Climate Change Litigation: Recent developments for small / developing States to engage with
As the evidence on the human impact of climate change continues to grow, people have looked to both national and international law for ways to promote climate change mitigation, and punish individuals, corporations, and governments for actions that are destructive to the climate. As this body of jurisprudence continues to develop, States may face exposure in national and international courts for their actions (and inactions) on climate change. Conversely, States may also have greater opportunities to bring claims against actors within their jurisdiction for climate crimes, or to support climate litigation in foreign jurisdictions against other States and actors.
Recent climate litigation brought in national courts has found some measure of success. In a landmark case, Urgenda Foundation v. State of the Netherlands (December 20, 2019), a group of Dutch citizens successfully sued the Dutch Government, claiming its pledge to reduce carbon emissions to 17 percent below 1990 levels fell short of the 25 percent necessary to avert the most harmful effects of climate change, therefore endangering their human rights. The Dutch Court ruled that the state had a duty to mitigate climate change impact under Article 21 of the Dutch Constitution (regarding keeping the country habitable and protecting the environment); European Union emissions reduction targets; the European Convention on Human Rights (“ECHR”); and the “no harm” principle of international law, among others.
Following the groundbreaking Urgenda ruling, other European national courts have taken actions suggesting they may follow the Dutch court’s disposition: for example, the Supreme Court of Ireland recently permitted a climate complaint to bypass the intermediate appellate process and appeal directly to them. This complaint, Friends of the Irish Environment CLG v. Gov’t of Ireland, alleges that the Irish government, in setting emissions reduction targets for the year 2050, has failed to implement necessary short-term mitigation strategies. Mirroring the Urgenda suit, the complainants allege the Irish government has acted in violation of the Irish Constitution, Ireland’s Climate Action and Low Carbon Development Act, as well as the ECHR.
Other similar lawsuits following the Urgenda decision are in different stages in a number of States, including Belgium, Canada, Colombia, France, Germany, New Zealand, Norway and Switzerland, among others. Separately, the British Court of Appeals recently ordered the halting of a construction project at Heathrow Airport, ruling it unlawful under the Paris Agreement.
In the international context, there exist a number of ways to potentially address climate change through international human rights law (“IHRL”) mechanisms. Regional international courts have begun to treat access to a healthy environment as a human right. The Inter-American Court of Human Rights’ issued an advisory opinion in 2018 stating the right to a healthy environment existed under the American Convention on Human Rights. The African Court on Human and Peoples’ Rights (“ACtHPR”) may also be a forum in which to address climate change via its broad jurisdiction over violations of all human rights instruments that its member states have ratified. However, only 30 African states are currently members to the court. Additionally, jurisdiction for claims brought by individuals or NGOs is further limited to States that have made an optional declaration under Article 34 (6) of the court’s protocol. Tanzania’s recent withdrawal of its Article 34 (6) declaration brought this list of States down to eight. Finally, the U.N. system itself may exist as a path for raising climate complaints. Earlier this year, five U.S. Tribes in Alaska and Louisiana submitted a complaint to multiple U.N. Special Rapporteurs claiming that the U.S. government is violating its international human rights obligations by failing to address climate change impacts that may result in forced displacement.
While the national cases referenced above often entail international obligations, and mechanisms exist through which to pursue climate change via IHRL, the specific path to alleging climate crimes is less straightforward. There is currently no explicit international legal basis on which to bring environmental crimes in the International Criminal Court (“ICC”). However, the Rome Statute does include in its provisions on Crimes Against Humanity (“CAH”) prohibitions on “intentionally launching an attack in the knowledge that such attack will cause… widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” The Office of the Prosecutor of the ICC has gone so far as to say that “certain organised industrial activities can cause serious injury to physical health or may force people to leave their land… could potentially amount to CAH under Article 7.”
Any crime against the environment brought via the ICC would have to be anthropocentric in nature, i.e. the harm could not be against the environment per se but would have to manifest in harms against peoples. Any theoretical doctrine of environmental crimes against humanity would have to thus focus on human harm.
Regarding corporate crimes against the environment, although the ICC does not have jurisdiction over corporations, it does have jurisdiction over officers that contribute to crimes as civilians under article 25(3) (c) or (d) of the Rome Statute. Although this has not been used yet to target corporate officers, preliminary ICC examination on CAH claims alleged in Colombia have focused on the actions of corporate directors. A set of articles further discussing a framework for international climate crimes is available at the international law blog Opinio Juris.
Small and developing States should follow along with both domestic climate litigation as well as the developing body of practitioners advocating pursuing environmental crimes via ICL. Small and developing States must assess their domestic climate litigation exposure, the opportunities for litigation that they may able to bring against actors within their jurisdictions, as well as the various regional and global fora in which they could face or bring climate litigation.