The Potential of International Rights-Based Climate Litigation to Advance Human Rights Law and Climate Justice

Abstract

In recent years climate litigation has increasingly incorporated arguments based on human rights law. More recently, this trend has shifted to international and regional human rights bodies such as the European Court of Human Rights and the UN human rights committees. This paper examines three contemporary complaints in which groups affected by climate change allege violations of their rights based on states’ failures to enact adequate mitigation and adaptation policies. It argues that, while the cases have yet to be decided, they present a number of issues which are in need of clarification and therefore have the potential to advance the application of human rights law to climate change. These issues include questions relating to standing and admissibility, the nature of states’ obligations in the context of climate change, and the apportionment of responsibility for cumulative and long-term climate harms. In particular, because the cases include children and Indigenous peoples, they offer an opportunity for judicial interpretation of states’ obligations towards groups who have specific experiences of climate change. In this way they have potential to advance the cause of climate justice, not only for the specific petitioners, but for marginalised groups everywhere.