Rights-based litigation in the climate emergency: mapping the landscape and new knowledge frontiers
Annalisa Savaresi* Associate Professor, Center for Climate Change, Energy and Environmental Law, University of Eastern Finland and Senior Research Associate, University of Stirling (UK)

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Joana Setzer** Assistant Professorial Research Fellow, Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science

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Category:
Research Article
Page Range:
7–34
Published:
Mar 2022
DOI:
https://doi.org/10.4337/jhre.2022.01.01
Volume/Issue:
Volume 13: Issue 1
Keywords:
climate change; climate litigation; human rights; just transition
Open access

This article revisits and expands on extant scholarly inquiries into the so-called ‘rights turn’ in climate litigation, with the objective of providing a more comprehensive appreciation of the role of human rights litigation in the context of the climate emergency. We rely on well-established categories used in the literature on climate litigation and on human rights and the environment to provide the first systematic analysis of rights-based litigation that aligns with climate objectives. Building on this basis, we consider the significant data and knowledge gaps concerning human rights litigation that does not align with climate objectives. We flag the need to better understand the role of rights-based litigation in the context of the complex societal changes associated with a just transition towards net zero emissions. The article contributes to scholarly inquiry into this new and increasingly prominent area at the intersection of human rights and environmental law, highlighting knowledge gaps that deserve further investigation, both from an academic and from a policy and practice perspective.

* Annalisa.savaresi@uef.fi

** J.Setzer@lse.ac.uk

The authors are grateful to Gwenyth Wren for invaluable research assistance in the preparation of this piece. They are also grateful to Catherine Higham, Josh Gellers, Pau de Vilchez Moragues, Dennis van Berkel, Lisa Vanhala and two anonymous reviewers for comments on earlier drafts. Joana Setzer acknowledges support from the Grantham Research Institute on Climate Change and the Environment, at the London School of Economics, and the ESRC Centre for Climate Change Economics and Policy (CCCEP) (ref. ES/R009708/1). The usual disclaimers apply.

1 INTRODUCTION

Litigants around the world increasingly file lawsuits asking state and corporate actors to reduce greenhouse gas emissions and redress the harms associated with the impacts of climate change.1 The literature commonly describes this ‘climate litigation’ as lawsuits raising questions of law or fact regarding climate science, mitigation or adaptation, which are brought before international or domestic judicial, quasi-judicial and other investigatory bodies.2

In recent years, more and more climate lawsuits have invoked human rights and/or have been brought before human rights bodies. At the end of May 2021, the world’s most established climate litigation databases – those compiled by the Sabin Centre for Climate Change Law at Columbia Law School and the Grantham Research Institute on Climate Change and the Environment at the London School of Economics3 – listed 112 (out of 1841) cases that relied in whole or in part on human rights (see Annex). These rights-based lawsuits typically seek to hold to account public authorities and private actors for not taking adequate climate action. Therefore rights-based climate lawsuits strive to fill the accountability and enforcement gaps left by international and national climate change law, which presently provide little to no means to sanction inadequate climate action by state and corporate actors.4

The use of rights-based litigation to target inadequate environmental laws and/or the inadequate enforcement of environmental laws is not new. Human rights have long been invoked to protect environmental interests and provide remedies where environmental law does not.5 This practice has been amply documented in the literature,6 and has been thoroughly mapped by the UN Special Rapporteur on Human Rights and the Environment.7 As climate laws are adopted all over the world, it is therefore hardly a surprise that rights-based litigation has also started to target climate change concerns.

Scholars promptly noticed this new trend, describing it as a ‘rights-turn’ in climate litigation.8 The literature has however taken a largely piecemeal approach to the analysis of this litigation, focusing on the details of individual cases, rather than systematically mapping main trends and patterns in this burgeoning case law.9 There are, in other words, gaps in our knowledge of how rights-based litigation is used to pursue climate objectives, and how it compares with general trends in climate litigation, as well with general trends in rights-based litigation concerning other environmental interests.

There is furthermore a significant gap in our understanding of rights-based litigation that does not align with climate objectives, whereby human rights law and/or remedies are used to challenge measures and projects designed to deliver climate change adaptation and/or mitigation. This phenomenon – which other scholars10 and databases11 have already identified, without analysing it systematically – is also hardly surprising. While fossil-fuel-based economies have undoubtedly created winners and losers, changing the status quo entails striking new equilibria between competing societal interests.12 So, as measures to address the climate emergency are adopted and implemented all over the world, numerous groups will be negatively affected by these new laws and policies – for example, restricting land uses or enabling the development of dams and windfarms. In this connection, the notion of a ‘just transition’ has been invoked to highlight that the benefits of decarbonization should be shared, and that those who stand to lose should be supported.13 In this article we define as ‘just transition litigation’ cases that rely in whole or in part on human rights to question the distribution of the benefits and burdens of the transition away from fossil fuels and towards net zero emissions. While we know that this litigation is happening, at present there are no comprehensive data collections of these cases.

This article therefore sets out to address two significant gaps in the literature. First, we provide a systematic scholarly analysis of rights-based litigation that aligns with climate objectives. In section 2, we analyse the 112 cases listed in the world’s largest climate litigation databases on 31 May 2021 that rely in whole or in part on human rights (see Annex), with the aid of well-established categories developed by the literature on climate litigation. We consider who has brought these rights-based climate cases, against whom and where. The objective is to identify main trends in rights-based climate cases, and to understand how they compare with climate litigation that does not rely on human rights. In section 3 we analyse the same 112 rights-based climate cases, using standard categorizations deployed in the literature on human rights and the environment. The objective is to identify the human rights most invoked in rights-based climate cases, and to compare these with common trends in rights-based litigation concerning other environmental interests.14

Second, we rely on the limited evidence available to identify knowledge gaps concerning rights-based litigation that does not align with climate objectives. Specifically, section 4 relies on the analysis carried out in section 3 to identify knowns and unknowns about what we describe above as ‘just transition litigation’. The objective is to understand rights-based opposition to action taken to address climate change and its consequences. The conclusion brings together the salient points resulting from these analyses and invites greater and deeper scholarly reflection over rights-based litigation, in order to develop a rights-based approach to climate decision-making.15

2 MAIN TRENDS IN RIGHTS-BASED LITIGATION THAT PURSUES CLIMATE OBJECTIVES

When compared with general climate litigation, rights-based climate cases display a few peculiarities.16

First, geographically, rights-based climate cases have been predominantly filed in Europe, followed by North America, Latin America, the Asia-Pacific and Africa. Roughly 13 per cent of rights-based complaints have been lodged before international and regional human rights bodies (Figure 1). This geographical distribution broadly aligns with the main trends detected in litigation involving environmental rights, which has been particularly prominent in Europe and Latin America.17 These regions are endowed with regional human rights bodies that have historically been sympathetic towards the use of human rights complaints to pursue environmental objectives.18 However, this geographical distribution significantly differs from trends observed in general climate litigation, where the vast majority of cases have been brought in the US, followed by Europe and the Asia Pacific, with a comparatively small number of cases filed in Africa, Latin America and before international bodies (Figure 2).19

Figure 1
Figure 1

Geographical distribution of rights-based climate cases

Citation: Journal of Human Rights and the Environment 13, 1; 10.4337/jhre.2022.01.01

Figure 2
Figure 2

Geographical distribution of overall climate cases

Citation: Journal of Human Rights and the Environment 13, 1; 10.4337/jhre.2022.01.01

Second, chronologically, rights-based climate litigation is a comparatively recent phenomenon. Human rights arguments started to feature more prominently in climate litigation after the parties to the climate regime20 and international organizations21 explicitly recognized the links between climate change and human rights law. Rights-based climate lawsuits were lodged with increasing frequency after the adoption of the Paris Agreement in 2015 and over two-thirds of these have been filed since 2018 (Figure 3). Conversely, general climate litigation has steadily risen since 2005 (Figure 4).

Figure 3
Figure 3

Chronological distribution of rights-based climate cases

Citation: Journal of Human Rights and the Environment 13, 1; 10.4337/jhre.2022.01.01

Figure 4
Figure 4

Chronological distribution of overall climate cases

Citation: Journal of Human Rights and the Environment 13, 1; 10.4337/jhre.2022.01.01

As we noted, this rise in rights-based litigation arguably is a result of efforts to bridge the accountability and enforcement gaps affecting climate change law, both at the international and the national level. Climate law is still in its infancy and, even where it exists, it typically does not provide for measures to hold public and private actors to account for failing to meet climate targets. Climate litigants therefore increasingly rely on various sources of law, including human rights law and remedies, in order to bridge these accountability and enforcement gaps.

In this section, we analyse rights-based climate cases, distinguishing between the type of defendant and applicant; the type of climate action under dispute; the role of climate change and human rights in litigation; and the outcomes of the litigation.22

2.1 The type of applicant and defendant

The literature typically distinguishes climate lawsuits on the basis of the type of applicants (individuals and/or groups, corporations, governments, NGOs) and defendants (state, public authorities and corporations).23

In general climate litigation, the vast majority of cases have been brought against states and public authorities by corporations, followed by individuals, governments and NGOs, or both acting together.24

Rights-based climate litigation only partially aligns with this general trend. The applicants in rights-based climate cases typically are individuals (48) and groups (51) or a combination of individuals and groups (4). Only very few cases have been brought by industry groups (3),25 subnational governments (2)26 or indigenous peoples’ self-government bodies on behalf of their members (3).27 In one instance courts have considered human rights grievances proprio motu (1).28 This constellation of applicants in rights-based litigation is to be expected, given that individuals and groups are the main, if not the sole, rights-bearers under human rights law. It is therefore rather unusual for corporate actors to bring a complaint on the basis of human rights law. This stands in contrast with general climate litigation, which has frequently seen corporate actors initiating cases to challenge new climate law measures or the withdrawal of licences and permits.

The defendants in rights-based climate cases typically are states and public authorities (93 out of 112 cases). This is also to be expected, as in human rights law states are the primary entities with duties. This ratio of cases is not too different from that observed in general climate litigation.29 In recent years, however, the growing recognition of corporate actors’ human rights responsibilities at the international,30 regional31 and national32 level has been associated with a rise in litigation concerning corporate human rights abuses.33 Relatedly, there is a small but rapidly rising number of rights-based climate cases specifically targeting corporations, asking domestic courts and non-judicial bodies to interpret corporate due diligence obligations in light of human rights law and of the temperature goal enshrined in the Paris Agreement. At the time of writing, 16 such cases have been recorded, with 12 cases filed by NGOs and four by individuals. Despite being relatively rare, these cases have attracted considerable attention, due to their ground-breaking nature and potentially revolutionary impacts.34

2.2 The types of climate action: adaptation, mitigation and/or compensation

The literature typically distinguishes lawsuits on the basis of the type of climate action pursued, that is, whether the applicants complain about measures concerning climate change mitigation, adaptation or both.35

The vast majority of climate litigation concerns either mitigation or a combination of mitigation and adaptation. Only 180 cases concern adaptation alone.36 Although adaptation is commonly viewed as a responsibility of state authorities,37 23 adaptation cases have been filed against corporations, with the aim of establishing corporate liability for past contributions to climate change.38 These include a series of cases brought by states and municipalities in the US, seeking billions of dollars in damages for climate change adaptation infrastructure, such as sea walls to protect coastal properties.39

Rights-based litigation broadly reflects these trends: 83 of 112 concern mitigation, 9 concern adaptation and 20 both mitigation and adaptation. Rights-based cases dealing with adaptation argue that human rights law imposes obligations on states to act to address climate impacts, and/or to refrain from activities that cause climate change. Instead, we have identified only one rights-based climate case dealing with adaptation and brought against a corporation.40

Rights-based complaints concerning climate mitigation typically argue that human rights law imposes on states/corporations the obligations to reduce greenhouse gas emissions and to adopt measures to fight climate change. In the famous case Urgenda Foundation v The State of the Netherlands,41 for example, a group of individuals and NGOs relied in part on human rights law arguments to challenge the Dutch government’s inadequate action on climate mitigation. Another 37 cases have since built on similar strategies,42 which van Berkel et al. describe as ‘systemic mitigation’ litigation.43

At least in principle, litigants in rights-based cases can also seek compensation for harms associated with the impact of climate change. But while the use of human rights to seek redress for loss and damage has been the subject of much scholarly speculation,44 rights-based cases specifically seeking redress for the impacts of climate change are yet to materialize in a significant way.45

2.3 The role of climate change and of human rights: central or peripheral

The literature typically categorizes climate litigation according to the role that climate concerns play in applicants’ pleadings or in courts’ judgments.46 Climate concerns are therefore ‘central’ whenever climate law or policy is at the core of the applicants’ complaint. Climate concerns are considered ‘peripheral’ in litigation that only broadly deals with climate change policy and law, but largely focuses on other matters. Finally, the literature suggests that climate concerns are ‘incidental’ in cases that do not explicitly mention climate law or policy, but that nevertheless still have a clear impact on emissions. For example, climate change concerns are incidental in complaints concerning deforestation or the operation of coal power plants, which do not mention climate change explicitly. Climate litigation databases generally do not include cases where climate concerns are only incidental.

Analyses of global ligation trends reveal that climate concerns tend to be peripheral in most climate cases.47 This trend contrasts with rights-based climate litigation, where climate concerns are central in most (76 out of 112) and peripheral in fewer cases (36 out of 112). For example, climate change is central in Juliana v US,48 whereby 21 young people alleged that the government’s ‘affirmative actions’ causing climate change had violated their constitutional rights to life, liberty and property. Conversely, climate change is peripheral in PSB et al. v Brazil (on Amazon Fund),49 whereby four political parties asked a Brazilian court to order the Ministry of the Environment to resume activities to protect the Amazon and avoid deforestation, which is the main source of greenhouse gas emissions in the country.

We used a similar approach to understand whether human rights concerns play a central or peripheral role in rights-based climate litigation. Human rights concerns are ‘central’ whenever human rights are at the core of the applicants’ climate case. Human rights concerns are instead considered ‘peripheral’ in climate litigation that relies on human rights, alongside other sources of law. Applying these categories, we found that human rights played a central role in 75 out of 112 rights-based cases, where applicants relied solely on human rights law to formulate their grievances. For example, in Sacchi et al. v Argentina et al. a group of children asked an international human rights body – the UN Committee on the Rights of the Child – to investigate multiple alleged human rights violations perpetrated by states as a result of the actual and projected impacts of climate change.50 Similarly, in the so-called Carbon Majors inquiry, a group of Filipino citizens and civil society organizations asked a national human rights body – the Philippines Human Rights Commission – to consider alleged human rights violations associated with corporate greenhouse gas emissions.51

Conversely, human rights played a peripheral role in 37 cases, where they were used to corroborate and support complaints largely based on administrative or private law obligations. In these cases, applicants typically argued that state or corporate actors’ duties under administrative law or tort law must be interpreted in light of human rights obligations. Some of the most celebrated climate cases have relied on this approach. For example, in both Urgenda52 and Milieudefensie et al. v Royal Dutch Shell plc,53 the applicants invoked human rights duties enshrined in international and EU law to define the scope of state and corporate duty of care and due diligence obligations under national tort law. In both cases, human rights considerations were peripheral in the applicants’ arguments, but turned out to be decisive to the outcome of litigation, as the courts largely relied on human rights law to justify their decisions.54

2.4 The outcomes of litigation

The literature on climate litigation identifies different ways to categorize the outcomes of lawsuits. A narrow approach considers the ‘direct outcome’ of a case, looking at the final decision of the adjudicating body, vis-à-vis the requests of the applicants to determine whether that outcome advances or undermines climate action.55 A broader approach focuses on the ‘overall impact’ of the case, both inside and outside of, as well as before, during and after, the legal proceedings. Such impact might include (but is not limited to) changes to the behaviour of the parties, and/or to public opinion, as well as financial and reputational consequences for a variety of actors, and further litigation.56

In this article we follow the narrow approach and only consider the direct outcomes of climate litigation. As such, we consider cases to be ‘successful’ where the adjudicating body found in favour of climate action. We consider cases to be ‘unsuccessful’ where the judge ruled against climate action. Based on this definition, of 57 rights-based climate cases that have been decided to date, 25 were successful and 32 were unsuccessful (Figure 5).

Figure 5
Figure 5

Outcome of human-rights-based climate litigation

Citation: Journal of Human Rights and the Environment 13, 1; 10.4337/jhre.2022.01.01

Compared with overall trends in climate litigation outside the US, rights-based cases so far have been comparatively less successful than other climate litigation, where over half of the decided cases delivered outcomes that are supportive of climate change action (Figure 6).57

Figure 6
Figure 6

Outcome of climate litigation outside the US

Citation: Journal of Human Rights and the Environment 13, 1; 10.4337/jhre.2022.01.01

However, not all ‘wins’ are due to successful human rights arguments. For example, in Friends of the Irish Environment v the Government of Ireland the Irish Supreme Court quashed the government’s climate change plan because it was deemed to be inadequate vis-à-vis national climate law, not because it was inconsistent with the protection of human rights.58 Therefore, the success of climate cases cannot be unequivocally attributed to human rights arguments. Further research should explore in a more granular way the extent to which human rights determine the success of climate cases.

2.5 Main trends – analysis and assessment

In 2018 Jacqueline Peel and Hari Osofsky identified a ‘rights turn’ in climate litigation.59 The turn they first detected has since significantly intensified. Our analysis of rights-based litigation that aligns with climate objectives has revealed that the vast majority of cases concern mitigation, target states, and are brought by citizens and NGOs. Rights-based cases targeting corporations are still relatively rare and are typically constrained by the limited development of human rights law concerning corporate actors. Ongoing international and regional law-making processes on corporate due diligence may soon change this state of affairs.

In the meantime, the picture of rights-based climate litigation is rapidly evolving, with most cases pending, but with a few important milestone victories. Many of these cases deal with fundamental questions and values and frequently have high visibility. Therefore, their wider impacts can already be felt, even if cases remain ongoing.60

There seems to be scope for rights-based climate litigation to continue expanding in the foreseeable future. With growing international consensus on the causes of climate change and increased evidence of its impacts, more litigation concerning climate change adaptation and climate-forced displacement seems likely. Lessons on how to use climate litigation most effectively and strategically are already being learned and shared.61 This knowledge will be precious, as more countries around the world adopt and implement dedicated climate legislation. Future climate litigation is likely to focus more and more on the enforcement of legislation, and on state or corporate failure to meet climate targets.

3 HUMAN RIGHTS STRATEGIES IN CLIMATE LITIGATION

The literature on human rights and the environment typically characterizes rights-based litigation according to the types of rights invoked, which in turn require states to take different kinds of action. These distinctions entail a degree of arbitrariness associated with the fact that typically human rights complaints do not invoke only one human right, and/or a single type of obligation. Nevertheless, this approach to case law analysis is routinely applied by the literature,62 in reports commissioned by international organizations63 and human rights bodies64 when investigating how rights-based litigation is used in the pursuit of environmental interests. This literature also distinguishes between substantive and procedural obligations associated with the protection of environmental interests.65

In extreme synthesis, substantive obligations – such as those associated with the right to life, adequate housing, food and the highest attainable standard of health – require preventative measures to avert human rights violations associated with environmental harm, as well as remedial measures to redress such violations, once they have occurred. Procedural obligations, instead, require access to remedies for human rights violations associated with environmental harms, which might include monetary compensation and injunctive relief. The right to take part in the conduct of public affairs also requires public participation in environmental decision-making, especially by those likely to be affected, as well as adequate access to environmental information.66

As noted above, so far the literature has made no systematic effort to ascertain what specific human rights are invoked and what strategies are deployed in rights-based climate litigation. This section bridges this gap, applying standard human rights categorizations to analyse the 112 rights-based climate cases included in the Annex. We analysed these cases examining applicants’ pleadings and adjudicatory bodies’ decisions, as well as decisions at the appeals stage, where available. We report below the result of our analysis, distinguishing between the defendants (state/corporate) and the types of human rights obligations (substantive/procedural) invoked.

3.1 State actors

According to the UN Special Rapporteur on Human Rights and the Environment (UNSR), states’ substantive human rights obligations in relation to climate change may be divided into three main categories. First, states have positive duties to adopt adequate measures, including legislation, concerning climate change adaptation and/or mitigation. Second, states have positive duties to enforce legislation, and to provide redress to those suffering from the impacts of climate change. Third, states have negative duties to refrain from authorizing activities (such as, for example, oil concessions) and from themselves undertaking activities that contribute to human rights violations.67

States’ procedural obligations require them to assess the impacts both of climate change and of measures to tackle climate change, and that they make such information public. They furthermore must provide access to remedies for climate-related human rights violations. Finally, states must facilitate public participation in decision-making over action to tackle climate change, especially by those likely to be affected. States must furthermore protect individuals and groups against abuse by third parties, including business enterprises, by taking steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication (Figure 7).68

Figure 7
Figure 7

States’ human rights obligations associated with climate change

Citation: Journal of Human Rights and the Environment 13, 1; 10.4337/jhre.2022.01.01

In this section, we use these categories to analyse the way in which obligations have been invoked in rights-based litigation.

3.1.1 Substantive obligations

A total of 79 rights-based climate cases relied in whole or in part on states’ substantive human rights obligations; 60 of these were filed since the adoption of the Paris Agreement in 2015. Most of these cases rely on states’ positive duty to adopt adequate climate legislation, and on their negative duty to refrain from adopting measures and authorizing projects that have negative climate impacts.

3.1.1.1 Positive duty to adopt legislation

In 34 cases, climate applicants pursued a classic strategy in rights-based litigation: to demand that states take positive legislative/executive action to tackle environmental degradation that affects the enjoyment of human rights.69 In Urgenda,70 for example, the applicants argued that substantive obligations associated with human rights enshrined in international law – namely, the rights to life and to respect for family life – impose upon states a positive duty to adopt legislation and other measures to mitigate climate change. The Dutch courts heavily relied on these substantive obligations as formulated and interpreted under the European Convention of Human Rights to set the contours of the Dutch state’s duty of care standards, finding that it had fallen short. As noted above, although human rights arguments were peripheral to the applicants’ pleadings, they gained prominence in the court proceedings and ended up being decisive on appeal and before the Dutch Supreme Court.71

Similar strategies have been attempted in relation to adaptation. For example, in the Torres Strait Islanders complaint pending before the UN Human Rights Committee,72 the applicants relied on Australia’s positive duties associated with the protection of the rights to life, culture, to be free from arbitrary inference with privacy, to argue for the adoption of legislation and other measures to adapt to the impacts of climate change and to lament the lack of adequate action to deal with climate-related internal displacement. In this, as in the other climate-change-related complaints before human rights bodies, human rights play a central role.

3.1.1.2 Positive duty to enforce legislation

In 15 cases, applicants relied on another classic strategy in rights-based environmental litigation, arguing that states cannot respect, protect and fulfil human rights while breaching environmental legislation they have themselves adopted.73 In these climate cases, therefore, applicants typically rely on states’ human rights obligations to enforce extant laws concerning mitigation, adaptation, or both. For example, in PSB et al. v Brazil, four political parties alleged that failure to implement Brazil’s Action Plan for the Prevention and Control of Deforestation in the Legal Amazon had violated the right to a healthy environment of Indigenous peoples and future generations.74 Similarly, in Leghari, the applicant successfully argued that the Pakistani authorities had failed to properly implement extant plans and policies concerning both climate mitigation and adaptation, leading to a breach of his right to life, and, implicitly, of the right to a healthy environment.75

In some of these cases applicants have not only requested the enforcement of extant laws, but also the recognition of new human rights.76 For example, in IEA v Brazil the applicants asked the court to order the government to control deforestation in the Amazon, calling for the recognition of the right to a stable climate system capable of sustaining human life as a new and autonomous dimension of the right to a healthy environment, which is already protected by the Brazilian constitution.77

3.1.1.3 Negative duty to prevent human rights violations

In 30 climate cases, applicants deployed another consolidated strategy in environmental litigation: they argued that states should refrain from authorizing activities or adopting policies leading to environmental impacts that in turn affect the enjoyment of human rights, such as those to life, family life, property or to a enjoy an environment of a certain quality.78 For example, in Nature and Youth and Greenpeace Norway v The Government of Norway,79 the applicants unsuccessfully invoked, among others, the right to a healthy environment to challenge the Norwegian authorities’ decision to issue new production licences for oil and gas in the Arctic. Here human rights concerns were only peripheral in the line of argumentation pursued by the applicants, and, rather controversially,80 did not significantly influence the thinking of the Norwegian courts.

3.1.2 Procedural obligations

Only 14 rights-based climate cases were filed against governments, relying in whole or in part on procedural human rights obligations. Nine of these were filed since the adoption of the Paris Agreement in 2015. The vast majority of these cases rely on the state’s positive duty to provide access to information, but lately cases have started to rely also on the state’s duty to provide access to justice.

3.1.2.1 Access to information

The right to access to environmental information is frequently deployed in rights-based litigation.81 So far, 12 rights-based climate cases have specifically relied on this right, arguing that states have a duty to assess the impacts of both climate change and of measures to tackle climate change, and to make such information public. For example, in Greenpeace Luxembourg v Schneider, the applicants complained that the public authorities had failed to respond to a request for information concerning how the national sovereign pension fund planned to align investments with the objectives of the Paris Agreement, and concerning the climate-related risks associated with said investments.82

3.1.2.2 Participation

The right to participation in environmental decision-making is frequently deployed in rights-based litigation, particularly in Europe.83 We could identify only two climate cases that relied solely on this right.84 In other cases, applicants relied on the right to participation alongside other rights. For example, in Friends of the Irish Environment CLG v Fingal County Council the applicants unsuccessfully tried to rely on the right to participate in decision-making to challenge a decision to grant a planning permission extension to construct a new runway at Dublin airport.85

3.1.2.3 Access to justice

We could not identify any rights-based climate lawsuits that relied solely on the right to access to justice. In other cases, applicants relied on this right alongside other rights. As lawsuits fail, however, applicants are more likely to resort to higher courts or to international human rights bodies to complain about lack of access to justice. For example, in Klimaseniorinnen, after national courts’ refused to hear on the merits their complaints over Switzerland’s inadequate climate policy, a group of elderly Swiss applicants complained to the European Court of Human Rights for alleged breaches of the rights to access to justice and to an effective remedy.86 Similarly, in Armando Carvalho and Others v The EU Parliament and Council87 the applicants unsuccessfully argued that the refusal of the Court of Justice of the EU to consider the merits of their complaint against EU climate legislation had breached their right to access to justice.88

3.2 Corporate actors

As noted above, in recent years there has been a growing recognition of corporate actors’ human rights responsibilities,89 which has been accompanied by a rise in human-rights-based litigation against corporations.90 In this context, some national91 and international92 adjudicating bodies have maintained that businesses ‘must respect and protect human rights, as well as prevent, mitigate, and accept responsibility for the adverse human rights impacts directly linked to their activities’.93

According to the UNSR, corporate human rights responsibilities in relation to climate change have two main facets. On the one hand, corporate actors have a responsibility to reduce greenhouse gas emissions – including those produced by their own activities and by their subsidiaries, their products and services – and to minimize emissions from their suppliers – as well as to support, rather than oppose, public policies intended to effectively address climate change.94 On the other hand, at a procedural level, corporate actors also have a responsibility to publicly disclose their emissions, climate vulnerability and the risk of stranded assets; and to ensure that people affected by business-related human rights violations have access to effective remedies95 (Figure 8).

Figure 8
Figure 8

Corporate human rights responsibilities associated with climate change

Citation: Journal of Human Rights and the Environment 13, 1; 10.4337/jhre.2022.01.01

As we also noted above, however, rights-based climate litigation against corporate actors remains rare. Only 16 rights-based climate cases target corporate actors. The sample of cases is therefore significantly smaller, when compared with litigation targeting states.

3.2.1 Substantive duties

3.2.1.1 Positive duty to reduce emissions

In the 16 rights-based climate cases brought against corporations, applicants typically argued that corporate actors have a positive duty to reduce emissions, and thus to contribute to climate change mitigation.96 For example, in Milieudefensie, a group of activists and NGOs successfully argued that Shell should reduce its emissions and align with the temperature goal enshrined in the Paris Agreement,97 construing the corporate duty of care and due diligence under Dutch tort law on the basis of human rights obligations associated with the protection of the right to life and the right to privacy. The applicants furthermore successfully alleged that Shell has a specific duty to prevent the serious risks caused by the emissions they generate.98 The Court specifically cited ‘the widespread international consensus that human rights offer protection against the impacts of dangerous climate change and that corporations must respect human rights’.99 The Court went as far as saying that the responsibility of business enterprises to respect human rights ‘is a global standard of expected conduct for all business enterprises wherever they operate’.100 These findings are pathbreaking, given that Shell does not have formal obligations under international human rights law.101

3.2.1.2 Positive duty to support climate policy

Four rights-based climate complaints relied on human rights recognized in national and international law to argue that corporate actors have a positive duty to support, rather than oppose, climate policies and their enforcement. In the landmark Carbon Majors inquiry carried out by the Philippines Human Rights Commission,102 civil society organizations lamented human rights violations associated with the impacts of climate change, and the responsibility of the so-called Carbon Majors for causing these. The applicants alleged breaches of a series of human rights recognized both in national and international law, most saliently the rights to life, to the highest attainable standard of physical and mental health, to food, to water, to sanitation, to adequate housing and to self-determination.103 They furthermore alleged that the Carbon Majors have long known that the use of their products substantially contributes to climate change, which, in turn, has a significant impact on vulnerable populations. Finally, the applicants claimed that, to pre-empt the adoption of measures reducing greenhouse gas emissions, the Carbon Majors knowingly advanced or promoted misleading information, casting doubt on the connection between fossil fuels and climate change.104 As such, the applicants argued that the Carbon Majors should be held responsible for the human rights violations associated with the increasingly severe impacts of climate change in the Philippines.105

3.2.1.3 Negative duty to refrain from activities causing harm

In ten rights-based climate cases against corporate actors, the applicants specifically relied on corporations’ negative duty to refrain from activities causing harm. For example, in the Carbon Majors inquiry, the applicants highlighted the corporate negative duty to refrain from activities causing harm as a result of substantive obligations associated with the protection of the right to life.106 Similarly, in Notre Affaire à Tous and Others v Total the applicants asked the court to issue an injunction ordering Total to prevent environmental damage, which they linked to corporate human right duties under French due diligence legislation.107

3.2.2 Procedural duties

We found only two rights-based climate complaints relying on corporate procedural duties. Both were lodged with the National Contact Points (NCPs) established under the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises and alleged insufficient disclosure of emissions, climate vulnerability and stranded assets. In one of these cases, a Polish NGO complained about lack of information concerning corporate emissions and the financial impacts of insuring coal mining in Poland. In response, the Polish NCP recommended that the company disclose relevant non-financial information and adopt policies that respect human rights.108 In the other case, a Japanese NGO complained that three banks had failed to require the sponsors of coal-fired power plants to disclose information about the projects’ emissions and measures to mitigate these.109 The applicants also lamented the banks’ failure to exercise their leverage to ensure that the communities affected by the power stations were adequately consulted during the project development. So far, there seems to be no evidence of cases alleging breaches of the corporate duty to provide remedies against the adverse human rights impacts they cause or to which they contribute.110

3.3 Main trends – assessment

Our analysis of the rights invoked in climate litigation reveals that in most cases applicants and courts rely on states’ substantive human rights obligations, either to take climate action or to avoid harmful activities. This pattern largely aligns with general trends in rights-based environmental litigation, which typically targets states on similar grounds.111

The number of climate cases relying on the positive duty to enforce existing legislation is however rising. As we noted above, with states increasingly adopting climate laws, litigation based on the enforcement of extant laws is likely to increase in future. Similarly, litigation concerning negative duties to refrain from harmful activities, such as oil concessions and logging concessions, can also be expected to rise, as climate considerations become streamlined into public policy and corporate practice.

Conversely, to date, comparatively few rights-based climate cases concern alleged breaches of procedural obligations. Rights-based litigation based on procedural rights is generally frequent, as these rights are typically used to object to activities that are potentially harmful, as well as to react to environmental harms once they have occurred.112 The small number of climate cases relying on procedural rights can be explained by the fact that traditionally complaints over breaches of procedural obligations relate to actual policies and/or projects, and not to a lack thereof. Moreover, complaints concerning access to justice typically emerge only after applicants have had their cases dismissed. So, as climate legislation expands, complaints based on procedural rights are likely to become more widespread, in line with established trends in human-rights-based litigation concerning environmental interests.

The same may be said about litigation targeting corporate actors. Human rights law and remedies are not particularly well suited to pursuing corporate actors. Their increasing use must be viewed as part and parcel of the global movement to enhance corporate accountability for environmental harms, which is at the centre of potentially path-breaking law and policy developments at the regional and international level.113 The outcome of these processes is likely to determine the extent to which human rights arguments and tools will be used in future. In the meantime, extant mechanisms, such as human rights due diligence legislation at the national level and OECD National Contact Points, are likely to continue to remain the main tools used in rights-based climate litigation against corporate actors.

4 JUST TRANSITION LITIGATION: A NEW KNOWLEDGE FRONTIER

The first studies mapping the different types of climate litigation identified the possibility for ‘anti-regulatory’, ‘defensive’ or ‘anti’ cases. Markell and Ruhl used the term ‘anti-regulatory’ to describe lawsuits that aim to delay or dismantle existing or emerging regulatory measures for climate change.114 Peel and Osofsky use the same term to describe litigation which reacts to regulation that promotes climate action.115 Ghaleigh, in turn, labelled this category ‘defensive’ climate litigation, as ‘it defends the status quo of a regulatory vacuum’.116 Similarly, Hilson identified as ‘anti’ cases those brought against local authorities (eg contesting planning permission for wind farms) by industry (challenging new climate laws which affect its economic interests) or by climate change deniers.117 Little systemic knowledge exists on litigation that does not align with climate objectives.118 While climate litigation databases report some ‘anti’ cases,119 they do not report cases where climate change concerns are merely incidental.

The same may be said about rights-based cases that do not align with climate objectives, which we describe as ‘just transition litigation’. In just transition litigation, climate change concerns typically play a peripheral or even incidental role. These complaints do not object to climate action in and of itself, but rather to the way in which it is carried out and/or to its impacts on the enjoyment of human rights. In theory, just transition litigation can be brought by individuals and groups to challenge state and corporate actors, before national or international judicial, quasi-judicial or non-judicial fora.

Given the lack of systemic data, it is not possible to carry out a quantitative analysis of who brings these cases, against whom, where, and on the basis of which human rights. However, the academic and grey literature report evidence of just transition litigation targeting corporate actors and states for breaches of human rights obligations associated with the rights of Indigenous peoples.120 For example, Indigenous peoples and civil society organizations have filed a lawsuit relying on French due diligence legislation, asking that energy company EDF be ordered to suspend the building of a wind farm in Mexico.121 Indigenous peoples have also complained of multiple violations of the right to free, prior and informed consent perpetrated by Mexico in the context of processes for the approval of wind farm projects.122 Similarly, Indigenous peoples have challenged the decision to approve solar energy projects in the US, alleging violations of their rights to be adequately informed and consulted under federal law.123 International human rights bodies have also received complaints challenging measures to reduce forest emissions124 and the construction of hydroelectric dams,125 alleging, amongst other things, breaches of human rights associated with traditional land uses and culture, as well as the rights of Indigenous peoples.

In other just transition cases, applicants have alleged breaches of the right to access to justice, associated with the adoption of climate change legislation and projects. For example, individuals and groups have filed complaints before the European Court of Human Rights, alleging that public authorities’ refusal to reconsider the authorization of wind farm projects had violated, amongst others, the rights to access to justice and access to remedies.126 Similarly, both the UK and the EU have been found to have breached their obligations under the Aarhus Convention, for having adopted renewable energy law and policy without adequate public participation.127

This litigation emphasizes the importance of safeguarding procedural and substantive rights, and of protecting individuals and groups from the arbitrary and unjust decisions of governments and corporations. Human rights bodies have already underscored the need to give voice to vulnerable groups who are most likely to be adversely affected by climate policies or projects, and, as a result, risk becoming victims of ‘climate apartheid’.128 Going forward, there seems to be a clear need to collect and systemically analyse just transition litigation. Greater understanding of this litigation is necessary to appreciate tensions associated with the transition towards zero carbon societies, and ways in which such tensions may be resolved.

5 CONCLUSION

This article set out to provide a more comprehensive appreciation of the role of rights-based litigation in the context of the climate emergency. We carried out the first systematic analysis of rights-based litigation that aligns with climate objectives, revealing main trends and patterns in this burgeoning area of legal practice. Our analysis has delivered new knowledge over who has brought rights-based climate cases, against whom, where, and on the basis of which human rights. We show that, at least to date, the bulk of rights-based litigation on climate change has been brought by civil society organizations and individuals against states, largely before national courts, and on the basis of substantive, rather than procedural, human rights obligations. As Urgenda and other milestone victories have demonstrated, some of this litigation has already helped to engender a change in attitude by courts and lawmakers. Rights-based lawsuits have contributed to the momentum towards the adoption of dedicated and more ambitious climate legislation.129 In future, we predict that more rights-based litigation is likely to focus on the enforcement of this legislation, and on the protection of procedural rights associated with it.

As both climate legislation and litigation progressively reach maturity, there will be scope to use human rights law and remedies more widely in the quest for means to deliver the energy transition away from fossil fuels and to protect those most affected by it. This article has therefore highlighted the need to explore the new frontier of rights-based litigation that does not align with climate objectives. The tensions between the protection of rights and climate action should not be regarded as dysfunctional. Instead, there is a genuine need to better understand the tensions underlying just transition litigation and how to resolve them, in order to fully realize the transformative potential of rights-based approaches for climate decision-making.130 Such approaches are crucial to ensure that governments and corporations take steps to address the climate emergency and its consequences in a manner that ensures the participation of civil society and addresses inequalities. The new knowledge frontier of just transition litigation therefore needs to be urgently explored, to help deliver net zero emissions and an energy transition that is just and inclusive.

ANNEX

The following lists shows the human-rights-based climate litigation analysed in the article in alphabetical order, last update: 31/05/2021.

  1. AD (Tuvalu)

  2. Aji P. v State of Washington

  3. Alec L v McCarthy

  4. Ali v Pakistan

  5. Álvarez v Peru

  6. Animal Legal Defense Fund v Foster Poultry Farms

  7. Armando Ferrão Carvalho v European Parliament

  8. Aronow v Minnesota

  9. Asociación Civil por la Justicia Ambiental v Province of Entre Ríos, et al.

  10. Association for Protection of Democratic Rights v The State of West Bengal and Others

  11. Bard Campaign v Secretary of State for Communities and Local Government

  12. Barhaugh v Montana

  13. Blades v California

  14. Carballo et al. v MSU S.A., UGEN S.A., & General Electric

  15. Carballo et al. v State of the Province of Buenos Aires and the Provincial Agency for Sustainable Development

  16. Carbon Majors Inquiry

  17. Center for Food and Adequate Living Rights et al. v Tanzania and Uganda

  18. Chernaik v Brown

  19. Citizens’ Committee on the Kobe Coal-Fired Power Plant v Kobe Steel Ltd., et al.

  20. City of Lyon v French Deposits and Consignments Fund

  21. Clean Air Council v US

  22. ClientEarth v European Investment Bank

  23. Commune de Grande-Synthe v France

  24. Corporation of the Canadian Civil Liberties Association v Attorney General of Ontario

  25. D.G. Khan Cement Company v Government of Punjab

  26. Development YES – Open-Pit Mines NO v Group PZU S.A.

  27. EarthLife Africa Johannesburg v Minister of Environmental Affairs

  28. Environment-People-Law v Cabinet of Ministers of Ukraine and National Agency of Environmental Investments

  29. ENvironnement JEUnesse v Canada

  30. Envol Vert et al. v Casino

  31. EU Biomass Plaintiffs v European Union

  32. External Contribution to the French Constitutional Council to invalidate the French Parliament’s adoption of an energy and climate bill

  33. Family Farmers and Greenpeace Germany v Germany

  34. Farb v Kansas

  35. Fédération environnement durable et autres (Schéma régional du climat, de l’air et de l’énergie- Schéma régional éolien)

  36. FOMEA v MSU S.A., Rio Energy S.A., & General Electric

  37. Friends of the Earth Germany v Germany

  38. Friends of the Earth v Total

  39. Friends of the Earth v UK Export Finance

  40. Friends of the Irish Environment CLG v Fingal County Council

  41. Friends of the Irish Environment v Ireland

  42. Future Generations v Ministry of the Environment

  43. Gbemre v Shell Petroleum Development Company of Nigeria

  44. Greenpeace Canada v Minister of the Environment, Conservation, and Parks; Lieutenant Governor in Council

  45. Greenpeace et al. v Austria

  46. Greenpeace et al. v Spain

  47. Greenpeace Luxembourg v Luxembourg’s Minister of Social Affairs

  48. Greenpeace Mexico v Ministry of Energy and Others (on the Energy Sector Program)

  49. Greenpeace Mexico v Ministry of Energy and Others (on the National Electric System policies)

  50. Greenpeace Netherlands v State of the Netherlands

  51. Greenpeace Nordic Ass’n v Ministry of Petroleum and Energy

  52. Greenpeace v Secretary of State for Trade and Industry

  53. Hahn et al. v APR Energy S.R.L.

  54. Held et al. v State of Montana et al.

  55. In re Court on its own motion v State of Himachal Pradesh and others

  56. In re Vienna-Schwechat Airport Expansion

  57. Institute of Amazonian Studies v Brazil

  58. Instituto Socioambiental, Abrampa & Greenpeace Brasil v Ibama and the Federal Union

  59. Ioane Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment

  60. Jóvenes v Gobierno de México

  61. Juliana v United States

  62. Kim Yujin et al. v South Korea

  63. Klimatická žaloba ČR v Czech Republic

  64. Korean Biomass Plaintiffs v South Korea

  65. La Rose v Her Majesty the Queen

  66. Leghari v Pakistan

  67. Lho’imggin et al. v Her Majesty the Queen

  68. Marangopoulos Foundation for Human Rights (MFHR) v Greece

  69. Maria Khan et al. v Pakistan

  70. Market Forces v SMBC, MUFG and Mizuho

  71. Mathur et al. v Her Majesty the Queen in Right of Ontario

  72. Mbabazi and Others v The Attorney General and National Environmental Management Authority

  73. Mex M v Austria

  74. Milieudefensie et al. v Royal Dutch Shell

  75. Neubauer v Germany

  76. Notre Affaire à Tous v France

  77. Notre Affaire à Tous v Total

  78. OAAA v Araucaria Energy SA.

  79. Omissions of the United States

  80. Pandey v India

  81. Parents for Future Brazil v State Government of Sao Paulo (‘Famílias pelo Clima v Governo do Estado de São Paulo’)

  82. Partido Socialismo e Liberdade (PSOL) v Federal Union [‘Amazon Fund Case’]

  83. Partido Socialista Brasileiro (PSB) v Federal Union [‘Climate Fund Case’]

  84. Petition of Torres Strait Islanders to the United Nations Human Rights Committee Alleging Violations Stemming from Australia’s Inaction on Climate Change

  85. Petition to the IACHR Seeking Relief from Violations of the Rights of Arctic Athabaskan Peoples Resulting from Rapid Arctic Warming and Melting Caused by Emissions of Black Carbon by Canada

  86. Petition to the IACHR Seeking Relief from Violations Resulting from Global Warming

  87. Petition to the Inter-American Commission on Human Rights Seeking to Redress Violations of the Rights of Children in Cité Soleil, Haiti

  88. Philippi Horticultural Area Food & Farming Campaign, et al. v MEC for Local Government, Environmental Affairs and Development Planning: Western Cape, et al.

  89. Plan B Earth v Secretary of State for Transport

  90. Plan B Earth v The Secretary of State for Business, Energy, and Industrial Strategy

  91. PSB et al. v Brazil (on deforestation and human rights)

  92. PUSH et al. v Sweden

  93. R (People & Planet) v HM Treasury (Queen’s Bench Division, Administrative Court, 2009)

  94. Reynolds et al. v State of Florida

  95. Rights of Indigenous People in Addressing Climate-Forced Displacement

  96. Ruling on Modification to Ethanol Fuel Rule

  97. Sacchi v Argentina

  98. Sanders Reed v Martinez

  99. Sharma and others v Minister for the Environment

  100. Sheikh Asim Farooq v Federation of Pakistan etc.

  101. Shrestha v Office of the Prime Minister et al.

  102. Sierra Club v U.S. Army Corps of Engineers

  103. Sinnok, et al. v State of Alaska, et al.

  104. Six Youths v Minister of Environment and Others

  105. Trans Mountain Pipeline ULC v Misavair

  106. UN Human Rights Committee Views Adopted on Teitiota Communication

  107. Union of Swiss Senior Women for Climate Protection v Swiss Federal Council and Others

  108. Urgenda Foundation v Netherlands

  109. VZW Klimaatzaak v Belgium

  110. Youth for Climate Justice v Austria, et al.

  111. Youth Verdict v Waratah Coal

  112. Zoubek et al. v Austria

Source: All cases are available from the Grantham Research Institute on Climate Change and the Environment at the London School of Economics at <https://climate-laws.org/> and the US cases are available from the Sabin Centre for Climate Change Law at Columbia Law School, at <http://climatecasechart.com/>.

  • 1↑

    This matter has been extensively investigated in the literature, see eg

    Vanhala Lisa & Hilson Chris , '‘Climate Change Litigation: Symposium Introduction’ ' (2013 ) 35 Law & Policy : 141.

    Peel Jacqueline & Osofsky Hari M , Climate Change Litigation , (Cambridge University Press, 2015 ).

    Setzer Joana & Vanhala Lisa C , '‘Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance’ ' (2019 ) 10 Wiley Interdisciplinary Reviews: Climate Change : e580.

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    Peel Jacqueline & Osofsky Hari M , '‘Climate Change Litigation’ ' (2020 ) 16 Annual Review of Law and Social Science : 21.

  • 2↑

    Markell David & Ruhl JB , '‘An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?’ ' (2012 ) 64 Florida Law Review : 15.

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  • 4↑

    A Gupta and Harro van Asselt , '‘Transparency in Multilateral Climate Politics: Furthering (or Distracting from) Accountability?’ ' (2019 ) 13 Regulation & Governance : 18.

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    Aarti Gupta and others , '‘Performing Accountability: Face-to-Face Account-Giving in Multilateral Climate Transparency Processes’ ' (2021 ) 21 Climate Policy : 616.

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    Annalisa Savaresi, ‘Plugging the Enforcement Gap: The Rise and Rise of Human Rights in Climate Change Litigation’ (QIL QDI, 31 January 2021) <http://www.qil-qdi.org/plugging-the-enforcement-gap-the-rise-and-rise-of-human-rights-in-climate-change-litigation/> accessed 10 February 2021

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  • 5↑

    See eg

    UNEP, ‘Environmental Rule of Law: First Global Report’ (2019) <http://www.unenvironment.org/resources/assessment/environmental-rule-law-first-global-report> accessed 21 January 2021, chapter 4.

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  • 6↑

    D Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28 Stanford Journal of International Law;

    Boyle Alan & Anderson Michael R , Human Rights Approaches to Environmental Protection , (Oxford University Press, 1998 ).

    Boyle Alan , '‘Human Rights or Environmental Rights? A Reassessment’ ' (2007 ) 18 Fordham Environmental Law Review : 471.

    Boyd David R , '‘The Constitutional Right to a Healthy Environment’ ' (2012 ) 54 Environment: Science and Policy for Sustainable Development: : 3.

    Boyle Alan , '‘Human Rights and the Environment: Where Next?’ ' (2012 ) 23 European Journal of International Law : 613.

    Anton Donald K & Shelton Dinah , Environmental Protection and Human Rights , (Cambridge University Press, 2012 ).

  • 7↑

    See the mapping studies prepared by the

    UN Special Rapporteur on Human Rights and the Environment, available at: <http://www.srenvironment.org/report/mapping-report-2014> accessed 15 June 2021.

  • 8↑

    See eg:

    Peel Jacqueline & Osofsky Hari M , '‘A Rights Turn in Climate Change Litigation?’ ' (2018 ) 7 Transnational Environmental Law : 37.

    Savaresi Annalisa & Auz Juan , '‘Climate Change Litigation and Human Rights: Pushing the Boundaries’ ' (2019 ) 9 Climate Law : 244.

    Savaresi Annalisa , '‘Human Rights and the Impacts of Climate Change: Revisiting the Assumptions’ ' (2021 ) 11 Oñati Socio-Legal Series : 231.

    Yoshida Keina & Setzer Joana , '‘The Trends and Challenges of Climate Change Litigation and Human Rights’ ' (2020 ) European Human Rights Law Review : 140.

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  • 9↑

    With the sole exception of

    César Rodríguez-Garavito, ‘Litigating the Climate Emergency: The Global Rise of Human Rights-Based Litigation for Climate Action’ (Social Science Research Network 2021) SSRN Scholarly Paper ID 3860420 <https://papers.ssrn.com/abstract=3860420> accessed 15 August 2021.

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    This paper, however, identifies a smaller set of rights-based cases and does not propose and apply a typology to analyse these cases.

  • 10↑

    See eg

    Pedersen Ole W , '‘The Janus-Head of Human Rights and Climate Change: Adaptation and Mitigation’ ' (2011 ) 80 Nordic Journal of International Law : 403.

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    Peeters Marjan & Nóbrega Sandra , '‘Climate Change-Related Aarhus Conflicts: How Successful Are Procedural Rights in EU Climate Law?’ ' (2014 ) 23 RECIEL : 354.

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    Duvic-Paoli Leslie-Ann , others , '‘Public Participation in the Context of Energy Activities: The Role of the Aarhus Convention Compliance Committee’ ', in Marc Ozawa (ed), In Search of Good Energy Policy , (Cambridge University Press, 2019 ).

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  • 11↑

    See the Corporate Legal Accountability database curated by the

    Business & Human Rights Resource Centre: <https://old.business-humanrights.org/en/case-studies-renewable-energy> accessed 17 June 2021.

  • 12↑

    Fazey Ioan , others , '‘Transformation in a Changing Climate: A Research Agenda’ ' (2017 ) 9 Climate and Development : 1, 10.

  • 13↑

    Thomas Adrien , '‘Framing the Just Transition: How International Trade Unions Engage with UN Climate Negotiations’ ' (2021 ) 70 Global Environmental Change : 102347.

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    Green Fergus & Gambhir Ajay , '‘Transitional Assistance Policies for Just, Equitable and Smooth Low-Carbon Transitions: Who, What and How?’ ' (2020 ) 20 Climate Policy : 902.

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  • 14↑

    Boyle Alan E & Anderson Michael R , Human Rights Approaches to Environmental Protection , (Oxford University Press, 1998 ).

    Shelton (n 6); Anton and Shelton (n 6); Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (OHCHR 2015) A/HRC/28/61.

  • 15↑

    See eg the call for greater scholarly inquiry into rights-based approaches to climate decision-making in:

    Jodoin Sébastien, Savaresi Annalisa & Wewerinke-Singh Margaretha , '‘Rights-Based Approaches to Climate Decision-Making’ ' (2021 ) 52 Current Opinion in Environmental Sustainability : 45.

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  • 16↑

    Setzer Joana & Byrnes Rebecca , '‘Global Trends in Climate Change Litigation: 2020 Snapshot’ ', (London School of Economics, 2020 ).

    Setzer Joana & Higham Catherine , '‘Global Trends in Climate Litigation: 2021 Snapshot’ ', (London School of Economics and Political Science School of Economics, 2021 ).

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  • 17↑

    See eg

    Boyd David R , The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment , (UBC Press, 2011 ).

  • 18↑

    Council of Europe, ‘Manual on Human Rights and the Environment. Principles Emerging from the Case-Law of the European Court of Human Rights’ (2012);

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    InterAmerican Commission on Human Rights, ‘Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources. Norms and Jurisprudence of the Inter-American Human Rights System’ (2010) 35 American Indian Law Review.

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  • 19↑

    Setzer and Higham (n 16).

  • 20↑

    UNFCCC, ‘Decision 1/CP.16, The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’ UN Doc FCCC/CP/2010/7/Add.1 (15 March 2011) preamble, recital 7; Paris Agreement, preamble.

  • 21↑

    The Human Rights Council adopted 11 resolutions on human rights and climate change between 2008 and 2021. A summary of the activities of the Office of the

    UN High Commissioner for Human Rights is available at <https://www.ohchr.org/en/issues/hrandclimatechange/pages/hrclimatechangeindex.aspx>.

  • 22↑

    Setzer Joana & Bangalore Mook , '‘Regulating Climate Change in the Courts’ ', in Alina Averchenkova, Sam Fankhauser & Michal Nachmany (eds), Trends in Climate Change Legislation , (Edward Elgar, 2017 ).

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    Setzer and Byrnes (n 16).

  • 23↑

    Markell and Ruhl (n 2);

    ‘Global Climate Litigation Report: 2020 Status Review’ (UNEP 2020) <https://www.unep.org/resources/report/global-climate-litigation-report-2020-status-review> accessed 26 August 2021.

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  • 24↑

    An updated analysis of parties involved in climate litigation in the US is yet to be undertaken, but earlier studies confirm that also in the US the majority of cases have been brought against the federal or state governments. US applicants are largely NGOs, and, less frequently, business and subnational governments. See:

    Silverman-Roati Korey , '‘US Climate Litigation in the Age of Trump: Full Term’ ', (Sabin Centre for Climate Change Law, 2021 ).

  • 25↑

    Korean Biomass Plaintiffs v South Korea; Trans Mountain Pipeline ULC v Misavair; and D.G. Khan Cement Company v Government of Punjab.

  • 26↑

    Commune de Grande Synthe v France and City of Lyon v French Deposits and Consignments Fund.

  • 27↑

    See eg Lho’imggin et al. v Her Majesty the Queen.

  • 28↑

    Court on its own motion v State of Himachal Pradesh and others.

  • 29↑

    Outside the US, 54 out of 454 climate cases have been brought against corporations. See Setzer and Higham (n 16). In the US, 95 out of 873 climate cases filed between 1990 and 2016 were brought against corporations. See

    McCormick Sabrina et al. , '‘Strategies in and Outcomes of Climate Change Litigation in the United States’ ' (2018 ) 8 Nature Climate Change : 829.

  • 30↑

    See UNHRC Res 26/9 ‘Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights’ (14 July 2014) UN Doc A/HRC/RES/26/9, establishing the mandate of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights.

  • 31↑

    Parliament and Council Directive 2014/95/EU of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups (Text with EEA relevance) [2014] OJ L330/1. See also ongoing negotiations on due diligence legislation in the EU:

    European Commission, ‘Proposal for a Directive on Corporate Sustainability Due Diligence and Annex’ COM(2022) 71 final.

  • 32↑

    See the repository of legislation at:

    ‘Mandatory Due Diligence’ (Business & Human Rights Resource Centre) <https://www.business-humanrights.org/en/big-issues/mandatory-due-diligence/> accessed 22 July 2021.

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  • 33↑

    See eg

    Jacques Hartmann and Annalisa Savaresi, ‘Corporate Actors, Environmental Harms and the Draft UN Treaty on Business and Human Rights: History in the Making?’ [2021] QIL QDI <http://www.qil-qdi.org/corporate-actors-environmental-harms-and-the-draft-un-treaty-on-business-and-human-rights-history-in-the-making/> accessed 15 August 2021.

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  • 34↑

    See eg

    Annalisa Savaresi and Margaretha Wewerinke-Singh, ‘Friends of the Earth (Netherlands) v Royal Dutch Shell: Human Rights and the Obligations of Corporations in the Hague District Court Decision’ (31 May 2021) <https://gnhre.org/2021/05/31/friends-of-the-earth-netherlands-v-royal-dutch-shell-human-rights-and-the-obligations-of-corporations-in-the-hague-district-court-decision/> accessed 4 June 2021

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    Macchi Chiara & van Zeben Josephine , '‘Business and Human Rights Implications of Climate Change Litigation: Milieudefensie et al. v Royal Dutch Shell’ ' (2021 ) 30 (3 ) Review of European, Comparative & International Environmental Law : 409.

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  • 35↑

    Markell and Ruhl (n 2); Setzer and Higham (n 16); ‘Global Climate Litigation Report: 2020 Status Review’ (n 23).

  • 36↑

    Of these, 100 were filed in the US and 80 outside the US, the majority of which (61) were brought before the Australian courts, and many relate to the application of principles and standards relating to climate change adaptation in planning and environmental impact assessments.

  • 37↑

    Williams Emily , '‘Attributing Blame? – Climate Accountability and the Uneven Landscape of Impacts, Emissions, and Finances’ ' (2020 ) 161 Climatic Change : 273.

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  • 38↑

    Setzer and Higham (n 16).

  • 39↑

    Craig Robin Kundis , '‘California Climate Change Lawsuits: Can the Courts Help with Sea-Level Rise, and Who Knew What When?’ ' (2018 ) 3 Asia-Pacific Journal of Ocean Law and Policy : 306.

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    Lin Albert C & Burger Michael , '‘State Public Nuisance Claims and Climate Change Adaptation’ ' (2018 ) 36 Pace Environmental Law Review : 49.

    ‘Legal Interventions: How Cities Can Drive Climate Action’ (C40 Knowledge Hub 2021).

  • 40↑

    Animal Legal Defense Fund v Foster Poultry Farms consists of a lawsuit filed in 2020 before the California Superior Court, alleging that a chicken slaughterhouse’s use of groundwater was unconstitutional, particularly as California’s drought is being exacerbated by the effects of climate change.

  • 41↑

    Urgenda Foundation v The State of the Netherlands C/09/456689 / HA ZA 13-1396 (2015) (‘Urgenda’).

  • 42↑

    Setzer and Higham (n 16).

  • 43↑

    See

    Lucy Maxwell et al., ‘Standards for Adjudicating the Next Generation of Urgenda-Style Climate Cases’ in this issue.

  • 44↑

    Tol Richard SJ & Verheyen Roda , '‘State Responsibility and Compensation for Climate Change Damages – A Legal and Economic Assessment’ ' (2004 ) 32 Energy Policy : 1109.

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    Verheyen Roda , Climate Change Damage and International Law: Prevention, Duties and State Responsibility , (Martinus Nijhoff, 2005 ).

    Tim Stephens, ‘See You in Court? A Rising Tide of International Climate Litigation’ (The Interpreter, 30 October 2019);

    Boyle Alan , '‘Litigating Climate Change under Part XII of the LOSC’ ' (2019 ) 34 The International Journal of Marine and Coastal Law : 458.

    Wewerinke-Singh Margaretha , State Responsibility, Climate Change and Human Rights under International Law , (Hart Publishing, 2019 ).

    Savaresi Annalisa , '‘Inter-State Climate Change Litigation: “Neither a Chimera nor a Panacea”’ ', in Ivano Alogna, Christine Bakker & Jean-Pierre Gaucci (eds), Climate Change Litigation: Global Perspectives , (Brill Nijhoff, 2021 ).

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  • 45↑

    In Notre Affaire à Tous et al. v France, n. 1904967, 1904968, 1904972, 1904976/4-1, Tribunal Administratif de Paris, 3 February 2021, the plaintiffs requested symbolic monetary compensation for the moral and ecological damages they allegedly suffered.

  • 46↑

    See eg

    Peel and Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (n 8);

    Bouwer Kim , '‘The Unsexy Future of Climate Change Litigation’ ' (2018 ) 30 Journal of Environmental Law : 483.

  • 47↑

    An assessment of climate litigation outside of the US suggests that climate change is peripheral to 242 cases and central to 211 cases, with the number of cases where climate change is a central issue increasing over time. An equivalent analysis of centrality for US litigation is yet to be undertaken. See Setzer and Higham (n 16).

  • 48↑

    Juliana v United States, Case No 6:15-cv-01517-TC, 2016 WL 6661146 (10 November 2016).

  • 49↑

    PSB et al. v Brazil (on Amazon Fund), Federal Supreme Court of Brazil, 5 June 2020.

  • 50↑

    Sacchi et al. v Argentina et al., filed under the Convention of the Rights of the Child (23 September 2019). See

    Larissa Parker et al., ‘When the Kids Put Climate Change On Trial: Youth-Focused Rights-Based Climate Litigation around the World’ in this issue.

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  • 51↑

    Petition Requesting Investigation of the Responsibility of the Carbon Majors for Human Rights Violations or Threats of Violations Resulting from the Impacts of Climate Change, Case No: CHR-NI-2016-0001 (Quezon City 2016).

  • 52↑

    Urgenda (n 41). See

    Lucy Maxwell et al., ‘Standards for Adjudicating the Next Generation of Urgenda-Style Climate Cases’ in this issue.

  • 53↑

    See eg Milieudefensie et al. v Royal Dutch Shell plc, Hague District Court, C/09/571932 / HA ZA 19-379, 2021.

  • 54↑

    Wewerinke-Singh Margaretha & McCoach Ashleigh , '‘The State of the Netherlands v Urgenda Foundation: Distilling Best Practice and Lessons Learnt for Future Rights-Based Climate Litigation’ ' (2021 ) 30 Review of European, Comparative & International Environmental Law : 275.

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    Savaresi and Wewerinke-Singh (n 34).

  • 55↑

    Setzer and Higham (n 16).

  • 56↑

    Setzer and Vanhala (n 1) 12.

  • 57↑

    Setzer and Higham (n 16). The ‘neutral’ category in climate litigation outside of the US refers to cases that had no impact over climate action and cases that were dismissed as the order became unnecessary. For the US, McCormick et al. analysed the outcomes of 873 climate cases between 1990 and 2016. Their study suggests there were more outcomes that favoured anti-regulatory (309) compared to pro-regulatory positions (224), with a ratio of about 1.4 to 1. McCormick et al. (n 29).

  • 58↑

    Friends of the Irish Environment v the Government of Ireland, Supreme Court, Appeal No: 205/19, Judgment of 31 July 2020, 7.2–7.22.

  • 59↑

    Peel and Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (n 8).

  • 60↑

    Wonneberger Anke & Vliegenthart Rens , '‘Agenda-Setting Effects of Climate Change Litigation: Interrelations Across Issue Levels, Media, and Politics in the Case of Urgenda Against the Dutch Government’ ' (2021 ) 15 Environmental Communication : 699.

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  • 61↑

    See eg

    Ben Batros and Tessa Khan, ‘Thinking Strategically about Climate Litigation’ (Social Science Research Network 2020) SSRN Scholarly Paper ID 3564313 <https://papers.ssrn.com/abstract=3564313> accessed 26 August 2021;

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    and see

    Lucy Maxwell et al., ‘Standards for Adjudicating the Next Generation of Urgenda-Style Climate Cases’ in this issue.

  • 62↑

    See eg Shelton (n 6);

    Anderson MR , '‘Human Rights Approaches to Environmental Protection: An Overview’ ', in A Boyle & MR Anderson (eds), Human Rights Approaches to Environmental Protection , (Oxford University Press, 1998 ).

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    Shelton Dinah L , '‘Human Rights and the Environment: Substantive Rights’ ', in Malgosia Fitzmaurice, David M Ong & Panos Merkouris (eds), Research Handbook on International Environmental Law , (Edward Elgar, 2010 ).

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    Anton Donald K & Shelton Dinah L , '‘Procedural Human Rights and the Environment’ ', in Donald K Anton & Dinah L Shelton (eds), Environmental Protection and Human Rights , (Cambridge University Press, 2011 ).

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    Boyle, ‘Human Rights or Environmental Rights’ (n 6);

    Boyle, ‘Human Rights and the Environment’ (n 6).

  • 63↑

    See eg Council of Europe (n 18).

  • 64↑

    See eg Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (OHCHR 2013) A/HRC/25/53; and A/HRC/28/61 (n 16).

  • 65↑

    See sources listed in notes 62–63.

  • 66↑

    Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (OHCHR 2018) A/HRC/37/59, especially paras 16–18.

  • 67↑

    See Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (OHCHR 2016) A/HRC/31/52, especially pp. 16–18; Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (2019) A/74/161, pp. 17–18.

  • 68↑

    UN Special Rapporteur on Human Rights and the Environment, A/HRC/31/52 (n 67) pp. 13–15.

  • 69↑

    Council of Europe (n 18).

  • 70↑

    Urgenda (n 41).

  • 71↑

    The State of the Netherlands v Urgenda Foundation, The Hague Court of Appeal (9 October 2018), case 200.178.245/01; and The State of the Netherlands v Urgenda Foundation, The Supreme Court of the Netherlands (20 December 2019), case 19/00135.

  • 72↑

    Petition of Torres Strait Islanders to the United Nations Human Rights Committee Alleging Violations Stemming from Australia’s Inaction on Climate Change (2019).

  • 73↑

    See eg Council of Europe (n 18) ch 1.

  • 74↑

    PSB et al. v Brazil, Supreme Court of Brazil, ADPF 760 (2020).

  • 75↑

    Ashgar Leghari v Federation of Pakistan et al., Lahore High Court, W.P. No. 25501/2015, Order of 4 September 2015.

  • 76↑

    Pau de Vilchez Moragues and Annalisa Savaresi, ‘The Right to a Healthy Environment and Climate Litigation: A Mutually Supportive Relation?’ (Social Science Research Network 2021) SSRN Scholarly Paper ID 3829114 <https://papers.ssrn.com/abstract=3829114> accessed 20 July 2021.

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  • 77↑

    Setzer Joana & Winter de Carvalho Délton , '‘Climate Litigation to Protect the Brazilian Amazon: Establishing a Constitutional Right to a Stable Climate’ ' (2021 ) 30 Review of European, Comparative & International Environmental Law : 197.

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  • 78↑

    Council of Europe (n 18) ch 1.

  • 79↑

    Nature and Youth and Greenpeace Norway v The Government of Norway, Oslo District Court, Summons, 18 October 2016.

  • 80↑

    Christina Voigt, ‘The First Climate Judgment before the Norwegian Supreme Court: Aligning Law with Politics’ Journal of Environmental Law (forthcoming, 2021).

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  • 81↑

    See eg

    Dellinger Marianne , '‘Ten Years of the Aarhus Convention: How Procedural Democracy Is Paving the Way for Substantive Change in National and International Environmental Law’ ' (2012 ) 23 Colorado Journal of International Environmental Law and Policy : 309.

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    Ebbesson Jonas , '‘Principle 10: Public Participation’ ', in Jorge E Viñuales (ed), The Rio Declaration on Environment and Development: A Commentary , (Oxford University Press, 2015 ).

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  • 82↑

    Greenpeace Luxembourg v Schneider (2016).

  • 83↑

    Council of Europe (n 63).

  • 84↑

    Namely, Ruling on Modification to Ethanol Fuel Rule and Greenpeace Canada v Ministry of Environment.

  • 85↑

    Friends of the Irish Environment et al. v. Fingal County Council et al., High Court of Ireland, Judgment, 2017 No. 201 JR, 21 November 2017.

  • 86↑

    Klimaseniorinnen Application to the European Court of Human Rights, November 2020 (Unreported).

  • 87↑

    Armando Carvalho and Others v The EU Parliament and Council Case T-330/18 (8 May 2019).

  • 88↑

    Armando Carvalho and Others v The EU Parliament and Council. Appeal submitted to the European Court of Justice (2019) – dismissed.

  • 89↑

    See the repository compiled by the

    Business and Human Rights centre ‘Mandatory Due Diligence’ (Business & Human Rights Resource Centre) <https://www.business-humanrights.org/en/big-issues/mandatory-due-diligence/> accessed 27 July 2021.

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  • 90↑

    See the repository compiled by the

    Bonavero Institute of Human Rights, Oxford University <https://www.law.ox.ac.uk/content/civil-liability-gross-human-rights-abuses> accessed 27 July 2021.

    See also Hartmann and Savaresi (n 33).

  • 91↑

    See eg the decision of the

    Canadian Supreme Court in Nevsun Resources Ltd v Araya, 2020 SCC 5 (CanLII) (28 February 2020).

    This case is part of a growing global trend of civil liability litigation against businesses for their alleged involvement in rights abuses. For other cases, see

    <https://www.law.ox.ac.uk/content/civil-liability-gross-human-rights-abuses> accessed 27 July 2021.

  • 92↑

    See eg the decision of the

    International Centre for Settlement of Investment Disputes in Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v The Argentine Republic, 2016, at 1993–6.

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  • 93↑

    See eg the judgment of the

    Inter-American Court of Human Rights in Kaliña and Lokono Peoples v Suriname, 2015, at 224.

  • 94↑

    Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment A/74/161(OHCHR 2019), at 71–2.

  • 95↑

    ibid.

  • 96↑

    Special Rapporteur on Human Rights and the Environment (n 67) paras 71–2.

  • 97↑

    Milieudefensie v Royal Dutch Shell RB 26 May 2021, ECLI:NL:RBDHA:2021:5337, English translation ECLI:NL:RBDHA:2021:5339.

  • 98↑

    See eg ibid at 4.4.37.

  • 99↑

    ibid para 4.1.3.

  • 100↑

    ibid para 4.4.13.

  • 101↑

    Savaresi and Wewerinke-Singh (n 34).

  • 102↑

    Petition Requesting for Investigation of the Responsibility of the Carbon Majors for Human Rights Violations or Threats of Violations Resulting from the Impacts of Climate Change (‘Carbon Majors Petition’), Republic of the Philippines Commission on Human Rights, CHR-NI-2016-0001 (2016).

  • 103↑

    ibid 7.

  • 104↑

    ibid 57.

  • 105↑

    ibid 61. For an analysis, see:

    Savaresi Annalisa & Hartmann Jacques , '‘Using Human Rights Law to Address the Impacts of Climate Change: Early Reflections on the Carbon Majors Inquiry’ ', in Jolene Lin & Douglas Kysar (eds), Climate Change Litigation in the Asia Pacific , (Cambridge University Press, 2020 ).

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    Savaresi, ‘Human Rights and the Impacts of Climate Change’ (n 8).

  • 106↑

    Carbon Majors Petition (n 102) 42.

  • 107↑

    Notre Affaire à Tous and Others v Total, 2.4 and 2.3.2.

  • 108↑

    Development YES – Open-Pit Mines NO v Group PZU S.A. (2016).

  • 109↑

    Market Forces v Sumitomo Mitsui Banking Corporation, Mitsubishi UFJ Financial Group and Mizuho Financial Group (2018).

  • 110↑

    Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (2018) A/HRC/37/59.

  • 111↑

    Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (n 64).

  • 112↑

    ibid.

  • 113↑

    See the commentary in Hartmann and Savaresi (n 33).

  • 114↑

    Markell and Ruhl (n 2) 65–70.

  • 115↑

    Peel and Osofsky, ‘Climate Change Litigation’ (n 1) 31.

  • 116↑

    Ghaleigh Navraj-Singh , '‘“Six Honest Serving-Men”: Climate Change Litigation as Legal Mobilization and the Utility of Typologies’ ' (2010 ) 1 Climate Law : 31, 44.

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  • 117↑

    Hilson Christopher James , '‘Climate Change Litigation: An Explanatory Approach (or Bringing Grievance Back In)’ ', in F Fracchia & M Occhiena (eds), Climate Change: La risposta del diritto , (Editoriale Scientifica, 2010 ).

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  • 118↑

    This knowledge gap is also flagged in Bouwer (n 46).

  • 119↑

    See eg the industry lawsuits section in the Columbia University database:

    <http://climatecasechart.com/climate-change-litigation/case-category/industry-lawsuits-state-law-claims/> accessed 26 August 2021.

  • 120↑

    The Business & Human Rights Resource Centre collects dozens of human rights complaints against corporate actors engaged in renewable energy generation, the recording of which started in 2010 – see (n 11).

  • 121↑

    European Center for Constitutional and Human Rights, ‘Case Report – Wind Farm in Mexico: French Energy Firm EDF Disregards Indigenous Rights’ (October 2020) <https://www.ecchr.eu/fileadmin/Fallbeschreibungen/20201013_Case_report_EDF_EN.pdf> accessed 16 February 2021.

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  • 122↑

    See eg:

    Comunidad Indígena Zapoteca De Juchitán De Zaragoza: https://prodesc.org.mx/la-comunidad-indigena-zapoteca-de-juchitan-de-zaragoza/.

    Some of these complaints are reviewed in

    P Velasco Herrejon and A Savaresi, ‘Wind Energy, Benefit-Sharing and Indigenous Peoples: Lessons from the Isthmus of Tehuantepec, Southern Mexico’ (2020) 18 Oil, Gas & Energy Law Journal (OGEL).

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  • 123↑

    See eg Quechan Tribe v US Dept. of Interior, 755 F. Supp. 2d 1104 (S.D. Cal. 2010).

  • 124↑

    See eg Concluding Observations of the Committee on the Elimination of Racial Discrimination: Indonesia, CERD/C/IDN/CO/3, as adopted in Report of the Committee on the Elimination of Racial Discrimination Seventieth session (19 February–9 March 2007) and Seventy-first session (30 July–17 August 2007) General Assembly Official Records, Sixty-second session, Supplement No. 18 (A/62/18). This and similar complaints are analysed in

    Savaresi Annalisa , '‘The Human Rights Dimension of REDD’ ' (2012 ) 21 Review of European Comparative & International Environmental Law : 102.

    Jodoin Sébastien , Forest Preservation in a Changing Climate: REDD+ and Indigenous and Community Rights in Indonesia and Tanzania , (Cambridge University Press, 2017 ).

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  • 125↑

    See eg the complaint before the Inter-American Commission Consórcio Norte Energia lawsuit (re Belo Monte dam in Brazil) (2011). See the commentary in

    Schapper Andrea, Unrau Christine & Killoh Sarah , '‘Social Mobilization Against Large Hydroelectric Dams: A Comparison of Ethiopia, Brazil, and Panama’ ' (2020 ) 28 Sustainable Development : 413.

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  • 126↑

    See eg Fägerskiöld v Sweden ECtHR, Application no 37664/04; Vecbaštika and Others v Latvia, ECtHR, Application no. 52499/11.

  • 127↑

    Findings and recommendations with regard to communication ACCC/C/2012/68 concerning compliance by the United Kingdom and the European Union.

  • 128↑

    Special Rapporteur on extreme poverty and human rights, ‘Climate Change and Poverty’ (2019) A/HRC/41/39 para 51.

  • 129↑

    See

    Lucy Maxwell et al., ‘Standards for Adjudicating the Next Generation of Urgenda-Style Climate Cases’ in this issue.

  • 130↑

    Jodoin, Savaresi and Wewerinke-Singh (n 15) 50.

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