The Right to a Safe Climate

From the Kyoto Protocol in 1997 to the Paris Agreement in 2015, international law has been steadily progressing to protect our planet from the impending climate crisis. Yet these treaties have no enforcement mechanism, and many countries are not on track to achieve their pledges, which in themselves are insufficient to keep warming below the desired 1.5°C. Our governments are on a path of destruction, and climate advocates are exploring what options exist to stop them.

One option that is increasingly being explored: human rights law. Important cases have begun to be brought before different human rights bodies, and slow steps forward are being taken. This article touches upon the developments we have seen to date, and explores where we can go next.

One of the first climate cases was the Inuk Petition brought before the Inter-American Commission on Human Rights in 2005. This petition claimed that the actions of the United States were causing significant harm to the Arctic and thus to the Inuit culture and resources; petitioners were asking the US government to limit its greenhouse emissions and provide assistance to protect the Inuit population from unavoidable harms. Unfortunately, the petition was denied. The Commission explained that there was insufficient evidence to determine whether the United States was violating human rights.

The problem of lack of evidence is no longer an issue ─ we have seen the effects of climate change, from deadly heat waves in Paris to the Australian wildfires, and it’s increasingly hard to deny causation. Whilst cases still do face issues of standing and attribution (it can be difficult to name a specific victim or perpetrator when both the effects and causes are so widespread), climate cases are picking up steam.

In December of last year, the Dutch Supreme Court ruled that the Dutch Government had a legal duty to prevent climate change, based on the European Convention on Human Rights and its incorporation into the Dutch Constitution. The Urgenda Case has shown that cases can be brought successfully against governments under human rights law for the deleterious impacts of climate change. The court tackled the issues of causation, attribution and standing through saying that all of society has obligations to prevent any potential harms under the ‘Precautionary Principle’. This case represents a significant breakthrough in the human rights law relevant to climate change. 

The UN Special Rapporteur on Human Rights and the Environment has talked of “the devastating effects of the current global climate emergency on the enjoyment of human rights”, urging members to change course. The UN High Commissioner has warned that “the world has never seen a threat to human rights of this scope,” and in a 2018 advisory opinion, the Inter-American Court of Human stated that states bear responsibility for the effects of pollution produced within their borders, even if they occur extraterritorially. 

We will see if this change continues as other cases are brought, and opinions given on petitions such as Sacchi et al. v. Argentina et al. before the UN Committee on the Rights of the Child – in this case, sixteen children – including Greta Thunberg – claim that Argentina, Brazil, France, Germany and Turkey are violating their rights through their contributions to climate change. One can hope that, as the world starts to recognise climate change for the human rights crisis that it is, governmental behaviours will start to change and they’ll enforce stricter regulations on the private entities out of international jurisdiction. 

What we need now is to start developing a strong body of climate jurisprudence. Only a handful of cases have even been heard in international human rights fora, and we haven’t seen anywhere near enough positive rulings to trigger governmental action on a broad scale. If we can start with the more dynamic courts who are open to building new jurisprudence, other courts will follow suit. We know that the climate crisis is violating human rights, what we need now is rulings to demonstrate it.

We also need to reach out to the general public. Real change begins when an increasing majority of society sees a certain behaviour as violating their rights – we have seen it happen time and again, from the abolition of slavery, to discounting coerced confessions, and even the recent push back against the use of private data. At the moment, the world of climate-focused human rights is relatively unknown to the general public. That needs to change. Human Rights Law can be a blunt tool, but public awareness can be its whetstone. 

As traditional international law instruments have failed to force nations to act in the face of climate change, advocates are shifting course. The violations of Human Rights caused by climate change are gaining more and more recognition and human rights bodies are increasingly being confronted with undeniable evidence. But even as these developments continue, we cannot stop working – to bring more cases and to get them heard, by courts and the public. Change is coming, let’s make sure it’s not the Climate.

(Photo credit: Vincent M.A. Jansen)

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