Author: ganesanpranav

Categories
2022 Chile Domestic court Emissions reductions/mitigation Gender / women-led Non-discrimination Right to a healthy environment Right to health Right to life Separation of powers

Women from Huasco & Others v. Government of Chile & Ministries of Energy, Environment and Health

Summary:

On 25 November 2021, a group of women from the city of Huasco, alongside Doris Zamorano, a member of a civil society organization in Huasco, brought a constitutional action against Chile’s omission in coordinating the early closure of two coal-fired power plants. The Chilean government had signed closure agreements with owners of various thermoelectric power plants, but the two plants in question were absent from these agreements. They would be subject to the general clause requiring closure of all coal-fired power plants by the year 2040. The petitioners argued the emissions from the powerplants and the uncertainty as to their closure in advance of the year 2040 contributes to interferences with their exercise and enjoyment of fundamental rights. In particular, they point to the governmental authorities’ awareness about the persistent local air pollution and treatment of Huasco as a ‘sacrifice zone,’ as well as Chile’s climate mitigation commitments.  

On 2 May 2022, the Court of Appeals of Copiapo dismissed the petition on the ground that adjudication of the issues raised by the petitioners was beyond its competence. The petitioners have filed an appeal against this decision before the Supreme Court of Chile.

Claims:

The applicants argue that the State’s omissions consist in its failure to close two coal-fired power plants, failure to justify the exclusion of the two power plants from the list of plants due to be closed earlier than 2040 pursuant to its climate policy, and toleration of emissions from the two power plants despite no compensation being granted for the negative environmental impacts from their operation. The petition alleges that these omissions violate their constitutional rights to equality, to life, physical and psychological liberty, to an environment free from contamination, and to the protection of their health, as well as a breach of the State’s administrative duty not to act arbitrarily. In support of the latter contention, the petitioners relied on the administrative law principles of service of the human person, coordination between State organs and the environmental principles of prevention and precaution. Further, they argued that the normative content of the State’s duty were to be informed by Sustainable Development Goals, International Labour Organisation Guidelines on Just Transition, UN Framework Convention on Climate Change, Paris Agreement and Chile’s 2020 NDC Communication under the Paris Agreement. By way of evidence, the petitioners relied on reports of high levels of air pollution in the city of Huasco, and a comparative analysis of morbidity rates and incidences of respiratory illnesses in Huasco and Caldera, a similar city that was not in the vicinity of coal-fired power plants.

The petitioners requested the Court of Appeals of Copiapo to order the concerned state organs to (i) establish and implement a plan to effect the early closure of the two power plants, and (ii) establish a compensation plan for historical and current emissions of the power plants to redress the environmental and health-related impacts.

In his reply, the Minister of Energy challenged the appropriateness of a judicial review of complex public policies which were the result of a democratic and representative participative process. The Minister also elaborated on the procedural history and content of the government’s policy on decarbonisation, and the limits of the legal competences of the various Ministries vis-à-vis regulation of private actors in the energy sector, to rebut the petitioners’ arguments about the State’s breach of administrative duties. The reply submitted by the Minister of Environment argued that there is no omission attributable to the Ministry of the Environment since regulation of power plants falls within the authority of the Ministry of Energy, and that environmental management instruments were enacted to improve the air quality in Huasco. The Minister of Health submitted a similar reply. The Undersecretary General of the Presidency argued that State authorities lack the power to order the early closure of the said power plants, and that all of the authorities named in the petition had taken relevant measures in relation to the factual situation described by the petitioners.

Decision:

On 2 May 2022, the Court of Appeals of Copiapo rendered its decision wherein it rejected the petition. The Court noted that petitioners’ action for constitutional review of the State’s omission suggests that they disagree with its actions which form part of the public policy on decarbonisation of the country. However, this policy was developed and implemented with the participation of various state organs (with the Ministry of Energy being at the head of them) and it is not for the Court to substitute itself for them and order a replacement or modification of such policy. The Court also noted the involvement of non-State stakeholders, including both actors from the industry and civil society, in the establishment of the decarbonisation policy.

Additionally, with respect to closure of power plants, the Court noted that State organs do not have the authority to demand closures and that such an outcome can only be achieved through agreements between the State and the concerned owners of the power plants. The Court concluded that the fact that the agreement concluded between the State and the owner of the two power plants in question does not envisage a concrete plan for their closure, as it does for some other power plants, does not evince arbitrariness.

Links:

The case documents are accessible via Climate Case Chart (click here).

Status of the case:

The case is pending in appeal before the Supreme Court of Chile.

Last updated:

08 August 2023.

Categories
Adaptation Domestic court Imminent risk Loss & damage Right to a healthy environment Right to health Right to life Right to property Uganda

Tsama William & 47 Ors v. Uganda

Summary:

The case was initiated following multiple landslides that occurred in December 2019 in the Bududa district in Eastern Uganda, in an area that is prone to landslides, which the applicants allege were exacerbated by climate change. The applicants claim that the landslides resulted in their displacement from their homes, killed their relatives and destroyed their property and the environment.

The applicants brought the case against the Ugandan government, the environmental authority and the local government of Bududa before the High Court of Uganda seeking orders for protective measures and compensation.  

Claims:

The applicants claim that the respondents have violated their positive obligations under statutory law to protect the applicants from recurrent landslides. They argue that the respondents’ failures to put in place an effective machinery for dealing with landslides and promptly warn the applicants about known risks, violated their fundamental rights to life, a clean and healthy environment, property, and physical and mental health. Aside from declaratory relief, the applicants claim a sum of 6.8 billion Ugandan Shillings as compensation for loss of life, destruction of property, physical and mental harm, as well as the cost of resettlement to safer areas.  The applicants further allege that the risk of future landslides owing to extreme weather events caused by climate change requires the respondents to take measures to relocate and resettle the applicants.  

This case is about adaptation to environmental risks (i.e. it is broader than climate adaptation), since the applicants principally rely on evidence that the problem of recurring landslides in the Bududa district has been going on since the beginning of the 20th century. However, the applicants rely on climate change as one among the factors contributing to the landslide risks they had previously faced and are likely to face in the future, as well as their vulnerability.  

Links:

The case documents are accessible via Climate Case Chart. For petition submitted by the applicants to the High Court of Uganda see here.

For replies by the respondents, see here and here.

Status of the case: The case is pending before the High Court of Uganda.

Last updated: 03 August 2023.

Categories
Australia Children and young people Domestic court Emissions reductions/mitigation Fossil fuel extraction Indigenous peoples rights Non-discrimination Private and family life Right to life Right to property

Waratah Coal Pty Ltd v. Youth Verdict Ltd & Ors

Summary:

The case concerns the applications by Waratah Coal Pty Ltd. (WC) for a ‘mining license’ and an ‘environmental authority’ under the Australian mining regulation and environmental protection legislation. These would allow it to mine coal in areas of the Galilee Basin, including parts of a protected area under the nature conservation law.  

The case reached the Land Court of Queensland on account of objections by environmental groups to WC’s applications. The Land Court of Queensland’s role was to provide a recommendation to the governmental authorities responsible for deciding on the applications after reviewing their merits (considering the compatibility of the proposed project with the environmental laws in Australia). However, the Court also found that the human rights implications of the coal mining project were relevant. The justification for this was that the court was directly bound by the Human Rights Act 2019 to not make a decision that is incompatible with human rights.

In its lengthy judgment, Court concluded on the basis of the evidence available to it and the interests at stake that it could not recommend the approval of WC’s applications.

Claims:

The objectors to WC’s applications raised several contentions in regards to the local and global environmental impacts of allowing coal mining in the Galilee Basin (including its contribution to climate change), as well as interference with private property rights. WC refuted these contentions and found that several issues raised by the objectors were irrelevant to the decision of their applications.  

In regards to climate change, WC disagreed that the emissions produced by foreign consumers of the mined coal are a relevant consideration. It argued that approving the mining of coal does not entail approving its combustion, and that the responsibility for the emissions from the latter falls on importing countries which decide to do so.  WC also argued that the mine will make no difference to total emissions because it would displace lower quality coal with higher greenhouse gas (GHG) emissions.  

Decision:

The Court framed its recommendation as pertaining to the specific coal mining project in question rather than coal mining in general. It was not convinced by the evidence put forth by WC with respect to the adequacy of its plans of offsetting the environmental impacts which would follow from the coal mining project.

In relation to climate change, the Court found that the mitigation of climate change was amongst the public interests which needed to be considered in the balance against the public interest considerations in support of the project (such as economic development). While the Court acknowledged that the project itself would not necessarily put Australia over its greenhouse gas emissions budget or lead to an exceedence of the temperature limits set by the Paris Agreement, Australia’s limited carbon budget and the risks of exceeding the 1.5° and 2°degree C temperature limits, and Queensland’s intention to achieve net-zero emissions by 2050, were strong factors which supported the refusal of the project. 

The Court rejected WC’s contentions in regards to foreign emissions from the combustion of the coal mined by WC, finding that not considering them would be inconsistent with the public interest criterion in the environmental protection legislation.

The Court found that the human rights to life, protection of children, culture of First Nations People, privacy and home, property, and the enjoyment by certain groups of rights without discrimination were engaged by the coal mining project. In its assessment, the project constituted a ‘limit’ to these rights owing to its causal link with climate change which, in turn, affects the enjoyment of these rights. The Court concluded that the economic and other public interest benefits of the project were not sufficient to justify the limitation of human rights which would result from the project.

Links:

For full judgment of 25 November 2022, see here.

Suggested case citation:

Land Court of Queensland, Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21, 25 November 2022, President Fleur Kingham.

Last updated:

03 August 2023.

Categories
Brazil Deforestation Domestic court Emissions reductions/mitigation Indigenous peoples rights Indigenous peoples' rights Right to a healthy environment Right to culture

PSB et. al. v. Brazil (Amazon deforestation)

Summary:

On 11 November 2020, seven political parties with representation in Brazil’s National Congress brought an action against the Brazilian government before the Federal Supreme Court of Brazil. The petition sought the effective implementation of the public policy to combat deforestation in Brazilian Amazon, viz. the Action Plan for Prevention and Control of the Legal Amazon Deforestation (PPCDAm). The petition is in the nature of an Allegation of Disobedience of Fundamental Precept (ADPF). The ADPF claimed that the government’s actions and omissions in relation to the protection of forests in the Amazon, including within Indigenous Lands and Federal Conservation Units violates constitutional rights and prevents Brazil from fulfilling its climate targets assumed under the Paris Agreement and transposed into national laws.  

The Federal Supreme Court decided in favour of the petitioners and ordered the Federal government to resume the PPCDAm, and strengthen the governmental organs linked to the socio-environmental agenda. The effect of this order was stopped on account of another judge of the Federal Supreme Court seeking a review of the decision.  

Facts of the case:

The petitioners earmarked 2019-2020 as the relevant period for the purposes of the ADPF, since this period is allegedly marked by unprecedented attacks on Article 225 of the Brazilian Constitution which guarantees the right to an ecologically balanced environment. The petitioners alleged that the government abandoned and stopped enforcing the PPCDAm. They further alleged that the government has explicitly refused to cooperate with monitoring agencies and authorities for inspection and control of the use of forests (including the Brazilian Environmental Protection Agency); frozen the financing for the public policy for combating deforestation; and increased environmental deregulation. By way of evidence, the petitioners relied on statistics demonstrating an increase in deforestation notwithstanding a drastic reduction in notices of violations and cease-and-desist orders relating to forest conservation laws. They also relied on budget data of the main agencies which are entrusted with the execution of the public policy on combatting deforestation, and evidence pointing to the non-cooperation of the military in enforcement action.  

Claims:

The petition alleged violations of constitutional rights, viz. the right of present and future generations to an ecologically balanced environment (Article 225), which they argue includes a derivative ‘fundamental the integrity of the climate system or a fundamental right to a stable and secure climate’; rights of indigenous peoples to their traditional lands (Article 231); and cultural rights (Articles 215 and 216). The petitioners also argued that the government’s lack of transparency about implementation of the PPCDAm, its campaign to discredit agencies and institutions which provide data and information on the environment, including Federal agencies, and its denial of deforestation and climate change constitute violations of the right to information.  

The Attorney General argued against the admissibility of the action on multiple grounds, viz. (i) that the action does not concern a constitutional issue and is rather a matter of administrative law, since the reliefs (administrative measures) requested by the petitioners do not directly follow from the text of the Brazilian Constitution; (ii) that admitting the case would run counter to the subsidiarity principle enshrined in the procedural law of the Federal Supreme Court, which requires that it should avoid admitting actions in the nature of an ADPF when there are other effective means of remedying the damage; and (iii) that the procedure for control of constitutionality is not suitable for allowing broad examination of evidence. The Attorney General further refuted the statistical evidence raised by the petitioners arguing that the reduction in number of notices of violations and cease-and-desist orders was attributable to the COVID-19 pandemic. On the merits, the Attorney General contended that the Federal Government had the prerogative to modulate its administrative strategies in line with the legal framework.  

Decision:

On 6 April 2022, Minister Cármen Lúcia of the Federal Supreme Court issued a decision in favour of the petitioners. She rejected the contentions of the Attorney General, deciding that there is no doubt as to the constitutional nature of the issues raised in the action; that a review of the Federal government’s actions in relation to the problem of deforestation in the Brazilian Amazon, which has negative repercussions for the climate, falls within the Federal Supreme Court’s jurisdiction; and the examination of evidence is not practically difficult (owing to the sufficiency of the information provided by governmental agencies and amici curae). The decision notes that non-compliance by Brazilian state organs with commitments under international environmental treaties amounts to a violation of the environmental duties emanating from the Constitution. Reading the principle of non-retrogression into Article 225 of the Constitution, the decision identifies acts of the Federal Government which were contrary to such principle.  

Relief:

The Court declared that the situation regarding the illegal deforestation of the Amazon rainforest and the omissions of the Brazilian State in relation to its protective functions was unconstitutional. It ordered the Federal Government to present a detailed plan for the implementation of the PPCDAs and effective protection measures relating to the Amazon forest and the rights of indigenous peoples and other inhabitants in protected areas, within 30 days from the decision. The decision also lists concrete benchmarks and targets that the Federal Government’s plan ought to be based on and seek to achieve.  

Status:

Immediately following Minister Cármen Lúcia’s decision, Minister André Mendonça of the Federal Supreme Court requested a review of that decision, which effectively blocked the decision. As a result, the effect of the decision requiring the Federal Government to take certain actions within a set date stands suspended. The case is still pending before the Federal Supreme Court.  

Links:

Petition (accessible via Climate Case Chart: Portuguese, Unofficial English translation).

Decision (in Portuguese).

For further procedural information, visit Supremo Tribunal Federal.  

Suggested citation:

Brazilian Federal Supreme Court, PSB et al. v. Brazil, case ADPF 760, decision of 6 April 2022.

 Last updated:

03 August 2023.

Categories
Access to a remedy Children and young people Extreme poverty Haiti Human dignity Inter-American Human Rights System Right to life Vulnerability

Petition of Children of Cité Soleil and SAKALA

Summary:

On 4 February 2021, six children of Cité Soleil, Haiti and a community center established to provide safe harbor for children in Cité Soleil (SAKALA Community Center for Peaceful Alternatives) communicated a petition to the Inter-American Commission on Human Rights alleging human rights violations arising from the adverse environmental conditions that they are subject to.  

Facts of the case:

The petitioners’ concern relates to the local waste management system in Cité Soleil, which is woefully inadequate and exposes residents to risks arising from toxic waste and fumes. They complain that waste from other cities is brought into Cité Soleil but not contained in sanitary landfills or subjected to waste treatment. Piles of trash are burnt in the open, worsening the air quality, and floods carry the trash into residential areas, and lead to the contamination of water sources. They argue that climate-related adverse events magnify the adverse environmental conditions that children in Cité Soleil are faced with, aggravating their vulnerability.  

Claims:

The petitioners allege that Haiti is engaged in violations of the rights of the child, the right to dignity, the right to life, and the right to judicial protection of children in Cité Soleil. They request the Commission to recommend Haiti to undertake concrete measures addressing the environmental pollution problem and providing specialized and adequate medical care to the children. Aside from requesting an investigation on the matter and granting the reliefs sought, the petitioners have requested the Commission to grant precautionary measures of protection in the interim- requiring Haiti to take urgent measures and protect the children in Cité Soleil from harm.  

Status of the case:

The Inter-American Commission on Human Rights is yet to decide on the admissibility of the petition.  

Links:

For the petition (in English), click here.

Last updated:

2 August 2023.

Categories
Blog

Small Island States push for answers on Climate Change from the ICJ and ITLOS

On 12 December 2022, the International Tribunal on the Law of the Sea (ITLOS) received a request for an advisory opinion on the interpretation of the obligation to preserve and protect the marine environment under the 1982 UN Convention on the Law of the Sea (UNCLOS) in relation to climate change impacts such as ocean warming, sea level rise and ocean acidification. The request was made by the Commission of Small Island States on Climate Change and International Law (COSIS), an international organisation established by way of an international agreement in late 2021, whose mandate expressly includes requesting advisory opinions from the ITLOS (Article 2(2)). The COSIS project is complementary to the initiative led by Vanuatu along with other small island and climate-vulnerable states to request an advisory opinion on climate change from the International Court of Justice (ICJ).

On 20 November 2022, the latter project culminated in a draft resolution text which was notified to all UN member states and is set to be tabled for discussion and voting at the UN General Assembly in early 2023. This draft, prepared by a coalition of 17 countries, asks the ICJ to answer two questions based on conventional and customary international law, viz.  

  • what are the obligations of States to ‘ensure the protection of the climate system and other parts of the environment for present and future generations’; and
  • what legal consequences these obligations envisage for those states that have caused significant harm to the climate system and other parts of the environment, with respect to injured, specially affected or climate-vulnerable countries and ‘peoples and individuals’ of present and future generations affected by the adverse effects of climate change.

The ICJ’s advisory jurisdiction extends to ‘any legal question’ requested by the UN General Assembly and the Security Council, and legal question ‘arising within the scope of [the] activities’ of other authorized bodies (Article 65, ICJ Statute; Article 96, UN Charter). However, the fact that the Court is requested to answer a legal question by way of a UN General Assembly resolution does not mean that it has a duty to exercise its advisory jurisdiction. For reasons of propriety, the ICJ may refuse to answer legal questions posed to it.

In its jurisprudence, the ICJ has explained that it will not answer a request if doing so ‘would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent’ (Western Sahara, [33]). This is not a hurdle for the request at hand as the draft resolution does not single out individual countries who may be regarded as violating international legal rules and principles relating to the ‘protection of the climate system or other parts of the environment for present and future generations.’ The initiative seems to be motivated by a desire for greater clarity on climate change related obligations and the consequences of their breach. There is no doubt that small island states and other vulnerable countries are unsatisfied by the level of protection or the depth of obligations to take protective measures envisaged by the international climate change regime.

While the initiative may be perceived as an attempt to circumvent the problems associated with the international law-making process by asking for judicial law-making, it may be argued that the initiative hopes for the Court to articulate existing international legal norms which may be derived from different legal regimes including international human rights law and the law of the sea, and different kinds of norms (rules and principles). Which one of these two frames the Court adopts is significant as it has implied in a previous case that it may be compelled to refuse a request for advisory opinion on account of its influence on ongoing international negotiations (Thirlway, 2006, at [17]).

It remains to be seen if a majority of the UN General Assembly members are convinced of the merits of adopting this resolution, although some reporting suggests that at least 100 countries have indicated their support for the resolution. It is also worth noting that previous efforts of a similar kind by the Marshall Islands and Palau failed to reach the formal negotiation stage at the Assembly. The initiative led by COSIS, on the other hand, does not face such a hurdle. In contrast to the ICJ, access to the ITLOS to obtain an advisory opinion is broad. The Tribunal’s jurisdiction comprises all matters specifically provided for in any international agreement which confers jurisdiction on the tribunal (Article 21, ITLOS Statute); and the Tribunal ‘may give an advisory opinion on a legal question if an international agreement related to the purposes of the [UNCLOS] specifically provides for the submission to the Tribunal of a request for such an opinion’ (Article 138, ITLOS Rules). It is necessary that the requesting body has been authorized to submit a request by such an international agreement, and the request contains ‘a legal question’ having a sufficient connection with the purposes and principles of that international agreement (SFRC Advisory Opinion, [60], [68]).

The text of the Agreement establishing the COSIS clearly indicates that it is an international agreement related to the purposes of the UNCLOS, especially concerning the protection and preservation of the marine environment as well as the preservation of interests in the maritime rights and entitlements provided for under the UNCLOS. The request filed by COSIS asks the Tribunal to clarify the ‘specific obligations’ of parties to the UNCLOS to take measures relating to greenhouse gas emissions which cause deleterious effects on the marine environment; and measures responding to climate change impacts on the marine environment, including ocean warming, sea-level rise and ocean acidification. In the past, the ITLOS did not shy away from answering clarificatory legal questions surrounding states’ obligations to respond to the global problem of Illegal, Unreported and Unregulated (IUU) Fishing, which was brought to it by an inter-governmental fisheries cooperation organization established by an agreement between seven West African coastal states who were particularly affected by IUU Fishing (SFRC Advisory Opinion). The agreement establishing the COSIS seems to be inspired by this example and may be rightly described as the first jurisdictional agreement concluded for the primary purpose of seeking advisory opinions from the ITLOS. Considering its approach in the SFRC Advisory Opinion, it is likely that the ITLOS will find that it does indeed have the jurisdiction to give an advisory opinion on COSIS’ request.

Written by Pranav Ganesan (Research Assistant at the Chair of Professor Helen Keller, University of Zurich)

Categories
Blog

UN Human Rights Council appoints new UN Special Rapporteur on Human Rights and Climate Change

On 1 April 2022 the United Nations (UN) Human Rights Council appointed Ian Fry as the world’s first UN Special Rapporteur on the promotion and protection of human rights in the context of climate change. The mandate for a new special rapporteur on climate change was established by the Council in its 48th session (on 8 October 2021) where it also adopted a landmark resolution recognising the human right to a safe, clean, healthy, and sustainable environment (A/HRC/RES/48/13). Fry, who will be holding this position for three years, is an expert in international environmental law and policy with extensive experience in climate negotiations as a representative of Tuvalu.

This appointment marks the success of an over a decade-long campaign for the Council to establish a thematic mandate for a new special rapporteur on human rights and climate change. This campaign was widely supported by civil society organizations as well as several developing countries. The role that UN Special Rapporteurs (UNSR) can play in mainstreaming human rights in environmental policy and decision-making at sub-national, national and international levels cannot be underestimated. With respect to climate change specifically, the UNSR on human rights and the environment, the UNSR on extreme poverty and human rights, the UNSR on human rights of migrants, the UNSR on the rights of indigenous peoples, and the UNSR on the rights of internally displaced persons have identified the link between the adverse short-term and long-term effects of climate change on the enjoyment of different human rights, and indicated that this results in special obligations towards certain protected groups. In the climate litigation space, the UNSR on human rights and the environment has filed several amicus interventions, including in the Portuguese Youth case pending before European Court of Human Rights (along with the UNSR on toxics and human rights), the Torres Strait Islanders case pending before the UN Human Rights Committee, the Sacchi case before the UN Committee on the Rights of the Child, as well as domestic climate cases in Ireland, Norway and Brazil.

It is also worth recalling that in October 2014, 27 UNSRs and independent experts intervened during the negotiations for the Paris Agreement by way of an open letter to the Parties to the UN Framework Convention on Climate Change. Here, they urged that the new treaty must recognise that climate change adversely affects human rights, that the obligation to adopt climate change mitigation measures to keep the global average temperature from rising above a level that is safe (2° C, if not lower) has a basis in human rights law, and that states must respect human rights in the formulation and implementation of climate policy. Unfortunately, the only reference to human rights in the Paris Agreement appears in the preamble, which notes that Parties must respect their respective human rights obligations when taking action to address climate change (para. 11). The negotiations under the umbrella of the UN Framework Convention on Climate Change have not sufficiently addressed the human rights implications of climate change or framed climate mitigation as a human rights obligation. With this background, the work of the special rapporteur on climate change is likely to have even more salience.

Outside of the standard (albeit important) functions performed by holders of thematic mandates, the new rapporteur’s ability to hold states accountable for the protection of human rights is especially crucial in relation to climate action. In this regard, it is worth noting that the mandate of the special rapporteur on climate change includes identifying challenges and making recommendations with respect to “States’ efforts to promote and protect human rights while addressing the adverse effects of climate change…including in the context of the design and implementation of mitigation and adaptation policies, practices, investments and other projects” (A/HRC/RES/48/14, para. 2(b)). This can be done by highlighting good practices of states with reference not just to domestic mitigation and adaptation measures, but also states’ ‘nationally determined contributions’ under the Paris Agreement and contributions towards international support and capacity building. This is a challenging task that needs to be executed carefully in accordance with the principle of common but differentiated responsibility, which is central to international climate change law and equity in climate action. At the same time, the urgency of the existential threat that is climate change lends particular importance to the new office of the special rapporteur.

Written by Pranav Ganesan (Research Assistant at the Chair of Professor Helen Keller, University of Zurich)

Categories
Blog

Inter-American Commission on Human Rights’ ground-breaking resolution on the ‘Climate Emergency’

On 4 March 2022, the Inter-American Commission on Human Rights (IACHR) and the Office of the Special Rapporteur on Economic, Social, Cultural and Environmental Rights published a resolution titled ‘Climate Emergency: Scope of Inter-American human rights obligations.’ In the Inter-American Human Rights system, this is the first document dedicated exclusively to the issue of climate change. The resolution was adopted by the IACHR pursuant to its mandate to make recommendations to governments of member States of the American Convention on Human Rights for the adoption of progressive measures in favour of human rights, as well as their observance (Article 41(b)).

The resolution not only recognises the link between climate change and the enjoyment of individual and collective human rights, but also attempts to systematize and concretely describe the human rights obligations of States in the context of the climate crisis. The operative part of the resolution is organized into nine chapters, which contain both normative guidance and concrete policy recommendations.

Interestingly, the resolution offers novel recommendations by bridging international human rights law with international environmental law. For instance, it states that those member States which have made international commitments to develop and update Nationally Determined Contributions (NDCs) (climate-related targets communicated under the Paris Agreement) ‘must incorporate a human rights approach into their construction and implementation’ (paragraph 2). More generally, it recommends that, for procedural and substantive compliance with the ‘right to a healthy environment,’ States must interpret in good faith the principles of environmental law (e.g. prevention, precaution, and so on) in order to seek harmonization and consistency with the principles of international human rights law (paragraph 10).

Most importantly, the resolution affirms that the obligation to take appropriate measures for mitigation of greenhouse gases, implementation of adaptation measures and remediation of climate-relate damages should not be neglected because of the ‘multi-causal nature of the climate crisis’ (paragraph 15). It does so by reading human rights law in accordance with the principle of common but differentiated responsibilities. Moreover, the resolution reiterates findings in the Inter-American Court on Human Rights’ (IACtHR) advisory opinion no. 23 regarding extra-territorial obligations under international human rights law, and applies them in the context of States’ greenhouse gas emissions. The relevant paragraph is worth quoting in whole:

‘39. States are tasked with implementing human rights obligations that are intertwined with those of international environmental law in the contexts of polluting activities within their jurisdiction, or under their control, so that they do not cause serious harm to their environment or that of other countries or areas outside the limits of national jurisdiction. At the same time, the rule of customary international law of “doing no harm” would be breached as a result of greenhouse gas emissions and thus the increase in frequency and intensity of meteorological phenomena attributable to climate change, which, regardless of their origin, contribute cumulatively to the emergence of adverse effects in other States.’

The resolution also dedicates separate chapters to individuals and groups in situations of vulnerability or who have been historically and systematically discriminated against, as well as indigenous peoples, tribal groups, Afro-descendants and those working in rural areas, requiring States to account for the disparate impact that climate change and climate response measures may have on the lives and interests of such individuals and groups.

Judged by the tenor of its language and its coverage of a multitude of issues under international human rights law that relate to climate change, the resolution is ground-breaking. Its normative relevance in the Inter-American Human Rights system is promising, considering the approach of the IACtHR in valuing soft-law instruments arising out of the system for interpretive guidance (see for e.g. OC-23/17, OC-22/16). It remains to be seen how member States receive the resolution and respond to it.

Written by Pranav Ganesan (Research Assistant at the Chair of Professor Helen Keller, University of Zurich)

Categories
2021 Brazil Deforestation Domestic court Emissions reductions/mitigation Paris Agreement Right to a healthy environment

Laboratório do Observatório do Clima v. Minister of Environment and Brazil

Facts of the case:

This is a class action suit brought before the 7th Federal Environmental and Agrarian Court of the Judiciary Section of Amazonas, by a network of 71 civil society organizations against the Environmental Ministry and the Brazilian Government. The petitioners allege that the respondents are committing a systematic violation of the right to an ecologically balanced environment as well as Brazil’s obligation under the Paris Agreement by- failing to update and implement Brazil’s ‘National Policy on Climate Change’ pursuant to the federal climate legislation, especially in the face of the updates in IPCC’s 6th Assessment Report; downgrading the ambition in Brazil’s ‘Nationally Determined Contributions’ communication under the Paris Agreement; failing to address the problem of deforestation in the Amazon; disproportionately favouring and intensifying the use of fossil fuel over renewable sources in its energy sector; and reducing the powers and capabilities of institutions for environmental protection that make up the national system for environmental protection and climate control, and thereby paralysing the accountability processes.

The reliefs sought by the petitioners include a declaration of non-compliance with constitutional law, and a mandatory injunction. As for the latter, the respondents ask for the preparation of an updated National Policy on Climate Change which takes into consideration all sectors of the economy, is in strict compliance with the federal climate legislation and principles recognised in the Paris Agreement, informed by the IPCC’s latest Assessment Report and the Paris Agreement’s 1.5ºC temperature target.   

Date of institution of proceedings:

26 October 2021

Admissibility:

TBD

Merits:

TBD:

Reliefs Awarded:

TBD

Status of the case:

Pending.

Further information:

On 11 November 2021, Judge Mara Elisa Andrade scheduled a conciliatory hearing between the parties to the case, which was subsequently cancelled on 25 November 2021 owing to the defendants’ lack of interest in settling the dispute through conciliation.

Case documents:

Petition (in Portuguese)

Categories
2021 Brazil Domestic court Emissions reductions/mitigation Paris Agreement Right to a healthy environment

Thalita Silva e Silva and Others v. Minister of Environment et al.

Summary:
This case was brought before the 14th Federal Civil Court of Sao Paulo by six youths as a popular action against the Brazilian Government, challenging Brazil’s updated ‘nationally determined contribution’ (NDC). These were submitted on 8 December 2020 pursuant to its obligation under Article 4.2 of the Paris Agreement. The petitioners argue that the NDC is regressive in comparison to its previous NDC, as it alters the baseline relative to which its emissions reductions targets for the years 2025 and 2030 were to be calculated. Both the initial and the updated NDC provided for a commitment to reduce greenhouse gas (GHG) emissions by 37% by 2025, and 45% by 2030 compared to 2005 levels, but the estimated emissions for the base year 2005 was increased from 2.1 to 2.8 billion tonnes of CO2 equivalent pursuant to an update in Brazil’s national GHG inventory report.

The petitioners contended that this regression in the updated NDC constituted a violation of Article 225 of the Constitution of Brazil, which provides for the right to an ecologically balanced environment. They further argued that there was a new GHG inventory report which estimated the 2005 emissions levels to amount to 2.4 billion tonnes rather than 2.8 billion tonnes as per the previous inventory report, and since this new report was published before the updated NDC was communicated, the updated NDC stands to be quashed in any case. The respondents contested the courts’ jurisdiction on the ground that the claim concerned an act of the Brazilian government at the international level. They also contended that the NDC in question met the criteria of progression and highest possible ambition.  

Date of decision:

28 May 2021

Admissibility:

The Federal Civil Court of Sao Paulo found that it was competent to adjudicate the case as per Article 109, Item III of the Constitution of Brazil which provides federal courts the competence to hear cases based on a treaty between the Union and other States or international bodies.

Merits:

The Federal Civil Court of Sao Paulo summarily dismissed the plaintiffs’ request for injunction on the count that the updated NDC maintains the emissions reduction targets specified in the previous NDC, and that the change in the estimated emissions during the base year in different national inventory reports was normal and expected in light of improvements in scientific understanding and techniques. It also highlighted that the Paris Agreement requires parties to periodically update their national inventories and inferred from this requirement that the targets in NDCs are to be understood in relation to the inventory available at the time of communicating them. The Court also considered the updated NDC to be ambitious as it contained a carbon neutrality commitment.

Status of the case:

The petitioners have appealed against the decision of the Federal Civil Court.

Suggested case citation:

Federal Civil Court of Sao Paulo, Thalita Silva e Silva & Ors. v. Minister of Environment & Ors., Ação Popular nº 5008035-37.2021.4.03.6100, decision of 28 May 2021.

Case documents:

Petition (in Portuguese)

Decision of the Federal Civil Court of Sao Paulo (in Portuguese)