Category: Deciding Body

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
2023 Domestic court Emissions reductions/mitigation Margin of appreciation Paris Agreement Separation of powers Spain Standing/admissibility Victim status

Greenpeace Spain et al. v. Spain

Summary:
In 2020, three environmental NGOs (Greenpeace, Ecologistas en Acción and Oxfam Intermón) challenged the level of ambition of the Spanish government’s domestic greenhouse gas emissions reductions targets in what has been described as the first-ever Spanish climate case. At the material time, the Spanish ambition was to reduce emissions by 23% by 2030 (compared to 1990 levels); the three NGOs argued that this target should have been more ambitious, at 55%. In the absence of any response to the challenge by the Government, in September 2020, the three NGOs filed an administrative appeal to the Spanish Supreme Court. In 2023, the Supreme Court dismissed the case, with the plaintiffs announcing their intention to seize the European Court of Human Rights in Strasbourg.

Claims made:
These proceedings challenged delays in the adoption of the National Integrated Energy and Climate Plan (‘Plan Nacional Integrado de Energía y Clima’ or PNIEC), as required under European Union law (by 31 December 2019, see EU Regulation 2018/1999), as well as its low level of amibition. The Spanish government missed this deadline, only transmitting its PNIEC to the European Commission on 31 March 2020. In their pleadings, the applicants argued that the Spanish state must take more ambitious measures in order to guarantee respect for human and environmental rights for present and future generations.

Ruling:
On 24 July 2023, the case was decided by the Spanish Supreme Court, which rejected the appeal in full. The Court noted the formal nature of the complaints about delays in the adoption of the plan, and emphasized the short time frame for the adoption of the PNIEC imposed by EU law, as well as the complexity of decision-making within multi-level governance frameworks, which meant that the plan could not be considered void as a whole.

As concerns the level of amibition of the plan, the Supreme Court noted the need to decide this case under Spanish law, and not the case-law from other jurisdictions that had been cited by the applicants; it also noted the need to respect the concrete legal obligations that Spain had assumed under the Paris Agreement, as well as the need to balance climate action with the interests of a sustainable economy.

The Court held that the State had a wide margin of discretion in this context, and that the case was asking it to exceed its role by not only declareing an acceptable emissions target, but accordingly by imposing far-reaching changes to Spain’s economic policy. It noted that while the targets under the Paris Agreement were minimum targets (“at least”), as were those under EU law, the Spanish legislator had chosen to adhere to these minima, and not to exceed them.

On the fundamental rights claim, the Court referred to EU law on locus standi, especially the Armando Carvalho case. It emphasized the need to prevent voiding the criterion of direct and individual concern. Accordingly, it found that the alleged infringement of human rights by the PNIEC was not sufficient in itself to render these claims admissible. The decision to adhere to the minima set out under EU law could not be considered arbitrary, but instead constituted a legitimate exercise of the Spanish government’s constitutional powers.

Further proceedings:
After the ruling was issued, Lorena Ruiz-Huerta, counsel for the plaintiff organizations, announced their intention to take this case to the European Court of Human Rights in Strasbourg in order to “force the State to protect the human rights that are seriously threatened by climate change”.

Suggested citation:
Spanish Supreme Court, Greenpeace Spain et al. v. Spain, no. 1079/2023, 24 July 2023, ECLI:ES:TS:2023:3556.

Further information:
For the Supreme Court’s ruling (in Spanish), see here.

The applicants’ pleadings (in Spanish) are available via ClimateCaseChart.com.

Last updated:
4 August 2023

Categories
2023 Business responsibility Domestic court Emissions reductions/mitigation Imminent risk Paris Agreement Private and family life Right to a healthy environment Right to health Right to life Standing/admissibility Victim status

Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., et al.

Summary:
On 20 March 2023, a first-instance court in Japan heard a civil case concerning the construction and operation of new coal-fired power plants brought by the citizens of Kobe. Two weeks previously, on 9 March 2023, the Japanese Supreme Court refused to hear its first-ever administrative climate case concerning the same set of facts, giving no substantive reasons for doing so. In the civil case, which was filed in 2018, 40 citizens of Kobe brought suit against three corporations involved in the construction and operation of the plants. They argued that these plants would impact themtheir personal rights and right to a peaceful life both through air pollution and through their contribution to the climate change.

As Grace Nishikawa and Masako Ichihara have explained on the Sabin Center’s Climate Law Blog, ‘personal rights’ are established through case-law and frequently enter into play in environmental cases. They protect personal well-being, including the rights to life, bodily integrity, health, and a peaceful life (the last of which the authors compare to the right to respect for private and family life under Article 8 of the European Convention of Human Rights). The plaintiffs in this case invoked these personal rights, arguing that the coal plants would aggravate climate change, leading to extreme heat and rainfall events that would directly affect them. In their submissions, they made arguments based on international and comparative law, mentioning carbon budgets, the Paris Agreement, the Dutch Urgenda case, and the Glasgow Climate Pact.

In its first-instance judgment, the Kobe District Court accepted that greenhouse emissions, including those from the plant, contribute to climate change and can violate personal rights. However, it found the risk of harm to the individual plaintiffs to be too uncertain, and rejected their claim, noting the difficulty of causally attributing responsibility for damage related to climate change.

Concerning the alleged violation of the right to a peaceful life, which the plaintiffs argued contains a right to a healthy and peaceful life, the Court likewise rejected this claim, for the same reasons, finding that fears about climate change were not concrete enough to constitute human rights violation. The Court also noted that there was no legally recognized right stable climate in Japan.

Concerning the additional air pollution complaint, the Court found that this was not serious enough to constitute a concrete danger to the plaintiffs’ rights. It also did not engage with the plaintiffs’ request for a preliminary injunction halting the operation of the coal plants.

Appeal:
Climate Case Chart reports that an appeal in this case was filed on 4 January 2023.

Further reading:
The above draws on the following two key sources:

The original case documents (in Japanese) are available via Climate Case Chart.

Suggested citation:
Kobe District Court, Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., et al., Judgment of 20 March 2023.

Last updated:
20 July 2023

Categories
Domestic court Emissions reductions/mitigation Human dignity Paris Agreement Right to a healthy environment Right to life South Korea

Climate Crisis Emergency Action v. South Korea

Summary:
It has been reported that the South Korean NGO “Climate Crisis Emergency Action” has filed a constitutional complaint concerning the country’s greenhouse gas emissions reductions targets.

In a draft of the application form available online (in Korean), the applicant organization noted the Korean National Assembly’s statement in support of the 1.5 degree emissions reductions target under the Paris Agreement, and the insufficiency of the domestic mitigation action to meet that target. It submits that the domestic target is “an arbitrary and irresponsible reduction target set in defiance of the standards agreed upon by the scientific community and the international community.” Noting the State’s “duty to protect the basic rights of its citizens” (in Article 10 of the South Korean Constitution), it submitted that fundamental rights are already being violated and will continue to be violated, and that higher legislative ambition is required.

Claims made (as per the version of the application made available here):
It appears that the claimants in this case invoked the right to pursue human dignity, value and happiness in Article 10 of the Constitution, along with the right to live a life worthy of humanity in Article 34, and the right to live in a healthy and pleasant environment in Article 35. They also invoked Article 36 of the Constitution concerning the protection of public health and disaster prevention. Citing scientific evidence concerning increasing natural disasters, food and water shortages, security crises and social disasters, they submitted that “the obligation to protect fundamental rights from climate change has been fulfilled only when measures corresponding to the minimum level agreed upon in the international community are taken.”

The applicants also explicitly link their case to the German Neubauer judgment concerning the impact of unambitious climate policy on the rights of future generations.

More information on this case will be added as it becomes available.

Relevant developments:

On 12 June 2023, it was announced that the National Human Rights Commission of Korea had decided to submit an opinion to South Korea’s Constitutional Court to oppose the country’s Carbon Neutrality Act (2021), which it considered to be unconstitutional and in violation of the fundamental rights of future generations because it sets out a greenhouse gas emissions reductions target that was too low. The Act sets out a 40% emissions reductions target by 2030 as compared to 2018 levels. This, the Commission found, did not respect the constitutional principle of equality, because it passed the burden of greenhouse gas emissions on to future generations.

Last updated:
23 June 2023.

Categories
2022 Biodiversity Children and young people Domestic court Emissions reductions/mitigation Fossil fuel extraction Gender / women-led Human dignity Non-discrimination Paris Agreement Right to a healthy environment Right to health Right to life Right to water Sea-level rise South Africa Standing/admissibility

African Climate Alliance et. al. v. Minister of Mineral Resources & Energy et. al. (#CancelCoal case)

Summary:
On 10 November 2021, three South African NGOs (the African Climate Alliance, Vukani Environmental Justice Movement in Action and groundWork) initiated a constitutional challenge against the South African government’s plans to augment its coal-fired electricity capacity. Also known as the #CancelCoal case, this challenge invokes the protection of environmental rights, the rights of children, the right to life and human dignity, the right to water, healthcare and food, and the right to equality and protection from discrimination. Noting that South Africa is one of the top 15 current global greenhouse gas emitters, the plaintiffs argue that the procurement of 1500 MW of new coal-fired power stations threatens the rights of present and future generations in South Africa, who will be “left to deal with the consequences of extreme weather events, heatwaves, droughts, coastal flooding, famine, cyclones and social upheavals”. They submit that the constitutional rights violations caused by the new coal plants “will disproportionately impact the poor and the vulnerable, including women, children and young people”.

More details on the challenge:
In terms of standing, the applicant organizations brought their case in their own direct interest, in the interests of their members, in the public interest, and in the interest of the environment, noting the “far reaching consequences for present and future generations”.

The applicants invoke section 24 of the South African Constitution, which recognizes the right to a healthy environment. They argue that, by ratifying international agreements on climate change, including the Paris Agreement, the State recognizes the threat for this right posed by climate change. They also invoke section 28(2) of the Constitution, which guarantees the protection of the best interests of the child, arguing that “children are most vulnerable to the impacts of climate change and the further health risks caused by coal-fired power stations”. Noting that South Africa’s first NDC, submitted in 2015 and revised in 2021, committed to peaking emissions from 2020-2025, with net zero to be achieved by 2050, they submit scientific evidence from the IPCC to show the level of threat at hand and the different emissions reductions pathways discussed. Coal, they argue, “is the single most significant contributor to climate change”, and South Africa’s plants to procure more coal-fired power plants is “directly at odds” with global calls for action against coal, despite its vulnerability to the impacts of climate change, including from heat, storms, drought, rising sealevels, loss of species and biodiversity, and the psychological harms linked to climate change, as well as economic costs associated with responding to the effects of climate change, which will “divert scarce resources allocated to alleviating powerty and promoting sustainable development”.

The applicants also argue that the government’s references to “clean coal” are scientifically unfounded, and that it is unrealistic to argue that carbon capture technologies will mitigate the impacts of the new coal plants. “Climate change is the ultimate collective action problem”, they submit, and collective efforts are needed. South Africa’s support for coal undermines the global efforts in this regard, is inconsistent with South Africa’s “fair share” obligations, and is detrimental to the environment in a number of ways.

Invoking the constitutional right to equality together with environmental rights, the applicants argue that the action in question produces unfair discrimination “on intersecting grounds of race, gender, and social origin. This is because poor, black South Africans, and particularly women and children, are the primary victims of ecological degradation and air pollution caused by coal-fired power. They will also be the worst affected by the climate crisis”, as recognized in the government’s Environmental Impact Assessment (para. 358 of the application).

In terms of remedies, the applicants seek the review and setting aside of the decisions to procure new coal plants.

Further developments:
On 8 December 2021, the President of South Africa issued notice that he does not intend to oppose the application and shall abide by the decision of the court. On the same date, the Minister of Mineral Resources and Energy issued notice of his intention to oppose the application.

On 12 December 2022, in what was described as an “early victory” in the case, the Pretoria High Court ordered the Minister of Mineral Resources and Energy to release records relating to the decision to seek new coal power, and to pay the costs of the application.

Further reading:

The full application form in this case is available from climatecasechart.com, as are further documents on the case.

Suggested citation:
High Court of South Africa, Gauteng Division (Pretoria), African Climate Alliance and others v. Minister of Mineral Resources and Energy and others, case no. 56907/2021, filed on 10 November 2021.

Last updated:
26 June 2023.

Categories
2023 Canada Children and young people Domestic court Emissions reductions/mitigation Non-discrimination Paris Agreement Right to life Standing/admissibility Vulnerability

Mathur et al. v. HM the Queen in Right of Ontario

Summary:
On 25 November 2019, seven Canadian young people and the NGO Ecojustice brought a case against the State of Ontario, arguing that it had failed to take adequate action to mitigate its greenhouse gas emissions and contesting the State’s “dangerously inadequate GHG reduction target” as set out under the Cap and Trade Cancellation Act of 2018. Under this legislation, Ontario aims to reduce GHG emissions to 30% below 2005 levels by 2030. To contest the adequacy of this target, and the previous repeal of the more ambitious Climate Change Act (with its target of 45% reductions by 2030), the applicants invoked sections 7 and 15 of the Canadian Charter of Rights and Freedom (the right to life, liberty and security of the person and the right to equal protection under the law). Arguing that they have a serious and genuine interest in this case, which also impacts all Ontario youth and future generations, they noted that climate change will cause heat-related fatalities, harms to human health, increased fire activity and the spread of disease, increased flooding and other extreme weather events, harmful algal blooms and exposure to contaminants, harms to Indigenous peoples, and psychological harms and mental distress.

Claims made:
Noting the principle of common but differentiated responsibilities and the leading role of developed countries under the Paris Agreement, the applicants argued that Ontario’s current emissions reductions target compromises their right to life, liberty and security of the person “in a serious and pervasive manner that does not accord with the principles of fundamental justice”. They furthermore submitted that the target violated the right to liberty of Ontario’s youth and future generations, because it impacted their ability to make choices about their futures. They invoked the principle of “societal preservation” and human dignity, and argued for the recognition of a right to a stable climate system. Concerning the right to equal protection under the law, they argued that youth and future generations are in a uniquely vulnerable situation given their age and exclusion from political participation and the fact that they will be disproportionately impacted by climate change.

Relief sought:
Among other things, the applicants sought the invalidation of the existing emissions reductions targets and the rules for setting such targets, a declaration that it violates unwritten constitutional principles about avoiding harm, a recognition of the right to a stable climate system, and an order that Ontario must set out a science based GHG reduction target consistent with its share of global emissions.

Decision on admissibility:
On 12 November 2020, the Superior Court of Justice for Ontario rejected a motion from the government to dismiss the case. The government had invoked the absence of a right to a stable climate from the Charter, the plaintiffs’ alleged lack standing to represent future generations, and the absence of sufficient evidence or a reasonable cause of action.

Hearing:
A hearing in this case was heard from 12-14 September 2022.

Judgment:
On 14 April 2023, the Superior Court of Justice of Ontario delivered its judgment in the case. The Court found that, although the policies in question were justiciable given that the applicants had challenged specific state acts and legislation, the applicants had not established a violation of their rights under the Canadian Charter of Rights and Freedoms.

In her judgment, Justice Vermette noted that the issue of establishing Ontario’s “fair share” of the remaining carbon budget was not a justiciable issue, and “should be determined in another forum” (para. 109). Justice Vermette did consider it “indisputable that, as a result of climate change, the Applicants and Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person” (para. 120). However, she disagreed with the applicants’ characterization of the emissions reductions target as “authorizing, incentivizing, facilitating and creating the very level of dangerous GHG that will lead to the catastrophic consequences of climate change for Ontarians”, finding that “the target does not authorize or incentivize GHG” (para. 122).

While the target was not legally meaningless, and justiciable under the Charter, Justice Vermette found (contrary to the arguments of the applicants) that the question at issue was whether the Charter imposed positive obligations. Leaving this question open, albeit acknowledging that “the Applicants make a compelling case that climate change and the existential threat that it poses to human life and security of the person present special circumstances that could justify the imposition of positive obligations under section 7 of the Charter”, Justice Vermette found that any putative deprivation of Charter rights at stake was not contrary to “the principles of fundamental justice”, i.e. neither arbitrary nor grossly disproportionate. This test applies because the relevant right in the Charter, i.e. its Article 7, stipulates that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Concerning the equality claim under Article 15 of the Charter, Justice Vermette found that Ontario’s climate policy did not distinguish based on age, but made a temporal distinction, and that accordingly there was no violation of that provision either.

Further reading:

  • The judgment in the case is available here.
  • A comment on the judgment in this case, as well as its context, is available from Christie A. MacLeod, Annafaye Dunbar, and Rosemarie Sarrazin (Miller Thomson) here.

Suggested citation:
Superior Court of Justice for Ontario, Mathur v. Ontario, 2023 ONSC 2316, 14 April 2023.

Last updated:
22 June 2023.

Categories
2023 Business responsibility Domestic court Emissions reductions/mitigation Fossil fuel extraction Italy Paris Agreement Private and family life Right to health Right to life Right to property

Greenpeace Italy, ReCommon, et. al. v. ENI, Italian Ministry of Economy and Finance, et. al.

Summary:
Greenpeace Italy, together with ReCommon (an Italian association involved in questioning corporate and State power) and twelve Italian citizens from different regions of the country manifestly affected by climate change impacts, filed a lawsuit against ENI, a major oil & gas multinational company, and the Italian Ministry of Economy and Finance, which, also through Cassa Depositi e Prestiti S.p.A. (an important public financial institution), has a relevant influence on the corporation.

The applicants asked the Court to ascertain and declare that the defendants share liability for the moral and material damages they suffered to their health, life and properties due to climate change impacts, and for further endangering these same assets.
The claimants allege ENI contributed to climate change as its activities, either industrial, commercial or for transportation of energy products, caused greenhouse gas emissions far beyond the limits suggested by the scientific community, notwithstanding the temperature goals internationally recognized in the Paris Agreement, which implies emissions reductions both in the public and in the private sphere. The claimants argue that the Italian Ministry of Economy and Finance and Cassa Depositi e Prestiti S.p.A. (whose majority shareholder is the same Ministry), as shareholders of the oil&gas corporation, could have influenced its strategy concerning the ecological transition away from fossil fuels, but did not leverage their relevant influence in that direction.

The legal strategy is primarily based on Article 2043 of the Italian Civil Code, dedicated to liability for non-contractual damages and interpreted, according to previous case-law, as a tool for human rights protection. The applicants claimed a violation of their rights to life, health, and respect for private and family life, as enshrined in the Italian Constitution, in the European Convention on Human Rights, in the International Covenant on Civil and Political Rights, and that ENI shall respect according to the Guiding Principles on Business and Human Rights and the OECD Guidelines for multinational enterprises.
The claimants drew on attribution science to argue for the existence of a causal link, and recalled the reasoning of the Dutch courts in the Urgenda case, according to which even a quantitatively relatively low level of greenhouse emissions on the global scale contributes to climate change, meaning that there is a sufficient causal link between those emissions and their present and future adverse effects. In addition, the applicants rely subsidiarily on Article 2050 of the Italian Civil Code, dedicated to liability for dangerous activities, that implies a reversed burden of proof: the defendant shall prove that every measure was taken to prevent the damaging event.

Concerning remedies, the claimants did not ask the Court to quantify the damages. Recalling the case against Royal Dutch Shell (Milieudefensie), they asked the Court to order ENI to reduce its greenhouse emissions by 45% in 2030 compared to 2020 and to align to the 1.5°C temperature goal. They also asked the Court to impose a monetary sanction in case the order is not fulfilled. The applicants also asked the Court to order the Italian Ministry of Economy and Finance and Cassa Depositi e Prestiti S.p.A. to adopt a policy defining climate goals to foster as relevant shareholder of the corporation.

This is not the first instance of rights-based climate litigation in Italy: you can read about the previously filed lawsuit against the Italian State here in the Database.

Date of filing:
9 May 2023

Jurisdiction:
Civil Court of Rome

Documents:

More information:
More information on Greenpeace Italy and ReCommon dedicated web pages.

Last updated:
15 May 2023

Categories
2022 Brazil Domestic court Emissions reductions/mitigation Paris Agreement Right to a healthy environment

PSB et al. v. Brazil (Climate Fund)

Summary:

On 5 June 2020, four Brazilian political parties (Partido Socialista Brasileiro (PSB), Partido Socialismo e Liberdade, Partido dos Trabalhadores and Rede Sustentabilidade) filed a direct action of unconstitutionality for omission before the Brazilian Federal Supreme Court (“Court”) related to the National Fund on Climate Change (“Climate Fund”) (case ADPF 708).

The Climate Fund was established in 2009 to direct its annually authorized budget to Brazilian projects that address the reduction of greenhouse gas emissions and adaptation to climate change and its effects.

The plaintiffs claimed that the Brazilian Federal Administration kept the Climate Fund inoperative during 2019 and 2020. According to the plaintiffs, the Brazilian government’s inaction regarding the Climate Fund is a violation of its constitutional and international legal environmental obligations.

Based on the constitutional right to a healthy environment, the plaintiffs requested the Court to declare the unconstitutionality of the Brazilian government’s omissions and to issue an injunction compelling the government to actualize the Climate Fund by resuming operations and reactivating its institutional governance of the Fund.

By its decision dated 4 July 2022, the majority of the Court (10 out of 11 judges) granted the plaintiffs’ application. The Court recognized the government’s failure to fully allocate the Climate Fund’s resources for 2019. It ordered the Federal Administration not to neglect the Climate Fund again and determined that the resources from the Climate Fund cannot be withheld.

The Court based its decision on the constitutional duty to protect the environment (Art. 225 of the Federal Constitution), the rights and international obligations assumed by Brazil, and the constitutional principle of separation of powers. Judge Luís Roberto Barroso noted that treaties on environmental law constitute “a species of the genus human rights treaties” and, for this reason, enjoy supranational status.

The Court’s decision attracted attention as it was the first time that the country’s highest court addressed the issue of climate change.

Date of decision:

4 July 2022

Case documents:

More information:

  • For further procedural information, visit Supremo Tribunal Federal.
  • For Prof. Ingo Wolfgang Sarlet’s and Tiago Fensterseifer’s comment on the decision, click here.
  • For Dr. Maria Antonia Tigre’s interpretation of the decision, click here.
  • For more case documents, such as an English translation of the decision, visit Climate Case Chart.

Suggested citation:

Brazilian Federal Supreme Court, PSB et al. v. Brazil, case ADPF 708, decision of 4 July 2022.

Last updated:

17 April 2023.

Categories
Adaptation Biodiversity Children and young people Climate activists and human rights defenders Climate-induced displacement Deforestation Emissions reductions/mitigation Evidence Gender / women-led Indigenous peoples rights Indigenous peoples' rights Inter-American Human Rights System Loss & damage Paris Agreement Right to a healthy environment Right to health Right to life Right to property Rights of nature Vulnerability

The 2023 Advisory Opinion Request to the IACtHR on the Climate Emergency

Summary:
On 9 January 2023, the governments of Colombia and Chile jointly filed a request for an advisory opinion on the climate emergency and human rights to the Inter-American Court of Human Rights. The two governments requested clarification of the scope of States’ obligations, both in their individual and collective dimensions, in responding to the climate emergency within the framework of international human rights law, taking into account the different effects that climate change has on people in different regions and on different population groups, nature and human survival.

The governments asked the Inter-American Court to answer a series of questions grouped into six thematic areas, namely:

A. On the scope of States’ obligations to protect and prevent, including regarding their obligations to mitigate, adapt, regulate and monitor, and their response to loss and damage;

B. On States’ obligations to protect the right to life given the existing climate science, and taking into account the right of access to information and transparency of information, including under the Escazú Agreement;

C. On the obligations of States with respect to the rights of children and new generations, given especially the vulnerability of children;

D. On the State’s obligations concerning consultative and judicial procedures, taking into account the limited remaining carbon budget;

E. On the protective and preventative obligations concerning environmental and land rights defenders, as well as women, indigenous peoples and Afro-descendant communities; and

F. On shared and differentiated obligations and responsibilities in terms of the rights of States, the obligation of cooperation and given the impacts on human mobility (migration and forced displacement of people).

Extended summary:
In their request to the IACtHR, the two governments submit that they are already dealing with the consequences of the climate emergency, including the proliferation of droughts, floods, landslides and fires. These, they submit, underscore the need for a response based on the principles of equity, justice, cooperation and sustainability, as well as human rights. The two governments note that climate change is already putting humans and future generations at risk, but that its effects are not being experienced uniformly across the international community. Instead, given their geography, climatic conditions, socioeconomic conditions and infrastructure, they are particularly being felt in the most vulnerable communities, including several countries in the Americas. They emphasize that these effects are not proportionate to these countries’ and communities’ contribution to climate change.

The governments, in their request, emphasize the relevance of the right to a healthy environment, as well as other interrelated substantive and procedural rights (affecting life, human survival and future generations). They review the existing scientific evidence concerning the impacts and progression of climate change from the IPCC, and note the vulnerability of the Andean region. Emphasizing the utility of the human rights framework for understanding these harms, and “to advance and accelerate the collective response to the climate emergency in each State, regionally and globally”, they ask the Court to answer a series of questions “in order to provide guidance towards solutions based on human rights, with an intersectional perspective.” In doing so, they note the need for clear inter-American standards to accelerate the response to the climate emergency, arguing that while the concrete measures taken may vary, human rights obligations should be the framework for accelerating the response in a just, equitable and sustainable way.

The two governments refer to the 2017 Advisory Opinion of the IACtHR, which recognized the right to a healthy environment as an autonomous and individual right, and referred to the negative effects of climate change. However, they argue, there is a need to further clarify the human rights imapcts of climate change, and corresponding obligations. In this regard, they raise the existence also of collective rights for the protection of nature under international human rights and environmental law, and cite the need to protect fundamental biomes like the Amazon and to understand States’ shared but differentiated responsibilities in a way that copes with loss and damage. The two governments invite the Court to set out clear standards against the background of litigation and related developments, citing the Vanuatu advisory opinion request to the ICJ, the pending cases before the European Court of Human Rights, and the UN HRC’s Billy and ors. v. Australia case. An advisory opinion from the Court, they argue, would provide States with guidance for setting out domestic policies and programmes.

The questions asked:

A. On the State’s obligations of prevention and protection

Question A.1: What is the scope of States’ obligation to prevent climate phenomena created by global warming, including extreme events and slow-onset events, in accordance with their inter-American treaty obligations and in light of the Paris Agreement and the scientific consensus that calls to limit the increase in global temperature to 1.5°C?

Question A.2: In particular, what actions should States take to minimize the impact of climate-related damage, in light of their obligations under the American Convention on Human Rights (ACHR)? In this regard, what differentiated measures must be taken with respect to vulnerable populations or intersectional considerations?

Question A.2.A.: What must States consider in implementing their obligation to (i) regulate, (ii) monitor and oversee, (iii) order and approve social and environmental impact studies, (iv) establish a contingency plan, and (v) mitigate activities within their jurisdiction that aggravate or may aggravate the climate emergency?

Question A.2.B.: What principles should guide action towards mitigation, adaptation and the response to loss and damage created by the climate emergency in affected communities?

B. On the State’s obligations to protect the right to life given the existing scientific consensus

Taking into account the right to access to information and the obligations concerning the active production and transparency of information derived from Arts. 14, 4.1 and 5.1. of the ACHR, in light of Arts. 5 and 6 of the Escazú Agreement, the governments ask the Court to determine:

Question B.1.: What is the scope of States’ obligations in the face of the climate emergency, in terms of:

  • (i) the environmental information required;
  • (ii) the mitigation and climate adaptation measures to be adopted to address the climate emergency and the impacts of such measures, including specific just transition policies for groups and people particularly vulnerable to global warming;
  • iii) responses to prevent, minimize and address economic and non-economic loss and damage associated with the adverse effects of climate change;
  • iv) the production of information and access to information on greenhouse gas emissions levels, air pollution, deforestation, and short-lived climate pollutants, analysis of sectors or activities that contribute to emissions, and more; and
  • v) establishing impacts on people, such as on human mobility (migration and forced displacement), effects on health and life, non-economic losses, etc.?

Question B.2.: To what extent does access to environmental information constitute a right that must be ensured to guarantee the rights to life, property, health, participation and access to justice, among other rights that are negatively affected by climate change, in accordance with the State’s obligations under the ACHR?

C. On the differentiated obligations of States with respect to the rights of children and new generations

Citing Art. 19 ACHR and Art. 12 of the Convention on the Rights of the Child, and recognizing the consensus of the scientific community that identifies children as the group most vulnerable in the long term to the imminent risks to life and well-being expected to result from the climate emergency, the govenments ask the Court to determine:

Question C.1.: What is the nature and scope of a State Party’s obligation to adopt timely and effective measures in the face of the climate emergency to ensure the protection of children’s rights derived from its obligations under Articles 1, 4, 5, 11 and 19 ACHR?

Question C.2: What is the nature and extent of a State Party’s obligation to provide children with meaningful and effective means to freely and fully express their views, including the opportunity to initiate, or otherwise participate in, any judicial or administrative proceedings concerning the prevention of climate change that constitutes a threat to their lives?

D. On the State’s obligations concerning consultative and judicial procedures

In consideration of Arts. 8 and 25 ACHR, and taking into account the scientific finding that there is a limited greenhouse gas budget that can still be emitted before reaching a dangerous and irrevocable level of climate change, and that this budget would be exhausted within a decade, the States ask the Court to clarify:

Question D.1.: What is the nature and extent of the State Parties’ obligation concerning to the provision of effective judicial remedies to provide adequate and timely protection and redress for the impairment of rights due to the climate emergency?

Question D.2.: To what extent should the obligation to consult take into account the climatic consequences of a given activity or projections concerning the emergency?

E. On the protective and preventative obligations concerning environmental and land rights defenders, as well as for women, indigenous peoples and Afro-descendant communities

In accordance with Arts. 1.1 and 2 ACHR and Art. 9 of the Escazú Agreement, the governments as the IACtHR to determine:

Question E.1.: What measures and policies should States adopt in order to facilitate the work of environmental defenders?

Question E.2.: What specific considerations should be taken into account to guarantee women human rights defenders’ right to defend the healthy environment and their land?

Question E.3.: What specific considerations should be taken into account to guarantee the right to defend the healthy environment and land in light of intersectional factors and differentiated impacts, among others, on indigenous peoples, peasant communities and Afro-descendants?

Question E.4.: In the face of the climate emergency, what information should the State produce and publish in order to determine the possibility of investigating various crimes committed against human rights defenders, including reports of threats, kidnappings, homicides, forced displacement, gender violence, discrimination, etc.?

Question E.5.: What due diligence measures should States take into account to ensure that attacks and threats against environmental defenders in the context of the climate emergency do not go unpunished?

F. On shared and differentiated obligations and responsibilities in terms of the rights of States

Bearing in mind that the climate emergency affects the entire world, and that obligations to cooperate and repair arise from the ACHR and other international treaties:

Question F.1.: What considerations and principles should States and international organizations, collectively and regionally, take into account in analyzing shared but differentiated responsibilities in the face of climate change from a human rights and intersectionality perspective?

Question F.2.: How should States act both individually and collectively to guarantee the right to reparation for the damages generated by their actions or omissions in the face of the climate emergency, taking into account considerations of equity, justice and sustainability?

Taking into account that the climate crisis has a greater impact on some regions and populations, among them, the Caribbean, island and coastal countries and territories of the Americas, and their inhabitants:

Question F.3.: How should the obligations of cooperation between States be interpreted?

Question F.4.: What obligations and principles should guide the actions of States in order to ensure the right to life and survival of the most affected regions and populations in different countries and in the region?

Considering that one of the impacts of the climate emergency is to aggravate the factors that lead to human mobility (migration and forced displacement of people):

Question F.5.: What obligations and principles should guide the individual and coordinated actions to be taken by States in the region to address non-voluntary human mobility exacerbated by the climate emergency?

Consultation procedure:

In accordance with the Rules of Procedure of the IACtHR (Art. 73(3)), all interested parties (individuals and organizations) are invited to present a written opinion on the issues covered in the advisory opinion request. The President of the Court has established 18 August 2023 as the deadline for doing so. More information is available here.

Further information:

  • The text of the advisory opinion request is available here (in the official Spanish version as filed with the Court) and it has also been translated to English, French and Portuguese by the Court’s Secretariat.
  • For a comment by Juan Auz and Thalia Viveros-Uehara, see ‘Another Advisory Opinion on the Climate Emergency? The Added Value of the Inter-American Court of Human Rights’, EJIL:Talk! Blog, 2 March 2023, available here.
  • For a comment from Maria Antonia Tigre, see ‘A Request for an Advisory Opinion at the Inter-American Court of Human Rights: Initial Reactions’, Climate Law Blog, 17 February 2023, available here.
Categories
Austria Children and young people Domestic court Emissions reductions/mitigation

Austrian Fridays for Future case

Summary:
On 21 February 2023, it was announced that a climate case had been brought by twelve children before the Austrian Constitutional Court (“Verfassungsgerichtshof”). They argued that the failure to take adequate climate protection measures is endangering their future. The claimants, aged between five and sixteen years old, invoked the rights of the child with are, in Austria, constitutionally protected. The argued that inadequate domestic climate legislation (the “Klimaschutzgesetz” of 2011) violates these rights. They alleged that, because this legislation had not led to emissions reductions, it also failed to protect children from the life-threatening effects of climate change, and accordingly violated the domestic Constitution. On 7 July 2023, the Court announced that it had rejected the case as inadmissible.

Extended summary:
The case was supported by Fridays For Future and the asssociation CLAW – Initiative für Klimarecht, as well as lawyer Michaela Krömer, who is also involved in the Mex Müllner case. It invoked the Federal Constitutional Law on Children’s Rights, which guarantees — among other things — constitutional-level rights to protection and care, child welfare and participation, a prohibition of child labor and violence and a prohibition of discrimination against children living with disabilities.

The Austrian Constitutional Court’s consideration of the case began on Monday, 12 June 2023.

On 7 July 2023, the Court announced that it had rejected the case as inadmissible, finding that the applicants had not contested all of the relevant and interconnected parts of the contested legislation, the 2011 Klimaschutzgesetz. In other words, their complaint was too narrow, and repealing only the contested parts of the law would not only fail to eliminate its alleged unconstitutionality, but would change the legislative intention behind the law and would make the Federal government responsible for all climate measures.

The Court issued two separate decisions in the case, one concerning the child applicants and one concerning the separate complaints of a lawyer concerning the impact of drastic emissions reductions on his freedom to make a living and his right to property and to respect for private life. These latter complaints, the Court found, had not been sufficiently substantiated.

Further reading:
The decisions in the case, as well as a summary from the Austrian Constitutional Court (all in German), can be found here.

More information:
More information on the case can be found at www.fridaysforfuture.at/klimaklage/presse.

For coverage from the Austrian media on the occasion of the hearings in June 2023, see here.

Suggested citation:
Austrian Constitutional Court, case G 123/2021-11, Decision of 27 June 2023.
Austrian Constitutional Court, case G 139/2021-11, Decision of 27 June 2023.

Last updated:
7 July 2023.