Human Rights Law and Climate Change

Executive summary

There is increasing focus on the link between climate change and human rights. Environmental quality is fundamental to the enjoyment of other human rights, including the right to a healthy and safe working environment, freedom of movement, education, right to life, health, and adequate living standards. Human rights law can positively impact the environment and the transition towards net zero in several ways, including through the recognition of an autonomous right to a healthy environment, procedural rights, and human rights litigation. While the relationship between climate change and human rights is largely symbiotic, caution must be taken to properly integrate environmental and human considerations as without this, actions taken to bolster human rights may adversely impact the net zero transition, and vice versa. The possibility of conflict between human rights and climate considerations is acutely evident in relation to the shift away from fossil fuels towards renewable energies, and the effects of this shift on the rights of those relying on fossil fuels for their livelihoods. Ultimately, if human rights and climate change considerations are properly integrated, this could bolster fundamental human rights protection while helping to achieve the net zero transition.

Key points in this section:

• Climate change has significant impacts on lives and livelihoods, which means it also has human rights implications. Addressing climate change can therefore have a positive impact on human rights and vice versa, though there are some instances where there may be trade-offs between the two issues.
• Human rights-related climate litigation in the UK has been largely unsuccessful. These concepts have seen more recognition at the European Court of Human Rights and in certain other jurisdictions.
• Procedural rights are vital to ensuring that individuals who face climate-related human rights impact have proper redress in courts.
• There is an increasing push, including in certain regional agreements and diplomatic contexts such as the UN’s General Assembly, to recognise specific environmental human rights such as a ‘right to a healthy environment’. Such a right does not exist in the UK, and if implemented its legal impact would be dependent on specific wording.

How climate change is impacting human rights

While climate change was once considered an exclusively environmental issue, it is now firmly established that climate change threatens the enjoyment of human rights. Mary Robinson, a previous UN Secretary-General’s Special Envoy for Climate Change, described climate change as the “biggest human rights challenge of our time”.[1] Similarly, in Gabčíkovo-Nagymaros Project (Hungary/Slovakia),[2] the International Court of Justice opined that ‘environmental rights are human rights’. The effects of climate change are often felt most acutely by society’s most vulnerable and marginalised members, those who are least culpable for climate damage.[3] Within different socio-economic groups, there are additional inequalities linked to gender, race, age and other factors. Responses to the climate crisis may further exacerbate these inequalities if improperly implemented. Moreover, developing countries often depend more on natural resources than highly developed countries, and as a result have a higher proportion of vulnerable individuals.

Despite the absence of explicit environmental provisions, human rights violations as a result of environmental degradation have been found to infringe the Universal Declaration of Human Rights (UDHR); the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); and the European Convention on Human Rights (ECHR)—to all of which the UK is a signatory. Specific rights that climate change has been found to impact include the right to life (ECHR art 2; UDHR art 3; ICCPR art 6), which can be violated during extreme weather events and catastrophes. Climate change also impacts the right to shelter/adequate standard of living/food/water (UDHR art 25; ICESCR art 11(1)) as changing climate and weather conditions interfere with crop growing, access and survival, and extreme weather events induce migration.[4] Furthermore, as temperatures rise, diseases spread more easily, compromising the right to health (UDHR art 25; World Health Organisation Constitution; ICESCR art 12).

Human rights in climate instruments

The Paris Agreement is the first environmental treaty to reference human rights. It recognises that climate change is a common concern of humankind and that ‘Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.’ To a certain extent, it constituted a victory for those who had advocated for the protection of human rights impacted by climate change,[5] as demonstrated by PSB et al v Brazil,[6] a case where the Brazilian Supreme Court declared the Paris Agreement a human rights instrument. The NGO Humane Being has sought to rely on this case before the European Court of Human rights (ECtHR) in Humane Being v UK, a case filed on 26 July 2022.

On the other hand, practitioners should be mindful of the difficulties associated with the way in which the Paris Agreement incorporates human rights language.[7] First, the reference appears in the preamble, which assists in determining the object and purpose of the treaty, rather than obligations imposed on parties. Second, the wording of ‘should’ and not ‘shall’ downgrades the responsibilities of parties, and represents a less than whole-hearted endorsement by the parties. Furthermore, the words ‘respect, promote and consider’ contrast with the usual language concerning human rights obligations where parties are obliged to ‘fulfil’ or ‘protect’ human rights (UNHRC Res 31/8 (2016).This wording appears to mirror business’ obligations under the UN Guiding Principles on Business and Human Rights, which is weaker than the obligation imposed on states. Boyle has suggested that this represents at best a recognition that human rights should be taken into account when addressing climate change, rather than a ‘true incorporation’.[8] It is also worth highlighting that several rights impacted by climate change are omitted from this list, including the right to private life and property, along with social and economic rights. Practitioners should note this omission when considering the impact of some climate change mitigation measures on these rights, for example, those whose livelihood is impacted as a result of mine closures.

As regards the UK’s position on human rights and climate change, at the UN Human Rights Council 50 in their statement to the new Special Rapporteur on the promotion and protection of human rights in the context of climate change, the UK noted the intersection between climate change and human rights. Notably, in 2008 the UK supported the first UN resolution on human rights and climate change, Resolution 7/23, and has supported the creation of a new Special Rapporteur on the promotion and protection of human rights in the context of climate change. The UK’s statement also addressed its support of the Glasgow Climate Pact to consider, promote, and respect obligations to improve human rights while consolidating their Glasgow work programme on Action for Climate Empowerment.[9]

How actions taken to address climate change can impact human rights

While there is greater scope for synergies between the environment and human rights than other disciplines, there are still conflicts. When states and private actors take measures to combat climate change, rights can be impacted. LSE’s Grantham Research Institute on Climate Change and the Environment notes the dearth of commentary exploring cases where rights protection does not align with climate mitigation and adaptation. One example of such a case came before the Supreme Court of Chile in 2021 in Company Workers Union of Maritima & Commercial Somarco Limited and Others v Ministry of Energy.[10] Here, Chile was required to provide a just transition strategy in achieving net zero, taking into consideration the livelihoods of those losing employment as a result of coal-fired plant closures. Practitioners should therefore be aware of the risks to human rights of poorly designed climate change mitigation measures, and of the consequent possibility to bring litigation vindicating rights affected by such measures. 

How human rights law can help achieve net zero

Benefits of using human rights law to achieve net zero

The first benefit of using human rights law to achieve net zero is the ease with which right holders can be identified.[11] The affected state, individual or collective subject can bring claims, and therefore the number of persons bringing actions, and the potential for such actions to positively impact the UK’s transition to net zero, increases. Second, the human rights regime directly allows environmental impacts on the right to health, life and property to be considered, contrasting with the environmental law regime that often solely focusses on damage to the environment itself, which in some cases may be harder to satisfy than an interference with a human right.[12] Third, there are a growing number of adjudicatory bodies to hear claims from identifiable rights holders, including the ECtHR, and new procedural avenues to complain about human rights. Finally, human rights are often perceived as being of a higher value than environmental norms and therefore carry greater social and political weight, along with ‘compliance pull’.[13] The language of human rights is compelling and suggests that other concerns such as economic considerations, should be trumped by human rights.[14] All of these factors represent potential benefits of using human rights to seek redress for climate harms in pursuit of achieving net zero.

Autonomous right to a healthy environment

The autonomous right to a healthy environment has developed slowly and in a piecemeal fashion, often linked to notions of intergenerational equity (as in the Stockholm Declaration 1972). Although there is no recognised UN right to a healthy environment, efforts culminated in resolutions being adopted by the Human Rights Council in October 2021 and the General Assembly in July 2022 which recognised that a clean, healthy and sustainable environment is a human right, one which is important for the enjoyment of other human rights, including the right to life. Furthermore, it recognised the effects of climate change on vulnerable individuals, along with the threats climate change poses to present and future generations. Although the resolution is not legally binding, it is symbolically important and leads us a step closer to establishing a legally binding autonomous right to a healthy environment.

Boyd and Knox have highlighted that around 150 states have recognized that there is a ‘‘binding legal obligation to respect, protect and fulfil the right to a healthy environment”.[15] The right has also been recognised in several international instruments including the African Charter (Article 24), the ASEAN Human Rights Declaration (Paragraph 28(f)), and the Arab Charter on Human Rights (Article 38).

Recognising a substantive right to a healthy environment could mitigate the difficulties of relying on the greening of existing human rights to achieve net zero. The wording of the right to a healthy environment could be important.[16] For example, when one considers a ‘healthy’ environment this may facilitate broad conceptions of health including, for example, human dignity. It may not as easily encompass some economic considerations. Similar limitations may arise in respect of a safe environment; Vinuales notes that this characterisation may be easier to use for a collective subject as health is considered an individual interest generally and therefore can only be used in groups by analogy. Conversely, the right to a ‘decent environment’ may encompass broader interests including cultural and integrity considerations, along with aesthetic considerations, which may also be better suited to collective action. The UK has not enshrined this right in law, so relevant claims must be based on ECHR rights or possibly, given the link between climate change and inequalities explored above, through other instruments such as the Equalities Act 2010.

Procedural rights

Procedural rights are usually a prerequisite for the exercise of substantive rights and are therefore essential for environmental protection and achieving net zero. There is therefore a link between environmental rights and the right to participation and information.[17] Contemporary developments in treaty law have focused on the ability of individuals, communities and groups to participate in environmental decisions and to access justice when their rights are adversely affected. Evidence of this ‘proceduralisation of human rights’[18] can be found in the 1998 UNECE Aarhus Convention (the Convention) along with the 1993 NAFTA Agreement on Environmental Cooperation. The NAFTA Agreement provides opportunities for NGOs to participate as friends of the court, while the Aarhus Convention plays a particularly important role in guaranteeing access to environmental information, public participation and access to justice as rights. Furthermore, Article 21 of the UDHR bestows a right to participate in government. 

Through these mechanisms, the UK government is obliged to implement ‘transparency measures’ or ‘environmental democracy’ measures.[19] Where the UK fails to implement such participatory measures, individuals and civil society groups can bring complaints before the compliance committee established by the Convention. Environmental democracy measures enshrined in the Convention have received widespread support and recognition in the case law of the ECtHR, even by states not party to the Aarhus Convention,[20] with some commentators questioning whether the ECtHR considered some of its provisions reflective of customary international law.[21] The ECtHR’s incorporation of the Aarhus Convention’s provisions has also significantly broadened the scope of the Aarhus Convention, leading to its application in regional cases before the Inter-American Commission,[22] and the African Commission.[23]

Domestic litigation

Domestic human rights litigation seeking redress for climate harms has faced several challenges, primarily relating to the difficulty of linking climate harms to existing human rights. In Plan B Earth and Others v Prime Minister,[24]Plan B Earth sought judicial review of the UK Government’s failure to implement effective measures to meet its commitments in the Paris Agreement, which it alleged violated the right to private and family life (Article 8), right to life (Article 2), and protection from discrimination (Article 14) of the ECHR. The High Court held that the claimants’ case was fatally undermined by the fact that there was an administrative framework in place to deal with many of the issues that arose for consideration. The claims based on family life also failed to meet the evidentiary threshold in that there were insufficient findings of fact to support the claimants’ case that such rights had been interfered with in the UK or overseas. Furthermore, the court held that Plan B Earth failed to establish that they were a victim required by section 7(1) of the Human Rights Act 1998, thus acting as a bar to their claims based on the ECHR succeeding.

R (On the Application Of) v The Environment Agency[25] similarly demonstrated the difficulty of using human rights litigation to advance environmental and climate objectives in the UK. Here the Court of Appeal rejected the claim that by failing to regulate hydrogen sulphide emissions from a landfill, the Environmental Agency had acted unlawfully or was proposing to act in breach of their obligations under Articles 2 and 8 ECHR, focusing instead on the Environmental Agency’s efforts to address the issues. This, therefore, illustrates the high bar litigants must meet to bring climate harms within the scope of human rights claims.

There is also potential for litigants to use the UN Guiding Principles (UNGP) to ensure that businesses protect human rights. While the UNGP is not binding and is considered a soft law instrument, it is notable that in Milieudefensie v Royal Dutch Shell,[26] the District Court in the Hague considered that the UNGP was an ‘authoritative and internationally endorsed ‘soft law’ instrument, which sets out the responsibilities of states and businesses in relation to human rights… the UNGP are suitable as a guideline in the interpretation of the unwritten standard of care’. This influential case illustrates how practitioners in the UK could rely on the UNGP to pressure businesses into implementing higher environmental standards in order to protect human rights and assist in achieving net zero. Thus, while litigants have faced challenges in pursuing human rights litigation to achieve net zero in the UK, there remain opportunities for climate issues to be advanced in these fora.

Litigation in the European Court of Human Rights

Human rights litigation has been a powerful tool for advancing climate action before the ECtHR. Several cases have come before the ECtHR whereby applicants have alleged interference with their ECHR rights as a result of environmental and climate harms. In López Ostra v Spain,[27] the ECtHR expanded the environmental context of general rights by distinguishing the right to health from broadly conceived notions of human integrity, including the right to private and family life, recognising that environmental protection can justify restrictions on certain human rights thus expanding the scope of environmental protection. However, the ECtHR emphasised that this is contingent on a direct link between environmental degradation and a serious impairment of rights. Nonetheless, this case may have expanded the potential liability of states for environmental harms, and also, indirectly, the liability of non-state actors. For example, in Fadeyeva v Russia,[28]  the ECtHR considered that a state’s failure to regulate polluting industries constituted a direct interference with the applicants’ right to respect for family and private life (Article 8 ECHR). The court held that the effects of environmental pollution must reach a certain minimum in order to be within the scope of Article 8. This was also the case in Çicek v Turkey where the ECtHR considered that the applicants’ Article 8 rights had not been ‘directly and seriously impacted’ by the general deterioration in their surrounding environment as a result of the nearby lime quarry.[29] 

Notably, the NGO Humane Being filed an application to the ECtHR on 26 July 2022[30] alleging breaches of Articles 2, 3, and 8 of the ECHR for the failure of factory farming to address inter alia risks of the climate crisis; the applicants used novel arguments and relied on PSB et al v Brazil for the first time before the ECtHR. Practitioners should also note the case of Duarte Agostinho and Others v Portugal and Others[31] communicated to the ECtHR, which argues that 33 states, including the UK, have failed to comply with the ECtHR read in conjunction with the Paris Agreement. Interestingly, the Council of Europe Commissioner for Human Rights has intervened advocating for a recognition of the right to a healthy environment, separate from Articles 2 and 8. This case could therefore open up the door to a new phase of human rights-environmental jurisprudence before the ECtHR, mitigate some of the difficulties faced by applicants in the UK domestic context, and assist in achieving net zero. However, the entrenched requirement for environmental and climate harms to directly infringe an ECHR right still limits the scope of the ECHR’s potential to drive climate action.

Difficulties with establishing a link between climate change and rights violations

Another challenge that practitioners face in using human rights law to achieve climate objectives lies in the burden of proving causation; namely, the establishment of a link between climate change and rights violations, which serves as a precondition for responsibility. This is because isolating the effects of existing social and environmental circumstances from the effects of climate change is complex, and there are often long periods of time between many climate change impacts and human rights violations.So far, cases have tended to focus on localised environmental degradation rather than extreme or slow onset events.[32] It is easier to establish such claims and the analysis seems to require two stages, the acts or omissions that trigger the degradation, and the harm to rights.[33]

A way in which practitioners could surmount this evidentiary gap in climate litigation is through the use of scientific developments in climate change attribution.[34] Through enhanced dialogue with scientific communities, human rights practitioners could take advantage of scientific developments to use human rights to advance the UK’s transition to net zero.  

[1] Mary Robinson, ‘Justice, Human Rights, and Climate Change’ (2015) 39 Fletcher F World Aff 9.

[2] Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 3.

[3] Stephen Humphreys, ‘Climate Justice: The Claim of the Past’ (2014) 5 Journal of Human Rights and the Environment 134, 134-36.

[4] Derek Bell, ‘Does anthropogenic climate change violate human rights?’ (2011) 14(2) Critical Review of International Social and Political Philosophy 99; Stephen Humphreys, Human rights and climate change (Cambridge University Press 2010).

[5] Benoit Mayer, ‘Human Rights in the Paris Agreement’ (2016) 6 Climate Law 109.

[6] PSB et al v Brazil [2022] ADPF 760.

[7] Alan Boyle, ‘Climate Change, The Paris Agreement And Human Rights’ (2018) 67(4) International & Comparative Law Quarterly 759.

[8] Ibid.

[9] UK Government, “UN Human Rights Council 50: UK Statement on Human Rights and Climate Change” (Gov UK, 28 June 2022) <https://www.gov.uk/government/news/un-human-rights-council-50-uk-statement-on-human-rights-and-climate-change> accessed 25 September 2022.

[10] Company Workers Union of Maritima & Commercial Somarco Limited and Others v Ministry of Energy [2021] Supreme Court of Columbia.

[11] Jorje Viñuales, ‘A Human Rights Approach to Extraterritorial Environmental Protection? An Assessment’, in Bhuta, N. (ed.), The Frontiers of Human Rights. Extraterritoriality and its Challenges (Oxford University Press 2016).

[12] Ibid.

[13] Ibid.

[14] Dinah L. Shelton, ‘Developing Substantive Environmental Rights’ (2010) 1(1) Journal of Human Rights and the Environment 89.

[15] “Special Rapporteur on Human Rights and the Environment” (OHCHR, 10 August 2022) <https://www.ohchr.org/en/special-procedures/sr-environment> accessed 15 August 2022.

[16] Pierre Dupuy & Jorge Viñuales, International Environmental Law (2nd edn, Cambridge University Press 2010).

[17] Jona Razzaque, ‘Procedural Rights’, in Fitzmaurice, M. et al (eds.), Research Handbook on International Environmental Law (Edward Elgar 2010).

[18] Francesco Francioni, ‘International Human Rights in an Environmental Horizon’ (2010) 21 European Journal of International Law 41

[19] Jorge Viñuales and Stéphanie Chuffart, ‘From the Other Shore: Economic, Social and Cultural Rights from an International Law Perspective’, in Riedel, E. et al (eds), Contemporary Challenges in the Realization of Economic, Social and Cultural Rights (Oxford University Press 2014).

[20] Taskin v Turkey (2004) App no 46117/99 (ECtHR, 10 November 2004).

[21] Pierre Dupuy & Jorge Viñuales, International Environmental Law (2nd edn, Cambridge University Press 2010).

[22] Maya Indigenous Community of the Toledo District v Belize (2004) Case 12.053, Report No. 40/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727.

[23] The Ogoni case, Communication 155/96, The Social and Economic Rights Action Center and the Center for Economic, and Social Rights/Nigeria.

[24] R (Plan B Earth & Others) v The Prime Minister & Others [2021] EWHC 3469 (Admin).

[25] R (On the Application Of) v The Environment Agency [2021] EWCA Civ 26.

[26] Milieudefensie v Royal Dutch Shell [2021] C/09/571932 / HA ZA 19-379.

[27] López Ostra v Spain (1994) App no 16798/90 (ECtHR, 9 December 1994).

[28] Fadeyeva v Russia (2005) App no 55723/00 (ECtHR, 9 June 2005).

[29] Cicek and Others v Turkey (2020) App no 44837/07 (ECtHR, 4 February 2020).

[30] Humane Being, ‘Campaigners take the world’s first case against factory farming to Europe’s highest court’ (Climate Case Chart, 26 July 2022) <http://climatecasechart.com/non-us-case/factory-farming-v-uk/> accessed 15 September 2022.

[31] Duarte Agostinho and Others v Portugal and Others (2020) App no 39371/20.

[32] Jorje Viñuales, ‘A Human Rights Approach to Extraterritorial Environmental Protection? An Assessment’, in Bhuta, N. (ed.), The Frontiers of Human Rights. Extraterritoriality and its Challenges (Oxford University Press, 2016).

[33] Ibid.

[34] Stuart Smith et al, ‘Filling the evidentiary gap in climate litigation’ (2021) 11 Nature Climate Change 651.