A paradigm shift from voluntary to court-ordered climate change mitigation? The potentials and challenges of a human rights-based approach

Abstract: The central theme of this thesis is anthropogenic climate change; governments' inability to create an effective, inclusive response mechanism that manages to mitigate anthropogenic emissions; and advocates efforts to coerce States to act by invoking State responsibility in adjudicatory dispute settlement processes. States' failure to act in accordance with scientific risk assessments and to mitigate polluting activities has led underrepresented groups to increasingly lose trust in their respective executive and legislative branches, and, by means of protest, these advocates are now turning to court. This dispute settlement choice has grown out to be a popular trend throughout the past few years. Interestingly, a clear shift is visible towards claims based on human rights law. The recent, far-reaching Dutch landmark Urgenda climate case is such an example, as the Dutch Supreme Court adopted a human rights-based approach with reference to the European Convention on Human Rights. This approach has served as a source of inspiration for many litigants in different jurisdictions since, with mixed success. Through an extensive legal-dogmatic research of cases from highly diverse jurisdictions, this thesis researches whether the rise in human rights-based mitigation-related climate change litigation reflects a shift from voluntary targets to mitigate greenhouse gas emissions through global climate governance, to court-ordered mitigation obligations. This thesis furthermore studies what the potentials and challenges are regarding the application of a human rights-based approach. Considered in this thesis’ research is the undeniably important connection between science, governance and law in the context of climate change. This thesis’ conclusions are modestly positive from a protective human rights perspective. On the one hand, governments are failing their duties to protect the public interest of a clean and healthy environment. It is furthermore increasingly apparent that the failure to do so will most probably infringe human rights when taking note of climate science. When assessing current standards set by regional human rights regimes, it has also become apparent that the substantive aspect of human rights law seems to be consistent with climate change law. However, the problem that remains is that courts have simply not yet answered to climate change matters. This means that these human rights obligations derived from regional human rights frameworks are prone to a lack of coherence in domestic judicial interpretation. Clarification from these courts is thus necessary for States to have guidance as to how to deal with human rights law in climate change matters. Besides the novelty of the matter, research has presented several reoccurring justiciability issues. In particular standing before respective courts and the principle of separation of powers stand in breach with effective access to justice. Human rights law, however, has the unique potential to overcome issues regarding the separation of powers principles as it allows courts, by means of guarding democracy and the rule of law, to substantively review a respective matter if constitutional or human rights are impaired. This thesis relevance lies in the fact that, even though mitigation-related litigation may not be the final solution in the long run, it does offer potential to coerce States that are lagging the necessary will or action to mitigate to act now, and given the fact that this fundamental right to a healthy environment is increasingly considered to be a constitutional or fundamental rights issue, it may even be considered the judiciary’s duty to do so. This trend of invoking a human rights-based approach to counter the lack of mitigation action by States will therefore most certainly not end soon. In fact, it has just started and within now and ten years, there will most probably be a well-established set of jurisprudence that supports this vision and has hopefully contributed to an accelerated majoritarian State-awareness of the urgent need to mitigate pollution now, evoking action over words.