An emergency like no other: Climate Inaction and Human Rights

Written by Sara Alvarinhas (Ambassador for Portugal) and edited by Charlie Jones

Introduction

The relationship between human rights, protected by a number of international treaties and national constitutions, and climate action has become increasingly more tangible. Nonetheless, there is no explicit right to a healthy environment in the Universal Declaration of Human Rights or in any international human rights treaty. As such, concerns have been raised in jurisprudence about climate change, especially when it comes to the protection of more vulnerable individuals facing worse consequences, with risks related to their health, home, culture, and life in general. Environmental issues can not be discussed without transversality. It is crucial to also take into account factors such as poverty, social exclusion, public health, energy sources, and so on since climate change has  direct and indirect impacts on those sectors (Silveira, 2022).

There have been some significant developments since the 1990s, culminating most recently in the 2021 Resolution (A/HRC/RES/48/13) passed by the UN Human Rights Council that recognises in its first article “the right to a clean, healthy and sustainable environment as a human right that is important to the enjoyment of human rights”. The 2015 Paris Agreement’s Preamble and, more recently, the 2021 Glasgow Climate Pact, acknowledge the association between human rights and climate change. The aim of the Paris Agreement is to limit global warming to well below 2◦C, preferably 1.5◦C. Through its legally binding character, it has not only provided opportunities to be considered in cases at national and regional level, but has also given greater legitimacy to this problem and an increased sense of state responsibility. Besides those, numerous UN Special Rapporteurs’ findings currently recognise the direct impact of climate change on people’s lives (Didi, 2023). For instance, the human right to a healthy environment, according to UN rapporteur John Knox, has developed not only at the regional level but also through multilateralism.

The real world consequences of climate change are exemplified by events such as the devastating wildfires in Portugal in 2017. The disaster at Pedrógão Grande is particularly notable given that it claimed the lives of 66 people (Alberti, 2018). Subsequently, in 2020, a group of young people from Portugal filed a complaint with the European Court of Human Rights. They argued that the fires, as well as the dangers to health and anxiety they bring, were the result of Portugal as well as of  32 other nations’ unwillingness to act on climate change. The trial, now underway, and a victory could force some of the world’s most powerful and wealthy governments to respond to climate change.

The Jurisprudence of Climate Responsibility

As mentioned before, there has been a growing recognition of the close link between human rights and environmental protection, in order to introduce climate change policies and actions to protect individuals. Firstly, rights related to the environment have been adopted in regional treaties. The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights states in Article 11 that “everyone has the right to live in a healthy environment“, and the 1981 African Charter on Human and Peoples’ Rights states that “everyone has the right to a satisfactory environment in general“.

Beyond the regional level, the Office of the United Nations High Commissioner for Human Rights issued its first report on climate change in 2009, claiming that “climate change has generally negative effects on the realisation of human rights”. Nonetheless, it was sceptical that those effects could be classified as human rights violations in a legal sense and “doubtful that an individual would be able to hold a particular state responsible for harm caused by climate change” (Hart, 2023). In October of 2o21, the Human Rights Council passed Resolution 48/13, recognising the right to a clean, healthy and sustainable environment as a human right, with 43 votes in favour and 4 abstentions. A year later, the General Assembly ratified Resolution 76/300, where the preamble mentions climate change implications, which interfere with the enjoyment of said “clean, healthy, and sustainable environment” (A/RES/76/300).

These Resolutions prove that a near-unanimous number of states agreed on something that asserts the human right to a clean, healthy and sustainable environment. According to the International Court of Justice’s Nuclear Weapons Advisory Opinion, even though General Assembly resolutions aren’t binding, they can “provide evidence important for establishing the existence of a rule or the emergence of an opinio juris.” With that, United Nations General Assembly (UNGA) decisions can play a significant role establishing human rights under customary international law, a recognised source of law based on long-standing customs, traditions and practices which have normative significance but are not binding (Hart, 2023).

When it comes to the European Union, climate change-related cases surrounding the  European Convention on Human Rights (ECHR) have expanded significantly. Over time, the European Court of Human Rights (ECtHR) has issued several rulings affirming that rights, such as Article 2 and Article 8, encompass the right to safeguard from adverse impacts on the environment that could pose a threat to life or interfere in one’s private and family life. It also acknowledges the positive obligation of States to prevent or alleviate environmental damage, even when the damage is caused by private entities engaging in unsafe activities. At  national level, there are also developments in human rights-based climate lawsuits, such as the Urgenda case in the Netherlands, where the applicants are relying on the principle of fairness, the precautionary principle, and the sustainable principle set in the UN Climate Convention and Articles 2 (Right to life) and 8 (Right to private and family life) of the ECHR to push for a reduction in greenhouse gas emissions.

ECHR Article 3 in the Face of Climate Anxiety: Duarte Agostinho and Others v. Portugal and 32 Other States

Six young Portuguese activists filed a complaint with the European Court of Human Rights (ECtHR) against 32 countries for failing to protect people from the impacts of climate change (Duarte Agostinho and Others v. Portugal and 32 Other States). André Oliveira, one of the young activists, claimed that “all I want is for governments to do what they promised to do” under the 2015 Paris Agreement, whose goal is to limit warming to 2ºC over pre-industrial levels (Demony, 2023).

While living on the front lines of a climate crisis, with Portugal experiencing record-breaking heat and devastating wildfires in recent years, Portuguese children have an increasingly limited capacity for sleep and exercise, causing respiratory problems and psychological anguish. Children are the most established category of vulnerable applicants, they were the first ‘paradigmatic’ example of vulnerability recognised by the ECtHR, ‘inherently and constantly’ vulnerable due to their dependence on others and susceptibility to trauma (Peroni, 2013). The applicants invoked the right to life and respect for private and family life, included in Articles 2 and 8 of the ECHR, as well as the prohibition on discrimination under Article 14 of the same treaty.

Due to feelings of distress, powerlessness, and fear, all in response to climate, ecological issues, and government inaction, the applicants also claimed to suffer from climate anxiety  (Whitmarsh et al., 2022). Furthermore, data suggests that young people are particularly vulnerable to eco-anxiety because of governamental inaction. According to a recent poll, 59% of respondents aged 16-25 were ‘very or extremely worried’ about climate change, with 45% citing negative effects on their daily lives. Additionally, while being the most vulnerable to lifelong environmental risks, children are often excluded from official decision-making, lowering the salience of their concerns at the levels of power and only increasing the resultant mental anguish (Galka, 2022).

With the climate anxiety claim, the ECtHR added the right to not be subjected to torture or inhuman or degrading treatment or punishment, under Article 3, making this the only current climate case before the Court in which this Article has been directly invoked (Mavronicola, 2022).  The Court identifies degrading treatment as something that “humiliates or debases an individual, demonstrating a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish, or inferiority capable of breaking an individual’s moral and physical resistance”. Its legal interpretation clarifies that certain treatments may be considered violations of Article 3, even in absence of significant physical or mental distress or intent behind those actions. While the categories of “inhuman treatment” and “torture” are generally considered to imply a certain degree of intentionality, “degrading treatment” is sometimes assimilated to “less severe” suffering that meets the threshold of Article 3 (Galka, 2022). In addition to these grounds, the ECtHR pays particular attention to any disadvantage resulting from climate change, and has consistently recognized children’s vulnerability (Peroni, 2013).

However, the defending governments argue that the young people have not given enough proof of a “direct causal link; between the governments’ climate policies and the harm they have endured”. They claim that insufficient medical data has been offered to indicate physical and mental health harm. They also reject their responsibilities to safeguard the human rights of citizens living in countries other than their own (Silva, 2023).

Conclusion

It has been  noted that people face serious harm and grave threats to their life and integrity as a result of the effects of climate change. Elements such as heat, sea-level rise, the lack of food and water, all kinds of pollution, as well as natural disasters and diseases cause life-changing issues to individual’s daily lives. These include limited access to basic resources, forced displacement, violent conflicts and psychological trauma from these events (Mavronicola, 2022). On a greater scale, it affects who has more pronounced and often intersecting vulnerabilities. Children and young people are examples of that, experiencing climate anxiety, and feelings of powerlessness as a result of a potential disaster regarding the planet’s current status. 

The identification of Article 3 is only the initial phase of the process. It is needed to address the broader question of attributing responsibility to states for such breaches with evidence. Nevertheless, this trial is beginning to make powerful states accountable, and might facilitate stricter measures to protect the right for a healthy environment.

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Sources

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Demony, C. (2023, August 23). Upset at climate inaction, young people gird for European court battle. Reuters. https://www.reuters.com/business/environment/upset-climate-inaction-young-people-gird-european-court-battle-2023-08-23/

Didi, R. (2023). Using Human Rights as a Weapon to Hold Governments and Corporations Accountable on Climate Change. Climate Action Network Europe. https://caneurope.org/content/uploads/2023/03/REPORT-Using-human-rights-as-a-weapon-to-hold-governments-and-corporations-accountable-on-climate-change.pdf

Duarte Agostinho and Others v. Portugal and 32 Other States (2020). 39371/20. https://hudoc.echr.coe.int/fre?i=002-13055

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