Climate change and human rights – Can the courts fix it?
Climate change is already threatening people’s guaranteed rights. It is affecting rights such as the rights to life and health, to food, water and housing. In the case of small island states it touches on the very right to exist. The number of climate-related lawsuits is rising worldwide – including in Germany and Europe. But what part can the courts play in the battle against climate change? This article summarises the links between human rights and climate change, comments on the implications and profiles some of the climate-related court cases.
by Anne Kling
What has climate change got to do with human rights?
The droughts that accompany global warming are affecting food security. Fluctuating precipitation and the salination of lakes and rivers put drinking water supplies at risk. Extreme weather events pose a direct threat to life and health and destroy people’s homes. Island states could be wiped out by rising sea levels. Climate change is thus having a direct and adverse impact on fundamental rights and hu-man rights that are enshrined in international conventions and often also in national constitutions. Ten years ago the UN Human Rights Council (UNHRC) was already noting that “climate change-related impacts have a range of implications, both direct and indirect, for the effective enjoyment of human rights…”.
In relation to climate change, human rights are relevant at two levels. Firstly, climate change mitigation measures must comply with human rights principles. Secondly, there are questions to be answered about the extent to which anthropogenic climate change is itself a breach of human rights. It is this issue that forms the focus of the present article.
Although climate change poses a threat to the entire human race, people are not equally affected. It is those who have contributed least to greenhouse gas emissions – the poorest people, the most economically weak nations and future generations worldwide – who are and will be hardest hit by climate change. Questions of global justice must therefore be considered as part of any approach to dealing with climate change.
But what are the practical implications of the fact that human rights are affected by climate change? Are human rights that were historically conceived as civil rights and liberties protecting against the state actually applicable in the face of a global problem on this scale with an utterly unmanageable number of causers? Can these human rights be regarded as imposing duties on the state with regard to how to combat climate change? And is it possible to sue in the event of breach of these duties?
Human rights impose an obligation to mitigate climate change
“Climate change impacts, directly and indirectly, an array of internationally guaranteed human rights. States (duty-bearers) have an affirmative obligation to take effective measures to prevent and redress these climate impacts, and therefore, to mitigate climate change, and to ensure that all human beings (rights-holders) have the necessary capacity to adapt to the climate crisis.”
Office of the United Nations High Commissioner for Human Rights, Understanding Human Rights and Climate Change
It is now generally agreed that human rights impose an obligation on states to not only respect these rights but also to protect and fulfil them. For human rights to be infringed, it is thus not necessary for the state itself to interfere with people’s rights through its own actions: in principle an infringement can also occur if the state fails in its duty to protect people against infringements by third parties. The UN’s Guiding Principles on Business and Human Rights confirm that states have a duty to protect human rights against threats from economic actors, while economic actors have a duty to respect human rights. Furthermore, there is a right to compensation if human rights are infringed by the actions of economic actors.
In the case of climate change, which poses a direct threat to several human rights, the state therefore has a duty to take active steps to avert climate change. The state must as far as possible prevent adverse impacts on human rights and ensure that all people are enabled to adapt to climate change in the best possible way.
Climate lawsuits as a response to excessively sluggish climate policy?
“States should be accountable to rightsholders for their contributions to climate change including for failure to adequately regulate the emissions of businesses under their jurisdiction regardless of where such emissions or their harms actually occur.”
Office of the United Nations High Commissioner for Human Rights, Key Messages on Human Rights and Climate Change
But what happens if states do not fulfil their duty to mitigate climate change? Or if the steps that are taken fall far short of what is necessary and possible? Can more effective climate action then be enforced on the grounds of human rights?
These questions are less easy to answer. Each case must be very carefully examined to determine which legal text contains the right that is being claimed, in what constellation it is applicable, who is obligated by it and whether legal action can be brought. Human rights are contained in various legal sources that take different forms. For example, the Universal Declaration of Human Rights is not legally binding. By contrast, basic rights and human rights that are enshrined in national constitutions – including in Germany's Basic Law – can be invoked before a court, as can the rights contained in the European Convention on Human Rights and the European Charter of Fundamental Rights.
In the case of climate change, there is a further difficulty in the form of the extensive leeway that states have. When it comes to enforcing protective duties, the courts are extremely reluctant to determine that a right has been infringed: under the system of separation of powers, it is not for the courts to take policy decisions that are the responsibility of the democratically legitimated legislature or the government. The courts therefore step in only when the measures that are taken are clearly inadequate. Does this mean that no further legal protection is accessible in connection with climate change? After all, by adopting the Framework Convention on Climate Change the states have committed themselves at international level to action on climate change, and most countries also have a national climate poli-cy. Is that sufficient?
The latest Special Report by the Intergovernmental Panel on Climate Change (IPCC) on the 1.5 degree target concludes, inter alia, that the existing two-degree target would have catastrophic and irreversible consequences: once certain tipping points are reached, domino effects would cause global warming to take place at an even faster pace than it is already doing as a result of anthropogenic emissions. Ac-cording to the report, limiting global warming to 1.5 degrees requires a radical change of approach, and an immediate one at that. But what is actually happening? The latest report by the International Energy Agency states that worldwide CO2 emissions are still rising rather than falling. As a result, even the two-degree target is starting to move out of reach. With warming already having reached one degree, we are heading for warming of three or even four degrees. More and more people are therefore deciding to take legal action.
2018: The year of climate lawsuits in Germany
2018 was the year in which the Universal Declaration of Human Rights celebrated its 70th anniversary and a once-in-a-century summer brought extreme heat and unusually low rainfall that stressed even the most ardent sun worshippers in Germany and elsewhere. It was also the year in which climate lawsuits entered the fray as a new tool in the battle against climate change. From a German perspective, 2018 was the year of climate lawsuits. In the spring, people affected by climate change – including a family from Germany – brought an action in the General Court of the European Union on account of the EU’s inadequate climate policy. Another lawsuit followed in October, when farmers and Greenpeace filed a complaint against the German government, citing its failure to meet its climate targets. And a month later a plaintiff coalition brought a complaint of unconstitutionality before the Federal Constitutional Court. These cases will be described briefly here, since they illustrate how human rights can be invoked in climate change litigation.
People’s Climate Case
Families from the EU, Kenya and Fiji are taking the European Parliament and the Council of the EU to court in an attempt to enforce more ambitious climate change mitigation targets. They claim that the EU’s target of reducing domestic greenhouse gas emissions by 40% by 2030 is insufficient to protect them from the threats posed by climate change and they assert that their rights are already being infringed. Some are affected by heat waves and droughts and the risk of forest fires and desertification; others could lose their livelihood to rising sea levels and storm surges. They want to have the 40% target declared unlawful and see it rescinded, with the defendants being obliged to set a higher target.
It is argued that the EU must avert potential damage as a result of climate change. In legal terms the claimants are basing their case on Article 191 of the Treaty on the Functioning of the European Union, which specifies combating climate change as one of the objectives of the Union’s policy on the environment; they are also invoking customary international law and the EU Charter of Fundamental Rights. They allege that the EU’s present climate policy infringes their fundamental rights to life, health, property and freedom of occupation, claiming that because of the causal connection between climate change and greenhouse gas emissions, the EU is obliged to regulate these emissions. And because the damage and threats are already a reality, further emissions – so they say – are unlawful unless they can be justified on the grounds that they have been reduced to the extent that is technically and economically feasible. However, emissions reductions of far more than 40% are feasible, they argue. The plaintiffs adduce studies which conclude that a reduction of 50-60% could be achieved by 2030. Furthermore, they point out that the planned reduction is not in line with the Paris Agreement, which aims to limit global warming to less than two degrees. The need for urgent revision was underlined by the subsequent Special Report of the IPCC on the 1.5 degree target.
Climate lawsuit against the German government
The action against the German government that is currently before the administrative court of Berlin also centres on climate change mitigation targets. In this case, though, the focus is not on defining more ambitious targets but on enforcing those that have already been set. The German government has set itself a climate change mitigation target of reducing greenhouse gas emissions by 40% by 2020. This target is enshrined in its Climate Protection Programme 2020 – but the closer we get to 2020, the clearer it becomes that this target will not be met. It is now estimated that the reduction will amount to only 32%. The plaintiffs also point out that abandoning the 2020 target means that greenhouse gas emissions will significantly exceed Germany’s designated allowance. Their argument is based on the fact that the reduction targets were set in the light of a two-degree limit on global warming and on the assumption of a linear reduction. However, since 2010 no further reduction has been achieved. This means that even if the later targets (for 2030, 2040, 2050) were to be achieved, the missed 2020 target and the insufficient reductions in previous years would result in Germany’s quota of greenhouse gas emissions being exceeded. To compensate for this, the targets for subsequent years need to be adjusted so that the excess is offset by correspondingly quicker future reductions.
The plaintiffs want the court to determine that the German government is obliged to take appropriate steps to ensure that the 2020 target is in fact met. A study produced by the Fraunhofer Institute in August 2018 shows that this is still possible. At the same time, the plaintiffs want the national Climate Protection Programme to be supplemented so that the excess emissions that have already occurred – measured against the original targets – are offset elsewhere.
A key issue here will be whether protecting citizens is a specific function of the Climate Protection Programme, and whether it confers subjective rights. The plaintiffs are invoking their fundamental rights and asserting that abandoning the 2020 climate change mitigation target represents impermissible interference in their constitutionally guaranteed fundamental rights and their human rights. 
The complainants who have turned to the Federal Constitutional Court are also of the view that their fundamental rights are being infringed by Germany’s inadequate climate policy. They believe that the German government is obliged to systematically combat global warming, since the resulting heat waves and natural disasters are already breaching the rights to life, health and property. The focus here is on limiting global warming to 1.5 degrees: according to the plaintiffs, constitutional law requires this to be regarded as the target of the reduction obligation. Although politicians do in principle have some latitude in decision-making, it is claimed that current policy oversteps the mark in this respect. The case is being brought by an alliance of the German association for the promotion of solar energy (SFV), Friends of the Earth Germany (BUND) and single claimants.
And elsewhere? A look further afield
The number of climate lawsuits worldwide is growing rapidly, and at an ever-faster pace. Climate change is a global issue, and litigation is likewise taking place all over the world. A summary of climate change lawsuits is maintained by the Sabin Center for Climate Change Law; the website provides two databases of relevant cases – one for U.S. and one for non-U.S. climate change litigation. A glance at the lists reveals just how varied the litigation issues are and how broadly the term “climate lawsuit” can be interpreted. Members of the public and NGOs sue their governments for more ambi-tious targets. Cities and municipal authorities take oil companies to court, demanding that they meet the costs of climate-related damage. Investors take legal action to halt investment in energy from fossil fuels on the grounds that it is not sustainable. Climate lawsuits can be subdivided into suits against governments and suits against private actors.
The suits against governments cover a wide spectrum of possible litigation issues. They include cases that, while closely linked to climate change, do not focus on it directly. Such cases might involve authorisation to operate a coal-fired power plant or they may concern the conservation of ecosystems. Of course there are also cases – such as those described above – that are aimed directly at countries’ reduction targets and are therefore particularly political.
The most prominent one in the European context is undoubtedly the Dutch decision in the Urgenda case. The Hague Court of Appeal has now decided in favour of the claimants and ordered the Dutch government to take more effective action on climate change. The judgment requires the government to cut greenhouse gas emissions by at least 25% by 2020. The legal basis of the court’s decision was the state’s duty of care: the court considered inadequate mitigation of climate change to be a dangerous violation of this duty. A particularly noteworthy point is that the court saw the current state of climate research as imposing specific obligations for action on the state. It took the view that in legal terms a government’s duty to avert climatic changes that impact on life and health dictates adoption of an emissions reduction pathway geared to the two-degree target specified by the IPCC. The decision was taken before publication of the IPCC Special Report that clearly recommends a 1.5 degree target – had this not been the case, would the decision have gone even further?
In civil law proceedings, human rights and fundamental rights are not directly applicable. An example of this is the first explicit climate lawsuit in Germany, Lliuya v. RWE. This involves a Peruvian small-holder, Luciano Lliuya, who lives downstream of a glacial lake in the city of Huaraz in the Andes. Lliuya is suing RWE because the company is one of the largest emitters of greenhouse gases in the world. Lliuya's land is at risk of being flooded as the melting glacier causes the lake’s water level to rise. The melting of the glacier is in turn caused by global warming, which is a result of anthropogenic greenhouse gas emissions. RWE has made a not insignificant contribution to these emissions – and it is a contribution that can be quantified. The aim is to hold RWE accountable for its contribution and secure its financial participation in the measures needed to prevent the lake flooding.
The last resort for action against climate change: can the courts fix it?
If rights are infringed, those affected – if they live in a state governed by the rule of law – can take legal action. In the context of human rights it is fundamental that rights are legally enforceable and that they can be invoked against an apparently more powerful opponent, such as the state. Climate change poses risks to human rights that are unprecedented in their intensity, irreversibility and the global na-ture of their impacts. The ever-increasing frequency of appeals to the courts to curb these breaches of rights is undoubtedly due in part to the fact that we can no longer afford to wait for politicians to bring about change. There have been setbacks, but there have also been victories to celebrate – such as the Dutch decision in the Urgenda case and the commencement of the taking of evidence in the case of Lliuya v. RWE, which represents a major interim success.
The climate lawsuits alone will not halt climate change. And the task of making rules and taking measures that provide effective protection for citizens both now and in the future remains first and foremost the responsibility of policymakers. But because they are failing in this, civil society is taking action. Seeing the creative and varied ways in which people all over the world are campaigning for changes in climate policy gives cause for hope. People are demonstrating and striking. In divestment campaigns people are calling for public institutions to stop investing in fossil energy companies. And legal action is being taken. Climate lawsuits do not stand alone, but they are an extremely effective and increasingly important part of the battle against climate change. They demonstrate that climate policy is not a rights-free zone and that climate change is already infringing people’s rights. These law-suits point out responsibilities and drive up the price of continuing to do nothing. So far the majority of cases have been brought in a national context. But the problem remains that the people who have contributed least to climate change are most severely affected. Perhaps we shall in future see more litigation across national borders.
This means, for example, that those who are affected must be informed and involved when steps are taken to combat climate change or adapt to it.
 In particular the right to property under Article 14(1) of Germany’s Basic Law (Grundgesetz, GG), the right to freedom of occupation under Article 12(1) GG, the right to the protection of life and health under Article 2(2) GG and rights under the European Convention on Human Rights (ECHR)