An increasing number of individuals around the world are taking action to fight against climate change. In most occasions, protesters and activists have stressed the tight link between the environmental threats we are facing today and human rights. The observable damage to specific ecosystems and to the planet as a whole has indeed repeatedly revealed that, without a sufficient global reaction, the lives of individuals and entire communities will be enormously impacted in the near future. In light of this evidence, the insufficient action of governments and the destructive activities of transnational corporations have come under the scrutiny of domestic and international courts. Climate justice has thus gone beyond questions of environmental conservation, addressing broader issues of human rights, economic and geographical inequalities, racial discrimination, international migration, and community resilience. In this struggle against climate change, the important differences among the actors involved and issues to be tackled have translated into a variety of strategies.

Urgenda v. the Netherlands

The Urgenda case is one of the most recent and insightful legal cases related to the current climate crisis. On 20 December 2019, the Supreme Court of the Netherlands announced the final verdict against the Dutch government. The case had been presented in 2013 by the Urgenda foundation on behalf of about 900 people concerned about climate change. They successfully argued before the court that the Dutch state has not been respecting its legal obligations to reduce carbon emissions and, as a consequence, has failed its duties towards its citizens under domestic and European human rights law. The recent pronouncement of the Supreme Court clearly re-established what the lower courts had previously found: the state’s duty of care towards its citizens also applies to environment-related issues and to the potential threats deriving from climate change. According to art. 2 and art. 8 of the European Convention on Human Rights (ECHR), the signatory states are indeed bound to protect people’s rights to life and to respect for private and family life. [1] Since the failure to cut greenhouse emissions would effectively produce a series of extreme consequences for human life, “the State must take precautionary measures to prevent infringement as far as possible” [2] and, thus, cut emissions further.

Such a verdict builds both on the previous legal obligations contracted by the Dutch state and on the bulk of scientific data accepted by the wider international community. In Bali, at the 2007 United Nations Climate Change Conference (COP 13), the Netherlands was among the “developed” states that agreed to a greenhouse emission reduction of 25-40% by 2020 compared to their 1990 levels. This decision was justified on the basis of the scientific evidence reported by the United Nations Framework Convention on Climate Change (UNFCC) showing that such a reduction was pivotal to stay within a 2°C rise of global average temperature. In the following climate conferences – especially the 2015 COP 21 in Paris – the Netherlands reiterated its commitment to a more ambitious emission reduction – essential to respect a less alarming 1.5°C global warming target. In this context, the Court also cites the Intergovernmental Panel on Climate Change (IPCC) and the United Nations Environment Program’s (UNEP) reports which link the failure to cut greenhouse emissions to further damage for the life and wellbeing of human beings. 

In response to this evidence, the Dutch government accepted once again its duty to effectively reduce greenhouse emissions but argued that the EU less ambitious target of 20% was being respected, and, thus, there was no violation. Moreover, they sustained that there was not a direct and unambiguous link between the Dutch emissions and the global phenomenon of climate change. The Court rejected this reasoning noticing that, in order to avoid further environmental damage and respect its citizens’ human rights, the government of the Netherlands had to respect the previous 25% emission reduction target by 2020. Even if it does not release emissions itself, the state has indeed the power to control the emission levels produced within its jurisdiction. Its duty to uphold the rights to life and respect for private and family life of its people thus generates an obligation to implement policies which, on the basis of the existing scientific data, can prevent catastrophic scenarios with more certainty.

The ruling of the Dutch Supreme Court on the Urgenda case is extremely relevant for at least two factors. First of all, the judges clearly regarded the state’s inaction in the context of the current climate crisis as a breach of its human rights obligations under the ECHR. This interpretation of the convention might produce significant consequences in future cases in which the other 46 signatory states are involved. Their respective judicial systems might force their executive branches to act in a more adequate way to the reality of the climate crisis. Of course, compliance from the latter cannot be blindly assumed; yet, European leaders would be forced to recognize the inadequacy of their policies vis-à-vis the appalling picture painted by the scientific community and, ideally, would face the reaction of an increasingly environmentally aware public. Secondly, the clear link between the climate crisis and human rights challenge the often-assumed idea that climate change only affects remote parts of the globe, allowing many to adopt disavowal attitudes and ignore the issues at hand. The environmental threat does not only concern the remote polar ecosystems or endangered animal species; rather, as David Wallace-Wells eloquently shows in the Uninhabitable Earth, it is and will be massively affecting every human being on the planet, even in the unlikely case in which the “safer” global temperature rise margin of 1.5°C was to be respected [3].

Ecocide

Besides the Urgenda case and the other numerous lawsuits against governments all around the world [4; 5], interesting developments have also taken place in the realm of criminal justice. Citing the case of small island states risking disappearing underwater in the next decades [ See our article on small island states] , Scottish lawyer Polly Higgins proposed the introduction of the crime of “ecocide” into the International Criminal Court’s (ICC) Rome Statute. She defines it as any “extensive damage to, destruction of, or loss of ecosystem(s) to such an extent that peaceful enjoyment by the inhabitants of that territory is severely diminished” [6]. Interestingly, in wartime, environmental degradation and destruction are already recognized as crimes; during peacetime, instead, the hazardous conduct of corporations and conniving state leaders is often ignored [7]. 

Although, normally, the primary intent behind these actions is ordinary business conduction and profit, in Higgins’s formulation of ecocide, the courts could focus on the secondary intent of these actors. In other words, one would not need to prove that individual actors at the head of corporations were deliberately harming the environment, but that they started or continued their harmful conduct despite being conscious of the dangers for the planet [8; 9]. The adoption of ecocide into international criminal law would translate into the possibility of charging top business executives for their individual actions. Thus, whereas states were the main focus in cases such as Urgenda v. the Netherlands, in this case the crimes under examination would be those in which the perpetrators are specific individuals whose actions are negatively impacting the environment. Ecocide would indeed acquire the status of crime against peace along with genocide, ethnic cleansing, war crimes, and crimes against humanity – already included in the Rome Statute. 

Though it might initially seem disproportionate, the increasingly precarious condition of small island states such as Vanuatu, Kiribati, Palau, and the Maldives clearly generate an imperative to act. According to a 2012 IPCC report, “there may be a need to consider relocation [of their citizens] … for atolls where storm surges may completely inundate them” and, consequently, decimate their population [10]. Accordingly, some of these states have already bought land elsewhere to transfer their citizens once the situation further deteriorates. As the sea level rises, droughts and extreme flooding become more frequent, and desertification intensifies, similar consequences will not be limited to these relatively small states but will be faced by thousands (if not millions) of people in all continents. Nevertheless, not much can be achieved without adequate tools to stop those who are consciously contributing to the climate crisis, violating the limits already in place, and accumulating wealth at the expenses of the rest of planet.

Climate justice

The evidence suggests that the significance of climate justice will increase in the near future with the further manifestation of the effects of climate change. In the words of David Schlosberg and Lisette B. Collins, “the environment and climate system are not simply symptoms of existing injustice, but instead the necessary conditions for the achievement of social justice” [11]. Thus, the preservation of ecosystems and the fight against the climate crisis are requisites to uphold the human rights obligations that have already been established and a potential path to reclaim justice where it has been denied. In this context, the emerging struggles in the name of climate justice are not limited to the judicial system and the field of international law. The increasing awareness on the threat represented by the anthropogenic actions on the planet is indeed generating multiple different responses. Issues such as global and domestic economic inequalities and international migration have been some of the main themes discussed by environmentalist movements such as Extinction Rebellion (XR). In their words, “the issue of the climate and the environment is an issue of social and economic justice, as well as ecological justice” [12]. To raise awareness and attention on these themes, XR has held numerous protests and acts of civil disobedience around the globe, arguing that taking action against the climate crisis within the existing structures of governance is insufficient. 

Climate justice can thus stimulate debates about the various forms of discriminations that have led to the present situation. Ignoring the warning signals and simply continuing “business as usual” has de facto created a “climate caste system” in which the least responsible for climate change are the ones that will be affected the most by it [3]. Therefore, the efforts to stop the further degradation of our planet can go beyond ordinary liberal strategies of protection of human lives in a strictly biological sense (that is their right to life intended as their mere physical survival). The recognition of inequalities – both on a global and domestic level – should generate further actions for the inclusion of people in the decision-making processes with the aim of elaborating adequate and fair responses. This would also involve a rethinking of the broader systems of production and consumption, as well as the extension of civil and political rights to people experiencing the effects of the climate crisis more directly. To this purpose, actions such as the Urgenda case and Polly Higgins’s work on ecocide might push governments to act more decisively against climate change and bring attention to the vital relation between human rights and the environment. However, these developments should be interpreted only as a minimal part of the wider response needed to effectively tackle the climate crisis and bring about a fairer system for all people.

Bibliography

1. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms. ETS 5 (1950): https://www.refworld.org/docid/3ae6b3b04.html
2. Urgenda Foundation v. State of the Netherlands. [2015] HAZA C/09/00456689. Unofficial English translation of appeal case of 9 October 2018: http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2018/20181009_2015-HAZA-C0900456689_decision.pdf
3. David Wallace-Wells, The Uninhabitable Earth: A Story of the Future. London: Penguin, 2019.
4. Joana Setzer and Rebecca Byrnes, Global Trends in Climate Change Litigation: 2019 Snapshot. London: Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science, 2019. http://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2019/07/GRI_Global-trends-in-climate-change-litigation-2019-snapshot-2.pdf
5. UNEP, “The Status of Climate Change Litigation: A Global Review” (2017). https://wedocs.unep.org/bitstream/handle/20.500.11822/20767/climate-change-litigation.pdf?sequence=1&isAllowed=y
6. Polly Higgins. Eradicating Ecocide: Exposing the Corporate and Political Practices Destroying the Planet and Proposing the Laws Needed to Eradicate Ecocide. London: Shepheard-Walwyn, 2010.
7. Polly Higgins, Damien Short, and Nigel South. “Protecting the planet: a proposal for a law of ecocide.” Crime, Law and Social Change 59, no. 3 (2013).
8. Polly Higgins, “From Ecocide to Ecolibrium: The Great Turning. TEDxUppsalaUniversity” (2015). https://www.youtube.com/watch?v=SLldatCfVb4; 
9. Real Media, “The Crime of Ecocide – Polly Higgins Interview” (2019). https://www.youtube.com/watch?v=qfUamcJgAOA&feature=emb_title
10. IPCC, “Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation: Special Report of the Intergovernmental Panel on Climate Change.” Cambridge: Cambridge University Press, 2012.
11. David Schlosberg and Lisette B. Collins, “From environmental to climate justice: climate change and the discourse of environmental justice.” WIREs Clim Change 2014, 5. https://onlinelibrary.wiley.com/doi/pdf/10.1002/wcc.275?casa_token=ZbqXPFJRzr4AAAAA:r_8QlPHoXF1R640JKOpsStV5u4MUcA6Q8sefiZoXVVSkMvgM1V9aYVkfPzTfFMmjRY9gCxVrXpNzKRYa
12. Extinction Rebellion, This is Not a Drill: An Extinction Rebellion Handbook. London: Penguin, 2019.