The right to a healthy environment gives rise to a growing wave of climate change litigation

by Renata Politi, Universal Rights Group and Louis Mason, Universal Rights Group Blog, Blog, Climate change, Contemporary and emerging human rights issues, EHRD, Human rights implementation and impact, Implementation, R2E, R2E, Thematic human rights issues

In an amicus curiae brief submitted in the Norwegian Artic Oil case currently pending before the Norwegian Supreme Court, UN Special Rapporteur on human rights and the environment, David R. Boyd, and UN Special Rapporteur on hazardous substances and wastes, Marcos A Orellana, argued that “the justiciability of the right to a healthy environment empowers citizens and civil society, strengthening democratic decision-making and fostering accountability for political decisions. Access to justice is itself a fundamental human right, including in the context of environmental harms.” The faculty to claim one’s right to a healthy environment is essentially a matter of access to justice when one sees it affected or harmed in any way. In regard to climate change, plaintiffs are certainly feeling these harmful effects to the environment since there is a growing litigation movement around the globe. Hence, to facilitate and strengthen claims from environmental human rights defenders, there is an even greater need for a universal recognition of the right to a healthy environment.

As the world faces an increasingly alarming and urgent climate crisis that is causing grave human rights violations and will most likely threaten far worse harms in the future (read here), activists and advocates are mobilising. One such area of mobilisation is through human rights and environmental litigation claiming their fundamental right to live in a healthy and sustainable environment in order to influence policies that are in breach of this right. Although this right has not yet been universally recognised by the UN, as recalled by Mr. Boyd during his speech to the General Assembly in 2018, over a hundred UN member States have recognised the right to a healthy environment at the national level in their constitutions. When casting the net wider, and also considering non-constitutional national legislation and the ratification of regional treaties that explicitly include the right to a healthy environment, this figure rises to more than 150 UN member States. However, as many human rights defenders know the world over, a legally enshrined right does not necessarily entail its fulfilment. Therefore, activists and environmental groups around the world are progressively bringing their claims to the highest national courts to challenge behaviour and policies that risk the full enjoyment of this right and to ensure environmental plans adopted by governments in line with this right are duly implemented.

The aforementioned Norwegian Artic Oil lawsuit is one of the most notorious cases within this recent environmental litigation movement. Greenpeace and Nature & Youth – plaintiffs in the case – claim that an administrative decision which granted licenses to oil and gas companies to explore petroleum in an unexplored area of the Barents Sea poses a real and imminent risk to the environment, in violation of the constitutional right to a healthy environment (Article 112), the Paris Agreement, as well as the rights to life and to respect for family life (Articles 93 and 102 of the Norwegian Constitution, and Articles 2 and 8 of the European Convention on Human Rights, respectively).

An important matter to be assessed by the Norwegian Supreme Court in this case is whether the constitutional right to a healthy environment ‘provides an enforceable, justiciable human right’, as stressed in the brief submitted by UN Special Rapporteurs. In other words, the Supreme Court will decide on whether a court can adjudicate on and compel the State to promote and protect the right to a healthy environment. The Court of Appeal already recognised the justiciability of this right and the claimants expect it to be sustained by the Norwegian Supreme Court. Although legally the repercussions would be limited to Norway, it would still have a strong symbolic weight for other countries, particularly because in some aspects Norway plays a leadership role in addressing global climate change, they are an important multilateral advocate for environmental human rights defenders and led the resolution on this matter at the United Nations Human Rights Council.

The Norwegian Supreme Court would not be the first Supreme Court to uphold the right to a healthy environment and recognise it is indeed justiciable. Courts around the world have been playing an important role enforcing the right to a healthy environment and there have been climate lawsuits based on human rights in at least ten countries (read here). In their amicus curiae brief, Mr. Boyd and Mrs. Orellana highlighted recent cases ruled in this sense by the Colombian and Chilean Supreme Courts in 2018 and 2019, respectively, as well as a decision made by the French Constitutional Court in 2005. On the international scene, in 2005 the European Court of Human Rights held that, where recognised at constitutional level, the right to a healthy environment is enforceable (Taskin and Others v Turkey). Likewise, the African Commission on Human and People’s Rights has also ruled that Governments do have a positive obligation to prevent environmental harms and promote sustainable development under the right to a healthy environment provided in Article 24 of the African Charter on Human and Peoples Rights (here). More recently, earlier this year the Inter-American Court of Human Rights issued its first decision based on the right to a healthy environment (Article 26 of the American Convention on Human Rights), holding Argentina responsible for failing to protect the land of indigenous communities and, therefore, violating their human rights (Indigenous Communities of the Lhaka Honhat (Our Land) Association v Argentina).

Assuming the Norwegian Supreme Court upholds the justiciability of the right in question, all eyes will be turned to its decision on a second equally crucial question, namely, the scope of State responsibility for failure to prevent harmful effects to the environment, in this case by failing to mitigate climate change. In its decision of January 2020, the Court of Appeal dismissed plaintiff’s arguments that the State could be held responsible for the harmful effects of climate change, reasoning that the Government has ‘great discretionary freedom’ in choosing their measures to reduce greenhouse gas emissions. When assessing which harm to climate matters under the right to a healthy environment, the Court concluded that the harmful actions occurring within Norway are the key and that that those effects from climate changes outside Norwegian territory should be given less importance. However, as climate change is a global phenomenon of multiple causes, the environmental groups contested this in their appeal to the Supreme Court, based on the ‘harm’ principle of international law, according to which States have the duty to ‘avoid environmental harm in other countries’ as well. If Norway were to be held responsible for its part in climate change, this would be an important precedent in Europe.

It would follow the groundbreaking precedent set last year by the Dutch Supreme Court in Netherlands v Urgenda. In this case, the Dutch Supreme Court ruled that “the Netherlands had an obligation ‘to do ‘its part’ in order to prevent dangerous climate change, even if it is a global problem’”. It was a remarkable statement of the responsibility of the State for a harm that cannot be entirely attributed to its fault, pointing to the severity of the problem of climate change, its disastrous implications for individuals’ rights and the need for States to take and not shirk responsibility for their part in  this global issue. It is now a great opportunity for the Norwegian Supreme Court to uphold the right to a healthy environment by asserting that States’ responsibility for climate change does not stop at its borders insofar as world-wide effort is required to fight the menace it poses to all of us and to all of our rights.

Featured picture: Polar Bears Across the Arctic Face Shorter Sea Ice Season, picture by Mario Hoppmann. Licensed under CC BY 2.0

Share this Post