Category: Right to health

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
Adaptation Biodiversity Children and young people Climate activists and human rights defenders Climate-induced displacement Deforestation Emissions reductions/mitigation Evidence 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
Biodiversity Brazil Deforestation Indigenous peoples rights Indigenous peoples' rights International Criminal Court Right to a healthy environment Right to culture Right to health

The Prosecutor v. Bolsonaro

Summary:
On 12 October 2021, the Austrian NGO AllRise, which advocates for interests linked with the environment, democracy, and the rule of law, submitted a communication to the International Criminal Court in the Hague concerning then-acting Brazilian President Jair Bolsonaro. Although NGOs cannot initiate proceedings before the ICC, the Prosecutor can do so proprio motu (Art. 15(1) Rome Statute), and the communication’s aim is to convince the Prosectuor to do so regarding President Bolsonaro’s policy on the Amazon rainforest.

AllRise contends that the Bolsonaro government’s socio-economic policy has put the lives of environmental advocates at risk, and has dismantled the protections of the environment that were previously available under domestic law, which as facilitated the activities of criminal networks. By failing to prosecute the perpetrators of environmental crimes and undermining the protection of the climate, human health, and justice, AllRise argues, the Bolsonaro government has committed crimes against humanity, as proscribed by the Rome Statute of the ICC.

The NGO’s communication is supported by the Climate Observatory (Observatório do Clima), a network of 70 Brazilian civil society organizations.

Human rights claims:
AllRise argues that ‘these Environmental Dependents and Defenders have been and continue to be the subject of Crimes Against Humanity through severe deprivations of their fundamental and universal right to a healthy environment (also known as R2E) and other human rights related thereto’ (para. 15). It likewise invoked the rights of indigenous peoples, arguing that ‘[t]he destruction of the rainforest and the rivers of the Amazon has a devastating impact on the traditional, cultural and spiritual way of life of Indigenous peoples and others who depend upon the forest’ (para. 164). The NGO also describes the background of attacks and violence against environmental activists and human rights defenders (paras. 201-208).

More information:
To read the full complaint, click here.

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

Categories
Business responsibility Children and young people Domestic court Emissions reductions/mitigation Evidence Right to a healthy environment Right to health South Africa

South African ‘Deadly Air Case’

Summary:
This case concerns toxic air pollution in the Mpumalanga Highveld, which is home to a dozen coal-fired power plants, a coal-to-liquids plant and a refinery. The case was brought by two environmental organisations – groundWork and Vukani Environmental Justice Movement in Action – represented by the Centre for Environmental Rights.

The applicants have petitioned the court to declare the unsafe levels of air pollution to be a violation of section 24a of the South African Constitution, which provides that “everyone has the right to an environment not harmful to their health or wellbeing”. 

The outcome of the case is currently pending before the Pretoria High Court, and Judge Colleen Collins has reserved judgment.

Claims:
The applicants’ complaints concern exposure to toxic chemicals emitted by the coal plants. This includes sulphur dioxide, heavy metals like mercury, and fine particulate matter. According to the applicants, the coal plants are responsible for the majority of these emissions, which are causing chronic respiratory illnesses such as asthma and lung cancer, and which also increase the risk of strokes, heart attacks, birth defects and premature deaths. 

The area in question has been recognized as a hotspot of pollution in excess of permissible levels. It has been claimed that this pollution is responsible for up to 10,000 excess deaths per year. But the Government has pointed to the existence of clean air regulations, and argued that there is no scientific evidence proving the link between the air pollution and the harms allegedly suffered by any particular individual. It has also highlighted the need to realize the right to a healthy environment progressively.

Amicus curia intervention by the UNSR:
David R. Boyd, the United Nations special rapporteur on human rights and the environment, intervened as an amicus curiae in this case. He argued that poor and marginalised people disproportionately carry the burden of toxic air pollution. It has been reported that Boyd’s arguments include consideration for the vulnerability of children to environmental threats.

Deciding body:
Pretoria High Court

Admissibility:
TBD

Merits:
TBD

Remedies and outcomes:
TBD

Further reading:
For more information from the Centre for Environmental Resources, click here.

Suggested citation:
South African ‘Deadly Air’ case, Pretoria High Court, hearings held on 17-19 May 2021.

Categories
Business responsibility Children and young people Domestic court Emissions reductions/mitigation Extreme poverty Indigenous peoples' rights Right to a healthy environment Right to health Right to housing Right to life Right to subsistence/food Right to water Self-determination The Philippines Vulnerability

Greenpeace Southeast Asia and others v. the Carbon Majors

Summary:
This case was brought before the Philippines’ Commission on Human Rights (CHR) by 12 organisations and 20 individuals, as well as over a thousand Filipino citizens who expressed their support for the case through a petition, against the so-called ‘carbon majors’, i.e. high-emitting multinational and state-owned producers of natural gas, crude oil, coal and cement, including BP, Shell and Chevron. The applicants based their case on research indicating that these ‘carbon majors’ are responsible for a large percentage of global greenhouse gas emissions. Citing the Philippines’ high degree of vulnerability to the effects of climate change, the applicants alleged violations of the rights to life, health, food, water, sanitation, adequate housing, and self-determination. They also specifically invoked the rights of vulnerable groups, peoples and communities, including women, children, people living with disabilities, those living in extreme poverty, indigenous peoples, and displaced persons. They invoked also the right to development, labor rights, and the right to ‘a balanced and healthful ecology’. This petition was brought after a number particularly destructive typhoons that affected the Philippines, including Typhoon Haiyan.

As a result of the petition, the CHR began a dialogical and consultative process, called the National Inquiry on Climate Change (NICC). This process aims to determine the impact of climate change on the human rights of the Filipino people, as well as determining whether the Carbon Majors are responsible for climate change.

On 6 May 2022, the Human Rights Commission released the findings of its inquiry.

Responsible instance:
The case was brought before the Philippines’ Commission on Human Rights, which is an independent National Human Rights Institution (NHRI) under the 1987 Philippine Constitution, established on 5 May 1987 by Executive Order No. 163.

Date filed:
22 September 2015

Procedural steps in the case:
On 10 December 2015, the Commission announced during the Paris Climate Change Conference that it would take cognizance of the case.

On 21 July 2016, the Commission enjoined the respondent Carbon Majors to file their comments or answers to the petition within forty-five days. Out of the 47 respondents summoned, 15 submitted a response. Thirteen amicus curiae briefs were received. The applicants filed a reply, to which seven of the carbon majors filed a rejoinder.

Beginning July and November 2017, the Commission conducted community visits and dialogues to select climate impacted areas.

On 11 December 2017, the parties held a first preliminary conference. The Commission used this opportunity to deny the respondents’ jurisdictional objections to the case. It asserted its authority to investigate the case and hold public hearings in 2018 in Manila, New York, and London.

In 2018, the Commission held six public hearings in the case.

Outcome of the NICC:
On 6 May 2022, the Human Rights Commission released the findings of its inquiry. In his introductory note, Commissioner Roberto Eugenio T. Cadiz outlined the lengths taken by the Commission to engage with the “carbon majors” over this case, and noted that corporate actors, and not just States, have an obligation to respect and uphold human rights under the UN Guiding Principles on Business and Human Rights (UNGP). He also noted the unprecedented nature of the claim, and the Commission’s own lack of resources in dealing with it. And he rejected the argument by the “carbon majors” that the Commission did not have territorial or subject matter jurisdiction to deal with the case, noting the interrelated nature of all human rights and the impact on the people of the Philippines.

In its report, the Commission began by reviewing the best available scientific knowledge on climate change. It set out, “as established by peer-reviewed science, that climate change is real and happening on a global scale”, and that it is anthropogenic, i.e. caused by human activity. It then set out that climate change is a human rights issue, noting its adverse impacts on human rights both internationally and in the Philippines. It focused particularly on impacts concerning the right to life, the right to health, the right to food security, the right to water and sanitation, the right to livelihood, the right to adequate housing, the right to the preservation of culture, the right to self-determination and to development, and the right to equality and non-discrimination, focusing on the rights of women, children, indigenous peoples, older persons, people living in poverty, LGBTQIA+ rights. It also noted the impacts on the right to a safe, clean, healthy and sustainable environment and on the rights of future generations and intergenerational equity.

After considering the duties of States to protect human rights, as the primary duty-bearers of human rights law, the Commission found that these rights also include extraterritorial obligations, and that while a balance between sovereignty and human rights must be sought, “States’ duty to protect is not confined to territorial jurisdiction”. It relied on international environmental law to identify the concrete procedural and substantive obligations on States in the context of climate change, and their obligation to protect vulnerable sectors against discrimination.

The Commission considered that the refusal of governments to engage in meaningful mitigation action regarding climate change constitutes a human rights violation. It held that “[t]he pursuit of the State obligation to mitigate climate change cannot just be framed as aspirational, where the standard of fulfillment is vague and the timeline is uncertain. Concrete metrics must be set against which States may be held accountable. Failing this, States enable the human rights of their citizens to be harmed, which equates to a violation of their duty to protect human rights” (p. 87). The absence of meaningful action to address global warming, it held, suffices in this regard; these obligations of States include an obligation to regulate corporate activities, and to establish a policy environment that discourages reliance on fossil fuels.

The Commission then turned to business responsibilities, noting that “a State’s failure to perform [its duty to enact and enforce appropriate laws to ensure that corporate actors respect human rights] does not render business enterprises free from the responsibility of respecting human rights.” Referring to the UNGP framework and the UN Global Compact as well as the OECD Guidelines for Multinational Corporations, it applied these standards to the context of climate change. It found that:

  • The anthropogenic contributions of the “carbon majors” to climate change is quantifiable and substantial;
  • The “carbon majors” had early awareness, notice or knowledge of their products’ adverse impacts on the environment and climate systems;
  • The “carbon majors” engaged in willful obfuscation or obstruction to prevent meaningful climate action;
  • The “carbon majors” have the corporate responsibility to undertake human rights due diligence and provide remediation, including through every entity in their value chain;
  • And the UNGPs may be relied on under the law of the Philippines.

It went on to issue a number of recommendations. Concerning States, it called for climate justice, including a pooling of resources and sharing of skills, and urged governments to:

  • Undertake to discourage dependence on fossil fuels, including by phasing out all coal power fossil fuel subsidies and other incentives;
  • To collaborate on innovative climate action and guarantee the enjoyment by all of the benefits of science and technology;
  • To cooperate towards the creation of a legally binding instrument to strengthen the implementation of the UNGPs, and provide redress to victims of corporate human rights impacts;
  • To concretize the responsibilities of corporate actors in the climate context;
  • To discourage anthropogenic contributions to climate change and compensate victims;
  • To ensure access to adaptation measures by all, as well as equality and non-discrimination in climate adaptation and mitigation measures;
  • And to ensure a just transition towards an environmentally sustainable economy;
  • As well as to fulfil climate finance commitments and devise new mechanisms for loss and damage from climate change-related events;
  • To adequately support and protect environmental defenders and climate activists;
  • To promote climate change awareness and education;
  • To include military operations and supply chains in carbon accounting;
  • And to strengthen shared efforts to conserve and restore forests and other terrestrial ecosystems.

The Commission also formulated concrete recommendations for the “carbon majors” themselves, urging them to:

  • Publicly disclose their due diligence and climate and human rights impact assessment results, and the measures taken in response thereto;
  • Desist from all activities that undermine the findings of climate science, including “climate denial propaganda” and lobbying activities;
  • Cease further exploration of new oil fields, keep fossil fuel reserves in the ground, and lead the just transition to clean energy;
  • Contribute to a green climate fund for the implementation of mitigation and adaptation measures;
  • And continually engage with experts, CSOs, and other stakeholders to assess and improve the corporate climate response through “a new chapter of cooperation towards a united front for climate action”.

Speaking directly to financial institutions and investors, the Commission noted their ability to “steer companies and industries towards a sustainable path by aligning lending and investment portfolios with targets set by science”. It considered that their role in financing sectors and projects that generate greenhouse gas emissions make them “similarly accountable for global warming”. Accordingly, they were urged to:

  • Refrain from financing fossil fuel related projects and instead direct capital towards green projects; and
  • Exert social, political and economic pressure on the fossil fuel industry to transition to clean energy by divesting financial instruments related to fossil fuels.

The Commission concluded by noting the role of UN institutions, NHRIs, and courts — reviewing examples of climate litigation such as the Urgenda or Leghari cases, noting that “even when courts do not rule in favor of the claimants, they still contribute to meaningful climate response through their elucidation of the law and the rights and obligations of the parties”. Similarly, NGOs, CSOs, the legal profession and individuals are recommended to champion human rights and continue engaging in strategic litigation to strengthen business and human rights norms, change policy, increase governments’ ambitions, and create precedents.

The Commission furthermore addressed the Philippines’ own lackluster record of climate action, making concrete recommendations to the government to, among other things, formulate a national action plan on business and human rights, declare a climate and environmental alert, and revisit its NDC under the Paris Agreement as well as implement coal moratoriums, transition to low-carbon transportation systems, implementing REDD+ measures and data building and reporting mechanisms, and create legislative change. It also recommended to the domestic judiciary to create rules of evidence for attributing climate change impacts and assessing damages, and take note of the anthropogenic nature of climate change.

Suggested citation:
Philippines Human Rights Commission, In Re: National Inquiry on the Impact of Climate Change on the Human Rights of the Filipino People and the Responsibility therefor, if any, of the ‘Carbon Majors’, case nr. CHR-NI-2016-0001, Report of 6 May 2022.

Further information:
The full text of the petition is available here.

The report of 6 May 2022 is available here.

A blogpost on the importance of the report by Annalisa Savaresi and Margaretha Wewerinke-Singh is available on the GNHRE blog.

For additional resources provided by the Commission, such as transcripts of hearings and evidence submitted, click here.

Categories
2021 Children and young people Domestic court Emissions reductions/mitigation Human dignity Right to a healthy environment Right to health United States of America

Held and Others v. Montana

Summary:
In Held and Others, sixteen young plaintiffs — aged between two and eighteen — brought a case against the U.S. state of Montana alleging violations of the state constitution due to climate change. The young plaintiffs in this case, which is to some extent comparable to the Juliana litigation, alleged that they are already experiencing ‘a host of adverse consequences’ from anthropogenic climate change in Montana, including increased temperatures, changing weather patterns, more acute droughts and extreme weather events, increasing wildfires and glacial melt. They argued that this was causing health risks, especially for children, and that the defendants, among them the state of Montana, its Governor, and various state agencies, had “act[ed] affirmatively to exacerbate the climate crisis” despite their awareness of the risk of harm to the applicants. The plaintiffs sought a declaration that their right to a clean and healthy environment includes a right a stable climate, and that existing approaches to greenhouse gas emissions in Montana violate constitutional provisions, including the right to a clean and healthy environment; the right to seek safety, health, and happiness; and the right to individual dignity and to equal protection. They also sought injunctive relief, namely an order to account for the state’s Montana’s greenhouse gas emissions and to develop and implement an emissions reductions plan.

Decision on the admissibility:
On 4 August 2021, a the Montana First Judicial District Court for Lewis and Clark County declared the case admissible in part. The prayer for injunctive relief in terms of emissions accounting, a remedial plan or policy, the appointment of expert to assist the court, and retain jurisdiction until such orders are complied with were rejected. However, the court declared the constitutional rights claims admissible, including the claim about the plaintiffs’ ‘fundamental constitutional right to a clean and healthful environment’, which — as the plaintiffs submit — ‘includes a stable climate system that sustains human lives and liberties’.

Date filed:
13 March 2020

Date of admissibility decision:
4 August 2021

Hearings:
Trial dates for this case were set for June 12-23 2023.  

More information:
The original complaint is available from the Western Environmental Law Center.
The admissibility decision is available over on climatecasechart.com.

Suggested citation:
Montana First District Court for Lewis and Clark county, Held and others v. State of Montana and others, order on motion to dismiss, 4 August 2021, Cause No. CDV-2020-307.

Categories
2022 Adaptation Czechia Deforestation Domestic court Emissions reductions/mitigation European Convention on Human Rights Evidence Paris Agreement Private and family life Right to a healthy environment Right to health Right to life Right to property Separation of powers Standing/admissibility Victim status

Klimatická žaloba ČR and others v. Czechia

Summary:
This case was brought by a group of applicants, named in the brief as the climate action NGO Klimatická žaloba ČR, a municipality, two peasants, several foresters, and a man from Prague who suffers from environmental anxiety. The case was brought on 21 April 2021, and contested failures to provide adequate and necessary mitigation and adaptation measures to protect against the adverse effects of climate change. It alleged that the Government’s failures to adequately address climate change violated the rights to life, health, a healthy environment, and other rights guaranteed by the Czech constitution, the Czech Charter of Fundamental Rights and Freedoms, and the European Convention on Human Rights.

The applicants sought a declaration that the Czech government failed to respect their rights by ensuring sufficient emissions reductions to meet the Paris Agreement’s targets. They also sought an order setting the Czech carbon budget at 800 Mt CO2 from January 2021 until the end of the century.

Judgment of 15 June 2022:
On 15 June 2022, the Municipal Court of Prague issued a judgment in this case. It rejected the action against the Government of the Czech Republic. However, it found that the Ministry of the Environment, the Ministry of Industry and Trade, the Ministry of Agriculture and the Ministry of Transport had failed to provide specific mitigaton measures leading to a 55% reduction in greenhouse gas emissions by 2030 compared to 1990 levels. These authorities were required to have a complete and precise plan of measures in place to meet this goal, which was not the case at the time of judgment; they were accordingly enjoined to cease their interference with the applicants’ rights by adopting an adequate mitigation plan.

Admissibility:
Citing the environmental case-law of the European Court of Human Rights, the court noted that inaction in protecting the environment may violate human rights, as well as the right to a favourable environment under Article 7 of the Czech Constitution and Article 35(1) of the Czech Charter of Fundamental Rights and Freedoms. It accordingly recognized the standing of the individual applicants in the case. Because domestic law grants associations the right to bring cases not only concerning their own rights, but also concerning those of their members, and because the court found that climate change affects the entire territory of the Czech Republic, the applicants associations had standing to bring an interference action. Likewise, the applicant municipality had standing, given that climate change can affect the legitimate interests of citizens living in its territory and that its basic duty “is to take care of the overall development of its territory and the needs of its citizens, and to protect the public interest. It is therefore desirable that a municipality should be able to take care of the rights of its citizens to a favourable environment in the same way as an environmental association”.

Reasoning on the merits:
The court noted that the Czech Code of Administrative Justice does not allow an action for interference to protect the rights of third parties (actio popularis / public interest litigation), but found that the applicants’ affectedness in the present case was sufficiently direct, noting that “the link between climate change and human (in)action is so compelling and close that, when considering the directness of interference, the two are an inseparable whole.” It argued in this regard that the interference with the applicants’ right to a favourable environment was “direct, since it is no longer the global effects of climate change that are at issue, but their local adverse manifestations” (para. 198). It noted also that “[d]irectness of the interference is not precluded by the fact that the applicants are, in a strict sense, directly deprived of their rights by the adverse effects of climate change, not by the defendants’ allegedly unlawful failure to act to protect the climate. A contrary interpretation would constitute an excessive legal formalism making climate litigation impossible” (para. 199). Citing the precautionary principle (para. 211) and IPCC reports (para. 216-220), the court went on to find that “living in sustainable climatic conditions also falls within the scope of the basic needs of human life, as they are a prerequisite for the undisturbed exercise of other human rights, such as the right to life, health, property rights, the right to engage in economic activity” (para. 210). It recognized that climate change has adverse impacts on human living conditions, including through heat stress, the spread of infectious diseases, and reduced diversity and access to food (para. 221). Citing the Urgenda case (para. 224), the court went on to find that climate change interfereed directly with the applicants’ right to a healthy environment (para. 225), and that “[r]esidence, age, sex, health, etc. only determine the extent of the interference” (para. 223).

The court found that while the Paris Agreement was part of the domestic legal order, and bound the Czech Republic, its 2 degree target was not legally binding. However, drawing on scholarship, the IPCC, and the Urgenda judgment, the court found that the obligation in Art. 4(2) of the Paris Agreement to implement mitigation measures to achieve the Czech nationally determined contribution (NDC) was binding on the State (para. 248-250). Although the Czech Republic had not in fact submitted its own NDC, the EU had set emissions levels for all Member States, and the resulting reduction emission was individually applicable to the Czech Republic (para. 251). Citing developments taking place as part of the EU’s Green Deal, including the new European Climate Law, and its duty of due diligence to reduce greenhouse gas emissions (para. 262), it found that “the Defendants should have established a plan for achieving the Paris Agreement’s (EU NDC) 2030 target without undue delay and in accordance with the requirements imposed on mitigation measures by Article 4(14) of the Paris Agreement (transparency, specificity, completeness) following the entry into force of the Paris Agreement for the Czech Republic and the update of the first EU NDC” (para. 280). It noted too that “the Defendants have no reasonable reason to wait until 2023 to develop and then implement the measures.”

Failing to fulfil the corresponding emissions reductions obligations, the court held, constituted a violation of the applicants’ rights.

The Municipal Court agreed with the applicants and the scientific studies, including IPCC reports, that they had submitted in evidence “that a global carbon budget of 900 GtCO2 since January 2018 is consistent with the Paris Agreement commitment. Compliance with this budget will likely result in 50% probability of a 1.7°C temperature increase from pre-industrial times; 2°C will not be exceeded with a 67% probability and 1.5°C with a 33% probability” (para. 239). The court extensively engaged with the different bases of argument, finding that one study contained too many variables to be convincing.

In terms of adaptation measures, the court found that the Defendants had not breached their obligation to adopt and implement adaptation measures under Article 5(4) of the European Climate Law. The Defendants had adopted an extensive action plan reflecting adaptation gaps, based on scientific knowledge, and involving a range of public and private actors. The court accordingly did not follow the applicants’ allegations concerning shortcomings in the implementation of measures concerning forestry, drought and water protection, and agriculture (para. 329).

In a paragraph of central importance, and revolving around the “drop in the ocean” argument, the court held that:

“[C]limate change would also occur if the defendants acted to mitigate and adapt to climate change. However, if the defendants had properly fulfilled their obligations, climate change would have been milder and averting dangerous climate change under Article 2(1)(a) of the Paris Agreement would have been more likely. This conclusion follows from the non-negligible impact of human activity on climate change. Defendants’ failure to act is therefore a partial cause of the current adverse impacts of climate change. The Municipal Court notes that the individual responsibility of the States Parties to the Paris Agreement cannot be excluded by reference to the level of emission contributions of other States. Such an approach would make effective legal protection impossible where the State in question is not a significant emitter of greenhouse gases on a global scale and would be inconsistent with the principle of common but differentiated responsibility of the Parties under Article 2(2) of the Paris Agreement” (para. 325).

This quotation, and those throughout this post, come from the unofficial translation of the judgment provided by the applicants.

The court did not examine the complaints concerning the rights to property, to private and family life, to life and health, to carry out economic activity and to self-government. Doing so, it held, would have no impact on the applicants’ legal position, “since it is the specific definition of the violation, and not the number of rights affected, which is decisive for the remedy of a continuing interference under Article 87(2) of the Code of Administrative Justice.”

Remedies:
The Court issued not only a declaratory but also a constitutive ruling, meaning that it instructed the authorities to remedy their inaction and adopt a mitigation plan that is sufficiently specific within the meaning of Article 4(2) and (14) Paris Agreement and aims at meeting the EU NDC target. The choice of specific mitigation measures leading to a 55% reduction in greenhouse gas emissions by 2030 compared to 1990 was left to the defendants’ discretion. The court held that it “could not, in view of the principle of separation of powers, order the defendants to develop specific mitigation measures” (para. 334). It did, however, reimburse the costs of the proceedings.

Date filed:
21 April 2021

More information:
The complaint is available here (in Czech).

An unofficial translation of the judgment into English and a press release are available from the applicants.

Suggested citation:
Municipal Court of Prague, Klimatická žaloba ČR and others v. the Czech Republic and others, Judgment No. 14A 101/2021 of 15 June 2022.

Last updated:
22 March 2023

Categories
2020 Domestic court Emissions reductions/mitigation Mexico Non-discrimination Right to a healthy environment Right to health

Greenpeace Mexico v. Ministry of Energy and Others

Summary:
This indirect amparo suit was brought by Greenpeace Mexico against the Mexican government, contesting the Mexican Sectoral Energy Plan for 2020-2024. Greenpeace argued that this policy promotes the use of fossil fuels over sustainable energy sources, thereby violating fundamental rights. The case invokes the pro persona principle and the human and constitutional rights to equality, a healthy environment, the protection of health, and access to renewable energy, as well as the legality principle. It also invokes the principle of progressive interpretation of human rights and the concept of positive and negative obligations.

In 2020, a Mexico City District Court ordered the suspension of the policy in an injunction.

Procedural steps:
The Third District Administrative Court for Mexico City declined to hear the case on grounds of lack of specialization in the matter. On 8 September 2020, the Mexico City District Court accepted to hear the case.

On 21 September 2020, the Mexico City District Court issued an injunction suspending the Sectoral Energy Plan (2020-2024). The court noted the imminence and irreparability of the harms at stake, finding that the it was an ‘indisputable fact’ that the limitation of the production and use of renewable energies encourages the operation of conventional electricity generation technologies using fossil fuels and thereby causing greater emissions, which affects human healthy and the environment. Because of this, the degree of imminence and irreparability of the risk at stake did not require specific proof, because it had been established through logical reasoning (p. 29).

Date of filing:
20 August 2020

Suggested citation:
Mexico City District Court, Greenpeace Mexico v. Ministry of Energy and Others, injunction no. 372/2020, 21 September 2020.

More information:
The full text of the injunction is provided on climatecasechart.com.