The Right to a Healthy Environment and Climate Litigation: A Game Changer?

Unofficial AI-generated summary based on the public title and abstract. Not an official translation.

🔬研究者:人権ベース気候訴訟の傾向と判決類型を初めて体系的に示した実証研究として、今後の訴訟研究の土台になる。

🏢実務担当者:海外の気候訴訟で環境権が援用されるリスクを理解し、開示・リスク管理に役立てられる。

🏛政策担当者:環境権の明示的承認が司法を通じた気候政策形成に与える影響を評価する材料になる。

In October 2021, the United Nations (UN) Human Rights Council adopted a resolution recognizing ‘the right to a clean, healthy and sustainable environment’ as a ‘human right that is important for the enjoyment of human rights.’1 In July 2022, the UN General Assembly (UNGA) also adopted a resolution recognizing the same right (hereinafter referred to as a ‘right to a healthy environment’).2 While formally not legally binding, these resolutions are the culmination of a lengthy diplomatic process, following three decades of debate on the comparative utility of the explicit recognition of the right to a healthy environment vis-à-vis the so-called ‘greening’ of existing human rights.3 To be sure, well before the adoption of these resolutions, the right to a healthy environment had already been enshrined, with various phraseologies, in the law of more than 150 states as well as in some human rights treaties4 and treaties focusing on so-called procedural environmental rights.5 At the time of writing, the Council of Europe is also considering the adoption of an additional protocol to the 1950 European Convention on Human Rights6 to anchor the right to a healthy environment in the European human rights system.7 The matter of the explicit recognition of the right to a healthy environment has gained international prominence with the creation of a UN special rapporteur (UNSR) on human rights and the environment.8 Over the last decade, two mandate holders—John Knox and David Boyd—have studied the obligations associated with the right to a healthy environment and identified good practices.9 Their reports suggest that the right to a healthy environment contributes to the improved implementation and enforcement of environmental laws.10 They furthermore suggest that, when applied by the judiciary, this right helps to provide a safety net to protect against gaps in laws and creates opportunities for better access to justice. They conclude that, were the Universal Declaration of Human Rights to be drafted today, it would certainly include the right to a healthy environment.11 At this momentous time of renewed interest over the explicit recognition of the right to a healthy environment, this article examines the evidence emerging from the use of this right in climate change litigation. The aim is to assess whether climate litigation corroborates or disproves the UNSRs’ findings concerning the use of the right to a healthy environment in litigation. We therefore look at climate litigation as a case study to ascertain the extent to which the right to a healthy environment contributes to improved implementation and enforcement of climate laws, protects against gaps in climate laws, and creates opportunities for better access to justice for climate litigants. First, we define the parameters of our case study, explaining how we selected the data we analysed, positioning our inquiry into the rapidly growing body of literature on human rights and climate change. Second, we provide a bird’s eye perspective on rights-based climate litigation and on the use of the right to a healthy environment in this litigation. We identify the cases where this right has been invoked, by whom, where and when, and with what outcomes. We then take a closer look at how courts have interpreted and applied the right to a healthy environment in the climate judgments that have been issued to date. We conclude by drawing some general inferences on whether the right to a healthy environment has furthered the chances of success of climate litigants and on whether the recognition of this right is a significant determining factor in the outcome of climate litigation. The preamble of the Paris Agreement recognizes the interplay between climate change and human rights law, saying that parties ‘should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights.’12 Similarly, international human rights bodies and UN special mandate holders have also acknowledged the complex relationship between climate change and human rights law.13 Since 2009, the Human Rights Council (HRC) has adopted a series of resolutions on human rights and climate change.14 These resolutions emphasize the relevance of human rights obligations to climate change law and policy and the need to systemically interpret states’ obligations and corporate responsibilities in this connection, both at the national and international levels.15 In 2022, these developments culminated with the appointment of a UNSR on the promotion and protection of human rights in the context of climate change. This new rapporteur is tasked, amongst other things, ‘to promote and exchange views on lessons learned and best practices on human rights-based approaches … to climate change adaptation and mitigation.’16 As we have already argued elsewhere,17 these activities may be viewed as part of a process, whereby UN human rights bodies and special mandate holders seek to engender systemic integration in the interpretation of state obligations on human rights and climate change. This process is increasingly evident also in climate litigation. The term ‘climate litigation’ is commonly used as a shorthand to describe lawsuits filed before international or domestic judicial or quasi-judicial bodies, raising questions of law or fact regarding climate science, climate change mitigation, or adaptation.18 This litigation increasingly relies on human rights, in whole or in part, and has attracted considerable scholarly attention in recent years.19 This literature, however, does not consider in detail the specific role played by the right to a healthy environment in climate litigation. This article bridges this gap in knowledge by providing the first study of climate change litigation that relies, in whole or in part, on the right to a healthy environment. We built on extant literature to identify the rights-based climate lawsuits that specifically invoke this right. Specifically, we relied on the global study of rights-based climate change litigation carried out by Annalisa Savaresi and Joana Setzer.20 These authors estimate that, by 31 May 2021, 112 out of the 1,841 climate litigation cases reported in the world’s most established climate litigation databases,21 relied in whole or in part on human rights.22 Savaresi and Setzer analysed these 112 rights-based climate lawsuits with the aid of well-established categories in climate litigation literature. They identified who has brought these lawsuits, against whom and where, and the human rights most frequently invoked.23 Savaresi and Setzer conclude that, by far and large, climate lawsuits presently rely on substantive human rights obligations to demand the adoption of legislation on climate change mitigation or the reform of said legislation. They also predict that future rights-based climate litigation is likely to focus more on climate change adaptation and to rely also on procedural rights.24 We looked at the 112 right-based climate cases analysed by Savaresi and Setzer and identified forty-two climate cases that invoke the right to a healthy environment (listed in Annex 1). We considered who has brought these cases, against whom and where, and compared trends in these forty-two cases vis-à-vis the trends in rights-based climate litigation identified by Savaresi and Setzer. The objective of this exercise was to understand if there are any significant differences between trends in rights-based cases that invoke the right to a healthy environment and those that do not. Then, we considered only the climate cases that have been decided, analysing the way in which the courts approached arguments based on the right to a healthy environment. We developed a typology of cases, distinguishing between the different ways in which the courts treat this right in their decisions. The objective of this exercise was to ascertain whether and how courts rely on the right to a healthy environment in the decision of climate lawsuits. Sections 3 and 4 of the article summarize the results of these exercises. Savaresi and Setzer’s study reveals that, so far, right-based climate lawsuits preponderantly target states and only rarely non-state actors, such as corporations.25 Most of these cases list human rights arguments amongst other legal grounds in support of the applicants’ demand for greater state and corporate efforts to reduce greenhouse gas emissions—so-called climate change mitigation.26 Comparatively few rights-based cases concern climate change The of rights-based climate cases were filed the adoption of the Paris Agreement in in the global Europe with only a few cases out of before international judicial or At the time when Savaresi and Setzer most right-based cases lawsuits the right to a healthy environment with the trends with some These lawsuits also preponderantly target states out of forty-two and focus on climate change mitigation out of forty-two were filed with national judicial or quasi-judicial bodies, as to international or lawsuits the right to a healthy environment to be in the global with the in 1). This of cases the right to a healthy environment to the findings of David study, which that and courts in the global are more likely to rely on the right to a healthy of climate cases the of right-based climate litigation is as most cases at the time of Savaresi and we considered only the of cases and as those where the applicants’ have been in whole or in part, of whether this decision was on the of human We then compared the outcome of cases the right to a healthy environment with the outcome of those rights-based cases that do not. the rights-based climate cases that have been to were were there are human rights-based climate cases In to cases the right to a healthy environment, only of have been at the domestic were and were data therefore to suggest that the success the right to a healthy environment is This success to and t

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