Human rights and climate change in the courts: An international trend – Tess Van Geelen

This is the second article in a two-part series examining the increasing recognition of the relationship between human rights and climate change in international and domestic law. The first part looked at a milestone legal action recently launched in Queensland, while this second part outlines the international context.

Last month the Environmental Defenders Office (EDO) launched a legal challenge against the Galilee Coal Project in Australia. The legal action was the first in an Australian court to spotlight the devastating impact of climate change on human rights. Internationally, however, the case joins an established and growing trend of public interest litigation before international and domestic courts.

Climate change as a human rights issue

At the international level, states and international institutions have recognised for many years that the consequences of anthropogenic climate change will adversely affect a range of human rights. The Human Rights Council, which administers the International Convention on Civil and Political Rights (ICCPR), has a long history of recognising this relationship. This was reaffirmed in the preamble of a 2019 Resolution emphasizing that ‘the adverse effects of climate change have a range of implications… both direct and indirect, for the effective enjoyment of human rights’.

This includes, among others, rights to life, health, adequate food, safe drinking water and sanitation, property, privacy and family life, self-determination, rights of the child, Indigenous rights, and freedom from discrimination (as poor and marginalised persons will be disproportionately impacted, despite contributing least to the causes of climate change).

This link was also acknowledged in the (non-binding) preamble of the 2015 Paris Agreement, which called on Parties to ‘respect, promote and consider their respective obligations on human rights’ when taking action on climate change.

Ashgar Leghari v Pakistan

In the same year that the Paris Agreement was adopted, the Leghari case in Pakistan broke ground in domestic public interest litigation linking climate change and human rights. The Lahore High Court found that the Pakistani Government had infringed on a farmer’s rights to life and dignity under articles 9 and 14 of the Pakistani Constitution, as a result of failing to implement the National Climate Change Policy 2012 and the Framework for Implementation of Climate Change Policy (2014–2030)

The Court held that ‘Climate Change is a defining challenge of our time’ and that ‘On a legal and constitutional plane, this is a clarion call for the protection of fundamental rights of the citizens of Pakistan, [and] in particular, the vulnerable and weak segments of the society who are unable to approach this Court’ (at [6]). The Court made a number of orders requiring the Pakistani Government to implement the national policy with urgency, as well as measures enabling the Court to monitor implementation.

Advisory Opinion of the Inter-American Court of Human Rights 

Following a request from Colombia, in 2017 the Court published a widely celebrated Advisory Opinion recognising the ‘undeniable relationship’ between a healthy environment and the protection of human rights (at [47]).* The Opinion marked the first instance of the Court recognising a fundamental right to a healthy environment under the American Convention on Human Rights (at [62]–[63]).

The Opinion also clarified the extraterritorial scope of the state duty to prevent transboundary environmental harm in relation to human rights. The Court held that states would be responsible for harm where (a) the state knew, or ought to have known, that there was a real and immediate risk to rights, and failed to take necessary measures to prevent that risk, and (b) there is a causal link between environmental harm and the human rights impacts (at [120]). Accordingly, the Opinion has important implications for potential transboundary climate change litigation under the Convention.

Urgenda v The Netherlands

In 2015, the Hague District Court in the Netherlands ordered the Dutch Government to take aggressive action to reduce emissions by 25 percent from 1990 levels by the end of 2020. The decision represents the first time a nation’s courts have ordered the executive branch of government to cut emissions by a specific target. In 2018, the Hague Court of Appeal upheld the decision, and was followed finally by the Supreme Court of the Netherlands in December 2019.

At first instance, the action had been based in tort. The District Court noted that the Dutch Government had been aware of climate change and the ‘associated risks’ since at least 1992, and found that ‘given the high risk of hazardous climate change, the State has a serious duty of care to take measures to prevent it’ (at [4.66]). 

The Court of Appeal, however, grounded its decision in European human rights law as it applies to the Dutch Government. In particular, the Court referred to articles 2 and 8 of the European Convention on Human Rights (ECHR), which create a duty on states to protect rights to life and to ‘home and private life’ respectively. The Court held that this duty ‘applies to all activities, public and non-public, which could endanger the rights protected in these articles’ and that if the Government is aware of a ‘real and imminent threat’, it must take precautionary measures to prevent the violation of those rights (at [43]). The question then, for the Court, was whether climate change met this threshold test. 

The Urgenda Foundation presented evidence (which was not challenged by the Government in the proceedings) demonstrating that if global warming is not limited to 2 degrees Celsius, we will see devastating consequences of climate change in the form of flooding, heat stress, fires, drought, and disruption of the food supply. In light of this evidence, the Court concluded that ‘it is appropriate to speak of a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’ (at [45]). 

Noting also that the Dutch Government is a signatory to the Paris Agreement, the Court concluded that the Government was in breach of articles 2 and 8 of the ECHR by ‘failing to pursue a more ambitious reduction as of end-2020, and that the State should reduce emissions by at least 25% by end-2020’ (at [76]).

Teitiota v New Zealand

In 2019, the Human Rights Committee found that refusing to grant asylum to climate refugees could be a violation of the right to life under the ICCPR. (While the Human Rights Council is a UN political body composed of member states, the Committee is a technical expert body established by the ICCPR to consider periodic reports from member states and individual petitions under the first Optional Protocol). 

The Committee had received a petition from Ioane Teitiota from Kiribati, a small island state located in the central Pacific Ocean, and one of the most vulnerable countries to climate change. Teitiota claimed that New Zealand had violated his right to life by refusing to grant him asylum and deporting him to Kiribati. Ultimately, the Committee found that Kiribati had not yet become so uninhabitable that Teitiota’s right to life was imminently threatened (at [9.12]). However, the Committee left open the possibility that future cases could meet that threshold.

The decision states 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’ (at [9.4]). Specifically, the Committee found that ‘the effects of climate change in receiving states may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states’ (at [9.11]).

Torres Strait Islanders v Australia

Also in 2019, a group of Torres Strait Islanders represented by ClientEarth made a complaint to the Human Rights Committee, claiming that by failing to reduce emissions or implement adaptation measures, the Australian Government has breached the claimants’ rights to life, culture, and privacy and family life under the ICCPR (arts 6, 27 and 17 respectively). The complaint is the first legal action brought against the Australian Government in an international forum in relation to the human rights impacts of climate change. (The Youth Verdict/Bimblebox Alliance case is the first brought before domestic Australian courts.)

The complaint is still before the Committee, but it should be noted that similar petitions before other international forums have faced significant hurdles in the past (see, for example, the unsuccessful Inuit petition to the Inter-American Commission on Human Rights). In early 2020, however, the Australian Government announced A$25 million in new climate change adaptation funding for the Torres Strait, which was one of the key demands of the claimants. 

The Torres Strait Islanders are additionally calling on the Government to adopt far more ambitious emissions reduction targets. While the Government has committed to a 26–28% reduction on 2005 emissions by 2030 under the Paris Agreement, current policy trajectories are expected to result in an 8% increase in total emissions (excluding the controversial and uncertain land use, land-use change and forestry figures). While federal energy policy in Australia remains stuck in a decade-old imbroglio, legal action like this and the Youth Verdict/Bimblebox Alliance case provide important opportunities to hold the executive branch of government accountable to its commitments under both the Paris Agreement and international human rights law.

The future of human rights and climate change action

Globally, governments are facing increasing pressure from communities and the civil sector to take urgent action on climate change. At the international level, forums such as the UN Framework Convention on Climate Change (UNFCCC) are often hamstrung by geopolitics. In the new pandemic landscape of border closures and zoom conferences, we should also critically reflect on the appropriateness of (and alternatives to) annually flying tens of thousands of delegates across the globe to take part in meetings, worsening the very crisis they are sent to address.

Local communities, however, are taking great strides in identifying and experimenting with different legal mechanisms available in domestic, regional and international courts for forcing national governments to take action on climate change. While these approaches too have their challenges, at its best, public interest litigation can work hand in hand with international processes, tackling the problem from both ends. In the Urgenda case, for example, the important groundwork laid by the UNFCCC process, the Intergovernmental Panel on Climate Change (IPCC), and the Paris Agreement (which is often criticised for being “toothless”) was instrumental in forging a pathway for the Dutch courts to find that the Government’s action on climate change to date was insufficient.

As we hurtle deeper into the territory of irreversible climate change, the comparatively well-developed body of human rights case law (at domestic, regional and international levels) is providing an important leg up for community-led climate action, and may yet help us turn the ship around while we still can.

* Translated by the author from the original Spanish.

Tess Van Geelen (BA, LLB (Hons IIA), GDLP) is a Legal Officer at the Australian Law Reform Commission. Previously, the author was a Visiting Researcher at the University of the South Pacific under the New Colombo Plan Scholarship, the Climate Change and Energy Policy Fellow with Young Australians in International Affairs, and a Research Assistant in the Queensland University of Technology School of Law. This contribution is made in a personal capacity, and exclusively reflects the views of the author.