Are There Alternatives to Going to National Courts?

Regional human rights courts and commissions can enforce regional human rights treaties when available domestic mechanisms (courts or other) have failed to protect your human rights.

• Individual complaints to regional human rights bodies are like bringing human rights or constitutional claims before national courts (they are legal complaints).
• This means that the guidance provided on issues of law, evidence and procedure in the previous sections is relevant to these complaints.

(a) When Could a Complaint to a Regional Human Rights Court or Commission Be Right for Me?

Bringing a claim to a regional or international court could be helpful in the following cases:

• You have tried and failed to bring a public claim in national courts (up to the highest level);
• The national courts in your country are ineffective;
• The judgment from a national court hasn’t been enforced or followed by the government; or
• You want to take a case against another country’s government.

(b) When Could I Bring a Complaint to a Regional Human Rights Court or Commission?

You may have the option of bringing an “individual complaint” (i.e. a case) to a regional or international human rights body if:

(i) Your Case Is Being Brought Against the Government

For this reason, complaints to regional human rights courts or commissions are most relevant to mitigation claims, adaptation claims or challenges to government licensed projects.

(ii) Your Case Is Based on Human Rights Law

These complaints are only relevant to claims where you are arguing that a human right that is protected in the relevant international human rights treaty has been violated. For this reason, it’s important you check what rights are protected in the relevant treaty.

(iii) Your Country Has Signed and Ratified a Regional Human Rights Treaty which Gives a Regional Human Rights Court or Commission Jurisdiction to Hear Human Rights Complaints regarding Your Country

For example:

• If in Europe, you could go to the European Court of Human Rights which enforces the European Convention on Human Rights;
• If in Africa, you could go to the African Commission on Human and Peoples’ Rights or the African Court of Human and Peoples’ Rights to enforce your rights under the African Charter on Human and Peoples’ Rights.
• If in West Africa, you could enforce the same rights before the ECOWAS Community Court of Justice.

These bodies can launch investigations into your case, facilitate negotiations between you and the government, declare that your government has violated your human rights, and order the government to give you a remedy and change its laws or policies.

Example: Climate Litigation Before the Inter-American Court of Human Rights

In 2017, the IACtHR handed down an advisory opinion on the environment and human rights. The advisory opinion made it clear that:

• The right to a healthy environment is an enforceable right;
• States have obligations to prevent significant environmental damage that impacts human rights;
• These obligations could apply to climate change.

This advisory opinion could pave the way for climate change-related claims to be brought before the IACtHR.

(iv) Your Claim Is Considered Admissible by the Regional Human Rights Court or Commission

For your claim to be admissible, you generally have to show:

• That you are a “victim” of your government’s actions or omissions (i.e. that your health has been negatively impacted by their actions or omissions). This is similar to proving “standing” in national courts.
• That you have evidence to back up your claim.
• That you have first tried to bring your claim before national courts – this is often referred to as the “exhaustion of local remedies”
  • The exception to this rule is the ECOWAS Community Court of Justice.

There are a number of ways UN human rights bodies can be used as ways to advocate for climate justice. Sometimes these can be instead of going to court or they can be used to support litigation.

• None of these processes are legally binding, but they can put pressure on your government to act on climate change.

(a) Individual Complaints to UN Human Rights Treaty Bodies

There may be the possibility to enforce your state’s human rights obligations through individual complaints before UN human rights treaty bodies.

While these aren’t courts, they have individual complaints mechanisms which hear individual complaints like a court.

Example: Sacchi and others v Argentina, Brazil, France, Germany and Turkey

A group of children and youth have brought a mitigation claim to the Committee on the Rights of the Child. They argue that, as children, they are particularly vulnerable to the short and long-term impacts of climate change.

By not taking adequate action to reduce their GHG emissions, they are arguing that several governments are violating their rights to life, health and cultural life, as well as not acting in the best interests of the child.

To access these bodies, your country must:

(i) Be a party to the relevant international human rights treaty

AND

(ii) Have accepted the competence of the treaty body to receive complaints against the state; this may be in the optional protocol to the treaty

Key Resource: OHCHR Website

Here you can find information on:

• What countries have signed and ratified different human rights treaties
• The different treaty bodies that exist
• Guides for how to submit a complaint
• Past cases and examples

(b) Submitting Shadow Reports to UN Treaty Bodies and other UN Human Rights Bodies

UN Treaty Bodies have a role in monitoring the human rights compliance of countries under UN human rights treaties.

As part of this role, UN Treaty Bodies issue concluding observations every few years about each country’s human rights record.

• Concluding observations are general assessments of countries’ compliance with specific UN human rights treaties. They identify failings and achievements of countries and make recommendations on how to improve their human rights record.

 The concluding observations are based on:

• The country’s own reporting of its human rights record;
• Shadow reports of civil society organisations; and
• Questioning of countries by the UN Treaty Body.

Following targeted interventions by organisations, a number of UN Treaty Bodies have adopted concluding observations that have recommended countries to take mitigation measures and adaptation measures to combat climate change.

Example: UN Committee on Economic, Social and Cultural Rights Concluding Observations for Norway

In its 2020 concluding observations, CESCR expressed its concern regarding Norway’s licensing of oil/gas exploration in the Arctic and Barents Sea because of their impact on global warming. The CESCR recommended that the government reconsiders its licensing decision and make human rights the primary consideration of its natural resource exploitation and export policies.

While this is not legally binding, it is supportive of the case being brought by Greenpeace Nordic and Nature and Youth which is challenging the government’s decision to issue oil exploration licenses in the Arctic on the basis of the constitutional right to a healthy environment.

 If your country is due to report to a relevant UN Treaty Body and want to put climate change on the agenda, the resources below can help.

Key Resource: CIEL’s Guides on Leveraging UN Human Rights Treaty Bodies for Climate Campaigning

1. Background Note: Opportunities Offered by the Reporting Procedure of UN Human Rights Treaty Bodies: This briefing note provides a short overview of the reporting procedure of UN Treaty Bodies and describes the different stages of the process and opportunities for civil society to provide input.

2. Guidance Note: Preparation of a Parallel Report to a UN Human Rights Treaty Body on the Topic of Climate Change and Human Rights: This provides guidance on the drafting of a parallel report to UN Treaty Bodies to influence their review of the State’s compliance with its treaty obligations. It explains how to identify the key climate issues for the relevant State and to highlight the linkages between national climate (in)action and the State’s human rights obligations.

A similar process also exists at the UN Human Rights Council regarding its Universal Periodic Review process. Find out more information here.

(c) Complaints to UN Special Rapporteurs

UN Special Rapporteurs are independent experts which focus on specific human rights issues. As part of their mandate, they can receive complaints from individuals.

• This is not a legal process and the outcome is not binding on countries but can be used to put pressure on your country to take more climate action.

Example: Complaint to UN Special Rapporteurs re Climate-Forced Displacement of Indigenous Peoples

In 2020, 5 coastal Native American tribes submitted a complaint to several UN Special Rapporteurs claiming that the US government had violated its human rights obligations by failing to address climate displacement.

Submitting complaints to non-judicial corporate accountability and regulatory mechanisms can be an alternative way to hold corporations accountable for their contributions to climate change.

More information on corporate accountability mechanisms can be found in the Action4Justice Business and Human Rights Guide. There are pages dedicated to:

• Internal corporate grievance mechanisms: While these will generally not be effective for fossil fuel companies, as you are challenging the core of their business activities, it could be effective for investors.
• International Corporate Accountability Mechanisms: There are a variety of industry specific and general complaints procedures which can be used to hold corporations accountable for human rights abuses.

Example: Dutch NGOs vs. ING Bank
In 2017, Dutch NGOs filed a complaint against ING Bank at the Dutch OECD National Contact Point for failing to sufficiently commit to the targets set in the Paris Climate Agreement.

In its final statement, the Dutch NCP concluded that the OECD Guidelines for Multinational Enterprises demand that ING Bank sets concrete climate goals e.g. refraining from financing new coal-fired power plants

Example: Market Forces v SMBC

The complaints allege that Japanese banks financing Vietnamese coal projects are in breach of OECD guidelines because they failed to provide environmental and social impact assessments and consequently failed to urge project sponsors to assess and prevent or minimize environmental damage

Often infrastructure or development projects, which are said to contribute to excessive emissions, are financed by International Financial Institutions (“IFIs”) such as the World Bank.

These have their own codes of practice for assessing projects for sustainability, environmental and climate change implications, and if the relevant principles have not been observed, a complaint may be made with the object of getting the IFI to withdraw funding or for appropriate changes to be made to the project

Example:  The World Bank Grievance Redress Service
This allows communities affected by a World Bank funded project to complain if it has affected or will affect them.

In October 2017 the Philippine Movement for Climate Justice filed a complaint to the IFC’s independent accountability mechanism, the Compliance Advisor Ombudsman (CAO), accusing it of contributing to the crisis of global climate change by financing coal plants. The allegation was that the recipients of finance failed to meet the IFC’s social and environmental performance standards. These mandate social and environmental impact assessments for certain projects.  The complaint letter is here. In October 2019 the CAO decided to investigate the complaint.

Most IFIs including the African Development Bank (AfDB), Asian Development Bank (DB) and Inter-American Development Bank (IDB) have performance standards of this type.

NHRIs are independent institutions which have responsibility for the protection, monitoring and promotion of human rights in a country.

Key Resources:

For more details on such organisations, please see the Asia-Pacific Forum’s Fact Sheet on NHRIs.

A list of the names of the NHRIs in different countries can be found on the OHCHR website.

NHRIs do not make legally binding judgments like a court but can launch inquiries into human rights issues. The publicity from NHRI complaints and inquiries can raise awareness and put pressure on governments and corporations to change their actions.

Example: Philippines Commission on Human Rights and Carbon Majors Investigation 

The Climate Change and Human Rights Inquiry in the Philippines is the world’s first investigation into corporate responsibility for the climate crisis. It was launched by the Philippines Commission on Human Rights (CHR) after typhoon survivors and civil society groups filed a petition asking the Commission to investigate the relationship between human rights, climate change and the responsibilities of Carbon Majors. They called for a probe into the possible human rights violations of the 47 biggest fossil fuel and cement companies resulting from climate change.

The CHR’s national inquiry has clearly shown that people affected by climate change and whose human rights have been dramatically harmed must have access to remedies, as well as access to justice. It was found that Carbon Majors and other corporations have responsibilities to protect human rights in the face of the climate emergency. 

The outcome of this landmark inquiry will be released in 2020. You can consult a list of their resources and evidence used here.

Some NHRIs can hear individual complaints. Although NHRI complaints do not lead directly to binding judgements, in some countries the NHRI can then refer or take the case to a court for determination which may then result in an enforceable order for remedy.

Going to court or “litigation” is only one way of seeking climate justice. Another vital tool is campaigning.

A campaign is a co-ordinated range of activities dedicated to achieving a common goal. An effective campaign can:

• Put pressure on businesses to change their operations and be more environmentally responsible by harming their reputation in the eyes of the public;
• Put pressure on government to do more to prevent climate change; and
• Give a voice to communities to speak out the impact climate change is having on them.

Campaigning doesn’t have to be done instead of bringing a legal claim. A strategic campaign can support and raise awareness about a legal case. For example, a campaign could:

• Get the attention of organisations and lawyers that could help you take legal action; and
• Get people to pay attention to climate change; and
• Get people to pay attention or fund the legal case you are bringing.

Key Resource: A People’s Guide on Holding Your Government Accountable for Climate Change

Greenpeace International, a partner of A4J, has created an excellent guide on how to bring a human rights-based climate change case against the government. The guide also goes into detail on how to develop a  campaign strategy to complement a climate case.

One type of campaign that can be effective in getting corporations to change their policies on climate change is shareholder actions. These are campaigns driven by shareholders within fossil fuel companies, investors, banks and insurers which pressure corporations to act on climate change.

Example: Climate Change Resolution at Barclays’ Banks Upcoming AGM

Over 140 investors are tabled a resolution at a Barclays Bank’s AGM  asking Barclays to phase out fossil fuel financing.

For more information, see Campaigns.