Category: Year

Categories
2024 Domestic court Germany Rights of nature

German Rights of Nature Case (8 O 1373/21)

Summary:

On 2 August 2024, in the context of a case about compensation for the purchase of a BMW-brand vehicle during the so-called “diesel scandal”/”Dieselgate”, a judge at the Erfurt Regional Court in Germany, Dr. Martin Borowsky, made an innovative finding: he found that rights of nature can already be derived from the law currently in force, namely the EU Charter of Fundamental Rights, meaning that nature is not an object, but a subject with its own right to protection. The relevant parts of his extensive holding on this matter, based on his involvement during the drafting of the Charter and translated from the original German by this database, are replicated below in full.

Finding of the court (paras. 29-40 of the judgment):

[N]ature’s own rights, which arise from the Charter of Fundamental Rights of the European Union, reinforce protection [in the context of the ‘diesel scandal’]. These rights of nature are – as in numerous other legal systems, such as in South America – to be taken into account ex officio and independently of any corresponding submission by the parties or an explicit reference to them.

As European Union law is relevant in the diesel cases, the Charter of Fundamental Rights is also applicable (Art. 51 (1)). The rights in the Charter, in particular Art. 2 and Art. 3 (1) in conjunction with Art. 37, establish inherent rights of nature, which also require consideration in the present case. These fundamental rights are by their nature applicable to nature or individual ecosystems — i.e. ecological persons. It can be left open whether in the present case nature as such or individual ecosystems (particularly) damaged by exhaust gases require protection. The Charter gives rise to the comprehensive right of ecological persons to have their existence, preservation and regeneration of their life cycles, structure, functions and development processes respected and protected.

The fact that the [EU’s] convention on fundamental rights [a “body composed of representatives of the Heads of State and Government and of the President of the Commission as well as of members of the European Parliament and national parliaments” formed to draft the EU’s fundamental rights charter], which met in 2000, had not yet taken these rights into account does not prevent such rights from being recognized. As is well known, originalism is not a decisive interpretative approach in Europe. Moreover, the convention on fundamental rights was certainly open to ecological issues and concerns.

In particular, the Charter – like the Council of Europe’s European Convention on Human Rights – is a living instrument that can be used to respond appropriately to new threats. The recognition of specific rights of ecological persons through the interpretation and application of existing Union law is necessary due to the importance and urgency of the ecological challenges – climate change, species extinction and global pollution – and in view of the threat of irreversible damage.

Granting legal subjectivity to ecological persons, as was recently done by the Spanish legislator for the Mar Menor saltwater lagoon, is in line with the Charter’s view of humanity. Its preamble emphasizes the responsibility and duties towards fellow human beings as well as towards the human community and future generations. According to Art. 37 of the Charter, a high level of environmental protection and the improvement of the quality of the environment must be integrated into the Union’s policies and ensured in accordance with the principle of sustainable development. The recognition of nature’s own rights serves this essential objective of the Union.

The open term “person”, which is frequently used in the Charter, includes nature or ecosystems such as rivers and forests as additional legal subjects alongside humans. In the first title of the Charter, containing fundamental rights, the term “person” (“personne”) is used in the original German text, as in numerous other language versions, rather than the term “Mensch”. The English “everyone” can be equated with this. Since fundamental rights such as the right to life in Art. 2 of the Charter do not apply to legal persons, the overriding value, the added value of the term “person” lies in respecting and protecting ecological persons in addition to human beings.

Moreover, there is no apparent reason why legal persons – or in future artificial intelligence – should be comprehensively protected under fundamental rights, but not ecological persons. Ultimately, this only creates an “equality of arms”.

The guarantee of human dignity in Art. 1 of the Charter does not preclude the recognition of the rights of nature; on the contrary, it requires this step. The recognition of nature’s own rights helps to ensure that people can continue to lead a free and self-determined life in dignity in the future.

Furthermore, the fact that Art. 2 and other Charter rights are borrowed from the ECHR and that this Convention – to date – does not recognize any inherent rights of nature does not stand in the way of the above. Art. 52 para. 3 sentence 2 of the EU Charter expressly allows European Union law to grant more extensive protection than the ECHR.

Finally, Art. 53 of the Charter requires comparative law to be taken into account in its interpretation. In numerous legal systems, particularly in the Global South, but also in the USA and New Zealand, the rights of nature are recognized and enforced under constitutional law, legislation or by judges. The European legal system is not immune to this increasing global trend.

Against this background, it seems justified from the point of view of legal doctrine to give nature’s own rights the force of law in Europe too. The example of Colombian or Peruvian courts can be followed here, which – even without relevant legislation – have derived such rights from an overall view of their legal systems.

Suggested citation:
Regional Court Erfurt, 8th Civil Chamber, judgment of 2 August 2024, file number 8 O 1373/21, ECLI:DE:LGERFUR:2024:0802.8O1373.21.00.

Last updated:
29 August 2024.

Categories
2024 Children and young people Domestic court Emissions reductions/mitigation Paris Agreement Right to a healthy environment Right to life Right to property Right to pursue happiness Uncategorized

Min-A Park v. South Korea

Summary:
In July 2023, a fourth constitutional mitigation case was filed before the South Korean Constitutional Court. This case was consolidated with three previously-filed climate cases, representing a total of 255 plaintiffs, and the Constitutional Court issued its ruling in all four cases on 29 August 2024. This joint ruling was reported as a landmark judgment and as the first finding of its kind in Asia (i.e. the first time that a court in the region found that inadequate mitigation action violates constitutional rights).

In the present case, 51 individuals argued that their constitutional rights were being inadequately safeguarded by the failure to create an adequate implementation plana for South Korea’s 2030 Nationally Determined Contribution under the Paris Agreement (NDC). This makes this case somewhat different from the other three, in the sense that it does not contest the country’s 40% reduction target (by 2030) itself, but argues that domestic measures will not be enough to meet that target. The plaintiffs estimated that current steps envisioned under South Korea’s Carbon Neutrality Plan would achieve only a 29.6% emissions reduction.

As per the complaint document (available, in the original Korean, on ClimateCaseChart), the plaintiffs invoked their rights to life, to pursue happiness, to general freedom, to property and to a healthy environment along with the State’s obligation to protect against disasters and protect fundamental rights.

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

Consolidation with three other cases:
The South Korean Constitutional Court decided to consolidate its first four climate cases (Do-Hyun Kim et al. v. South Korea, Woodpecker et al. v. South Korea (Baby Climate Litigation), Climate Crisis Emergency Action v. South Korea (a.k.a. Byung-In Kim et al. v. South Korea) and Min-A Park v. South Korea (the present case). Public hearings in the cases were held on 23 April 2024 and 21 May 2024.

These cases all alleged that the government’s inadequate greenhouse gas reduction targets violated citizens’ fundamental rights, particularly those of future generations. Together, the four cases comprised over 250 plaintiffs, including civil society, youth and children. The Constitutional Court issued a joint ruling in these cases on 29 August 2024.

Judgment of the constitutional court:
On 29 August 2024, the South Korean Constitutional Court found a violation of constitutional rights in this case and three related cases. In an unanimous ruling, hailed as “the first decision of its kind in Asia“, the court found that the government’s response to the climate crisis was inadequate and threatened constitutional rights, noting that the country lacked legally binding long-term emissions reductions targets for the post-2031 period, which violated the constitutional rights of future generations by shifting an excessive reductions burden to the future. The Court gave government and legislature 18 months (until 28 February 2026) to introduce the relevant targets.

In particular, the Court ruled that Article 8(1) of the South Korean Carbon Neutrality Basic Act was unconstitutional. Previously, the government had pledged a 40% reduction of its GHG emissions by 2030 compared to 2018 levels, but had failed to set any targets since. The Constitutional Court held that this “does not have the minimum character necessary as a protective measure corresponding to the dangerous situation of the climate crisis”, citing the “principle of non-underprotection”, which means that the State must take appropriate measures to effectively protect the constitutional rights of its citizens.

Simultaneously, the Court held that the government’s target for 2030 did not infringe constitutional rights.

See also:
Do-Hyun Kim et al. v. South Korea.

Last updated:
29 August 2024.

Categories
2024 Emissions reductions/mitigation European Court of Human Rights France Private and family life Right to life Standing/admissibility Victim status

Carême v. France

Summary:
On 7 June 2022, the European Court of Human Rights announced the relinquishment of an application against France concerning the municipality of Grande-Synthe to the Court’s Grand Chamber. The applicant in this case, in his capacity as mayor of the municipality of Grande-Synthe, was originally involved in the Grande-Synthe case, but the Conseil d’État held on 19 November 2020 that, unlike the municipality itself, Mr Carême could not prove that he had an interest in bringing proceedings.

This was the second climate case to reach the Court’s Grand Chamber, after the Klimaseniorinnen application. The case was lodged on 28 January 2021, and the Grand Chamber held a public hearing in this case on 29 March 2023, making it the second climate case to be heard by the Court (after KlimaSeniorinnen).

Before the Court, the applicant argued that France’s insufficient climate change mitigation measures violated his rights to life (Article 2 ECHR) and to respect for private and family life (Article 8 ECHR). The Court summarized the applicant’s complaint as follows:

The applicant submits that the failure of the authorities to take all appropriate measures to enable France to comply with the maximum levels of greenhouse gas emissions that it has set itself constitutes a violation of the obligation to guarantee the right to life, enshrined in Article 2 of the Convention, and to guarantee the “right to a normal private and family life”, under Article 8 of the Convention. In particular, the applicant argues that Article 2 imposes an obligation on States to take the necessary measures to protect the lives of persons under their jurisdiction, including in relation to environmental hazards that might cause harm to life. Under Article 8 he argues that by dismissing his action on the grounds that he had no interest in bringing proceedings, the Conseil d’État disregarded his “right to a normal private and family life”. He submits that he is directly affected by the Government’s failure to take sufficient steps in the combat against climate change, since this failure increases the risk that his home might be affected in the years to come, and in any event by 2030, and that it is already affecting the conditions in which he occupies his property, in particular by not allowing him to plan his life peacefully there. He adds that the extent of the risks to his home will depend in particular on the results obtained by the French Government in the prevention of climate change.

The Court’s press release on this case can be found here.

Date of decision:
It was announced on 26 March 2024 that the Grand Chamber would issue its judgment in this case, along with the two other climate cases pending before the Grand Chamber, in a hearing on 9 April 2024 at 10:30 a.m. The judgment and a summary were made available on the Court’s HUDOC database immediately after the hearing.

The Court’s findings on the admissibility:
From the summary prepared by Viktoriya Gurash on the day of the Grand Chamber decision in this case.

Today, on 9 April 2024, the European Court of Human Rights issued a Grand Chamber decision in this case, unanimously declaring the applicant’s complaints under Articles 2 and 8 of the European Convention on Human Rights inadmissible ratione personae.

The Court, first, noted that its assessment of Mr Carême’s victim status as a physical person in the climate context will be based on the criteria set out in Verein KlimaSeniorinnen Schweiz and Others v Switzerland, decided on the same day, which includes that: the applicant must be subject to a high intensity of exposure to the adverse effects of climate change; and there must be a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm (para 487 of KlimaSeniorinnen). The Court emphasised that the threshold for fulfilling these criteria is especially high in view of the exclusion of actio popularis cases under the Convention (para 488 of KlimaSeniorinnen).

Using this framework, in Carême, the ECtHR first assessed the reasons adduced by the domestic courts, specifically the Conseil d’État, when rejecting Mr Carême’s standing. Before the national authorities, the applicant argued that the house in which he resided at the time was located close to the coastline and that according to some predictions it would be flooded by 2040, taking into account the effects of climate change. The Conseil d’État found that the area of the municipality of Grande-Synthe was at a very high level of exposure to high risks of flooding and severe drought with the effect not only of a reduction and degradation of water resources, but also significant damage to built-up areas, given the geological characteristics of the soil. However, the Conseil d’État ruled that Mr Carême did not have an interest in bringing proceedings on the basis of the mere fact that his current residence was located in an area likely to be subject to flooding by 2040. The ECtHR adhered to this argument, reasoning that the risk relating to climate change affecting the applicant is of hypothetical nature.

The crucial factor leading to the Court’s decision as regards the applicant’s victim status is that he no longer has any relevant links with Grande-Synthe because he no longer resides in France, nor does he own or rent any property in Grande-Synthe. The Court noted that in his initial application the applicant indicated an address in Grande-Synthe, although at that time he no longer resided in that municipality but in Brussels. In view of this, the Court found moot Mr Carême’s argument that his residence in Grande-Synthe was at a future risk of flooding and that the current situation prevented him from envisaging himself serenely in his home.

The Court held that the applicant had no right to lodge a complaint under Article 34 of the Convention on behalf of the municipality of Grande-Synthe because, in view of the ECtHR’s settled case law, decentralised authorities that exercise public functions are considered to be ‘governmental organisations’ that have no standing. In addition, the Court highlighted that the interests of the residents of Grande-Synthe have, in any event, been defended by their municipality before the Conseil d’État in accordance with national law.

Furthermore, as regards the applicant’s claim that he had developed allergic asthma making him particularly sensitive to air pollution caused by climate change, the Court found that since this issue was not raised in the initial application, it constitutes a new and distinct complaint and falls outside the scope of this case.

Further reading:

  • For a comment on this case, see Marta Torre-Schaub’s post on Verfassungsblog.
  • For the judgment, click here.
  • For the Court’s Q&A on the three climate cases, click here.

Webcast of the hearing:
To watch a webcast recording of the public hearing in this case, which was held before the Grand Chamber of the European Court of Human Rights on 29 March 2023, click here (available in French and English).

Suggested citation:
ECtHR, Carême v. France, no. 7189/21, decision (Grand Chamber) of 9 April 2024

Last updated:
9 April 2024

Categories
2023 Children and young people Children's rights/best interests Human dignity Inter-American Human Rights System Peru Right to a healthy environment Right to health Right to life

Inhabitants of La Oroya v Peru

Summary:

The Inter-American Court of Human Rights (IACtHR) ruled on 27 November 2023 that Peru is accountable for violating various rights of residents living near the La Oroya Metallurgical Complex (CMLO), established in 1992 in La Oroya. The CMLO, dedicated to smelting and refining metals such as lead, copper, zinc, and arsenic, caused severe environmental pollution, contaminating air, water, and soil, and adversely affecting residents’ health and well-being. Consequently, the Court mandated Peru to conduct an environmental contamination analysis, provide free medical care to affected individuals, and adjust pollutant standards, marking a significant victory for the plaintiffs after enduring years of pollution and inadequate governmental response.

Claim:

The residents of La Oroya brought claims against Peru, asserting that the government’s failure to regulate and address the environmental contamination from the smelting complex violated their fundamental human rights, including the right to a healthy environment, health, and life. They presented evidence of the adverse health effects experienced due to exposure to toxic pollutants emitted by the complex.

Decision:

On 27 November 2023, the IACtHR declared Peru responsible for multiple human rights violations affecting the inhabitants of La Oroya. These violations are rooted in the contamination of the air, water, and soil caused by mining-metallurgical activities in the CMLO. The State’s failure to regulate and supervise these activities exacerbated the situation, leading to violations of the rights to a healthy environment, health, life, and personal integrity of the victims. Furthermore, the Court found that the State failed to fulfil its obligation of progressive development concerning the right to a healthy environment by regressing air quality standards.

The Court also determined that the State neglected children’s rights by not implementing adequate protection measures, considering the disproportionate impact of contamination on the children of La Oroya. It emphasized the critical connection between safeguarding children and addressing the climate crisis, noting that mining and industrial activities, particularly those involving fossil fuels, are significant contributors to greenhouse gas emissions, posing risks to public health and exacerbating climate change. It further acknowledged the vulnerability of children to the impacts of climate change and the long-term consequences they face, as underscored by the United Nations Committee on the Rights of the Child in the Sacchi case. Consequently, the Court asserted that states have a duty to protect children and must take decisive action to mitigate health risks from pollutant emissions that exacerbate climate change crisis.

Moreover, the Court concluded that the State violated the right to public participation and adequate information provision to the victims regarding measures affecting their rights. Additionally, it found the State in violation of the right to judicial protection by failing to comply with a decision of the Constitutional Court for the protection of La Oroya’s inhabitants, which was delivered in 2006.

Finally, the Court held the State accountable for not investigating reported acts of harassment, threats, and reprisals against some victims. Based on these findings, the Court determined that the State of Peru violated several articles of the American Convention on Human Rights, specifically articles 26, 5, 4.1, 8.1, 13, 19, 23, and 25, in relation to articles 1.1 and 2 of the same instrument

Peru was ordered to conduct a comprehensive study assessing contamination in air, water, and soil in La Oroya and to develop an environmental remediation plan accordingly. Furthermore, Peru was ordered to provide free medical care to victims and compensate them individually with amounts ranging between $15,000 and $30,000. This decision emphasizes states’ obligation to safeguard the right to a healthy environment and hold them accountable for environmental harm threatening their citizens’ well-being.

Environmental protection as jus cogens:

In para. 129 of its ruling, the Court made a novel finding: it held that the obligation to protect the environment should be a jus cogens norm. The paragraph in question is translated here in full:

“States have recognised the right to a healthy environment, which carries with it an obligation of protection that is incumbent on the international community as a whole. It is difficult to imagine international obligations of greater significance than those that protect the environment against unlawful or arbitrary conduct that causes serious, extensive, long-lasting and irreversible damage to the environment in a scenario of climate crisis that threatens the survival of species. In view of the above, international protection of the environment requires progressive recognition of the prohibition of this type of conduct as a peremptory norm (jus cogens) that gains the recognition of the international community as a whole as a norm from which no derogation is permitted. This Court has pointed out the importance of the legal expressions of the International Community whose higher universal value is indispensable to guarantee essential or fundamental values. In this sense, guaranteeing the interest of both present and future generations and the preservation of the environment against its radical degradation is fundamental for the survival of humanity.” (para. 129 of the judgment, translated by climaterightsdatabase.com, references removed).

Links:

The case documents are accessible below for download:

Court-statement-about-the-rulingDownload
Full-text-of-the-rulingDownload
Official-summary-of-the-rulingDownload

Status of the case:

Decided.

Further reading:

For further information and analysis of the case, see among others:

  • José Saldaña, ‘People from La Oroya vs Peru, Inter-American Court of Human Rights: How Effective is International Law to Protect the Environment in Extractive Contexts?’, EJIL:Talk Blog, 11 April 2024, available here.
  • Patricio Trincado Vera, ‘The Right to a Healthy Environment in La Oroya v. Peru: A Landmark Judgement of the IACtHR’, OpinioJuris Blog, 25 May 2024, available here.

Suggested citation:

Inhabitants of La Oroya v Peru (Preliminary Exceptions, Merits, Reparations and Costs), Judgment of November 27, 2023, Inter-Am Ct HR, Series C No 511.

Last updated:

25 March 2024.

Categories
2021 Domestic court Ecuador Gender / women-led Paris Agreement Right to a healthy environment Right to health Right to subsistence/food Right to water Rights of nature

Herrera Carrion et al. v Ministry of the Environment et al. (“Caso Mecheros”)

Summary:

The Caso Mecheros ruling, issued by the Provincial Court of Justice of Sucumbíos in 2021, revolved around nine girls from the provinces of Sucumbíos and Orellana who lodged a constitutional injunction against the Ecuadorian government. In their lawsuit, the applicants asserted that the practice of gas flaring violated their rights to water, health, food sovereignty, and a healthy, ecologically balanced environment. The flares are open-air pipes that burn and expel natural gas at an average temperature of 400 degrees Celsius. The pollution resulting from gas flaring was alleged to have severe impacts on the environment, human health, biodiversity, and climate change. The plaintiffs sought the annulment of gas flaring authorizations, immediate removal of flaring towers, and a prohibition on new oil-related flares in the Amazon region.

Claim:

The plaintiffs argued that the common practice of gas flaring by the Ecuadorian state violated their rights to water, health, food sovereignty, and a healthy, ecologically balanced environment. They asserted that the state’s actions contributed to environmental damage, health issues, biodiversity loss, and climate change. Their specific requests included the annulment of gas flaring authorisations, immediate removal of existing flaring towers, and a prohibition on new oil-related flares in the Amazon region.

Decision:

Initially, on 7 May 2020, the request was denied by the court of first instance. According to Judge María Custodia Toapanta Guanoquiza, there were no studies confirming the impact of gas flaring on the health of people in the area. However, on 29 July 2021, the Provincial Court of Justice of Sucumbíos ruled in favour of the plaintiffs’ appeal, asserting that the Ecuadorian State failed to uphold the girls’ rights to reside in a healthy environment. The ruling highlights the disregard for various international environmental commitments made by Ecuador, notably its Nationally Determined Contributions presented during the COP 21 to the United Nations Framework Convention on Climate Change. As part of its decision, the Court has mandated an updated plan for the gradual elimination of gas flares, with a priority on removing those in close proximity to populated areas within 18 months. Additionally, it stipulated the complete removal of all gas flares by December 2030. The decision also permits new authorisations for clean technologies, provided they are situated away from populated centres.

This landmark decision not only establishes a legal precedent but is also hailed as a historic triumph. It draws a crucial connection between the repercussions of gas flaring and the violation of fundamental rights enshrined in the constitution. The ruling underscores the adverse health effects associated with gas flaring and has the potential to influence public policies in other nations grappling with similar environmental challenges.

Links:

The case documents are accessible for download below (in the original Spanish).

rulingDownload
Decision-court-of-first-instanceDownload

Status of the case:

Decided.

Suggested citation:

Herrera Carrion et al. v. Ministry of the Environment et al. (Caso Mecheros), Provincial Court of Justice, Juicio No: 21201202000170 (Jul. 29, 2021) (Ecuador).

Last updated:

12 January 2024.

Categories
2020 Climate activists and human rights defenders Domestic court Fossil fuel extraction Mexico Right to a healthy environment Right to health Separation of powers

Mexican Center for Environmental Law v Mexico

Summary:
This case revolves around the 2020 amendments to Mexico’s General Law on Climate Change, specifically the termination of the Climate Change Fund established in 2012. The fund’s purpose was to attract and direct resources, both national and international, towards climate change initiatives. The Mexican Center for Environmental Law (CEMDA) filed a petition seeking legal protection to annul this aspect of the reform, arguing that it was regressive in safeguarding the human right to a healthy environment and exacerbated transparency issues. The initial court ruling dismissed the request, stating that the reform did not impede any rights but rather reallocated resources to the Federal Expenditure Budget. CEMDA appealed to a Collegiate Tribunal, which, recognising the case’s significance, referred it to the Mexican Supreme Court. On 12 April 2023, the Supreme Court maintained that judges should not assess the suitability of public policies, emphasising that climate change strategy falls under the executive and legislative branches’ jurisdiction. The Court upheld the prior decision, rejecting CEMDA’s claim.

Claim:
The contention in this case asserts that eliminating the Climate Change Fund through the 2020 amendments to Mexico’s General Law on Climate Change infringes the constitutional right to a healthy environment. CEMDA contends that this modification impedes the effective addressing of climate change by dismantling a dedicated fund intended to attract public and private resources for climate-related actions. In addition, CEMDA maintains that the reform gives the government discretionary power to utilise these same resources to support fossil fuels, potentially putting Mexico’s international commitments to environmental preservation at risk. Thus, the fundamental issue at hand is whether the elimination of the Climate Change Fund breaches the constitutional right to a healthy environment.

Decision:
On 12 April 2023, the Mexican Supreme Court ruled that the elimination of the Climate Change Fund does not violate the constitutional right to a healthy environment. The Court held that it is not within the jurisdiction of judges to evaluate the suitability of public policies; such decisions fall under the purview of the executive and legislative branches. The Court emphasised that the modification of the strategy to combat climate change, including the dissolution of the Climate Change Fund, is a matter of public policy, and legislators have the freedom to determine appropriate mechanisms. The Supreme Court concluded that CEMDA’s arguments failed to demonstrate the unconstitutionality of the reform. Moreover, the Court found no evidence that the resources formerly allocated to the Climate Change Fund, post-modification, would not be used correctly, transparently, and equitably. Consequently, the lower court’s decision was upheld, and CEMDA’s claim was rejected.

Links:
The case documents are accessible via Climate Case Chart: Click here

Status of the case:
Decided.

Suggested citation:
Mexican Center for Environmental Law (CEMDA) v Mexico [2020] Amparo No 1200/2020, decided 12 April 2023.

Last updated:
12 December 2023.

Categories
2022 Austria Disability and health-related inequality Domestic court Non-discrimination Private and family life Right to health Right to life Rights at stake

In Re Tax Benefits for Aviation

Summary:
The applicant, a consumer utilising both rail and air services, applied for relief, citing a diagnosis of multiple sclerosis and health issues exacerbated by the climate crisis. She argued that existing Austrian tax laws favouring aviation over rail travel contributed to environmental problems and violated her constitutional rights, including the right to equality before the law, the right to life, and the right to private and family life. Specifically, the applicant contended that tax benefits for aviation companies created an unjustified disparity in treatment between equivalent means of transport, negatively impacting consumers who choose rail travel.

Claim:
The applicant claimed that the tax advantages granted to aviation companies, in contrast to railway companies, violated her fundamental rights. These rights included the right to equality before the law, with the applicant asserting that the tax benefits led to unequal treatment of equivalent means of transport in direct competition. Additionally, she argued a violation of her right to life, contending that climate change, exacerbated by tax benefits to aviation, posed a threat to human life, and that the state failed in its positive obligation to adopt measures to prevent such threats. The applicant also alleged a violation of her right to private and family life, asserting that the state’s encouragement of climate-damaging behavior through tax benefits violated its positive obligations to protect health, well-being, and bodily integrity from environmental hazards.

Decision:
On 27 June 2023, the Constitutional Court of Austria dismissed the application as inadmissible. The court cited the amendment to the Value-Added Tax Act as of 1 January 2023, which extended value-added tax (VAT) exemptions from aviation and maritime shipping to cross-border rail transport. The court determined that the contested provision was no longer in force, leading to a lack of standing for the applicants. Additionally, the court held that the obligation to pay VAT was directed at businesses, excluding consumers from challenging relevant provisions. The same rationale applied to the mineral oil tax, as it was not payable by consumers, and they were deemed not affected in their legal sphere, thus lacking the entitlement to challenge tax provisions.

Link:
The case document is accessible below.

20230627_19868_decisionDownload

Status of the case:
Decided.

Suggested citation:
In Re Tax Benefits for Aviation [2022] G 106-107/2022-10, V 140/2022-10 (Constitutional Court of Austria).

Last updated:
12 December 2023.

Categories
2022 Children's rights/best interests Climate activists and human rights defenders Domestic court Mexico Right to a healthy environment Right to health Right to water Standing/admissibility

Youth v. Government of Mexico

Summary:

On 5 December 2019, the plaintiffs filed for protection against several authorities and acts. Notably, they claimed that the President of the Republic, the Head of the Ministry of Environment and Natural Resources, the Inter-Ministerial Commission on Climate Change, and other authorities had failed to issue regulations and policies regarding climate change which they were required to by national law. The plaintiffs claim that the failure to issue such regulations and policies had violated their constitutionally protected rights. They invoke, among other rights, the right to health protection, the right to a healthy environment, the right to water and the rights of children.

In a decision by the District Court in Administrative Matters in Mexico City, on 20 May 2022, the case was dismissed on the basis that the plaintiffs lacked a legitimate interest, as required to claim the alleged legislative omissions. The court argued that the plaintiffs could not prove a link between themselves and the environmental services of the allegedly violated ecosystem, as required by Mexican law.

The Collegiate Court in Administrative Matters in Mexico City, the appeals court, overruled this decision on 21 September 2022. It stated that the plaintiffs do have a legitimate interest because the legislative omissions affect the entire national territory and the applicants intend to counteract climate change and prevent its effects. Hence, a special link to ecosystems or the environment is not required because, as long as the plaintiffs reside in the national territory, such a link is established.

The case was forwarded to the Supreme Court of Mexico, where it is currently pending, to clarify the issue of the alleged human rights violations.

Stauts of Case:

The Supreme Court decision is pending

Suggested case citation:

Collegiate Court in Administrative Matters of Mexico City, Youth v. Government of Mexico, Judgment of 21 September 2022, R.A. 317/2022.

Case documents:

complaint_20191205_ESDownload
district_court_decision_20220520_ESDownload
appeals_court_decision_20220921_ESDownload

Date last updated:

29 November 2023

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 (Bonaire)

Summary:
On 28 January 2026, the Commerce team of the Hague District Court issued a judgment in a case brought by Greenpeace and seven residents of the Caribbean island of Bonaire against the Dutch government. In examining the case, which concerned both alleged mitigation and adaptation failures, the Court found several violations of the human rights guaranteed in the European Convention on Human Rights (ECHR). In particular, and extensively discussing the European Court of Human Rights’ (ECtHR) KlimaSeniorinnen judgment of 9 April 2024, the Court found that the Dutch State had failed to fulfil its positive obligations towards the inhabitants of Bonaire under Article 8 ECHR, because the authorities’ mitigation and adaptation measures taken as a whole in relation to them did not meet the Netherlands’ obligations under the international climate regime (the UNFCCC and the Paris Agreement, discussing also the Kyoto Protocol). Additionally, given that the Dutch State took mitigation and adaptation measures for the inhabitants of Bonaire much later and less systematically than for the inhabitants of the European Netherlands, it found violations of the ECHR’s non-discrimination norms.

Background to the case:
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. The letter claimed 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 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. Given the lack of successful negotiations, the plaintiffs initiated proceedings under the Dutch Act on Redress of Mass Damages in Collective Action (WAMCA, alternatively translated as the Settling of Large-scale Losses or Damage (Class Actions) Act), which restructured the Dutch legal system’s approach to mass litigation and collective redress since coming into force in 2020.

Admissibility:
On 25 September 2024, Greenpeace announced that a court in the Hague had ruled that its action on behalf of the public interest of the people of Bonaire was admissible. A hearing was set to follow in 2025.

Judgment of 28 January 2026:
The District Court of Hague (Court) found that individuals residing in Bonaire were owed positive obligations arising from the application of Article 8 of the ECHR in the context of climate-related risks as identified in the judgment in Verein KlimaSeniorinnen et al. v. Switzerland. It further found that the non-discrimination norms found in Article 14 of the ECHR and Article 1 of Protocol 12 to the ECHR were applicable to the case in light of the difference in treatment of the residents of Bonaire arising out of the lack of a climate adaptation applicable to Bonaire, when in contrast, a coherent and integrated climate adaptation policy was being implemented for the European Netherlands since 2016.

In its reasoning, it assessed the Netherlands’ and the EU’s climate mitigation laws as falling short of the minimum requirements of ambition and stringency, which it derived from decisions of the Conference of Parties (COP) to the UNFCCC read with provisions of the UNFCCC and the Paris Agreement. It negatively appraised the Netherlands’ reliance on a ‘grandfathering’ approach, which it found to be ‘controversial’ although not prohibited. These shortcomings informed its negative ‘overall assessment’ of the Netherlands’ climate mitigation framework for compliance with Article 8 of the ECHR, as interpreted by the European Court of Human Rights in the Verein KlimaSeniorinnen judgment. Next, regarding the positive obligation to effectively implement climate mitigation measures, it held that the State’s admission that the 2030 emissions reduction was ‘highly unlikely’ to be met as a decisive factor in determining a breach of that obligation.

Regarding adaptation measures, the Court found that although initial steps have been taken (for instance, the setting up of a local project for the development of an adaptation plan) the fact that no concrete timeline for the implementation of adaptation measures exists despite the known climate risks (especially that of partial submergence significant parts of land territory by 2050), and that the State has carried out insufficient scientific research and committed no financial resources for certain adaptation-related policies in Bonaire were assessed negatively. On this basis the Court concluded that the State had breached its positive obligation to sufficiently and in a timely manner, take appropriate adaptation measures in Bonaire. Finally, it found that the State did not fulfil its obligations to provide relevant environmental information to the residents of Bonaire and allow for their participation in climate-related decision making at least until 2023.

The Court found that the State did not provide an adequate justification of the unequal treatment of Bonaire as it related to its inclusion within the Netherland’s overall climate adaptation policy and the commitment of resources for the implementation of adaptation measures. It thus found that the State had breached its obligation of non-discrimination under Article 14 of the ECHR and Article 1 of Protocol 12 to the ECHR.

Order:
Based on the above, the Court partially allowed the plaintiffs’ claim for specific performance against the state and ordered the State to ensure incorporate ‘absolute’ emissions reduction targets compatible with the minimum requirements arising out of COP decisions and the Paris Agreement into its national climate legislation and provide insight into Netherlands’ ‘remaining emission allowance’; to draft and implement an appropriate national adaptation plan that also includes Bonaire; and pay legal costs to the plaintiffs. It rejected the plaintiffs’ requests that the Court order the State to adopt specific emissions reduction targets, and a binding national carbon budget determined in accordance with its fair share of the global carbon budget for 1.5˚C.

In doing so, it held that the State has considerable policy-making discretion in choosing its measures to comply with its international obligations under the UN climate treaties, meaning that the Court ordered the State to take effective measures to fulfil its UN obligations in a timely manner, without issuing any concrete orders as to the measures to be taken, deferring to the other branches of government and the separation of powers in this regard (trias politica).

Further reading:

English translation of the judgment of 28 January 2025:

ECLI_NL_RBDHA_2026_1347Download

Judgment of 28 January 2025 (Dutch):

ECLI_NL_RBDHA_2026_1344Download

Pre-litigation letter of 11 May 2023:

pre-litigation-letter-BonaireDownload

Suggested citation:
The Hague District Court, Greenpeace Netherlands v. State of the Netherlands (Bonaire), Judgment of 28 January 2026, ECLI:NL:RBDHA:2026:1347.

Date last updated:
29 January 2026.

Categories
2021 Climate-induced displacement Domestic court Human dignity Italy Non-refoulement Right to life

I.L. v. Italian Ministry of the Interior and Attorney General at the Court of Appeal of Ancona

Summary:

In the case of I.L. v. Italian Ministry of the Interior and the Attorney General at the Court of Appeal of Ancona, decided on 24 February 2021 by the Supreme Court of Cassation in Italy, a significant precedent was established in humanitarian asylum cases. The decision mandated that Italian trial judges should collectively assess situations of environmental, social, or climate degradation when evaluating eligibility for humanitarian protection, in addition to considering situations of armed conflict. The case involved a Nigerian citizen, I.L., who sought refuge in Italy, primarily due to armed paramilitary conflict in the Niger Delta region that was being exacerbated by environmental degradation, particularly numerous oil spills.

Claim:

The applicant claimed that the lower courts committed a prejudicial error by not taking into account the environmental disaster situation in the Niger Delta as a basis for humanitarian protection. He argued that the trial judge’s decision violated Legislative Decree No. 286/1998, known as the Consolidated Immigration Act, by failing to extend humanitarian protection based on the environmental disaster in his home region. The central issue at hand was to ascertain whether individuals facing a real threat to their right to life in their country of origin, due to adverse social, environmental, and climate circumstances rather than armed conflict, should be granted humanitarian protection.

Decision:

The Supreme Court of Cassation accepted the applicant’s appeal and remanded the case back to the Court of Ancona. The Court found that the applicant’s two grounds for appeal were well-founded. It recognized the existence of severe environmental instability in the Niger Delta, resulting from indiscriminate exploitation by oil companies and ethnic-political conflicts. The trial judge’s failure to consider the environmental context and widespread insecurity when assessing humanitarian protection eligibility was seen as an error.

The Court’s decision drew on international legal precedent, including the Teitiota decision from the United Nations Human Rights Committee, which recognized that environmental degradation could hinder the right to life when a state is unable or unwilling to ensure ‘access to essential natural resources, such as arable land and drinking water’. The Court’s key findings and instructions are as follows:

  1. When assessing humanitarian protection, the evaluation of widespread dangerous conditions in the applicant’s country of origin should consider specific risks to the right to life and dignified existence arising from environmental degradation, climate change, or unsustainable development of the area.
  2. Danger to an individual’s life can depend on socio-environmental conditions, not solely armed conflict. Such socio-environmental factors include human action that seriously jeopardizes an individual’s survival and that of their relatives.
  3. Trial judges are instructed to establish an ‘essential level’ below which decent living conditions are not present and the fundamental right to life is not ensured. The judge must then verify the effective assurance of this minimum threshold, which should encompass both armed conflict and other circumstances that pose a serious risk to the individual and their family’s survival, such as social, environmental, or climatic degradation or unsustainable exploitation of natural resources.
  4. The Court determined that if the situation in the country of origin does not allow for a minimum guarantee of the right to life, humanitarian protection should be granted. Importantly, this assessment now includes environmental and climatic factors influencing an individual’s decision to leave their home.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Status of the case:

Judgment of the Supreme Court of Cassation – Second Civil Section 

Suggested citation:

I.L. v. Italian Ministry of the Interior and Attorney General at the Court of Appeal of Ancona, Supreme Court of Cassation, N. 5022/2021, 24 February 2021.

Last updated:

03 November 2023.