Year: 2021
Type: article
Abstract: In October 2021, the United Nations (UN) Human Rights Council adopted a resolution recognizing ‘the right to a clean, healthy and sustainable environment’ as a ‘human right that is important for the enjoyment of human rights.’1 In July 2022, the UN General Assembly (UNGA) also adopted a resolution recognizing the same right (hereinafter referred to as a ‘right to a healthy environment’).2 While formally not legally binding, these resolutions are the culmination of a lengthy diplomatic process, following three decades of debate on the comparative utility of the explicit recognition of the right to a healthy environment vis-à-vis the so-called ‘greening’ of existing human rights.3 To be sure, well before the adoption of these resolutions, the right to a healthy environment had already been enshrined, with various phraseologies, in the law of more than 150 states as well as in some human rights treaties4 and treaties focusing on so-called procedural environmental rights.5 At the time of writing, the Council of Europe is also considering the adoption of an additional protocol to the 1950 European Convention on Human Rights6 to anchor the right to a healthy environment in the European human rights system.7 The matter of the explicit recognition of the right to a healthy environment has gained international prominence with the creation of a UN special rapporteur (UNSR) on human rights and the environment.8 Over the last decade, two mandate holders—John Knox and David Boyd—have studied the obligations associated with the right to a healthy environment and identified good practices.9 Their reports suggest that the right to a healthy environment contributes to the improved implementation and enforcement of environmental laws.10 They furthermore suggest that, when applied by the judiciary, this right helps to provide a safety net to protect against gaps in laws and creates opportunities for better access to justice. They conclude that, were the Universal Declaration of Human Rights to be drafted today, it would certainly include the right to a healthy environment.11 At this momentous time of renewed interest over the explicit recognition of the right to a healthy environment, this article examines the evidence emerging from the use of this right in climate change litigation. The aim is to assess whether climate litigation corroborates or disproves the UNSRs’ findings concerning the use of the right to a healthy environment in litigation. We therefore look at climate litigation as a case study to ascertain the extent to which the right to a healthy environment contributes to improved implementation and enforcement of climate laws, protects against gaps in climate laws, and creates opportunities for better access to justice for climate litigants. First, we define the parameters of our case study, explaining how we selected the data we analysed, positioning our inquiry into the rapidly growing body of literature on human rights and climate change. Second, we provide a bird’s eye perspective on rights-based climate litigation and on the use of the right to a healthy environment in this litigation. We identify the cases where this right has been invoked, by whom, where and when, and with what outcomes. We then take a closer look at how courts have interpreted and applied the right to a healthy environment in the climate judgments that have been issued to date. We conclude by drawing some general inferences on whether the right to a healthy environment has furthered the chances of success of climate litigants and on whether the recognition of this right is a significant determining factor in the outcome of climate litigation. The preamble of the Paris Agreement recognizes the interplay between climate change and human rights law, saying that parties ‘should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights.’12 Similarly, international human rights bodies and UN special mandate holders have also acknowledged the complex relationship between climate change and human rights law.13 Since 2009, the Human Rights Council (HRC) has adopted a series of resolutions on human rights and climate change.14 These resolutions emphasize the relevance of human rights obligations to climate change law and policy and the need to systemically interpret states’ obligations and corporate responsibilities in this connection, both at the national and international levels.15 In 2022, these developments culminated with the appointment of a UNSR on the promotion and protection of human rights in the context of climate change. This new rapporteur is tasked, amongst other things, ‘to promote and exchange views on lessons learned and best practices on human rights-based approaches … to climate change adaptation and mitigation.’16 As we have already argued elsewhere,17 these activities may be viewed as part of a process, whereby UN human rights bodies and special mandate holders seek to engender systemic integration in the interpretation of state obligations on human rights and climate change. This process is increasingly evident also in climate litigation. The term ‘climate litigation’ is commonly used as a shorthand to describe lawsuits filed before international or domestic judicial or quasi-judicial bodies, raising questions of law or fact regarding climate science, climate change mitigation, or adaptation.18 This litigation increasingly relies on human rights, in whole or in part, and has attracted considerable scholarly attention in recent years.19 This literature, however, does not consider in detail the specific role played by the right to a healthy environment in climate litigation. This article bridges this gap in knowledge by providing the first study of climate change litigation that relies, in whole or in part, on the right to a healthy environment. We built on extant literature to identify the rights-based climate lawsuits that specifically invoke this right. Specifically, we relied on the global study of rights-based climate change litigation carried out by Annalisa Savaresi and Joana Setzer.20 These authors estimate that, by 31 May 2021, 112 out of the 1,841 climate litigation cases reported in the world’s most established climate litigation databases,21 relied in whole or in part on human rights.22 Savaresi and Setzer analysed these 112 rights-based climate lawsuits with the aid of well-established categories in climate litigation literature. They identified who has brought these lawsuits, against whom and where, and the human rights most frequently invoked.23 Savaresi and Setzer conclude that, by far and large, climate lawsuits presently rely on substantive human rights obligations to demand the adoption of legislation on climate change mitigation or the reform of said legislation. They also predict that future rights-based climate litigation is likely to focus more on climate change adaptation and to rely also on procedural rights.24 We looked at the 112 right-based climate cases analysed by Savaresi and Setzer and identified forty-two climate cases that invoke the right to a healthy environment (listed in Annex 1). We considered who has brought these cases, against whom and where, and compared trends in these forty-two cases vis-à-vis the trends in rights-based climate litigation identified by Savaresi and Setzer. The objective of this exercise was to understand if there are any significant differences between trends in rights-based cases that invoke the right to a healthy environment and those that do not. Then, we considered only the climate cases that have been decided, analysing the way in which the courts approached arguments based on the right to a healthy environment. We developed a typology of cases, distinguishing between the different ways in which the courts treat this right in their decisions. The objective of this exercise was to ascertain whether and how courts rely on the right to a healthy environment in the decision of climate lawsuits. Sections 3 and 4 of the article summarize the results of these exercises. Savaresi and Setzer’s study reveals that, so far, right-based climate lawsuits preponderantly target states and only rarely non-state actors, such as corporations.25 Most of these cases list human rights arguments amongst other legal grounds in support of the applicants’ demand for greater state and corporate efforts to reduce greenhouse gas emissions—so-called climate change mitigation.26 Comparatively few rights-based cases concern climate change The of rights-based climate cases were filed the adoption of the Paris Agreement in in the global Europe with only a few cases out of before international judicial or At the time when Savaresi and Setzer most right-based cases lawsuits the right to a healthy environment with the trends with some These lawsuits also preponderantly target states out of forty-two and focus on climate change mitigation out of forty-two were filed with national judicial or quasi-judicial bodies, as to international or lawsuits the right to a healthy environment to be in the global with the in 1). This of cases the right to a healthy environment to the findings of David study, which that and courts in the global are more likely to rely on the right to a healthy of climate cases the of right-based climate litigation is as most cases at the time of Savaresi and we considered only the of cases and as those where the applicants’ have been in whole or in part, of whether this decision was on the of human We then compared the outcome of cases the right to a healthy environment with the outcome of those rights-based cases that do not. the rights-based climate cases that have been to were were there are human rights-based climate cases In to cases the right to a healthy environment, only of have been at the domestic were and were data therefore to suggest that the success the right to a healthy environment is This success to and that the recognition of environmental rights in the global to more climate litigation in that of climate cases human rights In to the role played by the right to a healthy environment in climate we analysed the cases in Annex that have in decisions. We identified In the relies on the right to a healthy environment, which is in domestic law and has been by the In the does not rely on the right to a healthy environment, it in domestic law and by the In the relies on the right to a healthy environment, it is not by domestic In the the of the right to a healthy environment does not rely on in the the of the right to a healthy environment in national law and therefore does not rely on the based their arguments on that in whole or in part concerning of the right to a healthy environment in climate litigation We furthermore relied on the by Savaresi and Setzer to how courts states’ obligations in the specific context of climate distinguishing between states’ substantive and procedural obligations as well as between and legislation from This these in The on the to a in and by the We cases where the relied on the right to a healthy environment, as in national were in the global are in to the in this of In of a filed a judicial the decision to a to a The that the would to climate change and the enjoyment of human They specifically the right to a healthy environment, which of as has the to an environment that is not to their or and to have the environment for the of and future and other and promote and sustainable and use of and The that climate change a and to this and this amongst to the to assess the environmental of such as the The of the applicants’ the of environmental to the a had been The amongst by to the right to a healthy The that this is a environmental and specifically ‘to promote the and of the rights in the the by climate change to sustainable in and to future In a of used a special for the protection of rights in as that in the their rights to a healthy environment, to and which are by the The the right to a healthy environment as has the right to a healthy environment. The law the in the that may is the of the to protect the and of the environment, to the of special and to for the of these The the applicants’ the to of the by and to a process to a on how to In the that the to the of the rights in the in the context of the climate that rights, such as the right to and are on a healthy The that the right to a healthy environment is in the the and said right to those of future and to the rights of The the as a that the state and This is of a of climate cases where the not only relied on the right to a healthy environment also the to rights of in the context of climate These cases may be as of the of courts in the global vis-à-vis the enforcement of environmental these judgments are of how courts may rely on the right to a healthy environment to to practices that climate change. These judgments on the to human rights associated with a of legislation a of enforcement of existing and to from activities that the enjoyment of human The on the to a in and by the We identified three climate cases where to rely on the right to a healthy environment, as in national In the were the not specifically rely on the right to In the the case on procedural grounds and not on the right to a healthy cases the to human rights associated with a of legislation a of enforcement of existing that decision has on the right to a healthy environment, we are not in a to on the role played by this right in these decisions. in and and of we a of the right to a healthy In this a of filed a for judicial the of the decision to new and gas in the The the climate of the as well as to the They specifically argued that the decision the right to a healthy environment, as by 112 of the has the right to an environment that is to and to a environment and are be on the of which this right for future as In to their right in with the are to on the of the environment and on the of any on that is or carried The of the take for the implementation of these The argued that 112 of the against which the environment in such a way that to to human The also the of climate change on the enjoyment of other human rights that are in environmental the right to and and the the of said the use and of the in take The that it was not for the state to how in are used to the the right to a healthy environment only be the state does not take the to protect the environment. The that, the of would take the had to address such and therefore protect the to a interpretation of the of the of the that the in the process was to the in so far as domestic are As a the that the decision was not to 112 of the The of the interpretation of the by the that 112 of the a right and a on the state to protect this which is by The that the be to a to the exercise of state when established rights, such as the right to a healthy The of that this right has an and that greenhouse gas from activities or in need to be into when the of the of the applicants’ that 112 had not been the state had that would for the in from the new The decision was before The UNSR on human rights and the UNSR on and human rights a in support of the They argued that the of only to to reduce greenhouse gas that with human rights and environmental law obligations in the and not to that and therefore said Similarly, Human Rights an that judicial of that the enjoyment of the right to a healthy climate be The the in both and the applicants’ that, 112 be as an for the it does not a right. The of an human right to a healthy environment, to the this the the of the of that the for the to a decision by the or the is a of obligations in the In the in of environmental and views therefore in of such by an and not by the The that the of associated with the use of and the climate change were not significant or to the judicial of by the and the The a on the of rights in the European Convention on Human In this the that ‘climate change is not a and to the of the of and that there was not a and between the and the or of the In this the to rely on the right to a healthy environment to to have the practices that are to the Their on the to from activities that the enjoyment of human The by the courts that, when the right to a healthy environment is in national law, may be to rely on In this connection, the judgments in and and of are of the of some courts in the global to the interpretation of environmental rights, when these are in domestic The on the to a by We climate cases where courts relied on an right to a healthy environment, the fact that this right is not in domestic law in the In of a that of enforcement of existing national concerning climate change adaptation had the right to The relied on established case law that recognizes the right to a healthy environment as in the right to which is in the of this the the creation of a to the implementation of the in this the relied on an established in and applied it in the context of a climate change The courts a in of which a over of enforcement of to and the climate in for of Rights of and the the right to a healthy environment from the right to and as well as from the to protect the environment in the The the creation of a special to provide on the of In on of and to protect a from The relied on established case law that recognizes the right to a healthy environment as in the right to as well as on the sustainable and in of a of the of to the of to greenhouse gas The not to an the had to the that the applicants’ were well on the the and the ‘right to of a and The that the right be from of the which states that of rights not be to The the to protect and by the as the the the before the and the the cases in this on the to human rights associated with a of legislation or a of enforcement of existing These cases that courts may rely on their to interpret the law to the right to a healthy environment and to rely on this right specifically in the context of of climate lawsuits. This is not new in environmental in the global and has to also in climate change is therefore not a that the of cases this were in the which has a of a use of the over environmental The the of the to a As by the on We three climate cases where courts have the of an right to a healthy environment have the applicants’ lawsuits. In United filed a for and before the of against the United They argued that the had for decades that greenhouse gas climate change and associated had and the for the of The therefore the to the to activities and to a to reduce of greenhouse gas to a that is with In whether the to the the of that there are some rights that are so that do not need to be in The that the has a to identify and protect such rights the interpretation of the In the that there a ‘right to a climate of human that to a and the of for the the case on procedural it not the on the of the right to a the in this case and has a of cases the an in climate change In of the the for judicial of a decision to the of a to a new at They based their on an right to environmental The of a of to whether law recognizes such an right. The acknowledged the of said that it is an for the of human the of law, in the and by the is not to to the of the from time to then the only to rights, rights, between the of the or and those of so-called is the judicial of the that the have established the the case on procedural that the decision to the not be as the had to to said in the context of the in a filed an before against the that and had and are a climate to which is The a of implementation of extant legislation. The also that the right to a healthy environment from the of as well as the right to established in of the as interpreted in case law of the The the considering whether the right to a healthy environment was that there was evidence that the was obligations regarding climate has been filed before the which is In these cases, the to rely on the to human rights associated with a of climate of enforcement of said to from activities that the enjoyment of human of the In the case of at the has the of of the that there is right to a healthy environment in The the of the to a We two climate cases where courts the of the right to a healthy environment not rely on it in the decision of climate In of the of the of the taking a over the of the right to a healthy environment in In what may be as a for climate the the climate change as the also the of concerning the of the right to a healthy environment that was in of the In this connection, the that there is right to a healthy environment in law, such a right is not from other human rights or if it are not or The also to the of the to human rights The the climate it was not and not it was to protect human of the of a enforcement of it also a in of rights for environmental and of the recognition of the right to a healthy environment. The however, has the for to human rights-based regarding the climate In the argued that climate legislation that the had their rights ‘to environmental to an of and to a future with human The that right to environmental protection in the The that the the to protect ‘the of that the be as a substantive The not it to into the of whether the recognizes a right to an of or to a future with human The that, if such rights the would not have as has the Paris Agreement and adopted legislation to climate the that other rights already the state to it to protection against environmental or The that the of more climate action an in who would have to of such an that would their In these cases, the to rely on the to human rights associated with a of climate to climate of the of In both cases, the domestic courts that were to the on the right to a healthy environment. This article has of the role of the right to a healthy environment in climate with a to the extent to which the right to a healthy environment contributes to improved implementation and enforcement of climate laws, gaps in climate laws, and creates opportunities for better access to justice for climate litigants. has a bird’s eye perspective on the use of this right in the growing body of human rights-based climate litigation as well as an of how courts have used this right to questions concerning climate change. At the time of writing, the data to out this exercise is Most human rights-based climate lawsuits any with these in the evidence that the right to a healthy environment has been in an increasingly of climate cases and not only by also by the courts and large, the right to a healthy environment has so far been to the implementation and enforcement of extant laws and to for the adoption of climate with cases the right to a healthy environment, the courts to in of the more than not. therefore to that, so far at the recognition of the human right to a healthy environment to have to the success of human rights-based climate litigation. In the right of the right to a healthy environment may be a the data we is to what these findings to with those of literature, that courts in the global are more in based on the right to a healthy environment, which is in national or developed by of judicial The case law that we analysed also that some courts are the of climate and are therefore to rely on the right to a healthy environment to to extant laws or decisions. In this connection, over the of environmental have also in to climate change, and a has to be between judicial and the of climate change law by the The judgments we have analysed in this article are part of the process that is determining the and of climate change law and the role of human rights of these judgments the recognition of the right to a healthy environment in that do not however, provide an important of the fact that not courts may be to interpret this right. UN resolutions and Council of Europe national to rely more on this whether the in this article and what the it on climate law As we have already human rights are and is the right to a healthy Human rights obligations are for climate and human rights are for and against by climate the evidence in this article that, where it is the right to a healthy environment provide to the and enforcement gaps climate in the international recognition of the right to a healthy environment provide more legal grounds for to state and corporate to the climate that judicial decision had been on the case as of 31 May cases, which are not to are with This has been with the support of the by the of and
DOI: 10.1093/yiel/yvac064
Authors: Pau de Vilchez, Annalisa Savaresi
Language: English
Topic: Environmental law and policy
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
Estimated APC paid: $3,896
Awards: G3690828678, G6163815270
OpenAlex ID: W4315490731