Time to articulate climate justice and human rights

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Swedish activist Greta Thunberg filed an appeal at the UN against five states on 23 September, claiming that their inaction on climate change would violate children's rights. This is the latest in a long series of complaints filed around the world since the mid-2000s. With a common goal - to force States and companies to reduce their greenhouse gas emissions and preserve the climate - and still very few judicial successes. Christel Cournil, a professor of public law specializing in so-called "climate" actions, looks back at these efforts to shake up legal categories.  

chip-purpple How did you come to be interested in these so-called "climate" actions?

Christel Cournil

Christel Cournil : My interest first focused on human rights. In the early 2000s, my public law thesis dealt with the influence of supranational norms on the law on foreigners. It concluded that the issue of climate displacement was an emerging phenomenon: some Sahelian migrants who had fled the drought and the advancing Sahara in the 1990s and some islanders in Oceania who, faced with rising water levels, were seeking asylum in nearby states such as New Zealand or Papua New Guinea, were qualified as such. But the 1951 Geneva Convention relating to the Status of Refugees applies only to people persecuted because of their ethnic, social or political affiliation.

There was - and still is - a gap between the existing legal provisions and the actual need for legal protection of a new category of population. Particularly vulnerable to the effects of climate change, this category of population appeared to me to be an emblematic figure of the link that now needs to be established between environmental law and human rights.

If we look at the long term, almost fifteen years now since their appearance, climate remedies invite us to think about this link. My involvement as legal counsel in the French association Our common business - I was at the origin of a conference in 2017, of which the book Les procès climatiques : entre le national et l'international [Pédone, 2018, editor's note] is the synthesis, as well as of an appeal called the "Case of the Century" in 2018 against the French State - allowed me to advance in this reflection.

"In the mid-2000s, the first climate remedies came from indigenous peoples. »

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chip-purpple When was the first climate-related remedies?

CC : You have to go back to the mid-2000s. The first climate remedies came from indigenous peoples, another category of population that is particularly vulnerable to climate change and sees its life as intrinsically linked to that of its environment. In 2005, a group of Inuit, seeing the melting polar ice and its dramatic consequences on their way of life, filed a petition with the Inter-American Commission on Human Rights to have their right to the benefits of their culture, guaranteed by Article 13 of the American Declaration of the Rights and Duties of Man, recognized. According to this petition, greenhouse gas (GHG) emissions from the United States were causing degradation of the Arctic environment that no longer allowed Inuit to enjoy their culture. The petition developed a legal reasoning based on an interaction between international cultural law, international environmental law and international humanitarian law. The Inter-American Commission on Human Rights, which heard this group of Inuit, refused to rule, citing the difficulty of establishing responsibility for US-specific GHG emissions from melting Arctic ice.

Three years later, in February 2008, the indigenous community of the coastal village of Kivalina, northern Alaska, tried to have ExxonMobil and nineteen other oil and energy companies convicted in California courts for damages suffered as a result of flooding that had become frequent due to global warming: previously, sea ice had protected the village from rising waters. But once again, the judge will consider that he does not have sufficient evidence to establish a causal link between the specific GHG emissions of these companies and the degradation of the living environment in Kivalina: even if the IPCC [Intergovernmental Panel on Climate Change] already considers the human causality of climate change to be "very likely" in its fourth report published in 2007, the question of the legal attribution of responsibility for the global effects of climate change remains unresolved.

Although it does not directly concern a vulnerable category of the population, a third climate lawsuit from this era is worth mentioning: the one brought in 2005 by the state of Massachusetts and eleven other states (as well as several large cities) in the United States against the Federal Environmental Protection Agency (EPA). The plaintiff states believed that the EPA lacked ambition in its national GHG emission reduction targets, causing public nuisance in terms of health, agricultural yields, biodiversity and human well-being. After an appeal, the case went to the Supreme Court. In a landmark decision in 2007, the Supreme Court recognized the plaintiff states' interest in acting to protect the public from the effects of climate change, but dismissed the complaint on the grounds of the separation of powers: the law, and in particular U.S. case law, is very strict in preventing the judge from making policy decisions, such as GHG emission reductions and climate change, which are the responsibility of the legislature and the executive.

Finally, these first-generation climate remedies have shown that legal action is possible by private individuals who consider themselves victims of climate change or by public individuals who want to protect the population for which they are responsible. However, in the face of GHG emissions that are necessarily diffuse, this action has most often come up against two issues: the causal link between a specific GHG emission and localised climate damage, and the distribution of responsibility between the various GHG emitters.

"The District Court in The Hague condemns the Dutch government to reduce greenhouse gas emissions by at least 25 %. »

chip-purpple In June 2015, however, the Amsterdam-based NGO Urgenda won a legal victory decisive in the Netherlands. Why is that?

CC The first victory is firstly that this NGO (thus a private legal person), which advocates in its statutes the fight against climate change and action in favour of ecological transition, was recognised by the judge as having an interest in acting, which is not the case for the 886 Dutch plaintiffs who accompanied it, natural persons who do not present, according to the judges, a particular vulnerability to climate change.

Urgenda's appeal against the Dutch State will be lodged as early as 2012. It is the result of three years of work mobilising very detailed scientific documentation - reports from the IPCC and various Dutch and European public bodies - and is based mainly on the notion of "...". duty of care "The Dutch State's obligation to act in order to protect its population. At first instance in June 2015 - when the fifth IPCC report, which has just been published, considers the human origin of climate change to be "extremely probable" - the District Court of The Hague condemned the Dutch government to reduce the country's greenhouse gas emissions by at least 25 % in 2020 compared to their 1990 level, in accordance with the Netherlands' international commitments, in particular through its validation of successive IPCC reports. It does so by invoking the State's obligation of climate vigilance, an obligation based on domestic law in particular.

"Articles 2 and 8 of the ECHR, which were not drafted on an environmental basis, are given a climatic interpretation. And for the first time, the judiciary takes precedence over the executive in climate matters. »

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It was only in October 2018, when the appeal was heard, that the judge clearly retained the issue of human rights, in particular Articles 2 and 8 of the European Convention on Human Rights (ECHR), guaranteeing the right to life and the right to respect for family life and the home respectively, to confirm the first instance judgment. With this judgment confirmed on appeal, a State is for the first time granted legal responsibility for climate change.

This first victory before a national court was quickly followed by other successes. In September 2015, a modest Pakistani farmer, Asghar Leghari, won his case against the federal government and the state of Punjab in the High Court of Lahore in September 2015 for "... the use of the word 'farm' in the name of 'agriculture' as a means of promoting the development of the country's economy. inaction, delay and lack of seriousness (...) in the implementation of the national policy to combat climate change ». Tired of seeing his crops ravaged by repeated bad weather, with the help of academics and lawyers, Mr. Leghari relied on Articles 9 and 14 of the Pakistani Constitution, which guarantee the right to life and human dignity respectively, to raise a "serious problem". infringement [of fundamental constitutional rights] by [the State]. ». This simple farmer from a country of the South, a new vulnerable figure emerging from the climate trials, obtained the condemnation of the Pakistani government to initiate within six months an ambitious inter-ministerial policy of mitigation and adaptation to climate change, with an obligation to monitor - even if, unlike the Urgenda case, the quantified objectives remain the responsibility of the policy.

"It is a question of subjecting the climate policies of States to the question of human rights, that is to say, to the supreme norm of the international legal architecture. »

chip-purpple Climate-displaced people, indigenous peoples, farmers in the South... Are these figures the only vulnerable people emerging from the climate trials?

CC No way. Several actions have been brought by groups of people on the basis of their age. In 2016, a group of Elders for climate protection "For example, the Swiss federal government has been sued for climate inaction on the grounds that their age makes them particularly vulnerable to the consequences of climate change. But their action was rejected two years later by the Federal Administrative Court. Conversely, in Colombia, a group of young people obtained significant advances from the national judge in 2018 in the fight against deforestation, arguing that their age condemned them to live longer than others in threatening climatic conditions. Similarly, young people in the United States are demanding that the judge recognize a constitutional right to a healthy environment. These Colombian and American complaints, which are well argued in terms of human rights, also open up innovative legal perspectives such as the guarantee of constitutional rights for future generations, the obligation of the State to safeguard a number of common or even the access of certain ecosystem elements to the rank of "subject of right".

The latest of these youth-led climate actions was filed on 23 September by Swedish activist Greta Thunberg and 15 other young people aged 8 to 17 before a quasi-judicial body: the UN committee of experts monitoring compliance with the International Convention on the Rights of the Child, adopted by the UN General Assembly in 1989. The plaintiffs, from 12 countries, are suing five G20 countries - France, Germany, Argentina, Brazil and Turkey - on the grounds that "... the United Nations Convention on the Rights of the Child (CRC) is the most important international instrument on the rights of the child. these countries are among the most polluting and are accelerating global warming ». For these young people, supported by Unicef and clearly inspired by the Urgenda, Leghari and Colombia jurisprudence, this is a clever way of subjecting state climate policies to the question of human rights, that is to say, to the supreme norm of the international legal architecture. The opinion that will be rendered by UN experts will certainly not be worthy of judgment. But it can be used as a valuable reference by judges who will have to rule on climate appeals at a later date.

"Almost all international efforts have failed. The few cases that are beginning to be successful have almost always been brought before the national judge. »

chip-purpple Judicial successes remain extremely rare. If you were a "vulnerable person" who was a victim of the effects of climate change, which court would you go to if you wanted to win a case?

CC The history of climate trials to date argues for an appeal to national courts. It can even be established that almost all international efforts have ended in abortive attempts or failures: Tuvalu's unsuccessful appeal against the United States and Australia before the International Court of Justice in 2002, the African Union states' retreat after announcing a request for reparations to the OECD states at COP15 in Copenhagen, the failure of the Inuit petitions of 2005 and 2013 before the Inter-American Commission on Human Rights, and the failure to date of the ten families who initiated the People's Climate Case in 2018 before the European Union Court of Justice [on appeal]. On the other hand, the few cases that are beginning to be successful have almost always been brought before the national judge, whether in the Netherlands, Pakistan or the United States. Colombia. So much so that a transnational movement is emerging, bringing together NGOs and lawyers who are exchanging best practices in bringing climate cases before national judges. The guiding principle of all these second-generation, i.e. post-Urgenda, climate cases is that they attempt to link the issue of climate change to that of human rights.

Finally, these climate trials show that, in legal matters as in so many others, the climate is imposing itself on us. Faced with the urgency of the danger, they invite us to rethink liability regimes and in particular the question of its distribution, the question of the interest in acting for oneself or for others, the regimes of proof with an increasingly thorough recourse to scientific expertise, the balances of democratic institutions where the executive is now being overturned by the judiciary, and finally the field of fundamental rights: can the right to life, the first of human rights, still be fulfilled if it is not now supported by a right to a sustainable climate and a healthy environment?

Interview by Benjamin Bibas / The Documentary Factory.
Original article published in Justiceinfo.net, 11/10/2019 (CC)

Professor of public law at Sciences Po Toulouse, Christel Cournil (see his publications) conducted doctoral research on the impact of the European asylum and immigration policy, the European Court of Human Rights and other human rights texts on the law of aliens. From 2005 to 2006, she was interested in the management of natural resources in Africa. Since 2008, she has been working on environmental migration, environmental law and now on its mobilization by civil society. In 2018, she co-directed with Leandro Varison Les procès climatiques : entre le national et l'international (Pédone, Paris), which consisted largely of communications from the first international symposium on climate litigationwhich was held in 2017 in Paris.

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