Categories
Children and young people Domestic court Emissions reductions Germany Paris Agreement Private and family life Right to a healthy environment Right to life

Luca Salis et al. v. Sachsen-Anhalt

Summary:
This constitutional complaint was brought by three young people against the German State (“Bundesland”) of Sachsen-Anhalt in the wake of the Neubauer v. Germany judgment of the German Bundesverfassungsgericht. They contest the State’s failure to chart a course towards greenhouse gas emissions reductions by adopting legislation on climate protection. The state abandoned efforts to adopt such a law after an initiative in this regard failed in 2013, relying on the Paris Agreement and the German Constitution. Like in the related case of Lemme et al. v. Bavaria, the plaintiffs here argue that the Bundesländer share responsibility for protecting their lives and civil liberties, along with those of future generations, within their respective spheres of competence. According to the plaintiffs, the lack of legislation on climate action on the state level violates the German Constitution and the reductions regime under the Paris Agreement. They also submit that they have a fundamental right to defend themselvse against future rights impacts caused by the lack of climate measures.

Rights invoked:
The applicants invoked violations of freedoms guaranteed under the domestic Constitution, especially those in Art. 2(2) of the German Constitution (right to life and physical integrity and freedom of the person), in combination with Article 20a of the Constitution (protection of the natural foundations of life and of animals). They invoked these rights in their ‘intertemporal dimension’, i.e. taking on the framing of the Neubauer case, which considered that failure to act now on climate change means excessively impacting future freedoms.

Suggested citation:
German Bundesverfassungsgericht, Luca Salis et al. v. Sachsen-Anhalt, constitutional complaint submitted on 9 September 2021.

Related proceedings:
For more on the two complaints brought in the related Lemme case, see below.

Categories
Children and young people Domestic court Emissions reductions Germany Paris Agreement Right to a healthy environment Self-determination

Lemme et al. v. Bayern

Summary:
This case is part of a set of proceedings brought by ten youth plaintiffs concerning the codification of the adjusted climate goals brought about in response to the Neubauer v. Germany judgment of the German Bundesverfassungsgericht. According to the applicants, in their constitutional claim, the German States (“Bundesländer”) share responsibility for protecting their lives and civil liberties, along with those of future generations, within their spheres of competence. They argue that the lack of legislation on climate action on the state level violates the German Constitution and the reductions regime under the Paris Agreement, and that they have a fundamental right to defend themselvse against future rights impacts caused by the lack of climate measures.

Regulatory context:
The Bavarian Climate Protection Act (Bayerisches Klimaschutzgesetz) aims to reduce greenhouse gas emissions by 55% compared to 1990 levels by 2030. It also aims to achieve net zero emissions by 2050, and requires Bavaria to offset emissions after 2030. This has been implemented through a climate protection program. According to the plaintiffs, the lack of a deadline of adaptation strategy, and the failure to provide differentiated targets or instruments for implementation of compliance, mean that the Bavarian law falls short of the Federal requirements on climate protection measures.

Rights invoked:
The applicants invoked violations of various freedoms guaranteed under the domestic Constitution, especially those in Art. 2(1) of the German Constitution (right to free development of one’s personality), in combination with Article 20a of the Constitution (protection of the natural foundations of life and of animals). They invoked these rights in their ‘intertemporal dimension’, i.e. taking on the framing of the Neubauer case, which considered that failure to act now on climate change means excessively impacting future freedoms.

Related proceedings:
In addition to the constitutional proceedings, a subsidiary popular complaint has been brought by the same group of applicants to contend that the Bavarian Climate Protection Act (Bayerisches Klimaschutzgesetz), along with the wider regulatory context, is in violation of constitutional rights.

In addition, similar litigation has been brought in other German Bundesländer.

Suggested citation:
German Bundesverfassungsgericht, Marlene Lemme and Nine Other v. Bavaria, constitutional complaint of 30 June 2021.

Categories
Adaptation Australia Human Rights Committee Imminent risk Indigenous peoples' rights Private and family life Right to culture Right to life Sea-level rise

Torres Straits Islanders v. Australia

Summary:
This petition against Australia was brought to the UN Human Rights Committee by a group of eight Torres Straits Islanders in 2019. In their petition, they argued that the Australian government had violated their rights, as inhabitants of low-lying islands, under the International Covenant on Civil and Political Rights (ICCPR) because of its inaction in addressing climate change.

Rights at stake:
The applicants in this case invoked a series of rights in the ICCPR. This includes Article 27 (the right to culture), Article 17 (the right to be free from arbitrary interference with privacy, family and home), and Article 6 (the right to life). They consider that the Australian government must ensure both mitigation and adaptation measures in order to adequately protect their rights.

Outcome:
The case is currently pending.

Categories
Adaptation Australia Domestic court Imminent risk Indigenous peoples' rights Sea-level rise Uncategorized Vulnerability

Australian Torres Straits Islanders case

Summary:
In the Australian Torres Straits Islanders case, modelled on the Dutch Urgenda case, a group of indigenous Torres Strait Islanders living on islands off Australia’s coast initiated domestic class action proceedings before the Federal court of Australia to claim that the Australian government has failed to protect them from climate change, leading to the progressive destruction of their ancestral islands.

Context:
In another, separate climate claim, a group of eight Torres Strait islanders took a Communication to the United Nations Human Rights Committee in 2019, alleging that Australia had violated the human rights of low-lying islanders because of its failure to take climate action.

Petitioners:
This case was brought by two First Nations leaders on behalf of the remote Torres Strait islands of Boigu and Saibai. They brought the case on their own behalf and “on behalf of all persons who at any time during the period from about 1985 and continuing, are of Torres Strait Islander descent and suffered loss and damage as a result of the conduct of the Respondent”.

Arguments made:
Based on scientific evidence, the plaintiffs argue that climate change is already threatening their native title rights and distinctive customary culture. They allege that, due to the progression of climate change and the increasing storms and rising sea levels that result from this, they face an increasing threat of floods and of rising salt concentrations in their soil. Some islands, they argue, could become uninhabitable if the global temperature rises to levels more than 1.5°C above pre-industrial levels. One of the plaintiffs noted that that his people have lived on the islands in question for over 65,000 years.

The plaintiffs allege that the Australian government owes a duty of care to Torres Strait Islanders. It must, in other words, take reasonable measures to protect them, their environment, their culture and their traditional way of life from the harms caused by climate change. Because current climate action and targets are not consistent with the best available climate science, they argue, this duty of care has been breached. They invoke the Torres Strait Treaty, which requires the Australian government to protect and preserve the marine environment in the region. The plaintiffs seek both mitigation and adaptation measures and rely on the duty of care recognized in the Sharma case.

Full text of the petition:
The full text of the petition is available at climatecasechart.com.

Categories
Blog

The UN Recognizes the Human Right to Healthy Environment

On Friday, 8 October 2021, the UN Human Rights Council issued its Resolution 48/13, which recognizes the human right to a safe, clean, healthy and sustainable environment. On the same day, in its Resolution 48/14, the Human Rights Council also established the office of a Special Rapporteur on the promotion and protection of human rights in the context of climate change.

The recognition of the human right to a healthy environment in Resolution 48/13 has been hailed as a major success for efforts to ensure that human rights law can adequately respond to environmental harms, and especially to the harms associated with climate change. The succinct resolution ‘[r]ecognizes the right to a safe, clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights’ (§ 1), notes its interrelationship with other human rights (§ 2), and encourages States to capacity-build, cooperate, share good practices, adopt policies, and continue to take into account their environmental human rights obligations and commitments (§ 3).

In addition, the Human Rights Council’s Resolution 48/14 has simultaneously created the office of the Special Rapporteur on the promotion and protection of human rights in the context of climate change for a period of three years. The Special Rapporteur, who has not yet been appointed, will study the adverse effect of climate change on human rights, identify challenges, synthesize knowledge, promote and exchange views and best practices, raise awareness, seek views and contributions from States and other relevant stakeholders, facilitate the exchange of technical assistance, capacity-building and cooperation, coordinate with other actors, conduct country visits, participate in relevant events, integrate a gender-responsive, age-sensitive, disability inclusive and social-inclusion perspective, participate in the creation of standards for corporate actors, coordinate closely with other Special Rapporteurs in related thematic areas, and report to the Human Rights Council annually. The Resolution also requests the Advisory Committee of the Human Rights Council to prepare a report, in close cooperation with the new Special Rapporteur, on the impact of new climate protection technologies on human rights.

On the EJIL:Talk! Blog, Annalisa Savaresi has summarized these developments, discussing the various advantages of the recognition of the human right to a healthy environment. This includes improved access to justice, a strengthened basis for activism and the foundation for legislative protections of environmental interests. Overall, the recognition of this right is also described as drawing increased attention to environmental harms and issues.

Categories
2021 Domestic court Indigenous peoples' rights Norway Right to culture

Statnett SF et al. v. Sør-Fosen sijte et al.

Summary:
In this judgment of 11 October 2021, the Supreme Court of Norway found that the construction of two wind power plants on the Fosen peninsula interfered with the rights of reindeer herders to enjoy their own culture under Article 27 of the International Covenant on Civil and Political Rights (ICCPR). The Supreme Court unanimously found that there had been an interference with this right, and accordingly invalidated the wind power licence and the expropriation decision.

Facts of the case:
In 2010, two wind power plants (the Roan and Storheia plants) received a license from the Norwegian Water Resources and Energy Directorate. These plants are located within the Fosen grazing district, where the Sør-Fosen sijte and Nord-Fosen siida keep their reindeer. In 2013, the Ministry of Petroleum and Energy rejected their claim that the construction of the wind power plants interfered with their right to cultural enjoyment. Construction on the plants commenced while the issue was pending before the courts, and the two plants – which are part of the largest onshore wind power project in Europe — were ready to become operational in 2019 and 2020, respectively.

Merits:
The main issue at stake before the Supreme Court was whether the development interfered with the reindeer herders’ rights under Article 27 ICCPR. That provision enshrines the right of persons belonging to an ethnic, religious or linguistic minority to enjoy their own culture, in community with the other members of their group. It was undisputed before the Supreme Court that reindeer husbandry is a protected cultural practice. The Supreme Court relied on the Court of Appeal’s finding that the winter pastures near Storheia and Roan had in practice been lost to reindeer husbandry, and that the wind power plants in question are a threat to the reindeer industry’s existence on Fosen peninsula absent remedial measures.    

The Supreme Court, relying on the work of the UN Human Rights Committee, held that the total effect of the development in question determines whether a violation of the ICCPR right has taken place. Although there is no room for a proportionality assessment, a balance must be struck if the rights under Article 27 ICCPR conflict with other fundamental rights. The Supreme Court established that the right to a healthy environment might constitute such a conflicting right.

The Supreme Court found that the herders’ cultural rights would face significant adverse effects and be violated if satisfactory remedial measures were not implemented. The Supreme Court agreed that a “green shift” and increased renewable energy production are important, but found that there were alternatives that were less intrusive for the reindeer herders less, so that there was no collision between environmental interests and the reindeers’ right to cultural enjoyment in this case.   

Remedial awards:
In its ruling, the Court of Appeal had previously stipulated sizeable compensation for the winter feeding of fenced-in reindeer, and on this basis it had found no violation of the right to cultural enjoyment. In the Supreme Court’s view, such a solution was too uncertain to be a determining factor in whether Article 27 ICCPR had been violated. In any event, the courts could not rely on such a measure as a part of the reindeer herders’ duty to adapt.  

Separate opinions:
N/A

Implementation:
N/A

Date of judgment:
11 October 2021

Links:
A summary of the judgment (in English) is available here.

The full text of the judgment (in Norwegian, English translation forthcoming) is available here.

Suggested citation:
Supreme Court of Norway, Statnett SF et al. v. Sør-Fosen sijte, HR-2021-1975-S, Judgment of 11 October 2021.

Categories
Blog

Draft Protocol on the Right to Healthy Environment at the Council of Europe

On 29 September 2021, the Parliamentary Assembly of the Council of Europe (PACE) proposed a new additional protocol to the European Convention on Human Rights which would recognize the right to a safe, clean, healthy and sustainable environment within the Council of Europe system. The proposal, which is based on a report by PACE member Simon Moutquin (Belgium SOC),  can be found here, and it also proposes the adoption of a parallel additional protocol to the European Social Charter.

The Assembly’s proposal will now be considered by the Council of Europe Committee of Ministers, which will decide whether to draft a corresponding protocol. Several previous attempts to recognize the right to a healthy environment within the Council of Europe have failed, and a similar recommendation by PACE from 2009 did not lead to the adoption of a corresponding optional protocol by the Committee of Ministers. PACE announced that this new instrument would would give the European Court of Human Rights “a non-disputable base for rulings concerning human rights violations arising from environment-related adverse impacts on human health, dignity and life”.

For more on this, see the press release from the Council of Europe.

Categories
Argentina Brazil Children and young people Committee on the Rights of the Child France Germany Turkey

Sacchi et al. v. Argentina, Brazil, France, Germany & Turkey

Summary:
On 23 September 2019, 16 children, among them teenage climate activist Greta Thunberg, filed a petition before the Committee on the Rights of the Child (CRC) alleging that Argentina, Brazil, France, Germany and Turkey had violated their rights under the UN Convention on the Rights of the Child (UNCRC) by making insufficient cuts to greenhouse gases and failing to encourage the world’s biggest emitters to curb carbon pollution. Each of the respondent states has ratified the UNCRC, and all of them have signed the Paris Agreement but, according to petitioners, none have made or kept commitments that align with keeping temperature rise.

The sixteen children petitioned the CRC to declare a violation of their rights due to the respondent states’ perpetuation of climate change. They also petitioned the CRC to recommend actions that the respondents must take to address climate change, specifically mitigation and adaptation measures. Their claims are based on the rights enshrined in the UNCRC, and the argument that the respondents have knowingly caused and perpetuated the climate crisis, thereby triggering the applicability of human rights obligations and duties.

In its inadmissibility decision of 22 September 2021, the Committee declared the Communication inadmissible. This decision is indicative of some of the procedural challenges that climate cases will face in the future. Whereas the Committee recognized that the authors of the Communication had victim status, and established that it had jurisdiction over the case, it found the case inadmissible for failure to exhaust domestic remedies.

Adjudicating Body:
UN Committee on the Rights of the Child

Date:
22 September 2021

Status of case:
Declared inadmissible

Third party intervention:
On 1 May 2020, David R. Boyd and John H. Knox (the current and former UN Special Rapporteurs on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, respectively), submitted a third-party intervention regarding this Communication to the Committee. The text of the intervention is available here.

Hearing in these cases:
There were oral hearings before the CRC in these cases. The parties appeared before the Committee via videoconference at five separate hearings between May and September 2021.

Admissibility:
Arguments by the respondent States:
Three respondent States (Brazil, France and Germany) responded to the petition, arguing that it was inadmissible on the grounds of lack of jurisdiction; lack of substantiation (manifestly ill-founded); and the failure to exhaust domestic remedies.

Reply by the petitioners:
In their reply of 4 May 2020, the petitioners argued that:

1) the Committee had jurisdiction because they (the petitioners) are “directly and foreseeably injured by greenhouse gas emissions originating in the Respondents’ territory;”
2) the claims are manifestly well-founded because the children are currently suffering direct and personal harms due to climate change, and they will continue to do so in the foreseeable future; and
3) the pursuit of domestic remedies would be futile.

Findings of the CRC:
The CRC adopted a separate set of Views for each State party concerned; these will be discussed together here.

In terms of the authors’ victim status, the Committee held that they had “prima facie established that they have personally experienced a real and significant harm in order to justify their victim status.” In doing so, it held that the authors, as children, are particularly impacted by climate change, and that States have “heightened obligations to protect children from foreseeable harm”. As a result, the CRC was not precluded by Article 5(1) of the Optional Protocol from considering the communication.

In terms of jurisdiction, the CRC held, with reference to the Inter-American Court of Human Rights’s Advisory Opinion OC-23/17 on the Environment and Human Rights and its own Joint Statement on Human Rights and Climate Change, that States have effective control over carbon emissions and that they are responsible for transboundary harm caused by these emissions. It found that, even though climate change is “a global collective issue that requires 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.” In light of existing scientific evidence showing the impact of the cumulative effect of carbon emissions on the enjoyment of human rights, including rights under the Convention, the Committee considered with regard to each individual respondent State that “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”.

Concerning the exhaustion of domestic remedies, the Committee recalled that this requirement does not apply where these avenues do not offer objective prospects of success. In these cases, however, it examined the remedial possibilities in each State in detial, and ultimately reached a finding of inadmissibility, noting that no domestic proceedings had been initiated in the respective States concerned.

In this regard, various arguments made by the authors were unsuccessful. The argument that plaintiffs from other countries were barred from proceedings was disregarded for lack of specific examples (Communication concerning Argentina, § 10.18). The Committee further referred to the existence of discretionary remedies, which the authors had not used. The authors’ “doubts about the prospects of success of any remedy” was not sufficient for the Committee to consider they had exhausted “all domestic remedies that were reasonably effective and available to them to challenge the alleged violation of their rights under the Convention.” The references to environmental cases in which the State parties took several years to reach a decision was not considered sufficient evidence to show that domestic remedies would be unreasonably prolonged.

Merits:
Not examined

Remedies:
Not applicable

Separate opinions:
Not applicable

Implementation measures taken:
Not applicable

Keywords:
Admissibility, children’s rights, UNCRC, domestic remedies, transboundary harms, victim status.

Links:
For a summary of the five cases from the UN’s treaty body media service, click here.

For background on the case, click here.

The text of the petition is available on Climate Case Chart, click here to access it.

The full text of the Committee’s Views can be found:

  • Regarding Argentina, the Views can be found here.
  • Regarding Brazil, the Views can be found here.
  • Regarding France, the Views can be found here.
  • Regarding Germany, the Views can be found here.
  • Regarding Turkey, the Views can be found here.

Suggested citation for the Communication concerning Argentina:
Committee on the Rights of the Child, Sacchi et al. v. Argentina (dec.), 22 September 2021, CRC/C/88/D/104/2019.

Categories
Children and young people Domestic court Right to a healthy environment Uganda

Mbabazi and Others v. The Attorney General of Uganda and Others

Summary:
This case was brought by a group of four young people, along with an NGO, alleging that the government of Uganda had breached its duty as a public trustee over natural resources because it had failed to uphold the right to a clean and healthy environment. The case was brought against the Attorney General of the Republic of Uganda and the National Environment Management Authority (NEMA). The plaintiffs brought their case under Articles 29, 50 and 237 of the Ugandan Constitution, along with sections 2, 3, 71 and 106 of the National Environment Act. They brought the case on their own behalf, as well as on behalf of “all children of Uganda born and unborn”, and in the public interest.

Claims:
The plaintiffs argued that the Government of Uganda holds and maintains natural resources for and on behalf of Ugandan citizens under Article 237 of the domestic Constitution, and that it has a duty and obligation to maintain these resources and to ensure their sustainable use. It also has a duty to ensure the sustainable use of resources for present and future generations, including air, water and land. They describe the atmosphere as an ecological asset of the Ugandan people. They invoked Articles 39 and 237 of the domestic Constitution, which imposes a duty on the government to ensure that the atmosphere is free from pollution, and they also argued that the Government has a duty to ensure the integration of environmental concerns into overall national policy-making. The Government had failed to uphold citizens’ right to a clean and healthy environment, and to curb the present and future effects of climate change.

Date filed:
2012

Case status:
Pending

Further reading:
The amended text of the complaint, as submitted in 2015, is available from climatecasechart.com.

Suggested citation:
High Court of Uganda, Mbabazi and Others v. The Attorney General and National Environmental Management Authority, Civil Suit No. 283 of 2012

Categories
Business responsibility Children and young people Domestic court Emissions reductions Evidence Right to a healthy environment Right to health South Africa

South African ‘Deadly Air Case’

Summary:
This case concerns toxic air pollution in the Mpumalanga Highveld, which is home to a dozen coal-fired power plants, a coal-to-liquids plant and a refinery. The case was brought by two environmental organisations – groundWork and Vukani Environmental Justice Movement in Action – represented by the Centre for Environmental Rights.

The applicants have petitioned the court to declare the unsafe levels of air pollution to be a violation of section 24a of the South African Constitution, which provides that “everyone has the right to an environment not harmful to their health or wellbeing”. 

The outcome of the case is currently pending before the Pretoria High Court, and Judge Colleen Collins has reserved judgment.

Claims:
The applicants’ complaints concern exposure to toxic chemicals emitted by the coal plants. This includes sulphur dioxide, heavy metals like mercury, and fine particulate matter. According to the applicants, the coal plants are responsible for the majority of these emissions, which are causing chronic respiratory illnesses such as asthma and lung cancer, and which also increase the risk of strokes, heart attacks, birth defects and premature deaths. 

The area in question has been recognized as a hotspot of pollution in excess of permissible levels. It has been claimed that this pollution is responsible for up to 10,000 excess deaths per year. But the Government has pointed to the existence of clean air regulations, and argued that there is no scientific evidence proving the link between the air pollution and the harms allegedly suffered by any particular individual. It has also highlighted the need to realize the right to a healthy environment progressively.

Amicus curia intervention by the UNSR:
David R. Boyd, the United Nations special rapporteur on human rights and the environment, intervened as an amicus curiae in this case. He argued that poor and marginalised people disproportionately carry the burden of toxic air pollution. It has been reported that Boyd’s arguments include consideration for the vulnerability of children to environmental threats.

Deciding body:
Pretoria High Court

Admissibility:
TBD

Merits:
TBD

Remedies and outcomes:
TBD

Further reading:
For more information from the Centre for Environmental Resources, click here.

Suggested citation:
South African ‘Deadly Air’ case, Pretoria High Court, hearings held on 17-19 May 2021.