A Rights Turn in Climate Change Litigation?

Abstract

In 2015, a Pakistani court in the case ofLeghariv.Federation of Pakistanmade history by accepting arguments that governmental failures to address climate change adequately violated petitioners’ rights. This case forms part of an emerging body of pending or decided climate change-related lawsuits that incorporate rights-based arguments in several countries, including the Netherlands, the Philippines, Austria, South Africa, and the United States (US). These decisions align with efforts to recognize the human rights dimensions of climate change, which received important endorsement in the Paris Agreement. The decisions also represent a significant milestone in climate change litigation. Although there have been hundreds of climate-based cases around the world over the past two decades – especially in the US – past and much of the ongoing litigation focuses primarily on statutory interpretation avenues. Previous efforts to bring human rights cases have also failed to achieve formal success. The new cases demonstrate an increasing trend for petitioners to employ rights claims in climate change lawsuits, as well as a growing receptivity of courts to this framing. This ‘rights turn’ could serve as a model or inspiration for rights-based litigation in other jurisdictions, especially those with similarly structured law and court access.

Climate change litigation: A review of research on courts and litigants in climate governance

“…A smaller number of scholars have engaged in doing comparative studies between these jurisdictions (Okonkwo, ; Peel et al, ; Peel & Osofsky, ; Schatz, ; Vanhala, ). But, once again, while the number of legal cases in the Global South has been growing in quantity and importance (e.g., Pakistan, India, the Philippines, South Africa, Colombia, and Brazil), these are yet to receive much scholarly attention (but see Peel & Osofsky, ; Peel & Lin, ). Some scholars have explicitly called for increased attention to trends outside of the U.S. context (Lin, ; Setzer & Bangalore, ; Vanhala, ; Wilensky, ) and there is also a need for more scholarship on litigation (or lack thereof) in civil law jurisdictions outside of Europe and in authoritarian regimes.…”

“…What they describe as a “third wave” of research is concerned with examining the outcomes of climate change litigation, including how it has both influenced climate regulation and acted as such regulation (Keele, ; Peel & Osofsky, , ). In some senses, these waves are not sequential: there is still much research (and need for such research) published in legal journals that falls into what has been described as the “first wave” (see e.g., Blumm & Wood, ; Kysar, ; Peel & Osofsky, ; Spitzer & Burtscher, ; Vollmer, ).…”

“…Scholars that are analyzing legal cases and observing a rise in the number and resonance of human rights frames will answer these questions differently from law and society scholars who are interested in analyzing whether climate litigation truly has the power to shape the practice of human rights on the ground (but see Duyck et al, which covers a range of approaches). For example, Peel and Osofsky () and Limon () find that the Inuit petition (presented to the Inter American Commission on Human Rights in 2005)—the first high‐profile attempt to use human rights norms to generate action on climate change—had “considerable impact” (Peel & Osofsky, , p. 47) because of the role the petition played in political agenda‐setting at the regional and UN level. Other research, focusing on different scales, examining the impact the petition had on the Inuit community itself presents a complex picture and is more skeptical about the on‐the‐ground benefits of litigation (Jodoin, Snow, & Corobow, forthcoming).…”

“…We highlight some general trajectories of research on climate litigation—from dominance by lawyers to interest among social scientists, and from a focus on certain actors (e.g., NGOs and oil producers) to a broadening of the types of litigants and actors that are involved in climate change litigation. We then explore four key and emerging themes in the interdisciplinary literature on climate change litigation: the relationship between litigation and governance; how time and scale feature in climate litigation; the role of science in climate change litigation; and what has been coined the “human rights turn” in climate litigation (Peel & Osofsky, ). For each of these we highlight emerging findings, key gaps in understanding and future avenues for research.…”

Realizing the Right to Be Cold? Framing Processes and Outcomes Associated with the Inuit Petition on Human Rights and Global Warming

“…This literature has explored the potential of lawsuits to engender positive outcomes for combating climate change not only through the provision of effective legal remedies for climate harms, but also by transforming how climate change is defined and should be addressed (Nosek ; Osofsky ; Peel and Osofsky ). Climate cases that draw on human rights norms and arguments are most notably seen by scholars as having significant potential to transform the politics of combating climate change, infusing it with greater concern for the ways in which climate change may harm affected communities, fostering alliances between climate justice activists and other social movements, and generating opportunities for climate activists to mobilize citizens from disadvantaged segments of the population (Nicholson and Chong ; Peel and Osofsky ).…”