or on arguments that the existing

669 R. Hirschl, ‘Economic and Social Rights in National Constitutions’, 62 Am. J. Comp. L. (2015) 1043, n. 35.

international economic order is loaded against developing countries and that compensation should follow. 670 China has been an enthusiastic promoter and an official 2016 government White Paper (The Right to Development: China’s Philosophy, Practice and Contribution) states that:

Development is a universal human theme, providing for people’s basic needs and giving them hope of better life. The right to development is an inalienable human right, symbolizing dignity and honor. Only through development can we address global challenges; only through development can we protect basic civil rights of the people; only through development can we promote the progress of human society.

In 2023, the United States explained its opposition to the proposed covenant:

… [T]he Right to Development resolution creates a detrimental narrative which would elevate the process of development above human rights, undermine the human rights system, and harm development rather than promote it. … [T]he text appears to protect states instead of individuals. States do not have human rights; they guarantee them to individual human beings.

[The right] is not recognized in any of the core UN human rights conventions, does not have an agreed international meaning, and is not recognized as a universal right held and enjoyed by individuals. We are also concerned about … the lack of meaningful negotiations’ on the draft covenant.671

The contrast between the 2023 formulation of the right to development and the historical vision of some of its early Global South proponents is dramatic. The ‘genealogical starting point’ for the right is the set of demands for economic and political justice contained in the NIEO.672

James Thuo Gathii, in ‘Africa and the Radical Origins of the Right to Development’, 1 TWAIL Review (2020) 28, notes that in 1967 Senegal’s Foreign Minister, Doudou Thiam, argued that ‘the right to development belonged to the third world …’. He conceptualized it as a collective right to correct the wrongs wrought by colonial rule. The revolutionary agenda that he envisaged would require developing countries to:

tear down all the practices, institutions and rules on which international economic relations are based, in so far as these practices, institutions and rules sanction injustice and exploitation and maintain the unjustified domination of a minority over the majority of men ... . The right of peoples to selfdetermination, the sovereign equality of peoples, international solidarity - all these will remain empty words … until relations between nations are viewed in the light of economic and social facts. …

In 1979, a former Algerian Foreign Minister, later to become a judge on the International Court of Justice (from 1982 to 2001), Mohamed Bedjaoui, published a manifesto entitled Towards a New International Economic Order underscoring the extent to which international law had facilitated colonial subjugation and insisting that the new order must provide ‘for the development of all nations in the world’.673 He further developed the role of the right to development in that context in ‘The Right to Development’, in M. Bedjaoui (ed.), International Law: Achievements and Prospects (1991) 1182. He characterized it as ‘the core right from which all the others stem’, and described its international dimension as being ‘nothing other than the right to an equitable share in the economic and social well-being of the world.’ He understood its basis in the following terms:

22. The ‘right to development’ flows from this right to self-determination and has the same nature. There is little sense in recognizing self-determination as a superior and inviolable principle if one does not recognize at the same time a ‘right to development’ for the peoples that have achieved self-determination. This right to development can only be

670 These arguments were examined in detail in the ﬁrst major UN report on the right to development. See UN Doc. E/CN.4/1334 (1978).

671 Eric Merron (USA), Explanation of Vote, Third Committee of the UN General Assembly, November 7, 2023.

672 N. Gilman, ‘The New International Economic Order: A Reintroduction’, 6 Humanity (2015) 1 at 7.

673 See generally, U. Özsu, ‘“In the Interests of Mankind as a Whole”: Mohammed Bedjaoui’s New International Economic Order’, 6 Humanity (2015) 129.

an ‘inherent’ and ‘built-in’ right forming an inseparable part of the right to selfdetermination.

23. … [This makes the right to development] much more a right of the State or of the people, than a right of the individual, and it seems to me that it is better that way.

In terms of the content of the right, he identified several aspects including that the state must be able to ‘claim a ‘fair price’ for its raw materials and for whatever it offers in its trade with the more developed countries’, and that ‘the State is entitled if not to the satisfaction of its needs at least to receive a fair share of what belongs to all, and therefore to that State also.’ He elaborated that this ‘should be perceived as a right and not as an act of charity’ and that it ‘should be made effective by norms and institutions.’ In stark contrast to other jurists who argued about the degree of normativity of the right, Bedjaoui insisted that ‘the right to development is, by its nature, so incontrovertible that it should be regarded as belonging to jus cogens.’

A more nuanced perspective is provided below by another iconic Global South scholar, Georges Abi-Saab (Egypt). That excerpt is followed by another from the same era, by Jack Donnelly who calls the right unfounded and dangerous.

GEORGES ABI-SAAB, THE LEGAL FORMULATION OF A RIGHT TO DEVELOPMENT HAGUE ACADEMY OF INTERNATIONAL LAW, THE RIGHT TO DEVELOPMENT AT THE INTERNATIONAL LEVEL (1980) 163

[Abi-Saab begins by noting that, for the right to development to be considered a legal right, it must be possible to identify the active and passive subjects of the right and its content. But those elements depend on the legal basis of the right, which in turn depends on whether the right is an individual or collective one.]

It is possible to think of different legal bases of the right to development as a collective right. The first possibility … is to consider the right to development as the aggregate of the social, economic and cultural rights not of each individual, but of all the individuals constituting a collectivity. In other words, it is the sum total of a double aggregation of the rights and of the individuals. This version … has the merit of shedding light on the link between the rights of the individual and the right of the collectivity; a link which is crucial. ...

Another way … is to approach it directly from a collective perspective … by considering it either as the economic dimension of the right of self-determination, or alternatively as a parallel right to self-determination, partaking of the same nature and belonging to the same category of collective rights.

As far as the beneficiaries or active subjects are concerned, the first answer that comes to mind is that they are those societies possessing certain characteristics which lead the international community to consider them wanting in terms of development and to classify them as ‘developing’ or ‘less developed’ countries (LDC). …

… Up to now, we have used societies, communities, countries and States as interchangeable, which they are not. In fact, here as with self-determination, the common denominator of these different ways of describing the beneficiary collectivity is the ‘people’ they designate, which constitutes the socially relevant entity or group in this context. … Suffice it to say here that the distinction between ‘people’ and ‘State’, though in theory it is as important in relation to the right to development as to the right of self-determination, in practice it is not. …

… [T]he passive subject of the right to development can only be the international community as such. But as the international community does not have at its disposal the means (organs, resources) of directly fulfilling its obligations under the right to development, it can only discharge them through a category of its members, that of the ‘developed’ States. …

…

… [S]atisfaction of the collective right is a necessary condition, a condition-precedent or a prerequisite for the materialization of the individual rights. Thus without self-determination it is impossible to imagine a total realization of the civil and political rights of the individuals constituting the collectivity in question. Such rights

can be granted and exercised at lower levels, such as villages and municipalities, but they cannot reach their full scope and logical conclusion if the community is subject to colonial or alien rule.

The same with the right to development, which is a necessary precondition for the satisfaction of the social and economic rights of the individuals. And here, even more than in the case of self-determination, the causal link between the two levels is particularly strong; for without a tolerable degree of development, the society will not be materially in a position to grant and guarantee these rights to its members, i.e., of providing the positive services and securing the minimum economic standards which are required by these rights.

JACK DONNELLY, IN SEARCH OF THE UNICORN: THE JURISPRUDENCE AND POLITICS OF THE RIGHT TO DEVELOPMENT 15 CALIF. WESTERN INT’L. L. J. (1985)

473, 482

III. Legal Sources of the Right to Development

… If the right to development means the right of peoples freely to pursue their development, then it can be plausibly argued to be implied by the Covenants’ right to self-determination. However, such a right to development is without interest; it is already firmly established as the right to self-determination.

A substantially broader right to development, however, cannot be extracted from this right to selfdetermination. The right to self-determination recognized in the Covenants does not imply a right to live in a developing society; it is explicitly only a right to pursue development. Neither does it imply an individual right to development; self-determination, again explicitly, is a right of peoples only. In no sense does it imply a right to be developed. Thus the claim that the right to development is simply the realization of the right to selfdetermination is not based on the Covenants’ understanding of self-determination.

It might also be argued that because development is necessary for self-determination, development is itself a human right. Such an argument, however, is fallacious. … Even assuming that development is necessary for, rather than a consequence of, full enjoyment of the right to self-determination, it simply does not follow that peoples have a right to development.

Allowing such an argument to prevail would result in a proliferation of bizarre or misguided rights. …

…

[Second, one] might question whether ‘development’ falls under the notion of a social and international order referred to in Article 28 [of the UDHR]. ‘Development’ suggests a process or result; the process of development or the condition of being developed. ‘Order’, by contrast, implies a set of principles, rules, practices or institutions; neither a process nor a result but a structure. Article 28, therefore, is most plausibly interpreted as prohibiting structures that deny opportunities or resources for the realization of civil, political, economic, social or cultural human rights. …

…

Suppose, though, that Article 28 were to be taken to imply a human right to development. What would that right look like? It would be an individual right, and only an individual right; a right of persons, not peoples, and certainly not States. It would be a right to the enjoyment of traditional human rights, not a substantively new right. It would be as much a civil and political as an economic and social right – Article 28 refers to all human rights – and would be held equally against one’s national government and the international community. …

[V. Subjects of the Right to Development]

If human rights derive from the inherent dignity of the human person, collective human rights are logically possible only if we see social membership as an inherent part of human personality, and if we argue that as part of a nation or people, persons hold human rights substantively different from, and in no way reducible to, individual human rights. This last proposition is extremely controversial. …

The very concept of human rights, as it has heretofore been understood, rests on a view of the individual person as separate from, and endowed with inalienable rights held primarily in relation to, society, and especially the state. Furthermore, within the area defined by these rights, the individual is superior to society in the sense that ordinarily, in cases of conflict between individual human rights and social goals or interests, individual rights must prevail. The idea of collective human rights represents a major, and at best confusing, conceptual deviation.

I do not want to challenge the idea of collective rights per se or even the notion of peoples’ rights; groups, including nations, can and do hold a variety of rights. But these are not human rights as that term is ordinarily understood. …

A further problem with collective human rights is determining who is to exercise the right; the right-holder is not a physical person, and thus an institutional ‘person’ must exercise it. In the case of a right held by a people, or by society as a whole, the most plausible ‘person’ to exercise the right is, unfortunately, the state. Again this represents a radical reconceptualization of human rights – and an especially dangerous one.

Nico Schrijver has argued, in ‘A New Convention on the Human Right to Development: Putting the Cart before the Horse?’, 38 Neth. Q. Hum. Rts (2020) 84, that the right should be taken more seriously than it has been for three reasons: (i) it is a ‘cluster right’ that brings together the rights to a decent standard of living, food, water, clothing, housing, work, education, life, and freedom of expression and association; (ii) it is an ‘integrative right’ that brings together CPR, ESCR, and peoples’ rights; and (iii) it is a ‘bridging right’ connecting the ‘rights of individuals (citizens) with those of groups and peoples’.

James Thuo Gathii, in ‘Africa and the Radical Origins of the Right to Development’, 1 TWAIL Rev. (2020) 28 emphasizes a radical approach to the right to development which: examines the international order through a lens of marginalization and domination of the third world and its peoples by international law. … Critical scholars in the TWAIL movement reveal how … liberatory goals [such as sovereign equality, self-determination, human rights, development and equality] coexist alongside economic hierarchy and subordination between nations and carry forward within them the legacy of colonial conquest and European imperialism.

He contrasts this with ‘[t]he reconceptualizing of development as a right … by donor agencies in cooperation with formerly colonial countries, abandoning the more radical vision … in at least three ways’: (i) shifting the ‘focus away from external and north-south issues and the constitutive role of colonial rule and its legacies [to] domestic and internal development issues’; (ii) presenting North-South development relationships ‘as cooperative instead of confrontational’; and (iii) enabling ‘international financial institutions, western donors and investors to identify non-western peoples and states as development failures in need of assistance, which lays the basis for their intervention as experts with specialized knowledge and resources.’

Elsabé Boshoff, in ‘Rethinking the Premises Underlying the Right to Development in African Human Rights Jurisprudence’, 31 Rev. Eur. Comp and Int’l Env. L. (2022) 27, argues that the African Charter, as interpreted by the African Commission and Court, opens up possibilities for ‘a revised understanding of development, not as wealth-based, but rather as centred on human well-being situated within a healthy and satisfactory environment.’ She calls for ‘elements of African environmental ethics’ to be recognized in interpreting the right to development’. An important case in this regard is one already encountered in Chapter 11:

AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS V. REPUBLIC OF KENYA APPLICATION NO. 006/2012, JUDGMENT (26 MAY 2017)

Alleged violation of Article 21 of the Charter

The Applicant [the African Commission] contends that the Respondent [Kenya] has violated the rights of the Ogieks to freely dispose of their wealth and natural resources in two ways. Firstly, by evicting them from the Mau Forest and denying them access to the vital resources therein, and secondly, by granting logging concessions on Ogiek ancestral land without their prior consent and without giving them a share of the benefits in those resources.

TheCourt’sAssessment

Article 21 of the Charter states that:

“1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.

… [T]he Charter does not define the notion of “peoples”. … [Its drafters] deliberately omitted to define the notion in order to “permit a certain flexibility in the application and subsequent interpretation by future users of the legal instrument, the task of fleshing out the Charter being left to the human rights protection bodies.”

It is generally accepted that, in the context of the struggle against foreign domination in all its forms, the Charter primarily targets the peoples comprising the populations of the countries struggling to attain independence and national sovereignty.

In the circumstances, the question is whether the notion “people” used by the Charter covers not only the population as the constituent elements of the State, but also the ethnic groups or communities identified as forming part of the said population within a constituted State. …

In the view of the Court, the answer to this question is in the affirmative, provided such groups or communities do not call into question the sovereignty and territorial integrity of the State without the latter’s consent. … [N]othing prevents other peoples’ rights, such as the right to development (Article 22), the right to peace and security (Article 23) or the right to a healthy environment (Article. 24) from being recognised, where necessary, specifically for the ethnic groups and communities that constitute the population of a State.

…

The Court … has already recognised for the Ogieks a number of rights to their ancestral land … . In so far as those rights have been violated by the Respondent, the Court holds that the latter has also violated Article 21 of the Charter since the Ogieks have been deprived of the right to enjoy and freely dispose of the abundance of food produced by their ancestral lands.

Alleged violation of Article 22 of the Charter

Applicant’sSubmission

The Applicant contends that the Respondent has violated the Ogieks’ right to development by evicting them from their ancestral land in the Mau Forest and by failing to consult with and/or seek the consent of the Ogiek Community in relation to the development of their shared cultural, economic and social life within the Mau Forest. …

…

Respondent’sSubmission

The Respondent argues that it has not violated the right to development of the Ogieks … [and] that the Applicant has not demonstrated how it has failed in undertaking development initiatives for the benefit of the Ogieks or how they have been discriminated against and excluded in the process of conducting development initiatives.

TheCourt’sAssessment

Article 22 of the Charter provides that:

“1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.

2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.”

The Court reiterates its view above with respect to Article 21 of the Charter that the term “peoples” in the Charter comprises all populations as a constitutive element ofa State. These populations are entitled to social, economic and cultural development being part of the peoples of a State. Accordingly, the Ogiek population, has the right under Article 22 of the Charter to enjoy their right to development.

…[T]he Ogieks have been continuously evicted from the Mau Forest by the Respondent, without being effectively consulted. The evictions have adversely impacted on their economic, social and cultural development. They have also not been actively involved in developing and determining health, housing and other economic and social programmes affecting them.

146. The Court therefore holds that the Respondent violated Article 22 of the Charter.

QUESTIONS

1. Compare the different conceptions of the right to development put forward by Abi-Saab, Bedjaoui and Donnelly with the text of the 1986 General Assembly Declaration. Key concerns voiced by some of the governmental and other opponents of the right to development include objections to collective human rights and especially to any idea that a human right can be vested in a state, resistance to the idea that resource transfers from the North to the South are obligatory and fears that a right to development gives priority to development over human rights. To what extent does the Declaration provide a foundation for each of these concerns?

2. Does the African Commission’s approach in the Ogiek case suggest a way forward for making the right to development operational beyond the realm of indigenous peoples’ rights?

Ch. 15-International Human Rights

I ntern ational Human Rights

PHILIP

ALSTON

PART F: CURRENT TOPICS

Chapter 15. Climate Change, the Environment and the Right to Development

B.Poverty

C.Inequality

A. RECOGNIZING A RIGHT TO A CLEAN, HEALTHY AND SUSTAINABLE ENVIRONMENT

1. The United Nations

2. The Council of Europe

Section 2 – General principles

Section 3 – Substantive right

3. The Regional Systems

SCHWEIZ AND OTHERS V. SWITZERLAND EUROPEAN COURT OF HUMAN RIGHTS, GRAND CHAMBER, APPLICATION NO.

3. Admissibility

(β) Standing of associations

(ii) Content of the States’ positive obligations

PARTLY CONCURRING PARTLY DISSENTING OPINION OF JUDGE EICKE

INTRODUCTION

BACKGROUND

CONCLUSION

QUESTION

B. LITIGATION

CÉSAR RODRÍGUEZ-GARAVITO, LITIGATING

EMERGENCY IBID.

1.1ThePost-ParisRegimeandClimateRightsLitigation

1.2.2AJusticiableRighttoClimateAction

1.2.3TheLegallyEnforceable“FairShare”ofClimateMitigation

1. National Courts

LIGHT COMPANY, INC., APPEAL FROM THE PUBLIC UTILITIES COMMISSION

II. … B.

VII.Conclusion

NEUBAUER ET AL. V. GERMANY FEDERAL CONSTITUTIONAL COURT OF GERMANY (ORDER OF 24 MARCH 2021)

MILIEUDEFENSIE ET AL. V. ROYAL DUTCH SHELL PLC THE HAGUE DISTRICT COURT (JUDGMENT OF 26 MAY 2021)

(5.) the UN Guiding Principles (UNGP)

Conclusion on RDS’ reduction obligation

M K RANJITSINH & ORS. V. UNION OF INDIA & ORS. SUPREME COURT OF INDIA ORIGINAL CIVIL JURISDICTION, WRIT PETITION (CIVIL) NO.

OF MARCH 21, 2024

C. The mission to combat climate change

2. International and Regional human Rights Bodies

IOANE TEITIOTA V. NEW ZEALAND U.N. HUMAN RIGHTS COMMITTEE, FINAL VIEWS, UN DOC. CCPR/C/127/D/2728/2016 (24 OCTOBER 2019)

Factual background

Issues and proceedings before the Committee … Consideration of the merits

Complaint

Jurisdiction

Victim status

DANIEL BILLY ET AL. V. AUSTRALIA

HUMAN RIGHTS COMMITTEE, VIEWS UNDER THE OPTIONAL PROTOCOL, COMMUNICATION NO. 3624/2019

Observations of the State party on admissibility and the merits

Issues and proceedings before the Committee Consideration of admissibility

Article 17

Article 27

C. CIVIL AND POLITICAL RIGHTS

D. FUTURE DIRECTIONS

Strategic Litigation

COMMISSION ON HUMAN RIGHTS OF THE PHILIPPINES, NATIONAL INQUIRY ON CLIMATE CHANGE REPORT

QUESTIONS

E. THE RIGHT TO DEVELOPMENT

Article 3 General principles

Part II

Article 4 Right to development

Article 5 Relationship with the right of peoples to self-determination

Article 6 Relationship with other human rights

Part III

Article 8 General obligations of States Parties

Article 9 General obligations of international organizations

Article 10 Obligation to respect

Article 11 Obligation to protect

Article 12 Obligation to fulfil

Article 13 Duty to cooperate

Part IV

GEORGES ABI-SAAB, THE LEGAL FORMULATION OF A RIGHT TO DEVELOPMENT HAGUE ACADEMY OF INTERNATIONAL LAW, THE RIGHT TO DEVELOPMENT AT THE INTERNATIONAL LEVEL (1980) 163

JACK DONNELLY, IN SEARCH OF THE UNICORN: THE JURISPRUDENCE AND POLITICS OF THE RIGHT TO DEVELOPMENT 15 CALIF. WESTERN INT’L. L. J. (1985)

III. Legal Sources of the Right to Development

[V. Subjects of the Right to Development]

TheCourt’sAssessment

TheCourt’sAssessment

QUESTIONS