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Human Rights and Constitutional Rights

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

  • The HR relied upon needs generally to be applicable and enforceable in the place action is brought. Many International HR documents and declarations do not have this effect, However even HR which are not of legal effect may give guidance to the court
  • In many places HR can only be relied upon against governments and state bodies
  • HR are rarely absolute and unqualified. A right to health is not breached just because someone gets ill, or if a government cuts spending on healthcare. States have a wide discretion or “margin of appreciation” to balance rights with costs, and other social, political and economic factors. So in 2018 the English court refused to allow HR Acts because the Government was not acting contrary to English law and had “wide discretion to assess the advantages and disadvantages of any particular course of action, not only domestically but as part of an evolving international discussion.”

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

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Claims under HR principles generally

Four recent cases give examples of how HR and constitutional rights may be used in this way

  • In KlimaSeniorinnen v. Switzerland in 2016 the Petitioners were a group of older women, a group vulnerable to CC, who relied on Articles 2 (right to life) and 8 (right to family life) of the European Convention on Human Rights (ECHR) as well as provisions of the Swiss Constitution to demand more ambitious targets for emissions reductions (this claim was rejected in late 2018)
  • In 2017 in response to a petition from Colombia the Inter-American Court of Human Rights rendered an Advisory Opinion finding that the right to a healthy environment is a human right. The opinion noted that the adverse effects of environmental degradation and climate change both affect human rights. The opinion further discussed the responsibility of governments for significant environmental damage that they cause within and beyond their borders.
  • Similar rulings have been giving recently by courts in Norway and Ireland.
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HR - what are they and where do they come from ?

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

 

For example

  • International Conventions, such as the United Nations Declaration on Human Rights (UNDHR), International Convention on Civil and Political (ICCPR), International Convention on Economic Social and Cultural Rights (ICESCR), as well as related conventions such as Convention on Elimination of Discrimination against Women (CEDAW), Convention on Rights of the Child (CRC) and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)
  • Regional Treaties such as the Inter-American Convention on HR (IACHR), the African Convention, the European Convention on Human Rights (ECHR)
  • National Legislation
  • Declarations of UN Bodies or Rapporteurs
    • The UN Guiding Principles on Business and Human Rights (the Ruggie prnciples) are potentially important.
    • Maastricht Principles on Extra Territorial Obligations of States are also important
    • In March 2018 the UN Special Rapporteur on Human Rights and the Environment issued a report calling for the UN to recognise the human right to a safe environment
    • In October 2018 the UN Human Rights committee adopted General Comment 36 on Article 6 of the ICCPR, the Right to Life emphasising the importance of threats from CC and environmental degradation to the right to life

 

Here [to be completed]  is a table which lists the various HR relevant to CC and cross references them to HR sources

 

 

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The HR most relevant to CC

The effects of CC are many and thus may violate many different HR. The most important ones are

  • The Right to Life
  • The Right to a Clean and Healthy Environment, which may overlap with the Right to respect for Private and Family Life (this is because under the EHCR there is no specific right to a clean environment and so this other right has been used and interpreted to extend to some environmental matters)
  • The Right to Health
  • Rights to Food and Water
  • The Right to Property and Housing
  • The Right to Work and Livelihood
  • Rights of Indigenous Peoples
  • Right to Self-Determination
  • Right to Equality, including in groups of people (for example Older People, Children/Younger People, Women) who may be particularly affected by CC
  • Rights of Future Generations

 

A Table of which Rights may be found in which International or Regional Conventions is here [to be done]

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HR as the basis of a legal claim

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

  • The country recognises and enforces directly HR in treaties or instruments which it has signed up to or ratified
  • The HR is enacted in national law or included in the national constitution
  • The law of the country states that International HR are relevant in interpreting national laws (for example as in South Africa)
  • The country has signed protocols allowing complaints to UN treaty bodies such as committees.

 

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

 

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Claims under national Constitutional Rights to a clean and healthy environment

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

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Who can take action in HR claims ?

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

  • Different countries have different systems but often people can only complain of HR violations if these affect them more than they affect the population generally.
  • This may for example be
    • Old people or young people or women
    • People working in a job particularly affecting by CC such as fishing or farming
    • People living on land affected by floods from sea/rivers/glacial lakes or sea level rise or drought or
    • Indigenous people
  • Even corporations and other types of non human legal bodies like NGOs/CSOs wildlife trusts, conservation organizations and similar “bodies” may have “human” rights
  • Some countries recognise the rights of the environment itself or “Mother Nature”

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

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Against whom can HR claims be brought

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

  • A “negative” obligation to respect HR and not to violate them right (eg, for the right to life, by a state sponsored killing)
  • A “positive” duty protect HR by  taking  reasonable steps (eg to protect life by appropriate action or passing necessary laws outlawing killing)
  • A duty to fulfil HR by for example conducting proper investigations into breaches and to providing an effective remedy for breaches

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

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Where can HR claims be brought ?

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

  • Regional courts like the Inter-American Court, the African Court or the European Court of Human Rights
  • The International Court of Justice, but only states may bring claims there. It is not a court of Human Rights but recently its rulings have increasingly involved HR issues
  • Specific HR commissions and tribunals
  • Even if a formal legal claim cannot be submitted, a complaint or reference may be made to international (UN) or national HR councils or committees

 

 

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Bringing a claim - Practical tips and guidance

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.

  • A community group can be very resourceful and do many of the things that need to be done (see  tip 2 below) through its members and their contacts
  • It is though difficult for community groups to bring a claim without at least some assistance from lawyers.[Here – to be completed]   is a table of people that may be able to help or point you to someone who can

 

(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

 

 

 

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