Category: Adaptation

Categories
2023 Adaptation Climate activists and human rights defenders Domestic court European Convention on Human Rights Private and family life Right to life Sea-level rise The Netherlands

Greenpeace Netherlands v. State of the Netherlands

Summary:
On 11 May 2023, Greenpeace and seven residents of the Caribbean island of Bonaire sent a pre-litigation letter (Dutch: sommatie) to the office of the Prime Minister of the Netherlands, Mark Rutte. The letter claims that the Netherlands does not sufficiently protect the authors from climate change and thereby violates their human rights. Since 2010, Bonaire has been a special municipality of the Netherlands and part of the Caribbean Netherlands. In the pre-litigation letter, the plaintiffs claim that the duties of care arising from Articles 2 and 8 of the European Convention on Human Rights (ECHR), the right to life and the right to family life, have been breached. The inaction of the Netherlands in sufficiently addressing climate change, they argue, violates these human rights. Therefore, they have made the following demands:

  1. The Netherlands must implement the necessary measures to protect Bonaire from the consequences of climate change.
  2. The State shall develop and implement a policy which guarantees a 100% reduction of Dutch emission of all greenhouse gases in 2030 when compared to 1990 levels.
  3. Lastly, as part of and to realize the demands above, the State must implement all necessary measures to ensure that, in January 2040 at the latest, the joint volume of the national emission of all greenhouse gases will have been reduced by 100% when compared to 1990 emissions levels.

With the pre-litigation letter to the Prime Minister, the plaintiffs asked for negotiations to find a mutually agreeable decision on their demands. If no such negotiation is held, or if it is unsuccessful, the plaintiffs will submit the matter to the competent court.

Status of Case:

Pending

Further reading:

Greenpeace Press Release: https://www.greenpeace.org/international/press-release/59658/dutch-citizens-launch-legal-action-against-the-netherlands-over-climate-impacts-on-caribbean-island-bonaire/

pre-litigation-letter-BonaireDownload

Date Last updated:

24 November 2023

Categories
Adaptation Climate-induced displacement Domestic court Indigenous peoples' rights Kenya Loss & damage Non-discrimination Right to life Right to property

Legal Advice Centre T/A Kituo cha Sheria & Anor v. Attorney General and 7 Others (Iten ELC Petition No. 007 of 2022)

Summary:
In 2022, a case was filed in Kenya on behalf of members of indigenous Ilchamus and Tugen communities living on the shores of Lake Baringo. Due to flooding, Lake Baringo has doubled in size since 2010. The plaintiffs assert that, as residents of the area, they are victims of climate change-related flooding, which in turn has caused displacement, deaths and harm to property. The petitioners allege violations of their constitutional human rights as well as violations of the Kenyan government’s duties under the domestic Climate Change Act. Drawing on a 2021 government report that identified climate change as the main cause of flooding in the area, the plaintiffs seek to — in the words of their lead attorney, Omondi Owino, “enforce the climate change duties of public officials”.

The petitioners’ motion for the Supreme Court of Kenya to create a three-judge Environment and Land Court (ELC) panel to hear the case was allowed. A hearing in the case — which alleges that government officials “failed, refused, or neglected” to “anticipate, prevent, or minimize” the impacts of climate change — was held on 24 October 2023 at the ELC in Iten. Government lawyers have reportedly contested the claims and the plaintiffs’ claims for damages, arguing that Kenya’s contribution to global climate change is minimal.

Suggested citation:
Environment and Land Court (ELC) of Iten, Legal Advice Centre T/A Kituo cha Sheria & Anor v. Attorney General and 7 Others, Petition No. 007 of 2022.

Categories
Adaptation Domestic court European Convention on Human Rights Imminent risk Non-discrimination Private and family life Right to housing Right to life Right to property Sea-level rise The United Kingdom Vulnerability

R (Friends of the Earth Ltd, Kevin Jordan and Doug Paulley) v. Secretary of State for Environment, Road & Rural Affairs

Summary:
On 17 October 2023, the reportedly first-ever domestic adaptation case was brought against the United Kingdom before its High Court of Justice. The plaintiffs in this pending case include Kevin Jordan, a homeowner from Norfolk (UK), who alleges that his home is acutely threatened by coastal erosion, with the road leading up to it having already collapsed into the sea. Jordan has brought his case together with the NGO Friends of the Earth and disability rights activist Doug Paulley, a care home resident who alleges that his health conditions are being exacerbated by climate-aggravated heatwaves. Together, the plaintiffs challenge the UK’s National Adaptation Programme (NAP). Domestic law requires the production of new NAP every five years, and the most recent version — NAP3 — was published in July 2023. The claimants argue that NAP3 is deficient for the following reasons:

  1. Failure to set sufficiently specific objectives;
  2. Failure to conduct and publish information on the assessment of the risks involved in implementing NAP3;
  3. Failure to consider the unequal impacts of NAP3 on protected groups (on the grounds of age, race and disability); and
  4. Violation of Articles 2, 8, 14 and Article 1 of Protocol 1 of the European Convention on Human Rights (the rights to life, respect for private and family life, non-discrimination and property, respectively), as enshrined in the Human Rights Act 1998.

In regards to the alleged human rights violations, the plaintiffs invoke:

a. The well-established but urgent need for long-term policy and protected funding to enable care-homes (and similar healthcare settings) to adapt to excessive heat. This remains absent in NAP3 despite the increasing frequency and severity of annual heatwaves.
b. There being no new policy to manage overheating risks in existing health and social care buildings, such that they are properly refurbished as soon as reasonably practicable.
c. A lack of a commitment to provide adequate resources to support communities at imminent risk of being lost to erosion and flooding, including as to the established mental health and emotional wellbeing impacts for those affected.
d. Gaps, inconsistency and uncertainty in the potential allocation of funding provided for a range of areas, in particular for those communities that must (or are likely to have to) relocate and have their homes demolished.
e. There being no insurance or compensation schemes available for the worst affected by coastal erosion and who lose their homes.
f. No evidence of their being an express consideration, or reasoned analysis, of what a fair balance to strike would be between doing more to safeguard the human rights of vulnerable people and the interests of wider society.

https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2023/20231101_21608_complaint.pdf (emphasis added)

More information:
See the press release here, and the information document obtained by ClimateCaseChart here.

For reporting on the case, see the Guardian.

Suggested citation:
High Court of Justice for England and Wales, R (Friends of the Earth Ltd, Kevin Jordan and Doug Paulley) v. Secretary of State for Environment, Road & Rural Affairs, filed on 17 October 2023.

Categories
Adaptation Biodiversity Children and young people Deforestation Domestic court Emissions reductions/mitigation Farming Imminent risk Indonesia Loss & damage Paris Agreement Right to a healthy environment Right to development and work Right to education Right to health Right to housing Right to life Right to subsistence/food Right to water Sea-level rise Vulnerability

Indonesian Youths and others v. Indonesia (Rasya Assegaf and 12 others v. Indonesia)

Summary:
This case was brought by thirteen children, youth, and members of vulnerable groups from different parts of Indonesia, all of whom allege that they are affected by the Indonesian Government’s response to climate change. The seven youth plaintiffs, aged 7-29, together with six adults whose involvement in agrarian and farming activities renders them particularly vulnerable, invoke their constitutitional rights to life, to live in physical and spiritual prosperity in a good and healthy environment, to self-development through the fulfillment of basic needs, to food and water, to education, to work and earn a decent living, as well as the minor plaintiffs’ rights as children. They brought their complaint to Indonesia’s National Commission of Human Rights, the counrty’s independent national human rights authority, calling on it to exercise its monitoring and mediating function.

The complaint in depth:
The plaintiffs in this case emphasize that the Indonesian government has recognized the country’s extreme vulnerablility to the impacts of climate change, including to sea level rise, heat waves, storm surges, tidal flooding, shifts in the wet and dry seasons, changes to rain patterns, decreased food production, disturbances in the availability of water, the spread of pests, plant and human diseases, the sinking of small islands, and the loss of biodiversity. They also emphasize that Indonesia is already experiencing many of these serious climate change impacts, and that these will only continue to get worse.

In their submissions to the National Commission of Human Rights, the plaintiffs particularly emphasize the effects of heat stress combined with Indonesia’s humid climate; the loss of food security and livelihoods in fishing and tourism due to coral bleaching and a decrease in fish stocks; unpredictable precipitation patterns and resulting drought, water insecurity and flooding; and the impacts of heat and precipitation changes on agriculture, food and water security, and plant diseases and pests. They also emphasize the risks associated with tidal floods, high waves, saltwater intrusion and strong winds due to sea level rise, which endanger lives and will cause a loss of living space, shelter, food and water insecurity. In this regard, they note research by the World Bank and the Asian Development Bank that shows that, in a high emissions scenario, and without adaptation, more than 4,2 million Indonesians will be affected by permanent tidal flooding by 2070–2100. This same research shows that 5.5-8 million Indonesian people will be affected by flooding from once-in-a-century storm surges by 2030. In addition, they note that climate change causes a higher incidence of vector-borne diseases affecting children and vulnerable populations, such as malaria, dengue fever, and cholera. Several of the plaintiffs have suffered from these diseases already. Other impacts on the health of children include air pollution, malnutrition and stunting, drowning during floods, coastal flodding, and mental health impacts such as climate anxiety. Citing a study from the American Psychological Association, they argue that experiencing extreme weather events leads to higher rates of depression, anxiety, posttraumatic stress disorder, drug and alcohol use, domestic violence, and child abuse.

The plaintiffs emphasize that they have already experienced flooding, cyclones, extreme heat, vector-borne illness, climate anxiety, and impacts on their homes and agricultural or fishing livelihoods. They submit that the Government of Indonesia has a constitutional responsibility to protect them from the human rights impacts of the climate crisis, and allege that it has failed to do so by contributing to causing and exacerbating the climate crisis. Noting that Indonesia’s domestic law and its NDC under the Paris Agreement acknowledge the link between human rights and climate change, they submit that constitutional rights should be interpreted in harmony with international human rights law. This, they argue, means recognizing that Indonesia has obligations to mitigate and adapt to climate change, as well as cross-sectoral obligations to ensure that all climate adaptation and mitigation actions are inclusive, fair and participatory, and to prioritize the most affected and vulnerable populations.

The plaintiffs argue that the Indonesian government should prioritize mitigation through a moratorium on new coal-fired power plants and the licensing of palm oil plantation concesssions as well as by promoting sustainable polycultural and indigenous farming practices that will reduce its net GHG emissions and ensure crop resilience.

In terms of adaptation, the plaintiffs argue that Indonesia should ensure protection especially of those living in vulnerable areas, including small islands, riparian and lowland areas, coastal areas, and dry areas. This should take place through a community-oriented, inclusive and participative process, and should serve to upgrade infrastructure, provide social protection mechanisms, prioritize nature-based adaptation through ecosystem restoration, strengthen the resilience of food systems and ensure that adaptation does not take place at the expense of any vulnerable groups or future generations. In particular, they emphasize the rehabilitation of mangrove and coral ecosystems, given their function as natural flood and erosion protection; the promotion of sustainable agricultural practices, and procedural obligations to ensure consultation, information, inclusivity and equity.

The plaintiffs note Indonesia’s knowledge of climate change, its commitment to the Paris Agreement’s 1.5 degree warming target under its Updated NDC, and its awareness of the risk of huge economic losses due to the dangers of climate change. Against this background, they argue that Indonesia has violated its human rights obligations by failing to mobilize the maximum available resources and take the highest possible level of ambition in mitigating its emissions, noting that it is one of the world’s largest emitters of land use change and energy emissions and the world’s seven largest emitter of cumulative emissions. They argue that, to align with the 1.5°C degree warming scenarios, Indonesia needs to limit its emissions from 660 to 687 million metric tons of CO2e by 2030. It is failing to do so, instead expanding its coal-fired power plant network and supporting ongoing deforestation.

The plaintiffs argue that these measures, i.e. the government’s failure to take adaptive steps, and its contribution to and exacerbation of climate change, have violated their right to a healthy environment, their right to health, their right to life and their rights to food and water. As concerns their right to development, the plaintiffs argue that “[t]he impact of climate change on the right to development has a ripple effect across all human rights”. They also link the government’s policies to impacts on their enjoyment on the right to education and the right to work and earn a decent living. Lastly, for the child applicants, they note risks for the enjoyment of the highest attainable standard of physical and mental health, access to education, proper food, proper housing, safe drinking water, and sanitation.

Measures requested:
The Plaintiffs request that the Commission:

  • State that climate change is a human rights crisis, and that each additional degree of heating will cause further impacts;
  • State that climate change has disrupted their rights to a healthy environment, life, health, and development through the fulfillment of basic needs, food, water, education, and employment; that the child plaintiffs are particularly vulnerable in this regard; and that the Government has violated its obligation to respect, protect, uphold and fulfill the plaintiffs’ human rights;
  • State that “the government has contributed to and continues to perpetuate the climate crisis by knowingly acting in disregard of the available scientific evidence on the necessary measures to mitigate climate change”, and that its actions — such as its approval of new coal-fired power plants, approval of large-scale deforestation and land clearing, and failure to implement basic adaptation measures — are an expression of this;
  • Recommmend immediate review of law and policy to reduce GHG emissions, mobilize resources, and minimize losses;
  • Recommend steps to reduce Indonesia’s national GHG emissions, including moratoria on new coal plants and on concessions for oil palm plantations, industrial forest plantations, and the clearing of peatlands; the promotion of sustainable and polycultural agricultural practices; and adaptation measures; and
  • Recommend an inclusive, fair, open, and effective approach to public participation in climate-related decision-making.

Developments in the case:
The case is still pending. However, in receiving the case during a hearing held on 14 July 2022, two of the Commissioners heard directly from the plaintiffs and welcomed the petition. Commissioner Choirul Anam stated that “climate change is an enormous problem, which influences various human rights. It is our job to push for better government actions in responding to climate change.”

Further information:
The text of the complaint in this case is available (in Bahasa and English) from ClimateCaseChart.com.

For a comment, see Margaretha Quina and Mae Manupipatpong, ‘Indonesian Human Rights Commission’s First Human Rights Complaint on the Impacts of Climate Change’, Climate Law Blog, 22 November 2022, available here.

Suggested citation:
National Commission of Human Rights of Indonesia, Indonesian Youths and others v. Indonesia, complaint filed on 14 July 2022.

Last updated:
8 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
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
Adaptation Biodiversity Children and young people Deforestation Domestic court Emissions reductions/mitigation Human dignity Imminent risk Paris Agreement Peru Private and family life Right to a healthy environment Right to health Right to life Right to water Vulnerability

Álvarez et al. v. Peru

Summary:
This amparo case was filed before the Superior Court of Justice of Lima, Peru, on 16 December 2019. Brought by a group of young Peruvians, it alleges that the government has not taken adequate measures halt deforestation in the Amazon rainforest, a major carbon sink, and to take adequate mitigation and adaptation measures in the face of climate change. They submit that this particularly harms the rights of young people, whose futures are in jeopardy because of climate change.

Before the court, they invoke the constitutional and human right to a healthy environment, drawing in particular on the Peruvian Constitution, the ICESCR, and the Additional Protocol to the American Convention on Human Rights (also known as the “Protocol of San Salvador”). They also invoke their right to human dignity (Art. 1 of the Peruvian Constitution) and their right to life (Art. 2.1 of the Peruvian Constitution), along with — among others — the right to health and to water. They also invoke the preventive and precautionary principles and draw on constitutional principles concerning the conservation of biodiversity, the sustainable use of natural resources, the social function of law, the best interests of the child, solidarity and intergenerational equity.

The claimants submit that public policies on environmental protection are insufficient “to mitigate a problem that, according to scientific evidence, is worsening and threatens the very survival of the human species on the planet. This scenario is even more acute for the claimants – minors, born between 2005 and 2011 – whose future is severely compromised as a result of the current climate and ecological crisis. The conditions for their well-being and that of their descendants for decades to come depend, to a large extent, on the actions taken today. Tomorrow will be too late. In Peru – a megadiverse country that is vulnerable to climate change – the problem is particularly pressing. The plaintiffs, therefore, have suffered a violation of their fundamental right to enjoy a healthy environment, as well as threats to their fundamental rights to life, to a “life project” (“proyeto de vida”), to water and to health” (translation from the original Spanish by climaterightsdatabase.com)

Further information:

  • For an interview with one of the applicants in this case, see here.

Suggested citation:

Superior Court of Justice of Lima, Álvarez et al. v. Peru, constitutional complaint submitted on 16 December 2019.

Last updated:

17 March 2023

Categories
Adaptation Australia Climate-induced displacement Human Rights Committee Imminent risk Indigenous peoples rights Indigenous peoples' rights Private and family life Right to culture Right to life Sea-level rise Standing/admissibility Vulnerability

Billy et al. v. Australia (Torres Straits Islanders case)

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

Rights at stake:
The applicants in this case invoked a series of rights in the ICCPR, on behalf of themselves and their children, contesting the respondent State’s failure to adopt mitigation measures to reduce greenhouse gas emissions and cease the promotion of fossil fuels. To support this, they drew on Article 27 (the right to culture), Article 17 (the right to be free from arbitrary interference with privacy, family and home), and Article 6 (the right to life) ICCPR. They argued that the indigenous peoples of the Torres Strait Islands, especially those who reside on low-lying islands, are among the most vulnerable to the impacts of climate change. They considered that the Australian government must ensure both mitigation and adaptation measures in order to adequately protect their rights. Previously, the Torres Strait Regional Authority (TSRA), a government body, had stated that “the effects of climate change threaten the islands themselves as well as marine and coastal ecosystems and resources, and therefore the life, livelihoods and unique culture of Torres Strait Islanders.”

Outcome:

On 21 July 2022, the Human Rights Committee adopted its Views in this case.

Observations of the State:

The Australian Government argued that the case was inadmissible, contesting the relevance of climate-related international agreements and its own ability to be held (legally or practically) responsible for climate-related harms. It also submitted that it was not possible to attribute climate change to the State party under international human rights law.

The HRC’s considerations on the admissibility:

On the issue of the exhaustion of domestic remedies, the Government’s position was that it did not owe a duty of care for failing to regulate environmental harm, and that it was not required to provide a remedy where (including in the present case) it understood there to be no breach of ICCPR rights. This question was accordingly reserved to the examination of the merits.

Concerning mitigation measures, the HRC noted that Australia is and has been a major greenhouse gas emitter, and ranks high on economic and development indices. As a result, it found that the alleged (in)actions fell under its jurisdiction under articles 1 or 2 of the Optional Protocol.

Concerning the imminence of the risk concerned, and accordingly the issue of victim status / standing, the Committee found that the authors of this Communication, “as members of peoples who are the longstanding inhabitants of traditional lands consisting of small, low-lying islands that presumably offer scant opportunities for safe internal relocation – are highly exposed to adverse climate change impacts”. Given the uncontested dependence of their lives and cultures on natural resources and phenomena, and their inability to finance adaptation measures on their own, the authors were considered to be “extremely vulnerable to intensely experiencing severely disruptive climate change impacts”. Given the authors’ allegations of serious ongoing adverse impacts, the HRC declared their claims under articles 6, 17, 24 (1) and 27 of the ICCPR admissible.

Merits:

Article 6

The Committee recalled that the right to life cannot be interpreted restrictively, and that it requires States to adopt protective measures (i.e. that it entails positive obligations). It recalled its own General Comment No. 36, issued in 2018, in establishing that the right to life also extends to reasonably foreseeable threats to life, including adverse climate change impacts and environmental degradation.

The Committee rejected Australia’s allegation that the interpretation of the ICCPR contained in this General Comment was not compatible with the rules of treaty interpretation under general international law. It then went on to recall its own earlier Teitiota v. New Zealand case (on climate-induced displacement), ultimately finding that the authors were not currently facing health impacts or real and reasonably foreseeable risks of being exposed harms to their right to life. The Committee also noted that the right-to-life claim being made largely related to the authors’ ability to maintain their culture, which falls under article 27 ICCPR.

Regarding the authors’ submission that, absent urgent action, their islands will become uninhabitable within 10 to 15 years, the Committee noted the adaptation and mitigation measures currently planned or being taken, and found that the time frame of 10 to 15 years could allow for additional protective measures or relocation programmes. As a result, it found that there had been no violation of the right to life in this case.

Article 17

The authors claimed that climate change already affects their private, family and home life, given that they may be forced to abandon their homes. The Committee considered that the authors’ dependence on marine and terrestrial resources and ecosystems is a component of their traditional indigenous way of life, falling under the scope of Article 17 ICCPR.

Considering the adaptation measures and related plans in place, the Committee noted the existence of unexplained delays in seawall construction and the lack of explanation concerning the loss of marine resources, crops and fruit trees. It noted the ongoing inundation of villages and ancestral burial lands; the withering of traditional gardens through salinification; the decline of nutritionally and culturally important marine species; coral bleaching and ocean acidification; and the authors’ anxiety and distress. The Committee also noted the importance of community lands for the authors’ most important cultural ceremonies. It accordingly found that:

“that when climate change impacts – including environmental degradation on traditional [indigenous] lands (…) – have direct repercussions on the right to one’s home, and the adverse consequences of those impacts are serious because of their intensity or duration and the physical or mental harm that they cause, then the degradation of the environment may adversely affect the well-being of individuals and constitute foreseeable and serious violations of private and family life and the home.”

Finding that Australia had failed to discharge its positive obligation to implement adequate adaptation measures to protect the authors’ home, private life and family, the HRC found a violation of the authors’ rights under article 17 ICCPR.

Article 27

Article 27 ICCPR recognizes the right of members of minority indigenous groups to the enjoyment of culture, and protects the survival and continued development of their cultural identity. Interpreted in the light of the UN Declaration on the Rights of Indigenous Peoples, this right enshrines the inalienable right of indigenous peoples to enjoy their traditional territories and natural resources. Here, the authors argued that their ability to maintain their culture has already been impaired due to climate change impacts, which have eroded their traditional lands and natural resources, for which there is no substitute on mainland Australia. The Committee found that these climate impacts represent a threat that was reasonably foreseeable by the State party, as the authors’ community had been raising the issue since the 1990s. While noting existing seawall construction projects, it considered that the delay in initiating these projects indicated an inadequate response by the State party to the threat in question. It found that the failure to adopt timely and adequate adaptation measures “to protect the authors’ collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture and traditions and use of land and sea resources discloses a violation of the State party’s positive obligation to protect the authors’ right to enjoy their minority culture.” Accordingly, it found a violation of Article 27 ICCPR.

As a result of its findings concerning Articles 17 and 27 ICCPR, the HRC considered it not necessary to examine the authors’ remaining claims under article 24 (1) ICCPR.

Remedies:

Under Article 2 (3) (a) ICCPR, the HRC noted that the State was required to make full reparation to the authors, which meant providing adequate compensation; engaging in meaningful consultations with their communities to conduct needs assessments; continuing its adaptation measures and monitoring and reviewing the effectiveness of existing measures; and taking steps to prevent similar violations in the future. The Committee requested the State to provide it with information about the measures taken in this regard within 180 days.

Separate opinions:

Several HRC members appended individual opinions to the Views. These include:

  • The individual opinion by Committee Member Duncan Laki Muhumuza, arguing that there had been a violation of Article 6 ICCPR (the right to life);
  • The individual opinion by Committee Member Gentian Zyberi, concurring but arguing that the Committee had focused too heavily on adaptation measures, and should instead have more clearly linked the right under Article 27 ICCPR to mitigation measures;
  • The joint opinion by Committee Members Arif Bulkan, Marcia V. J. Kran and Vasilka Sancin (partially dissenting), who argued that there had been a violation of Article 6 ICCPR (the right to life). They argued in particular that the “real and foreseeable risk” standard employed by the majority interpreted Article 6 too restrictively, and was inappropriate here as it had been borrowed from the dissimilar context of its refugee cases (Teitiota v. New Zealand, the HRC’s first climate-induced displacement case).

Full decision:

The HRC’s Views are available here.

Further reading:

  • Maria Antonia Tigre, ‘U.N. Human Rights Committee finds that Australia is violating human rights obligations towards Torres Strait Islanders for climate inaction’, available here.
  • Verena Kahl, ‘Rising Before Sinking: The UN Human Rights Committee’s landmark decision in Daniel Billy et al. v. Australia,’ Verfassungsblog, 3 October 2022, available here.
  • Nicole Barrett and Aishani Gupta, ‘Why Did the UN Human Rights Committee Refuse Broader Protections for Climate Change Victims?’, Opinio Juris blog, 5 October 2022, available here.
  • Christina Voigt, ‘UNHRC is Turning up the Heat: Human Rights Violations Due to Inadequate Adaptation Action to Climate Change’, EJIL:Talk! Blog, 26 September 2022, available here.
  • Monica Feria-Tinta, ‘Torres Strait Islanders: United Nations Human Rights Committee Delivers Ground-Breaking Decision on Climate Change Impacts on Human Rights’, EJIL:Talk! Blog, 27 September 2022, available here.

Suggested citation:

UN Human Rights Committee, Daniel Billy et al. v. Australia, Communication No. 3624/2019, 22 September 2022, UN Doc. CCPR/C/135/D/3624/2019.

Categories
Adaptation Business responsibility Domestic court Emissions reductions/mitigation Sea-level rise Switzerland

Edy Mulyono and three others v. Holcim AG (aka Asmania et al. v. Holcim)

Summary:
On 11 July 2022, a case was filed with the conciliation authority in the Swiss canton of Zug concerning the greenhouse gas emissions of the corporate cement giant Holcim AG. The case was brought by four Indonesian nationals, who live on the island of Pari and earn their livelihoods through fishing and tourism. Inspired by the RWE case, they argue that rising sea levels and floods, which are all caused or aggravated by climate change, are threatening their livelihoods. The cement industry is a major emitter of greenhouse gases, currently emitting approximately 8% of yearly global CO2 emissions. and Holcim is the market leader in this sector. On this basis, the plaintiffs seek compensation from Holcim for the damage to their property and for future damages. They also seek adaptation measures to protect themselves against future impacts, and argue that Holcim should reduce its greenhouse gas emissions by 43% (compared to 2019 levels) by 2030, and 69% by 2040. This demands more rapid change than what is foreseen by the company’s own commitment to achieving climate neutrality by 2050.

Background of the claim:
The claim concerns the greenhouse gas emissions produced by the cement industry, which are largely made up of direct emissions. In a press conference, representatives for NGOs supporting the plaintiffs noted that 3/4 of Holcim’s emissions are direct emissions, as opposed to the largely indirect emissions created by the fossil fuel industry. The plaintiffs’ claim is based on references to climate attribution science, including reports by the IPCC, and the findings by the US Climate Accountability Institute that Holcim is responsible for .42% of global industrial greenhouse gas emissions since 1751.

With the support of Swiss Church Aid HEKS/EPER, the European Center for Constitutional and Human Rights (ECCHR) and the Indonesian environmental organization WALHI, the plaintiffs are invoking Swiss civil law, more specifically a violation of their personality rights and, tort law to argue that their human rights have been violated through the effects of the company’s emissions and that even more severe violations are forthcoming if Holcim does not reduce its emissions. They argue that the company should assume historical responsibility for its past emissions, but also future responsibility in the sense of rapidly reducing its greenhouse gas emissions.

Further developments and civil claim:
As required under procedural law, the case was brought as a request for arbitration. Arbitration proceedings in the case commenced in the fall of 2022. However, in October 2022, it became clear that the efforts at arbitration would not succeed in reaching a mutually agreeable solution. The case then progressed as a civil claim, with the four plaintiffs filing a lawsuit at the Zug Cantonal Court in February 2023 and applying for legal aid. The decision of the Court was pending as of August 2023.

Further information:
For a press release on the case, see here.

For more information, see the dossier compiled by the supporting NGOs here.

Last updated:
16 August 2023

Categories
Adaptation Argentina Children and young people Deforestation Domestic court Emissions reductions/mitigation Right to a healthy environment Right to health Right to life Rights of nature Victim status

Asociación Civil por la Justicia Ambiental v. Province of Entre Ríos et al. (Paraná Delta case)

Summary:
This case, brought to the Supreme Court of Argentina after severe fires in a wetland ecosystem in the Paraná Delta (Delta del Paraná) in Argentina, was filed by two NGOs and a group of local children (represented by their parents) as a collective environmental ‘amparo’ claim against the local and provincial governments. The applicants invoke their rights to a healthy environment, to life, to health, and to physical integrity under the Argentinean Constitution, as well as invoking the Convention on the Rights of the Child and drawing on the UNFCCC and the Paris Agreement.

The action concerns alleged protection failures concerning the preservation of the wetlands of the Paraná Delta, and concerns more than three thousand fires ensuring from the indiscriminate burning of grasslands. The claimants urge the Supreme Court to declare the declare the Paraná Delta a subject of rights given that it consitutes an essential ecosystem in its region, including due to the ecosystem services it performs related to the mitigation and adaptation to climate change. The also request the court to order the respondents to prepare and implement measures to regulate and protect the ecosystem given its endangerment in the face of climate change and the need to protect it for future generations. They argue that a guardian should be designated for this ecosystem, and that local communites should be involved in decision-making relevant to its management, considering in this regard the terms of the Escazú Agreement.

Current status of the case:

The case was filed on 3 July 2020. Given the existence of other similar complaints, the Supreme Court decided on 21 December 2021 that it would issue one judgment concerning all relevant complaints.

Suggested citation:

Supreme Court of Argentina, Asociación Civil por la Justicia Ambiental v. Province of Entre Ríos et al., Doc. CSJ 542/2020, decision of 28 December 2021.

Last updated:

18 March 2023