Category: Blog

CRRP project coordinator Prof. Dr. Helen Keller recently spoke to Katrin Schregenberger of Higgs.ch about the potential and pitfalls of climate litigation. The interview covers the rising number of climate cases based on human rights arguments, corporate responsibility for climate change, and the argumentation in the Klimaseniorinnen case pending before the European Court of Human Rights.

The full interview (in German) is available here.

On 7 July 2021, at 14h CEST, the Geneva Human Rights Platform will hold an online workshop on the legal aspects of the right to a safe, clean, healthy and sustainable environment. This workshop will take place as a side event to the 47th session of the United Nations Human Rights Council – co-organized with the Permanent Missions of Costa Rica, Maldives, Morocco, Slovenia and Switzerland to the UN in Geneva and co-sponsored by the Permanent Missions of Austria, Cabo Verde, Cyprus, Ecuador, Fiji, Germany, Mexico, Monaco, Panama, Portugal, Uruguay; OHCHR, UNEP, Center for International Environmental Law, Earthjustice, Franciscans International and Universal Rights Group. It will discuss the legal aspects of the right to a safe, clean, healthy and sustainable environment, the scope of the right, the legal aspects of a potential resolution on this right, as well as how it would contribute to address the global environmental crisis.

For more information, click here.

Samvel Varvastian has published ‘The Advent of International Human Rights Law in Climate Change Litigation’, 38(2) Wisconsin International Law Journal (2021), pp. 369-425. The abstract is below. For a link to the full text, click here.

Abstract

Despite growing concerns over climate change and the proliferation of national climate laws, global greenhouse gas emissions keep rising, while the impacts of climate change are increasingly becoming an existential threat to many human communities around the globe. In response to failing governmental action, the affected communities and nongovernmental organizations (NGOs) have turned to national and regional courts, as well as regional and international quasi-judicial human rights treaty bodies (hereinafter treaty bodies), to argue that inadequate responses to climate change violate internationally recognized human rights. Following the first attempts to bring claims based on international or regional human rights law (hereinafter human rights law) in climate change litigation in the first decade of the twenty-first century, the use of human rights law in climate cases has been on the rise over the last several years. This article provides a comprehensive assessment of human rights claims and their viability in climate cases decided by national and regional courts, and international and regional treaty bodies as of January 1, 2021. So far, human rights law has been used with mixed success: while some courts and treaty bodies have explicitly acknowledged that inaction on climate change violates or can potentially violate human rights, others have been much more hesitant to take this approach. However, in the latter case, the courts’ and treaty bodies’ interpretations of the applicability of human rights law in the context of climate change and environmental degradation appear to be flexible and open to further development. Coupled with the growing number of such cases globally and their increasing internationalization, these positive developments are likely to lay the foundation for a greater chance of success in future litigation.

The UCL Centre for Law and the Environment will hold a major conference on ‘Climate Change and the Rule of Law’ on Thursday 31 March and Friday 1 April 2022. The organisers have issued a call for papers for a session devoted to the work of early career researchers.

The full call for papers is available here.

During the ongoing 47th session of the UN Human Rights Council (HRC), which is taking place from 21 June to 15 July 2021, a large number of NGOs and academics have issued a call to create the office of a UN Special Rapporteur on Human Rights and Climate Change. In an open letter, they have called for the creation of this mandate given that it “would enable the HRC to elevate its work on climate change in a systematic and sustainable way, protect people from runaway climate change and its unavoidable impacts, and promote respect for human rights in climate responses.” The letter was signed by 442 international, regional and national organisations, as well as a number of academics, and is available here, on the website of Franciscans International.

As climate cases proliferate, the question of how courts can use and assess scientific evidence takes on ever greater urgency. Addressing this question, Rupert F. Stuart-Smith, Friederike E. L. Otto, Aisha I. Saad, Gaia Lisi, Petra Minnerop, Kristian Cedervall Lauta, Kristin van Zwieten & Thom Wetzer have published ‘Filling the Evidentiary Gap in Climate Litigation’ in Nature Climate Change. Drawing on 73 examples of climate litigation, the authors assess the scientific and legal bases for establishing causation as concerns climate change harms, and evaluate the judicial treatment of scientific evidence. The abstract is below.

Abstract

Lawsuits concerning the impacts of climate change make causal claims about the effect of defendants’ greenhouse gas (GHG) emissions on plaintiffs and have proliferated around the world. Plaintiffs have sought, inter alia, compensation for climate-related losses and to compel governments to reduce their GHG emissions. So far, most of these claims have been unsuccessful. Here we assess the scientific and legal bases for establishing causation and evaluate judicial treatment of scientific evidence in 73 lawsuits. We find that the evidence submitted and referenced in these cases lags considerably behind the state of the art in climate science, impeding causation claims. We conclude that greater appreciation and exploitation of existing methodologies in attribution science could address obstacles to causation and improve the prospects of litigation as a route to compensation for losses, regulatory action and emission reductions by defendants seeking to limit legal liability.

For the full article, click here: https://www.nature.com/articles/s41558-021-01086-7.

The Independent Expert Panel for the Legal Definition of Ecocide (IEP) has today issued its report on the international crime of ecocide. Commissioned by the StopEcocide initiative, the report drafts a new definition for potential inclusion in the Rome Statute of the International Criminal Court. This would be the fifth international crime contained in the Rome Statute, alongside the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

The panel, chaired by Philippe Sands QC and Dior Fall Sow, has defined the crime of ecocide as follows:

Article 8ter: Ecocide
1. For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

2. For the purpose of paragraph 1:

a. “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;

b. “Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;

c. “Widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;

d. “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;

e. “Environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.

The creation of a definition of ecocide carries clear symbolic importance. At the same time, over on the Opinio Juris blog, Kevin Jon Heller has noted that the definition, despite its terminological proximity to ‘genocide’, has little resemblance to that crime, given that the crime of genocide relates to protected groups and requires specific intent. Instead, he argues, it is much closer in nature and structure to a crime against humanity.

The choice to align the crime of ecocide with that that of genocide has been made, according to panel co-chair Philippe Sands, because of the resonance of the former and raise consciousness for environmental destruction. Discussing the definition on Völkerrechtsblog, he has reasoned that the aim of the report is to generate “a serious debate about the idea. It must be a definition that meets the standards of the current Rome Statute, one that could reasonably be inserted.”

The IEP considered that the element of mens rea under the Rome statute, i.e. the default mens rea contained in Article 30 of that instrument, was too strict to adequately capture environmental harms. It has therefore proposed “a mens rea of recklessness or dolus eventualis, requiring awareness of a substantial likelihood of severe and either widespread or long-term damage.”

The panel’s commentary to the definition, which is available here, also states that “[c]ulpability for the crime of ecocide attaches to the creation of a dangerous situation, rather than to a particular outcome. It is the commission of acts with knowledge of the substantial likelihood that they will cause severe and either widespread or long-term damage that is criminalised. The crime of ecocide is thus formulated as a crime of endangerment rather than of material result.”

Today the submission of a fourth climate change case at the European Court of Human Rights was announced. This new application was brought by six young Norwegian climate activists aged between 20 and 27, along with two organisations who allege that their members’ lives, health and well-being are being directly affected by the escalating climate crisis. The six individual applicants also allege that, as young people, they are being disproportionately affected by the climate crisis.

The application concerns the Norwegian State’s decision to license continuing exploration for oil and gas in new areas of the Arctic (Barents Sea), and its intention to bring new fossil fuels to market after 2035.

Citing the seriousness and urgency of the climate crisis, the applicants allege that the respondent State has failed to take the precautionary measures of prevention and protection required under Articles 2 and 8 ECHR (the right to life and the right to respect for private and family life, respectively). They furthermore allege a breach of the prohibition of discrimination in Article 14 ECHR. during the domestic court proceedings, as well as a violation of the right of access to an effective domestic remedy under Article 13 ECHR.

The applicants have sought the application of the Court’s priority policy under Rule 41 of the Rules of Court. In the two already-communicated climate cases, Duarte Agostinho v. 33 Member States and Klimaseniorinnen v. Switzerland, the Court has granted the applicants’ request for priority. A third case has not yet been communicated, making this the fourth climate case pending before the ECtHR.

To see the full entry on this case in the CRRP database, click here.

Benoit Mayer (The Chinese University of Hong Kong (CUHK) – Faculty of Law) recently published ‘Temperature Targets and State Obligations on the Mitigation of Climate Change’ , forthcoming in the Journal of Environmental Law. The abstract is below. For the full text, click here.

Abstract

The Supreme Court of the Netherlands in Urgenda held that States had a customary obligation to implement their ‘fair share’ in achieving the 2 °C temperature limitation target they had agreed upon. Yet, this article argues, the notion that States must adopt or implement mitigation action in line with temperature targets finds no support in treaty or customary law. States’ acceptance of temperature targets as a collective objective is relevant to interpreting the standard of due diligence applicable to mitigation obligations only inasmuch as this objective is actually reflected in consistent State practice. At present, temperature targets represent essentially an agreement on a direction of travel: the need for more mitigation action. Over time, the acceptance of this objective could facilitate further legal developments as States agree on particular implications of temperature targets and on a requirement that each of them acts consistently with its interpretation of these targets.

Keywords: Temperature targets, climate change mitigation, fair share, Paris Agreement, obligation, differentiation, requisite level of mitigation action