Reflections on the JUSTICE Human Rights Conference 2020 – ‘Climate Change and Human Rights’
University of Edinburgh Pro Bono Society Committee members attended the JUSTICE Human Rights Conference 2020. They have produced six blog posts based on their reflections. The sixth blog in this series is by Xu Chen, Pro Bono Society Communications Officer, and Graduate LLB student, reflecting on the breakout session ‘Climate Change and Human Rights.’
Addressing the climate emergency has been recognized and integrated into Corporate Social Responsibility by many law firms. More and more lawyers are volunteering on complex environmental cases as their pro bono projects to fight for climate justice. In recent years, there have been some significant legal developments on the topic of climate change as numerous complaints were raised on the grounds of human rights violations. Tessa Khan, Co-director of the Climate Litigation Network, briefed the audience on this subject at the Human Rights Conference 2020. She detailed the flagship case of Urgenda v The Netherlands (20 Dec 2019) in her presentation.
In this case, the Dutch Supreme Court made several crucial rulings. Firstly, the Court held that Article 2 and 8 of the European Convention on Human Rights have the direct effect that gives Dutch residents legal standing to file a lawsuit against the government. In detail, the Court accepted that it is not necessary to identify each victim due to climate change; the obligation of states is owed to the population at large. Moreover, the Court held that the legal requirement of “immediate risk” means “directness” in the context of the case. Namely, the term “immediate” does not refer to “imminent” in the sense that the risk has to materialise within a short time, but only if it poses a significant threat to the person involved.
Secondly, concerning state responsibility, the Dutch government argues for its defence that the Netherlands produces less than 1% of the global greenhouse gas emissions. The claimed reduction in the case could make little meaningful difference to the problem of climate change as a global problem. The Court rejected this submission and confirmed that the implicated state’s responsibility was accepted historically by the Dutch government along with other nations under the UN framework of the convention on climate change. Hence, following the “No harm” principle in international law, each state has its independent responsibility to prevent harm associated with climate change. So long as the government has effective control over its action to reach the targets concurred in the Paris Agreement, it has a positive obligation to materialise it.
Thirdly, on various occasions as state practice, the Dutch government has agreed to act in accordance with treaty signatories’ common but differentiated responsibilities under the principle of equity. This principle justifies the reasonableness of the 25% reduction target set in this case.
Lastly, the Dutch government raises another defence on the principle of separation of power. It claimed that by ordering the government to reduce 25% of its greenhouse gas emissions by 2020, the Court infringes the fundamental principle of separation of power. The Dutch Supreme Court again rejected this argument. It rules that the Court has jurisdiction to deem whether the government’s actions were too minimal to fulfil its obligation. However, the Court concedes that it should leave parliament to decide how the government should achieve the target of 25% reduction. The pioneering part of this case is that even though the European Court has not yet issued any judgments regarding climate change, the Dutch Supreme Court comfortably advanced the Convention rights to the fact of climate change.
Richard Harvey, the legal counsel of Greenpeace International, also presented several other case developments across the world at the conference. Recently, the National Public Inquiry of the Philippines filed a petition to the Philippines Commission on Human Rights against 47 fossil fuel companies claiming that “people affected by climate change and whose human rights have been dramatically harmed must have access to remedies and access to justice.” Richard also stated that the deeper issue is that although some governments are well aware of climate change and commit to responding, few actions have yet been effectuated. For example, Article 112 of the Norwegian Constitution explicitly states that “Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained.” However, the Norwegian government still continues to grant licenses to oil and gas companies to sustain their operation and exploration. Moreover, during the Covid-19 pandemic, the Norwegian government gave tax breaks to fossil fuel companies which should be the last thing the government would do.
Another case related to climate justice was raised by a group of senior women in Switzerland under the argument that the increasing heat waves resulting from climate change affected the health and quality of life of the elders in the society. But the Swiss Court dismissed their case and concluded that the protection of fundamental rights requested cannot be claimed until the Paris Agreement’s long-term temperature goal is exceeded.
In summary, the legal development of climate change is progressing but still encountering multiple setbacks. There is still a long journey to achieve climate justice.
Recent comments