Show Summary Details
International Human Rights Law

International Human Rights Law (4th edn)

Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran, and David Harris
Page of

Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice).

date: 29 January 2023

p. 64431. Climate Changefree

p. 64431. Climate Changefree

  • Lavanya Rajamani

Abstract

Climate change is considered to be the greatest threat to human rights of our generation. This chapter discusses the challenges posed by climate change and mitigation measures to the enjoyment of human rights and the obligations that states have under international human rights law to respond to these challenges. It introduces international climate change law and how this has developed to accommodate human rights concerns. The chapter ends by surveying the recent turn to national and international litigation, whereby human rights arguments have been deployed to force states to adequately respond to climate change.

Summary

This chapter introduces the intersections between the conceptual frameworks, legal instruments, and governance mechanisms relating to human rights and climate change. It identifies the rights and obligations related to climate change, and documents the efforts in the international climate change regime to acknowledge and address the human rights dimensions of climate change. The chapter also discusses cases in national, regional, and international courts that have engaged with issues at the intersection of human rights and climate change, which have sought to plug gaps in the international climate change governance architecture. Notwithstanding the exponential growth in attentiveness to the intersections between climate change and human rights, this chapter concludes that there are limits to the extent to which existing legal architectures can effectively protect the enjoyment of human rights from climate change.*

1 Introduction

Climate change, characterized as one of the ‘greatest threats to human rights of our generation’,1 poses a serious risk to the rights to life, health, food, housing, water, and culture for individuals, as well as self-determination for peoples and communities across the world. Measures taken to mitigate and adapt to climate change also have the potential to impinge on the human rights of current and future generations. Stabilizing climate change at acceptable levels will require increasingly stringent measures, including the adoption of a range of carbon-dioxide removal technologies, some of which are untested at scale. Even with the latest round of commitments from states, the chances of stabilizing global temperature increase at ‘well below 2°C’ or 1.5°C’—at which level the adverse effects of climate change are manageable—is limited.2 The need to prepare for severe adverse effects, and to recognize and address their impact on human rights, is crucial.

p. 645Notwithstanding the clear and present risks that climate change and response measures to address climate change pose to the human rights of current and future generations, it was only in 2008 that international human rights institutions turned their attention to the intersections between climate change and human rights; that is, the ways in which climate change affects the enjoyment of human rights. This gathering consciousness in the human rights community fed shortly thereafter into the international climate change regime, which comprises the 1992 UN Framework Convention on Climate Change (FCCC), the 1997 Kyoto Protocol to the FCCC, the 2015 Paris Agreement, and decisions of parties under these instruments. In 2010, in the Cancun Agreements, parties to the FCCC urged states to ‘fully respect human rights in all climate-related actions’3 and, in 2015, states introduced one of the first references to human rights in a multilateral environmental treaty in the preamble to the Paris Agreement.4 In October 2021, in recognition of the increasing salience of this issue, the Human Rights Council created a Special Rapporteur on the promotion and protection of human rights in the context of climate change.5 Furthermore, national, regional, and increasingly international courts have also begun to recognize and address the impacts of climate change on a range of human rights.

This chapter provides an introduction to the intersections between the conceptual frameworks, legal instruments, and governance mechanisms relating to human rights and climate change. Section 2 identifies the rights and obligations related to climate change. Section 3 turns to the efforts in the international climate change regime to acknowledge and address the human rights dimensions of climate change. Section 4 discusses in an illustrative fashion various cases in national, regional, and international courts that have engaged with issues at the intersection of human rights and climate change, and sought to plug gaps in the international climate change governance architecture. The chapter concludes in Section 5 that, notwithstanding the exponential growth in attentiveness to the intersections between climate change and human rights, there are limits to the extent to which the enjoyment of human rights can be effectively protected from climate change under existing legal architectures.

2 Climate Change in International Human Rights Law: Rights and Obligations

The Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), released in 2021, finds ‘unequivocal’ evidence that human influence and the release of greenhouse gas (GHG) emissions has warmed the globe. This warming is ‘unprecedented over many centuries to many thousands of years’ and is ‘already affecting many weather and climate extremes in every region across the globe’.6 It is increasing the frequency of ‘heat waves, droughts, floods, cyclones and wildfires’ and revealing the ‘significant vulnerability p. 646and exposure of some ecosystems and many human systems to current climate variability’.7 Slow-onset events like sea-level rise, which is predicted to continue rising over the twenty-first century,8 and sudden-onset natural disasters, have profound impacts including ‘alteration of ecosystems, disruption of food production and water supply, damage to infrastructure and settlements, morbidity, and mortality, and consequences for mental health and human well-being’.9 Such effects are exacerbated for the poor, vulnerable, and marginalized.10

2.1 Rights

A host of internationally protected rights are at risk from such far-reaching and all-pervasive climate impacts. Scholars, human rights treaty bodies, and national, regional, and international litigation have focused in particular on the impacts that climate change has on the rights to life, private life, health, food, water, housing, and self-determination. Climate impacts such as the increased incidence and severity of floods, heatwaves, droughts, storms, and fires will pose, for instance, direct and indirect threats to the rights to life and health. The direct threats include the loss of life, disease, and injury, whilst indirect threats include increased hunger and malnutrition. Such extreme weather events will also result in loss and damage to housing, and result in dislocation, threatening the right to housing.11

The Human Rights Council first expressed concern in 2008 that climate change ‘poses an immediate and far-reaching threat to people and communities around the world’,12 and has since passed a series of resolutions further clarifying the nature of intersections between human rights and climate change.13 The Council has identified the direct and indirect implications that climate impacts have ‘for the effective enjoyment of human rights including, inter alia, the right to life, the right to adequate food, the right to the highest attainable standard of health, the right to adequate housing, the right to self-determination and human rights obligations related to access to safe drinking water and sanitation’.14 It has since sought to explore and highlight the greater risks, burdens, and impacts that climate change has on vulnerable groups including children,15 women,16 older persons,17 and persons with disabilities.18 It has done so by directing the Office of the High Commissioner for Human Rights (OHCHR) to organize panel discussions and initiate studies on these intersections and implications. The work of the OHCHR aims to encourage a rights-based approach to climate change, in particular that ‘climate change mitigation and adaptation efforts are adequate, sufficiently ambitious, non-discriminatory and compliant with human rights obligations’.19

p. 647In addition to these human rights, some scholars, including successive UN Special Rapporteurs on Human Rights and the Environment, have highlighted the right to a healthy environment and argued that it encompasses a right to a ‘safe climate’.20 Over 155 states21 and several international soft law instruments22 recognize and protect rights in relation to the environment and/or derive environmental rights from other more established rights. National and regional adjudicatory bodies have extended rights such as the rights to life and health to cover an environmental right (see Section 4). Only Article 24 of the African Charter on Human and Peoples’ Rights and Article 11 of the San Salvador Protocol to the American Convention on Human Rights recognize an explicit, free-standing, substantive human right in relation to the environment. In September 2021, the Parliamentary Assembly of the Council of Europe recommended the adoption of an additional protocol to the European Convention on Human Rights explicitly recognizing the right to a ‘healthy and viable environment’ as it would ‘finally give the Court a non-disputable base for rulings concerning human rights violations arising from environment-related adverse impacts on human health, dignity and life’.23 In October 2021, in a strong endorsement of such a right at the international level, the UN Human Rights Council adopted Resolution 48/13 which recognizes the ‘right to a safe, clean, healthy and sustainable environment as a human right that is important for other human rights’.24 This resolution is set in the context of climate impacts, noting that climate change interferes with the right to a safe, clean, healthy, and sustainable environment, and threatens the enjoyment of other rights as well.25

The current UN Special Rapporteur on Human Rights and the Environment has argued that the right to a healthy environment contains several substantive elements of which the right to a ‘safe climate’ is one. Arguably, this flows from the objective of the FCCC to ‘prevent dangerous anthropogenic interference with the climate system.’26 Insofar as states have recognized the need to avert dangerous climate change and its adverse impacts, which includes ‘significant deleterious effects’ on human health and welfare,27 the right to a healthy environment extends to a safe climate. The Paris Agreement further concretizes the FCCC’s objective by identifying a global limit to temperature increase—‘well below 2°C’ with an aspiration to reach 1.5°C.28 Therefore, by extension, it could be argued that the right to a safe climate, should such a right have emerged, is the right to have global temperatures stabilized at these levels.

Several special procedures mandate holders have cautioned that climate impacts threaten the enjoyment of human rights, especially in relation to food,29 adequate housing,30 and p. 648a healthy environment,31 and that it has particularly severe consequences for vulnerable and marginalized groups including migrants,32 indigenous communities,33 the internally displaced,34 and those living in extreme poverty.35 The Special Rapporteur on extreme poverty and human rights was particularly scathing in his 2019 report when addressing the international community’s efforts thus far to address climate change. Characterizing climate change as ‘an unconscionable assault on the poor’ that ‘risks undoing the last 50 years of progress in development, global health and poverty reduction’, he called for a ‘fundamental shift in the global economy’.36 In the lead-up to the Paris climate negotiations, 28 special procedures mandate holders urged states to include language in the 2015 climate agreement requiring states to ‘respect, protect, promote, and fulfil human rights for all’ in all climate change-related actions.37

2.2 Obligations

The vast majority of states are parties to the 1992 FCCC (197 states), the 1997 Kyoto Protocol (192 states), and the 2015 Paris Agreement (193 states). Most of these states are also party to the core human rights treaties, especially the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).38 States parties have obligations to respect, protect, and fulfil the rights contained in these treaties. The extent of application and enforcement of protected human rights will, of necessity, differ from state to state depending on national circumstances, constitutional culture, willingness to legislate, judicial creativity, and governance mechanisms, but at a minimum the core human rights treaties set standards and benchmarks in place and impose a set of substantive and procedural obligations on states.39

In 2018, the former Special Rapporteur on Human Rights and the Environment drafted the Framework Principles on Human Rights and the Environment. Based on ‘actual or emerging international human rights law’, the Framework Principles set out obligations, or at least ‘best practice’, for states to facilitate the enjoyment of a safe, clean, healthy, and sustainable environment.40 The Principles can readily be contextualized and applied to climate harms. Among the substantive obligations identified is the obligation to ‘ensure a safe, clean, healthy and sustainable environment in order to respect, protect and fulfil human rights’.41 In the context of climate change, states must respect the right to a safe climate, protect that right from being violated by others, and must put in place laws and policies to fulfil that right. The Framework Principles also include several procedural obligations in relation to public access to environmental information,42 prior assessment of environmental projects to check for potential impacts on the enjoyment of human rights,43 p. 649public participation in environmental decision making,44 and access to effective remedies for violations of human rights and environmental law.45

These obligations require states to take a rights-based approach to climate impacts and response measures. To meet their substantive obligation to respect the right to a safe climate, states should refrain from causing or allowing climate harm. To meet their obligation to protect the right, states should protect the climate from harmful interference from others including industry, business, and other actors. Finally, to meet their obligation to fulfil states should choose GHG mitigation contributions that reflect their ‘highest possible ambition’46 or at least constitute a fair share of the global effort in meeting the Paris temperature goal of ‘well below 2°C’. The Paris Agreement contains a composite temperature goal with two elements—‘well below 2°C’, while pursuing efforts towards 1.5°C.47 Some scholars argue that the Paris temperature goal is only a ‘minimum standard for assessing compliance with human rights obligations’.48 Indeed, in a joint statement in 2019, five human rights treaty bodies noted with concern that states’ current contributions were insufficient to limit global warming to 1.5°C.49 Using 1.5°C as the standard of assessment in the human rights context effectively operationalizes the lower end of the temperature goal identified in the Paris Agreement. This approach is increasingly being endorsed by national and regional courts (see Section 4).

UN human rights treaty bodies have issued general comments50 and statements51 highlighting the risks climate impacts pose for the protection of human rights. They have asked questions of states about their climate policies, and made recommendations on how they might best comply with their treaty obligations in the light of climate change.52 Of particular note is the joint statement issued by five human rights treaty bodies noting, inter alia, that ‘[f]ailure to take measures to prevent foreseeable human rights harm caused by climate change, or to regulate activities contributing to such harm, could constitute a violation of States’ human rights obligations.’53 This reflects the position taken by the treaty bodies in their recommendations to states. For example, the Committee on Elimination of All Forms of Discrimination Against Women expressed concern about Australia’s high per capita GHG emissions which it noted is ‘owing to the continued dependency on coal for domestic use and exports’.54 In a similar vein, the Committee on Economic, Social and Cultural Rights asked Argentina to reconsider its plans for large-scale exploitation of shale oil and gas because such plans run counter to its commitments under the Paris Agreement p. 650and would have a negative impact on the economic and social rights of current and future generations.55

In any case, states need to adopt domestic mitigation policies and measures, including measures regulating industry and other non-state actors, to achieve their GHG mitigation contributions. States also need to adopt adaptation measures that protect their citizens from the foreseeable consequences of climate change, whether slow-onset events like sea level rise or rapid-onset extreme events like wildfires, floods, and cyclones. To meet their procedural obligations, states need to integrate human rights concerns and the full range of stakeholders into national planning processes, including in relation to climate response measures, so as to ensure that the impacts of climate change and response measures on the enjoyment and progressive realization of protected human rights are taken fully into account. These procedural obligations in relation to climate change are bolstered by requirements in relation to transparency in the climate change regime (see Section 3).

Since GHGs are emitted by all states, non-state actors, and even individuals, albeit in differing orders of magnitude, this raises the challenge of identifying those that are obliged, directly or indirectly, to reduce emissions in order to protect the rights of others to a safe climate. It also raises the challenge of a mismatch between the putative rights regime in relation to climate impacts and the architecture of the climate change regime, which is premised on national determination of GHG emissions targets.

3 Human Rights in International Climate Change Law

The international climate change regime, comprising the FCCC, the Kyoto Protocol, and the Paris Agreement, is aimed at preventing dangerous anthropogenic interference with the climate system as well as adapting to the adverse effects of ongoing climate change.56 The FCCC contains principles and commitments reflecting agreement on developed country leadership in addressing climate change.57 The Kyoto Protocol includes GHG mitigation targets set to timetables for developed countries.58 The Paris Agreement requires all parties to submit ‘nationally determined contributions’ (NDCs) every five years, and to adopt domestic GHG mitigation measures in line with such NDCs.59

3.1 1992 FCCC, 1997 Kyoto Protocol, and the 2010 Cancun Agreements

For the first few decades of its existence, the international climate change regime did not engage with human rights. Neither the FCCC nor the Kyoto Protocol contain explicit references to human rights. The only reference to a ‘right’ in the FCCC is in relation to states’ right to sustainable development. Article 3(4) explicitly frames this as a right to promote sustainable development, not as a right to development.

p. 651However, the FCCC does endorse implicitly certain procedural rights in relation to the environment. Article 6(a) FCCC obliges states parties to promote and facilitate public access to information on climate change and its effects, and public participation in addressing climate change and its effects.60 The FCCC also recognizes interests that have implications for human rights, and can be interpreted as endorsements of certain rights, although these are not framed in rights language. For instance, the FCCC defines ‘adverse effects of climate change’ as changes that have ‘significant deleterious effects’ on, among others, ‘human health and welfare.’ Both the FCCC and its Kyoto Protocol are squarely focused on ‘combatting climate change and the adverse effects thereof’.61

It was only in 2010, after the Human Rights Council’s consideration of the issue began to filter through to the climate change regime, that states parties agreed to ‘fully respect human rights’ in all climate change-related actions.62 The Cancun Agreements note ‘that the effects of climate change will be felt most acutely by those segments of the population that are already vulnerable owing to geography, gender, age, indigenous or minority status, or disability’.63 They also recognize the need to engage a broad range of stakeholders at all levels, ‘including youth and persons with disabilities’, and ‘that gender equality and the effective participation of women and indigenous peoples are important for effective action on all aspects of climate change’.64 States are required to engage all relevant stakeholders undertaking measures to reduce emissions from deforestation and forest degradation in developing countries.65 The Green Climate Fund, created by states to fund climate action in developing countries, is also required to involve relevant institutions and stakeholders and pursue a gender-sensitive approach.66

In relation to adaptation measures—that is, measures taken to adapt to the adverse effects of climate change—the Cancun Agreements affirm that enhanced action on adaptation should follow a ‘gender-sensitive, participatory and fully transparent’ approach, and that adaptation measures should be guided and based on, as appropriate, traditional and indigenous knowledge.67 These decisions also urge states parties to undertake measures to ‘enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation’.68

The Cancun Agreements represent decisions taken by conferences of parties and are not legally binding in a formal sense. In a bid to further mainstream rights approaches in the climate change regime, in the four-year process leading up to the Paris negotiations many states parties, NGOs, and international bodies urged the inclusion of human rights concerns in what would become the binding Paris Agreement.69

3.2p. 652 The 2015 Paris Agreement and its 2018 Rulebook

During the negotiations in Paris, many parties sought an explicit human rights reference in an operative part of the Agreement, in particular in Article 2.70 This provision identifies the purpose of the Paris Agreement, sets the long-term temperature goal, and frames the implementation of the Paris Agreement. Early versions of Article 2(2) contained references to human rights, and proponents hoped that a reference to human rights in this provision would help to promote the protection of human rights in the implementation of the Paris Agreement.

This, however, proved difficult to secure for several reasons. First, some states believed that introducing human rights concerns into the ‘purpose’ of the Paris Agreement would dilute the climate objectives it contained,71 and argued that other fora would be more appropriate for furtherance of human rights objectives.72 Furthermore, it was not clear which rights, if any, should be singled out for protection in the context of implementing the Paris Agreement. There appeared to be broad consensus on rights such as those of women, but others such as the rights of those under occupation provoked fierce debate. The solution mooted was to include a generic reference to human rights, but this proved unpalatable to most states, as each state or group of states was interested in one or more specific rights to the exclusion of others. In any case, some argued that a generic reference to human rights would lead to greater conceptual fuzziness, and thus less certainty and predictability, in implementing the Paris Agreement, as well as protection of the relevant human rights. These reasons, among others, dictated the eventual compromise to reflect selected human rights in the preamble, which provides context to the agreement, rather than in an operational provision of the Paris Agreement, which has greater legal gravitas.

The relevant preambular recital reads:

Parties should, when taking action to address climate change, respect, promote, and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations, and the right to development, as well as gender equality, empowerment of women, and intergenerational equity.73

This recital carefully circumscribes the impact of an explicit reference to human rights in the Paris Agreement. First, it addresses only the human rights aspects of response measures (‘when taking action’), not climate change itself. This is a narrower approach than that advocated by the OHCHR, which considers that states are obliged to ‘take affirmative measures to prevent human rights harms caused by climate change, including foreseeable long-term harms’.74 The Paris Agreement’s approach recommends that states should respect, promote, and consider human rights when taking response measures, but is silent with respect to whether they should take human rights considerations into account in determining the ambition, scope, and scale of their mitigation or adaptation actions.

p. 653Second, the provision recommends that states parties ‘respect, promote and consider’ their human rights obligations, not ‘respect, protect, promote and fulfil’ their obligations, as had been suggested by various human rights bodies.75 The absence of ‘protect’ and ‘fulfil’ is not happenstance. Respecting a right requires states to refrain from interfering with the right, protecting a right requires states to prevent others from interfering with the right, and fulfilling a right requires states to adopt appropriate measures towards the full realization of the right.76 Thus, while the Paris Agreement urges states to refrain from taking actions that might interfere with the listed human rights, it does not, by itself, require them to either prevent others from interfering with the right or adopt measures towards full realization of the rights. Instead, the Paris Agreement uses the fuzzier terms ‘promote’ and ‘consider’, which do not necessitate specific actions as do the terms ‘protect’ and ‘fulfil’.

Third, the recital refers to the states parties’ ‘respective obligations’. This ensures that no new human rights obligations are implied for states or argued as applicable as a result of this reference. There were differences of views among parties on the existence (or lack thereof), characterization, relative importance, and boundaries of the listed human rights. Some states parties might not have obligations with respect to one or more of the human rights listed in the recital. Some might have an obligation with respect to one of those listed in the recital but not consider it to be a human right, as is the case, for example, with the right to development. Further, some states parties might conceive of a certain right as a right bestowed on individuals, while others might conceive of it as a right for a group. For example, the Least Developed Countries consider the ‘right to development’ as a right belonging to individuals,77 whereas others consider it as a right belonging to developing countries.78 In the circumstances, deliberate ambiguity about the extent of application of these specific rights to individual states parties was considered desirable.

It is clear that the only explicit reference to human rights in the Paris Agreement is carefully circumscribed. Nevertheless, the very inclusion of an explicit reference to human rights in the Paris Agreement is significant. It signals enhanced receptivity to rights concerns and discourses. This is reflected throughout the text of the Paris Agreement, albeit not articulated in explicit human rights terms.79 It is also reflected in many of the actions states parties have taken in the last decade, including in decisions to operationalize the Paris Agreement, termed the Paris Rulebook.80

In the lead up to the 2015 Paris conference, states parties launched a Work Programme on Gender,81 and at the Paris conference itself they established a Task Force on Displacement, a Paris Committee on Capacity-Building, and a Local Communities and Indigenous Peoples Platform—each with a mandate to address human rights-related issues.82 States have adopted a Gender Action Plan under the Work Programme on Gender, which seeks to ensure meaningful participation of women, promote gender-responsive climate policy, and mainstream the gender perspective in the work of the UN and stakeholders.83 The Paris Rulebook includes references to gender responsiveness in the context p. 654of the provision of information accompanying the nationally determined contributions states are required to submit,84 as well as in their communications relating to adaptation.85 At the 2021 Glasgow conference, parties initiated a stocktake of their progress under the Work Programme on Gender, including the impact of the pandemic on progress.86

The Task Force on Displacement, recognizing that displacement due to sudden- or slow-onset events is a human rights challenge, has urged states parties, amongst other things, to formulate legislation, policies, and strategies to address displacement related to climate impacts ‘taking into consideration human rights obligations … with the participation of relevant stakeholders’. The Task Force has also suggested the creation of a human rights focal point at the FCCC Secretariat.87

The Paris Committee on Capacity-Building is tasked, inter alia, with ‘taking into consideration cross-cutting issues such as gender responsiveness, human rights and indigenous peoples’ knowledge’.88 In doing so, the Committee is to foster dialogue, cooperation, collaboration, and coordination among various stakeholders and UN actors, including the OHCHR.89

The Local Communities and Indigenous Peoples Platform is tasked, amongst other things, with facilitating ‘the integration of diverse knowledge systems, practices and innovations in designing and implementing international and national actions, programmes and policies in a manner that respects and promotes the rights and interests of local communities and indigenous peoples.’90 The Paris Rulebook also includes references to local communities and indigenous peoples in the context of the provision of information accompanying NDCs,91 as well as in adaptation communications.92

Notwithstanding these references and initiatives, there is a lingering wariness among some states in relation to human rights. In the negotiations for the Paris Rulebook, many advocacy groups,93 the UN special procedures mandate holders,94 and some states95 pressed for a meaningful integration of human rights considerations in both the ambition and implementation of climate actions.96 Early iterations of the negotiating texts p. 655contained proposed references to human rights.97 However, these references proved too controversial and were systematically deleted in the final days of the negotiations to enable agreement to be reached. As a result, the Paris Rulebook contains no explicit reference to human rights.98 The Paris Rulebook requires states parties to provide information on the planning processes they undertook to prepare NDCs, including ‘public participation and engagement with local communities and indigenous peoples, in a gender responsive manner’.99 It does not, however, either explicitly reference ‘human rights’ or require states parties to provide information on how human rights approaches have framed the design and ambition of their NDCs.

At the 2021 Glasgow conference, human rights fared better, with parties agreeing to launch a Glasgow Work Programme on Action Empowerment ‘respecting, promoting and considering their respective obligations on human rights, as well as gender equality and empowerment of women.’100 In relation to the rules operationalizing markets in emissions reductions, the Paris Rulebook, completed in Glasgow, contains due consideration for human rights, in particular the involvement of stakeholders such as local communities and indigenous peoples in designing activities.101

3.3 Limits of the Climate Change Regime

The contestations over the nature and extent of applicability of human rights in the climate regime need to be placed in the context of the evolution of the climate change regime over the last three decades. Albeit guarded, the shift in the regime towards increased receptivity to human rights comes at a time when the regime has also taken other distinctive turns, which have consequences for the meaningful integration of human rights in the Paris climate architecture. The climate regime has shifted from a more prescriptive to a less prescriptive regime. While the Kyoto Protocol contains targets set to timetables, backed by a compliance system with an enforcement branch, the Paris Agreement is built around NDCs complemented by informational requirements, a global stocktake process, and a facilitative compliance system. This shift in the climate regime privileges greater flexibility and autonomy for states and permits increased dynamism in the regime. However, it also relies fundamentally on the good faith of states in determining the ambition and implementation of their national contributions. This complicates efforts to meaningfully integrate human rights into the Paris climate architecture. Since NDCs are, by definition, nationally determined, and the Paris Agreement does not contain either external benchmarks or a review process to determine whether individual contributions are adequate, there is limited room for a multilateral assessment of national contributions, whether for their environmental or human rights credentials.

Moreover, the extent of the autonomy states have in determining the ambition of their NDCs has led to a mismatch between their contributions and what is necessary to meet p. 656the ‘well below 2°C’ temperature goal identified in the Paris Agreement. The first round of contributions from states put the world on track for an over 3°C temperature increase;102 current contributions are estimated to lead to an increase of well over 2°C.103 The total global GHG emission level in 2030, taking into account implementation of all the latest contributions, is expected to be 13.7 per cent above the 2010 level.104 CO2 emissions need to be 45 per cent below those in 2010 by 2030, and to reach net zero by 2050 in order to reach the 1.5°C goal.105 If the mid-century net zero GHG and CO2 targets and announcements by over 130 states so far are taken seriously and implemented, the increase would be limited to approximately 2°C.106 It is clear that collectively the international community is not on track to meet the 1.5°C target considered essential for limiting the impacts of climate change on human rights.107 It is in the context of dramatically insufficient national climate ambition in the face of overwhelming scientific evidence of devastating near-term impacts, that there has been an exponential growth in climate litigation.

4 Climate Change Litigation

In response to the glacial pace of the climate negotiations in the face of the rapidly diminishing window of opportunity to avert catastrophic climate change, individuals, communities, and civil society groups have in the last decade approached national, regional, and international courts seeking to challenge inadequate governmental action. Many of these cases focus on the human rights dimensions of climate change.108

In 2019, in the path-breaking Urgenda decision, the first of its kind globally, the Dutch Supreme Court recognized that dangerous climate change could have a severe impact on the lives and welfare of the residents of the Netherlands, and thus constitute a violation of Articles 2 (right to life) and 8 (right to private and family life) of the European Convention on Human Rights. The court required the Netherlands to urgently reduce its emissions by at least 25 per cent below 1990 levels by 2020 in line with IPCC findings and its human rights obligations.109 The judgment relied on IPCC science, took account of emerging consensus on the 1.5°C temperature goal, and found that 25 per cent below 1990 levels by 2020 was the Dutch ‘minimum fair share’.110 In doing so, it dismissed an argument often advanced by states that their own share of the global emissions was minimal compared to those of other states.111

p. 657In a similar vein, in April 2021, the German Federal Constitutional Court ordered the German legislature, in the light of its obligation under Germany’s Basic Law which sets out guarantees for fundamental rights, to protect the climate and aim towards achieving climate neutrality, and to set clear provisions for reduction targets from 2031 onwards by the end of 2022.112 Of particular note in this judgment is the focus on inter-generational justice. The court held that fundamental rights are intertemporal guarantees that afford protection against GHG reduction being unilaterally offloaded onto the future.113 Aspects of inter-generational justice will increasingly be brought to the fore as judgments emerge from cases filed by youth climate activists across the world claiming that radically insufficient climate action by current policy-makers is a violation of their rights.114

There are increasing examples of successful cases from the Global South as well. Indeed, the South Asian courts—given relaxed rules of standing, famously activist judges, and the seemingly unfettered discretion the judiciary has to fashion remedies—are particularly well poised to lead the climate charge. In its 2018 decision in Shrestha, the Supreme Court of Nepal ordered the government to amend its existing laws and introduce a new consolidated law to address climate mitigation and adaptation. It did so on the grounds that climate change mitigation and adaptation is directly related to protected rights to life, food, and a clean environment, and to give effect to the 2015 Paris Agreement.115 The Lahore High Court, in Ashgar Leghari, ordered the Pakistani government to implement its climate laws and policies, and created a Climate Change Commission to monitor their implementation.116 The court noted that ‘the delay and lethargy of the State in implementing the Framework offends the fundamental rights of the citizens’.117 The same judge, since elevated to the Supreme Court, has noted that ‘[t]hrough our pen and jurisprudential fiat, we need to decolonize our future generations from the wrath of climate change, by upholding climate justice at all times’.118

At the regional level, early climate cases fared less well but there are promising trends and prospects for pending cases. In 2005, the Inuit petitioned the Inter-American Commission on Human Rights claiming that the impacts of climate change, caused by acts and omissions of the US, violated their fundamental human rights—in particular, their rights to the benefits of culture, to property, to the preservation of health, life, physical integrity, security, and a means of subsistence, and to residence, movement, and inviolability of the home.119 The Commission refused to review the merits of the petition as the information provided did not enable it to determine if there had been a violation of rights protected p. 658by the American Declaration of Human Rights. The Inuit petition, nevertheless, drew attention to the links between climate change and human rights, and led to a ‘Hearing of a General Nature’ on human rights and global warming in March 2007. In its 2017 Advisory Opinion, the Inter-American Court of Human Rights held that environmental harm, including the adverse impacts of climate change, affects the enjoyment of the human right to a healthy environment, and that states have an obligation to ensure that their actions, as well as the actions of those under their effective control, do not impair the enjoyment of this right, including in relation to those living outside its jurisdiction.120 In 2019, the Commission heard representations from civil society organizations about the deleterious impacts of climate change on the human rights of indigenous peoples, women, children, and rural communities. The Commission was urged to require states to adopt more ambitious national contributions under the Paris Agreement.121

The locus of climate action in the 2020s is the European Court of Human Rights, with four climate cases currently pending, and others in the pipeline. The most potentially far-reaching of these is the D’Agostinho case brought by a group of Portuguese children and young adults against 33 European states arguing that these states’ climate actions must be presumed inadequate given that the world is on track to far exceed the 1.5°C temperature goal identified in the Paris Agreement. The petitioners argue that the content of the obligations states have in relation to the rights to life and to private and family life require them not just to urgently mitigate climate change, but also to do so in line with the Paris Agreement’s temperature goal.122 In a promising development, the European Court agreed to fast-track the case; notice has been issued to all 33 states and government responses are currently filtering in. Climate-vulnerable individuals and groups including older women,123 and a multiple sclerosis patient,124 have filed cases before the European Court against Switzerland and Austria, respectively, arguing that these states’ national climate targets are unambitious, not in line with IPCC science and the Paris Agreement’s temperature goal, and therefore constitute violations of their rights to life and private and family life. Greenpeace, among others, and a group of youth activists, have filed an application challenging Norway’s decision to issue licences for oil and gas extraction in the Norwegian Arctic on the grounds that it violates their fundamental human rights and increases the risk of harm due to climate change.125 The international community is awaiting the outcomes of these cases with nervous optimism given the many challenges such cases face, including: the requirement that local remedies be exhausted first; the inclination to defer to states through the margin of appreciation; and the difficulty of determining each state’s fair share in the context of a global collective action problem.

At the international level, the Committee on the Rights of the Child declined to consider a complaint filed by 16 children, including Greta Thunberg, against France, Turkey, Brazil, Germany, and Argentina. The petitioners argued that the lack of climate ambition in these states violated their rights. However, the Committee was of the view that p. 659the petitioners had not exhausted local remedies.126 Despite this admissibility obstacle, the Committee accepted that there was a ‘sufficient causal link’ between the significant harm the children suffered and the acts or omissions of the five states, and that states had cross-border responsibility for climate harms. The Human Rights Committee is currently considering a petition by a group of indigenous Torres Straits islanders, which claims that given Australia’s insufficient ambition on climate change and action on building resilience, the state is breaching their rights to life, culture, and to be free from arbitrary interference with privacy, family, and home.127

Finally, at the international level, the International Court of Justice (ICJ) may soon be approached for an Advisory Opinion on state responsibility for climate harms, including in relation to the human rights of current and future generations. After abortive efforts in the past from Palau and the Republic of Marshall Islands, Vanuatu announced in September 2021 its intention to approach the General Assembly to seek an Advisory Opinion from the ICJ.128 There are differing views on whether the ICJ is equipped to render a progressive opinion on the issue,129 but the credibility, import, and reach of an opinion from the ICJ, should one be forthcoming, is not in doubt.

5 Conclusion

The breathtaking pace of developments at the intersections of climate change and human rights—across international human rights and climate change legal regimes as well as in national, regional, and increasingly international courts—has led to integration and mainstreaming of human rights approaches to climate impacts across regimes. It has also led to the understanding that compliance with the provisions of international climate change instruments does not necessarily guarantee compliance with human rights obligations, and that compliance with the latter might require states to take more stringent and ambitious climate actions directed at more ambitious global goals than those identified in climate change instruments. The growing practice of applying a human rights lens to climate impacts has helped national courts to hold governments to account for the ambition (or lack thereof) of climate actions, thereby catalysing policy change that will likely have ripple effects across jurisdictions. While these are positive developments, it remains to be seen how an international climate change regime that favours national determination and contains limited avenues for the protection of substantive human rights can stabilize climate change at levels sufficient to protect human rights.

In the words of the Special Rapporteur on Human Rights and Extreme Poverty, climate change is an ‘emergency without precedent and requires bold and creative thinking from the human rights community and a radically more robust, detailed and coordinated approach’.130 There are glimmers of such ‘bold and creative thinking’ from national courts, but existing legal architectures are far from sufficient to tame global warming, and the road to 1.5°C is an arduous one.

p. 660Further Reading

  • Boyle, ‘Climate Change, the Paris Agreement and Human Rights’ (2018) 67 ICLQ 759.
  • Knox, ‘Human Rights’ in Rajamani and Peel (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2021).
  • OHCHR, ‘Understanding Human Rights and Climate Change: Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change’ (2015): <http://www.ohchr.org/Documents/Issues/ClimateChange/COP21.pdf>.
  • OHCHR, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, A/74/161 (15 July 2019).
  • Peel and Osofsky, ‘Rights Turn in Climate Litigation’ (2017) 7 TEL 37.bbb
  • Rajamani, ‘Human Rights in the Climate Change Regime: From Rio to Paris’ in Knox and Pejan (eds), The Human Right to a Healthy Environment (Cambridge University Press, 2018) 236.
  • Savaresi and Scott (eds), ‘Special Issue: Implementing the Paris Agreement: Lessons from the Global Human Rights Regime’ (2019) 9 Climate Law, issue 3.
  • Setzer and Benjamin, ‘Climate Change Litigation in the Global South: Filling in Gaps’ (2020) 114 AJIL Unbound 56.
  • Useful Websites

    OHCHR and Climate Change: <https://www.ohchr.org/en/issues/hrandclimatechange/pages/hrclimatechangeindex.aspx>

    Sabine Centre for Climate Change Law, Climate Litigation Database: <https://climate.law.columbia.edu/content/climate-change-litigation>

    UNEP Advancing Environmental Rights: <https://www.unep.org/explore-topics/environmental-rights-and-governance/what-we-do/advancing-environmental-rights>

    UN Framework Convention on Climate Change: <https://unfccc.int/>

    UN Special Rapporteur on human rights and the environment: <https://www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/SRenvironmentIndex.aspx>

    Centre for International Environmental Law Human Rights and Climate Change: <https://www.ciel.org/issue/human-rights-climate-change/>

    Questions for Reflection

    1.

    How do the impacts of climate change threaten the enjoyment of human rights? Which human rights are threatened by climate change?

    2.

    To what extent can a right to a healthy environment be extended to include a right to a ‘safe climate’? Should it? What would a right to a ‘safe climate’ add to the corpus of existing human rights, including those in relation to the environment?

    3.

    To what extent have human rights concerns been integrated into the UN climate change regime? What are the limits of such integration?

    4.

    What is the import of the preambular recital on human rights in the Paris Agreement? How can this recital influence the future development of the climate change regime?

    5.

    Are existing legal architectures—both in human rights and climate change—sufficient to protect individuals and communities from catastrophic climate change?

    Notes

    • * I am grateful to Pranav Ganesan for his excellent assistance with this chapter.

    • 1 UNEP, Climate Change and Human Rights (2015).

    • 2 UNFCCC, Synthesis report by the secretariat: Nationally determined contributions under the Paris Agreement (17 September 2021, updated 25 October 2021) FCCC/PA/CMA/2021/8 and FCCC/PA/CMA/2021/8/Rev.1; COP26: Update to the NDCs Synthesis Report (4 November 2021), <https://unfccc.int/news/cop26-update-to-the-ndc-synthesis-report> (2021 NDCs Synthesis Report); Climate Action Tracker, ‘Global Update: Climate target updates slow as science demands action’ (15 September 2021), <https://climateactiontracker.org/publications/global-update-september-2021/>.

    • 3 UNFCCC, Report of the Conference on its sixteenth session, Decision 1/CP.16 (15 March 2011), FCCC/CP/2010/7/Add. 1, para 8 (‘Cancun Agreements’).

    • 4 Paris Agreement, preambular para 11. See Knox, ‘The Paris Agreement as a Human Rights Treaty’ in Akande et al, Human Rights and the 21st Century Challenges: Poverty, Conflict and the Environment (OUP, 2019) 323.

    • 5 HR Council Res 48/14 (8 October 2021).

    • 6 IPCC 2021, ‘Summary for Policy Makers’ in Masson-Delmotte et al (eds), Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (2021) (‘IPCC AR6 WGI SPM’), paras A.1–A.3.

    • 7 IPCC 2015, ‘Summary for Policy Makers’ in Pachauri et al (eds), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (2015) 7.

    • 8 IPCC AR6 WGI SPM, para C.2.4.

    • 9 ‘IPCC, 2014: Summary for Policymakers’ in Field et al (eds), Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (CUP, 2014) 6 (‘IPCC AR5 WGII SPM’).

    • 10 IPCC AR5 WGII SPM, 6–7.

    • 11 See OHCHR, ‘Report on the relationship between climate change and human rights’, A/HRC/10/61 (15 January 2009).

    • 12 HR Council Res 7/23 (28 March 2008), preambular para 1.

    • 13 For all resolutions, see: <http://www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/Resolutions.aspx>.

    • 14 HR Council Res 10/4 (25 March 2009), preambular para 7.

    • 15 HR Council Res 32/33 (18 July 2016).

    • 16 HR Council Res 38/4 (16 July 2018), preambular para 19.

    • 17 HR Council Res 44/7 (23 July 2020).

    • 18 HR Council Res 41/21 (23 July 2019).

    • 19 ‘OHCHR’s role in promoting rights-based climate action, <www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/PromotingRightsBasedClimateAction.aspx>.

    • 20 eg Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (15 July 2019) A/74/161.

    • 21 Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’ (8 January 2019) A/HRC/40/55.

    • 22 GA Res 2398 (XXII) (3 December 1968); Declaration of the United Nations Conference on the Human Environment A/CONF.48/14/Rev.1 (1972); Hague Declaration on the Environment, (1989) 28 ILM 1308; GA Res 45/94 (14 December 1990).

    • 23 Council of Europe Parliamentary Assembly Res 2396 (29 September 2021).

    • 24 HR Council Res 48/13 (8 October 2021), adopted by 43 states for, 0 against, and 4 abstentions. However, some states noted that Council resolutions were not binding, and that such a right had to be carefully considered and developed. See UK FCDO, ‘UN Human Rights Council 48: Explanation of Vote on the Right to a Safe, Clean, Healthy and Sustainable Environment’ (8 October 2021), <www.gov.uk/government/speeches/un-human-rights-council-48-explanation-of-vote-on-the-right-to-a-safe-clean-healthy-and-sustainable-environment>.

    • 25 HR Council Res 48/13.

    • 26 SR Environment Report (July 2019), para 43.

    • 27 FCCC, Art 1.

    • 28 Paris Agreement, Art 2(1)(a).

    • 29 Interim report of the Special Rapporteur on the right to food (5 August 2015) A/70/287.

    • 30 Guidelines for the Implementation of the Right to Adequate Housing (26 December 2019) A/HRC/43/43.

    • 31 SR Environment Report (February 2016).

    • 32 Report of the Special Rapporteur on the human rights of migrants (13 August 2012) A/67/299.

    • 33 Report of the Special Rapporteur on the rights of indigenous peoples (1 November 2017) A/HRC/36/46.

    • 34 Report of the Special Rapporteur on the human rights of internally displaced persons (20 December 2010) A/HRC/16/43; Protection of and assistance to internally displaced persons, Note by Secretary-General (9 August 2011) A/66/285.

    • 35 Report of the Special Rapporteur on extreme poverty and human rights (17 July 2019) A/HRC/41/39.

    • 36 SR Poverty Report (July 2019), para 43.

    • 37 An Open Letter from Special Procedures mandate-holders of the Human Rights Council to the State Parties to the UN Framework Convention on Climate Change (17 October 2014), <www.ohchr.org/Documents/HRBodies/SP/SP_To_UNFCCC.pdf>.

    • 38 OHCHR, ‘Status of Ratification Interactive Dashboard’, <https://indicators.ohchr.org>.

    • 39 See Chapter 7.

    • 40 A/HRC/37/59 (24 January 2018), Annex.

    • 41 Framework Principles, Principle 1 (emphasis added).

    • 42 Framework Principles, Principle 7.

    • 43 Framework Principles, Principle 8.

    • 44 Framework Principles, Principle 9.

    • 45 Framework Principles, Principle 10.

    • 46 Treaty Bodies’ Joint Statement on Human Rights and Climate Change (2019), <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24998>. The five treaty bodies were: the Committee on the Elimination of Discrimination Against Women, the Committee on Economic, Social and Cultural Rights, the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, the Committee on the Rights of the Child, and the Committee on the Rights of Persons with Disabilities.

    • 47 Paris Agreement, Art 2(1)(a).

    • 48 Crosland, Meyer, and Wewerinke-Singh, ‘The Paris Agreement Implementation Blueprint: Legal Avenues to Blueprint Implementation (Part 2)’ (2017) 25 Environmental Liability 1.

    • 49 Treaty Bodies’ Joint Statement.

    • 50 eg Committee on the Elimination of Discrimination against Women, General Recommendation 37, CEDAW/C/GC/37 (7 February 2018); HRC, General Comment 36, CCPR/C/GC/36 (3 September 2019) para 62.

    • 51 eg CESCR, Statement on Climate Change and the ICESCR, E/C.12/2018/1 (8 October 2018).

    • 52 Centre for International Environmental Law & The Global Initiative for Economic Social and Cultural Rights, ‘States’ Human Rights Obligations in the Context of Climate Change: 2020 Update’ (March 2020).

    • 53 Treaty Bodies’ Joint Statement.

    • 54 Committee on the Elimination of Discrimination Against Women, Concluding observations: Australia, CEDAW/C/AUS/CO/8 (25 July 2018).

    • 55 CESCR, Concluding observations: Argentina E/C.12/ARG/CO/4 (1 November 2018).

    • 56 This section draws on previous work, in particular, Rajamani, ‘Human Rights in the Climate Change Regime: From Rio to Paris’ in Knox and Pejan (eds), The Human Right to a Healthy Environment (CUP, 2018) 236, and Rajamani, ‘Integrating Human Rights in the Paris Climate Architecture: Contest, Context, and Consequence’, (2019) 9 Climate Law 180.

    • 57 FCCC, Arts 3 and 4.

    • 58 Kyoto Protocol, Art 3.

    • 59 Paris Agreement, Art 4(2).

    • 60 FCCC, Arts 6(a)(ii) and (iii).

    • 61 FCCC, Art 3(1). See, generally, FCCC, preambular paras 1, 2, 16, 17, and 19; Kyoto Protocol, Arts 2(3), 3(14), and 12(8).

    • 62 Cancun Agreements, para 8.

    • 63 Cancun Agreements, preambular para 7.

    • 64 Cancun Agreements. See also UNFCCC Report of the Conference of the Parties, Decision 18/CP.20, FCCC/CP/2014/10/Add.3 (2 February 2015) (‘Lima work program on gender’).

    • 65 Cancun Agreements, Appendix I.

    • 66 UNFCCC, Decision 3/CP.17, FCCC/CP/2011/9/Add.1 (15 March 2012), Annex, para 3 (launching the Green Climate Fund).

    • 67 Cancun Agreements, para 12; See also UNFCCC Report of the Conference of the Parties, Decision 5/CP.17, FCCC/CP/2011/9/Add.1 (15 March 2012).

    • 68 Cancun Agreements, para 14(f).

    • 69 See, generally, Mayer, ‘Human Rights in the Paris Agreement’ (2016) 6 Climate Law 109, 111–12.

    • 70 eg Submission of Chile on behalf of AILAC to the ADP on Human Rights and Climate Change. See also, Human Rights Watch, ‘UN: Human Rights crucial in addressing climate change—Paris Agreement Should Ensure Transparency, Accountability and Participation’ (3 December 2015).

    • 71 eg Ministry of Climate and Environment (Government of Norway), ‘COP 21: Indigenous Peoples, Human Rights and Climate Change’ (7 December 2015).

    • 72 eg Ad Hoc Working Group on the Durban Platform for Enhanced Action, ‘Views on options and ways for further increasing the level of global ambition’, FCCC/ADP/2012/MISC.1 (28 March 2012), at 22, 52.

    • 73 Preambular para 11.

    • 74 See OHCHR, ‘Understanding Human Rights and Climate Change: Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change’ (2015), <http://www.ohchr.org/Documents/Issues/ClimateChange/COP21.pdf>.

    • 75 Special Procedures Open Letter.

    • 76 See Chapter 7.

    • 77 ‘Submission by Angola on behalf of the Least Developed Countries Group—“surgical insertions” to co-chairs non-paper (v. 5 October 2015): Article 2: Purpose’ (19 October 2015), <https://unfccc.int/sites/default/files/adp2-11_art2_purpose_ldcs_19oct2015.pdf>.

    • 78 Views on options and ways for further increasing the level of global ambition (2012), 22.

    • 79 See Rajamani, 245–51.

    • 80 UNFCCC, ‘Katowice climate package’, <https://unfccc.int/process-and-meetings/the-paris-agreement/the-katowice-climate-package/katowice-climate-package>.

    • 81 Lima work program on gender.

    • 82 UNFCCC, Decision 1/CP.21, FCCC/CP/2015/10/Add.1 (29 January 2016) paras 49, 71, and 135.

    • 83 UNFCCC, Decision 3/CP.23, FCCC/CP/2017/11/Add.1 (29 January 2016).

    • 84 UNFCCC, Decision 4/CMA.1 FCCC/PA/CMA/2018/3/Add.1 (19 March 2019) (‘Further guidance in relation to the mitigation section of decision 1/CP.21’), Annex 1, para 4(a)(i).

    • 85 UNFCCC, Decision 9/CMA.1 FCCC/PA/CMA/2018/3/Add.1 (19 March 2019) (‘Further guidance in relation to the adaptation communication’) Annex, para h.

    • 86 UNFCCC, Decision _/CP.26, ‘Gender and Climate Change’, Advanced Unedited Version (November 2021).

    • 87 Task Force on Displacement, ‘Report of the Task Force on Displacement, Task Force on Displacement’ (17 September 2018), <https://unfccc.int/sites/default/files/resource/2018_TFD_report_17_Sep.pdf>.

    • 88 UNFCCC Decision 16/CP.22, FCCC/CP/2016/10/Add.2 (31 January 2017) para 4.

    • 89 Subsidiary Body for Implementation, ‘Annual technical progress report of the Paris Committee on Capacity-building’, FCCC/SBI/2018/15 (21 September 2018) paras 42–3.

    • 90 UNFCCC, Decision 2/CP.23, FCCC/CP/2017/11/Add.1 (8 February 2018) para 6(c).

    • 91 Further guidance in relation to the mitigation section of decision 1/CP.21, Annex 1, section 4(i).

    • 92 Further guidance in relation to the adaptation communication.

    • 93 See eg Centre for International Environmental Law et al, ‘Delivering on the Paris Promises: Combating Climate Change while Protecting Rights Recommendations for the Negotiations of the Paris Rule Book’ (2017), <https://unfccc.int/sites/default/files/903.pdf>.

    • 94 Joint statement of the United Nations Special Procedures Mandate Holders on the occasion of the 24th Conference of the Parties to the UNFCCC (6 December 2018), <www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23982&LangID=E>.

    • 95 eg ‘Norway’s submission on features, information to facilitate clarity, transparency and understanding and accounting of Parties’ Nationally Determined Contributions’ (17 September 2017), <https://unfccc.int/sites/default/files/854_356_131501386398003119-APA%203_Norway.pdf>.

    • 96 See, generally, Duyck, ‘Delivering on the Paris Promises? Review of the Paris Agreement’s Implementing Guidelines from a Human Rights Perspective’ (2019) 9 Climate Law 202.

    • 97 eg ‘Draft text on APA 1.7 agenda item 3, Further guidance in relation to the mitigation section of decision 1/CP.21 on: (a) Features of nationally determined contributions, as specified in paragraph 26; (b) Information to facilitate clarity, transparency and understanding of nationally determined contributions, as specified in paragraph 28; (c) Accounting for Parties’ nationally determined contributions, as specified in paragraph 31’ (5 December 2018), para 6(d)(i), <https://unfccc.int/sites/default/files/resource/APA11_7_DT_i3.pdf>.

    • 98 See Duyck.

    • 99 Further guidance in relation to the mitigation section of decision 1/CP.21, Annex I, section 4(1)(i).

    • 100 UNFCCC, Glasgow Climate Pact, FCCC/CP/2021/L.13 (13 November 2021) para 62.

    • 101 UNFCCC, Rules, modalities and procedures for the mechanism established by Article 6, paragraph 4 of the Paris Agreement, FCCC/PA/CMA/2021/L.19 (13 November 2021) preambular recital 3, and Annex, paras 24(9) and 31(e).

    • 102 See Climate Action Tracker, ‘CAT Climate Target Update Tracker’, <https://climateactiontracker.org/climate-target-update-tracker/>.

    • 103 See Climate Action Tracker, ‘Temperatures’, <https://climateactiontracker.org/global/temperatures/>.

    • 104 2021 NDCs Synthesis Report.

    • 105 Masson-Delmotte et al, Global Warming of 1.5°C: An IPCC Special Report on the Impacts of Global Warming of 1.5°C Above Pre-industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty (IPCC 2019) para C.1.

    • 106 Höhne et al, ‘Wave of net zero emission targets opens window to meeting the Paris Agreement’ (2021) 11 Nature Climate Change 820.

    • 107 Treaty Bodies’ Joint Statement.

    • 108 See, generally, Peel and Osofsky, ‘Rights Turn in Climate Litigation’ (2017) 7 TEL 37.

    • 109 The Netherlands v Urgenda Foundation, The Supreme Court of the Netherlands, 19/00135 (20 December 2019) (unofficial English translation).

    • 110 Urgenda, paras 4.3 and 6.3.

    • 111 Urgenda, paras 5.7.7-5.7.8.

    • 112 Neubauer et al v Federal Republic of Germany, German Federal Constitutional Court, 1 BvR 2656/18 (24 March 2021).

    • 113 Neubauer, para 183.

    • 114 Rabab Ali v Federation of Pakistan & Another, Lahore High Court, Petition filed on 1 April 2016, <http://climatecasechart.com/climate-change-litigation/non-us-case/ali-v-federation-of-pakistan-2/>; Demanda Generaciones Futuras v Minambiente, Supreme Court of Colombia, STC4360-2018 (2018); Do-Hyun Kim et al v The National Assembly of the Republic of Korea & Another, Constitutional Court of the Republic of Korea, Petition filed on 13 March 2020, <http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200313_NA_complaint.pdf> (unofficial translation); Álvarez et al v Peru, Superior Court of Lima, Petition filed on 10 December 2019, <http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20191216_NA_complaint.pdf>.

    • 115 Shrestha v Office of the Prime Minister et al, Supreme Court of Nepal, NKP, Part 61, Vol 3 (25 December 2018).

    • 116 Asghar Leghari v Federation of Pakistan, Order, Lahore High Court, WP No 25501/2015 (4 September 2015).

    • 117 Asghar Leghari, para 8.

    • 118 DG Khan Cement Co Ltd v Government of Punjab through its Chief Secretary, Lahore, etc, Supreme Court of Pakistan, C.P.1290-L/2019 (15 April 2021).

    • 119 Watt-Cloutier et al v US, Petition No P-1413–05 (7 December 2005), <http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2005/20051208_na_petition.pdf>.

    • 120 OC-23/17, The Environment and Human Rights, IACtHR Series A No 23 (15 November 2017).

    • 121 Fundación Pachamama et al, ‘Solicitud de audiencia temática sobre los impactos del cambio climático en los derechos en las Américas’ (11 July 2019), <http://climatecasechart.com/climate-change-litigation/non-us-case/hearing-on-climate-change-before-the-inter-american-commission-on-human-rights/>.

    • 122 Duarte Agostinho et al v Portugal and 32 Other States, ECtHR App no 39371/20.

    • 123 Klimaseniorinnen et al v Switzerland, ECtHR App no 53600/20.

    • 124 Mex M v Austria, ECtHR App, <http://climatecasechart.com/climate-change-litigation/non-us-case/mex-m-v-austria/>.

    • 125 Natur og Ungdom Greenpeace v Norway, ECtHR App, <http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2021/20210615_HR-2020-846-J_application.pdf>.

    • 126 Sacchi et al v Argentina, Brazil, France, Germany and Turkey, CRC/C/88/D/104–108/2019 (8 October 2021).

    • 127 Billy et al v Australia, Communication No 3585/2019.

    • 128 Gigova, ‘Vanuatu will seek International Court of Justice opinion on climate protection’, CNN (26 September 2021).

    • 129 ‘Remarks by Alan Boyle’ (2015) 109 Proceedings of the ASIL Annual Meeting 198; Sands, ‘Climate Change and the Rule of Law: Adjudicating the Future in International Law’ (2016) 28 JEL 19; Bodansky, ‘The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections’ (2017) 49 Arizona State LJ 689.

    • 130 SR Poverty Report (2018).

    © Oxford University Press 2022