Human rights-based climate change litigation - a new tool for environmental advocates?
A January 15 UN report on the relationship between climate change and human rights has concluded that while, in theory, global warming may infringe on certain fundamental human rights, individual human rights-based climate lawsuits are not likely to be successful. Nonetheless, environmental advocates may soon be taking up these issues in the courtroom, in part because litigation can bring mass public awareness to climate change issues. This increased exposure may apply added pressure to shape government policy, but is climate change an issue for courts to address?
There are three difficulties generally associated with litigation based on climate change: 1) it is almost impossible to establish a link between the named defendant, usually a State actor, and the alleged injury; 2) it is equally difficult to prove that global warming directly caused the harm; and 3) human rights based actions focus on completed harms, while the harms associated with global warming are usually based in the future. (See Article: “Are Regulatory Findings Admissible Evidence?” discussing issues of causation in climate change lawsuits)
However difficult in practice, human rights litigation based on climate change seems inevitable, as climate change has become an impetus for litigation in other contexts. Internationally, several companies are facing litigation for allegedly causing harm through environmentally unfriendly activities. In Australia, environmental groups lodged a complaint against a company that used the term “clean coal” to describe its power plant. Shell and ExxonMobil are among the defendants in a case in Nigeria that is attempting to stop the use of gas flaring. In the first European climate change litigation, environmental groups in Germany are attempting to compel the government to disclose its contributions to a credit agency that supports projects that allegedly increase greenhouse gas emissions. Canadian environmental groups have sued the Canadian government for inadequately complying with Kyoto. These actions have brought international attention to global climate change issues.
Even if human-rights based climate litigation ultimately fails, it will be a useful tool for environmental advocates who have the resources to bring these actions. According to an International Council on Human Rights report on climate change and human rights, “[l]awsuits draw attention to harmful effects that might otherwise remain below the public radar, put a name and face to the otherwise abstract suffering of individuals and provide impetus and expression to those most affected by the harms of climate change.”
While climate change law may add a new chapter, the story of human rights and the environment is an old one. The UN’s 1972 Stockholm Declaration recognized the “intrinsic link” between human rights and the environment. More recently, a joint seminar between the Office of the High Commissioner on Human Rights (“OHCHR”) and the United Nations Environment Programme (“UNEP”) in 2002 addressed human rights and the environment, and issued a background paper on the existing environmental jurisprudence of human rights bodies, which discussed the effects of human rights law and the environment on particular groups of people.
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Interesting article and an issue that I am sure will receive increased attention over the next decade. Although I am not sure that examining the issue of climate change and it effect on human rights will enable either individual or those involved in a class action to receive an adequate remedy or even a judgment in their favor. I believe that attributing the effect of climate change to a single defendant would be too great a leap for any court, either municipal or international.
As this article and the International Council on Human Rights has expressed, perhaps climate change cases are best served as a means of raising public awareness rather then achieving equitable outcomes for those affected by climate change. One need only be reminded by the attempt by the small island nation of Tuvalu, in the south-west pacific, which has threatened to sue Australia amongst others for their role in contributing to the affect of climate change. Surely the International Court of Justice (which Tuvalu has sought to take their claim) would not be able to find Australia or any other offender guilty in any tortuous claim against them.
To contemplate that any litigant would be able to prove all elements of a tort claim present would seem unbelievable, particular proving that the actions were not too remote and that the breach of the duty of care caused the harm in fact. Proving the harm becomes increasingly difficult when little or no harm has occurred, but rather the harm is based upon projected impacts. I do not doubt that there will be an impact attributable to climate change on human rights, but rather I argue that litigation may not be the time and cost effective way in which to secure an adequate outcome for the countries which will be impacted upon by the effects of climate change.