Protection From Climate Change Is A Human Right

Judges are seated as the International Court of Justice in The Hague, Netherlands, opens hearings into what countries worldwide are legally required to do to combat climate change and help vulnerable nations fight its devastating impact, Monday, Dec. 2, 2024. (AP Photo/Peter Dejong)

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At the request of the United Nations General Assembly, the International Court of Justice reviewed the liability of countries for their contribution to climate change and what actions countries must take to prevent climate change. After over two years of proceedings, the ICJ released its Advisory Opinion relating to the Obligations of States in respect of Climate Change, stating that international law establishes a human right to a clean, health, and sustainable environment, including protections from the impacts of climate change. While the opinion is non-binding, it will shape the future debate over climate change policy and lead to a wave of new litigation.

The ICJ was established in 1945 through the UN Charter to handle legal disputes between nations. Known as the World Court, it is an outlet for countries to settle civil disputes through a neutral court.

In March, 2023, The UN General Assembly asked the ICJ to issue an advisory opinion on the legal obligations of countries in preventing climate change. The opinion, while non-binding, is an indicator of how the Court may interpret future climate related litigation and guide future legislative development. Following written and oral statements by countries and interested parties, the Court issued its opinion, and a shorter summary of the opinion, on July 23.

The UNGA posed two questions to the ICJ:

“What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations”?

“What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change? (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”

The Court looked at the UN Framework Convention on Climate Change, the Kyoto Treaty, and the Paris Agreement to determine legal obligations established by those documents. Disagreeing with arguments made by large countries, including the United States, that the obligations were procedural, the Court found that the goals and actions to reduce GHG emissions are legally binding. The Court also found that high GHG emitting countries could be legally liable for the adverse impacts of climate change.

However, the Court’s opinion looked beyond documents that directly address climate change, and connected environmental concerns with human rights. They are not the first.

In April 2024, the European Court of Human Rights issued a ruling that stated protection from the effects of climate change is a human right under European law. In Verein KlimaSeniorinnen Schweiz v. Switzerland, the plaintiffs argued that enforcement of the Paris Agreement could be made through the European Convention on Human Rights. Specifically, they pointed to Articles 2 (Right to life), 6, (Right to a fair trial), and 8 (Right to respect for private and family life). The ECtHR agreed.

The ICJ came to the same conclusion, connecting customary international human rights laws and the Universal Declaration of Human Rights to the right to a health environment.

The Court stated, that it “considers that the protection of the environment is a precondition for the enjoyment of human right… that the adverse effects of climate change, including, inter alia, the impact on the health and livelihoods of individuals through events such as sea level rise, drought, desertification and natural disasters, may significantly impair the enjoyment of certain human rights…

“The Court considers that the adverse effects of climate change may impair the effective enjoyment of human rights… that a clean, healthy and sustainable environment is a precondition for the enjoyment of many human rights, such as the right to life, the right to health and the right to an adequate standard of living, including access to water, food and housing.”

Notably, the Court rejected arguments made by large countries that claimed the Paris Agreement, UNFCCC, and Kyoto Treaty were the exclusive documents relating to climate change. By incorporating the UDHR, countries that are not party to the Paris Agreement may still face liability.

The linkage between climate change and human rights opens new avenues of legal consequences for high GHG emissions. Climate activists will bring legal challenges against countries for failing to act to reduce GHG emissions, including the continued use of fossil fuels and failure to make companies report GHG emissions through sustainability reporting.

Applying it to the business sector, climate activists will bring new legal challenges against oil companies for human rights violations. It could also lead to new criminal penalties, including the developing crime of ecocide that treats environmental actions in a similar fashion as genocide.

The International Court of Justice opinion, while non-binding, was a significant win for climate change activists. However, its application and reach is still unknown. Do not expect large countries to simply accept the opinion. Look for developments at the UN and at COP30 to undermine the opinion or change international law to render it moot.