Increased Scrutiny of Climate Crisis Emerging before International Courts

The urgency of the climate crisis is reaching courts all around the world, including international tribunals, and ESCR-Net members are deeply engaged.

Climate litigation is pending or soon expected in all three regional human rights systems, in addition to the International Court of Justice (ICJ). In each of these fronts, different members have taken a lead: from third party interventions in cases before the European Court of Human Rights (ECtHR), to developing a submission to inform the forthcoming advisory opinion of the Inter-American Court of Human Rights (IACtHR), to formulating a request for an advisory opinion from the African Court on Human and Peoples’ Rights (ACtHPR), to United Nations (UN) advocacy in support of the adoption of the the resolution requesting an ICJ advisory opinion.

A collective of members in Latin America and beyond– via ESCR-Net’s Strategic Litigation and Environment and ESCR Working Groups– are working on a submission to support Chile and Colombia’s advisory opinion request at the Inter-American Court of Human Rights. The two countries’ request focuses on several aspects of the “climate emergency and human rights” and emphasizes the need for regional standards to accelerate action to confront climate change. It seeks to identify and concretize what, if any, obligations states have under the American Convention of Human Rights to confront the climate emergency. The request is unique in terms of its encompassing breadth, categorizing questions under six broad themes we summarize here: (1) state obligations derived from preventing and guaranteeing human rights to confront the climate crisis; (2) state obligation to preserve the right to life & access to information vis-à-vis the climate emergency; (3) obligations of the states, under principles of intergenerational equity, to protect the rights of children and future generations from climate change; (4) scope of judicial and administrative procedural obligations; (5) protection of environmental and human rights defenders; and (6) cooperation between states to confront climate change in the region.

The ICJ advisory opinion request was proposed by Vanuatu, along with 130 other State signatories, asking the ICJ to clarify state legal obligations regarding the climate emergency. On 29 March 2023, the UN General Assembly (UNGA) adopted the Resolution requesting the advisory opinion of the ICJ. In the resolution, the UNGA called the climate crisis “an unprecedented challenge of civilizational proportions”.  The UNGA resolution asks two main questions. First, it inquires “what are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?” Second, it asks “what are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (a) States including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?; and (b) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?” Several members have promoted this effort, including the Center for International Environmental Law (CIEL).

A third advisory request opinion is on the horizon being elaborated by a collective of public interest African human rights and environmental lawyers, climate activists, indigenous peoples, frontline communities and advocates, headed by ESCR-Net member Alfred Lahai Gbabai Brownell Sr. The request seeks to ask the African Court to render an opinion on the human rights obligations of all fifty four (54) African States to respond to the climate crisis. As noted by Alfred, Africa is not only the least emitter of the greenhouse gasses but is also the most vulnerable continent that is witnessing an upswing in massive new fossil fuel investments, tipping the balance in the carbon budget and thus standing at a critical cross road along the pendulum of the climate crisis, necessitating this advisory opinion. Alfred Brownell is the Lead Campaigner and Founder of Green Advocates International based in Liberia, the 2019 Goldman Prize Winner for Africa, a visiting Fellow at the Yale Law School and currently the Founding President for the Global Climate Legal Defense Network.

Before the European Court of Human Rights, a number of climate cases are pending, with several suspended while the Grand Chamber evaluates three initial cases this year: KlimaSeniorinnen v. Switzerland, Duarte Agostinho v. Portugal and 32 Others, and Carême v. France. In March, the Grand Chamber held hearings in KlimaSeniorinnen v. Switzerland (in which a collective of ESCR-Net members intervened) and Carême v. France. The Court has scheduled a hearing in the case of Duarte Agostinho v. Portugal and 32 Others (in which a collective of ESCR-Net members intervened) for September 27.

This series of hearings, pending decisions, upcoming advisory opinions positions this year to be a pivotal year in access to international justice concerning climate related human rights.

Litigation, particularly in combination with wider campaigning and advocacy,  is becoming an increasingly important avenue for those affected most gravely by and resisting the climate crisis. For instance, the advisory opinion request spearheaded by Vanuatu– a low-lying small island nation state facing the brunt of the climate crisis– was borne out of advocacy efforts by law students there. The students were responding to how sea level rise relocated “six villages on four of its islands” and “turned water supplies so salty they’re undrinkable” and how extreme weather events are increasingly hitting the islands, with Cyclone Pam in 2015 destroying 96% of the country’s food production. Indeed, the extent of the climate crisis affecting Vanuatu is so severe that the UN has rated it as “the country most at risk of natural disasters.”

Chile and Colombia, in the Andes region, also face extreme weather events, including high temperatures, flooding, landslides, and an increase in disease-transmissions of dengue, malaria and chikungunya. The Andes region has seen significant displacement and migration due to climate change, with 80% of displaced persons being women and girls, and a disproportionate number of affected persons being Indigenous Peoples and Afro-descendant communities.

Climate human rights litigation has been growing for some time, with important victories emerging, such as the Urgenda v. Netherlands decision won by the Urgenda Foundation, whose legal team includes ESCR-Net member Tessa Khan, who co-founded the Climate Litigation Network along with Urgenda Foundation, which has led important climate litigation all around the world.  What remains to be seen is whether courts overall will meet the scale of the crisis with a commensurate and just response, complementing and reinforcing the struggles of communities and movements around the world for climate justice. 2023 may hold some of the answers.