# Human Rights Approach to Climate Change Litigation and Its Limits

Mingzhe Zhu

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Mingzhe Zhu. Human Rights Approach to Climate Change Litigation and Its Limits. Chinese Yearbook of Human Rights, Volume 6 (2024), Brill | Nijhoff, pp.137-162, 2024, 10.1163/9789004697362_007. hal-05125629

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# Chapter 6

## Human Rights Approach to Climate Change Litigation and Its Limits

Zhu Mingzhe

**Abstract:** In recent years, litigants have begun to use human rights as gateway to climate change litigation in some jurisdictions and achieved limited success. Some scholars see this "human rights turn" as new opportunities to advance climate change mitigation through the judicial process, while others criticize it as an abuse of human rights law that could lead to illegitimate sanctions on emitters. Human rights-based climate change litigation should be understood as strategic litigation, whose purpose is not to resolve a specific dispute or gain compensation for damages, but rather to promote broader social and policy change. To achieve this goal, plaintiffs use as wide a range of rights as possible, including the rights to life, property, peace in private life, health, environment and so on, and expand the subject of rights to future generations and foreign citizens, arguing that both the state and carbon majors should be held accountable for the diminished human rights caused by climate change. In theory, the strength of the human rights approach lies in empowering the judiciary to go beyond the paradigm of updating the interpretation of existing norms and create norms. There are hardly any obstacles in terms of legal techniques to the performance of this function, as filling lacune of law through recourse to various principles of human rights law has already become a relatively mature model of judicial reasoning. However, a series of factual obstacles still exist and may hinder the implementation of this theoretically well-established function. The judiciary, after all, cannot enforce its own policy decisions without the cooperation of other public authorities. Furthermore, the power of norm-making by appealing to human rights is highly culture-specific, which means it might not be supported in a culture of adjudication where right is not considered as trump.

**Keywords:** climate change litigation, human rights approach, strategic litigation, state responsibility, business and human rights

### 1 Introduction

The 'rights turn' in climate change litigation has not only attracted the attention of the academic circle, but also triggered a new round of cases around the world.<fnref n="1" /> This article examines the role and limitations of this new application of human rights law, so as to help us contemplate the possibilities of its development. Climate change litigation began to emerge in 1980s<fnref n="2" />, and has mushroomed since the beginning of the new century, and more

<footnote>Mingzhe Zhu is a lecturer in just transition at Law School, University of Glasgow.</footnote>

<footnote n="1">¹ See Jacqueline Peel, Hari Osofsky, and Anita Foerster, "Shaping the 'Next Generation' of Climate Change Litigation in Australia", Melbourne University Law Review 41 (2017): 793-844; Jacqueline Peel and Hari M. Osofsky, "A Rights Turn in Climate Change Litigation?", Transnational Environmental Law 7 (2018): 37-67; Jacqueline Peel and Hari M.Osofsky, "Climate Change Litigation", Annual Review of Law and Social Science 16 (2020): 21-38.</footnote>

<footnote n="2">² In the United States, climate change litigation dates back at least to the case of City of Los Angeles v. National Highway Traffic Safety Administration in 1986.</footnote>
than 2,300 cases have already entered the trial stage.<fnref n="3" /> Early climate cases were represented by Massachusetts vs. Environmental Protection Agency (EPA) <fnref n="4" />, which revolved largely around the interpretation of existing legal provisions.<fnref n="5" /> In recent years, discussions on the link between climate change and human rights have been mainstreamed. In 2005, the Inuit people filed a lawsuit against the United States in the Inter-American Court on Human Rights, arguing that U.S. greenhouse gas emissions violated their rights protected by the *American Convention on Human Rights*. In 2009, the Office of the United Nations High Commissioner for Human Rights presented its *Report on the Relationship between Climate Change and Human Rights* to the Human Rights Council, recognizing that climate change endangers the rights to life, adequate food, water, health, adequate housing and self-determination.<fnref n="6" /> *The Paris Agreement*, adopted in 2015, included in its preamble an expression on the relationship between climate change and human rights: the parties to this Agreement “acknowledging that climate change is a common concern of humankind, 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”.<fnref n="7" />

Against this backdrop, human rights safeguards emerged as a cause of action, a development that scholars fashioned as a “Rights Turn”.<fnref n="8" /> The earliest attempt occurred in Pakistan, where a young farmer claimed that the Pakistani government was responding passively to climate change, violating his fundamental right to life and dignity.<fnref n="9" /> The most mediated case is arguably the Stichting Urgenda v. Government of the Netherlands, which received its final verdict in late 2019. The plaintiffs argued that the Dutch government’s violation of its duty of care in the *Dutch Civil Code* due to inadequate climate action had led to a violation of the rights protected by Articles 2 and 8 of the *European Convention on Human Rights*.<fnref n="10" /> Nevertheless, not all attempts to link climate change to human rights yielded positive outcomes for climate governance. In fact, in most current cases, claims

<footnote n="3">³ Joana Setzer and Catherine Higham, “Global Trends in Climate Change Litigation: 2023 Snapshot”, Grantham Research Institute on Climate Change and the Environment, accessed 18 August 2023, https://www.lse.ac.uk/granthaminstitute/publication/global-trends-in-climate-change-litigation-2023-snapshot/.</footnote>

<footnote n="4">⁴ For a Chinese introduction to this case, see Ma Cunli, “Analysis of Plaintiffs’ Eligibility in Environmental Litigation under Global Warming: Starting from Massachusetts v. Federal Environmental Protection Agency”, Peking University Law Journal, no. 4, (2008): 630-639.</footnote>

<footnote n="5">⁵ Jacqueline Peel and Hari M. Osofsky, “A Rights Turn in Climate Change Litigation?”, Transnational Environmental Law 7 (2018): 37, 39.</footnote>

<footnote n="6">⁶ See UN Human Rights Council (HRC), “Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights”, A/HRC/10/61 (2009), p. 9-15.</footnote>

<footnote n="7">⁷ For critical perspectives on the use of human rights law to address climate change, also see Alan Boyle, “Climate Change, the Paris Agreement and Human Rights”, International & Comparative Law Quarterly 67 (2018): 759-777.</footnote>

<footnote n="8">⁸ See Jacqueline Peel and Hari M. Osofsky, “A Rights Turn in Climate Change Litigation?”, Transnational Environmental Law 7 (2018): 37-67; He Zhipeng and Wang Fei, “Human Rights-based Litigation on Climate Change”, Qinghai Social Sciences, no. 2 (2021): 132-140, 161.</footnote>

<footnote n="9">⁹ See Asghar Leghari v. Federation of Pakistan, W.P.No. 25501 (Lahore High Court 2015).</footnote>

<footnote n="10">¹⁰ See Stichting Urgenda v. Government of the Netherlands, ECLI No. ECLI:NL:HR:2019:2007; “Comment: State of the Netherlands v. Urgenda Foundation”, Harvard Law Review 132 (2019): 2090-2097; Maiko Meguro, “State of the Netherlands v. Urgenda Foundation”, The American Journal of International Law 114 (2020): 729-735. For a Chinese introduction to the first instance and the Court of Appeal’s judgment in this case, see Zhang Zhongli, “Judicial Determination of the State’s Duty of Care in Climate Change Litigation – Taking the Case of Urgenda Foundation v. Netherlands as an Example”, Journal of Law Application, no. 18 (2019): 99-111.</footnote>
highlighting human rights violations resulting from delays in addressing climate change have not been supported by the judiciary. The Norwegian Supreme Court, for example, held that the government's issuance of licenses for oil extraction in the Arctic area did not constitute a violation of constitutional rights. 11 Apart from the cases already adjudicated, a large number of climate change lawsuits with human rights approach are still pending. 12

At present, there is widespread optimism in the international academic community about the rights turn. 13 The recourse to human rights can, above all, help to concretize abstract climate threats on a global scale into the violations of the rights of specific groups through certain actions of specific subjects of liability. 14 In the general absence of accountability mechanisms for climate inaction in many states, human rights laws can temporarily fill the legal gaps. 15 The recognition of human rights abuses can push governments to take more proactive measures to reduce emissions, promote understanding of the unequal impacts on disadvantaged populations, bring about more profound and less easily repealed policy changes, and give due awareness to the damage of climate change. 16 Compared with the tort approach, the human rights approach lowers the standard of plaintiff's burden of proof. 17 In addition, it helps to prompt the judges and legislators to confirm the issue of climate change and arose the attention of the public. 18 Meanwhile opponents argue that the claim to infer greenhouse gas reduction obligations from human rights protection lowers the standard for the proof of causation in human rights violations, and runs the risks of reducing human rights to very trivial norms. Besides, raising emission reduction targets in some countries will not substantially help address climate change on a global scale. 19 More importantly, the emission of greenhouse gases per se, past and present, is not illegal and does not, in particular, violate any treaty obligations. 20

<footnote n="11">11 Greenpeace Nordic Association v. Ministry of Petroleum and Energy, No. 20-051052SIV-HRET (2020).</footnote>

<footnote n="12">12 For reference, Future Generations v. Ministry of the Environment and Others, STC 4360 (2018); Juliana v. United States, 217 F. Supp.3d, No. 6:15-cv-01517-TC, 2016 WL 6661146 (2016); Milieudefensie et al. v. Royal Dutch Shell plc., No. C/09/571932/HAZA19-379.</footnote>

<footnote n="13">13 Jacqueline Peel and Hari M. Osofsky, "A Rights Turn in Climate Change Litigation?", Transnational Environmental Law 7 (2018): 37-67.</footnote>

<footnote n="14">14 Annalisa Savaresi, "Human Rights and the Impacts of Climate Change: Revisiting the Assumptions", Onati Socio-Legal Series 11 (2021): 231-253; Annalisa Savaresi and Juan Auz, "Climate Change Litigation and Human Rights: Pushing the Boundaries", Climate Law 9 (2019): 244-262.</footnote>

<footnote n="15">15 Annalisa Savaresi and Juan Auz, "Climate Change Litigation and Human Rights: Pushing the Boundaries", Climate Law 9 (2019): 244-262.</footnote>

<footnote n="16">16 Victoria Adelmant, Philip Alston, and Matthew Blainey, "Human Rights and Climate Change Litigation: One Step Forward, Two Steps Backwards in the Irish Supreme Court", Journal of Human Rights Practice 13, no. 1 (2021): 14.</footnote>

<footnote n="17">17 Annalisa Savaresi and Juan Auz, "Climate Change Litigation and Human Rights: Pushing the Boundaries", Climate Law 9 (2019): 244-262.</footnote>

<footnote n="18">18 Jacqueline Peel and Hari M. Osofsky, "A Rights Turn in Climate Change Litigation?", Transnational Environmental Law 7 (2018): 37-67.</footnote>

<footnote n="19">19 See Fanny Thornton, "The Absurdity of Relying on Human Rights Law to Go after Emitters", in Debating Climate Law, eds. Benoit Mayer and Alexander Zahar (Cambridge University Press, 2021); Alexander Zahar, "Human Rights Law and the Obligation to Reduce Greenhouse Gas Emissions", Human Rights Review, 2022, https://doi.org/10.1007/s12142-021-00648-8.</footnote>

<footnote n="20">20 See Alan Boyle, "Climate Change, the Paris Agreement and Human Rights", International & Comparative Law Quarterly 67 (2018): 759-777; Alexander Zahar, "Human Rights Law and the Obligation to Reduce Greenhouse Gas Emissions", Human Rights Review, 2022, https://doi.org/10.1007/s12142-021-00648-8.</footnote>
Based on existing literature, this paper takes the human rights approach as a strategic attempt of climate change litigation and explains its theoretical advantages and practical limitations. The opponents on the human rights approach might argue that the threat to human rights posed by climate change does not constitute a liability within the existing framework of human rights law.<fnref n="21" /> While valid, this view ignores a feature of the strategic litigation in the current climate change lawsuits – plaintiffs are not seeking compensation or case-specific resolution, but broader social and policy changes. The arguments for rights and responsibilities in the existing human rights-based climate change lawsuits illustrate the plaintiffs’ attempts to explore new frontiers in human rights laws. Part III of this article acknowledges that, theoretically, the human rights law approach can help judges appeal to constitutional or legal principles and bridge gaps in law in individual cases. Part IV points out that the litigation strategy with recourse to human right must employ other arguments to obtain specific policy indicators and is currently limited by judges’ hesitation to address policy issues or inadequate understanding of climate change, turning the case into high-risk legal practice. Apart from these temporary and technical factors, it might also be difficult to promote the human rights approach in some obligatory or responsibility-based legal cultures.

## 2 Strategic Use of Human Rights Approach in Climate Change Instigation

### 2.1 Whose Rights? What Kind of Rights?

The plaintiffs in climate change litigation, when making their claims from a human rights perspective, do not claim violations of a particular right of a certain group of people. Instead, in order to persuade courts to embark on legal changes, they tend to enumerate as many subjects and rights that have been violated as possible. In this article, we will collate the information of the victims and their rights in some representative cases to provide an overview of the “normative toolbox” that has emerged from the development of climate change litigation.

The issue of inter-generational justice is quite prominent in identifying victims of human rights violations in the existing cases. While it is common to argue that the current citizens are those who are suffering from the adverse consequences of climate change, there are growing attempts to assert that the rights of younger generations and future generations are being violated. In Ashgar Leghari v. Federation of Pakistan, the judge briefly mentioned the importance of inter-generational justice in interpreting constitutional and fundamental rights, but did not elaborate on that.<fnref n="22" /> The final verdict in the Urgenda case repeatedly emphasized that climate change directly affected the rights of the “current generation.”<fnref n="23" /> Several non-governmental organizations in France, in the lawsuits against the French government before the Paris Administrative Court, invoked the *European Convention on Human Rights*, and their claims also revolved around the ongoing violations of the rights of French citizens.<fnref n="24" /> However, the French judges did not use human rights law as the primary basis for their decisions and therefore this case was generally not considered to be a successful example of the human rights approach. It is worth mentioning that the

<footnote n="21">²¹ Alexander Zahar, “Human Rights Law and the Obligation to Reduce Greenhouse Gas Emissions”, Human Rights Review, 2022, https://doi.org/10.1007/s12142-021-00648-8.</footnote>

<footnote n="22">²² See Asghar Leghari v. Federation of Pakistan, W.P.No. 25501 (Lahore High Court 2015).</footnote>

<footnote n="23">²³ See Stichting Urgenda v. Government of the Netherlands, ECLI No. ECLI:NL:HR:2019:2007.</footnote>

<footnote n="24">²⁴ Notre Affaire à Tous and Others v. France, No. 1904967, 1904968, 1904972, 1904976/4-1 (Paris Administrative Court 3 February 2021).</footnote>
Norwegian Supreme Court has never considered the issue of inter-generational issues in its judgments, although Article 112 of *The Constitution of the Kingdom of Norway* clearly stipulates the rights of future generations.<fnref n="25" />

Meanwhile, the judiciary in different countries have increasingly realized the need to confront the more far-reaching impact of a volatile climate on the adolescents and the generation yet to be born. Apparently, the people who are now in their infancy may find most of their life threatened by climate catastrophes. The most famous success of this strategy is Colombia's Demanda Generaciones Futuras v. Minambiente, where twenty-five plaintiffs aged between 7 and 26 sued multiple government departments and businesses. The Supreme Court of Colombia found that the fundamental rights and freedoms of the plaintiffs were inextricably linked to the environment and ecosystems, and ruled that the government must take effective measures to combat climate change.<fnref n="26" /> A similar claim appeared in Juliana v. United States.<fnref n="27" /> In the Netherlands as well in Milieudefensie et al. v. Royal Dutch Shell plc., where both the plaintiffs and the court used the Urgenda case as an important reference, the court decision reversed the wording of the Urgenda case, emphasizing that both the present and future generations are entitled to the rights that had been threatened by the inaction of the defendant.<fnref n="28" /> What also needs to be considered in ruling such cases is that the 'carbon budget' left for the future generations will be too low that they will not be able to achieve a standard of living comparable to ours, unless radical reductions are adopted now. Therefore, when reviewing the *Climate Protection Act*, the German Federal Constitutional Court held that the emission reductions set by the Act were too low, which would lead to such a significant reduction in the carbon budget of future generations that their ordinary life, work and economic activities might not be carried out, and thus the general freedom of action protected by Article 2, paragraph 1 of the *Basic Law* would not be guaranteed.<fnref n="29" />

In addition to the subjects of rights, the types of rights are also slowly expanding. Besides a general temperature increase, climate change will also bring problems such as rising sea levels, land erosion, heavy precipitation at high latitudes, drought and extreme heat in lower latitudes, accelerated melting of glaciers and consequential mountain torrents. The floods in central China in the summer of 2021 manifest the force of extreme climate events at the regional level.<fnref n="30" /> These events will impact people's lives, health, property and other interests. However, the link between the events and the violations of the fundamental rights is not always clear and challenge the interpretation of existing rules. The Dutch

<footnote n="25">²⁵ Article 112 of The Constitution of the Kingdom of Norway stipulates in paragraph 1: " Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well." and further states in paragraph 2 "citizens are entitled to information on the state of the natural environment and on the effects of any encroachment on nature that is planned or carried out."</footnote>

<footnote n="26">²⁶ Future Generations v. Ministry of the Environment and Others, STC 4360 (2018).</footnote>

<footnote n="27">²⁷ For a Chinese introduction to this case, see Wang Lingyu, “The Rights Turn in Climate Change Litigation from the Juliana Case”, in Journal of Legal Philosophy, Legal Methodology and Artificial Intelligence, ed. Shu Guoying /(The Commercial Press, 2022), 8: 328-342.</footnote>

<footnote n="28">²⁸ Milieudefensie et al. v. Royal Dutch Shell plc., No. C/09/571932 /HAZA19-379.</footnote>

<footnote n="29">²⁹ Duan Qin, “Guarantee of Freedom Across Generations”, in Journal of Legal Philosophy, Legal Methodology and Artificial Intelligence, ed. Shu Guoying (The Commercial Press, 2022), 8: 320-327.</footnote>

<footnote n="30">³⁰ See Chen Shu, “China Focus Face-to-Face: How Henan’s Heavy Rainfall Relates to Global Climate Change? — Interview with Jia Xiaolong, Deputy Director of the National Climate Center”, China News Network, 23 July 2021, https://www.chinanews.com.cn/gn/2021/07-23/9527043.shtml.</footnote>
Supreme Court held that the catastrophic climate changes have threatened the right to life protected by Article 2 of the *European Convention on Human Rights* and the right to peace in private life protected by Article 8, which must be taken into account in the interpretation of the “duty of care” in paragraph 2 of Article 162 in chapter 6 of the *Dutch Civil Code*.<fnref n="31" /> In a recent lawsuit in Ireland, the plaintiffs argued that several rights of Irish people, including the right to life, health, work, and property, had been violated, but the Supreme Court of Ireland did not uphold their claim. The Supreme Court of Ireland believed that the right to environments, though not expressly enumerated in the Irish Constitution, might be inferred from the existing rights from the constitution and conventions, but the plaintiff’s argument was insufficient.<fnref n="32" /> Even in the case where environmental rights are expressly specified, the court may not support the plaintiff’s request on the grounds that the emissions caused by the oil and gas extraction license were in foreign territories.<fnref n="33" />

Without explicit stipulation in the constitution or treaties, the judicial reasoning becomes significantly more complex and circuitous. The Juliana case is a typical example. To demonstrate that the right to a stable climate system is a constitutional right, the plaintiffs respectively appeal to the 5th, 9th, and 14th Amendments to the U.S. Constitution. District Court Judge Ann Aiken confirmed the plaintiffs’ constitutional rights to a stable climate system on the grounds that the rights protected by due process clauses include rights protected by the 9th Amendment that are “not enumerated by the Constitution” but are “rooted in the history and traditions of the nation” or “essential to a free and orderly society.” Therefore, when the government’s inaction leads to death, shortened life expectancy, loss of property rights, reduction of food resources, and significant changes in ecosystems, it should be considered as a violation of due process.<fnref n="34" /> The Court also invoked the “public trust theory” commonly used to preserve natural resources in the 1970s. The theory holds that the government, as a trustee, cannot relinquish or abalienate natural resources most important to the well-being of the people and the rights associated with the preservation of the natural resources. The court held that the plaintiffs had corroborated the damage caused by climate change to the territorial waters, such as ocean acidification and sea level rise, which fully demonstrated the federal government’s delay in protecting public trust assets.<fnref n="35" />

## 2.2 Who Should Take the Responsibility? How to Take It?

In the last three decades, plaintiffs of climate change litigation tried to hold a wide range of bodies responsible, including governments, private enterprises, individuals,

<footnote n="31">³¹ See Stichting Urgenda v. Government of the Netherlands, ECLI No. ECLI:NL:HR:2019:2007.</footnote>

<footnote n="32">³² See Victoria Adelmant, Philip Alston, and Matthew Blainey, “Human Rights and Climate Change Litigation: One Step Forward, Two Steps Backwards in the Irish Supreme Court”, Journal of Human Rights Practice 13, no. 1 (2021): 17-19.</footnote>

<footnote n="33">³³ See Christina Voigt, “The First Climate Judgment before the Norwegian Supreme Court: Aligning Law with Politics”, Journal of Environmental Law 33 (2021): 697-710.</footnote>

<footnote n="34">³⁴ Juliana v. United States, 217 F.Supp.3d, No. 6:15-cv-01517-TC, 2016 WL 6661146 (2016).</footnote>

<footnote n="35">³⁵ Wang Lingyu, “The Rights Turn in Climate Change Litigation from the Juliana Case”, in Journal of Legal Philosophy, Legal Methodology and Artificial Intelligence, ed. Shu Guoying (The Commercial Press, 2022), 8: 328-342.</footnote>
international organizations, and financial institutions. <fnref n="36" /> However, most rights-based lawsuits target the state. The plaintiffs' claims are often similar in these cases: the government's failure to combat climate change constitutes a violation of human rights. The Dutch court ruled in the Urgenda case that the defendants had a duty to adopt more aggressive emission reduction policies and explicitly upheld the plaintiffs' demand for the government to reduce greenhouse gas emissions to below 75% of 1990 level by the end of 2020.<fnref n="37" /> In fact, at the time of the verdict, researchers, including the author, did not believe that the Dutch government could actually achieve this target, because the Netherlands' total greenhouse gas emissions in 1990 were 204.71 million tons of carbon dioxide equivalents, compared with about 187 million tons in 2016.<fnref n="38" /> To meet the targets of the Urgenda case, the Netherlands must reduce emissions to 153 million tonnes by 2020. However, with the effects from a series of measures such as the closure of two large power stations, the replacement of coal with renewable energy, and the significant reduction of emissions from the power and transport sectors due to factors such as the coronavirus pandemic, the Dutch government's preliminary estimates suggest that carbon emissions in 2020 could end up being 73% to 76% of 1990 level.<fnref n="39" />

In other cases, judicial decisions have not been so specific. For example, the German Constitutional Court, while in favour of a more active emission reduction policy, did not support the plaintiffs' specific figures for reducing emissions to 30% of the 1990 standard by 2030, but required the legislature to further specify post-2030 emission reduction targets by the end of 2022.<fnref n="40" /> Similar view of the bench appeared in Belgium. In a lawsuit brought by civic groups, a Brussels court found that the Belgian government had breached its obligation to protect human rights, but rejected the plaintiffs' claim for specific percentage of reductions. The court motivated its decision by setting specific emission reduction targets lies in the power of the legislative and executive bodies, which the courts could only review but cannot replace. <fnref n="41" /> Different from these cases challenging the government's policy to reduce emissions in general, Norwegian courts have dealt with the issue of whether offshore oil extraction permit comply with the existing emission reduction targets.<fnref n="42" /> However, this claim was not upheld by the court.

So far, climate change litigation against companies is moving slowly. As is exemplified by the Kivalina v. ExxonMobil Corporation et al.<fnref n="43" />, most early climate change lawsuits against companies have failed. In recent years, plaintiffs have put forward new scientific findings, legal arguments, and constitutional requirements, giving them more chances of

<footnote n="36">³⁶ See Sandrine Maljean-Dubois, “Climate Change Litigation, Max Planck Encyclopedia of Public International Law”, last modified June, 2018, https://opil.ouplaw.com/view/10.1093/law-mpeipro/e3461.013.3461/law-mpeipro-e3461.</footnote>

<footnote n="37">³⁷ See Stichting Urgenda v. Government of the Netherlands, ECLI No. ECLI:NL:HR:2019:2007.</footnote>

<footnote n="38">³⁸ Hannah Ritchie and Max Roser, “Greenhouse Gas Emissions”, Our World in Data, https://ourworldindata.org/greenhouse-gas-emissions.</footnote>

<footnote n="39">³⁹ Rijksinstituut voor Volksgezondheid en Milieu RIVM, “Greenhouse Gas Emissions, 1990-2020”, Compendium voor de Leefomgeving, 31 August 2021, https://www.clo.nl/indicatoren/nl016539-broeikasgasemissies-in-nederland.</footnote>

<footnote n="40">⁴⁰ Duan Qin, “Guarantee of Freedom Across Generations”, in Journal of Legal Philosophy, Legal Methodology and Artificial Intelligence, ed. Shu Guoying (The Commercial Press, 2022), 8: 320-327.</footnote>

<footnote n="41">⁴¹ See VZW Klimaatzaak v. Kingdom of Belgium & Others, No. 2015/4585/A.</footnote>

<footnote n="42">⁴² Christina Voigt, “The First Climate Judgment before the Norwegian Supreme Court: Aligning Law with Politics”, Journal of Environmental Law 33 (2021): 697-710.</footnote>

<footnote n="43">⁴³ Kivalina v. ExxonMobil Corporation et al., 696 F.3d 849 (9th Cir. 2012).</footnote>
success.<fnref n="44" /> The most important attempt so far came in the Royal Dutch Shell case, where the court ruled that Royal Dutch Shell's greenhouse gas emissions through commercial and energy production activities constitute an offence, and that the company's emission credits should be reduced to at least 45% of 2019 level by 2030.<fnref n="45" /> The Hague Court, which had decided the Urgenda case, again applied the duty of care in Article 162 of Chapter 6 in the *Dutch Civil Code*, holding that the duty should include obligations of unwritten laws. The Court then invoked in details international treaties, European law, and "soft law" norms to demonstrate that liability for climate change is part of the companies' unwritten law obligations including the *Paris Agreement*, the *International Covenant on Civil and Political Rights*, the *European Convention on Human Rights*, *Guiding Principles for Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework*, and the *OECD Guidelines for Multinational Enterprises*.<fnref n="46" /> Besides, the Commission on Human Rights of the Philippines has begun to investigate the climate change responsibilities of fossil fuel companies since 2015, examining whether carbon majors violate the rights of the Filipino people. In the report, the Commission affirmed that companies are responsible for human rights damage caused by the climate crisis, and that companies may be further criminally or civilly liable for obstructing investigations.<fnref n="47" />

## 2.3 From Theory to Strategic Application

Among the arguments against the human rights approach to climate governance, a view singles out that insurmountable obstacles exist in deducing emission reduction obligations of states or multinational enterprises from human rights laws. It is argued that if the purpose of human rights law is to protect certain rights of the powerless from violations by the powerful (especially states), mitigating climate change through human rights law mechanisms is doubtful because the accurate identification the victims, the perpetrators and the basic rights being violated is almost impossible. "Climate change is a collective action problem arising from an initially unintentional but now civilization-defining overuse of the atmospheric commons; it is not a power-abuse problem intentionally directed at any person or group of them."<fnref n="48" /> Since everyone is both an emitter of greenhouse gases and a victim of climate change, no victims or culprits can be clearly defined for the diminished human rights caused by climate change; everyone is harming themselves.<fnref n="49" /> Particularly given the global impact of climate change, "the key question is not whether countries with high emissions of greenhouse gases must mitigate harm to their own citizens, but whether they have a responsibility to protect the people of other countries from the harmful effects of these emissions."<fnref n="50" /> Moreover, neither *The Kyoto Protocol* nor *The Paris Agreement* set mandatory emission reduction targets, and the

<footnote n="44">⁴⁴ Geetanjali Ganguly, Joana Setzer, and Veerle Heyvaert, "If at First You Don't Succeed: Suing Corporations for Climate Change", Oxford Journal of Legal Studies 38 (2018): 841-868.</footnote>

<footnote n="45">⁴⁵ See Milieudefensie et al. v. Royal Dutch Shell plc., No. C/09/571932/HAZA19-379.</footnote>

<footnote n="46">⁴⁶ See Milieudefensie et al. v. Royal Dutch Shell plc., No. C/09/571932/HAZA 19-379,4.4.12-4.4.16.</footnote>

<footnote n="47">⁴⁷ He Zhipeng and Wang Fei, "Human Rights-Based Litigation on Climate Change", Qinghai Social Sciences, no. 2 (2021): 138-139.</footnote>

<footnote n="48">⁴⁸ Alexander Zahar, "Human Rights Law and the Obligation to Reduce Greenhouse Gas Emissions", Human Rights Review, 2022, https://doi.org/10.1007/s12142-021-00648-8.</footnote>

<footnote n="49">⁴⁹ Ibid.</footnote>

<footnote n="50">⁵⁰ Alan Boyle, "Climate Change, the Paris Agreement and Human Rights", International & Comparative Law Quarterly 67 (2018): 759,771.</footnote>
inaction of states in climate change response can hardly constitute a violation of existing treaty obligations or general international laws. Therefore, it is practically very difficult to prove that a country's laws, while in line with the UN climate change rules, violate the country's human rights protection obligations. Thus, the focus of the Office of the UN High Commissioner for Human Rights on "rights holders" and "duty bearers" simultaneously distorts human rights law and climate change rules.<fnref n="51" />

The aforementioned reasons are not directly targeted at litigation based on human rights law; whether or not they constitute sufficient objections to the human rights approach of climate change litigation depends on our position in legal theory. If human rights law is thought to be an internally coherent and independent system of principles and rules, structured around defined objectives, the above reasons may be sufficient to explain the difficulty of holding specific countries or companies accountable for climate change within the existing human rights law systems. However, these criticisms appear to be misplaced if both legal rules and judicial procedures can be considered as means of achieving certain specific socio-economic arrangements. The following is a response to the criticism in terms of the strategic features of current climate change litigation and new developments in scientific research on climate change.

In the current climate change litigation, instead of focusing on individual disputes and determination of rights and obligations, the plaintiffs try to convince the court to apply the laws creatively, thereby changing the meaning of existing norms and promoting broad social and policy changes.<fnref n="52" /> The plaintiffs often demand nominal damages (e.g. € 1) and more effective means of reducing emissions. The court functions more like a promoter of social changes than a dispute resolver of specific disputes. What we witness here is not less than a transition from autonomous law to responsive law. Whereas the former adheres to the separation of powers, pursues regularity, and acts only as an unbiased spokesperson for established norms and an passive impartial enforcer; the latter pursues more substantive justice, takes norms as a tool for achieving the goals of individual citizens or society as a whole, and is willing to clarify and revise norms when society has new demands.<fnref n="53" /> The impacts of climate change litigation should no longer be limited to the standing, interpretation of several relevant provision and terms, or methods of judicial reasoning. We must go beyond the framework of dogmatics to social and political contexts to understand the changes in the way justice and public power are structured. In this sense, the arguments against the lack of climate change consideration in environmental impact assessment of large-scale infrastructure projects, the tort law approach, or the human rights approach simply provide opportunities and argumentative tools from different perspectives for the judiciary to implement its function of redefining public interest requirements, renewing legal norms accordingly and responding to social demands.

The argument that it is difficult to precisely identify the victims, perpetrators and infringed rights, also ignores recent developments in climate science. European judges have widely recognized the authority of the Intergovernmental Panel on Climate Change (IPCC) reports, though mainly the parts on the climate change detection are used and the latest development in attribution science is seldomly mentioned. While detection science

<footnote n="51">⁵¹ Ibid., 773.</footnote>

<footnote n="52">⁵² Jacqueline Peel, Hari Osofsky, and Anita Foerster, "Shaping the 'Next Generation' of Climate Change Litigation in Australia", Melbourne University Law Review 41 (2017): 804.</footnote>

<footnote n="53">⁵³ For the difference between responsive law and autonomous law, please see Philippe Nonet, Philip Selznick, and Robert A. Kagan, Law and Society in Transition: Toward Responsive Law (Routledge, 2001).</footnote>
demonstrates that climate has changed in some defined statistical sense, without providing
a reason for that change, the attribution of climate change evaluates "the relative
contributions of multiple causal factors to a change or event with an assignment of
statistical confidence."<fnref n="54" /> In fact, existing research can already calculate the actual historical
cumulative emissions of individual large emitters, replacing the less precise "market share
theory."<fnref n="55" /> Current lawsuits against "carbon majors" extensively use attribution science. The
world's 100 largest carbon emitters "contribute" more than 70% of industrial greenhouse
gas emissions since the 19th century.<fnref n="56" /> This scientific advancement reveals that a small
number of large entities should bear much more responsibility than other organizations or
individuals. Even at the individual level, the "contribution" to carbon emissions by
individuals with different lifestyles in different countries and regions is highly unequal.<fnref n="57" /> In
terms of the impact of climate change, new research can also quantitatively define the
impact of greenhouse gas emissions on specific events, such as extreme weather (storms,
droughts, heat waves and floods), long-term glacier or sea level changes, and persistent
temperature and precipitation changes.<fnref n="58" /> In other words, it is entirely possible to use
climate science to define precisely who and which rights are threatened by climate change.

3 The Strength of the Human Rights Approach: Filling the Lacuna with New Rules

When strategic litigation is used to pursue broader social and policy transformations
in climate governance, the value of the human rights approach resides in its capability of
providing judges with the opportunity to create new rules, rather than just interpret
existing ones. In regard to norms and legal technique, the role of human rights norms as
legal principles in reasoning makes it possible for the responsive justice to be implemented.

3.1 To Create New Norms Directly

When plaintiffs pledge for human rights infringement, judges are given the
opportunity to fill lacunae in the existing law by creating new rules. When there is an
incompleteness in the law that hinter the achievement of the system's purpose, the judges
need to fill them.<fnref n="59" /> Acknowledging the existence of lacunae and the necessity of filling them
can be described as a great progress from the rigid view of rule of law in the 19th century
to the soft rule of law in the 20th century.<fnref n="60" /> The 19th-century jurisprudence, dominated by

<footnote n="54">⁵⁴ Zhai Panmao, Zhou Baiquan, and Chen Yang, "A Review of Climate Change Attribution Studies", Journal of Meteorological Research 32 (2018): 671, 672.</footnote>

<footnote n="55">⁵⁵ See Richard Heede, "Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers 1854-2010", Climatic Change 122 (2014): 229-241; Rupert F. Stuart-Smith et al., "Filling the Evidentiary Gap in Climate Litigation", Nature Climate Change 11 (2021): 651-655.</footnote>

<footnote n="56">⁵⁶ Annalisa Savaresi and Jacques Hartmann, "Using Human Rights Law to Address the Impacts of Climate Change: Early Reflections on the Carbon Majors Inquiry", in Climate Change Litigation in the Asia Pacific, eds. Jolene Lin and Douglas A. Kysar (Cambridge University Press, 2020), 78; Paul Griffin, "CDP Carbon Majors Report 2017", https://cdn.cdp.net/cdpproduction/cms/reports/documents/000/002/327/original/Carbon-Majors-Report-2017.pdf?1501833772.</footnote>

<footnote n="57">⁵⁷ Lucas Chancel and Thomas Piketty, Carbon and Inequality: From Kyoto to Paris (Paris School of Economics, 2015).</footnote>

<footnote n="58">⁵⁸ See Zhai Panmao, Zhou Baiquan, and Chen Yang, "A Review of Climate Change Attribution Studies", Journal of Meteorological Research 32 (2018): 671, 672; Rupert F. Stuart-Smith et al, "Filling the Evidentiary Gap in Climate Litigation", Nature Climate Change 11 (2021): 651.</footnote>

<footnote n="59">⁵⁹ See Ernst A. Kramer, Legal Methodology, trans. Zhou Wanli (Law Press, 2019), 149-151.</footnote>

<footnote n="60">⁶⁰ See Lei Lei, "A Model of Legal System Suitable for the Rule of Law", Chinese Journal of Law, no. 5 (2015): 3-27.</footnote>
legislative supremacy, did not recognize norms other than those created by legislators
representing “the general will”, and naturally did not entrust judges with the power to
revise the law. However, this overly rigid position was unable to cope with the endless new
situations that emerged in legal practice. Thus, starting with the draft *German Civil Code* of
1874, and after attempts of texts in the *Taisho Bulletin No. 103 of the 8th Year of
Meiji* and the *Draft Civil Law of the Great Qing Dynasty*, the *Swiss Civil Code*
finally established in Article 1 the conditions and methods for judges to create legal norms:
“In the absence of a provision, the court shall decide in accordance with customary law and,
in the absence of customary law, in accordance with the rule that it would make as legislator.
In doing so, the court shall follow established doctrine and case law.”<fnref n="61" /> Today, it has become
common sense in legal methodology that judges can fill the loopholes in specific rules by
appealing to the normative protection purposes indicated by legal principles.

It now appears that judges are more actively seeking to create new rules in climate
change litigation. While previous climate change litigation achieved positive outcomes in
mitigation through an extended interpretation of existing legal concepts, judges have
recently sought to fill legal gaps by creating new rules based on human rights. In earlier
cases, courts sought to define greenhouse gas as a pollutant to achieve climate governance
within the framework of established environmental law. As early as 1994, Australian courts
demanded that carbon dioxide emissions must be considered in the environmental impact
assessment of new coal-fired power plants.<fnref n="62" /> This approach is most famously exemplified
by Massachusetts v. Environment Protection Agency, where plaintiffs argued that the EPA
shall regulate GHGs as air pollutants.<fnref n="63" /> In comparison, the Urgenda case decision not only
applied the *Dutch Civil Code* to the actions of the state, but more importantly creates a legal
obligation of the state to reduce greenhouse gas emissions. Equally significant, the second
instance judgment in the Royal Dutch Shell case used a range of international “soft law”
norms on business and human rights to demonstrate that the unwritten obligations of large
emitters include obligation to reduce commissions.<fnref n="64" /> The German Constitutional Court has
also created a duty to act for the state not to overconsume the carbon emission budget of
future generations.<fnref n="65" /> These obligations are not specified by rules, but in the broadest sense
derive from an extended and purposive interpretation of existing norms, which is precisely
an important method of filling law lacune. Admittedly, the legal argumentation in the Shell
case is potentially problematic. The innovative interpretation of international law might
avoid the focus of controversy when the treaty was made and ignore the intention of the
state parties.<fnref n="66" /> Nor would it be appropriate for the domestic courts to create specific rules
that could not prove to be the will of other state parties. However, judges can still create
rules based on domestic law even if there is limited room for development in international

<footnote n="61">⁶¹ For a discussion of judge-made laws at the end of the 19th century, see Zhu Mingzhe, “On the ‘Champ Juridique’ in the Era of Codification from the Debate on Judge-made Law in the Republic of China”, Political Science and Law, no. 11 (2018): 127-142.</footnote>

<footnote n="62">⁶² Jacqueline Peel, Hari Osofsky, and Anita Foerster, “Shaping the ‘Next Generation’ of Climate Change Litigation in Australia”, Melbourne University Law Review 41 (2017): 795.</footnote>

<footnote n="63">⁶³ For a Chinese introduction to the case, see Ma Cunli, “Analysis of the Eligibility of Plaintiffs in Environmental Litigation under Global Warming: Starting from the Case of Massachusetts v. EPA”, Peking University Law Journal, no. 4 (2008): 630-639.</footnote>

<footnote n="64">⁶⁴ Milieudefensie et al. v. Royal Dutch Shell ple., No. C/09/571932/HAZA19-379.</footnote>

<footnote n="65">⁶⁵ Duan Qin, “Guarantee of Freedom Across Generations”, in Jurisprudence—Philosophy of Law, Legal Methodology and Artificial Intelligence, ed. Shu Guoying (Commercial Press, 2022), 8: 320-327.</footnote>

<footnote n="66">⁶⁶ Zhang Honghong, “The Practice of the Committee against Torture and Its Impact on the Implementation of the Convention against Torture”, Journal of Human Rights, no. 3 (2020): 100-112.</footnote>
laws, because most international human rights norms are exhibited domestically in constitutions.

The judicial rulemaking in individual cases is in line with the requirements of a modern ideal of the rule of law in a democracy. An independent judiciary power provides citizens with the opportunity to challenge the decisions of legislators and governments. As the Lahore High Court said in its judgment in the Ashgarh Legari case, when the judicial organs are required to defend constitutional rights, the courts can and must review whether the government has taken due actions to address climate changes.<fnref n="67" /> Moreover, the judiciary provides relatively equal judicial relief opportunities for both parties, who could persuade judges through the presentation of facts and judicial reasoning, so that judges can make principled renewal of the existing climate law and policy while upholding the fundamental values of the law.<fnref n="68" /> Human rights provisions are a stable and unchanging part of the legal system – the legal system has always protected basic rights such as the rights to life, peace in private life, equality, and property. Despite differences in time, space and socio-economic contexts, the controversy in individual cases is merely which rules are best to protect these fundamental rights. The choice of climate change mitigation measures that can provide effective protection on the above fundamental rights has become the focus of the judicial process, maximizing the role of public debates.<fnref n="69" /> Just as the climate is changing rapidly, so is the world we live in, and one evidence is the growing awareness that large political and business organizations must take active actions to keep the planet from becoming uninhabitable. “The climate change case is like a beacon that tells us where we’re going.”<fnref n="70" />

The technique of filling lacune of law can respond to the criticism that carbon emissions have always been legal. Even if analogy and other lacune filling techniques are still prohibited in criminal law,<fnref n="71" /> it is not heresy to create new norms in civil or administrative proceedings to achieve the protection of human rights in the legal system. And we must recognize that it is not a new scientific conclusion that greenhouse gas emissions contribute to climate change; scientists noticed a possible link between carbon dioxide concentrations and climate warming as early as 1896.<fnref n="72" /> When the IPCC was established in 1988, the scientific evidence on climate change was already known to the academic community. In 1991, the Chinese government had already discussed the response plan for the ten warm winters in the northern China.<fnref n="73" /> In 1998, the Congress of the United

<footnote n="67">⁶⁷ See Asghar Leghari v. Federation of Pakistan, W.P.No, 25501 (Lahore High Court 2015).</footnote>

<footnote n="68">⁶⁸ See Brian J. Preston, “The Contribution of the Courts in Tackling Climate Change”, Journal of Environmental Law 28 (2016): 11-17.</footnote>

<footnote n="69">⁶⁹ Ibid, 14.</footnote>

<footnote n="70">⁷⁰ Laura Burgers, “Should Judges Make Climate Change Law?”, Transnational Environmental Law 9 (2020): 55, 72.</footnote>

<footnote n="71">⁷¹ In fact, as early as 1996, the European Court of Human Rights held that in the interpretation of article 7 of the European Convention on Human Rights, “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.”, both statutory and unwritten laws must be taken into account, and that when a criminal law amendment is foreseeable in the political, economic, social and cultural context of the time, retrospective application of the new law in the adjudication is not contrary to legality of crime principle. See CR v United Kingdom, 21 EHRR 363 (1996).</footnote>

<footnote n="72">⁷² See James R. Fleming and T. C. Chamberlin, “Climate Change, and Cosmogony”, Studies in History and Philosophy of Modern Physics 31 (2000): 293-308.</footnote>

<footnote n="73">⁷³ See National Meteorological Administration, “Winter Warming in Northern China in the Past Decade”, in Compilation of documents of the Environmental Protection Commission of the State Council (II), ed. Secretariat</footnote>
States held hearings on climate change. The reason why it is so slow to pass laws and policies on climate change is largely due to the fact that large emitters have allowed climate change denial theory to have an undesirable dissemination through lobbying, media relations and even bribery.<fnref n="74" /> In this sense, even if carbon emissions themselves are not illegal, the dissemination of false climate change information and the failure to response when already knowing its significant negative impacts may indeed constitute a violation of human rights.

## 3.2 Judicial Reasoning through Recourse to Legal Principles

The human rights approach to climate change litigation is characterized by the extensive use of legal principles for argumentation by both the plaintiffs and judges. Some legal principles are explicitly stipulated in legislative texts, such as constitutional principles of legality and proportionality. Others may only implicitly exist as the tacit foundation of a legal system, such as written or unwritten commitments to human rights and fundamental rights.<fnref n="75" /> The application of principles differs from that of rules because they do not directly stipulate the rights, obligations and responsibilities of the parties. However, judges can either create a new rule by combining legal principles with specific rules, or require the legislature or the government to amend existing rules that are considered to be insufficient to implement those legal principles. The former approach is exemplified by the Urgenda case, which proposed specific emission reduction targets for 2020, while the latter can be seen in German Neubauer case.<fnref n="76" /> By comparison, in climate change litigation cases that do not take a human rights approach, the most important legal arguments are often achieved through the analysis of more specific policies. A typical recent example is the decision of the Paris Administrative Court in *l'affaire du siècle*. In establishing the state's liability for ecological damage, the judge only used the *Paris Agreement* as a background for interpretation, focusing on the illegality of the insufficiency of France' emission reduction, and with the annual implementation plan would inevitably fail to meet the two carbon emission targets of reducing emissions to 40% of 1990 levels by 2030 and achieving carbon neutrality by 2050.<fnref n="77" /> In doing so, the administrative judges created the state's general obligation of emission reduction.

It can be seen that the importance of resorting to the principled provisions of human rights lies in judges' power of rulemaking, rather than merely update their interpretations. The Paris Administrative Court's ruling that the government must take measures to remedy, prevent and stop the damage caused by climate change by the end of 2022 sets a precedent for citizens to monitor whether the government has fulfilled its commitments to climate change mitigation. However, this precedent does not create new norms, and what it does most is the emphasis on the government to be bound by its own emission reduction targets. In contrast, people can either see the courts directly creating

<footnote>of the Environmental Protection Commission of the State Council (China Environmental Science Press, 1995), 279-284.</footnote>

<footnote n="74">⁷⁴ See Alexander Michael Petersen, Emmanuel M. Vincent, and Anthony LeRoy Westerling, "Discrepancy in Scientific Authority and Media Visibility of Climate Change Scientists and Contrarians", Nature Communications 10 (2019): 1-14.</footnote>

<footnote n="75">⁷⁵ See Ernst A. Kramer, Legal Methodology, trans. Zhou Wanli (Law Press, 2019), 228-229.</footnote>

<footnote n="76">⁷⁶ Duan Qin, "Guarantee of Freedom Across Generations", in Journal of Legal Philosophy, Legal Methodology and Artificial Intelligence, ed. Shu Guoying (The Commercial Press, 2022), 8: 320-327.</footnote>

<footnote n="77">⁷⁷ Notre Affaire à Tous and Others v. France, No. 1904967, 1904968, 1904972, 1904976/4-1 (Paris Administrative Court 3 February 2021).</footnote>
new norms, or expect the congress to amend them, whether in the Urgenda case, the Neubauer case, or the Royal Dutch Shell case. Be it a specific carbon emission standard of the government, a specific proportion of the carbon budget required by the general freedom of movement of future generations, or the duty of care of enterprises under unwritten law, it should be seen as filling lacunae of the existing laws by the courts, rather than an updated interpretation. If we further examine the progress of related litigation in countries such as Norway and Ireland, it is not difficult to find that the plaintiffs hope to create non-existing rules on the rights of future generations and on transnational carbon emissions or the basis of existing human rights law. These two aspects are precisely the difficulties that contemporary climate change laws need to address.<fnref n="78" /> Although newly created rules are not free from being repeatedly interpreted in future practice, it is undeniable that the creation of new norms can continually enrich our legal system, provide more directly applicable rules for future practice, and thus bring about a more far-reaching impact.

Judicial reasoning through recourse to legal principles may play a big role in holding private companies accountable for climate change. In Ronald Dworkin's classic classification, legal principles protect the rights of individuals, while policy considerations protect the public interest.<fnref n="79" /> Though a state action (e.g. the issuance of oil extraction permits) or inaction (e.g. failure to make policies) can constitute a breach of the state's specific international or domestic obligations, the notion that "everything is allowed unless forbidden by the law" in regulating non-state actors in modern law has made it difficult to succeed in climate change litigation against large corporations.<fnref n="80" /> Modern law imagines human behavior as an abstract, empty, harmless, and value-neutral concept. A selfish but rational individual may manage his life for his own interests with the property at his disposal. What the law needs to regulate is only the negative externalities of the behavior to others or the environment under very accidental circumstances, and the behaviors that produce the externalities should continue.<fnref n="81" /> However, this regulatory dilemma may well be solved by resorting to human rights. After all, business freedom can be restricted in order to protect the more basic and important rights of individuals or groups. Judicial reasoning that appeals to principles can help judges explain why retrospectively application of legal rules to operations is optimal to protecting specific individual or collective rights. The claim of tort damages as the main claim only continues the principle of "remedy for damages" that has always existed in international law to regulate business and human rights. The more fundamental demand of this strategic litigation is to create new rules to hold large carbon emitters accountable of their responsibility for reducing emissions. The main claim for damages for infringement merely perpetuates the "remedy for damages" that has always existed in international law to regulate business and human rights.<fnref n="82" />

<footnote n="78">⁷⁸ Annalisa Savaresi and Juan Auz, “Climate Change Litigation and Human Rights: Pushing the Boundaries”, Climate Law 9 (2019): 244-262.</footnote>

<footnote n="79">⁷⁹ Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1978), 82.</footnote>

<footnote n="80">⁸⁰ Geetanjali Ganguly, Joana Setzer, and Veerle Heyvaert, "If at First You Don't Succeed: Suing Corporations for Climate Change", Oxford Journal of Legal Studies 38 (2018): 841-868.</footnote>

<footnote n="81">⁸¹ See Jorge Vinuales, The Organisation of the Anthropocene: In Our Hands? (Brill, 2018), 3; Zhu Mingzhe, "The Principle of Sustainability and the Ecological Turn of Contemporary Civil Law", Academic Monthly, no. 6 (2020): 84-97.</footnote>

<footnote n="82">⁸² Liang Xiaohui and Liu Ci, “The Paradox of Normative Path Selection and Implementation in the Construction of UN Business and Human Rights Treaties”, Journal of Human Rights, no. 3 (2021): 5-27.</footnote>
## 4 Limitations of the Human Rights Approach

At present, the proliferation of human rights-based climate change litigation seems to be promising. However, the plaintiffs seldomly won. On the one hand, most successful climate change lawsuits use reasoning strategies more technical than the approach of human rights law. On the other hand, the obstacles to human rights-based cases prevent it from becoming a model that can be universally replicated. In addition to the usual procedural barriers such as standing, the limitations of the judiciary and its strong reliance on a particular legal and cultural context diminish the significance of the human rights approach. Specifically in China, the developmentalist approach to climate change may make it difficult to file a climate change lawsuit with the human rights approach.

### 4.1 The Limited Function of the Judiciary

Looking at the judicial practice over time and on broad scale, the so called “responsive law” allows judicial authorities to change legal rules on the basis of identifying changing social public interests.<fnref n="83" /> In theory, techniques of filling law lacune are solid enough to help judges achieve this ambition. However, the general model and theoretical possibilities do not mean that in specific climate change cases, the courts will actually take the initiative to promote social and policy changes, and much less that court decisions can actually achieve positive climate outcomes.

In existing cases, the biggest obstacle is still the strict demarcation between the judicial, legislative and executive powers. Even in Europe, where the human rights approach to climate change litigation has made great progress, many courts are reluctant to change the law directly, or even recognize loopholes in the rules. The Irish Supreme Court has declared that while the government's current emissions reduction plan is insufficient to meet its climate change goals, “it is only one piece of the puzzle”, rejecting that the plan itself constitutes a violation of human rights.<fnref n="84" /> In Norway, attempts to use fundamental rights as an approach to climate change litigation have been hindered. The Norwegian Supreme Court held that Article 112 of the *Constitution* was intended to provide guidance for legislature and administrative decision and guiding principles for legal interpretation, and could only be used as a standard of judicial review when the legislator was directly involved but did not take a position on environmental issues.<fnref n="85" /> According to Christina Voigt, an important reason for this is that Norwegian legal culture tends to limit judicial review on parliamentary decisions. Norway's judiciary has also not embraced the idea of using law and justice to address climate change.<fnref n="86" /> Needless to say, there are still obstacles of political question doctrine in the United States. As the judge in case of City of Oakland v. BP P.L.C. said, although the causal relationship between fossil fuel use and climate change can be confirmed, “questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our

<footnote n="83">⁸³ Zhu Mingzhe, “How Justice Participates in Climate Governance: Observations from a Comparative Law Perspective”, Political Science and Law, no. 7 (2022): 18-33.</footnote>

<footnote n="84">⁸⁴ Friends of the Irish Environment CLG v. The Government of Ireland, No. 793 JR (2017).</footnote>

<footnote n="85">⁸⁵ Christina Voigt, “The First Climate Judgment before the Norwegian Supreme Court: Aligning Law with Politics”, Journal of Environmental Law 33 (2021): 703.</footnote>

<footnote n="86">⁸⁶ Ibid., 708.</footnote>
diplomats, our Executive”.<fnref n="87" /> In other words, judges should not directly deal with the problem of climate change.

In addition to the theoretical boundaries of the separation of powers, another embarrassing aspect for the judiciary to address climate change is its inability to employ the bureaucracy, the police or the military to implement more aggressive climate change responses. Admittedly the Dutch government has surprisingly achieved the reduction target required by the Stichting Urgenda judgment, but subsequent developments in other cases have been somewhat demoralizing. Following the Asghar Leghari case decision, Pakistan's carbon emissions soared from 169.25 million tonnes in 2015 to 238.31 million tonnes in 2018, an increase almost equal to the growth in the previous 20 years.<fnref n="88" /> The International Energy Agency's latest 2021 Energy Review shows that carbon dioxide emissions have rebounded by almost 5%, reaching close to their 2018-2019 peak.<fnref n="89" /> The judges in deciding Colombia's Future Generations case took a bigger step forward than their counterparts in all other countries, not only recognizing the rights of future generations, but also regarding the Amazon rainforest as a "subject of rights" in the *Colombian Constitution*, on the basis of indigenous philosophy. A series of judgments or legislative examples on the status of the rights of natural objects have triggered thought about the "ontological turn" in environmental law.<fnref n="90" /> Ironically, the forest degradation in Amazon River basin continues to worsen. 75% of forest degradation in Colombia occurs in the Amazon forest, far from the country's goal of zero net forest degradation in the Amazon by 2020; the government has simply not shown the political will to make any substantial changes.<fnref n="91" /> Worse still, the farmers who have lost their homes due to the long civil war in Colombia have gone to live in the Amazon forests to escape the conflicts. At present, the government is removing them from the forest in the name of environmental protection and then selling the usufruct rights to the cultivated land to foreign companies for extractivist activities. European and American scholars were once optimistic about climate change litigation in the global South, believing that great progress could be achieved in countries like India, Pakistan and Colombia which have independent judiciary and active social organizations.<fnref n="92" /> Nevertheless, the progress in climate change litigation is not yet translated into concrete climate outcomes.

Some may argue that the limitations of the judiciary are not unique to the human rights approach, and that in any climate change lawsuits, or maybe in any case, the judiciary is faced with the inability to directly formulate and implement policies. Given the validity of this criticism, it is worthwhile to examine other types of climate change litigation. If plaintiffs are suing the government for approving the construction of a major infrastructure

<footnote n="87">⁸⁷ City of Oakland v. BP P.L.C., No. 3:17-cv-06011-WHA, http://columbiaclimatelaw.com/files/2018/06/oakland-v-bp-order-6-25-18.pdf.</footnote>

<footnote n="88">⁸⁸ Hannah Ritchie and Max Roser, "Pakistan: CO₂ Country Profile, Our World in Data", https://ourworldindata.org/co2/country/pakistan.</footnote>

<footnote n="89">⁸⁹ "Global Energy Review", International Energy Agency, 2021, https://iea.blob.core.windows.net/assets/d0031107-401d-4a2f-a48b-9eed19457335/GlobalEnergyReview2021.pdf.</footnote>

<footnote n="90">⁹⁰ See Mihnea Tănasescu, "Rights of Nature, Legal Personality, and Indigenous Philosophies", Transnational Environmental Law 9 (2020): 429-453; Emille Boulot and Joshua Sterlin, "Steps towards a Legal Ontological Turn: Proposals for Law's Place beyond the Human", Transnational Environmental Law 11 (2022): 13-38.</footnote>

<footnote n="91">⁹¹ See Santiago Ardila Sierra, "The Colombian Government Has Failed to Fulfill the Supreme Courts Landmark Order to Protect the Amazon", Dejusticia, 5 April 2019, https://www.dejusticia.org/en/the-colombian-government-has-failed-to-fulfill-the-supreme-courts-landmark-order-to-protect-the-amazon/.</footnote>

<footnote n="92">⁹² Jacqueline Peel and Jolene Lin, "Transnational Climate Litigation: The Contribution of the Global South", The American Journal of International Law 113 (2019): 679-726.</footnote>
project or a fossil fuel extraction project, the court's decision to revoke the permit can prevent the project from going ahead and thus specifically reduce emissions. If the court ruled that the owner of the prospecting rights should allow grid companies to build power transmission networks in the mining area that would help reduce greenhouse gas emissions, the ruling would also have a well-documented reduction effect.<fnref n="93" /> When the court ruled that the transportation company could terminate the affiliated operation contract with the highly polluting car owners according to the documents of the ministry,<fnref n="94" /> the builder of the house needed to provide solar heating facilities,<fnref n="95" /> or the Environmental Protection Agency must remove boilers that do not meet the requirements for air pollution control,<fnref n="96" /> the ruling could effectively achieve the governance objectives in a specific case or project. The human rights approach, however, does not aim to achieve these concrete and small advances, but rather to pursue long-term, large-scale changes, which will also bear the subsequent high risks.

All of the above observations have prompted us to think more about the judicial power in the overall governance structure in future studies. As the legislative and executive powers will continue to deal with climate changes, the judiciary's overemphasis on separation of powers and protection of the executive's discretion, will essentially prevent the courts from imposing restrictions on the legislature and the executive in events of the most serious human rights threats to future generations.<fnref n="97" /> Meanwhile, if a country's judiciary is so independent that it cannot influence government decisions and policy implementation, the rulings of the courts may really be marginalized to an insignificant position.

## 4.2 The Reliance on the Legal Culture of Rights-Based Laws

The reason why it is a viable attempt to create new rules on the basis of human rights is not only because of the fact that human rights protection facilitates the argument of principles, but also because of the significance of the meaning of “rights” in legal culture.

Although the study of any branch of law can only focus on one part of the legal system, the meaning of legal rules and the relationship between rules, the operation of law in any society is always embedded in a specific social and political context that goes beyond the purview of law. Comparative law scholars often vaguely refer to this context as “legal culture”, which can roughly include the intrinsic values of the legal system, traditions, shared beliefs, common ways of thinking, as well as the characteristics of legal professional, legislators, and ordinary citizens to express interests and argue.<fnref n="98" /> If a society has a sufficient consensus on the importance of human rights, the human rights approach can indeed bring

<footnote n="93">⁹³ See Chengde County Qianyu Mining Co., Ltd. v. Hunan Province Power Transmission and Transformation Engineering Company case and other property damage compensation disputes, Jing 0102 Minchu No. 1894 (Beijing Xicheng District People's Court 2016).</footnote>

<footnote n="94">⁹⁴ See Zhou Fubin v. Zhanjiang Mazhang District Da'an Automobile Transport Co., Ltd. Affiliated Business Contract Dispute Appeal, Yue 08 Min Zhong No. 110 (Zhanjiang Intermediate People's Court of Guangdong Province 2017).</footnote>

<footnote n="95">⁹⁵ See Jia Mujie v. Shandong Hailiang Real Estate Development Co., Ltd. Dispute over Commercial Housing Pre-sale Contract, Lu 0104 Minchu No. 6255 (Huaiyin District People's Court of Jinan City, Shandong Province 2018).</footnote>

<footnote n="96">⁹⁶ See Baicheng Taobei District People's Procuratorate v. Baicheng Taobei District Environmental Protection Bureau for Failure to Perform Statutory Duties, Ji 0802 Xingchu No. 51 (People's Court of Taobei District, Baicheng City, Jilin Province 2017).</footnote>

<footnote n="97">⁹⁷ Victoria Adelmant, Philip Alston, and Matthew Blainey, “Human Rights and Climate Change Litigation: One Step Forward, Two Steps Backwards in the Irish Supreme Court”, Journal of Human Rights Practice 13, no. 1 (2021): 10.</footnote>

<footnote n="98">⁹⁸ Roger Cotterrell, “Comparative Law and Legal Culture”, in The Oxford Handbook of Comparative Law, eds. Mathias Reimann and Reinhard Zimmermann (Oxford University Press, 2006).</footnote>
about major social and policy transformations. In fact, the occurrence of the Urgenda case, against a backdrop when climate change litigation has long resolved around individual cases, cannot be separated from the high acceptance of human rights discourse by Dutch judges, whereas, in societies with weak human rights discourse, sluggish civil society and unguarded independence of the judiciary, the human rights approach to climate litigation is likely to be hampered.<fnref n="99" />

As early as 1972, Christopher Stone said frankly that the recognition of rights to mountains and rivers is not because these natural objects have a moral and spiritual core equivalent to human beings, but because the use of the term “rights” allows the rules on environmental protection to develop in a more flexible and open way in the legal system.<fnref n="100" /> After all, in modern legal language, saying that a person, a group, or species has a “right” means that judges can be asked to develop a set of specific rules to protect that right.<fnref n="101" /> Dworkin even compared rights to the “trump card”,<fnref n="102" /> believing that rights that can be accurately explained and defined should not give way to social, economic and policy trade-offs under any circumstance, and once they do, it is a complete denial of rights.<fnref n="103" /> When a society’s judges, lawyers, legislators, and even the general public believe that the importance of fundamental rights outweigh economic development and business interests, a link established between climate change and human rights damage can draw social attention and bring about changes through the judiciary.

However, human rights law's cultural reliance is a double-edged sword. On the one hand, in legal cultures where human rights beliefs are more deeply rooted, judicial lawmaking could be more socially acceptable. On the other hand, successful experiences in the human rights turn of climate change litigation may end up being confined to a very narrow geographical range, specifically in a few countries in Western Europe and South America. After all, not all legal cultures regard rights as the “trump” in litigation, not to mention that obligations or responsibilities are at the heart of law in many of the world's legal traditions. It can be expected that human rights-based climate change litigation can hardly gain recognition or promotion beyond the countries and regions that have made success without changing the strategies of litigation and argument.

In addition to the different general perceptions on human rights, different patterns of addressing climate change also determine whether the human rights approach can occur in a region. At least three different positions coexist when countries try to address this common human concern. European countries tend to understand it as an environmental problem, the United States tends to look at it in economic terms, and many developing countries understand climate politics as “part of a larger pattern of historical and economic injustices.”<fnref n="104" /> A jurisdiction-specific perspective determines the framework for climate change, the allocation of decision-making power, and the setting of policy objectives.<fnref n="105" /> As can be seen from the available cases, most of the successful human rights arguments link

<footnote n="99">⁹⁹ See Jacqueline Peel and Jolene Lin, “Transnational Climate Litigation: The Contribution of the Global South”, The American Journal of International Law 113 (2019): 679-726.</footnote>

<footnote n="100">¹⁰⁰ Christopher D. Stone, “Should Trees Have Standing? —Toward Legal Rights for Natural Objects”, Southern California Law Review 45 (1972): 450, 488.</footnote>

<footnote n="101">¹⁰¹ Ibid, 488-489.</footnote>

<footnote n="102">¹⁰² Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1978), xi.</footnote>

<footnote n="103">¹⁰³ Ibid. 192.</footnote>

<footnote n="104">¹⁰⁴ Daniel Bodansky, Jutta Brunnée, and Lavanya Rajamani, International Climate Change Law (Oxford University Press, 2017), 5.</footnote>

<footnote n="105">¹⁰⁵ Ibid., 5-10.</footnote>
climate change to environmental rights, which is in line with the European countries'
position on climate change. Therefore, the issue of climate change and human rights can be
addressed within the existing environmental law framework in European countries by
defining the rights of individuals or groups, the responsibilities of States or emitters;
however, this solution may not be applicable in other regions.

China has adopted a “development path” in dealing with climate change: climate
governance is mainly the task of those state agencies responsible for economic and
industrial development. And climate policies, aimed at industrial transformation, are not
supposed to hinder economic growth when addressing climate challenges. China’s national
schemes and action plans are the best representation of this developmentalist approach.
Prepared in 2007,<fnref n="106" /> the China’s first national plan to address climate change, takes
“safeguarding economic development” as one of its guidelines.<fnref n="107" /> Before 2018, the de facto
body in China responsible for formulating and implementing climate policy was the National
Development and Reform Commission (NDRC), with the Premier as the head of the National
Leading Group for Climate Change, and the Secretariat of Climate Change department in
NDRC responsible for the daily operation. It is true that the 2018 reforms moved the
department of Climate Change Division, which was preparing a draft climate law, from the
NDRC to the Ministry of Ecology and Environment, and separated the National Energy
Administration, which drafted the energy law, into an independent body, but the NDRC’s
influence is still there. Whether in the National Energy Administration or the department
of Climate Change, senior members with agenda-setting authority were initially recruited
and promoted within the NDRC before 2018. In other words, at least in the near future,
China’s climate law and policy design will remain in the hands of these powerful
“development bureaucrats”.

Under the guidance of the development path of climate change, China has generated
a model of governance through planning. While there is a lack of clear provisions on the
obligations and responsibilities of different parties in China's relevant laws and regulations
on climate change, there are a large number of policy guidelines and plans on climate. <fnref n="108" />
Within the framework of the existing *Code of Administrative Procedure*, ordinary citizens
cannot bring lawsuits against these policies or their implementation on the grounds of
violation of their rights. This model of governance has obviously achieved noticeable
outcomes in reducing emissions, and thus proves that there is no logical relationship
between the effectiveness of climate mitigation policies and the presence of a human rights
approach. However, the model also suffers from the defects of lack of transparency and
accountability, as well as inefficient public participation. Perhaps the more important
finding for this article is that this human rights turn may not be achieved in China for the
time being.

5 Conclusion

<footnote n="106">¹⁰⁶ Zhu Mingzhe, “How Justice Participates in Climate Governance: Observations from a Comparative Law Perspective”, Political Science and Law, no. 7 (2022): 18-33.</footnote>

<footnote n="107">¹⁰⁷ See “China’s National Development and Reform Commission, China’s National Plan for Climate Change”, https://www.ccchina.org.cn/WebSite/CCChina/UpFile/File189.pdf.</footnote>

<footnote n="108">¹⁰⁸ Zhu Mingzhe, “The Rule of Climate Policy: How Do Chinese Judges Contribute to Climate Governance without Climate Law?”, Transnational Environmental Law 11 (2022): 119-139.</footnote>
The success of the human rights approach depends on the power of the judiciary and the characteristics of the legal culture. Under the responsive law model, the judiciary can indeed close legal loopholes through recourse to fundamental rights and principles-based judicial reasoning to create new norms. However, the judiciary has no measures to ensure that the rules it creates can be further implemented by the executive organs. Moreover, the power of the judiciary to fill lacune of law is further limited by cultural significance of human rights in a jurisdiction. Regardless, the rights approach is not the only viable strategy for climate change litigation, and not necessarily the best one. As this strategic attempt flourishes, a lot of valuable topics need to be explored and a lot of new progresses wait to be observed and studied.

Translated by Gao Jing