1. Causes of Action

B. Human Rights Law

5. CURRENT APPLICATIONS

Human rights enshrined in regional conventions and national and subnational constitutions have proven to be a particularly effective cause of action in corporate climate litigation cases. Constitutional provisions that protect human rights are established tools to enhance climate action, with a focus on bringing corporate accountability.

In several case-study countries, there is an acceptance by judges and legislation that living in a 'healthy environment' is part of the 'right to life'. This is the case in

Japan

Kobe Coal Fired Power Plant Civil Injunction case

The Kobe District Court (2021): '[...] The legal interests claimed by the plaintiffs are human life, physical safety and health, and as stated above, it is clear that these legal interests are protected by the health-related personal right. Even if the basis for the plaintiffs' request for an injunction is the infringement of their health-related personal rights due to global warming caused by CO2 emissions, such circumstances should be taken into account in determining whether there is a concrete danger of infringement and should not affect the determination of whether the infringed interests are protected by the health-related personal rights.[...]'

Nigeria

Gbemre v Shell Petroleum Development Company Nigeria Ltd and Ors (para 5)

Federal High Court of Nigeria in the Benin Judicial Division (2005): The rights to life and dignity of the human person guaranteed under Sections 33(1) and 34(1) of the Nigerian Constitution, and reinforced by Articles 4 (on right to life), 16 (on right to health) and 24 (on to a healthy environment) of the African Charter Act, 'inevitably include the right to clean, poison-free, pollution-free healthy environment.'

'The actions of the 1st and 2nd respondents in continuing to flare gas in the course of their oil exploration and production activities in the applicants' community is a gross violation of their fundamental right to life (including healthy environment) and dignity of human person as enshrined in the Constitution.'

'Failure of the 1st and 2nd respondents to carry out environmental impact assessment in the applicants' community concerning the effects of their gas flaring activities is a clear violation of section 2(2) of the Environmental Impact Assessment Act (...) and has contributed to a further violation of the said fundamental rights.'

Centre for Oil Pollution Watch (COPW) v NNPC (pages 587, 580-581, 597)

Supreme Court of Nigeria (2018): 'there is no gain saying in the fact that there is increasing concern about climate change, depletion of the ozone layer, waste management, flooding and global warming etc... Both nationally and internationally, countries and organizations are adopting stronger measures to protect and safeguard the environment for the benefits of the present and future (...) it is on account of this, inter alia, that I am of the firm view that this court, being a court of policy should expand the locus standi of the Plaintiff/Appellant to sue.'

'Section 17(4) of the Oil Pipelines Act provides that every licence shall be subject to the provisions contained in the Act (...) and to such regulations concerning public safety, the avoidance of interference with works of public utility in, over and under the land and the prevention of pollution of such land or any waters as may from time to time be in force. Section 33 of the 1999 Constitution guarantees the right to life while section 20 of the Constitution provides that the state shall protect and improve the environment and safeguard the water, air and land, forest and wild life of the country. Also, article 24 of the African Charter on Human and Peoples' Rights provides that all people shall have the right to a general satisfactory environment favourable to their development. These provisions show that the Constitution, the legislature and the African Charter on Human and Peoples' Rights, to which Nigeria is a signatory, recognise the fundamental rights of the citizenry to a clean and healthy environment to sustain life.'

India

Rural Litigation Entitlement Kendra v State of Uttar Pradesh & Ors (pages 7-8)

Supreme Court of India (1998): 'The consequence of this Order made by us would be that the lessees of limestone quarries which have been directed to be closed down permanently under this Order or which may be directed to be closed down permanently after consideration of the report of the Bandyopadhyay Committee, would be thrown out of business in which they have invested large sums of money and expanded considerable time and effort. This would undoubtedly cause hardship to them but it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment.'

Vellore Citizens Welfare Forum v Union of India & Ors (pages 11-13)

Supreme Court of India (1996): 'The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty.

Philippines

Juan Antonio Oposa et al v The Honorable Fulgencio S Factoran Jr et al

Supreme Court of the Philippines (1993): 'While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, (...). As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come — generations which stand to inherit nothing but parched earth incapable of sustaining life.'

(Concurring opinion, Feliciano J.):
'When substantive standards as general as 'the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction, [...]'. '[...] I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme importance for the country [...]'.

The National Inquiry on Climate Change Report

Philippines Commission on Human Rights (2022): 'Anthropogenic climate change is "the greatest human rights challenge of the 21st century." It negatively affects a host of, if not all, human rights. Climate change impacts, including the degradation of the environment; deprivation of resources; prevalence of life-threatening diseases; widespread hunger and malnutrition; and extreme poverty, among others, prevent an individual from living a dignified life. Some of the individual rights adversely impacted are the rights to life, food, water, sanitation, and health. Collective rights are also affected, including the rights to food security, development and sustained economic growth, self-determination, preservation of culture, equality and non-discrimination.[...]'

Norway

Statnett SF et al v Sor-Forsen sijte et al (paras 119, 143, 144)

Norway's Supreme Court (2021): '(...) my conclusion is that there will be a violation of the rights after SP Article 27 if the intervention leads to significant negative consequences for the possibility for cultural practice. The intervention itself can have such great consequences that there is a breach. But the impact does not have to be as serious as in the Poma Poma decision, where thousands of domestic animals had died as a result of government action, and the complainant had been forced to to leave their territory. The intervention must also be seen in connection with other measures, both earlier and planned. The overall effect of the measures is decisive for whether there is a violation, cf. Jouni Länsman et al. v Finland I (CCPR-1995-671) section 10.7.'

'I readily agree with Fosen Vind that the consideration for "green shift" and increased renewable energy production is important. But as mentioned, in principle, SP Article 27 does not allow for a balance of interests. As I have also mentioned, this may well be the case if different fundamental rights are opposed. The right to the environment can be relevant in such a context. In the case here, however, no collision has been proven between fundamental rights. I point out in particular that NVE considered a number of different wind power projects at Fosen and in Namdal in 2009. Despite the negative consequences for reindeer husbandry have been highlighted throughout the process, the choice fell on including Roan and Storheia. Fosen Vind has not disputed that consideration of how far some of the facilities had been included in the planning, was a key factor in the selection. As the case is informed before the Supreme Court, I must assume that the consideration of "the green shift" could also have been taken care of by choosing others - and for reindeer husbandry less intrusive development alternatives. In that case, consideration for the environment cannot be taken into account in the assessment of whether Article 27 here has been violated.'

'After this, I believe that the development of wind power will have a significant negative effect on the reindeer owners' opportunity to cultivate their culture at Fosen. Without satisfactory mitigation measures there is thus a violation of SP article 27, and the licensing decision will in that case be invalid.

Canada

Mathur et al v Her Majesty the Queen in Right of Ontario (pending)

Ontario Superior Court of Justice (2020): The claimants argue that Section 7 of the Charter of Rights and Freedoms (right to life, liberty and security) includes a right to a healthy environment and by repealing the Climate Change Act and by setting a target for the reduction of GHG emissions that is insufficiently ambitious, this right has been violated. The Superior Court rejected an application to dismiss the lawsuit, finding that these issues are reviewable.

United States

re Hawai'i Electric Light Co (2023) Supreme Court of the State of Hawai'i

The Hawai'i Supreme Court upheld the denial of a permit to a company to supply energy using a biomass power plant, in light of the project's GHG emissions, and its impacts on the right to a clean and healthy environment under Article XI, section 9 of the Hawaiʻi Constitution:

'I agree with the Majority that the PUC's consideration and denial of the amended Power Purchase Agreement ("PPA") met its duty under Article XI, section 9 to protect the right of Hawai'i's people to a clean and healthy environment, which subsumes the right to a life-sustaining climate system. I write separately to emphasize that the right to a life-sustaining climate system is also included in the due process right to "life, liberty, [and] property" enumerated in Article I, section 5 and the public trust doctrine embodied in Article XI, section 1's mandate that the State of Hawaiʻi "conserve and protect Hawaiʻi's...natural resources" "[f]or the benefit of present and future generations[.]"' (Concurring opinion of Justice Wilson, page 3).

Overall, the right to a healthy environment has served as a basis for bringing not only cases with climate change as a central issue but also cases related to the protection of the environment. Conversely, human rights are observed to play a much smaller role in countries such as the UK, where there is no constitutional right to a healthy environment.

Moreover, constitutional claims cannot be brought directly against private actors because of the rights' vertical effect (see supra, §3. Relevant Definitions and Essential Elements). This is the case in jurisdictions such as:

Germany

German Federal Constitutional Court, judgment of 11.04.2018 - 1 BvR 3080/09 (paras 31 following)

German Federal Constitutional Court (2018): 'The standard of review applicable to the challenged decisions under constitutional law is informed by the doctrine of the indirect horizontal effects of fundamental rights (mittelbare Drittwirkung der Grundrechte).'

'The challenged decisions concern a legal dispute between private actors relating to the scope of rights of ownership and possession vis-à-vis third parties under private law. According to the established case-law of the Court, fundamental rights may have a bearing on such disputes by way of indirect horizontal effects (...). Fundamental rights do not generally create direct obligations between private actors. They do, however, permeate legal relationships under private law; it is thus incumbent upon the regular courts to give effect to fundamental rights in the interpretation of ordinary law, in particular by means of general clauses contained in private law provisions and legal concepts that are not precisely defined in statutory law. These effects are rooted in the decisions on constitutional values (verfassungsrechtliche Wertentscheidungen) enshrined in fundamental rights, which permeate private law in terms of "guiding principles" (...); accordingly, the case-law of the Federal Constitutional Court has referred to the fundamental rights as an "objective order of constitutional values" (...). In this context, the fundamental rights do not serve the purpose of consistently keeping freedom-restricting interferences to a minimum; rather, they are to be developed as fundamental values informing the balancing of the freedoms of equally entitled rights holders. The freedom afforded one right holder must be reconciled with the freedom afforded another. For this purpose, it is necessary to assess conflicting fundamental rights positions in terms of how they interact, and to strike a balance in accordance with the principle of practical concordance (praktische Konkordanz), which requires that the fundamental rights of all persons concerned be given effect to the broadest possible extent (...)'.

'In this regard, the extent to which fundamental rights indirectly permeate private law depends on the circumstances of the individual case. In order to sufficiently lend effect to the constitutional values enshrined in fundamental rights, it is imperative that a balance be sought between the spheres of freedom of the various rights holders. Decisive factors may include the inevitable consequences resulting from certain situations, the disparity between opposing parties, the importance attached to certain services in society, or the social position of power held by one of the parties (...)'.

Kenya

Iten ELC Petition No. 007 of 2022 - Legal Advice Centre T/A Kituo cha Sheria & Anor v. Attorney General and 7 Others

In this on-going case before the Environment and Land Court (ELC) in Kenya, the members of Ilchamus and Tugen communities living on the shores of Lake Baringo in Kenya together with Kituo cha Sheria (a Kenyan Human Rights Non-Governmental Organization) have filed a climate change petition. This is one of the first cases Kenya has seen of vertical rights-based litigation in the context of climate change.

The petitioners allege violation of several rights under the Constitution. Consequently, they seek to enforce climate change duties of public officials under the Climate Change Act and other related constitutional rights under the Constitution. The Petitioners assert that they are victims of climate change related flooding which has caused massive displacement and loss of life and property.

Netherlands

Milieudefensie et al v Royal Dutch Shell plc (para 4.4.9)

Rechtbank Den Haag (2021): 'Milieudefensie et al invoke the right to life and the right to respect for private and family life of Dutch residents and the inhabitants of the Wadden region. These rights enshrined in Articles 2 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Articles 6 and 17 of the International Covenant on Civil and Political Rights (ICCPR) (hereinafter jointly also referred to as: 'the human rights') apply in relationships between states and citizens. Milieudefensie et al. cannot directly invoke these human rights with respect to RDS. Due to the fundamental interest of human rights and the value for society as a whole they embody, the human rights may play a role in the relationship between Milieudefensie et al. and RDS. Therefore, the court will factor in the human rights and the values they embody in its interpretation of the unwritten standard of care.'

These cases have been critical to demonstrate how, in the horizontal relation between corporations and individuals in corporate climate litigation, constitutional and human rights can only play a supplementary role as an interpretive tool to support the claimant's interpretation of other areas of law. However, using human rights as an interpretive tool has also been a persuasive legal avenue in

the Philippines in the National Inquiry on Climate Change:
'(...) Although States have the duty to enact and enforce appropriate laws to ensure that businesses respect human rights, a State's failure to perform this duty does not render business enterprises free from the responsibility of respecting human rights. Private actors, including business entities, must respect human rights, regardless of whether domestic laws exist or are fully enforced domestically. The responsibility of business enterprises to respect human rights is distinct from issues of legal liability and enforcement of national law provisions.'
'The corporate responsibility to respect human rights includes the responsibility to avoid causing or contributing to adverse human rights impacts through harm to the environment and our climate system. (...)'
'For the Carbon Majors within Philippine jurisdiction, they may be compelled to undertake human rights due diligence and to provide remediation. (...)'
'The corporate responsibility to refrain from contributing to climate change impacts that impair the full enjoyment of human rights extends not only to the whole group of companies of each Carbon Major in recognition of the enterprise theory of corporate personhood, but also to all business enterprises in each of the Carbon Majors' respective value chains. Accordingly, the Carbon Majors and business enterprises that cause, contribute to or are linked to adverse climate-related human rights impacts, "need to know and be able to show" that they respect human rights (...)'

Moreover, developments in the case law of constitutional courts could result in strong normative statements on climate change and human rights, strengthening the interpretive value of human rights in future corporate climate litigation.

One example is the Neubauer et al v Germany case in Germany
'The protection of life and physical integrity under Art. 2(2) first sentence of the Basic Law encompasses protection against impairments of constitutionally guaranteed interests caused by environmental pollution, regardless of who or what circumstances are the cause. The state's duty of protection arising from Art. 2(2) first sentence of the Basic Law also encompasses the duty to protect life and health against the risks posed by climate change. It can furthermore give rise to an objective duty to protect future generations.'
'If there is scientific uncertainty regarding causal relationships of environmental relevance, a special duty of care imposed upon the legislator by Art. 20a of the Basic Law - also for the benefit of future generations - entails an obligation to take account of sufficiently reliable indications pointing to the possibility of serious or irreversible impairments.'
'Under certain conditions, the Basic Law imposes an obligation to safeguard fundamental freedom over time and to spread the opportunities associated with freedom proportionately across generations. In their subjective dimension, fundamental rights - as intertemporal guarantees of freedom - afford protection against the greenhouse gas reduction burdens imposed by Art. 20a of the Basic Law being unilaterally offloaded onto the future. Furthermore, in its objective dimension, the protection mandate laid down in Art. 20a of the Basic Law encompasses the necessity to treat the natural foundations of life with such care and to leave them in such condition that future generations who wish to carry on preserving these foundations are not forced to engage in radical abstinence. Respecting future freedom also requires initiating the transition to climate neutrality in good time. In practical terms, this means that transparent specifications for the further course of greenhouse gas reduction must be formulated at an early stage, providing orientation for the required development and implementation processes and conveying a sufficient degree of developmental urgency and planning certainty.'
'The legislator itself must set out the necessary provisions specifying the overall emission amounts that are allowed for certain periods. As regards the method by which the legal framework for the allowed emission amounts is adopted, the legislative process cannot be replaced by a reduced form of parliamentary involvement in which the Bundestag merely approves the Federal Government's ordinances. This is because it is precisely the special public function of the legislative process that makes the adoption of parliamentary legislation necessary here. It is true that having parliamentary legislation in areas of law that are constantly subject to new developments and knowledge can in some cases be detrimental to the protection of fundamental rights. This notion draws on the concept of dynamic fundamental rights protection (...). However, this concept cannot be used here as an objection against the requirement for parliamentary legislation. The challenge is not to protect fundamental rights by ensuring that the legal framework keeps pace with new developments and knowledge. The challenge is to create a framework that makes further developments aimed at protecting fundamental rights possible in the first place.'

Other interesting examples are provided by regional human rights courts, such as the three pending climate cases before the Grand Chamber of the ECtHR,
Verein Klimaseniorinnen Schweiz and Others v Switzerland (arguing that the defendant has violated human rights and the claimants' health because of the defendant's inadequate mitigation targets and implementation measures)
Carême v France (arguing that the defendant has violated human rights because of insufficient government measures leading to climate risk exposure),
and Duarte Agostinho and Others v Portugal and 32 Others (arguing that the defendants have violated human rights by failing to take sufficient climate action).

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