As climate change reshapes the way that societies interact with the natural world, the effects of rising concern and salience regarding this issue have allowed courts to increasingly become central actors in the relationship between climate law and human rights. Particularly influential in progressing human rights protections relating to climate issues are regional actors, including regional human rights courts and regional agreements on human rights. Take, for example, three significant cases from three different continents; 1) Advisory Opinion OC-23/17, 2) Marangopoulos Foundation for Human Rights (MFHR) v. Greece, and 3) Gbemre v. Shell Petroleum Development Company of Nigeria Ltd et al. These particular cases present variation in terms geography and jurisdiction, yet the decisions in these cases reflect how regional courts can play a central role in upholding human rights relating to environmental issues and represent three major rulings in regard to climate litigation with human rights claims.
In Advisory Opinion OC-23/17, the Republic of Colombia requested in March, 2016 that the Inter-American Court of Human Rights (IACHR) provide an advisory opinion on the scope of states’ obligation of responsibility to protect against environmental harm. The IACHR recognized that there was an undeniable relationship between the protection of the environment and the realization of human rights, and that the right to a healthy environment is recognized under Article 26 of the American Convention on Human Rights (ACHR). The court also determined that “jurisdiction” as outlined in Article 1(1) of the American Convention on Human Rights can refer to state activities which cause harm outside of its borders, meaning that there is an obligation to protect against cross-border environmental harm. Significantly, this opinion by the IACHR established a scope of responsibility that regional observers had to both provide individuals the right to a healthy environment and that actions taken within state boundaries could not harm those outside of state boundaries either.
In the case of Marangopoulos Foundation for Human Rights (MFHR) v. Greece, the Marangopoulos Foundation for Human Rights (MFHR) argued that Greece had violated rights to a clean environment by owning and overseeing coal mines and coal-fired power plants. The case was under the jurisdiction of the European Committee on Social Rights (ECSR) and the claim brought by MFHR pertained to Article 2 Section 4, Article 3 Section 1 and 2, and Article 11 of the European Social Charter (ESC) of 1961.
The most important implication of this case was in relation to Article 11, which provides a right to protection of health. The MFHR had argued that Greece had failed to comply with its obligation to protect public health against air pollution, in accordance with Article 11§1 of the ESC. Specifically, the organisation cited that total suspended particle pollution levels had consistently risen above European Union and World Health Organization established limits and pollution and its effects on the health of individuals were a direct result of actions and omissions on the part of the Greek state. The ECSR ultimately ruled in favor of MFHR that the Greek state had violated Article 11, along with Articles 2 and 3, of the ESC. This ruling explicitly acknowledged the right to a healthy environment under the ESC, while leading Greece to subsequently introduce legislation phasing out lignite-fired plants and coal mines.
Finally, in Gbemre v. Shell Petroleum Development Company of Nigeria Ltd et al., Gbemre, representing the Niger Delta Iwherekan community, brought suit against the Nigerian government in the Federal Court of Nigeria, arguing that gas flaring caused by oil extraction operated through the company Shell had violated Sections 33 and 34 of the 1999 Nigerian Constitution, as well as Articles 4, 16, and 24 of the African Charter on Human and Peoples Rights (ACHPR). Sections 33 and 34 of the 1999 Nigerian Constitution guarantee every person a right to life and respect for the dignity of their person, respectively. Article 4, 16, 24 of the ACHPR guarantees a right to life, a right to health, and a right to a satisfactory environment. The Federal High Court ruled in favor of Gbemre in November, 2005, supporting that the allowance of gas flaring activities was inconsistent with rights under the ACHPR, as well as the Nigerian Constitution.
These three cases illuminate the particular influence that regional actors have had in shaping the trajectory of human rights protections through climate litigation. While these cases only represent a small portion of all cases brought before courts regarding human rights claims in climate litigation, they provide significant insight into the role of regional courts in upholding human rights. We can observe across different geographic contexts, namely South America, Europe, and Africa, that regional courts and human rights charters can serve as pathways for the protection of human rights regarding a healthy environment and protection against climate change. Within these cases, specificity of the claim focused on actions which are currently causing harm have also been shown to be particularly important. State support for environmental activities, such as mining and oil extraction, which extensively harm the environmental well-being of individuals has been curtailed by regional litigation.
Accounting for the influence of regional litigation in shaping climate litigation with human rights claims, future observation of developments in climate litigation should pay particular attention to regional courts and regional human rights agreements in judicial decisions. This is important, as there are climate cases with human rights claims currently pending decision in regional courts. For example, two significant cases have been filed in the European Court of Human Rights. The first is De Conto vs. Italy and 32 Other States and the second is Uricchio vs. Italy and 32 Other States. Both suits have been filed by young applicants in Italy, and rely on Articles 2, 8, 13 and 14 of the European Convention of Human Rights, contending that observer states to the convention have not taken sufficient action to protect the environment and address climate change, and that this inaction violates their rights. The decisions made in these cases will present significant information regarding interpretations of state obligations to climate-related issues under regional agreements, heard before a regional court. As instances of climate litigation with human rights claims increase, these regional actors will likely be increasingly integral in shaping the trajectory of rights protections relating to climate law.
Bibliography
African Charter on Human and Peoples’ Rights, Available at https://www.achpr.org/legalinstruments/detail?id=49
Constitution of the Federal Republic of Nigeria, 1999, Available at https://www.wipo.int/edocs/lexdocs/laws/en/ng/ng014en.pdf
Corte InterAmericana de Derechos Humanos, Opinión Consultiva OC-23/17 (Advisory Opinion OC-23/17) de 15 de Noviembre de 2017, Solicitada por la República de Colombia, Medio Ambiente y Derechos Humanos, Obligaciones Estatales en Relación con el Medio Ambiente en el Marco de la Protección y Garantía de los Derechos a la vida y a la Integridad Personal – Interpretación y Alcance de los Artículos 4.1 y 5.1, en Relación con los Artículos 1.1 y 2 de la Convención Americana Sobre Derechos Humanos
Frédéric Simon and Theodore Karaoulanis, “Greece confirms last coal plant will be shut in 2025”, euractive.com, (2021), Available at https://www.euractiv.com/section/climate-environment/news/greece-confirms-last-coal-plant-will-be-shut-in-2025/
Gbemre v. Shell Petroleum Development Company of Nigeria Ltd et al. (2005) AHRLR 151 (NgHC 2005)
Marangopoulos Foundation for Human Rights (MFHR) v. Greece, Complaint No. 30/2005
