WYCJ Symposium: Climate change litigation: stepping stones towards an International Court of Justice Advisory Opinion?

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Following the previous blog post, which discussed the relevance of earlier Advisory Opinions from the International Court of Justice (ICJ), this entry turns to the potential value of domestic and international litigation. Climate change litigation has become an increasingly prominent component in the fight against climate change. While definitional uncertainty remains, it is, in its core, the process of enforcing legal rights in front of a formal institution, in a climate change context (Vanhala & Hilson 144-5; Peel & Osofsky 23-4).

Particularly in recent years, climate change litigation has emerged as a tool of legal mobilization (Ghaleigh 34-6). The rather stagnant development of (international) climate change legislation has prompted citizens, NGOs, and decentralized governments to turn to litigation, as it has the potential to complement legislation through interpretation and supplementation (Eskander, Fankhauser & Setzer 45-6). Still, litigation remains an ad hoc and volatile approach compared to legislation, and is therefore unsuitable to constitute the foundation of a comprehensive climate change regime. Against this background, the call for an Advisory Opinion from the ICJ on States’ obligations concerning climate change has steadily been growing. Two observable trends in climate change litigation are noteworthy from the World’s Youth for Climate Justice’s (WYCJ) perspective: the rights-based approach, and the focus on intergenerational equity.

Rights-based approach

Due to the recognition and elucidation of the link between climate change and human rights, human rights law is now an often-invoked basis in climate change litigation – so much so that scholars have deemed it a ‘rights turn’. The merit of rights-based arguments is twofold. Firstly, fundamental rights form a strong legal basis, as their binding legal force can be derived from both constitutional law and international law. Secondly, rights-based arguments have significant rhetorical power, because they emphasize the ‘human face’ of climate change impacts.

Two court victories illustrate the beginning of the rights-based approach in climate change litigation. In Leghari v Pakistan, the Lahore High Court acknowledged that climate change is a “defining challenge of our time”, and that the fundamental rights of citizens should therefore be protected from it. It held, moreover, that the focus should shift from environmental justice to climate justice, in order to best protect citizens’ rights from climate change. The decision in Urgenda v the Netherlands received more attention, and was just as ground-breaking in acknowledging that human rights could be violated by governmental inaction on climate change. The Dutch courts considered that the right to life and the right to respect for a private life entail a positive duty of care for the State to undertake a minimum concrete effort to prevent violations of these rights. As climate change comprises a real and immediate threat to human rights, a State would fail to fulfil this duty of care if it would not pursue a minimum emissions reduction target. These landmark cases establish the close connection between a State’s climate policy and its human rights obligations, and demonstrate the potential of rights-based climate litigation to bring about significant changes in policy.

The cases have inspired a surge in rights-based litigation and may have changed the general perception of climate cases (Peel & Osofsky 61, 63-4) – although rights-based climate cases still remain the lesser part of the total (UNEP 41-2). Besides numerous further domestic cases, international (quasi-)judicial bodies have since contributed to the development of the intertwinement between human rights and climate change. The Inter-American human rights regime has been notably diligent in this regard. The Court’s Advisory Opinion on human rights and the environment asserted that a suitable environment is a prerequisite for the full enjoyment of human rights, and that the adverse impacts from climate change can therefore affect the real enjoyment of these rights. This point of view was reiterated and amplified by the Commission in its Climate Emergency Resolution, which acknowledged that climate change is one of the major threats to human rights. For States to comply with their human rights obligations, the Commission observed, they must guarantee the enjoyment of these rights to all persons affected by climate change, while employing fundamental principles, like climate justice, as guidance. Similarly, the Committee on the Rights of the Child emphasized in Sacchi et al v Argentina et al that climate change poses a significant risk to human lives and human rights, and that the failure to take preventative measures could constitute a violation of a State’s human rights obligations.

Intergenerational equity

The focus on intergenerational equity, or intergenerational justice, is another aspect that increasingly emerges in climate change litigation (Abate 46; Beauregard and others 658). The notion of intergenerational equity entails that benefits, or resources, should be divided in an equitable manner over present and future generations. In the context of climate change, it thus constitutes the belief that the actions of current generations should not excessively exhaust and damage the environment, but rather protect it for future generations. Intergenerational equity can be seen as an autonomous concept, but is also associated with the prohibition of discrimination in human rights law.

The concept of intergenerational equity has long been recognised for environmental questions in certain jurisdictions. In Oposa v Philippines, the Supreme Court of Manila already contemplated in 1994 that the right to a healthy environment inevitably includes equitable access to nature for present and future generations. Thus, it held, a responsibility to preserve nature for the benefit of the next generation rests on every generation. As the focus has shifted from environmental litigation to climate change litigation, the reasoning of this court has been extended. For example, in Shrestha v Nepal, the Nepali Supreme Court stated that intergenerational equity is a part of the principle of climate justice – and should therefore be embraced – because climate change poses imminent threats not only to current generations, but also to several generations ahead. Moreover, the recent case Neubauer v Germany concentrated on intergenerational equity, by stipulating that insufficient governmental action now will necessarily lead to drastic measures in the future that can severely impact the enjoyment of fundamental rights of future generations. Thus, the German Constitutional Court arguably made intergenerational equity a justiciable dimension of fundamental rights.

On the international plane, the focus on vulnerable groups – such as children and future generations – is also discernible. The Committee on the Rights of the Child acknowledged that children are specifically impacted by climate change, both because of the way in which they experience it and because climate change potentially affects them throughout their lifetime. The Inter-American Commission on Human Rights also implicated that States should pay particular attention to the protection of children. Moreover, it emphasized that climate change threatens the enjoyment of human rights of both present and future generations, and that the principle of intergenerational equity should therefore be taken into account.

Precedential value?

The question then remains how these developments in climate change litigation can contribute to an ICJ Advisory Opinion on States’ obligations in a climate change context. The principle of precedent does not exist as such in international adjudication, and thus the above-mentioned climate cases hold little precedential value (Guillaume 7-9). Article 38(d) of the ICJ Statute even explicitly provides that judicial decisions are a subsidiary means of determining the rules of law. The ICJ thus has no obligation to follow its own, nor any other court’s decisions.

However, the phenomenon of cross-fertilisation is highly perceptible in international judgments, and might prove valuable in this regard. While many notions have been bestowed upon cross-fertilisation, one of its principal elements is that courts and tribunals take into account and draw upon each other’s jurisprudence (Linderfalk 429-30). Hence, although the ICJ is not obliged to follow established practice, it has the power to take into account other judgments and has in the past demonstrated its tendency to do so (Guillaume 9-12). The legal reasoning employed in climate change case law could thus (in)directly influence the ICJ Advisory Opinion. Consequently, it must be noted that certain judgments carry greater international legal value than others, and are therefore more likely to be drawn upon. For example, international decisions and resolutions are more likely to be taken into account by the ICJ than isolated domestic cases, because they are more representative of the international community’s legal stance on climate change.

In conclusion, the recent increase in climate change litigation has seen two trends that are important for the ICJ Advisory Opinion: the utilization of human rights law as a legal basis, and the focus on intergenerational equity. The development of these aspects in domestic and international jurisprudence can prove valuable for the Advisory Opinion, as the ICJ is capable of taking the legal reasoning behind established case law into account. These cases can thus form the stepping stones leading to an Advisory Opinion that will effectively stipulate States’ obligations under international law to protect the rights of present and future generations against the adverse effects of climate change. The next blog post will elaborate on the legal effects of such an Advisory Opinion.

Lianne Baars is a student pursuing an LLM in Global Environment and Climate Change Law at the University of Edinburgh. Lianne and WYCJ would like to thank Manon for her editorial contributions. Manon Rouby is a French environmental lawyer based in the UK. With WYCJ, she is the Academic Coordinator and part of the Steering Committee.