It has proved challenging to bring successful claims via traditional tortious routes against state bodies and corporates for their actions or omissions in relation to climate change. In response, some claimants are now attempting to base climate change litigation on claims for breach of human rights to circumvent those difficulties, culminating in the April 2024 landmark judgment in the Swiss case of Verein KlimaSeniorinnen Schweiz and others v Switzerland (Application no. 53600/20) (“KlimaSeniorinnen“). However, these novel claims are not without their own hurdles. This article: (i) outlines the existing legal framework linking climate change (at both state and corporate level) to human rights; (ii) considers the current obstacles for climate change litigation and related human rights claims against states and corporates; and (iii) explores future trends of human rights and climate litigation.
Legal framework
Hard law
There is not yet a coherent and enforceable legal framework in place which provides a means by which claimants can base their climate-related claims on human rights frameworks.
The European Convention on Human Rights (“ECHR“) does not explicitly provide for a right to a healthy environment. It does, however, enshrine a right to life (Article 2) and a right to respect for private and family life (Article 8). The UK Human Rights Act 1998 (the “HRA“) makes clear that the ECHR has effect in the UK, meaning that human rights in the UK are those rights as set out in the ECHR. For companies, European Court of Human Rights (“ECtHR“) decisions are enforceable via the HRA requirement that UK Courts “take account” of, rather than strictly follow, such decisions when reaching their own judgements.
Soft law
In the UK, “soft” laws imposing obligations on governments and companies to respect human rights are, for the former, based on public international law principles as well as non-binding and unenforceable instruments. Those same instruments often also focus on the role (and obligations) of companies in the areas of human rights and responsible business conduct. Indeed, corporates often publicise that they accept, commit to or are signatories to certain “soft” laws, including the UN Global Compact (“UNGC“) and its Ten Principles (“UNGCPs“), the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (“OECD Guidelines“) which have the status of government backed “soft” law and which have recently been updated (see our recent briefing), and the UN Guiding Principles on Business and Human Rights (“UNGPs“).
Climate change litigation trends and obstacles
Background to the novel climate litigation grounded on human rights breaches
In the absence of a clear legal framework, recent litigation trends illustrate that claimants are attempting to base their claims about the state of the environment as a result of climate change on alleged breaches of their human rights (inter alia, Article 2 and Article 8 of the ECHR). This type of action is being seen predominantly at an EU level against states.
From the EU perspective, this link was clearly acknowledged in the Commission’s March 2020 Communication to the Parliament and Council on the ‘EU Action Plan on Human Rights and Democracy 2020-2024’ (“EU Action Plan“). The Commission made clear that the EU’s focus should be on strengthening awareness and recognition of the linkage between human rights and the environment including climate change, in EU external action. The EU Action Plan’s commitment includes supporting human rights defenders and their legal representatives in cases relating to, among other things, environmental and climate change issues.
The link established in the EU Action Plan has been reflected in the changing regulatory landscape in the EU. For example, what was previously a human rights due diligence proposal has now become an environmental and a human rights due diligence proposal (the Corporate Sustainability Due Diligence Directive (“CS3D”) – the final text of which, after significant political turmoil, was finally approved on 15 March 2024). It has also become clearer through the incorporation of the OECD Guidelines and UNGPs into legal frameworks and reporting requirements (such as under sustainable finance disclosure regulations and wider corporate sustainability reporting requirements, including the Corporate Sustainability Reporting Directive (“CSRD“)), giving them quasi-legal status.
It is also worth noting that other human rights and environmental legislation (largely in the EU but also across the globe) continues to develop at a rate that demonstrates an expectation that companies are subjected to pressure (both on a voluntary and mandatory basis) not only to report their adverse environmental and social impacts, but to prevent or mitigate them. See our recent briefings on CS3D and Supply Chain Diligence in Europe for further details.
State-level claims with a ripple effect on corporates
Historically, we have seen human rights cases predominantly being brought against states. However, we are now seeing claims against corporates in this area and novel arguments and constructions used in state-level claims are having ripple effects on corporate bodies (including claims under the HRA for breaches of human rights brought against a public or private corporate body performing a public function (for example, privatised utility companies). Indeed, in a recent judgment on human rights and climate change, KlimaSeniorinnen (considered below), the ECtHR explicitly stated that obligations to protect human rights through climate action not only lie with governments but exist in “various sectors” and transition to a greener future involves “both the public and private sectors”.
Given the novelty of making decisions in this realm, it is difficult to say with certainty whether we will ultimately see an established body of climate litigation founded on human rights grounds developing beyond KlimaSeniorinnen, particularly in this jurisdiction. That said, there is no doubt that the enshrinement of a right to a healthy environment within human rights in KlimaSeniorinnen represents a novel precedent on climate change and human rights litigation, recognising an alternative route to redress beyond the traditional tortious routes when seeking to influence future action on climate change.
It seems the appetite to seek redress and, importantly, influence future action on climate change through the Courtroom remains unabated. The ECtHR is the first mover in this area. Ultimately, leading judgments by such human rights decision bodies as well as increased specificity within legislation and the enshrinement of the right to a healthy environment as a human right could all work together to build the legal framework behind such claims and establish greater certainty for governments, businesses and claimants.
