Courtrooms have become one of the frontlines for those seeking to limit climate change. The cases that have been fought with climate change as a primary concern have meant an expansion of who and what has legal standing in courts and as a matter of law, and who may represent interests such as those of future generations. The novelty of these cases has meant that the courts learn from each other across jurisdictions, for instance, an international tribunal being influenced by how a national court has dealt with a case or vice versa. The urgency to address climate change has also meant that courts may take on roles as “lawmakers” and enforce action.
Courtrooms have become one of the frontlines for those seeking to limit climate change. The cases that have been fought with climate change as a primary concern have meant an expansion of who and what has legal standing in courts and as a matter of law, and who may represent interests such as those of future generations. The novelty of these cases has meant that the courts learn from each other across jurisdictions, for instance, an international tribunal being influenced by how a national court has dealt with a case or vice versa. The urgency to address climate change has also meant that courts may take on roles as “lawmakers” and enforce action.
Key new insights
- Rights-based litigation is emerging as a tool to address climate change.
- Through such climate litigation, legal understandings of who or what is a rightsholder are expanding to include future, unborn generations, and elements of nature, as well as who can represent them in court.
- Climate litigation shows cross-fertilization between outcomes in different courts and tribunals, such as national case law influencing responses of international tribunals.
- Climate-related court cases address harm to people also across national boundaries.
- Courts come in as “lawmakers” to address climate change, given the absence of adequate climate action in other contexts.
Key new insights
- Rights-based litigation is emerging as a tool to address climate change.
- Through such climate litigation, legal understandings of who or what is a rightsholder are expanding to include future, unborn generations, and elements of nature, as well as who can represent them in court.
- Climate litigation shows cross-fertilization between outcomes in different courts and tribunals, such as national case law influencing responses of international tribunals.
- Climate-related court cases address harm to people also across national boundaries.
- Courts come in as “lawmakers” to address climate change, given the absence of adequate climate action in other contexts.
Litigation is an essential tool to urge action to prevent dangerous climate change and support the goals of the Paris Agreement. Most climate cases are public interest litigation against a government, such as the Urgenda Foundation filing a case against the State of the Netherlands in 2015. Claims are also brought against private actors such as oil companies (e.g., a group of environmental NGOs, including Friends of the Earth Netherlands, sued Royal Dutch Shell in 2019). Such cases can be initiated before domestic and international courts, tribunals or human rights treaty bodies or non-compliance mechanisms. Human rights violation claims have served as the primary premise of climate litigation, around which cases in less-developed countries, particularly in Latin America, are growing in number and impact substantively, and we have seen examples earlier in Europe and the United States.
Applying human rights to the context of climate change
Climate litigation is clarifying the content and scope of existing human rights in light of climate change impacts, such as the right to life and of a human right to a clean and healthy environment. The rights-based prism has led to a more focused debate on climate change and improved outcomes on states’ obligation of conduct (i.e., due diligence), specifically by refining the requirement of states’ climate plans, policies, and laws to reflect on their highest possible ambition. Through these developments we see a critical interplay between scientific evidence and adjudication.
Courts take role as “lawmakers”
Given the urgency to act and the absence of adequate climate action or enforcement, the courts in some cases come in as lawmakers. This challenges conventional interpretations of the balance of power, since developing climate policy is typically the domain of the legislative branch of the state.
Litigation addresses cross-boundary issues
The cross-boundary nature of climate change, both in terms of impacts and cause, makes litigation a critical tool in addressing human rights complaints related to climate change internationally. One contentious issue that climate litigation is useful in determining is whether states are responsible for “imported emissions” (which are produced elsewhere and cause emissions during those processes but are consumed at home) or “exported emissions” (the result of exported oil and gas products that are refined and burned abroad). This is referred to as extraterritoriality. Also, courts, compliance procedures, and human rights treaty bodies are starting to be asked to recognize the standing and rights of those who leave their country because it no longer sustains their life – climate migrants – like the case of Ioane Teitiota v. New Zealand. Decided by the UN Human Rights Committee in January 2020, this case was the first ruling to determine that for a government to force someone to return somewhere where the adverse effects of climate change could put their life at risk would be a violation of the right to life (on the basis of Article 6, the International Covenant on Civil and Political Rights).
Expanding legal standing and representation
Several recent, and in some instances high-profile, international claims alleging climate change–related harm could provide new conceptions of who or what has legal standing in the eyes of the court and who or what is eligible to represent the rights and interests of future generations to a healthy environment. The range of actors who can represent climate-related cases has widened, to include an NGO, ombudsperson, trustee, institution, governmental agency or a select group of individuals. Children, uncommonly situated as legal actors in the international arena, have initiated cases or similar proceedings as representatives of themselves and, to a certain extent, future generations. Plaintiffs strive to establish victimhood involving future harm or harm to future generations. For example, 16 children – representing 12 nationalities – filed a complaint against 5 countries before the United Nations Committee on the Rights of the Child in 2019 and a group of 6 Portuguese youth lodged an application in 2020 at the European Court of Human Rights against 33 states to provoke more ambitious climate action.
Legal rights of nature
Another pivotal innovation of climate litigation is the development of legal rights of nature. For example, the environmental organization Asociación Civil por la Justicia Ambiental filed a case in Argentina in 2020 to recognize a wetland ecosystem as a “Subject of Rights”; and, in 2018 the Colombian Supreme Court found the Amazon to be a legal subject with the right to protection in large part for climate change mitigation.
Cross-fertilization across levels and scales
International courts and tribunals are increasingly recognized as a potentially powerful venue for adjudication and advisory opinions on climate change. States in recent decades have considered international courts and tribunals to be appropriate fora for the settlement of international environmental legal disputes. The demonstrated influence and cross-fertilization among judges, courts, and tribunals at domestic, regional, and international levels further points to their emerging impact on climate litigation more generally.
Litigation is an essential tool to urge action to prevent dangerous climate change and support the goals of the Paris Agreement. Most climate cases are public interest litigation against a government, such as the Urgenda Foundation filing a case against the State of the Netherlands in 2015. Claims are also brought against private actors such as oil companies (e.g., a group of environmental NGOs, including Friends of the Earth Netherlands, sued Royal Dutch Shell in 2019). Such cases can be initiated before domestic and international courts, tribunals or human rights treaty bodies or non-compliance mechanisms. Human rights violation claims have served as the primary premise of climate litigation, around which cases in less-developed countries, particularly in Latin America, are growing in number and impact substantively, and we have seen examples earlier in Europe and the United States.
Applying human rights to the context of climate change
Climate litigation is clarifying the content and scope of existing human rights in light of climate change impacts, such as the right to life and of a human right to a clean and healthy environment. The rights-based prism has led to a more focused debate on climate change and improved outcomes on states’ obligation of conduct (i.e., due diligence), specifically by refining the requirement of states’ climate plans, policies, and laws to reflect on their highest possible ambition. Through these developments we see a critical interplay between scientific evidence and adjudication.
Courts take role as “lawmakers”
Given the urgency to act and the absence of adequate climate action or enforcement, the courts in some cases come in as lawmakers. This challenges conventional interpretations of the balance of power, since developing climate policy is typically the domain of the legislative branch of the state.
Litigation addresses cross-boundary issues
The cross-boundary nature of climate change, both in terms of impacts and cause, makes litigation a critical tool in addressing human rights complaints related to climate change internationally. One contentious issue that climate litigation is useful in determining is whether states are responsible for “imported emissions” (which are produced elsewhere and cause emissions during those processes but are consumed at home) or “exported emissions” (the result of exported oil and gas products that are refined and burned abroad). This is referred to as extraterritoriality. Also, courts, compliance procedures, and human rights treaty bodies are starting to be asked to recognize the standing and rights of those who leave their country because it no longer sustains their life – climate migrants – like the case of Ioane Teitiota v. New Zealand. Decided by the UN Human Rights Committee in January 2020, this case was the first ruling to determine that for a government to force someone to return somewhere where the adverse effects of climate change could put their life at risk would be a violation of the right to life (on the basis of Article 6, the International Covenant on Civil and Political Rights).
Expanding legal standing and representation
Several recent, and in some instances high-profile, international claims alleging climate change–related harm could provide new conceptions of who or what has legal standing in the eyes of the court and who or what is eligible to represent the rights and interests of future generations to a healthy environment. The range of actors who can represent climate-related cases has widened, to include an NGO, ombudsperson, trustee, institution, governmental agency or a select group of individuals. Children, uncommonly situated as legal actors in the international arena, have initiated cases or similar proceedings as representatives of themselves and, to a certain extent, future generations. Plaintiffs strive to establish victimhood involving future harm or harm to future generations. For example, 16 children – representing 12 nationalities – filed a complaint against 5 countries before the United Nations Committee on the Rights of the Child in 2019 and a group of 6 Portuguese youth lodged an application in 2020 at the European Court of Human Rights against 33 states to provoke more ambitious climate action.
Legal rights of nature
Another pivotal innovation of climate litigation is the development of legal rights of nature. For example, the environmental organization Asociación Civil por la Justicia Ambiental filed a case in Argentina in 2020 to recognize a wetland ecosystem as a “Subject of Rights”; and, in 2018 the Colombian Supreme Court found the Amazon to be a legal subject with the right to protection in large part for climate change mitigation.
Cross-fertilization across levels and scales
International courts and tribunals are increasingly recognized as a potentially powerful venue for adjudication and advisory opinions on climate change. States in recent decades have considered international courts and tribunals to be appropriate fora for the settlement of international environmental legal disputes. The demonstrated influence and cross-fertilization among judges, courts, and tribunals at domestic, regional, and international levels further points to their emerging impact on climate litigation more generally.
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