Week of 15 November 2021
Rights-based climate litigation on the rise
Our key takeaway: Advocates have found a new foothold to advance climate litigation by grounding complaints in human rights law. While the trend is still in nascent stages, it is gaining enough momentum for companies to sit up and take note of the emerging legal landscape that is linking their human rights responsibilities with environmental ones.
In a paper for Chatham House, ‘Climate Change and Human Rights-Based Strategic Litigation’, authors Kumaravadivel Guruparan and Harriet Moynihan examine trends towards linking human rights with climate change in lawsuits against both companies and governments:
- A “‘rights turn’ in climate change litigation in the last few years”: According to the report, climate litigation grounded in human rights does not yet make up a large proportion of cases (“of 1,841 climate change cases that are ongoing or concluded, human rights arguments have been used in 1126 – 93 against governments and 16 against corporations”). That said, there is a distinct and observable “‘rights turn’ in climate change litigation in the last few years, galvanized by the success of a small number of prominent cases such as The State of the Netherlands vs the Urgenda Foundation.” (See a brief summary of this case and similar ones in our previous update). The Climate Litigation Accelerator estimates that more than 90% of climate cases are argued on human rights grounds, and the authors of the paper believe this trend is set to continue.
- Expect an uptick in lawsuits against companies, driven by the emergence of new human rights due diligence laws: The soft law of the UN Guiding Principles on Business and Human Rights is being increasingly “concretized into binding legal obligations through domestic legislation mandating human rights due diligence by companies.” Campaigners are increasingly drawing on existing jurisprudence around the human rights responsibilities of corporations, while also leveraging emerging human rights and environmental due diligence regulations to provide a new basis for climate lawsuits against companies. A potential template is the landmark 2021 finding of the Hague District Court in Milieudefensie et al. vs Royal Dutch Shell PLC; the court used both Dutch tort law and international human rights law to declare Shell responsible for the human rights impacts of its annual CO₂ emissions globally. (For a summary of the reverberations of this judgment on company directors beyond Dutch borders, read our previous update).
- Global South countries are likely to become the main stage for human rights-based climate lawsuits: The authors point out that the countries “that have led the way in socioeconomic jurisprudence are likely to be particularly fertile jurisdictions for human rights-based climate cases in future.” They attribute this trend to the fact that Global South legal systems general have “more scope to base claims on constitutional rights in general, or on socioeconomic rights, and to apply for a broader range of remedies.” Some rights-based climate cases in Colombia, India, Pakistan, the Philippines and South Africa have drawn on jurisprudence around the protection of socioeconomic rights like housing, health, food and work, while other cases have looked to legal decisions linking the human rights and environmental rights of indigenous peoples (especially in Latin America). What’s more, the paper indicates that in Global South jurisdictions there may be more—and better monitored—types of remedies available to plaintiffs. While many of the cases have been against governments and not against corporations, it seems probable that as human rights-based climate cases pick up steam there will be a new surge of lawsuits against companies operating in these contexts.
For more, see Kumaravadivel Guruparan and Harriet Moynihan, Chatham House, Climate Change and Human Rights-Based Strategic Litigation (November 2021)