1. Causes of Action
B. Human Rights Law
1. OVERVIEW
Human rights law has emerged as an increasingly useful tool in corporate climate litigation, enabling individuals and communities, as well as organisations, to hold corporations accountable for their actions in some jurisdictions. This comparative legal research explores the established legal avenues, as well as the hurdles and challenges encountered in utilising human rights law to drive corporate climate litigation in the 17 case-study countries. It also highlights potential legal avenues in future litigation.
1. Established Legal Avenues from Past Litigation
Across various countries, human rights provisions enshrined in regional conventions and national constitutions have been instrumental in catalysing corporate climate litigation. Notably, nations such as Kenya, Nigeria, India, Philippines, Norway, Italy, Canada, and Brazil have recognised the right to a healthy environment as an extension of the right to life, fostering a basis for climate-related and environmental protection litigation. By invoking constitutional and human rights frameworks, legal actions have been undertaken to enforce corporate accountability and safeguard the environment.
2. Hurdles and Challenges
The efficacy of human rights law in corporate climate litigation faces several challenges. In jurisdictions like the UK, where a constitutional right to a healthy environment is absent, human rights play a diminished role in climate litigation. Similarly, in jurisdictions like Germany and the Netherlands, constitutional claims against private actors are limited due to the 'vertical effect' of constitutional rights, which applies to the relationship between the State and individuals. Consequently, in the realm of corporate climate litigation, human rights and constitutional provisions serve as supplementary tools to interpret other areas of law.
3. Potential Legal Avenues in Future Litigation
Despite these hurdles, there are potential legal avenues for future corporate climate litigation that leverage human rights law. First, case-study countries that fall under regional legal frameworks can utilise human rights provisions enshrined in these frameworks to strengthen their arguments. For instance, in Canada, human rights-based claims can be filed in multiple provinces and territories. Additionally, recent interpretations of human rights in climate cases, such as the Neubauer et al v Germany case, may allow for the use of human rights as an 'indirect third-party effect' to influence the interpretation of civil law terms in cases involving private actors. Moreover, the evolving case law of constitutional courts and regional human rights courts holds significant potential for bolstering the interpretive value of human rights in future corporate climate litigation. For example, see the pending climate cases before the Grand Chamber of the European Court of Human Rights (ECtHR). Other developments, such as the Proposal for a Directive on corporate sustainability due diligence (CSDDD) at the European Union (EU) level, further add to this potential of generating normative obligations for corporations in relation to human rights and climate and environmental impact, among others, which are potentially useful in climate litigation.
