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. 

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