Climate change human rights litigation: is it so radical? Nicola Peart
9 May 2012
In the UK there are at present no rights expressly cast in terms applicable to climate change, nor have our traditional human rights been extensively interpreted as covering climate change consequences. As David Hart QC identifies in his blog, Is climate change a human rights issue?, human rights principles, to be useful for climate change litigators, have to have some democratic backing somewhere. So is there any hope, in the near future at least, of formally or even informally establishing a link between climate change and human rights in the UK? Is human rights based climate change litigation as ‘radical’ as David Hart suggests?
Consider, for example, the situation where the avoidance of further climate change damage was possible through adequate mitigation and/or adaptation, but where adaptation measures were not implemented due to financial or technical constraints. Leaving aside the issue of whether the State would be liable for a moment, could existing human rights be engaged in this situation?
Well, potentially, yes. Take, for example, Article 8 of the European Convention on Human Rights (ECHR) (the right to private and family life) as a right that might be engaged by climate change impacts where, say, the latitudinal shift in climatic envelopes has caused an insect or other pest to migrate into UK homes (a nuisance) or water supplies (a pollutant). In the case of Hatton v. United Kingdom the dissenting opinion noted that “[i]n the field of environmental human rights … the Commission and the Court have increasingly taken the view that Article 8 embraces the right to a healthy environment, and therefore to protection against pollution and nuisances…”. In Lopez Ostra v. Spain it was held that severe environmental pollution may infringe the Article 8(1) right to privacy and family security of the applicants. Perhaps a more convincing example might be Article 1, Protocol 1, ECHR (the right to peaceful enjoyment of possessions) as engaged where residents in low lying areas experience flooding, or in coastal areas experience accelerated coastal erosion, affecting their personal property.
Now, consider the liability of the State. There are, broadly, two approaches to this: firstly, whether the carbon emissions of the State (be it through some decision to build a third runway or anything else) can be shown to be the cause of the human rights violation; or secondly, whether the State has some obligation to protect the individual’s human rights from the adverse impacts of climate change. The first approach is a notoriously difficult one, and is not explored further here (though a recent decision in AES v. Steadfast makes interesting further reading, in the insurance coverage context, about whether or not carbon emitting entities knowingly or deliberately contributed to the potential global warming consequences of their actions). The second approach effectively holds the State to account for, say, the interference with the resident’s right to peaceful enjoyment of their possessions because of the failure to implement measures necessary to protect vulnerable areas, such as flood risk areas, from the impacts of climate change.
The European Court of Human Rights has already recognised that in some circumstances, the State has a positive duty to take measures to prevent future denial of human rights (X + Y v. Netherlands) where the defendant State failed to put in place adequate systems to protect the human rights of a citizen). To use a foreign case by way of illustration, in the Indonesian court in Gun Subasri, el v. Government of Indonesia cq Governor of Jakarta assessed the adequacy of the local government’s system to prevent and respond to (regular) floods in Jakarta and found that the Mayor was indeed engaging in an unlawful inaction in failing to implement the system correctly. See also, for a recent review of climate change liability around the world, Climate Change Liability: Transnational Law and Practice, Richard Lord, et al (eds.) Cambridge University Press, 2012.
In addition or even in the alternative, Article 13 (the right to an effective remedy where Convention rights have been violated) has been consistently interpreted as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see Hatton v. United Kingdom). If the infringement of a human right (because of climate change impacts) can be “arguably” made out, then, following Hatton, a complaint under Article 13 ECHR must be considered.
It is possible, therefore, that in cases of climate change adaptation core human rights (as opposed to environmental rights) are implicated, making such claims potentially more successful in countries without explicit environmental rights, such as ours.
The alternative, as David Hart points out, is embedding human rights at the international level: something that Olivier De Schutter, the UN Special Rapporteur on the right to food, made the case for in his Guardian post. But, Hart replies, that is not enough without a sufficient number of world states backing those rights and their enforceability. In fact, there are countries, especially those with more modern constitutions, that already have explicit environmental rights established and implemented: Ecuador, Kenya, South Africa, Mexico, to name but a few. The enforceability of those rights does, I agree, pose a difficult problem, especially in countries where although they may have explicit environmental rights individuals have no way of defending them, be that because of corruption, a lack of awareness, a lack of institutional infrastructure, access to legal help or otherwise. Nevertheless, embedding human rights principles in an international environmental treaty may be novel for industrialised countries, but they reflect a constitutional norm for many others.
Ultimately, David Hart goes on to say, the difficulty lies in the pretence that there is anything in the law and politics of human rights by themselves that can make a real difference to these massive issues. Climate change litigation cannot and should not seek to replace international negotiations under the UNFCCC. Focusing on the obligation of states such as ours to protect UK citizens’ human rights through adaptation measures may even distract from the critically important effort needed to avoid any threat of human rights violations in the first place (through the ambitious mitigation of our carbon emissions). However, unlike international political negotiations, rights based climate change litigation can, especially in the context of public law, provide a bottom up approach to dealing with climate change. Individuals can, through the protection of their human rights, protect their interests, raise awareness and place pressure on their governments to act more ambitiously on climate change. Individuals cannot be isolated from their environment: the link between individuals’ rights and freedoms and environmental integrity should be a logical conclusion, not a radical one.
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