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CC is increasingly seen as a Human Rights (“HR”) issue because many of its effects potentially violate HR. These may include rights to life, health, food, water, housing and a clean environment and other. Greenpeace has issued in December 2018 a comprehensive practical People’s Guide for communities who wish to use Human Rights in legal actions to hold governments to account for inadequate actin on Climate Change.
Legal claims about CC may rely on HR, either on their own or together with other claims.
Example: In 2018 in Urgenda the Dutch Court of Appeal ordered the Dutch Government to make greater emissions cuts. The court recognised Urgenda’s claim under Article 2 of the ECHR, which protects a right to life, and Article 8 of the ECHR, which protects the right to private life, family life, home, and correspondence. The court determined that the Dutch government has an obligation under the ECHR to protect these rights from the real threat of climate change.
Example: in 2018 the Supreme Court of Colombia the Supreme Court recognised that the “fundamental rights of life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem.” It further recognized the Colombian Amazon as a “subject of rights” The Supreme Court declared that the Colombian Amazon was threatened by CC and accordingly was entitled to protection, conservation, maintenance, and restoration. The Court ordered the government to formulate and implement action plans to address deforestation in the Amazon”
Although such arguments can be powerful and effective, caution is needed. Three limitations on the use of claims based on HR are that
Also it is often possible to rely on similar which are not called HR as such but which arise under the constitution or fundamental laws of a country. The constitutions of many countries give a right to a clean environment
Four recent cases give examples of how HR and constitutional rights may be used in this way
HR include all sorts of different “rights” of different legal effects. In each case it is necessary to see what if any legal effect they have. Just because they are in some sense international law or rights, it does not mean that they apply automatically. In some states they automatically become part of the law, but in others they do not.
Some example are mentioned below. Specialist advice may be needed to decide which might apply. Note that many of the older contentions do not address the environment as such, as it is seen as a relatively modern issue. However often other HR are directly relevant to climate change issues
Here [to be completed] is a table which lists the various HR relevant to CC and cross references them to HR sources
The effects of CC are many and thus may violate many different HR. The most important ones are
A Table of which Rights may be found in which International or Regional Conventions is here [to be done]
HR can only be used directly in a legal claim if they are recognised as enforceable in the court of Tribunal in which the case is brought. This is a complex subject. Even if a HR is contained in a treaty or declaration it may not be enforceable. In summary you may be able to rely on a right it
Example: The UN Committee on Economic Social and Cultural rights recommended in 2018 that Argentina should review fossil fuel exploitation, because of its ICESCR and Paris Agreement obligations
Sometimes it is easier to look at national law as awe as or instead of international or regional human rights, and in particular on a right to a clean and healthy environment. Many countries have this sort of provision, especially if the constitution is a modern one.
Example: In India in Re Court v State of Himachal Pradesh the court invoked the constitutional rights to a clean environment]
Example: In October 2018 German Organic farmers brought proceedings against the German Government for violating their constitutional rights to life, health, property and occupational freedom
HR are human rights. But just because you are human it does not mean that you can enforce them. And you may be able to enforce them even if you are not human
Example: In April 2018 the Colombian Supreme Court recognised the Rights of the Amazon basis, as well as the people’s rights to life, health, food, water and a healthy environment. It ordered two ministries to make plans to reduce emissions by preventing deforestation.
TIP: If bring a HR claim give careful thought to who the claimants are. If possible include a diverse selection of people (or CSOs) representing people affected by CC but in different ways
HR can usually be enforced on against governments or public bodies. So if the actions of a corporation infringe your rights there is unlikely to be a direct right of action against it BUT. In some countries HR can be enforced directly against “non-state actors” such a corporations
Although the scope of the obligation on the state to observe HR varies from place to place and depending on the right, it often has three components. These are
Example: The Philippines Human Rights Commission is hearing a petition concerning the effect of emissions from major fossil fuel producer (Carbon Majors) on climate change and the resulting damage. The Carbon Majors are not being sued, but the petition calls for a recognition of the HR impacts of their activities
If you take legal action it needs to be in a court or other “tribunal”. It is important to ensure that you choose an appropriate “forum” (the technical word for where you bring a claim) or the claim will be dismissed
Usually the right place to start is a court in the place where you live. Local advice will be needed on which is the right court.
Sometimes claims can be brought before international or regional courts. Examples are
Look at the Greenpeace People’s Guide and especially Sections 4 and 5. This will tell you all you need to know or where to get help to find it
Here are three practical tips to help you decide if you might be able to bring a HR based claim, and, if so, to bring it
(1) Get help.
(2) Research. Here is a checklist of things to consider to see if you might have a claim [ to complete].
(3) Use what others have done. Every case is unique. But lots of them have common factors on things such as climate change science, the effects of climate change and the types of HR that may be infringed by CC. You can often copy and paste quite a lot of material from claims documents in other cases as long as you check carefully to see that it is up to date and that it applies to your case or can be edited to apply to your case. Below are links to word templates of various claim documents which you might be able to use