Litigating the climate crisis: is the international human rights system the answer to the climate emergency?

Climate change is a human rights emergency. Rising sea levels, extreme weather events and record temperatures are changing the way in which we inhabit the earth, placing the lives and livelihoods of millions at risk. Often the impacts of climate change on our human rights will not be spectacular or newsworthy. They will be slow, cumulative and complex.

Conflict and displacement represent two such issues: complex, gradual and interlinked, climate-related conflict and displacement will impact communities across the world and affect the enjoyment of a number of basic human rights. Despite this, the climate crisis is not often understood as a human rights issue and, more importantly, the international human rights system remains largely unengaged on climate issues.

This article explores litigation as an effective mechanism to mobilise the international human rights system in the fight against climate change. Since the Universal Declaration of Human Rights was adopted in 1948, the international community has worked towards creating a robust system of accountability, creating state obligations to respect, protect and fulfil our civil, political, economic, social and cultural rights. The greatest challenge for environmental activists is accountability: how do we obligate states to adhere to their environmental commitments? As the day-to-day implications of climate change are felt more acutely by communities across the world, the need for state accountability becomes more pressing. Does the international human rights system provide a solution to this? And if so, how do we mobilise it?

This article is not a critical analysis of the efficacy of the international human rights system – rather, it is a call to use it. The international human rights system has the potential to create a robust accountability mechanism for state-led climate action, and litigating is the most powerful way to use it.

Conflict and displacement

A 2018 study by the World Bank estimated that, by 2050, nearly 3% of the population (around 143 million people) in sub-Saharan Africa, South Asia and Latin America could be displaced due to climate change. The United Nations Refugee Agency (UNHCR) estimates that ‘some 400 million indigenous people face threats’ to their individual and collective rights due to climate displacement. Increasingly, we are seeing how climate change can drive or exacerbate conflict. Water shortages and resource scarcity can drive conflict between communities. Harsh weather conditions and even rising temperatures have been demonstrated to increase the likelihood of violent conflict. A recent UNHCR report noted that ‘95% of all conflict displacements in 2020 occurred in countries vulnerable or highly vulnerable to climate change’. It is worth noting that conflict and displacement are inextricably linked in the context of climate – one can cause the other. For example, a 2021 study demonstrated how climate shocks can trigger inter-group conflict between farmers and herders in Africa whose migration patterns have been disturbed by changing weather patterns.

These statistics demonstrate the complexity and gravity of climate-related conflict and displacement. The implications for communities are daunting, but these issues do in some ways provide an opportunity: to green up the human rights system.

International human rights law

The international human rights system is primarily founded on three key documents: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights, which are supplemented by subject-specific conventions on particular issues, such as women’s rights, rights of indigenous people and refugee law.

State obligations under international human rights law fall into three broad categories:

1. The duty to respect human rights, which creates a negative obligation on states not to interfere with the enjoyment of human rights.
2. The duty to protect human rights, a positive obligation to protect citizens against rights violations by third parties.
3. The duty to fulfil human rights, a positive obligation to ensure full and free realisation of rights for all citizens.

There are two types of human rights-monitoring systems within the UN: treaty-based bodies and charter-based bodies. The 10 treaty-based bodies monitor implementation of their respective treaties and hear submissions from citizens who believe their rights have been violated (for example, the Human Rights Committee monitors implementation and hears cases related to violations of the ICCPR).

Climate change as a human rights issue

The relationship between climate and human rights hasn’t been straightforward and, in fact, is a relatively new concept.

In 2005, a representative group of the Inuit people asked the Inter-American Human Rights Commission to hear a claim against the United States that global warming was having a direct impact on their human rights and culture. The Commission declined to hear the case, but the claim sparked a conversation around the links between climate change and human rights. This conversation continued, and in 2007, the Malé Declaration became the first intergovernmental statement to recognise the impacts of climate change on the enjoyment of human rights. In 2010, state parties to the UN Framework Convention on Climate Change agreed in Cancun that ‘parties should, in all climate change related actions, fully respect human rights’. In 2022, the UN General Assembly recognised the international right to a clean, healthy and sustainable environment.

But the relationship between climate change and human rights is much more complex than simply a right to a healthy environment. It goes to the very heart of human rights enjoyment. Indeed, recently, climate justice has highlighted the inequality and intersectionality of climate impacts across different populations. It is now widely recognised that climate change will disproportionately affect countries in the Global South, as demonstrated by the Loss and Damage Fund announced at COP27. We also see examples across the world of climate change disproportionately affecting minority groups: for example, studies have shown that LGBTQ+ people are often denied access to relief and humanitarian assistance during climate disasters.

International human rights litigation: mobilising the system

Climate litigation is beginning to look towards human rights law as a way of demanding climate justice. Litigation is, in my opinion, the most effective mechanism to operationalise the human rights system in the fight against climate change. Progress in the international courts is slow, but recent case law seems to demonstrate a shift in opinion: it is becoming clear that the international human rights system has a pivotal role to play in climate action.

In recent years, climate litigation has attempted to establish state obligations under human rights law related to climate action. In 2019, the Dutch Supreme Court upheld a decision in Urgenda Foundation v Netherlands, finding the Dutch government had violated articles 2 (right to life) and 8 (right to respect for private, family and home life) of the European Convention on Human Rights by failing to reduce greenhouse gas emissions. This inspired further cases in various jurisdictions, for example in South Korea, Pakistan and Brazil, all claiming that government climate policies were violating obligations under human rights law.

This approach had limited application in international law, until the Human Rights Committee decision of Teitiota v New Zealand in 2020, which became the first human rights treaty body decision directly addressing the human rights impacts of climate change. The case involved an asylum claim by a native of Kiribati, who was forced to leave his home due to rising sea levels and violent conflict erupting over scarce resources. The claim was unsuccessful, but it opened the doors: the UN Human Rights Committee for the first time recognised that climate policies are subject to the existing obligations of international human rights law.

The Teitiota case set the scene for the case of Daniel Billy et al. v Australia, which represents a turning point in international human rights litigation. This was a submission to the UN Human Rights Committee by a group of Torres Strait islanders, claiming their human rights had been violated by Australia’s failure to adopt appropriate adaptation and mitigation efforts against the impacts of climate change.

The Torres Strait Islands are an archipelago of small, low-lying islands sitting to the north of Queensland, Australia; they fall under Australian federal authority and are home to a majority of Torres Strait Islander indigenous populations. The islands are particularly vulnerable to climate change. In recent years, the islands have been subject to increased flooding and extreme weather events, loss of agricultural land and rising sea levels, which have had direct harmful consequences on the islanders’ livelihoods, food systems and traditional way of life. In one instance of particularly extensive flooding, an ancestral graveyard was disturbed, leaving remains scattered across the island.

The claimants argued that Australia had ‘violated its duty to avert devastating and future irreversible impacts on rights protected by the [ICCPR], including impacts caused by existing greenhouse gas emissions’. The Human Rights Committee considered Australia’s human rights obligations in line with the Paris Agreement, and found that the claimants’ rights under ICCPR articles 17 (right to privacy, family and home life free from unlawful interference) and 27 (right of minority groups to enjoy their culture) had been violated.

The Daniel Billy case is a landmark decision, for three key reasons:

1. It is the first time that an international tribunal has found a country has violated human rights law through inadequate climate policy.
2. It is the first time a state has been found responsible for its greenhouse gas emissions under international human rights law.
3. It is the first time that an indigenous community’s right to culture has been found to be violated by inadequate climate policy.

The case marks a turning point in international human rights law, as the system begins to adapt and respond to the human rights impact of climate change. It demonstrates a shift in judicial receptiveness to climate litigation, and a key development in overcoming common obstacles in climate cases, such as causation and attribution. Climate change is no longer an ‘act of God’ under international law: it is a culpable violation of state obligations.

But we need more cases. Both successful and unsuccessful cases can create a precedent, opening the doors for litigants to have their cases heard. Successful litigation can have a number of useful outcomes, including effective remedies such as compensation or adaptation measures for victims to protect their livelihoods from the impacts of climate change. Litigation can also leverage international pressure to force governments into action. In the case of Daniel Billy, before the decision was even published by the Human Rights Committee, the Australian government committed AU$25 million to the Torres Strait Islands for urgent adaptation measures, amid increasing pressure to respond.

Beyond this, treaty body decisions are an effective change mechanism to reinterpret human rights obligations in the context of climate. The Daniel Billy case is a starting point, but further clarity is needed. The specificity of this case (namely the fact that the claimants are indigenous, and the state party is a country with notably high emissions) means it is difficult to know how it would be interpreted and applied in different scenarios.

As climate-related conflict and displacement worsens, international human rights law and its institutions will need to adapt and respond. The case of Daniel Billy represents an opportunity: the international human rights system has the capacity to create one of the most powerful enforcement mechanisms to drive government response to the climate crisis. And while the impact of climate change on human rights globally is daunting, it does present an opportunity. International human rights law has played a pivotal role in global peace, justice and security since 1948. Going green will be its greatest challenge.

Helena O’Mahony is a Case Co-Ordinator at Mishcon de Reya LLP.