Holding your Government Accountablefor Climate Change:

A PEOPLE’S GUIDEDISCLAIMER

The information made available inthis document has been prepared by
Greenpeace Philippines, Climate Justiceand Liability Campaign, for informational
purposes only. The information is
not legal advice or a substitute forlegal counsel. This information is notintended to create, and receipt of it
does not constitute, an attorney-client
relationship. You should not rely or act
upon this information without seeking
professional advice from a lawyer in yourjurisdiction.
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10 December 2018 Greenpeace Climate Justice and Liability Campaign

DISCLAIMER

Executive Summary

101Introduction
1.1 What is the aim of this guide?..................................................................................... 13
1.2 Why do we need to hold governments accountable?...................................................14
1.3 What does this guide cover? ................................................................................... 15
1.4 What other guides can i consult? .............................................................................. 17

2
Climate Litigation
2.1 What is the problem?............................................................................................ 20
A. What causes climate change?............................................................................. 20
B. What are the effects of climate change? ................................................................ 21
2.2 How is the problem being addressed? .................................................................. 26
2.3 What is climate litigation? .................................................................................... 29
A. Lawsuits against governments...............................................................................31
1. Mitigation claims...............................................................................................31
2. Adaptation claims .......................................................................................... 32
3.Procedural claims............................................................................................ 33
B. Lawsuits against private entities........................................................................... 35
2.4 Why does climate litigation matter?....................................................................... 37

3
Human-rights based
climate litigation
3.1 What are human rights? ........................................................................................40
3.2 Why do human rights matter?................................................................................. 41
3.3 Why are we talking about human rights?................................................................ 42
3.4 What are the human rights obligations of governments? .......................................... 43
3.5 What is climate justice?....................................................................................... 44
3.6 Why is climate change a human rights crisis? ......................................................... 46
A. The right to life .............................................................................................. 46
B. The right to a clean and healthy environment ......................................................48
C. The rightto health ........................................................................................... 49
D. The right to water and sanitation ..................................................................... 50
E. The right to food ............................................................................................ 50
F. The right to property andhousing ........................................................................ 51
G. The right to work ............................................................................................ 51
H. The right to respect for private and family life .................................................... 52
I. The right to self-determination ........................................................................... 53
J. The rights of indigenous peoples ....................................................................... 54
K. The right to equality and non-discrimination....................................................... 55
L. The rights of children and future generations...................................................... 55
3.7 How can human rights litigation help? ................................................................... 57
What next?.................................................................................................................. 58

4
Developing a rightsbased climate case
4.1 Gathering the facts and evidence of the harm...........................................................60
A. Political consensus on climate science ................................................................61
B. Local climate change impacts .......................................................................... 63

C. Determining what your government’s target should be ......................................... 64
1. The “well below” 2°C Target........................................................................... 65
2. The 1.5°C Target........................................................................................... 66
3. The 1°C Target.............................................................................................68
4.2 Identifying a legally enforceable right.....................................................................70
A. National human rights protections.......................................................................71
B. Regional human rights treaties.......................................................................... 73
C. International human rights law ......................................................................... 75
4.3 Satisfying admissibility requirements..................................................................... 78
A. Standing......................................................................................................... 78
B. Separation of powers...................................................................................... 82
4.4 Proving a violation of your human rights.................................................................89
A. Showing that the government has a duty to protect the plaintiff.............................89
B. Proving that the government’s inaction has interfered with your human rights...........91
1. Precautionary Principle................................................................................. 93
2. Event attribution science............................................................................... 97
C. Establishing that the interference with your human rights cannot be justified....... 100
4.5 Getting a remedy.............................................................................................. 103
A. Declaratory judgements................................................................................. 104
B. Court orders.................................................................................................105
4.6 Questions to ask when developing a rights-based climate litigation......................... 106
4.7 Is your case solid and strategic? ......................................................................... 109

5Developing a rightsbased campaign
strategy
5.1 What kind of change do you want?......................................................................... 112
A. Identifying the change you want......................................................................... 114
B. Identifying the campaign scope and goals .......................................................... 116
C. Identifying your demand .................................................................................. 117

5.2 What type of support do you need? ...................................................................... 117
A. Legal support.................................................................................................. 117
B. Financial support............................................................................................. 119
C. Engagement support.....................................................................................120
5.3 How to work with communities.............................................................................121
5.4 Mitigating risk.................................................................................................. 122

6Conclusion

124

Executive Summary
The creation of a People’s Guide comesout of a need expressed by individuals
and communities all over the world
experiencing the harmful impacts ofclimate change. The People’s Guide
is a handy tool for those considering
whether to bring a human rights-based
case against their governments in theirfight for justice. The recommendation
is to use the Guide as a stepping-stone
for developing the human rights-based
aspect of your climate litigation case.
Due to differences in the laws of eachcountry, you should always consult withlocal experts.

© Shayne Robinson / Greenpeace

10

While there were detractors in the past,
climate change is no longer an issueof debate. It is accepted that the earth
is getting warmer at an alarming rate
and that this is causing irreparable
damage to the planet and human beings.
If leaders don’t act now by 2100 theworld as we know it today would beunrecognizable. Dire action is required,and climate litigation is one such action
which focuses on holding governments
and corporations accountable. Climate
justice presents ordinary people witha pathway to seeking the protection of
their human rights.

10 December 2018 Greenpeace Climate Justice and Liability Campaign

Executive Summary

The People’s Guide explores how to
all manner of retaliation and impact –develop a rights-based climate casehave a plan in place for the “what ifs”.
and a rights-based campaign strategy
Lastly but perhaps most importantly,
to accompany it. Both these steps
when bringing a case on behalf of ashould be conducted concurrently
community it is essential that you speak
versus one after the other. In terms ofwith the people, that their voices arebuilding a rights-based climate caseauthentically represented in the case.
on government inaction and/or harmful
Climate justice embodies peopleactions, there are four main steps to
powered and empowerment principles
take: gathering evidence of the harm,that should be evident especially in theidentifying a legally enforceable right,
way often marginalised communities areproving a violation of your human rights represented.
and securing a remedy. Each of thesesteps involves meticulous consideration As people are increasingly mobilisingand research. Moreover, you must satisfy and reclaiming their rights and the latest
the legal admissibility requirements
IPCC science sends an urgent call forof your country. An understanding ofaction, governments are put on noticeclimate science, a thorough knowledge
to act now or expect more human rights
of human rights law, and solid facts
climate litigation in the near future. We
are all crucial in building a successful
hope that the People’s Guide provides
case. In addition, insight into previous
you with the necessary informationand ongoing cases can inspire you as
needed when seeking climate justice.
well as inform you about the inherent
From detailing the use of climate
challenges.
science as a factual basis in developing
your arguments, to discussing how to
A key aspect of developing the campaign overcome common defenses, we hopeis to be clear on the change you want
this Guide can be a stepping-stone into achieve as a result of bringing thedeveloping a people-powered climatecase. This can be achieved both in thejustice strategy.
courtroom and in the court of public
opinion. Campaigning outside of thecourtroom is about seizing media andsocial-media attention, garnering public
support through creative activities
and events, all the while bringing more
and more awareness to your case andclimate change in general.
To be forewarned is to be forearmed so,
before launching your case, be clear
on what is needed including humanand financial resources. Be ready forwhatever may arise because of the case.
Standing up for justice can be met with
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10 December 2018 Greenpeace Climate Justice and Liability Campaign

Executive Summary

12

10 December 2018 Greenpeace Climate Justice and Liability Campaign

1 Introduction

1.1

What is the aimof this guide?

Greenpeace’s Climate Justice andLiability Campaign receives numerous
requests to assist in developing
people-powered climate cases. The
People’s Guide has been formulated
as a response to those requests.
This Guide builds on Greenpeace’s
experience and the leading efforts bymany others to provide some ideas forcommunity members, non-governmentalorganisations and public interest lawyers
on how to assess, build and implement
legal actions that address the impactsof climate change from a human rights
perspective. This Guide is just the startof a conversation and will evolve overtime.
This Guide aims to show how strategic,
people-powered, climate litigation canbeen successfully developed using
human rights law to hold governments
accountable for inadequate climate
mitigation.

1
Introduction

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

1 Introduction

The scientific consensus is clear: climatechange is an existential threat and we
can no longer delay taking action. We
are already living with the impacts, andthese are likely to worsen significantly.
Urgent and sustained action on a global
scale is now needed to ensure that
future generations have a livable planet.

1.2

As explained in more detail in section 2,
global warming is a direct result of anincrease in greenhouse gases (GHGs)
in the earth’s atmosphere. The current
emissions reduction commitmentsby countries deliver only a third of
the reduction in greenhouse gases
needed to meet the goal of keeping
the average global temperature rise to
1.5°C.1 According to the United Nations
Environment Program (UNEP), the world
is likely to face warming of around 3°C
by 2100.

Why do weneed to holdgovernments
accountable?

© Michael Nagle / Greenpeace

There is a short window of opportunity
to close the emissions gap, andgovernments must be held accountable
to honour their international
commitments and protect people’s
human rights by taking urgent andambitious action. Climate change
litigation is one way of doing this.
From city-dwellers to farmers, youth
to seniors, communities around theworld are part of a growing global
movement that is demanding climate
justice through human rights.2 Together,
the movement is demanding thatgovernments live up to their duty toprotect people from the climate crisis.
1

UNEP, “The Emissions Gap Report 2018”, online: <https://newclimate.org/2018/11/27/
emissions-gap-report-2018/> (Accessed 2018/11/27)

2
Jeremy Hodges, Lauren Leatherby and Kartikay Mehrotra, 24 May 2018, “Climate
Change Warriors’ Latest Weapon of Choice Is Litigation”, online: <https://www.bloomberg.
com/graphics/2018-climate-change-lawsuits/> (Accessed 2018/11/27)
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10 December 2018 Greenpeace Climate Justice and Liability Campaign

1 Introduction

The People’s Guide provides an overview
of what to consider when developing a
successful human rights-based climatecase. This guide is not prescriptive.
There is no “one size fits all” approachto suing governments for climate
protection. Specifically, this Guide
focuses on lawsuits that use humanrights and constitutional law to increase
government ambition to reduce GHGs.

1.3

What does thisguide cover?

15

This Guide does not address in detailother aspects of climate litigation,for example legal actions related toadaptation to climate change or cases
against private entities. It also does
not address the different proceduralways of using the law to fight forclimate protection. It does not reflect
the legal requirements specific to eachjurisdiction, nor does it address politicalcontext that is always relevant. The
climate litigation world is a fast-changing
arena, so please verify if the information
contained in this guide is still up-to-date.

10 December 2018 Greenpeace Climate Justice and Liability Campaign

1 Introduction

BUILDINGYOUR CASE ON
OTHER LEGALARGUMENTS(including constitutionallaw) arguments alone inclimate litigation.

It is rarely the case that
litigants can successfullyrefer to human rights

Climate change litigants
usually combine humanrights arguments withdifferent legal grounds,

such as judicial review
of a law or decision,
administrative law, tort
(non-contractual liability)/
harm principle law, andenvironmental law to namea few.

The People’s Guide,
however, does not coverother areas of law which
you should consider, butaims to provide a steppingstone in developing part of
the rights-based argumentsof your case.

Section 1(Introduction) sets out the aim of the Guide, what itcovers and to whom it is addressed.

Section 2(Climate litigation) sets out an overview of whatclimate change is, how can the law help address it
and what are the different types of climate litigation.

Section 3(Human rights-based climate litigation) sets out howhuman rights relate to climate change and what isclimate justice.

Section 4(Developing a rights-based climate case) contains
some steps in using human rights and environmental
law arguments in your climate case against theauthorities for inadequate climate action.
Section 5(Developing a rights-based campaign strategy)
explores how to identify and decide on launching ahuman rights climate case, as well as how to develop
a campaign strategy around it. The steps in sections
4 and 5 (developing a case and campaign strategy)
should be developed simultaneously.

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

1 Introduction

In developing your climate lawsuit, you
may also wish to refer to the following
guides and reports.

1.4

What otherguides can I
consult?

• Action for Justice, which provides
practical information and advice on how
to pursue a public interest litigationcase, has a chapter on climate litigation.
• Business and Human Rights Resource
Center, a research center which tracks
corporate accountability and has asection on climate justice, including areport on corporate legal accountability
for climate change.
• Climate Liability News, which tracks
news about climate change litigation.
• Climate Action Tracker, which quantifies
and evaluates climate change mitigationcommitments, and assesses whether
countries are on track to meeting those.
• Columbia Law School’s Sabin Center for
Climate Change, provides up-to-datenews on climate change cases aroundthe world on its blog, as well as a casechart for easy research.
• Environmental Law Alliance Worldwide(ELAW)’s litigation strategies andclimate litigation primer.
• London School of Economics andGrantham Research Institute on
Climate Change and the Environment’s
databases of climate change laws of theworld and climate litigation of the world.

17

10 December 2018 Greenpeace Climate Justice and Liability Campaign

1 Introduction• United Nations Environment
Programme and Columbia University,
Sabin Center for Climate Change Law’s
2017 report for global review of climate
litigation (also available in French,
Spanish and German).
• United Nations Climate Change
secretariat, United Nations
Environment Programme, and theCommonwealth Secretariat’s Law andClimate Change Toolkit, which is an
online and open database on existingclimate change-related laws andpolicies.

© Antolin Avezuela / Greenpeace

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

1 Introduction

19

10 December 2018 Greenpeace Climate Justice and Liability Campaign

1 Introduction

A. What causes
climate change?

2.1

What is the
problem?

Certain gases in the atmosphere, suchas carbon dioxide (CO2), methane,
nitrous oxide and chlorofluorocarbons(CFCs), create what’s called the“greenhouse effect”, trapping in heatradiating from Earth toward space.
These gases act as a thermal blanket
for the Earth, absorbing heat andwarming the surface to a life-supporting
temperature. Over the course of Earth’s
history, these global temperatures have,for natural reasons, risen and fallen.
However, there was a marked period
when scientists found that they could nolonger explain the warming or the speedwith which it was happening by naturalcauses, the human factor had to beconsidered.
While not the most potent greenhousegas (GHG), CO2 is by far the most emitted
by human activities. Specifically, over thelast century, the burning of fossil fuels,
such as coal, oil and gas, has released
GHGs into the atmosphere. More GHGs
in the atmosphere, especially more CO2,
means a more intense greenhouse effect(trapping of the heat), causing the earth
to warm.

2
Climate Litigation

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

While there are still some climate
deniers, at least 97% of scientists
globally agree that the earth’s
temperature is rising and humanactivity plays a central role — NASAhas compiled the studies to proveit.3 In the Fifth Assessment Report(AR5), the Intergovernmental Panelon Climate Change (IPCC), a group of
1,300 independent scientific experts
from countries all over the world under
the auspices of the United Nations,concluded that there’s a more than 95%
probability that human-produced GHGs,
such as CO2, methane and nitrous oxide,
have caused much of the observed
increase in Earth’s temperature over the
past 50 years.4
B. What are theeffects of climatechange?
The most compelling evidence scientists
have of climate change comes fromlong-term data relating to GHG levels
and temperature. Through careful study,
the effects of climate change on theenvironment have been observed.
3

NASA, “Scientific consensus: Earth’s climate is warming”, online: <https://climate.
nasa.gov/scientific-consensus/> (Accessed 2018/11/17)

4IPCC, 2014: 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 [Core Writing Team, R.K. Pachauri and L.A. Meyer (eds.)]. IPCC, Geneva, Switzerland,151© Les Stone / Greenpeace21

10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

The IPCC concludes that there is enoughevidence showing that the damages
resulting from climate change arelikely to be significant and to increaseover time. It also concludes that global
temperatures will continue to rise for
decades to come due to GHG producedby human activities.
Changes in global temperatures have
major impacts on our ecosystems andpose major threats to human life.

© Mannie Garcia / Greenpeace22

10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

Here are some ways climate change
could be affecting your community:• Temperature extremes, such asincreasingly frequent and severe
heatwaves;• changes in patterns of rainfall,leading to more floods, landslides anddroughts;• rise in sea levels, leading to flooding ofcoastal areas;• melting of permafrost, snow, ice

and glaciers, leading to flooding andrelease of GHGs; and• air pollution severely impacting thehealth of your family and community.
These effects have severe impacts onhuman life, including but not limited to:• Food and water shortages;• threats to physical health and survival;• loss of property and home; and• loss of way of life and cultural survival.

© Peter Caton / Greenpeace23

10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

While climate change is a global
problem, it’s important to note that its
impacts are local and vary, affectingsome regions and peoples much morethan others.5
5

IPCC: 1997. “The Regional Impacts of Climate Change: An Assessment of Vulnerability”, Summary for Policymakers, A special Report of IPCC Working Group II Published forthe Intergovernmental Panel on Climate Change

ClimateChangeandChildrenChildren are acutely
vulnerable to the impactsof climate change and face
increased and specific risks
compared to the wider
population for three main
reasons:
1. Childhood, especiallyfrom birth to the age offive, represents a uniquestage of physiologicaland mental development.

Children who experience
climate-induced changes
in their environment can beaffected by those impacts
with potentially lifelong
consequences.
2. Children make up oneof the largest groups
affected by climatechange, as many of thecountries identified as mostvulnerable to its impacts,
are also those in whichchildren tend to account fora large share of the overall
population. Zones mostat risk from disasters andclimate change impacts
frequently overlap withareas of high poverty,
further undermining theability of poor children tocope and take advantage
of opportunities.
3. Despite being least
responsible for the causesof climate change, it
is children and future
generations that will bear
the heaviest burden of thecurrent inadequate action
to tackle climate change,
since they will live longer
and face more profound,widespread and recurrent
crises as the impacts ofclimate change escalate
over time.
For more details on how
climate change affects therights of children, see here
and here.6
6

United Nations, Human Rights
Council, 37th Session, 24/01/2018, 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/HRC/37/58; UNICEF,
Amicus Curiae Brief submitted by UNICEF
to the Honourable Commission on Human
Rights of the Philippines, December 2017,
National Inquiry on the Impact of Climate
Change on the Human Rights of the Filipino People and the Responsibility therefore, ifany, of the “Carbon Majors”© Alanah Torralba / Greenpeace24

10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

Climate change amplifies existing
environmental, social, economic andpolitical challenges and increases therisk of displacement and competitionand conflict over resources. It
accelerates social injustices,
inequalities, and vulnerabilities andthreatens constitutional and humanrights, including the right to life itself.

© Matimtiman / Greenpeace25

10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

The good news is that affordable,scalable solutions are now available totransition to cleaner economies.
It is important to recognise that the
impact and scope of climate change
is global – emissions anywhere affectpeople locally everywhere. Such a global
issue requires solutions that need to becoordinated at the international level andimplemented at the national and local
level.

2.2

How is the problem
being addressed?

© Yann Arthus-Bertrand / Spectral Q

The United Nations Framework
Convention on Climate Change(UNFCCC) is the first global treaty
addressing climate change. It sets theglobal framework for negotiations on
climate-related matters and enjoys
near universal membership, with 197
parties.7 The UNFCCC is designed to bea framework convention, meaning one
whose commitments are general enoughto permit adjustments over the years
as scientific evidence, understanding
and political will evolves. The yearlynegotiations, called the Conference of
the Parties (COP), first started in 1994
and have resulted in the adoption ofnumerous decisions, including the Kyoto
Protocol and Paris Agreement.
The Kyoto Protocol, adopted in 1997,
is a treaty under the framework of the
UNFCCC that sets out legally binding
emissions reduction obligations forindustrialised countries (developed
countries).8 These countries must report
regularly on their climate change policies
and provide annual inventories of GHG
emissions since 1990.
7
United Nations Framework Convention on Climate Change, 1771 UNTS 107; Treaty
Doc No. 102-38; U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 IL 849 (1992) (“UNFCCC”)
8

Kyoto Protocol to the United Nations Framework Convention on Climate Change,
Dec. 10 1997, 37 I.L.M. 22 (1998) (entered into force Feb. 15, 2005) (“Kyoto Protocol”)

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

They are also required to report theiractions to address and adapt to climatechange.
The most recent agreement to combat
climate change is the landmark 2015
Paris Agreement, which for the firsttime brings almost all nations into acommon goal to undertake ambitious
efforts to combat and adapt to climatechange, with special support offered todeveloping countries.9
The Paris Agreement contains atransparency framework to build mutual
trust and confidence, while also sending
a powerful signal to markets that now
is the time to invest in the low emission
economy. The agreement will serve as
an important tool to mobilise finance,technological support and capacity
building for developing countries, as well
as scale up global efforts to address andminimise loss and damage from climatechange.
The Paris Agreement, requires all
countries to submit “nationallydetermined contributions” (NDCs),
which detail the country’s efforts to
reduce GHG emissions in a progressively
ambitious manner. To date, 179 countries
have ratified the Paris Agreement.

9

United Nations Framework Convention on Climate Change. (2015a). Paris Agreement – Decision 1/CP.21 – Report of the Conference of the Parties on its twenty-first session,
held in Paris from 30 November to 13 December 2015 Addendum Part two: Action taken by
the Conference of the Parties at its twenty-first session. Bonn (“Paris Agreement”)

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

The Paris
Agreement
is binding
The Paris Agreement is atreaty under internationallaw, therefore it is bindingon the countries that havesigned it (the “Parties”).
The Paris Agreement does
not replace but insteadbuilds upon the UNFCCC,
and it incorporates existing28

elements of the climate
regime.
The Paris Agreement
comprises a statementof purpose followed by
stipulations of the generalobligations all parties
must fulfill to achieve thepurpose. The rest of theagreement comprises ofarticles that elaborate on
this general obligation
making provisions undermore specific headings.
Few of the provisions of
the Paris Agreement are
detailed enough to create
precise obligations, which
gives some flexibility tostates to implement its
provisions.
In addition, the Paris
Agreement can only beapplied between one state
government and another;

10 December 2018 Greenpeace Climate Justice and Liability Campaign

the treaty does not confer
rights to individuals. Thismeans that, in arguing a
climate litigation case, only
citing the provisions of theParis Agreement will not
be sufficient; the argument
would need to be bolsteredby citing national humanrights, environmental rights
and civil liability provisions.

2 Climate Litigation

By climate litigation, we refer to lawsuits
in “which climate change and its
impacts are either a contributing or key
consideration in legal argumentation andadjudication”.10 Over the past decades,
climate litigation has boomed acrossthe world. A recent United Nations
Environment Program (UNEP) reportdetails that, as of March 2017, there weremore than 654 cases filed in the UnitedStates and, using a larger definitionof climate litigation11, over 230 cases
brought in other countries. Since thatdate, more cases have been filed at aphenomenal speed.12

2.3

What is climate
litigation?
10

Geetanjali Ganguly, Joana Setzer and Veerle Heyvaert, “If at First You Don’t Succeed:
Suing Corporations for Climate Change”, Oxford Journal of Legal Studies, (2018), at 3

11

United Nations Environment Program, The Status of Climate Change Litigation: A
Global Review (2017) at 10

12

For a database of both US and non-US cases, see the Climate Litigation Databasemaintained by the Sabin Center, online <‘http://climatecasechart.com/us-climate-change-litigation’> (Accessed 2018/11/01)

Strategic
Litigation
Climate change litigation
is much more than simply
bringing a case before
a judge. Because of thepotential ramifications of
29such litigation, climatechange cases are partof what is known as
strategic litigation or impact
litigation.
Strategic litigation involves
selecting and bringing acase to the court with thegoal of creating broader
changes in society. The
impact of a case goesbeyond the individual orgroup acting as claimant.
Strategic litigation is partof an overall advocacy

10 December 2018 Greenpeace Climate Justice and Liability Campaign

campaign designed to raiseawareness on an issue
or promote the rights ofa certain group of people
who are often not heard bygovernments.

2 Climate Litigation

So far, in the non-US jurisdictions, mostof the cases address climate change
as a relevant issue but not the focus of
the case.13 As stated by Ganguly, Setzerand Heyvaert of the London School of
Economics:“Strategic climate litigation, in
contrast, concerns cases initiatedto exert bottom-up pressure on
governments (‘strategic public
climate litigation’) or corporations(‘strategic private climate litigation’)to mitigate, adapt or compensate
for losses resulting from climatechange. Strategic climate litigation
cases are in the minority, but
receive considerable attention fromacademics, state and non-state
actors. Strategic public climate
litigation aims to influence public
policy or policy decisions with climatechange implications, primarily throughthe attainment of injunctive relief”.14
While this Guide focuses on humanrights-based strategic public climate
litigation targeted at governments
for their inadequate GHG reduction
policies, it is important to keep in mind
that there are many ways to use law tobring about climate justice. Below is a
non-exhaustive list of types of climate
lawsuits.

13

Geetanjali Ganguly, Joana Setzer and Veerle Heyvaert, “If at First You Don’t Succeed:
Suing Corporations for Climate Change”, Oxford Journal of Legal Studies, (2018), at 3 (Ganguly, Setzer and Heyvaert)

14
30

Ibid

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2 Climate Litigation

A. Lawsuits against
governments
1. Mitigation claims
Essentially this type of climate litigationcase involves asking for better mitigation
measures, often called measures for“climate protection”.
Mitigation claims, typically against
governments, refer to lawsuits forcing
governments to take bolder action to
reduce emissions, to stop or reduce
specific emissions or to support
non-GHG emitting alternatives, suchas renewable energy. The People’s
Guide focuses on human rights-based
mitigation claims (inadequate action on
GHG mitigation measures).

Urgenda / Chantal Bekker

Urgendav theNetherlands
In 2013, a Dutch
environmental group,
Urgenda Foundation,
together with 886
citizens sued the state ofNetherlands in a worldfirst victory of citizens
holding their government
accountable for climatechange.15 In 2015, the15

Urgenda Foundation v Kingdom of
the Netherlands, [2015] HAZA C/09/00456689(“2015 decision”)

31

District Court of the Hague
ruled that the Dutch
government must, by 2020,
have reduced emissions
from 1990 levels by 25%.
As governments do, they
appealed.
However, in October 2018,
the Hague Court of Appeal
confirmed this groundbreaking decision issued
in 2015, meaning thatthe Dutch government
must increase its climate
ambition and reduce
emissions to protect therights of its citizens.16

On 16 November 2018,the Dutch government
announced its intention toappeal the Hague Court ofAppeal’s judgment.17
Urgenda’s first victory in2015 was the first timeever that a country’s
government was held
accountable for its

contribution to dangerous
climate change. The factthat Urgenda won again on
appeal in 2018 reinforces
the statement thatcountries that don’t actively
prevent climate-related
harms are violating humanrights.

16

The state of the Netherlands v Urgenda Foundation, [2018] ECLI:NL:GHDHA:2018:2610 C/09/456689/ HA ZA 131396 (“2018 decision”)

_____
17

Urgenda, “16 November 2018 Dutch government fights obligations to act
on climate change”, online <https://www.
urgenda.nl/en/themas/climate-case/> (Accessed 2018/11/02)

10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

PeNa andothers v
Governmentof Colombia
Twenty-five young
people, with the supportof Dejusticia, sued theColombian government
for failing to honour its
commitment to tacklingclimate change. In ahistoric win in April 2018,
Colombia’s Supreme
Court of Justice found theColombian government
liable for not halting theincreasing deforestation of
the Amazon forest, thereby
increasing the averagetemperature in the country
and threatening the young

César A. Rodríguez for Dejusticia

people’s rights to life,
health, food, water and ahealthy environment.18
The Supreme Court gave
two main orders: to build
a short, medium and longterm action plan to stop
deforestation within fourmonths, and to create an
Intergenerational Pact for
the Life of the Colombian
Amazon within a five-month
period. For example, theCourt ordered the President
and the Ministries of18
Dejusticia: law, justice, society. “In
historic ruling, Colombian Court protects
youth suing the national government for
failing to curb deforestation” 5 April 2018,
online: <https://www.dejusticia.org/en/
en-fallo-historico-corte-suprema-concedetutela-de-cambio-climatico-y-generacionesfuturas/> (Accessed 2018/11/19)

Environment andAgriculture to propose apolicy plan aimed at totally
stopping, at some point in
the future, deforestationand emissions of GHGs.
The decision is also
ground-breaking because
it recognised that the
Amazon Basin is “asubject of rights”. The
Supreme Court arrived
at that decision by citinga 2016 decision from theColombian Constitutional
Court that assigned rights
to a river. This is the firstclimate case where a river
basin is recognised asa legitimate right-holder

whose interest can be
represented in a court oflaw.
Since the Supreme Court’s
landmark decision, there
are ongoing meetings todevelop the two plansbetween delegates from the
Ministries of Environment,
Agriculture and Transport,
the Amazon Mission,
the General Attorney’s
Office, the Police, the
SINCHI research institute,autonomous corporations,indigenous representatives
and Afro-descendants
came together.

2. Adaptation claims
Another type of climate change litigationcase involves forcing governments totake adaptation measures to protect
communities from the impacts of climatechange that are already occurring, forexample from life-threatening extreme
weather events. Such cases can also
be used to request ongoing adaptation
measures for projected climate impacts.
Examples of adaptation measures
include building flood defenses andraising the levels of dykes, choosing
tree species and forestry practices lessvulnerable to storms and fires, anddeveloping drought-tolerant crops.

32

10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

Leghari v
Republic ofPakistandamage to his livelihood.
A historic decision was
rendered in September
2015, focusing on the needA case was brought against for government action on
government authorities inclimate adaptation based
Pakistan by a local farmeron human rights andfor their failure to put inconstitutional protections.
place sufficient adaptation
The Court held thatmeasures and the resulting Pakistan had violated

citizens’ rights to life,
dignity and property andordered the government totake measures to minimise
the impacts of changing
weather patterns, including
presenting a list of climate
adaptation measures andto establish a Climate
Change Commission.

The Court’s innovative
approach requires ongoing
judicial supervision toensure resulting. 19
19

Leghari v Republic of Pakistan(2015) W.P. No. 25501/2015, online: <http://
climatecasechart.com/non-us-case/ashgar-leghari-v-federation-of-pakistan/> (Accessed 2018/11/19)

3.Procedural claims
While adaptation and mitigation claims
against governments address theclimate change policies intended toensure climate resilience (adaptation)or control GHG emissions (mitigation),procedural claims focus on procedural
requirements in the context of land
use and planning. A typical example insuch a context is a claim citing that a
proposed project should be cancelled
or reassessed because there was noadequate analysis of potential climatechange impacts in an environmental
impact assessment (EIA). Such litigation
could include access to information
claims that require a public entity todisclose information pertaining to
GHG mitigation or adaptation policies.
There is also the possibility of a claim
to invalidate a decision because of an
inadequate public participation process.
33

10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

Earthlife Africa
Johannesburg v Minister ofEnvironmental Affairs andOthersSouth Africa’s High Court invalidated a ministerial
decision to approve a new coal-fired power plant
because the environmental review did not include
34

the climate change impacts. Even if the requirement
to assess climate change impacts was not required
specifically in law, the High Court ruled that for several
reasons, including South Africa’s commitments under theParis Agreement, the environmental review should haveincluded a climate change impact assessment.20
20
Earthlife Africa Johannesburg v Minister of Environmental Affairs and others, Case
no. 65662/16 (2017)10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

B. Lawsuits against
private entities
Climate litigation can be brought against
corporations on issues such as harmful
activities by a corporation that result ina person’s human rights being violated,none or insufficient contributions fromthe corporation towards the economic
costs of adapting to climate change
and non-compliance with environmental
permits. Such cases can also simply
be based on complainants seeking theprevention of further harm brought on
from a corporation’s contribution toclimate change impacts.

© Grace Duran-Cabus / Greenpeace

Lliuya v RWE
What can you do whenthe melting of mountainglaciers is increasing
the risk of a glacial lakeflooding your village?
Sue the largest German
electricity producer.
In November 2015, Saúl
Luciano Lliuya, a Peruvian
35

farmer, filed a lawsuit in
a German court against
RWE. Lliuya claims that
RWE, having knowingly
contributed to climatechange by emitting
substantial volumes of
GHGs, has a measureof responsibility for themelting of mountainglaciers near his hometownof Huaraz. Because RWE

was only a contributor to
the emissions responsible
for climate change, Lliuya
asked the court to order
RWE to reimburse him fora portion of the costs toestablish flood protections.
After earlier dismissals, in
2017, a German appellate
court allowed the plaintiff
to proceed to the evidence
phase, which sends a

10 December 2018 Greenpeace Climate Justice and Liability Campaign

strong signal that individualcompanies could be held
accountable for climate
damage occurring in othercountries even if manyothers have contributed tothe harm.21
21

Lliuya v RWE AG, 2015 Case No.
2 O 285/15 Essen Regional Court, online:<https://germanwatch.org/en/huaraz> (Accessed 2018/11/19)

2 Climate Litigation

Scientists’ increasing ability to correlate
extreme weather events to climatechange, as well as attributing the amountof GHG emissions in the atmosphereto specific corporations, has resulted
in a growing number of individuals,
communities and local governments
holding corporations accountable (seeEvent attribution science).

Greenpeace
Southeast
Asia andothers v
CarbonMajorsThe Philippines
Commission on Human
Rights started hearing apetition seeking to holdthe “Carbon Majors”(the largest companies
producing crude oil,natural gas, coal andcement) accountable forcontributing to global
emissions of GHGs and theassociated consequencesof climate change.
This is the world’s firstnational human rights
investigation of its kind,brought by a coalition of 14
organisations, along with
Filipino farmers, fisherfolk,
human rights advocates,
typhoon survivors, artists
and concerned citizens.
The petition was triggeredby the devastating
aftermath of Super Typhoon
Haiyan, which wreaked
havoc in the Philippines
in 2013 and bolsteredby the recent ability ofscientists to attribute theemissions of individualcompanies to GHGs in theatmosphere. Community
leaders, indigenous
people, the head of anational association of
farmers and workers fromthe transport sector havegiven testimonies on thehardships they suffereddue, in part, to climatechange, while experts havegiven evidence on thescience of climate change,
its impacts and causes andthe responsibility of the
Carbon Majors.

The Commission is
expected to deliver its
decision in 2019. A positive
outcome for the petitioners
would be groundbreaking. Unlike lawsuits
seeking compensation fordamages, the investigation
is focused on preventing
further harm and could
result in recommendations
to policymakers andlegislators concerning
corporate responsibility forthe climate crisis.

© Vincent Go / Greenpeace

36

10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

Climate litigation matters because it
empowers people to bring about justicefor their families, communities, andall of humanity. Climate litigation raises
public awareness that climate change
poses a threat to the people’s rights
and those of future generations. It canfoster public discussion on the level ofambition (or lack thereof) of states inregulating climate change.

2.4

Why does climate
litigation matter?

Climate litigation matters because it
has the potential to give members of
the public the power to hold those
responsible accountable and to standup for a different future in creative andexperimental ways. It provides affected
people and communities a platform tomobilise and reclaim their human rights.
It also encourages the recognition thatgovernments and corporations can andmust take urgent actions to protect anduphold people’s rights. Climate litigation
matters because today’s generation is
the last generation that can take steps
to avoid the worst impacts of climatechange. Through legal mobilisation,
people and communities rise up andlead the way for upholding the moral andhistorical responsibilities towards future
generations.

© Kate Davison / Greenpeace

37

10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

Climate litigation could result in
individual protection of human rights,
as well as in the improvement ofclimate policy at the national andinternational levels. At the national level,
strategic climate cases could lead tothe implementation of more ambitious
targets for GHG reduction. At theinternational level, such cases could
collectively help in closing the ambition
gap between weak national climate
policies and the long-term goals of the
UNFCCC and the Paris Agreement.22

22

Cordelia Christiane Bähr, Ursula Brunner, Kristin Casper and Sandra H Lustig, “Klimaseniorinnen: lessons from the Swiss senior women’s case for future climate litigation”,
Journal of Human Rights and the Environment 9:2, September 2018, 194-221

38

10 December 2018 Greenpeace Climate Justice and Liability Campaign

2 Climate Litigation

10 December 2018 Greenpeace Climate Justice and Liability Campaign

39

10 December 2018 Greenpeace Climate Justice and Liability Campaign

3 Human-rights based climate litigation

Human rights are universal entitlementsthat allow all people to live with dignity,
freedom, equality, justice and peace.
Human rights belong to all people
equally, regardless of status andidentity and regardless of race, color,
sex, language, religion, political orother opinion, national or social origin,property, birth or any other identity
markers in society.

3.1

Every person has these rights because
they are human beings. Human rights
may not be taken away or transferred.
The rights are interconnected, and thefulfillment or violation of one right might
affect the fulfillment of other rights aswell.23

What arehuman rights?

23

However, whether you can have your human rights enforced in your claim depends
on the facts of your case and the legal test you need to pass. See section 4.

10 December 2018 Greenpeace Climate Justice and Liability Campaign

3© Steven Lyon / Greenpeace

Human-rights
based climate
litigation40

10 December 2018 Greenpeace Climate Justice and Liability Campaign

3 Human-rights based climate litigation

3.2

Human rights are essential to thefull development of individuals andcommunities. They cover basic needs
for survival such as food, clean water,
shelter, health care, a clean and healthy
environment and education. They also
cover social and cultural issues relating
to participation in the workplace, social
security, family life and cultural life.
Human rights express the entitlement of
all people to be treated equally and tolive their lives in safety, freedom and beprotected by their governments.

Why do humanrights matter?

10 December 2018 Greenpeace Climate Justice and Liability Campaign© Greenpeace / Steve Morgan

41

10 December 2018 Greenpeace Climate Justice and Liability Campaign

3 Human-rights based climate litigation

A clean, healthy and functional
environment is a precondition to theenjoyment of human rights such as theright to life, health, food and an adequate
standard of living. Climate change
has already begun to adversely affectwildlife and the natural resources that
support access to clean water, food,and other basic human needs. When you
combine these impacts with the direct
harm to people, property, and physicalinfrastructure, climate change posesa serious threat to the enjoyment andexercise of human rights.

3.3

Why are wetalking abouthuman rights?

10 December 2018 Greenpeace Climate Justice and Liability Campaign

Basic humanrightstreaties• International Convention
on the Elimination of
Racial Discrimination(ICERD)• International Covenant
on Civil and Political
Rights (ICCPR)• International Covenant
on Economic, Social
and Cultural Rights(ICESCR) (plus theILO Fundamental
Conventions)• Convention on
42

•
•
•
•
•

the Elimination ofDiscrimination against
Women (CEDAW)Convention against
Torture (CAT)Convention on the Rightsof the Child (CRC)
International Convention
on the Rights of MigrantWorkers (ICRMW)
Convention on the
Rights of Persons with
Disabilities (CRPD)International Convention
on Protection from
Enforced Disappearance(CPED)

10 December 2018 Greenpeace Climate Justice and Liability Campaign

Europe• European Convention on
Human Rights (ECHR)• European Social Charter• European Convention
for the Prevention of
Torture and Inhuman or
Degrading Treatment or
Punishment

Americas• American Declaration on
the Rights and Duties ofMan• American Convention on
Human Rights (ACHR)

Africa• African Charter on
Human and Peoples’
Rights (ACHPR, Banjul
Charter)

3 Human-rights based climate litigation

When a national government signs andratifies a human rights treaty, it agrees torespect, protect and fulfill those humanrights.
Obligation to respect:

1. Governments must not take actions

3.4

interfering (i.e. negatively impacting) withyour human rights.
For example, governments must not pollute
rivers people drink from. This would violate
the obligation to respect the right to cleanwater.

Obligation to protect:

What are thehuman rights
obligations ofgovernments?

2. Governments must take action toprevent third parties (e.g. corporations,individuals) from interfering with humanrights.
For example, governments must adopt
and enforce laws regulating corporations,ensure they are held accountable and thata remedy
when
they interfere
10people
December 2018receive
Greenpeace Climate
Justice and Liability
Campaign
with your human rights.
Obligation to fulfilL:

3. Governments must take action tofacilitate and provide for the enjoymentof human rights.
For example, governments must pass laws,
develop policies, fund public services andeducate people about their rights.
Governments owe these obligations topeople inside and outside the country’s
borders (these are called extraterritorial
obligations). 24

24

Where the country has control or influence over their rights (for example by permitting emissions that affect others) or is able to cooperate with and assist other governments tofulfil rights

43

10 December 2018 Greenpeace Climate Justice and Liability Campaign

3 Human-rights based climate litigation

Climate justice links human rights anddevelopment to achieve a humancentred approach, safeguarding therights of the most vulnerable andsharing the burdens and benefits ofclimate change and its resolution
equitably and fairly.25

3.5

What is climate
justice?

Mary Robinson Foundation - Climate
Justice
Climate justice is the fulfillment of
human rights in the face of climatechange, particularly for those underrepresented in politics, who havecontributed the least to the problem but
are disproportionately suffering from its
harms. Through climate justice, people
are reclaiming power and becoming
participants in climate action. They must
be the primary beneficiaries of climate
action, and they have the right to access
10 December 2018 Greenpeace Climate Justice and Liability Campaign
effective remedies.

25

Mary Robinson Foundation: Climate Justice, “Principles of Climate Justice”, online:
https://www.mrfcj.org/principles-of-climate-justice/ (Accessed 2018/11/19)© Vicki DaSilva / Greenpeace

44

10 December 2018 Greenpeace Climate Justice and Liability Campaign

3 Human-rights based climate litigation

To achieve climate justice, governmentand corporate action must be consistent
with existing human rights agreements,
obligations, standards and principles.
More specifically, under human rights
law, states have positive, affirmative
obligations to take effective measures
to prevent and redress the impactsof climate change, and therefore, tomitigate climate change. States mustalso ensure that all human beings havethe necessary capacity to adapt to theclimate crisis.
Climate crisis is a human rights crisis,and so the human rights framework
must be part of the solution. Without
significant reductions of GHG emissions,the threats to our human rights will only
increase.
10 December 2018 Greenpeace Climate Justice and Liability Campaign

45

10 December 2018 Greenpeace Climate Justice and Liability Campaign

3 Human-rights based climate litigation

Climate change has a profound impact
on a wide variety of human rights. Below
is a list of the human rights that are mostdirectly threatened by climate change.

3.6

Why is climatechange a humanrights crisis?

A. The right to life 26				
Climate change clearly poses a threat tohuman life due to the higher incidenceof mortality associated with extreme
weather events, increased heat,drought, disease, etc. According to
the World Health Organization (WHO),
climate change is expected to cause
approximately 250,000 additional
deaths per year between 2030 and
2050 due to increases in malnutrition,
malaria, dengue, diarrhea, and heatstress alone.27 Climate change canalso affect mortality in other waysthat are more difficult to quantify, forexample by undermining livelihoods and
10 December 2018 Greenpeace Climate Justice and Liability Campaign
displacing people from their homes,
or exacerbating violent conflict overresource scarcity.

26

Article 3, Universal Declaration of Human Rights (1948) Article 6 International Covenant on Civil and Political Rights (1966); Article 6 Convention on the Rights of the Child; Similar provisions can be found in Art. 2 European Convention for the Protection of Human Rights
and Fundamental Freedoms (1950) (‘ECHR’), Art. 4 American Convention on Human Rights(1969) (‘ACHR’), Art. 4 African Charter on Human and Peoples’ Rights (1981) (‘AChHPR’). As acornerstone of international human rights law, the right to life is not only guaranteed by treaty
law provisions, but also part of customary international law.

27

World Health Organization, Quantitative risk assessment of the effects of climatechange on selected causes of death, 2030s and 2050s, 2014, online: <http://www.who.int/
globalchange/publications/quantitative-risk-assessment/en/> (Accessed 2018/11/12)

46

10 December 2018 Greenpeace Climate Justice and Liability Campaign

3 Human-rights based climate litigation

10 December 2018 Greenpeace Climate Justice and Liability Campaign© Matimtiman / Greenpeace

Right to life
in a changing
climateDavid R. Boyd, the UN
Special Rapporteur on
Human Rights and theEnvironment, issued astatement on the humanrights obligations related
to climate change, with aparticular focus on the rightto life, for a climate casein Ireland (Friends of the
Irish Environment CLG v.
The Government of Ireland,
47

Ireland and the Attorney
General).28 The statement isworth reading and can help
you when developing yourargumentation:“There is no doubt thatclimate change is alreadyviolating the right to life
and other human28David R. Boyd, UN Special Rapporteur on Human Rights and Environment,
October 25, 2018, Statement on the humanrights obligations related to climate change,
with a particular focus on the right to life,
online: <https://www.ohchr.org/en/Issues/environment/SRenvironment/Pages/SRenvironmentIndex.aspx> (Accessed 2018/11/28)

10 December 2018 Greenpeace Climate Justice and Liability Campaign

rights today. In the
future, these violations
will expand in termsof geographic scope,
severity, and the numberof people affected unlesseffective measures
are implemented in
the short term to
reduce greenhouse gas
emissions and protect
natural carbon sinks.
The Government of
Ireland has clear,
positive, and enforceable

obligations to protect
against the infringementof human rights by
climate change. It must
reduce emissions as
rapidly as possible,
applying the maximum
available resources.
This conclusion follows
from the nature of
Ireland’s obligations
under international
human rights law
and international
environmental law.”

3 Human-rights based climate litigation

b. The right to aclean and healthy
environment 28
The right to a clean and healthy
environment has increasingly become
recognised as an independent humanright by national constitutions and laws.
However, it has not yet been recognised
globally. Climate polluting activities suchas fossil fuel extraction and expansionof GHG emitting infrastructures impact
directly on the right to a clean andhealthy environment.
28

For example, Article 24 of the African Charter of Human Rights. Many national constitutions protect the right to a healthy environment, and many national or regional humanrights instruments have interpreted other human rights as including the right to a healthy
environment. Globally, there is a growing push for the UN to recognise the right to a healthy
environment.

10 December 2018 Greenpeace Climate Justice and Liability Campaign© Kemal Jufri / Greenpeace48

10 December 2018 Greenpeace Climate Justice and Liability Campaign

3 Human-rights based climate litigation

© Matimtiman / Greenpeace

10 December 2018 Greenpeace Climate Justice and Liability Campaign

c. The rightto health 29
Climate change can impact healththrough increases in the incidenceof heat-related respiratory andcardiovascular diseases caused byextreme weather events and natural
disasters and nutrition deficits linked tofood shortages and loss of livelihoods.
There is also evidence of an increase invector-borne diseases linked to climatechange.
29

The right to health can be found directly in some national human rights instruments
and if often referred to as the right to an adequate standard of living (Article 25, UDHR), oras the right to the highest attainable standard of physical and mental health (Article 12, International Covenant on Economic, Social and Cultural Rights (1966) “IESCR”). Regionally, it
can be found in Article 11 of Protocol of San Salvador to the Inter-American Convention on
Human Rights, in Article 11 of the European Social Charter and Article 35 of the Charter ofFundamental Rights of the European Union and Article 16 of the African Charter on Human
Rights and People’s Rights.

49

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3 Human-rights based climate litigation

© Kevin Sawyer / Greenpeace

D. The right to waterand sanitation 30
According to IPCC projections, climatechange will significantly reduce surface
water and groundwater resources,
as well as increase the frequency ofdroughts in presently dry areas. This canlead to competition over water supplies
for human consumption, agriculture, andother uses. In addition, extreme weather
events often affect water and sanitation
infrastructure and flooding can leave
10 December 2018 Greenpeace Climate Justice and Liability Campaign
behind contaminated water, contributing
to the spread of waterborne diseases.

© Pat Roque / Greenpeace

E. The right to food 31
The right to food can be impacted byclimate change. For example, changes
in temperature and precipitation may
affect crop production of rice, wheat
and maize. It may also affect fisheryproductivity due to fish migrating tocooler and deeper waters in response
to warming ocean temperatures. In thelong-term, there could be severe impacts
on global food security.
30

Several national constitutions protect the right to water or outline the general responsibility of the State to ensure access to safe drinking water and sanitation for all. Internationally, the human right to safe drinking water was first recognized by the UN General Assembly
and the Human Rights Council as part of binding international law in 2010. The human right tosanitation was explicitly recognized as a distinct right by the UN General Assembly in 2015.

31

Often referred to as the right to adequate food, the right to food is part of the right toan adequate standard of living under Article 11 of the IESCR. It is also part of many optional
protocols to international and regional treaties, as well as in Article 24 of the International
Convention on the Right of the Child (one of the most widely ratified treaty globally).

50

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3 Human-rights based climate litigation

F. The right toproperty andhousing 32
Rising sea levels, flooding, forest fires
and other climate-related harms willarbitrarily deprive many individuals of
their housing and other property.
G. The right to work 33
Increased global warming may deprive
individuals such as farmers andfisherfolk of their livelihoods.

32© Alanah Torralba / Greenpeace

Usually recognised as two separate rights. The right to housing is part of the right toan adequate standard of living, (Article 11(1) of the ICESCR). The right to property is one of
the most controversial human rights, recognised in the UDHR (Article 17) but not in the ICESCR. Regionally, the right to property is recognised in the African Charter (Article 14), in theAmerican Convention on Human Rights (Article 21) and as the right to peaceful enjoyment of
possessions in Article 1 of Protocol I to the ECHR.

33

The right to work is enshrined in the UDHR and recognised in international humanrights law through its inclusion in Article 6 of the ICESCR.
10 December 2018 Greenpeace Climate Justice and Liability Campaign© Christian Åslund / Greenpeace

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3 Human-rights based climate litigation

The German
climate case
In October 2018, three
German families andGreenpeace Germany
filed a climate lawsuit
against the German federal
government for violating
their constitutional rights
to life and health, property
and occupational freedom,by failing to take measures
to meet Germany’scommitment to reducegreenhouse gas emissions
as set out in the 2020

The plaintiffs are seeking
climate protection, notmonetary compensation.
The plaintiff families each
They argue that theabandonment of the 2020
run organic farms in thetarget is an impermissible
so called “Altes Land”
near Hamburg, on the
encroachment on their rightisland of Pellworm, and into life and health, right tooccupational freedom and
Brandenburg. They havealready been affectedright to property under theGerman constitution. The
by the impacts of global
warming as their crops
plaintiffs also claim thatthe federal government’s
have been damaged bypests previously unknown
failure to meet this 2020in their regions and extreme target is in contravention
weather events.
of Germany’s minimum
obligation to reduce GHG
climate protection target
and under European law.

emissions for the periodof 2013 to 2020 under
the legally-binding EU
Effort Sharing Decision(406/2009/EC).
“Whether hail storms,
drought or new pests, theimpacts of global warming
threaten our livelihood. As
the federal government is
not acting to protect theclimate, we demand ourrights before the court”,
says Johannes Blohm, oneof the plaintiffs in the case.

H. The right torespect for privateand family life 34
10 December 2018 Greenpeace Climate Justice and Liability Campaign

The right to private life requires respect
for one’s home and its surrounding
environment. Extreme weather events
caused by climate change threaten theenjoyment of this right, either by directly
impacting personal property or a moreindirect impact, such as a change in land
value due to flooding.

© Karlos Manlupig / Greenpeace

34
52

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Article 8, European Convention on Human Rights

3 Human-rights based climate litigation

I. The right to selfdetermination 35
The right to self-determination is theright of peoples to choose their own
political, social, economic and culturaldevelopment. Climate change threatens
the existence and traditional livelihoodsof whole nations. For example, rising
sea levels have resulted in a threat to thephysical and cultural survival of various
Pacific island nations.

35

ICCPR Art. 1, ICESCR Art. 1

10 December 2018 Greenpeace Climate Justice and Liability Campaign© Pedro Armestre / Greenpeace

53

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3 Human-rights based climate litigation

J. The rights ofIndigenous Peoples 36
States also have unique obligations
with respect to Indigenous Peoples.
Such groups often live in ecosystems
which are particularly sensitive tochanges in the environment making
them especially vulnerable to climatechange. This threat could potentially
undermine the right to self-determination
for Indigenous Peoples (see above) as
well as the rights outlined in the UN
Declaration on the Rights of Indigenous
Peoples. The declaration puts forwardthat states must obtain free, prior andinformed consent before undertaking
any measures that would adversely
affect the traditional lands and resourcesof Indigenous Peoples. It also requires
states to provide redress measures inthe event that land or property is taken
10 December 2018 Greenpeace Climate Justice and Liability Campaign
without their consent.
36

Often recognised in national constitutions, also part of the UN Declaration on the
Rights of Indigenous Peoples. In the Inter-American and African systems, rather than a separate right per se, the other human rights (for example the right to property) are applied with a
special consideration to Indigenous Peoples.

© Ian Willms / Greenpeace54

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3 Human-rights based climate litigation

K. The right toequality and nondiscrimination© Noel Guevara / Greenpeace

As stated by the IPCC, “people whoare socially, economically, politically,
institutionally or otherwise marginalized
are especially vulnerable to climatechange.”37 The heightened impact ofclimate change on certain people is a
product of both heightened exposure toclimate change impacts as well as limited
capacity to adapt to those impacts. For
example, women, children and people
with disabilities, are affected to a greater
extent because they have been denied
sufficient resources to adapt to these
impacts.
l. The rights ofchildren and future
generations
While the rights of children are protectedinternationally by the Convention on Child
Rights, the rights of future generations(in the sense of generations yet unborn)are not formally recognised in majorinternational human rights instruments.
However, many national constitutions
have captured this right explicitly, often
within the right to a healthy environment.
For example, in a recent Advisory
Opinion, the Inter-American Court of
Human Rights (IACtHR) acknowledgedthat the right to a healthy environment is
an individual and a collective right statingthat “in its collective dimension, the rightto a healthy environment constitutes
a universal interest, which is owed topresent as well as future generations.”38

10 December 2018 Greenpeace Climate Justice and Liability Campaign© Alyson Aliano / Greenpeace

37

IPCC, 2014: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Summaries, Frequently Asked Questions, and Cross-Chapter Boxes. A Contribution of Working
Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change,
at page 6, online: https://www.ipcc.ch/pdf/assessment-report/ar5/wg2/WGIIAR5-IntegrationBrochure_FINAL.pdf (Accessed 2018/10/22)

38

Solicitada por la República de Colombia, Medio Ambiente y Derechos Humanos,
Opinión Consultiva OC-23/17 Inter-Am. Ct. H.R., at para 55 (translated)

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3 Human-rights based climate litigation

Youthstanding
up for theplanetAround the world, fromthe US to Uganda, young
people are taking theirgovernment to court toprotect their rights from
suffering from the impactsof climate change.
In the United States,
Our Children’s Trust is
advocating on behalfof youth and future
generations for legallybinding, science-based
climate policies.
Amongst the legal cases
they are involved in, oneof the most famous onesis Juliana v United States.
Back in 2015, 21 young
people and a climate
scientist, as guardian for
future generations, sued
the US federal government
and president for violating
their constitutional rights
to life, liberty and equal
protection as well as their
public trust rights to vitalnatural resources. After
repeated attempts by
the Obama and Trumpadministrations to havetheir claims rejected, theUnited States Supreme
Court denied the Trumpadministration’s application
for stay on 2 November
2018. However, in thedays following, theDepartment of Justice
filed a motion for stay with
the U.S. District Court
for the District of Oregon
and an application forstay and another petition
for a writ of mandamus
with the Ninth Circuit
Court of Appeals. On 8
November 2018, the Ninth
Circuit Court of Appeals
partially granted the Trumpadministration’s motion fora temporary stay of District
Court proceedings. Trial
preparations continue. This
landmark case is rapidly
developing, so please be
sure to visit Our Children’s
Trust website for the latest.
In Uganda, young people
and a local environmental

NGO, Greenwatch,launched a case in 2012
against the government
for violating their right toa healthy environment
because of the inadequate
climate change mitigationplans and failure to protect
Ugandan children from theadverse impacts of climatechange.
Portuguese children havebegun crowdfunding tosupport a lawsuit against
47 governments in theEuropean Court of Human
Rights, while other young
people have launchedlawsuits in India, Pakistan,Japan, Norway andColombia.

10 December 2018 Greenpeace Climate Justice and Liability Campaign

Robin Loznak/Our Children's Trust

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3 Human-rights based climate litigation

3.7

How can humanrights litigation
help?

© Will Rose / Greenpeace

While seminal and important, the
UNFCCC and the Paris Agreement
do not give the right for individuals
and communities to bring claims
against governments.39 Even thoughmost nations have signed the Paris
Agreement, almost all countries are
failing to reduce their GHG emissions inline with climate science and as requiredby their international commitments.
Such a situation, especially considering
the mounting impacts of climatechange, calls for a means to hold thesegovernments to account.
Climate justice looks to other laws
and bodies as a way to challengecountries’ climate policies. In instances
when governments have not taken
the necessary actions as per theirinternational commitments or actions
contrary to these commitments,
10 December 2018 Greenpeace Climate Justice and Liability Campaign
communities affected by climate change
have used litigation to hold governments
accountable. Human rights litigationin particular has been identified as animportant way for affected communities
and individuals to challenge theirgovernment’s climate policies in nationaland regional courts, as well as in otherbodies such as national human rights
institutions.
Human rights litigation is only one
way government climate policy canbe challenged. Other types of climate
litigation that can be used in conjunction
with human rights arguments include
environmental law, administrative law
and civil liability.

39
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10 December 2018 Greenpeace Climate Justice and Liability Campaign

Some inter-State procedures exist under Article 14 of the UNFCCC.

3 Human-rights based climate litigation

What next?

©Greenpeace

If you think that your government is notdoing enough on mitigation to protect
your human rights from the impact ofclimate change, then consider taking
steps to see whether you could use
the law to protect your human rights.
The steps proposed are elaborated in
section 4 (Developing a rights-based
climate case) and section 5 (Developing
a rights-based campaign strategy)of the People’s Guide. It’s important
to note that these two steps are notconsecutive but rather should be worked
on simultaneously.
If you are considering launching a humanrights-based case this section can help
you. The list below is not a recipe, andthis Guide is not a cookbook. Whilethe information presents some general
10 December 2018 Greenpeace Climate Justice and Liability Campaign
factors to consider, consulting with local
lawyers and experts cannot be omitted.

Swiss Senior Women for
Climate Protection v Swiss
Federal Government(Klimaseniorinnen)
A group of senior Swiss women are using human rights
and constitutional law to challenge their government’s
inadequate climate policies. Climate change is affecting
their human rights through severe heat waves whichhave profound impacts on their life, health and wellbeing. They are arguing that their government’s failure to
reduce Switzerland’s GHG emissions violates their rights

to life and to private and family life, which are protectedin the Swiss constitution and the European Conventionof Human Rights. They are asking Swiss courts to order
the government to increase their GHG emission reduction
target, implement existing commitments, and takeadditional action to prevent climate change in line with theParis Agreement.41
41
Cordelia Christiane Bähr, Ursula Brunner, Kristin Casper and Sandra H Lustig,“Klimaseniorinnen: lessons from the Swiss senior women’s case for future climate litigation”,
Journal of Human Rights and the Environment 9:2, September 2018, 194-221© Flurin Bertschinger / Greenpeace

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3 Human-rights based climate litigation

59

10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate caseSuch experts will be able to advise on
the specific procedural and substantive
legal considerations as well as thepolitical situation in your country.

4.1

Gathering thefacts and evidenceof the harm

As a reminder, the steps below apply tobringing a lawsuit against government
authorities for their inadequate climate
policies infringing the plaintiffs’ humanrights. Finally, this section should be
followed in conjunction with section 5(Developing a rights-based campaign
strategy).
Evidence is key to all successful
litigation. If you want to bring climate
litigation, make sure you have gathered
enough scientific evidence to proveto a court how climate change affects
your rights and how your government’s
failures contribute to the problem.

4
Developing arights-based
climate case60

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4 Developing a rights-based climate case

A. Political consensus
on climate science
Climate science provides important
evidence to build your case. Climatechange, its causes and its impacts havebeen proven and are almost universally
accepted by climate scientists aroundthe world. The most reliable and easily
acceptable sources are the IPCC reports
because they have been endorsed bygovernments. In addition, courts haverelied on IPCC reports in several cases.

IPCC Reports

While it doesn’t do its own
research, it does conduct
scientific assessments ofexisting published science.
Significantly, its findings
provide the basis for all
the major international
agreements on climatechange.

The IPCC, which stands
for the Intergovernmental
Panel on Climate Change,
is an international body forassessing climate science.
Hundreds of leadingclimate scientists take partin, and 195 representativesof countries are members
The IPCC’s “assessmentof the IPCC, giving its
reports” outline thefindings exceptional weight.

occurrence, causes andimpacts of climate change.
The reports also outline
the amount countries
need to reduce their GHG
emissions by to prevent
dangerous climate change.
The IPCC’s reports
represent the scientificconsensus on
climate change. And

because countries aregradually adopting therecommendations of the
IPCCs reports, theseassessments also represent
the political consensus on
climate change science.
For these reasons, they
offer a great starting point
in gathering evidence
on which to base yourlitigation.

© Jung Taekyong / Greenpeace61

10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate caseIn addition to the IPCC reports, other
UN bodies, NGOs and associationsof climate scientists produce reports
detailing climate change impacts andtheir links to government policy, forexample:• UNEP• Climate Action Tracker• The World Meteorological Association• The Union of Concerned Scientists• The Climate Vulnerable Forum• The World Health Organization

Climatechange isundisputed

is in fact happening andthat the impacts are alreadybeing felt. Courts generally
accept the scientific
One important factor
consensus surrounding
to consider in climate
climate change. However,litigation: there is nosince there is no global
dispute that climate change scientific consensus on

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

the local climate change
impacts that people areexperiencing, you may
need to bring the scientificevidence to prove this andshow how climate change
is or will impact on yourhuman rights.

To build evidence, consider
partnering with local
scientists, universities,
scientific and climate
research centers, as wellas using your government’s
own data on climate
impacts.

4 Developing a rights-based climate caseB. Local climatechange impacts
A significant part of your argument
will likely include evidence of the local
climate change impacts. In addition to
global climate science, climate scientists
and even government agencies in yourcountry should have specific evidence
on the impacts of climate change
locally. Such evidence is crucial andwill be helpful in connecting globalchanges in the climate to impacts in yourcommunity. In addition, it could help
determine who should bring the case(young people, farmers, environmental
NGOs, trade unions, teachers, doctors,etc). For more information, see thesection on Event attribution science.

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate
case© Tim Aubry / Greenpeace

C. Determining what
your government’s
target should be
Although there is global agreementon the need for mitigation to prevent
dangerous climate change, there is no
single standard which determines by
how much countries must reduce their
GHG emissions. However, in the 2015
Paris Agreement, each country gave anationally determined commitment to
reduce or limit GHG emissions.
Industrialised countries have historicallyemitted and continue to emit adisproportionate amount of GHGs, andso it was determined that they ought tohave higher reduction targets compared
to developing countries (denoted in
the Paris Agreement as “common
but differentiated responsibility andrespective capabilities”).

© Michael Nagle / Greenpeace

There is nosafe levelof warming
It is important to rememberthat there is no “safe” levelof warming. Currently,
64with warming of “just”
1°C above pre-industrial
levels, 2018 has seen
record-breaking heatwaves,wildfires raging fromthe Arctic Circle to theMediterranean and the

10 December 2018 Greenpeace Climate Justice and Liability Campaign

US West Coast, reportsof permafrost abruptly
thawing and ancientbaobab trees suddenly
dying. The fact of the Great
Barrier Reef collapsing andAntarctic melt tripling in justfive years adds to provide
alarming and painful
reminders of just how far
into the danger zone wehave already plunged.

4 Developing a rights-based climate case

GHG reduction targets continue
to evolve as climate science andinternational agreements develop. Below
are the main standards against whichyour government’s climate policies canbe reviewed against:		
1. The “well below” 2°C
Ta r g e t
The IPCC 4th Assessment Report (AR4)(2007) established that an average
global temperature increase of above
2°C poses a risk of uncontrollable,
dangerous and irreversible climatechange.41 To have a fighting chance at
keeping the temperature rise below 2°C,
industrialised countries must reduce
their emissions by at least 25-40% below
1990 levels by 2020, and by at least 50%
by 2030.
In 2010, at the Cancun climate summit(Conference of the Parties or “COP”),
the parties to the UNFCCC established areview process to evaluate whether the
2°C was adequate to avoid dangerous
climate change.42 The review process
focused on the differences in impacts
between 1.5°C and 2°C warming above
pre-industrial levels. The final report,
published in 2015, concluded that a
warming of 2°C cannot be consideredsafe and that 1.5°C is closer to being asafe “guardrail”.43

41

IPCC AR4 (2007) Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change Core Writing Team, Pachauri, R.K. and Reisinger, A. (Eds.) IPCC, Geneva, Switzerland, online: <http://www.ipcc.ch/publications_and_data/ar4/syr/en/contents.html> (Accessed 2018/10/03)

42

After the IPCC AR4, vulnerable countries at the UNFCCC Copenhagen Conference(COP15) in 2009 were calling for warming to be limited to below 1.5 °C relative to pre-industrial levels. Although COP15 is regarded as a failure, the countries did agree to the goal ofholding the increase in warming below 2 °C. The countries also agreed to review the “below
2 °C” long-term goal with a view to strengthening it and addressing the 1.5 °C limit called forby vulnerable countries.

43

UNFCCC (SBSTA, SBI), Report on the structured expert dialogue on the 2013-2015
review FCCC/SB/2015/INF.1

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4 Developing a rights-based climate case

The new understanding has beenreflected in the goal of the 2015 Paris
Agreement, which commits to limiting
the global average temperature rise towell-below 2°C while pursuing efforts tolimit the temperature rise to 1.5°C.
2 . T h e 1 . 5 ° C Ta r g e t
When it came time to develop a new
climate agreement, there were enoughcountries at the 2015 COP21 Paris
meeting that were in support of the
inclusion of the mention of a 1.5°C limit
as a long-term temperature goal. As
part of the text of the Paris Agreement
and as a way forward, the UNFCCC“invited” the IPCC to provide a special
report to be delivered in 2018 on theimpacts of global warming of 1.5°C
above pre-industrial levels, along withways the world could feasibly keep thetemperature from rising further. Below
are significant points with regards to the
IPCC 1.5°C Special Report.

© Martin Romain / Greenpeace• One of the most important conclusionsof the report was that 2°C is much
more dangerous than initiallyconsidered at the time that the Paris
Agreement was signed (based on theFifth Assessment Report “AR5”).
• The Special Report highlights theimportance of ensuring that yourclimate lawsuits should always bebased on the best science available atthe time of filing.
• The 2018 IPCC 1.5°C Special Report iscurrently a reasonable starting point
especially because it was endorsed by
all member states.44
44

While the IPCC does not take a positon on what would be a “safe level” of warming,
courts have relied on IPCC reports in the past.

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate case• The 2018 IPCC 1.5°C Special Reportis based on four scenarios (pathways)
for limiting temperature rise to 1.5°C
above pre-industrial levels.45
1. The P1 pathway assumes thatsocial, business and technologicalinnovations will result in lower
energy demand by 2050, whileliving standards will rise, especiallyin the global South. A downsizedenergy system enables rapid
decarbonisation of energy supply.
The P2 pathway follows a similar
model but includes the proposalof using negative emissions
technology. Simply put, negativeemissions mean reducing theamount of carbon by capturing it,
extracting it from the environmentand storing it in a safe place.
This involves using bio-energy
with carbon capture and storage(BECCs) which entails burning
plant matter, or biomass, forenergy and then collecting the CO2
emissions and pumping the gases
underground. This is one type oftechnology in the family of negativeemissions technologies (NETs), also
known as carbon dioxide removal.
The P3 pathway relies on a larger
quantity of BECCs in comparison to
the P2 pathway and the P4 pathway
relies on it the most.

2. However, NETs carry significant
risk for communities and thenatural world, risks that are notfully understood yet. Deploymentof BECCs in the P2, P3 and P4
scenarios would involve massive
increase in intensive productionof monoculture crops or tree
plantations, leading to greaterloss of natural habitats andbiodiversity, threatening Indigenous
Peoples, small farmers and local
communities, squeezing land
needed for food production andincreasing water competition.
In addition, looking to NETs as asole solution carries the danger ofbelieving that emission reductions
are not urgent.

© Martin Romain / Greenpeace

45
Carbon Brief, 8 October 2018. “In-depth Q&A: The IPCC’s special report on climatechange at 1.5C”, available at https://www.carbonbrief.org/in-depth-qa-ipccs-special-reporton-climate-change-at-one-point-five-c (Accessed 2018/11/19)
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4 Developing a rights-based climate case

IPCC 1.5
SpecialReportWe are now 1°C above
pre-industrial levels. If
temperatures continue toincrease at the current rate,
a 1.5°C warming will be
exceeded between 2030
and 2052. This 0.5°C rise
will increase widespread
impacts, risks and losses.
A 1.5°C rise above preindustrial levels could beenough to destabilise ice
sheets, kill up to 90% of
warm water corals, cause
severe problems to marine
life, the Arctic and ofcourse human beings.

2°C would reduce any
further risks and impacts
substantially, regarding
weather extremes, species
loss, water scarcity, foodshortages, heat-related
deaths, ocean impacts,
etc. Even if countries
comply with the Nationally
Determined Contributions(NDCs), that is the climate
targets committed to underthe 2015 Paris Agreement,
we are still heading for
an increase of well above
3°C. It would lead to about
double the emissions of
where we ought to be by2030 and by 2100 theworld as we know it would
be unrecognisable.

Importantly, limiting thetemperature increase
to 1.5°C instead of

To get below 1.5°C without
relying on NETs, global
CO2 emissions would need

to be halved by 2030 andreach net zero by midcentury at the latest, with
substantial reductions inother gases. The faster wecut emissions the greater
the reduction in warming
and related risks and costs
What does it mean forgovernment obligations?
States have positive
obligations to prevent
foreseeable violations ofhuman rights. The IPCC
report outlines the very
foreseeable risks of aworld that is not alignedwith 1.5C. The failure ofstates to take measures toprevent climate changerelated harms can therefore
be qualified as a violationof affected human rights.
As such, governments

are put “on notice” that
their climate and energy
laws and policies are notaligned with the latest IPCC
science, which exposes
them to climate lawsuits.
Conclusions containedin the special report
expressed as being ‘likely’or ‘very likely’, could be
relied upon as fact (for the
purposes of satisfying thecivil standard of proof) incourt proceedings.
Indeed, governmental’
failure to act and alignpolicies with IPCC reports
they themselves haveendorsed (at the very least),
reinforces the importanceof judicial bodies in theprotection of human rights.

3 . T h e 1 ° C Ta r g e t
While the latest IPCC science (2018)shows the necessity for a 1.5°C limit, it
has been convincingly argued that thebest available climate science demands
that a target of limiting temperature
increases to 1°C is required to avoid
dangerous climate change.
Our Children’s Trust has presented
scientific evidence to UN bodies andcourts supporting the 1°C limit.
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4 Developing a rights-based climate case

1o C/350 ppm Target
Our Children’s Trust convincingly argues that government
climate and energy policies must be based on a target of
350 ppm atmospheric CO2 and 1°C by 2100 to protect
young people and future generations, instead of the
1.5°C or “well-below” 2°C targets.
They point to the numerous scientific bases, including
by renowned expert Dr. James Hansen, as evidence
that the best available climate science sets 350 ppm by
2100 as the uppermost safe limit for atmospheric CO2
concentrations. There are three main reasons explaining
why a 1°C/350 ppm target is considered by somelitigants to be the best available science:

1. “Restoring CO2 concentration to below 350 ppm
would restore the energy balance of the earth andallow as much heat to escape into space as Earthretains, which has kept our planet in the sweet spot forhumans and other species to thrive (...);
2. CO2 levels exceeding 350 ppm are creating a warmer
planet than humans have ever lived in and are
disrupting the physical and biological systems in whichhuman civilisation has developed (...);
3. 30% of the increased CO2 levels is absorbed by theoceans. Marine animals, including coral reefs, cannot
tolerate the acidifying and warming of our ocean
waters that results from this increase. At 400 ppm
CO2, coral reefs and shellfish are rapidly declining andwill be irreversibly compromised if we do not quickly
reverse course.(...).”47
47

Our Children’s Trust, “The Science”, online: <https://www.ourchildrenstrust.org/
the-science/?rq=target> (Accessed 2018/10/03); In addition, there has been recognition in
IPCC SR1.5 that coral reef decline has outpaced previous IPCC projections, which lends
support to the 350 ppm target for coral reefs.

© Christian Åslund / Greenpeace© Sirachai Arunrugstichai / Greenpeace69

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4 Developing a rights-based climate case

4.2

Having gathered (or identified) theevidenced needed, you must also think
about identifying a legally enforceable
right. Legally enforceable rights are legal
rights that can be enforced in court.
Although human rights are universal (inprinciple), this does not mean that every
human right can be enforced in every
court, in every country. Some humanrights may not (yet) be recognised aslegally enforceable in your country. This
will determine which right or rights you
can base your case on.
To enforce human rights throughlitigation, you must:

Identifying a legally
enforceable right© Edward Beskow / Greenpeace

1. Find the human right(s) that is affectedby your government’s inaction or
insufficient action on mitigating climatechange, whether it is codified in a
written statute or recognised in court
decisions; and2. This right must be enforceable in acourt that you can access, i.e. you
must satisfy the local rules for standing
and jurisdiction (see section 4.3
Satisfying admissibility requirements
below). These two requirements areconnected. The legal source of yourhuman rights will determine where you
can go to enforce your rights.
Laws protecting your human rights
can be found at national, regional andinternational levels.

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4 Developing a rights-based climate case

A. National humanrights protections
While human rights are recognised ininternational and regional human rights
law (see below), they are primarily
enforced in national courts as well as
implemented in national laws. When it
comes to enforcing your human rights
through litigation, national courts are thefirst place to start. In most cases in frontof international human rights bodies, you
first have to show that you have tried
to obtain a remedy from national courts(“exhaustion of remedies”).
The legal source for such litigation willoften be found in national law as well.
• National constitutions often containprotections for human rights.
National courts can generally enforce
constitutional rights, overruling law
and policy which violates human rights
and/or ordering the government totake certain action to protect humanrights.

© Christian Åslund / Greenpeace71

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4 Developing a rights-based climate case

1. In the Klimaseniorinnen case, theconstitutional right to life is one of
the rights being used to challenge
Switzerland’s inadequate climate
policies.
2. In India (In re Court on its own
motion v State of Himachal Pradesh
and others), courts have usedthe constitutional right to a clean
environment to order the government
to take measures to protect against
climate change.
3. In Norway (Greenpeace Nordic
Association and Nature & Youth v
Ministry of Petroleum and Energy),
licenses for exploratory drilling for oil
and gas in the Barents Sea are being
challenged in court on the grounds
that they violate the constitutionalright to a clean and healthy
environment.

• National courts are responsible forprotecting the rights recognised innational human rights legislation.
Their powers under such legislation
can range from making human rightscompatible interpretations, issuingdeclarations of incompatibility oroverruling conflicting law and policy.
• National courts can also expand
human rights or recognise certain
rights that are not codified in thehuman rights legislation.47
National human rights protections arealso influenced by international humanrights laws. This influences how national
courts apply national human rights laws
and can also be applied directly in somecountries (see below). Even if your caseis in national court, it is good practice toalso mention or base your arguments on
international law.
47

For example, in Friends of the Irish Environment v Fingal County Council, the Irish
High Court recognised an implicit constitutional right to a healthy environment: Friends of the
Irish Environment v Fingal County Council (2017) No 201 JR.

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4 Developing a rights-based climate case

B. Regional humanrights treaties

local authorities sit on the claim and donothing, or move too slowly, the claim
could also be moved onward based on
the failure of the local authorities to act.

In certain parts of the world, regional
human rights treaties protect the humanrights of people in countries within a
Key examples of regional human rights
region. These regional human rights
treaties include:
treaties are supervised by regional• The European Convention on Human
human rights decision-making bodies
Rights (ECHR). The ECHR is an(and sometimes a human rights
international treaty to protect humancommission, as shown by the examples
rights and political freedoms. Key
above), which can hear individual humanrights relating to climate changerights complaints.
litigation include the right to life, right
Before you can access regional courts, in to respect for private and family life,
and the right to property. In the same
most circumstances you must have firstvein and working in tandem, thebrought your claim before your national
European Social Charter protects thecourts (referred to as the “exhaustion
rights to health and housing.
of local remedies”).48 However, if the48
An interesting exception to this rule is the ECOWAS Community Court of Justicewhich individuals in West Africa can directly petition. In an environmental context, this wasused in SERAP v Nigeria to enforce the right to a healthy environment (similar facts to SERAC
v Nigeria)

Marangopoulos Foundationv Greece
The European Committee on Social Rights (a regional
human rights body that oversees the protection of certain
economic and social rights in most of Europe) recognisedthat the right to health contained a right to a healthy73

10 December 2018 Greenpeace Climate Justice and Liability Campaign

environment. In 2007, the Committee found in favour of the
Marangopoulos Foundation and put forward a requirement
for Greece to reduce its GHG emissions in line with the
UNFCCC and the Kyoto Protocol.50
50European Committee on Social Rights, Decision on the merits: Marangopoulos Foundation for Human Rights (MFHR) v. Greece, Collective Complaint No. 30/2005, 06/12/2006

4 Developing a rights-based climate case© Bernd Roemmelt / Greenpeace• The American Convention of Human
Rights (ACHR). The ACHR covers 23
countries in the Americas. Key rights
for climate change litigation in the
ACHR include the right to life, rights tophysical integrity and security and rightto property.

The Right to a Clean and
Healthy Environment in theInter-American System

Climate Change Cases in theInter-American System

Inuit communities threatened by climate change have
Building on the rights recognised in the ACHR, the Interbrought a case before the Inter-American Commission on
American Court of Human Rights has recently recognised Human Rights (e.g. Inuit Circumpolar Conference Case).52
a right to a clean and healthy environment.51 This could
While none of these have been successful, their occurrence
be used as a basis for climate litigation in the Intershows the possibility of bringing climate litigation in theAmerican system.
Inter-American system. The recent recognition of the rightto a clean and healthy environment could strengthen futurecases.
52

Inter-American Commission on Human Rights, Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Causedby Acts And Omissions Of The United States (2006), online: <http://climatecasechart.com/

51
Solicitada por la República de Colombia, Medio Ambiente y Derechos Humanos,
Opinión Consultiva OC-23/17 Inter-Am. Ct. H.R74

10 December 2018 Greenpeace Climate Justice and Liability Campaign

non-us-case/petition-to-the-inter-american-commission-on-human-rights-seekingrelief-from-violations-resulting-from-global-warming-caused-by-acts-and-omissions-of-the-united-states/> (Accessed 2018/11/01)

4 Developing a rights-based climate case• The African Charter on Human andPeople’s Rights (ACHPR). The ACHPR
covers 53 countries in Africa. Key rights
for climate change litigation include theright to life, right to property, right tohealth, right to dispose of your wealthand natural resources, right to social andeconomic development and the right toa satisfactory environment. The African
Commission on Human and People’s
Rights has also recognised rights to foodand housing.
It’s important to note that in somecountries covered by regional humanrights treaties, national courts are often
able to enforce those rights directly or,at a minimum, must interpret nationallaws in accordance with regional humanrights treaties. For example, in Urgenda v
Netherlands, the Hague Court of Appeal
stated that the ECHR rights are directly
applicable and have precedence overDutch national laws that contradict them.
C. International
human rights law
Almost all countries have human rights
obligations through treaties they have
ratified. These treaties and agreements
between states together make up a system
of international human rights law (IHRL).
The International Covenant on Civil andPolitical Rights and the International
Covenant on Economic, Social andCultural Rights are examples of widely
ratified treaties and they both containa wide range of human rights that are
affected by climate change (see section
3.4 What are the human rights obligationsof governments? above for a list of theobligations governments undertake when
they ratify these treaties.).
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4 Developing a rights-based climate caseWhile the ratifications are significant forclimate justice (explained further below),
there is no global court to enforce thesetreaties, and they often cannot be directly
enforced in national courts. Instead,countries must incorporate international
human rights standards in national laws,
and it is the national laws which can be
enforced in national courts.
This notwithstanding, IHRL can be used inhuman rights and climate litigation in thefollowing ways:
1. In some countries, IHRL has “direct
effect”, meaning that it can be directly
enforced in national courts.
• For example, in Nepal, international humanrights treaties have been enforced directly.
2. In many countries, courts must interpretnational laws so that they comply with
IHRL.
• For example, in South Africa, courts must
interpret national law consistently with IHRL
when possible. Even where this duty does
not exist, IHRL can influence national courts
in how they apply national laws.
3. Some countries have joined “optional
protocols” to international human rights
treaties which allows people to filehuman rights complaints against theirgovernments at UN “treaty bodies”.
These bodies are not courts but candeliver non-binding decisions on whether
your government has violated its humanrights obligations and make orders as
to how they should protect your humanrights. These findings can be used tosupport your national proceeding.52

52

In Spain for example, the Supreme Court affirmed in July 2018 that the views expressed by UN Human Rights Treaty Bodies, in this case the Committee on the Elimination ofDiscrimination Against Women (CEDAW), in individual complaints are binding on the state andthat the state must comply with the decision of the Committee.

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4 Developing a rights-based climate case

4. At several of these human rights treaty
bodies (for example the Committee
on the Elimination of Discrimination
against Women and the Committee on
Economic, Social and Cultural Rights),
governments must regularly report on
their obligations. The bodies may issue
official observations in which they urge
individual governments to reduce GHG
emissions.
• For example the Committee on
Economic, Social and Cultural Rights
recently concluded that Argentina should
reconsider large-scale exploitationof non-conventional fossil in order tosafeguard its obligations under the
ICESCR and its commitments in the Paris
Agreement.53© Monica Løvdahl / Greenpeace

Even in cases where IHRL is not the
primary legal source in your case, including
it can strengthen the argument thatyour government’s inadequate climate
policies violate your human rights. It
could ultimately influence how national
courts apply national human rights laws.
In addition, citing IHRL in the case will
provide an international benchmark
and give general guidance to the court.
It is also a good idea to include thesearguments so that in the event where
domestic remedies are exhausted, you will
be ready to take the case to international
bodies (which include regional ones).
The next step after identifying a legally
enforceable right(s) that has been
threatened by climate change and an
appropriate court to bring your case, is tomake sure that your case is admissible.

53

Naciones Unidas, Consejo Economico y Social, E/C.12/ARG/CO/4, 1 November
2018 at paras 13-15

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4 Developing a rights-based climate case

Before you can argue the substance ofyour case (i.e. that your government’s
inadequate climate policies violate its
human rights obligations), the court must
consider whether it is able to hear yourcase. To establish this, your case must
be admissible.

4.3

While specific admissibility requirements
depend on the relevant court and laws,
there are some general requirements,
listed below, that must be met to bringhuman rights-based climate litigation.

Satisfying
admissibility
requirements

A. StandingStanding refers to the right to bring acase before a court. If a court finds thatyou do not have standing, it will reject
your case without considering yourarguments.
In some countries, general claims can bebrought in the public interest (sometimes
called “actio popularis”) without any
further requirements. In other countries,
claims can also be brought on behalf offuture generations or on behalf of theenvironment itself. It’s worth checking
to see if your legal system allows suchclaims.

© Roy Lagarde / Greenpeace78

10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate caseFor human rights litigation, traditionallyIf you can prove that your rights are
only persons who are directly or specially already being affected by climatechange and these are linked to youraffected by alleged human rights
violations will have standing to bringgovernment’s actions, you may be able
claims before a court. Following on from to satisfy the legal requirement. For
this, in some countries, the law might
example, if you are living in an area
which is particularly affected by forest
require you to show that the impactsof climate change have affected (or willfires or droughts which can be linked toaffect) you in a way which differentiates climate change, you could argue you areyou from other persons in your country. directly affected by your government’s
inadequate climate policies.

Youngplaintiffs’
standing in
the Juliana
case
In the Juliana case (USA),a court rejected thegovernment’s defense thatclimate change broadly
affects the entire planet(and all people on it) insome way and therefore
the young people had
no standing. The court
decided that it did not

matter how many persons
have been injured byclimate change so longas “the party bringing
suit shows that the action
injures him in a concreteand personal way”. For
example, one of the young

plaintiffs explained how thedry conditions caused byforest fires aggravates her
asthma.

Robin Loznak/Our Children's Trust.

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate caseIn many national and regional systems,
people suffering from potential humanrights violations also have standing.
This includes people who can produce
reasonable and convincing evidenceof the likelihood that a violation will
occur and directly affect them. Even if itcannot be shown that you are currently
being directly affected by climatechange, credible future threats could be
sufficient.
The likelihood of you having standing
increases if you are especially vulnerable
to the effects of climate change, as it
will be easier to show the alleged humanrights violation. Here are some concrete
examples:• The Swiss Klimaseniorinnen caseis being brought by senior women.
Older women in Switzerland areespecially vulnerab le to heat waves
linked to climate change as they areless capable of adapting to extreme
temperatures and suffer the greatest
health impairments. Therefore, there isa strong case that they are especiallyvulnerable to Switzerland’s inadequate
climate policies.
• Indigenous groups, such as theSaami people (further below), whose
livelihoods are threatened by global
temperature rises and the meltingof ice can claim to be especiallyvulnerable to the effects of climatechange.
Some jurisdictions allow nongovernmental organisations to bring aclaim on behalf of a group of individuals
based on human rights law.

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4 Developing a rights-based climate caseat a faster rate in polar
regions. Over the past 50
years, there has been an
increase in the frequency
and intensity of winterThe Saami people are thewarming events in northern
indigenous people of the
Scandinavia. Projections
northern parts of Sweden,show that this warming will
Norway, Finland and thecontinue at greater rates
Kola Peninsula of Russia.
than the global average. As
Their traditional way of living a result, the natural habitatand culture is centeredof the reindeer is greatly
around reindeer husbandry.
impacted (for example
Climate change is happening decrease in food source
ClimateChangeThreatens
Culturesand increase in disease due
to parasites breeding in theheat).

change are felt in the entire
Saami community, affecting
mental health, language,
handicrafts, fishing andWhile not all Saami people
hunting. Sáminuorra is partare reindeer herders,of the coalition of families
reindeer are integral to thein Europe, Fiji and Kenya
lives and culture of all Saami. (supported by Climate
For the Sáminuorra, an
Action Network Europe)organisation of Saami youth taking the European Union
in Sweden, the fate of theto court for its inadequate
reindeer is directly linked toclimate policies (People’s
the future of the Saami. The climate case).
consequences of climate© Matti Snellman / Greenpeace81

10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate caseB. Separationof powers

When bringing your case, you must
consider the separation of powers
model and prove that the case does not
In addition to standing requirements,
contravene the intent behind this model.
it is often argued that courts do not
You should consult with your lawyer, as
have authority to hear climate change
some countries have specific legal tests
cases because such cases raise
to meet, while in others such arguments
political questions that should be left
are presented more generally. Someto the legislative and executive arms ofjurisdictions, like the United States
government. The degree to which a case and other common law countries, haveshould or should not be heard is legallydeveloped complex legal tests to see
referred to as “justiciability”, and relates whether the dispute brought in front ofto the principle known as separation of
the court should be decided by judges,
powers, which prevents a concentration or whether it is a “political question”.
of power and ensures checks andHowever, even in countries where therebalances.
is no clear legal test, judges are required
to think about their role and whether
This type of argument is particularly
their decision should better be taken
required in lawsuits against government by elected members of the legislative
authorities for their failure to act
or executive branches of government.
sufficiently to mitigate climate change
Regardless, precedent has shown thatand for orders requesting governments
courts have the authority to decide legal
to enact more ambitious policies, as
questions (e.g. violation of human rights),
such scenarios could be seen to traverse even if those decisions might have
between legal and political terrain.
political consequences.

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4 Developing a rights-based climate case© Megan Phillips / Greenpeace

While the judiciary (courts) has the role
to review the constitutionality of theactions and policies of the executive andlegislative branches of government (thisis called “judicial review”), judges give ameasure of discretion to the government.
For example, government authorities
have some discretion in determining
the appropriate levels of environmental
protection, considering the need tobalance the goal of preventing allenvironmental harm with other social
goals. In addition, governments havediscretion in determining how they
achieve such levels of protection.
This discretion is sometimes called the“margin of appreciation” (for instancein Europe), or reasonableness ordifferentiation. No matter the name,these are open-ended, vague and83

10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate case

abstract concepts which governmentdefendants often argue to have climate
lawsuits dismissed. Nonetheless, thestate has no discretion regarding thequestion of fulfilling its legal obligation
in meeting the “well below” 2°C/1.5°C
target, at a minimum; its discretionis limited to selecting the specificmeasures with which it wants to achieve
this mandatory target.
While the question of separation of
powers and discretion of the state aresome of the most common reasons fora climate lawsuit to be dismissed, many
courts around the world have looked atthese issues and decided that they could
review the government’s inaction on
climate change.

also held that the government retained
discretion on how to achieve the
Court’s reduction order, specifically thegovernment could decide which policies
to implement to achieve the prescribed
reduction in GHG emissions by 2020.
The Hague Court of Appeal confirmed
the first decision in its 2018 judgment.
The Court of Appeal stated that theNetherlands was violating human rights
because of its insufficient climate
mitigation target, therefore the argumentthat the case was violating separation of
powers was rejected.
Incidentally, the Court acknowledges
that, especially in our industrialised
society, measures to reduce CO2
emissions are drastic and require
financial and other sacrifices but
there is also much at stake: the risk ofirreversible changes to the worldwide
ecosystems and liveability of ourplanet. The State argues that for thisreason the system of the separationof powers should not be interferedwith, because it is not up to the courts
but to the democratically legitimised
government as the appropriate
body to make the attendant policy
choices. This argument is rejectedin this case, also because the Stateviolates human rights, which calls
for the provision of measures, whileat the same time the order to reduce
emissions gives the State sufficientroom to decide how it can comply
with the order.54

Significantly, in the Urgenda case in
the Netherlands, both the first instancejudgment and the judgment by theHague Court of Appeal accepted thatissuing a decision on the case was not
violating the separation of powers. The
first instance court was aware that it
might be perceived as overstepping
the competences of the judiciary andexplained that the Dutch constitution
does not provide for a strict separationof powers, but a system of checks andbalances on how the other branchesof government perform their duties
and functions. The Court accepted
the petitioners’ distinction between apolitical decision and a legal decision
with political consequences. The Court
54

The Netherlands v Urgenda, 2018 Hague Court of Appeal at para 67, online: <https://
uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2018:2610&showbutton=true&keyword=urgenda>

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4 Developing a rights-based climate caseIn Thomson v New Zealand, the High
Court of New Zealand rejected thegovernment’s argument that climate
policy was a political question. The
judgment had a long discussion
regarding the authority of courts toreview climate change policy, including
looking at cases decided in othercountries. The judge stated that courts
should not consider climate policy a“no go area” simply because the state
has entered international obligations,because the problem is a global one
or because of the complexity of thescience.

© Marty Melville / Greenpeace

Thompson v
New Zealand
In 2015 in New Zealand,
Sarah Thompson, at thetime a law student, filed
a lawsuit against New
Zealand’s Minister of Climate
Change issues. She claimed
that that the minister had
85

failed to set GHG emissions
reduction targets as required
under the Climate Change
Response Act.
The High Court of New
Zealand heard the case andit found that climate changepresents significant risks
and government actions on
climate change are subject

10 December 2018 Greenpeace Climate Justice and Liability Campaign

to judicial scrutiny. The
Court also found that theformer Minister for Climate
Change acted unlawfully byfailing to review the country’s
climate change targets
after the United Nations
Intergovernmental Panelon Climate Change (IPCC)
published an updated reporton climate science.
The Court didn’t issue anorder against the recently
elected government
because the new Prime
Minister, Jacinda Ardern,
had committed the country
to zero carbon by 2050.

4 Developing a rights-based climate case

The court also stated that the “IPCC
reports provide a factual basis onwhich decisions can be made”.55 (Seeparagraphs 101-134 of the decision.)In the landmark Juliana lawsuit in the
United States, the young plaintiffs areasking the courts to order the federal
government to implement a plan to put
the nation on a trajectory (that if adhered
to by other major emitters) would reduce
atmospheric CO2 concentration to no
more than 350 ppm by 2100. In responseto the government’s claim that this
posed justiciability issues, the Court
stated:[10] (…) As a result, I give special
consideration to the argument that
granting plaintiffs’ requested relief
would usurp the Executive Branch’s
foreign relations authority. Climatechange policy has global implications
and so is sometimes the subject ofinternational agreements. But unlike
the decisions to go to war, takeaction to keep a particular foreign
leader in power, or give aid to anothercountry, climate change policy is notinherently, or even primarily, a foreign
policy decision. ... See Baker 369
U.S. at 211 (“[I]t is error to supposethat every case or controversy
which touches foreign relations
lies beyond judicial cognizance.”)(…) First, intervenors contend the
Court cannot set a permissible
emissions level without making ad
hoc policy determinations about how
to weigh competing economic andenvironmental concerns. But plaintiffs
do not ask this Court to pinpoint the“best” emissions level; they ask this55
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10 December 2018 Greenpeace Climate Justice and Liability Campaign

Thomson v Minister for Climate Change Issues, [2017] NZHC 733, [133]

4 Developing a rights-based climate case

Court to determine what emissions
level would be sufficient to redress
their injuries. That question can be
answered without any considerationof competing interests … The science
may well be complex, but logisticaldifficulties are immaterial to thepolitical question analysis(…)F.3d at
552, 555 (“[T]he crux of th[e politicalquestion] injury is … not whether thecase is unmanageable in the sense ofbeing large, complicated or otherwise
difficult to tackle from a logisticalstandpoint,” but rather whether “alegal framework exists by which
courts can evaluate … claims in areasoned manner.”)56
Courts in other countries have also
dismissed these arguments andreviewed government action on climatechange where it concerns human rights,
including in Colombia (Dejusticia) and
Ireland (Fingal).

56

Juliana v United States No 6:15-CV-1517-TC (DC Or, 8 April 2016), upheld on review
in Juliana v United States 217 F Supp 3d 1224 (DC Or, 10 November 2016).

Can the court able to review the case.
review yourOne way to deal with thiscase?
is to force a decision. For
example, you could formally
In many countries,
request your government
procedural law can create
authority to issue a ruling
an obstacle for plaintiffs.
to refrain from the alleged
Especially in challenges
unlawful act. Such an action
to government inaction or
should force a decision
to a specific law or policy,(the government agrees orprocedural law might
disagrees) and thus (in therequire that there be ancase of a refusal) provide
administrative decision in
you with a case you canorder for the court to be87

10 December 2018 Greenpeace Climate Justice and Liability Campaign

take on to the courts. This
was the strategy employedin the Klimaseniorinnen
case, where for example,
where the lower court’s
decision was on theadministrative law issue of
whether the government
should have issued a rulingon the matter. Despite thescientific evidence, the court
ruled that that women over
75 years old are not more

impacted by the effects
of climate change thanother population groups
in Switzerland, therefore
denying the senior women
access to justice. As of 10
December 2018, the Senior
Women are considering
appealing. In preparation,
be sure to consult withlawyers with knowledge ofthe administrative law in yourjurisdiction.

4 Developing a rights-based climate case

The role of courts in ensuring climate
justice and respect of human rights was
also highlighted in the UN Committee on
Economic, Social and Cultural Rights’comment on the IPCC’s 1.5C report:

8. The Committee welcomes
this development. Human rights
mechanisms have an essential
role to play in protecting humanrights by ensuring that States
avoid taking measures that could
accelerate climate change, andthat they dedicate the maximum
available resources to the adoption of
measures that could mitigate climatechange. (…). (our emphasis)57

7. In some countries, courts andother human rights mechanisms,
including national human rights
institutions, have taken an active role When arguing your lawsuit, you could
refer to these foreign decisions and toin ensuring that States comply with
their recognition that simply because
their duties under existing humanrights instruments to combat climate there is an international climate
framework in place, or that climatechange. In particular, courts havepolicy is a complicated matter, does not
accepted to hear claims filed bymean that courts may not review to see if
victims of climate change or by nonthere is a human rights violation. You cangovernmental organisations, andalso craft your demand of legal remedy
ordered States to adopt action plans
reasonably tailored to the urgent need with this in mind, for example by asking
to mitigate climate change, and where
57
Committee on Economic, Social and Cultural Rights, 8 October 2018. “Climate change
necessary, to adapt to its impacts
and the International Covenant on Economic, Social and Cultural Rights” at paras 7-8, online:https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23691&Lanwhich cannot be avoided.
gID=E (Accessed 2018/11/17)

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4 Developing a rights-based climate casefor a general court order of setting
reductions by a certain amount, leaving
the task of how to achieve the reduction
to the discretion of the government.

4.4

Proving aviolation of yourhuman rights

Once your case is deemed admissible(a judge can hear and decide on theissue), the court will decide whether there
has been a breach of the government’s
obligations and eventually a violationof your rights. Be prepared with strong
arguments, based on human rights,
environmental law and climate science(as well as the relevant legal arguments,
such as administrative, constitutionalor civil liability laws) to show that yourgovernment’s inadequate climate policies
are in contradiction with their humanrights obligations.
Proving a human rights violation
depends on: (1) what legal system
you are in, (2) what human rights yourcomplaint concerns and (3) what humanrights obligations you are arguing yourgovernment has violated. However,across different national and regional
systems, you will likely go throughthe following steps to prove that yourgovernment has violated its human rights
obligations by failing to reduce its GHG
emissions.
A. Showing that the
government has aduty to protect theplaintiff
In cases where you ask for theenforcement of a positive obligation (arequest to provide protection), you haveto establish that the government has aduty to protect the plaintiff(s).
To do that, you must demonstrate what
the government should be doing in termsof GHG emissions reductions, based on

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate casethe target you have chosen, the Paris
Agreement, the best available science andin some cases the precautionary principle(see further explanation below in (i)).
The plaintiff must also show that the
government has failed to do thesethings. This is where you must highlightthe inaction/insufficient action of thegovernment (measured for example
through its energy production or GHG© Greenpeace / Ex-Press / Flurin Bertschinger

Establishing the required
level of protection in the
Klimaseniorinnen caseIn this case of over 1000 Swiss women aged 65 and up
suing the Swiss federal government for its inadequate
climate policies, the precautionary principle was principallyused to demonstrate the required level of protection interms of the right to life. The senior women argued that
Switzerland has an obligation to protect them from climatechange and that the degree of this obligation should bebased on the Paris Agreement, the best available scienceand the precautionary principle. Measured like this, theyargue that the current Swiss GHG emissions reduction
target does not satisfy the obligation to protect their right tolife.
To show that their right to life is infringed, they argued that
it is sufficient to show that the GHG emissions are fuelingheatwaves, and that heatwaves are putting them at risk.
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10 December 2018 Greenpeace Climate Justice and Liability Campaign

They supported their claims with scientific findings of thecausal link between climate change (which is scientifically
proven as already occurring) and premature deaths ofsenior women during and following heatwaves.
The senior Swiss women made the case that contrary
to sudden-onset disasters like earthquakes, the global
climate change (including the resulting substantial increasein heatwaves) is a slow-onset disaster, which has beenscientifically documented as already being underway andspecifically affecting them.
On 7 December 2018 the Swiss Federal Administrative
Court has ruled, in conflict with overwhelming scientificevidence, that women over 75 years old are not more
impacted by the effects of climate change than otherpopulation groups in Switzerland. The group now has 30days to take the case to the highest court in Switzerland,
the Federal Supreme Court.

4 Developing a rights-based climate caseemissions reduction policies) in meetingthe climate protection target you believe
it should be aiming for (see 4.1.C
Determining what your government’s
target should be).
B. Proving that the
government’s inaction
has interfered withyour human rights
After establishing that the government
has a duty to protect you from climatechange (including showing that thecontested government inaction isincompatible with the long-term climate
target the country should be following),
you must show that your government’s
failure to reduce its GHG emissions inaccordance with the right climate target
negatively impacts or threatens theenjoyment of your human rights. Thismeans you must prove that:• Climate change seriously impacts
your enjoyment of a human right (seesection 3.6 Why is climate change ahuman rights crisis? for examples), and• There is a link between yourgovernment’s failure to reduce its GHG
emissions and the impacts.

© Gordon Welters / Greenpeace91

10 December 2018 Greenpeace Climate Justice and Liability Campaign

One of the major barriers to success inclimate justice litigation has been the
difficulty of linking particular climatechange impacts to emissions froma specific source. You will have toestablish that the harm complained
about has been contributed to by
the defendant and that there is someform of redress. This means that theplaintiff needs to establish that the harm

4 Developing a rights-based climate casecomplained of affected them in a special
way (or will in the future), that it wascaused by climate change and that thedefendant contributed to climate change
in an impermissible way.
Climate change is a global problem,with emissions being released into theatmosphere from entities in countries
all over the world. The atmosphereencompasses the planet and therefore
the emissions from entities in countries
all over the world collectively cause
harm. Because of the collective natureof this phenomenon, in climate lawsuits
against governments for their failure
to act, a part of the case resides inshowing the court that there is a proofof causation or contribution on the partof that specific defendant. This means
demonstrating that the emission of
GHGs to the atmosphere by the stateis impermissible (unlawful) and willcontribute to (or already has resulted in)infringements on the human rights of theplaintiff.
The specific requirements for showing
causation or contribution (showing thelink between the violation of your humanrights and the inaction of your specificgovernment in sufficiently regulating
GHG emissions) will vary dependingon which country you are in. In somejurisdictions, the strict “but-for test”
is not used to assess the causal link inenvironmental lawsuits or human rights
infringements, while in others it is. 58
Below are some legal and scientific toolsthat can help you argue that there issufficient link.
58

A legal test that is often used to show causation: but-for-the activity X, result Y would
not happen.

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate case

1. Precautionary Principle
The precautionary principle requiresthat decision-makers take an active
preventative approach. This means thatpublic authorities need to act to prevent
damage even in cases of uncertainty.
Where there is a threat to human healthor the environment, measures should
be taken to prevent such harm, even
if there is no conclusive scientificproof linking that particular activity (orinactivity) to the harm. It ensures thatthe lack of scientific certainty should not
be a reason for postponing measures
to prevent harm where there is a threatof serious or irreversible damage.
Essentially, the precautionary principle
calls for giving the benefit of the doubt tothe environment.
The precautionary principle involves twoconcepts:
1.Prevention: requiring scientificevidence regarding the harmfulnessof a behaviour, substance or situation;
and
2.Precaution: requiring no such evidence
before acting, though requiring
sufficient probability.
Governments have the duty to apply the
precautionary principle, as it is part ofinternational law and has been expressly
included in international agreements andaffirmed in decisions of the International
Court of Justice.59 Most national
legislation also include the precautionary59

For example: Gabčikovo-Nagymaros Project, Hungary v Slovakia, ICJ GL No 92,[1997] ICJ Rep 7, [1997] ICJ Rep 88, (1998) 37 ILM 162; Southern Bluefin Tuna, New Zealandv Japan, Provisional Measures, ITLOS Case No 3, (1999) 38 ILM 1624, ICGJ 337 (ITLOS 1999)

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate caseprinciple.

The global UN treaty on climatechange, the UNFCCC, also restates
the precautionary principle as one of
the guiding principle of countries whenacting on climate change.60
Using the precautionary principle inclimate litigation can help you argue that
there is no justification for state inaction(or inadequate action) on climate change
mitigation, even if there is no scientificcertainty concerning the measures with60

Oslo
Principles
on Global
ClimateChangeThe Oslo Principles set
out existing obligations
regarding the climate,
94

along with a detailed legal
commentary that draws on
the best joint interpretationof international law,human rights law, national
environmental law and tort
law. The Oslo Principles
were prepared by an

10 December 2018 Greenpeace Climate Justice and Liability Campaign

UNFCCC, Article 3(3)expert group on global
climate obligations, which
consisted of legal experts
from around the world.
While the Oslo Principles
are “soft-law” (not directly
binding to countries), they
may help judges decide

whether governments arein compliance with theirlegal obligations to address
climate change and canbe cited in your case tosupport your position.62
62

Benjamin A and others, Oslo Principles on Global Climate Change Obligations(Eleven International Publishing 2015)

4 Developing a rights-based climate case

which to resolve the problem of climatechange or if there is no full scientificcertainty of the local impacts of climatechange.
According to Principle 1 of the Oslo
Principles on global climate change, theprecautionary principle requires that:
GHG emissions be reduced to theextent, and at a pace, necessary toprotect against the threats of climatechange that can still be avoided; andThe level of reductions of GHG
emissions required to achieve thisshould be based on any credible
and realistic worst-case scenario
accepted by a substantial number ofPrecautionary Principle, IPCC
Science and Government
Obligations
There is sufficient scientific certainty that climate change
is happening. Climate change today is not a matterof precaution, but one of prevention: preventing an
acknowledged risk. With the IPCC science, including thelatest 1.5°C Special Report, there is clear and convincing
science that human-produced GHG emissions are
causing significant changes to the climate and thatthese changes are posing grave risks of irreversible
harm to humanity (including future generations), to theenvironment (including the entire natural habitat) and to
the global economy.
If you consider the scientific evidence, including the
1.5°C Special Report’s mention of “likely” and “verylikely” impacts of a world beyond 1.5°C global warming,and apply the precautionary principle, three conclusions
could be argued:95

10 December 2018 Greenpeace Climate Justice and Liability Campaign

1. If the precautionary principle and scientific evidence
are both considered, the government emissions
reductions should at least be commensurate with theglobal ‘1.5°C’ target (and possibly even lower based on
the best available science); 63
2. The risks continuing to exist must be limited througha precautionary approach provided such measures areproportionate; and3. Insofar as the remaining risks cannot be limited byproportionate means, they must be dealt with throughsimultaneously taking adaptation measures.
63

The IPCC reports themselves expressly do not “support” any target, as their role is
not to delve into policy-prescriptive and values-laden inquiry. Therefore, the IPCC 1.5 Special
Report, especially in the reasons for concern, does not conclude that the risks of climatechange impacts acceptable at 1.5°C of warming. In fact, the Special Report may warrant alower threshold that has not been assessed by the scientific body to date. (see The 1°C Target, above)

4 Developing a rights-based climate caseeminent climate change experts.
The precautionary principle is relevant
when interpreting the government’s
human rights duties in the field of
climate protection.
Using the precautionary principle
approach in your climate lawsuit canincrease the chances of success by
overcoming arguments of scientificuncertainty that are often raised bydefendants. However, IPCC science
provides clear and convincing argument
and in most cases should be sufficient.
You can always raise the precautionary
principle as an alternative argument tohelp prove a causal link.

therefore, did not grant a building
permit for the construction of seaside
apartments.63
Therefore, you can argue that the
precautionary principle means that thegeneral evidence of impacts of climatechange based on the available reports
such as IPCC assessment reports andthe 1.5°C Special Report can be used toshow that there is a probative likelihoodof specific damage at the local level.
Look especially for mentions of “likely”
or “very likely” climate impacts in the
IPCC reports.

In addition, some plaintiffs argue that the
precautionary principle shifts the burdenof proof to the defendant. This could
Indeed, although there is strong
happen if the court is convinced thatscientific evidence of climate change
and its impacts through the IPCC reports there is a threat of serious or irreversible
damage despite uncertainties. Therefore,
and attribution studies, it is not always
the defendant would have the burden topossible to link a specific impact to a
prove that the threat does not exist, or is
specific source of emissions. Using thenegligible.
precautionary principle, a court might
accept more general evidence of climate• This occurred in the casechange impacts (e.g. IPCC’s global
Massachusetts v EPA in the United
predictions of sea level rise) as evidenceStates, where the court took afor the likelihood of specific climate
precautionary approach in this case,change-induced injury at a specific placearguing that the Environmental(e.g. increased coastal erosion along a
Protection Agency (EPA) could notstate coastline).
avoid its obligations because of some“residual uncertainty”.64 The burden• For example, in Australia, a court
was shifted to the EPA to prove that
accepted the scientific consensus
GHGs from the transport industry dothat climate change will lead to a
63
Gippsland Coastal Board v South Gippslands & Others, online: <https://www.vcat.
risk of extreme weather events, and,vic.gov.au/sites/default/files/resources/gippsland_
coastal_board_v_south_gippsland_sc_
and_others.pdf> (Accessed 2018/11/27)

64

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

Massachusetts v Environmental Protection Agency, 2007 549 U.S. 497

4 Developing a rights-based climate casenot contribute towards climate change.
The EPA failed to prove this and as aresult was bound to regulate emissions
from the transport sector.
2. Event attribution
science
Extreme weather event attribution(or “event attribution”) is the sciencethat seeks to determine the extent towhich climate change has altered theprobability or magnitude of a weather
event or type of weather events. Thisbranch of science seeks to quantify thehuman influence on the extreme weather
events that are increasingly causing
severe loss and affecting human rights.65
In climate lawsuits, event attribution
65

This section was developed based on the 2018 article by Sophie Marjanac & Lindene
Patton (2018) “Extreme weather event attribution science and climate change litigation: an essential step in the causal chain?”, Journal of Energy & Natural Resources Law, 36:3, 265-298(Marjanac & Patton)© Pedro Armestre / Greenpeace

97

10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate caseWhat kindof impacts
are eventattribution
scientists
looking at?
Since 2012, the American
Meteorological Society

has published an annualcompilation of articles
focusing on the attributionof specific extreme weather
events over the previous
year. The studies thathave been compiled in
the annual Explaining

Extreme Events of (Year)from a Climate Perspective(BAMS) have noted thatmany studies detectedwith high confidence
the influence of climatechange on extreme weather
events. These studies havelooked at the contributionof climate change, forexample on heat-related
events, increased wildfire
risk, health and economic
impacts, etc.

science may be useful in proving thatyou are specially affected or threatenedby a certain extreme weather eventand that this event is fueled by climatechange.
In most countries, there are establishedprocesses for verifying the accuracy andveracity of scientific studies. If you bringsuch studies as part of your climate
lawsuit, be prepared to have experts
who can testify to the court how the
study was conducted (for example on
the methodology) and what the resultsmean.
However, there are important distinctions
between what is called “legal causation”
and what attribution scientists are
examining. As explained by Marjanac
and Patton (2018),“The scientific inquiry focuses not on
whether the event would or would nothave occurred without human-caused
greenhouse gas emissions, but rather
on the question of how that influence
has changed the characteristics ofthe event. Scientists resist the ideathat the simple question ‘Was event
X caused by climate change?’ canbe answered, and instead suggest
98

10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate casethat a more helpful question to ask is certainty, in many countries, for civil legal‘How has human activity changed the matters (the standard is different for
likelihood of this event occurring or its criminal matters), it is sufficient to show
magnitude?’ (our emphasis)”66
evidence that is correct with a certainty
Event attribution studies usually looksof greater than 50% (“more likely thanat the probability of an increased risk
not”, “on the balance of probabilities”).67
of an event happening due to climatechange, rather than being caused by it.
Having event attribution studies in yourThis is because of the different standards lawsuit can help your claim by showing aof proof in science and in law. While
likelihood that climate change is having
scientists seek to demonstrate that their a local impact on the plaintiffs. Alongresults are proven with at least 90%
with the IPCC 1.5°C Special Report,
66

Marjanac & Patton, ibid at 273

67

Marjanac & Patton, ibid at 280© Greenpeace / Vincent Mark99

10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate casesuch studies can help you argue thatof climate change?
continued government inaction will result • How foreseeable were/are the impacts(or is resulting already) in foreseeableof climate change on your humanclimate change impacts on human rights. rights to the government?
• How suitable is the government’s
C. Establishing thatreason for failing to take action against
the interference
climate change (for example forwith your humaneconomic development reasons)?
rights cannot be• Does the government have an
justifiedalternative to its current policy? Has
the government considered these
Finally, to convince the court that thealternatives?
interference with your human rights• How good was the procedure that led
is also a violation of the government’s
to the government policy or law thatobligations, you generally have to show
is subject to your complaint? Did thethat interference is not proportionate to
public have a chance to participate?
competing public interests that could
Was there thorough political debate?
be used by the government to justify its
Was an EIA carried out?
actions (often called “legitimate aims” –• Has your government taken every
for example economic development).
feasible step to limit emissions?
• Is the state disproportionally allocating
When building an argument that yourresources to other concerns e.g.
government’s failure to sufficiently
defense?
reduce its GHG emissions is a
• Have there been progressive increases
disproportionate interference with yourin GHG emissions reduction targets
human rights, consider the following
over-time?
questions:• How serious is the impact of climatechange on your human rights?
• How vulnerable are you to the impacts

An argument often used by governments
to justify their inaction is the “drop in
the ocean” argument. Governments willclaim that their emissions are too small© Elizabeth Ruiz / Greenpeace100

10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate casecompared with global emissions tocause any real impact, or that increasing
their ambition on climate mitigation will
not affect global climate change becauseof other more major polluting countries.
The precautionary principle can help
you overcome this “drop-in-the-ocean”
argument. For example, in the Urgenda
case decisions (in the first instancein 2015 and confirmed on appeal in
2018, now on appeal to the Supreme
Court), the court used the precautionary
principle to reject the Netherland’s
defense.
• 2015: “The fact that the amountof the Dutch emissions is small
compared to other countries does
not affect the obligation to takeprecautionary measures in view of
the State’s obligation to exercise
care. After all, it has been establishedthat any anthropogenic greenhousegas emission, no matter how minor,
contributes to an increase of CO2
levels in the atmosphere and therefore
to hazardous climate change... The
rules given in that ruling also apply,
by analogy, to the obligation to takeprecautionary measures in order
to avert a danger which is also thesubject of this case. Therefore, thecourt arrives at the opinion that thesingle circumstance does not alter
the State’s obligation to exercise care
towards third parties.”68• This was reaffirmed by the Courtof Appeal in 2018: “The Court, too,acknowledges that this is a global
problem and that the State cannot
solve this problem on its own.
68

Stichting Urgenda v Government of the Netherlands (Ministry of Infrastructure andthe Environment), ECLI:NL:RBDHA:2015:7145, Rechtbank Den Haag, C/09/456689/HA ZA
13-139, paragraph 4.79

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate caseHowever, this does not release theState from its obligation to takemeasures in its territory, within its
capabilities, which in concert withthe efforts of other states provide
protection from the hazards ofdangerous climate change. The
precautionary principle, a generally
accepted principle in internationallaw included in the United Nations
Framework Convention on Climate
Change and confirmed in the caselaw of the European Court of Human
Rights (…), precludes the State frompleading that it has to take accountof the uncertainties of climatechange and other uncertainties (forinstance in ground of appeal 8). Those
uncertainties could after all imply that,
due to the occurrence of a ‘tipping
point’ for instance, the situation could
become much worse than currently
envisioned. The circumstance thatfull scientific certainty regarding theefficacy of the ordered reduction
scenario is lacking therefore does
not mean that the State is entitled torefrain from taking further measures.
High plausibility, as described above,

Proving a
Violationof a Human
Right Largely
Depends on
the Facts ofYour Case
This Guide explains
general principles and102

tips that seek to help
you bring human rights
litigation to challenge
your government’s GHG
reduction policies. Whether
a violation can be proven inyour case will depend on anumber of factors specificto your case.

10 December 2018 Greenpeace Climate Justice and Liability Campaign

Key Factors:• The measures your• The impacts climate
government has takenchange has (e.g. forest
to reduce its GHG
fires or heatwaves) on
emissions.
your region and personal • Your country’s levellife.
of development and• The availability of climate
dependence on GHG
science connecting
emitting industries.
these environmental
issues to climate change.

4 Developing a rights-based climate case

suffices.”69
When developing a rights-based
strategy, asking yourself what kind ofchange you want and identifying yourdemand is the basic first step and should
be included in the initial complaint. If thecourt is convinced that the governmenthas breached its obligations, it will
issue a legal remedy. A remedy is a formof legal reparation ordered by a court
when it finds that your rights have been
violated.
69

The State of the Netherlands (Ministry of Infrastructure and the Environment) v Urgenda, ECLI-number: ECLI:NL:GHDHA:2018:2591), 2018 Hague Court of Appeal, at paras 64-66
online: <https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2018:2610&showbutton=true&keyword=urgenda> (Accessed 2018/11/27)

4.5

Gettinga remedy

Robin Loznak/Our Children's Trust.

Examples ofremedies thatcan be sought
in climate
litigation
againstgovernments• Change thegovernment’s current
103

regulatory systemthat facilitates climate
pollution and allows
climate deception, e.g.
new laws to regulate
carbon producers.
• Increase the ambitionof national climate andenergy laws, policies,
and actions.

10 December 2018 Greenpeace Climate Justice and Liability Campaign• Introduce nationalenergy plans based on
the transition to 100%
renewable energy.
• Stop new major fossil
fuel development.
• Stop fossil fuelsubsidies.
• Challenge government
actions that make itharder to achieve targets
or are contrary to statedgoals.
• Request to conduct
environmental impact
assessments, giveaccess to informationand conduct public
participation indecisions.

4 Developing a rights-based climate case

The following remedies are common inhuman rights litigation, whether they areavailable in your case depends on thelaws in your country.
A. Declaratory
judgements
Declaratory judgements are decisions
where a court simply finds there has
been a violation of the human rights
obligations by the government. While thisis not a specific remedy, it could achieve
the objective of getting your government
to reduce its GHG emissions.
If you get the court to rule that the
government violated your human rights
by failing to reduce its GHG emissions
in line with the Paris Agreement andthe best available climate science, it
implies a specific obligation for thegovernment to reduce its GHG emissions
accordingly (for example through newlegislation). To increase the effect ofdeclaratory judgements, it is importantthat you define the government’s
positive obligations in your arguments
so you can draw attention to the impact

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate caseof the court’s judgement after it isgiven. If you believe your government
has not properly enforced a declaratory
judgement, you can go back to the court
and ask them to define and enforce theirjudgement.
B. Court orders
After finding a violation, courts can makeorders, requiring the government totake specific actions or stop an ongoingcourse of action in response to or toprevent a violation of human rights. If
you can get a court order, this can makethe process of enforcing your judgement
easier.
In the Urgenda case, the Court of Appeal
ordered the government to reduce its
emissions by 25% (compared to 1990
levels) by 2020. The government has
the discretion on how it implements
this order (i.e. what policies it willtake). For another example, see the
Court’s decision in Peña and others v
Government of Colombia (under section
2.3.A.i. Mitigation claims above).
The Klimaseniorinnen case offers
another useful example of the orders
you can ask a court to make to geta government to reduce its GHG
emissions. The senior Swiss women
asked the government to (1) increase
their insufficient GHG emission reduction

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate case

4.6

targets for 2020 in accordance with
the IPCC targets, (2) increase their
mitigation measures to meet the 2020
target required by the IPCC reports toavoid dangerous climate change, and (3)correct the insufficient GHG emissions
reduction targets they have set for 2030.
Below is a useful list of questions to ask
yourself (or consult with climate andenergy experts on) when contemplatinga new climate case based on humanrights.
1.What are the total GHG emissions foryour country?

Questions to ask
when developing
a rights-based
climate litigation

2.How much renewable energy is there inyour country?
3.What is the current GHG emission
reduction target for your country
according to national laws?

4.Is your country on track to reach its
GHG emission reduction target?

5.If not, what are the reasons (evaluationof the implementation of the current
climate law)?
6.What commitments has your country
made to the UNFCCC in its nationallydetermined contribution?
7.What is the legal status of the Paris
Agreement in your country?

8.How should the national GHG emission
target be in order to meet the Paris
Agreement’s target?

9.What are the major energy policies that
relate to climate targets, mitigation andadaptation?
10. Are there major fossil fuel projects indevelopment?
11. What are the current renewable106

10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate caseenergy laws or policies in yourcountry? What assessments have been
done on the potential of renewableenergy in the country?

12. What are the key government
agencies involved in climate andenergy decision-making?

13. What role do private or publiccompanies play in influencing national
climate policy?
14. What places or people are mostvulnerable to the impacts of climatechange in your country?

15. What is widely considered to be an
example of a climate change impact?
E.g. floods and heatwaves.

16. Who are the leading scientific experts
in your country?
17. Who are the leading voices forclimate action in your country?

18. Who are the leading voices forrenewable energy in your country?

19. If your country set a higher GHG
emissions target, how would this
impact climate policy in the region andglobally?
Here are some questions you should beasking the lawyers helping you with thecase.
1. Can citizens (and people living in yourcountry) and/or NGOs (e.g. public
interest NGOs) sue the government for
failing to protect their rights enshrinedin the Constitution (e.g. rights to life,
environment, etc.) , and upheld or byregional bodies such as the European
Convention on Human Rights by(a) failing to implement a science107

10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate casein the national constitution and otherbased GHG target that is at a minimum
legislation)?
aligned with the Paris Agreement (e.g.
1.5°C);(b) permitting/licensing energy projects 4. What other legal grounds might exist
to hold the government accountablethat are contrary to national andfor inaction, e.g. regulatory,
international law; andgovernment liability, public trust, etc?
(c) having inadequate commitments torenewable energy?
5. What types of remedies can people
2. What is the legal status of theseek, e.g. injunction on new coal,regional human rights treaty, the Paris
improvements in climate and energy
Agreement, and international law inpolicy, implementation of mitigation
general in your country?
and adaptation measures, increased
commitments to renewable energy?
3. What are your government’s humanrights obligations under international
6. Who can sue? Can a large group oflaw (what treaties has it signed andpeople, e.g. 10,000 people? Can a small
ratified - what is the status of thesegroup and/or association on behalf
commitments in national law) andof a larger population bring an action
national law (what rights are included© Amanda J. Mason / Greenpeace108

10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate casetogether? Can children sue? Can acase be brought on behalf of future
generations?

4.7

Is your case solidand strategic?

7. What are the costs of bringing such a
case? What if the plaintiffs lose? Would
they be forced to pay the other side’s
costs?
We suggest that you also explore otherstrategies in parallel to launching a
climate lawsuit. Consider participatingin activities such as attending
consultations on government policy,
lobbying, proposing legislation,commentating publicly and peacefully
protesting. After engaging in these nonjudicial possibilities, you should also
evaluate whether your climate litigationis strategic and worth pursuing. Thisdecision should be based on several
criteria, including two necessary ones:• The claim must be meritorious. Thismeans there are strong factual,scientific and legal grounds for theclaim and it is backed by an authentic
group of people; and• There is sufficient legal capacity
to ensure the action is conducted
professionally and executed ina manner that will achieve yourobjectives.
Only go ahead if the first two criteria
above are met and if two or more of thefollowing ones apply:• The legal action is a part of a campaign
with a political, communications

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate caseand mobilisation strategy that
includes meaningful engagement for
supporters.
• The action embraces local groups,
indigenous groups, specificcommunities allowing stories ofinjustices to be told and the facts to be
put on record.
• The action seeks to change the rules of
the game and/or use the laws made tosteer government regulations towards
climate protection.

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10 December 2018 Greenpeace Climate Justice and Liability Campaign

4 Developing a rights-based climate case111

10 December 2018 Greenpeace Climate Justice and Liability Campaign

5 Developing a rights-based campaign strategy

• The legal action is replicable in othercountries with similar legal systems tocreate precedents and inspire others to
do the same.
All legal actions require strong peerreview and best available climate
science as evidence.

5.1

The overall objective of rights-based
climate litigation cases is to buildpressure and support for action to cut
GHG emissions to prevent and stop
ongoing human rights violations causedby climate change. There must be acoherent strategy to ensure you have agood chance of succeeding both insideand outside of the courts. This section is
to be developed at the same time as thelegal consultation explained in section 4.
It outlines some considerations to bearin mind when developing your strategy,
and the different tools and approaches

What kind ofchange do you
want?

5

©Greenpeace

Developing arights-based
campaign strategy
112

10 December 2018 Greenpeace Climate Justice and Liability Campaign

5 Developing a rights-based campaign strategy

you can use. The process explained
here is a simplified version of the social
justice model for strategy development
described by the Change Agency. You
can visit their website and toolkit on
strategy development for more detailed
information and for exercises.
Other tools which can be useful when
thinking about developing strategies forlitigation include:
1.SWOT analysis: Identify thestrengths and weaknesses within theorganisation, and the opportunities andthreats outside of it.
2.Theory of Change: Inputs, Activities,
Outputs, Outcomes and Impact.70
3.Golden Circle: Why are you doing this?
How will you do it? What actions will
you take?
4.Business model: What are youraspirations and the specific goals
against which you can measure70

Pia Hollenstein / KlimaSeniorinnen

Examplesof creative
campaign
tactics tocomplement
legal cases
The Senior Womenfor Climate Protection(Klimaseniorinnen), an
association of now over1000 women, age 65 andolder, are continuously
campaigning alongside
their legal case. Theiraims include building113

the climate movement,
making climate change
a topic of discussion in
new communities suchas in the arts world andwomen rights circles, andeducating politicians,
the media, and themainstream public about
the devastating effects ofclimate change on healthand basic human rights.
In 2018, the association
presented their case at theMuseum of Modern Art in

10 December 2018 Greenpeace Climate Justice and Liability Campaign

The theory of change model helps you define all the necessary conditions required
to bring about a given outcome. It involves setting a long-term goal and then working backfrom that goal to identify all the conditions (outcomes) that must be achieved. You can findmore information on how to proceed with this methodology: Center for Theory of Change,“When Does Theory of Change Work”, online: < https://www.theoryofchange.org/> (Accessed
2018/11/20)

Zurich and participated ina glacier walk to document
the impacts of climatechange in Switzerland,
which led to the publicationof a book.
One month before thestart of the hearings in theunprecedented climatechange and human rights
inquiry in the Philippines,
the Greenpeace ship,
Rainbow Warrior, visitedthe country to amplify thevoices of those impacted
by climate change.
Community representatives
from Nature & Youth(Norway), the PacificClimate Warriors (Fiji),and Our Children’s Trust(USA) participated in thehuman “LIVErary” (people
served as “living books” toshare their stories) that thepeople of Eastern Visayas
set up with the participationof Greenpeace SEA-PH
and its partners.

5 Developing a rights-based campaign strategy

your impact? Where should you act?
How will you win where others havefailed? What skills and capabilities arenecessary to win? What management
systems are necessary to support the
key capabilities?

A. Identifying thechange you want
One of the first steps in developing arights-based campaign strategy forclimate justice is to clearly imagine theworld you want to create, based on a setof core values that define your group andwhat you are fighting for.
Some questions that you might ask
yourself are:
1.What problems are you angry or upset
about?
2.Do other people share your anger or
frustration?
3.Are there concrete solutions to the
problem?
4.What is your vision of a better future?

© Shayne Robinson / Greenpeace

These questions can start to help you
think through what are the important
problems to address. The first twoquestions can help you identify whether
the problem is deeply and widely felt.
The more a problem impacts the lives ofpeople in a significant way and the more
an injustice is felt, the more people arewilling to act to address the problem.
• For example, when developing the
Klimaseniorinnen case, where senior
women sued the Swiss government,
the problem was identified as thefollowing: people still think of climatechange as something distant, not114

10 December 2018 Greenpeace Climate Justice and Liability Campaign

5 Developing a rights-based campaign strategy

affecting us directly and policymakers
would see no purpose in having
Switzerland being more ambitious
than other countries, despite known
predictions that current commitments
would lead to a collective failure
towards implementing the Paris
Agreement.
The third question will help you think
through the solutions to the problem,
while the last question makes you think
about what is the change you want tobring about and what that will feel like.
The campaign strategy for the senior
women in Switzerland was identified as
the following:
Highlight and make the public and thegovernment realise that climate change
is already severely affecting us now.

© Sandra Hoyn / Greenpeace

115

10 December 2018 Greenpeace Climate Justice and Liability Campaign• The senior women are directly under
threat, climate change is a real healthrisk to them already. They wanted
the media and people to understandthat action is required now. That is
why they also did several successful
public activities to highlight their case(including a glacier walk).
• Directly target the policy makers.
• This is through the core legal action
because if they win the current policies
would need to be changed.
• The senior women remain active inthe political sphere, for example bytargeting politicians concerned about
health impacts but not yet engaged
in climate issue, which could make adifference in the parliament.
• Inspiring and creating a whole
movement.
• The senior women used their activism
to demonstrate that everyone can be
engaged for a better future.

5 Developing a rights-based campaign strategy• Being part of and building a movement
was another solution to the problem
for them. That is why they have alreadymore than 1100 members (all women
aged 65 and over) and more than 1000
supporters.
B. Identifying the

campaign scopeand goals
After establishing your vision, the next
step is to break down the big challenge
into manageable parts to determine
which problem or issue you intend towork on and why. At this point, there
needs to be a deeper analysis of the© Thomas Einberger / argum / Greenpeace

Root Cause
Tree Toolor droughts affecting
farmers.

One popular way of
2. Trunks: What structures,
analyzing the concerns inpractices and policies
your community and where
create an environment
you should concentratethat supports the
your efforts to create aproblem? What is
lasting change is the Root“holding up” theCause Tree tool. This
problems? Why do these
involves identifying different
problems exist?
layers of the problem.
• For example, policies
that increase coal
1. Leaves: the visible andextraction andtangible parts of theconsumption or
problem. What problems
the allocation of
do you see in yourdeforestation permits
community?
causing further depletion• In the climate change
of fossil fuels.
context, it could be lackof clean water, heat
3. Roots: What are thestrokes affecting seniors
underlying historical,
116

10 December 2018 Greenpeace Climate Justice and Liability Campaignsocial or economicroot causes of these
problems? Why do thestructures and policies
exist? What is thecontext? What factors
are likely to help orhinder you in achieving
your objectives?
• For example, fossil fuelcompanies often havea stranglehold overnational climate laws
and policies. Anothercommon problem comesfrom governments
whose focus regarding
energy development
involves quickly
providing electricity
to the population andopting for coal-poweredenergy instead of making
a more sustainablechoice.
Focus on challenging
the programs, practices
and policies you listed
under the trunk. If you
only address the leaves,
you may only create
Band-Aid solutions. It isdifficult to address theroots because they arebased on longstanding
injustices. Cutting off the
problems at the trunk isyour best opportunity to
defeat the problems in yourcommunity.

5 Developing a rights-based campaign strategy

problem which will help you determine
how to address it in a manner thatwill make a lasting change in yourcommunity. There are many tools
available to narrow down the campaign
scope, from macro strategy analysis
to exercises to develop your theory ofchange.
C. Identifying yourdemand

5.2

Once you have analysed the problem
and the structures, you are ready toname your solutions. Your solutions
should aim to address the policies,
practices or structures that are keeping
the problem in place. One way to ensure
you create strong demands is to makethem S.M.A.R.T (Specific, Measurable,
Attainable, Realistic and Timely).

What type of
support do youneed?

All litigation requires time, resources andlegal expertise. To reduce the difficulties
in bringing litigation, you must build
support for your climate litigation case.
a. Legal support
1. Reach out to established local orinternational non-governmentalorganisations, who can help you
connect with lawyers, other NGOsor other communities who might bebringing a similar case.
2. Successful climate litigation requires
legal expertise to build a convincing
legal argument grounded in evidence.
It is essential you find lawyers to bringyour climate litigation case.
© Roy Lagarde/Greenpeace117

10 December 2018 Greenpeace Climate Justice and Liability Campaign

3. There is a growing movement ofNGOs, public interest law firms andcivil-society organisations that are
engaging in climate change litigationand often have the resources (legal

5 Developing a rights-based campaign strategy

etc.) to support new climate litigation
initiatives around the world. Thiscan help to reduce costs. Law
school clinics can also contribute bydoing legal research analysis. Suchorganisations may also be able tosupport you in gathering evidence andbuilding a campaign around your case.
4. Getting second and third legal
opinions is important in complex andinnovative cases like climate litigation,
particularly where your lawyer has anexpertise in one area but not others(for example, civil damages, but notenvironment or human rights).
• If possible, seek out the legal opinionof several lawyers when you are
exploring and shaping your claim.
• Before filing (sending out) major
court documents with yourarguments, it is good practice toestablish a legal sounding-board totest out the ideas.
• You can reach out to various lawyers,
law professors and climate andenergy campaigners to test out thestrength of your arguments.

© Tracie Williams / Greenpeace

5. Bringing a climate change lawsuit isa long commitment and demands a
multidisciplinary team.
6. Organise the group that will ultimately
bring the claim:• As climate change impacts many
people and communities, there is the© Nick Cobbing / Greenpeace

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5 Developing a rights-based campaign strategy

potential to build local coalitions that
can together bring a case.
• To build a coalition or association
you should identify other groups andpeople who are similarly affected byclimate change and are motivated tobring such a lawsuit.
B. Financial support
While litigation can be costly, there areways to reduce or share the costs oflitigation.
1. The first step should be conducting(asking your lawyers to do) a thoroughresearch of the financial costs:• Filing the case: apart from the lawyer’s
fees, what are costs associated withthe court, the gathering of evidence,getting expert testimony and so on.
• Losing the case: will you have to pay
the opposing parties’ costs?
• Appealing the case: is this a case thatwill likely head to appeal and if so what
will be the costs then?
• Also consider with a lawyer whether
the state can bear the costs: forexample, is there a human rights
ombudsman or can there be an
exemption for covering the otherparty’s costs if this is an issue offirst impression or a public interest
litigation.
2. Consider crowdfunding or accessing
public interest litigation funds. Consult
with a lawyer to understand the rules
around funding litigation. Examples of
crowdfunding platforms include:• CrowdJustice• CrowdRise

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5 Developing a rights-based campaign strategy

work in your favour inside the courtroom
as the judge is reminded that the issue
being brought forth is one of paramountimportance.

© Madz Barrido / Greenpeace

To create awareness and pressure, it isimportant to:• Use the media and social media topublicise the effects climate change ishaving on your community.
• Identify the key messages (the story
and framing that you would likethe campaign to have) and draft
communication guidelines (do’s anddon’ts) to make the story line come tolife.
• Publicise every positive step taken inyour case.

• Harbour Litigation Funding (UK)• GoFundMe• Grata Fund (AUS)• Build alliances with other groups andorganisations that can increase yourvoice.

3. Seek the support of allies (see section
below) to help bring your case.

• Reach out to universities to get

4. Consider applying for funding frommajor charitable organisations.
C. Engagement
supportRaising awareness through a campaign
is vital. Human rights-based climate
litigation builds public awareness,leverages people power to shift mindsets
and puts pressure on governments to
reduce climate pollution. Cases that haveauthentic public support have a betterchance of succeeding because the legal
arguments are representative of what isin the public’s interest. In addition, if thelitigation does not succeed in court, aneffective campaign can help ensure thegovernment is still held accountable inthe “court of public opinion”. It can also

© Jonne Sippola / Greenpeace120 10 December 2018 Greenpeace Climate Justice and Liability Campaign 5 Developing a rights-based campaign strategy

academic interest in your case.
• Incorporate a multilingual approach,translating key legal documents andyour engagement messages (tweets
for example) so that researchers,international media and othercommunities and organisations canhear your demands for climate justice.
For environmental NGOs working
with people and communities who
are affected by climate change, it isimportant to remember that the ultimate
aim of such people-powered climate
litigation is not only to win rights orpolicy outcomes, but to win them inways that enhance the communities’
power and capacity to win futurestruggles.

5.3

How to work with
communities

Best practices in bringing a peoplepowered case with impacted
communities includes:• Amplifying and adequately
representing the diversity of groups
working with communities;• Working with communities to develop
their campaign and litigation so they
could pursue it with or without NGO
presence;• Building trust, being clear fromthe beginning about the level ofcommitment and listening instead of
imposing agendas;• Re-defining the notion of experts,
seeing the communities as experts
on traditional knowledge, oral history,
cultural traditions and the ability tomonitor the impacts of climate change© Geric Cruz / Greenpeace121

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5 Developing a rights-based campaign strategy

themselves. Build on the concept ofcitizen´s science;• When talking about individuals and/or
groups, always use the terms they use
themselves. Don’t superimpose terms
onto them; and5.4

Mitigatingrisk• Build coalitions nationally and globally.
Any legal action targeting powerful
governments could face backlash andretaliation. It’s a good idea to assess
the risks stemming from the case andcampaign.
Among them are:
• The risk faced by community members
who could become the targets ofviolence, imprisonment, defamatory
remarks, or other retaliatory action;• The impact on community members if,
at the end of the appeal process, thelegal action is unsuccessful;• Capacity issues that might interferewith your ability to continue with thecase• The risk of costly and onerous
document requests to disclose
information about the case;• The risk of reputational damage;• The risk of unexpected legal costs;• The risk of attack lawsuits (especially
defamation lawsuits, which can include
strategic lawsuits against public
participation (SLAPP suits);71• Threats to security of information(hacking, leaking of confidential
71

Strategic Lawsuit against Public Participation (SLAPP), is a retaliatory legal action
designed to bury and silence a party. It is a real threat for communities and their lawyers, especially when suing large corporations or parties who have the money to engage in lengthy legal recourses. However, human rights, environmental and justice NGOs are standing together
in a new task force of organisations that have long dealt with SLAPP threats called “Protect
the Protest”.

122 10 December 2018 Greenpeace Climate Justice and Liability Campaign 5 Developing a rights-based campaign strategy

information, etc.); and• The risk that a case that is not
strategic or not based on the best
science might lead the court to issue
a restrictive ruling that prevents future
possible litigation.
Some measures to mitigate those risks
include:• If possible, ensure any publicstatements on governments or
corporations are reviewed for accuracy
and truthfulness by lawyers first before
being issued;• Ensure there are clear agreements
between partners in the case and/or litigation for the full lifetime of thecase;• Develop and train all involved on a
protocol for confidential information;• Ensure that the science used isaccurate and up-to-date;• Develop a robust communication plan;• For environmental NGOs, secure astrong partnership with the community,or with an NGO that has solid ties withthe community;• Conduct proper briefings andcontinued engagement with themembers of community;• Develop security management plansthat cover all infiltration, hacking,intimidation tactics;• Fund support for witness protection (ifneeded); and• Present the claim in a way that the
court or tribunal may find consistent
with principles it has recognised in the
123 10 December 2018 Greenpeace Climate Justice and Liability Campaign 5 Developing a rights-based campaign strategy

©Greenpeace

past.72

6

72

In some cases, it may be strategic to ask for less rather than more to increase thechance of success and avoid a negative decision.

Conclusion
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6 CONCLUSION

Scientists around the world agree thatthose particularly vulnerable to thethe increase in GHGs from humanimpacts, such as children.
activities is driving climate change, andit continues to get worse. Recent events From detailing the use of climate
reveal that people (particularly vulnerable science as a factual basis in developing
communities) are already experiencing
your arguments, to discussing how
the significant impacts of climate
to overcome common defenses inchange, which includes rising sea levels, climate lawsuits, the task of holding our
extreme heat waves, drought and fires.
governments accountable
Notably, climate change accelerates
is a big one. While we don’t pretend tosocial injustices and inequalities, andhave all the answers, we hope that thisthreatens constitutional and human
Guide can be a stepping-stone in yourrights, including the right to life itself.
climate strategy.
Without action, the world’s averagesurface temperature is projected to keep The work compiled in this Guide
rising and is likely to surpass 3°C thisrepresents a snapshot of insights
century—with some areas of the world
gained over the last couple of years.
expected to warm even more. By 2100,
Greenpeace offices will continue to learn
if urgent action isn’t taken now, thefrom communities and our allies about
world as we know it today could become achieving climate justice using the power
unrecognisable.
of the law. We welcome your feedback
and please keep us informed of your
The People’s Guide stands for the idea
efforts.
that people have a right to a stable
While climate litigation is not a catchclimate and to protection from theall or perfect solution, it can be a usefuldangers of hazardous climate change.
tool in achieving climate justice. As
Governments do not have unlimited
people are increasingly mobilising anddiscretion to decide how to address
reclaiming their rights and the latest
climate change. People have a right to
IPCC science sends an urgent call forseek legal protection from courts, andaction, governments are on notice tocourts have an important role to play
act now or expect more human rights
in determining whether authorities are
climate litigation in the near future.
acting lawfully in addressing climatechange.
You can target government authorities
through people-powered legal actions
that seek to force political leaders tofulfill their duties to protect people’s
human rights. This Guide gives you
examples of how to accompany thelawsuit with a campaign strategy thatraises public awareness of the threats
posed to human rights as well as to125

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6 CONCLUSION