Categories
2020 Children and young people Domestic court Emissions reductions Indigenous peoples' rights Standing/admissibility United States of America

Juliana et al. v. USA et al.

Summary:
On 12 August 2015, the case of Juliana v. the United States was filed in the U.S. District Court for the District of Oregon. The 21 young plaintiffs in this case, who were represented by the NGO “Our Children’s Trust”, asserted that the government had violated the youngest generation’s constitutional rights to life, liberty and property through its climate change-causing actions. Moreover, they stated that the government had failed to protect essential public trust resources by encouraging and permitting the combustion of fossil fuels. The Court of Appeal held that the plaintiff’s requested remedies should be addressed by the executive and legislative branches rather than by the courts. At present, the youth plaintiffs are planning to take the case to the U.S. Supreme Court or to settle discussions with the Biden-Harris administration.

Court’s decision:
U.S. District Court of Oregon Judge Ann Aiken declined to dismiss the lawsuit. She ruled that access to a clean environment constitutes a fundamental right. Judge Aiken’s judgment was reversed by a Ninth Circuit Panel due to the plaintiffs’ lack of standing to sue. The Ninth Circuit Court of Appeals recognized the gravity of the evidence on the plaintiffs’s injuries from climate change. The panel of judges recognized the existence of harms to the applicants, and the plausibility of arguing that these harms had been caused by climate change. Nevertheless, the Court held that the plaintiffs’ requested remedies should be addressed by the executive and legislative branches and not by the courts. One of the three judges affirmed the plaintiff’s constitutional climate rights in a dissent.

Date of decision:
17 January 2020

Further reading:
The full text of the Ninth Circuit’s order on interlocutory appeal is available here.

Suggested citation:
Juliana and Others v. the United States and Others, 947 F.3d 1159 (9th Cir. 2020).

Categories
Domestic court Emissions reductions European Convention on Human Rights Paris Agreement Private and family life Right to life The Netherlands

Urgenda Foundation v. the Netherlands

Summary:
This case, brought in 2013 by the Urgenda foundation and hundreds of Dutch citizens against the Netherlands, has become the leading climate and human rights judgment, and served as inspiration for similar litigation around the world. The final judgment in this case was issued in 2019, and in this case the domestic courts not only found that the Dutch climate policy had violated Articles 2 and 8 of the European Convention on Human Rights (the rights to life and respect for private and family life, respectively), but also issued an injunction requiring greenhouse gas emissions reductions.

Remedies ordered:
District Court of The Hague had previously ruled that the government was obligated to reduce its greenhouse gas emissions by at least 25% by the end of 2020 in comparison to 1990 levels. The District Court’s decision was appealed by the State. The Court of Appeal upheld the District Court’s decision on 9 October 2018. After the State’s appeal to the Supreme Court, the Supreme court ruled in favour of Urgenda and held that the government has a legal duty to prevent dangerous climate change.

Date of final domestic judgment:
20 December 2019

More on this case:
For the final judgment in Dutch, click here.

For the summary provided by the Supreme Court (English), click here.

Recommended reading:
Ingrid Leijten, ‘Human Rights v. Insufficient Climate Action: The Urgenda Case’ 37(2) Netherlands Quarterly of Human Rights (2019)

Benoit Mayer, ‘The State of the Netherlands v. Urgenda Foundation: Ruling of the Court of Appeal of The Hague (9 October 2018)’ 8(1) Transnational Environmental Law (2019), 167-192.

Maiko Meguro, ‘State of the Netherlands v. Urgenda Foundation’ 114(4) American Journal of International Law (2020), 729-735.

Suggested citation:
Dutch Supreme Court (Hoge Raad), Urgenda Foundation v. the Netherlands, Judgment of 20 December 2019, No. 19/00135, ECLI:NL:HR:2019:2006.

Categories
2019 Human Rights Committee New Zealand Non-refoulement Prohibition of torture Right to life

Ioane Teitiota v. New Zealand

Summary:

The applicant submitted that New Zealand had violated his right to life under the ICCPR by removing him to Kiribati, an island state where, he submitted, the situation was becoming increasingly unstable and precarious due to sea level rise caused by global warming. The HRC accepted the claim that sea level rise and climate change-related harms can trigger non-refoulement obligations, but found that there is still time to take measures to protect the population of Kiribati.

Admissibility:

Concerning the imminence of the risk faced, the Committee noted that the author was not alleging a hypothetical future harm, but a real predicament caused by a lack of potable water and employment possibilities, and a threat of serious violence caused by land disputes. The author had sufficiently demonstrated, for the purpose of admissibility, the existence of a real risk of harm to his right to life, given the impact of climate change and associated sea level rise on the habitability of Kiribati and on the security situation on the islands.

Merits:

The HRC found that environmental degradation can compromise the effective enjoyment of the right to life, and if severe it can violate that right. The Committee accepted the author’s claim that sea level rise is likely to render Kiribati uninhabitable. Without robust national and international efforts, the effects of climate change in receiving States may expose individuals to a violation of articles 6 or 7 ICCPR, thereby triggering the non-refoulement obligations of sending States. However, it noted that the time frame of 10 to 15 years, as suggested by the author, could allow for intervening acts by Kiribati, with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population.

Remedies ordered:

None

Separate opinions:

Yes

Implementation measures taken:

N/A

Date:

24 October 2019

Status of case:

final

Suggested case citation:

Human Rights Committee, Ioane Teitiota v. New Zealand, No. 2728/2016, Communication of 24 October 2019.

Full text:

For the full-text of the decision in the case, click here.

Further reading:

Adaena Sinclair-Blakemore, ‘Teitiota v New Zealand: A Step Forward in the Protection of Climate Refugees under International Human Rights Law?’ Oxford Human Rights Hub, 28th January 2020, https://ohrh.law.ox.ac.uk/teitiota-v-new-zealand-a-step-forward-in-the-protection-of-climate-refugees-under-international-human-rights-law/

Keywords:

climate refugees, affectedness, non-refoulement

Categories
2019 Deforestation Domestic court Emissions reductions India Paris Agreement Right to life

Riddhima Pandey v. Union of India and Others

Summary:

The petitioner, Riddhima Pandey, a 9-year old girl residing in the Indian State of Uttarakhand, approached the National Green Tribunal (a special tribunal exercising jurisdiction over environmental cases) in order to review the State and concerned authorities’ inaction on mitigation measures in the face of climate science, and the systemic failure to implement environmental laws (in a manner that addresses climate change). The petitioner based her claim on the ground that the States duty to take the concerned climate action arose out of the public trust doctrine, which the Supreme Court of India has previously held to be based in fundamental rights, directive principles and the preamble of the Indian Constitution. The application in this case was explicitly inspired by the petition in Juliana v. US where also, the child petitioners invoked the public trust doctrine to contest the US government’s inaction.

The petitioner prayed for the court to, among other things, direct the concerned governmental authorities to properly account for the climate related impacts of industrial and infrastructure projects while granting environmental clearances, account for climate impacts of every individual case of forest diversion and ensuring sufficient compensatory afforestation, direct the government to prepare a national greenhouse gas emissions inventory as well as a national carbon budget against which particular projects’ emissions impacts could be assessed.

Date of decision:

15 January 2019

Tribunals decision:

The National Green Tribunal dismissed the case, reasoning that there is no reason to presume that the existing environmental legislations and regulations already address climate change and require that climate related impacts be sufficiently accounted for during environmental impact assessments.

Status of the case:

Decided.

Suggested case citation:

National Green Tribunal (New Delhi, India), Ridhima Pandey v. Union of India and Others, Application No. 187/2017, judgment of 15 January 2019)

Case documents:

For the petition filed before the National Green Tribunal on 25 March 2017, click here.

For the order of the National Green Tribunal on 15 January 2019, click here.

Categories
2018 Biodiversity Domestic court Emissions reductions Imminent risk Margin of appreciation Nepal Paris Agreement Right to a healthy environment Right to health Right to life Right to subsistence/food

Padam Bahadur Shrestha v. Office of Prime Minister and Others

Facts of the case:

The petitioner, Padam Bahadur Shrestha had applied to the concerned authorities in Nepal to enact a separate law on climate change in August 2018, but did not receive a response. He thus filed a petition with the Supreme Court of Nepal alleging that the situation in Nepal that is marked by absence of a special climate change legislation, inadequacies in existing environmental legislation in addressing climate change, and poor implementation of the State’s climate change policy suffices to establish a violation of the right to life, right to live in a healthy and clean environment, right to health care and right to food found in Articles 16, 30, 35, and 36 of the Nepali Constitution.

Date of decision:

25 December 2018

Court’s decision:

The Supreme Court of Nepal found that an amendment to the existing laws and introduction of a new consolidated law that addresses climate change was necessary and issued detailed directions on what features the new law must contain. It based this order on the reasons that such would facilitate Nepal’s compliance with its obligations under international law, including the Paris Agreement and that climate mitigation and adaptation directly concern fundamental rights including the right to life, right to have nutritious food and the right to a clean environment. It further held that although the Environmental Protection Act of 1997 addressed environmental protection along the dimension of climate change, its provisions were inadequate regarding climate change mitigation and adaptation.

Status of the case:

Decided.

Suggested case citation:

The Supreme Court of Nepal, Padam Bahadur Shreshta v Office of the Prime Minister and Others, NKP, Part 61, Vol. 3, judgment of 25 December 2018.

Case documents:

For the judgment of the Supreme Court of Nepal (in Nepali), click here.

For an unofficial English translation of the judgment (authored by Hardik Subedi), click here.

Categories
2018 Adaptation Domestic court Farming Human dignity Pakistan Right to a healthy environment Right to life

Leghari v. Pakistan

Summary:
In Leghari v. Pakistan, a farmer claimed that his fundamental rights, including the right to life, the right to a healthy environment and human dignity, had been violated by the failure to take action against climate change, which was already impacting Pakistan in the form of floods and other climactic changes. The High Court of Lahore granted his claims in 2015, finding that the government had failed to implement its own Climate Change Policy and the corresponding implementation framework. The Court created a Climate Change Commission to monitor the government’s response.

Arguments by the applicant:
The applicant submitted that the domestic National Climate Change Policy of 2012 and the Framework for its implementation had not been implemented. Absent strategies to transition to heat resilient crops or to conserve water, he argued, he would not be able to sustain his livelihood as a farmer. He submitted that this inaction had violated his fundamental rights, in particular, Article 9 (right to life, including the right to a healthy and clean environment) and Article 14 (human dignity) of the Constitution, along with the constitutional principles of social and economic justice. In doing so, he also invoked the principles of public trust, sustainable development, the precautionary principle and the principle of intergenerational equity. The most immediate and serious threat to Pakistan, he argued, concerned water, food and energy security.

Findings:
The High Court of Lahore granted Mr. Leghari’s claims on 4 September 2015, finding that “the delay and lethargy of the State in implementing the Framework offend the fundamental rights of the citizens.” It ordered the government to nominate “climate change focal persons” to help ensure the implementation of the domestic legal Framework and to identify action points. To monitor the government’s progress, it also created a Climate Change Commission made up of government representatives, NGOs, and technical experts. A supplemental decision of 14 September 2015 nominated 21 Commission members and granted this body various powers. On 25 January 2018, the Court considered a report from the Climate Change Committee finding that, until January 2017, 66% of the Framework for Implementation Climate Change Policy’s priority actions had been implemented. The Court accordingly dissolved the Climate Change Commission, creating a Standing Committee on Climate Change in its place.

In the 2018 judgment, the Court considered the need for environmental, climate and water justice, and the need for both mitigation and, in the specific case of Pakistan, adaptation measures in response to climate change. It noted that “we have to move on. The existing environmental jurisprudence has to be fashioned to meet the needs of something more urgent and overpowering i.e., Climate Change.” (para. 12). It held, too, that “[f]rom Environmental Justice, which was largely localized and limited to our own ecosystems and biodiversity, we have moved on to Climate Justice.” (para. 20).

Further reading:
Birsha Ohdedar, ‘Climate Change Litigation in India and Pakistan: Analyzing Opportunities and Challenges’, in Ivano Alogna, Christine Bakker, and Jean-Pierre Gauci (eds), Climate Change Litigation: Global Perspectives (Brill | Nijhoff 2021), 103-123,  https://doi.org/10.1163/9789004447615_006.

Ivan Mark Ladores, ‘In the Name of Climate Change: How Leghari v Federation of Pakistan is Instrumental to the Pursuit of the Right to Life in the Philippines’, 5(2) Groningen Journal of International Law (2017), https://doi.org/10.21827/5a6af9f49574a.

Emily Barritt and Boitumelo Sediti, ‘The Symbolic Value of Leghari v Federation of Pakistan: Climate Change Adjudication in the Global South’ 30(2) King’s Law Journal (2019) 203-210, 10.1080/09615768.2019.1648370.

Suggested citation:
Lahore High Court, Asghar Leghari v. Pakistan, Case W.P. No. 25501/2015, Judgment of 25 January 2018.

Categories
Canada Emissions reductions Indigenous peoples' rights Inter-American Human Rights System Right to culture Right to health Right to property Right to subsistence/food

Arctic Athabaskan Council v. Canada

Summary:
This case, brought before the Inter-American Commission on Human Rights by Athabaskan people living in Canada, concerned alleged rights violations relating to Arctic warming and melting caused by Canadian black carbon emissions. The case alleged that Canada, by failing to regulate black carbon emissions, had violated various human rights of the Athabaskan people, including their rights to health, subsistence, property, and culture.

The complaint:
The applicants in this case allege that Canada’s emissions of black carbon, which is a component of sooty fine-particle pollution and stems largely from diesel emissions and the burning of biomass, is particularly harmful to their rights and way of life because it is emitted in or near the Arctic.

The applicants submit that the warming effect of black carbon on the global climate is second only to carbon dioxide. In the Arctic, black carbon warms in two ways: it absorbs sunlight in the air, and it reduces the reflectivity of ice and snow-covered surfaces, accelerating their rate of melting.

In particular, the applicants cite their right to culture, particularly their ability to transmit their cultural knowledge to future generations, because “Arctic warming and melting has made the weather, the hunt, and the behaviors and occurrence of fish and wildlife so erratic that elders no longer feel confident in teaching younger people traditional ways.”

The also argue that warming and melting has affected the integrity of the land, compromising their right to property. This includes floods, forest fires, melting permafrost, erosion-related harms and landslides, as well as the destruction of cultural and historic sites and increased difficulty in accessing resources. The Athabaskans also invoke their right to means of subsistence, citing difficulties in accessing traditional food sources and adverse effects on biodiversity. Lastly, they cite their right to health, arguing that the loss of traditional foods has adversely affected the Athabaskan way of life. Melting permafrost is affecting water quality, and the loss of traditional food sources is forcing the people to rely on purchased food, leading to increases in the prevalence of chronic diseases.

Before the Commission, the applicants allege that the Canadian state’s acts and omissions represent an ongoing violation of their human rights, and that there are no domestic remedies suitable for addressing these violations. They argue that Canada has failed to take action to reduce black carbon emissions, and that such action could substantially remedy the Arctic warming and melting that are causing the violations at stake. They accordingly request the Commission to investigate and confirm the alleged harms; set forth the facts and applicable law, declaring a violation of the American Declaration of the Rights and Duties of Man; and recommend steps to limit black carbon emissions and protect Arctic Athabaskan culture and resources from Arctic warming and melting.

Forum:
Inter-American Commission of Human Rights

Date filed:
23 April 2013

Status of case:
Pending

Suggested citation:
Inter-American Commission on Human Rights, Arctic Athabaskan Peoples v. Canada, petition submitted on 23 April 2013, case pending.

Further information:
For more on this petition, see

The full text of the petition has been made available here by EarthJustice here: https://earthjustice.org/sites/default/files/AAC_PETITION_13-04-23a.pdf

For a summary of the petition, provided by EarthJustice, click here: https://earthjustice.org/sites/default/files/library/legal_docs/summary-of-inuit-petition-to-inter-american-council-on-human-rights.pdf

Further reading:
Agnieszka Szpak, ‘Arctic Athabaskan Council’s Petition to the Inter-American Commission on Human Rights and Climate Change—Business as Usual or a Breakthrough?’ 162 Climatic Change (2020) 1575–1593.

Categories
2006 Biodiversity Emissions reductions Extraterritorial obligations Freedom of movement Indigenous peoples' rights Inter-American Human Rights System Private and family life Right to culture Right to health Right to property Right to subsistence/food United States of America

Sheila Watt-Cloutier et al. v. the United States of America

Summary:
Filed in 2005 by members of the Inuit people living in Canada, this application concerned the climate change-related responsibility of the United States of America. The Inter-American Commission of Human Rights refused to examine the case on the grounds that the information provided was insufficient.

More information on the petition:
In this petition to the Inter-American Commission on Human Rights, Sheila Watt-Cloutier, an Inuk woman and Chair of the Inuit Circumpolar Conference living in Canada, sought relief from human rights violations related to climate change caused by the acts and omissions of the United States. Ms. Watt-Cloutier, on behalf of herself, 62 other individuals, and all of the Inuit of the arctic regions of the United States of America and Canada, sought relief against the effects of climate change, which — it was argued — have the potential to affect every aspect of the life of the Inuit people, including the quality of the permafrost, land and water, biodiversity and food sources, and cultural rights. The petitioners relied on the United States’ obligations under the American Declaration of the Rights and Duties of Man, and other instruments that shape these obligations under the Declaration, including the International Convention on Civil and Political Rights, the International Convention on Economic, Social, and Cultural Rights, and the UN Framework Convention on Climate Change.

This case was extraterritorially framed: it was brought by Inuit people living in Canada, but against the United States of America for its climate change-related human rights impacts. The petitioners argued that the acts and omissions by the United States had violated the Inuit’s rights to the benefits of culture, to property, to the preservation of health, life, physical integrity, security, and a means of subsistence, and to residence, movement, and inviolability of the home under the American Declaration of the Rights and Duties of Man and other international instruments.

Outcome:
On 16 November 2006, the Commission refused to consider the petition because it considered that it had provided insufficient information. Specifically, it found that the petition did not “enable us [the Commission] to determine whether the alleged facts would tend to characterize a violation of rights protected by the American Declaration”.

The Commission held a hearing in 2007 concerning the case, however it did not revisit its decision not to examine the complaints made.

Forum:
Inter-American Commission of Human Rights

Date filed:
7 December 2005

Suggested citation:
IACHR, Sheila Watt-Cloutier et al. v. USA, petition rejected on 7 December 2005

Full text of the petition:
The text of the petition is available at climatecasechart.com. Click here to access it.

The video of the 2007 hearing is available here.

Further information:
For more on this petition, see:

Agnieszka Szpak, ‘Arctic Athabaskan Council’s petition to the Inter-American Commission on human rights and climate change—business as usual or a breakthrough?’ 162 Climatic Change (2020) 1575–1593.

Categories
Access to a remedy Indigenous peoples' rights Inter-American Human Rights System Nicaragua Right to property

Mayagna (Sumo) Awas Tingni Community v. Nicaragua

Summary:
The Awas Tingni community, an indigenous community of the Atlantic Coast of Nicaragua, had no real property title deed to its ancestral lands. The community contested a concession to a corporation to carry out road construction work and logging exploitation in the forest where the community was located. The community requested that no further steps be taken to grant the concession without the consent of the community. Before the Inter-American Commission on Human Rights, the community argued that the State did not ensure access to an effective remedy, nor obtain the community’s consent before granting the concession on the community’s land. Moreover, it contended that the state had not demarcated the communal lands of the Community.

The Inter-American Court of Human Rights found that the Nicaraguan State had violated the American Convention on Human Rights, specifically the right to judicial protection under Art. 25 in connection with Art. 1(1) and 2 of the Convention, as well as the right to property under Art. 21 in connection with Art. 1(1) and 2 of the Convention.

Date of judgment:
31 August 2001

Rights invoked:
Art. 1 (obligation to Respect Rights), Art. 2 (domestic Legal Effects), Art. 21 (right to property) and Art. 25 (right to judicial protection) of the American Convention on Human Rights

Merits:
Regarding art. 25 of the American Convention on Human Rights, the Court held that the State had not adopted adequate domestic measures for delimination, demarcation and titling of the community’s land. Moreover, the State had failed to process the remedy filed by the community within a reasonable time. Therefore the Court held that Nicaragua had violated art. 25. The Court also ruled that the State had not effectively delimited and demarcated the limit of the territory regarding which the community had property rights. As a consequence, the community did not know with certainty how far their property extended geographically. The Court determined that Nicaragua had violated art. 21 of the Convention (right to property).

Remedies:
The State was required to adopt, in its domestic law, pursuant to art. 2 of the American Convention on Human Rights, legislative, administrative and any other measures necessary to create an effective mechanism for delimination, demarcation and titling of the property of indigenous communities. Moreover the State was requires to carry out the delimination, demarcation and the titling of the corresponding lands of the members of the community. The Court also noted that its judgment constituted a form of reparation. In addition, the State was required to invest, as a form of reparation for immaterial damages, in works or services of collective interests to the benefit of the community, as well as being required to pay the community 30’000 dollars for costs and expenses regarding the proceedings.

Separate opinions:
See the dissenting opinion of Judge Montiel Argüello regarding the violation of Arts. 21 and 25.

Suggested case citation:
IACtHR, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of 31 August 2001