The use of human rights law in climate change litigation : inquiring human rights obligations of States in the context of climate change; and the use of human rights law in Urgenda and other climate cases

Abstract

Climate litigation has become very popular in recent years. More and more citizens are taking their governments to court for their lack of action to combat climate change. A lot of these lawsuits are (partly) based on human rights law. Surely, climate change can, already has and will continue to have a massive impact on the lives and living conditions of people and thus also on the protection of their human rights. Using human rights as a basis for a climate change claim against a government, is not waterproof, however. It is not that easy to attribute climate-change related harm to acts or omissions of specific States and classify these impacts as human rights violations. There are also issues of admissibility and justiciability. This dissertation therefore examines which human rights obligations States exactly have in the context of climate change, and whether or not this entails an obligation to limit greenhouse gas emissions. To this end, the obligations that have been established on the UN level (with soft law status), and under the European Convention on Human Rights (with hard law status) are discussed. This thesis further assesses whether or not these obligations can be used successfully in climate change cases. Different lawsuits, brought by citizens against their governments, that seek to increase the governments’ mitigation ambitions or hold them accountable for already existing climate commitments by using existing human rights provisions, are examined. It is assessed how human rights law is used within the claims and/or the verdicts of these different cases, and how certain legal hurdles are being dealt with. The research findings indicate that there is growing consensus on the fact that there is a human rights obligation to limit GHG emissions. Still, this only has soft law status, and the exact implications of this obligation need to be finetuned. It is also possible to successfully use human rights law as the basis of a climate claim, but multiple difficulties remain. The success rate will depend, inter alia, on what the factual situation of the case is, what the national provisions on admissibility are, which human treaties the State has ratified, and which constitutional provisions can be invoked. Even when these things work in the applicant’s favour, it will often still be necessary for the judge to be a bit inventive, as the current human rights mechanisms are not well-suited to the complex collective problem of climate change. This thesis can be a first step towards a more structured comparison of the use of human rights law within climate litigation. The verdict of many currently pending cases will allow a more in-depth and systematic analysis of this topic.