Is climate inaction a human rights violation?

• The European Court of Human Rights has kicked off an ‘unprecedented’ trial over allegations of climate inaction on the part of dozens of countries.The Portuguese claimants are between the ages of 11 and 24, and seek an order requiring more ambitious climate responses.The case is just one of many human rights-based climate claims being made in court.

In 2017, due in part to conditions primed by a warming climate, wildfires ravaging Portugal accounted for more than half of all the burned area in the European Union. A few years later, a group of young people from Portugal filed a case with the European Court of Human Rights alleging that those fires – and the health risks and crippling anxiety that come with them – are the result of a failure to act on climate change in Portugal and 32 other countries.This week, those young people got their day in court.A trial began on Wednesday to consider their claims, and it’s being described as “unprecedented” in terms of potential impact.A win could push some of the wealthiest countries in the world to ramp up their responses to a changing climate; a loss could affect the numerous other rights-based efforts now underway to target inaction. According to the Global Climate Change Litigation database, 130 human rights-based cases have been brought against governments outside of the US to date (claims within the US are categorized differently).

The UN Human Rights Office clearly states that climate change threatens the enjoyment of life, food, and health. But following through on legal action compelling respect for those rights can be a lengthy process. Clémentine Baldon, an attorney who has represented plaintiffs in climate litigation, told the World Economic Forum last year that it’s nonetheless likely that the number of human rights-related claims “will continue to increase” – particularly if the European Court of Human Rights rules in favor of plaintiffs in pending matters like the case now at hand courtesy of the young Portuguese claimants.One of those claimants, 15-year-old Andre Oliveira, has said he simply wants governments to “do what they promised to do,” as part of the 2015 Paris Agreement on limiting warming to 2°C above pre-industrial levels.

Rights-based climate litigation: a mixed track record

Last year, some of Baldon’s clients filed a complaint with the European Court of Human Rights over a 1990s-era treaty requiring governments to compensate energy companies and investors if public policies cut into their profits – including policies designed to combat climate change. The claimants argued that the “Energy Charter Treaty” impedes climate action and undermines their protections under the European Convention on Human Rights. (Baldon represented another plaintiff in the “Case of the Century” in France, which held that country’s government liable in 2021 for missing its climate goals).Yet another matter, referred to by Baldon as the “Swiss grandmothers case,” began when a group of women (minimum age: 64) sailed up the Rhine in 2020 to deliver a complaint to the European Court of Human Rights, alleging that Switzerland’s government had failed to protect their health amid worsening, climate change-related heatwaves.

Temperatures have been rising as a result of climate change. Image: World Economic Forum

The litigation push comes as impacts of the climate crisis mount. Heatwaves and floods in India and Pakistan have killed thousands of people while depleting crop yields; one of the traditionally hottest counties in the US logged a record-breaking number of heat-related deaths last year; and unusually intense wildfires continue to plague Portugal and other countries. Regardless of the outcome of the young Portuguese claimants’ case, climate-related litigation generally seems poised for expansion – as it builds on a growing body of scientific data and at least a handful of successful efforts so far. An analysis published last year found that the relatively short track record for rights-based claims has been mixed; of the 57 cases in the analysis that had been decided, 44% had been found in favor of plaintiffs. Most defendants in these cases tended to be countries or public authorities, the analysis found – but a “rapidly increasing” number of suits were targeting corporations.

More reading on climate litigation, human rights, and energy policy

For more context, here are links to further reading from the World Economic Forum’s Strategic Intelligence platform:

• Human rights-based climate lawsuits are no longer just focusing on matters like the right to life, according to this piece, and instead are using research into psychological impacts to argue government inaction amounts to inhuman treatment. (Clean Energy Wire) “Climate litigation takes its first steps in China.” According to this piece, the country’s highest court recently issued guidance on climate change-related cases. (Eco-Business)Most investor-state legal cases concerning fossil fuels have been decided in favour of the private sector, according to this piece, and the way damages are calculated leads to “huge awards.” (Eco-Business)The “trickle-up effect” – with governments falling short on pledges and companies accused of greenwashing, human rights-based climate litigation is increasingly important for accountability, according to this analysis. (Chatham House) Humans aren’t the only victims of climate change. According to this research, even temporarily overshooting the Paris Agreement target of limiting warming to 2°C would mean “waves of irreversible extinctions and lasting damage to tens of thousands of species.” (The Conversation)The science of “weather event attribution” is starting to show the true costs and impacts of climate change, according to this study, and the best assessments can prove valuable for litigation efforts. (Science Daily)Denying people access to tasty hot sauce may not be a human rights violation, but it gets their attention. According to this piece, climate change-related drought may have been the cause of a sriracha sauce shortage. (Smithsonian Magazine)

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