Adjudicating Climate Change: The Role of Human Rights Litigation in Climate Change Mitigation

Abstract: Over the last few decades, states have made a series of attempts to mitigate climate change through international agreements. Greenhouse gas emissions have kept rising, however, and are currently at record levels. This indicates that the international climate change regime has so far proven ineffective. With this in mind, litigants around the world have increasingly made use of human rights arguments as a way of compelling states to increase their mitigation efforts. This study assesses the potential impact of this trend by analysing how human rights litigation has contributed to climate change mitigation to date. First, the study evaluates the effectiveness of the international climate change regime. Secondly, the study presents an overview and analysis of international, regional, and domestic cases as of May 2021 wherein human rights arguments have been made to compel states to undertake more mitigation action. Finally, the study identifies and analyses a number of key substantive and procedural factors that affect the justiciability of these claims. The conclusion of this study is that human rights litigation has played an important role in terms of its contribution to climate change mitigation, but that there are several challenges to overcome before rights-based litigation can be employed in a broader context and establish clear obligations to mitigate climate change. Human rights litigation has so far resulted in direct regulatory changes to mitigation policies, increased public awareness on the issue, and an improved judicial understanding of key concepts relevant to this type of litigation. The study’s findings reveal that the substantive provisions contained within the core human rights treaties can be applied to the issue of climate change, meaning that the protective scope of human rights law extends to harm caused by climate change. Some domestic courts have, in addition, confirmed the existence of a human rights obligation to mitigate climate change. While the substantive human rights framework thus offers the potential to hold states accountable for a lack of mitigation action, many procedural hurdles remain. These include questions relating to standing, extraterritorial jurisdiction, attribution and causation, and the separation of powers. The existence of said procedural issues is evidence that, in its current form, the human rights system is insufficient in protecting against violations caused by climate change. Since it is widely accepted that climate change is the greatest threat to human rights globally, this study calls for judicial adaption and adjustment to account for the special conditions inherent to climate change and to properly deal with the existential threat that it represents.