Climate Change and Human Rights Litigation: A Proposed New Line of Argument

On 13 November 2020, the European Court of Human Rights communicated to 33 governments an application by a group of young Portuguese persons who claim that conduct by the respondent States in respect of the phenomenon and human rights impact of climate change amounts to violations of ECHR Articles 2 and 8, also in conjunction with Article 14. Notably, when communicating the case of Duarte Agostinho and Others to Member States, the Court added Article 3 in the list. The case belongs to a wider trend of efforts to take issues of climate change to human rights fora, and it raises complex issues concerning the interaction between human rights law, climate change law, international environmental law and public international law.

There are two interrelated reasons for being open but critical in respect of the prospects of success in climate change cases brought before human rights courts or treaty bodies: (1) Some of the litigation may be ‘strategic’ in the sense that the cases are about the use of human rights for the purpose of climate change litigation. What the initiators want in those cases primarily is a pronouncement, as a remedy for a human rights treaty violation established, of a government’s obligation radically to reduce its emissions and thereby contribute to the turning of the tide of global warming. (2) In preparing such cases, insufficient thought may have been put into framing the claims for purposes of human rights adjudication, including in respect of (a) the admissibility condition of the victim requirement and (b) the issue of jurisdiction, closely linked to the notion of attribution. The questions posed by the European Court of Human Rights to the respondent governments in Duarte Agostinho suggest that these issues will have a prominent place in the proceedings that will soon follow. We can expect governments arguing that they, sitting perhaps 2000 kilometres away from Portugal in a country of free markets and free enterprise, have no concrete obligations in respect of, and no concrete impact upon, how a 1.5 oC rise in global temperatures would affect the lives and human rights of youths in Portugal.

Without wanting to put into question the genuine interest by the ECtHR to address the impact of climate change in respect of substantive human rights, or the prospects of the case of Duarte Agostinho to pass the hurdles of preliminary objections and admissibility, there is a clear need for exploring ways of framing a human rights case so as to avoid being trapped in issues of victim status and jurisdiction. A case to keep an eye on is Billy et al. v. Australia, a complaint by a group of indigenous Torres Strait Islanders, pending before the UN Human Rights Committee. According to a pre-submission press release, the case is about “the threat to their culture and their ability to live on their home islands”. There has also been some informative press coverage, as well as utilization of a new procedure for submitting amicus curiae briefs to the Committee.

Billy is a possible game changer in climate change litigation, as it represents a potential of moving past the hurdles of victimhood and jurisdiction. This is because of the prominent place the notion of ‘culture’ has in the case and more broadly in indigenous peoples’ human rights claims. Culture is by definition intergenerational. Therefore, the right to transmit a culture belongs to the essence of the human right to enjoy one’s culture in community with other members of the group (ICCPR Article 27). This right to transmission is a right that belongs both to one or two living generations of today who seek to transmit, and to one or two generations of living individuals who are the recipients of that transmission. Where the right to transmit is frustrated and rendered meaningless –- or ‘denied’ in the language of Article 27 ICCPR -- we have ‘victims’. The enjoyment of a culture is also local, usually tied to the particular natural resources and conditions of a place or area. Culture is wide in scope, including traditional or otherwise typical means of livelihood, often collective and intergenerational in nature. It also includes a living language that is learned, used and developed in the context of a community engaging with its culture, including in its intergenerational transmission. And culture is about a way of life, wellbeing and identity. In respect of the territorial State at least, we hence have ‘jurisdiction’. (The issue of attribution in respect of other States would, however, remain.)

The elaboration of a line of argument for indigenous peoples’ climate change litigation that is based on the intergenerational dimension of the right to culture also has heuristic value beyond the context where it is developed. This is because there is an intergenerational dimension also in general human rights such as Article 8 ECHR and Articles 17 and 23 ICCPR. This has been properly addressed and acknowledged in the Human Rights Committee case of Hopu and Bessert v. France where the Committee decided to treat as a valid reservation the declaration by France of the inapplicability of the minority rights clause in Article 27 but then turned to other, general, provisions of the ICCPR. A fresh reading of the ECtHR case of López Ostra v. Spain suggests that the intergenerational nature of ECHR Article 8 could have had a prominent role in that case.

Litigation concerning carefully selected and articulated indigenous peoples’ claims concerning the tangible impact of climate change upon their ability to pass on to new generations their culture, way of life, traditional means of livelihood and identity may during this decade spearhead climate-change-related human rights litigation. But once that line of argument has been established and it has produced some result, also members of non-indigenous or non-minority communities can build the same line of argument under Articles 8 and 14 of the ECHR and Articles 17, 23 and 26 of the ICCPR.

Professor Martin Scheinin is a British Academy Global Professor at the Bonavero Institute of Human Rights. His four-year project addresses a range of challenges to international human rights law posed by developments in the digital realm. Throughout his career, Professor Scheinin has engaged with human rights practice, including by serving eight years as member of the Human Rights Committee, the expert body monitoring States’ compliance with the International Covenant on Civil and Political Rights. For six years he was the first United Nations Special Rapporteur on human rights and counter-terrorism. He retains an interest in human rights adjudication, first and foremost in issues of indigenous peoples’ rights.