Network Members Exchange on Access to International Justice for Climate-Related Human Rights
On September 27, 2022, ESCR-Net’s Environment and ESCR Networkwide Project and Strategic Litigation Working Group co- hosted an online discussion on climate and human rights litigation: Ensuring access to international justice for climate-related human rights violations. Members from across regions, convened virtually to learn from each other’s experiences and strengthen shared analysis.
The exchange contained three main presentations. First, Laura Duarte from European Center for Constitutional and Human Rights (ECCHR) presented on corporate liability for climate-related loss and damage. Loss and damage from climate change relates to those impacts that cannot be avoided through adaptation and mitigation activities. ECCHR is currently representing Indonesian islanders in a suit against the Swiss cement company Holcim for sea level rise and high tide in relation to the corporation’s activities in the island. Holcim is the leading manufacturer of cement, producing seven billion tons of CO2 from 1951 to 2021, and belongs to the 50 biggest emitters of CO2 in the world. The suit argues that Holcim has acted unlawfully by actively interfering with Plaintiffs’ fundamental rights through greenhouse gas emissions and should be held accountable for damages.
Laura situated the case within the broader international trend of rising climate change litigation focusing on loss and damage, partially attributable to the minimal progress on loss and damage achieved within the UN climate regime, where global north countries have consistently blocked meaningful action.
Laura also highlighted the importance of attribution science within loss and damage litigation. Attribution science refers to the study of how much human-induced climate change is affecting the likelihood and severity of extreme weather events. This is essential in delegitimizing bad actors’ arguments that climate change is unrelated to their actions in a particular state or region. As noted, the biggest challenge in attribution science is separating anthropogenic climate change from other sources of the harm experienced. In the Asmania v. Holcim case, technological advances have allowed scientists to find out how much of the damage in the Pari Islands has been caused by anthropogenic climate change.
Next, Alfred Brownell, Founding Director of the Global Climate Legal Defense Network and Tom & Andi Bernstein Visiting Human Rights Fellow at Yale University, addressed the obligations of African governments to respond to the climate crisis, as Africa is one of the most impacted regions in the world. Beyond the historical responsibility that is borne by Western governments, fossil fuel corporations and International Financial Institutions, Alfred highlighted the importance of ensuring African governments hold the line on climate change and are accountable for their human rights duties. For instance, he emphasized how all forms of harassment against human rights defenders in the African region must end. Additionally, he insisted that African governments must create clear guidelines on how to deal with the climate crisis in the region, given the influx of foreign investment into Africa and the push for more fossil fuel extraction and mining in the region.
Alfred concluded his presentation by introducing an initiative by a group of African public interest lawyers who are currently working on a petition before the African Court on Humans and People’s Rights, seeking an advisory opinion that addresses the human rights obligations of African governments to respond to the climate crisis. Responding to member interventions on this topic, Alfred reiterated the importance of calling on those historically responsible for the climate crisis to pay their fair share. To support these efforts, the international human rights community must organize itself and support creative ideas, such as: (1) supporting current efforts to request an advisory opinion from the International Court of Justice to clarify the obligations of States under international law to protect the rights of present and future generations against the adverse effects of climate change; and (2) creating a solid environmental human rights legal framework.
Finally, Daniel Cerqueira from Due Process of Law Foundation (DPLF) shared insights into the work of the Inter-American Commission on Human Rights and of the Inter-American Court of Human Rights (IACt-HR) on issues related to climate change. He noted two important decisions. First, the 2020 case Lhaka Honhat v. Argentina, which has been the Court’s sole finding of a violation of the right to a healthy environment. Specifically, the court’s decision helped define the scope of the right to a healthy environment as applied specifically to Indigenous Peoples’ rights. Second, he elaborated on the 2017 advisory opinion (OC23/17), which incorporated interpretative parameters of International Environmental Law to the Inter-American System, such as the principles of prevention and precaution.
Daniel also addressed common challenges in climate-change litigation within the Inter-American system. First, he focused on the requirement of singling out the alleged victims, a standing requirement for the admission of complaints. He noted that unlike other groups, Indigenous peoples and communities have a collective standing with regards to territorial rights. He addressed certain procedural challenges, such as the IACt-HR’s jurisdiction in cases related to extraterritorial obligations, exhaustion of domestic remedies, and characterization of a colorable claim for attribution of environmental damages to a defendant state. A colorable claim refers to the statement of facts with the potential to entail the state’s responsibility in the merits stage of the proceedings. In view of the procedural and merits challenges of cases involving the omission to mitigate climate change, he asserted that those claims based on adaptation measures could have a better prospect for international adjudication.
With regards to the Inter-American Commission, Daniel highlighted the Commission’s recent resolution on climate emergency and state’s human rights obligations, ranging from topics such as the inter-cultural rights to a healthy environment, the impact of climate change on Amazonian Indigenous peoples’, extraterritorial obligations and reparations for climate damages. He concluded that the resolution incorporates several standards developed by the UN human rights system and political organs, but it leaves several questions unanswered, such as the procedural requirements of complaints alleging the states’ obligation to mitigate and ensure the adaption of individuals and groups affected by climate change.
Participants engaged in a rich discussion with the speakers following their presentation, capped off by the reminder that fighting for justice is a multi-faceted approach, and litigation is but one strategy within the larger toolbox to achieve structural change.