A New Way Forward: Human Rights and Climate Policy

On November 30, the European Court of Human Rights (ECHR) announced that a climate change case arguing that Portugal’s current climate regulations that endangers the welfare of children could proceed with priority status. The lawsuit comes in response to wildfires that killed 120 people over the summer. Very few similar cases make it this far, signaling another milestone in climate change litigation. The fact that climate change actions are moving from the streets to the courts signals that more effective climate legislation is occurring. Moreover, these legislations have also begun to adopt a new dimension: using human rights to increase the significance of claims. The increase in human rights related cases signals that a much more powerful, and varied avenue is now available through which the passing and enforcement of much needed climate change legislation can be promoted.

According to the July 2020 report “Global Trends in Climate Change Litigation” published by researchers working in conjunction with Columbia University, over the past 26 years, only 33 percent of climate lawsuits outside the US were unsuccessful. However, the report also cautions against overemphasizing the success of these cases, stating that even with favorable outcomes, “litigants still have to focus on effective implementation of the decision and... the avoidance of legislative [or other kinds of] backlash.” Many previous lawsuits have targeted oil companies and other corporations responsible for large emissions of greenhouse gas, but because most attempt to sue for environmental damages, they haven’t been all that successful in actually changing environmental policies. If litigation by itself is largely an inadequate means to tackle climate change, what’s the purpose behind this rise in legal cases?

Since the momentous signing of the Paris Agreement, every country in the world has enacted at least one climate policy or law. Nonetheless, as the agreement constitutes nothing more than a pledge, many countries have failed to implement the changes they promised, without any real culpability. Many officials in different countries around the globe have implied that they intend to abide by their Paris Agreement goals, but these quotas for lowering emissions, regulating businesses, or creating a carbon tax, have either been delayed, or in the case of the U.S., completely rejected by its exit from the deal. Environmental laws are often useful when enforced, and as the Paris Agreement demonstrates, pressure or promises by one country to another don’t serve as effective enforcement. As such, climate activists must adopt a legal avenue of pressuring governments to properly monitor their energy and private sectors, while properly penalizing violations of climate laws.

Moreover, climate change lawsuits, in recent years, have developed in a novel, and important direction—they are taking on a human rights dimension. This approach is new but unsurprising. The UN Human Rights Committee has made a clear statement linking climate change to human rights: “without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights.” Climate change has far-reaching consequences on societies that are already being experienced today: rising sea levels, extreme weather events like wildfires and heat waves that are occurring more frequently and with greater severity, among many others. Climate change will, in fact, soon become a humanitarian crisis as coastal areas, which on average boast much higher population densities, get flooded over the next few decades, displacing countless people. This crisis also threatens food supply as crop yields decrease, and as existing ecosystems face collapse, vector-borne diseases such as the Zika virus may spread to more regions of the world, threatening public health on a global scale. All of these negative effects can cause social instability, and even incite warfare. By failing to address the source of climate change itself through legal action, a country would be liable to negligence in fostering the violation of the physical and mental wellbeing of people living today. Evidently, activism with a focus on the humanitarian impacts of climate change is not only essential, but entirely logical.

Most importantly, the negligence of governments and industries directly violates the basic rights to various aspects of the lives of future generations. Just like it is immoral to exploit children for labor, it is immoral to destroy the planet and its resources that rightfully belong to the youth of today, and by focusing on this aspect through proper legal measures, plaintiffs can highlight inaction by corporations and governments as completely indefensible. This shift in mindset has attracted increasing support among mainstream human rights movements, who point out yet another facet of climate change: it disproportionately affects coastal, lower income, and marginalized communities. We’ve already seen the impact of social equity concerns on countries and corporations; unprecedented pressure to mitigate climate change could also result from similar motivations, and companies who refuse to act should run the risk of damaging their public image, and diplomatic repercussions in regards to irresponsible countries. In the landmark Urgenda case, the Supreme Court of the Netherlands ruled that the Dutch government must reduce its greenhouse gas emissions more aggressively to protect the rights of Dutch citizens. Many cases used similar arguments based on human rights violations in countries, such as the Philippines, Australia, and Germany; it is not a coincidence that landmark legislation pledging for carbon-neutrality by either 2025 or 2050 have followed in most of the developed nations in which such cases and arguments have been raised. Evidently, framing climate change as not only a matter of injustice, but injustice towards youth and minorities in particular, makes ignoring its risks, especially in urbanized, coastal regions, an increasingly unviable attitude politically. As a consequence, climate legislation has now become the part of mainstream political platforms in most countries with large coastal cities.

There is now a general consensus among the scientific community that climate change is an existential threat to the health and happiness of future generations, and therefore, inaction or insufficient measures are not a matter of economics or politics, but of basic human decency. We must emphasize this fact, and act upon it through legal means. Climate litigation will inevitably become more prevalent in the future, and will act as a powerful tool to speed up climate-related reforms. Given that climate change impacts on our fundamental rights to housing, food, health, and more, it is an issue that transcends all geopolitical boundaries of the world. It will not be a surprise if we see more climate-related litigation around the globe to aid in our fight against climate change in coming years, but rather, a relief.

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