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By Luísa Cristina Pinto e Netto

This inaugural blog is part of a series welcomed by the Netherlands Network for Human Rights Research to present our new working group, which aims at engaging in the climate problematique from a human rights perspective. But what about sustainability?

There is a necessary intersection between human rights and sustainability, embodied in the Sustainable Development Goals (SDGs). Furthermore, there are common obstacles, namely the definition of positive obligations for States, the redefinition of relations between State powers, and the derivation of obligations for private actors. These obstacles make the importance of justiciability clear, since the effectiveness of rights and sustainability often depend on the judiciary and the procedural means available. Sustainability constitutes an important tool to tackle the climate crisis and rights effectiveness. It has not, however, experienced enough appeal in litigation.

It seems meaningful, therefore, to explore the “best practices” of rights-based climate litigation as a basis for advancing sustainability as a justiciable concept. With this goal in mind I refer to three paradigmatic domestic decisions to illustrate the transformative influence rights have on climate litigation. These cases specifically concern the imposition of positive State duties (Leijten; Eckes): the Urgenda case and the Shell case, in the Netherlands, the case of Federal Climate Change Act, in Germany.

In the Urgenda case, decided in December 2019, the Supreme Court of the Netherlands ruled that the State, under the European Convention on Human Rights (ECHR), especially Articles 2 and 8, has positive obligations to reduce greenhouse gas (GHG) emissions to fulfill its duties of protection. Also in the Netherlands, in May 2021, the District Court of The Hague, in a pioneering decision with regards to a private company, ordered Shell to reduce GHG emissions (the process is still ongoing). The basis of the decision was very similar to the Urgenda case and stated that the company has, under Dutch law, a duty of care which was linked to the rights provided for in the ECHR. In Germany, in April 2021, the Federal Constitutional Court ruled on a constitutional complaint on the constitutionality of aspects of the Federal Climate Change Act, concluding that the law had to be improved, because if the policy provided for in the law would be followed, the future reduction of gas emissions required would represent a severe and disproportionate restriction of the freedoms of future generations.

Among these decisions, the Urgenda case stands out due to the following pioneering aspects (pointed out in the literature: Leijten; Eckes; Burgers/Nollkaemper; Spier; Backes/Veen; Spijkers):
- the use of human rights (Articles 2 and 8 of the ECHR) linked to climate change as a basis for imposing positive obligations on the State;
- the absence of a concrete imposition of legislation (dismissing strong criticism about a possible breach of Parliament's competence) combined with the recognition of a positive obligation in relation to a specific goal (the reduction of GHG emissions) to be achieved by the State as a result of international binding legal commitments;
- the affirmation of the binding nature of the State duties, towards human rights, to pursue the specific climate-related goal;
- the innovative analysis of the climate related risks that may lead to rights violations, specifically with regard to the requirement of ‘real and imminent’ and ‘directly threatening risk to the persons involved’;
- the development of the ‘collective dimension’ of individual rights in an ‘environmental scenario’;
- the use of scientific evidence – linked to (i) the absence of sufficient justification by the State for not pursuing the climate related goal and (ii) the lack of sufficient alternative measures – as a basis for imposing positive obligations on the State aiming at the climate related goal;
- the affirmation of positive duties and obligations for an individual State even in the face of global problems which demand action by other actors.

The analysis of the following aspects from Urgenda, seeking to find resonance in the other domestic decisions mentioned, points to possible paths to enhance the justiciability of sustainability: (i) the affirmation of individual State obligations and duties to implement proportionate and sufficient measures, even in the face of the global nature of the problem and the responsibility of other actors; (ii) the use of available reliable scientific evidence to support the imposition of concrete positive obligations on the State; and (iii) the judicial imposition of positive obligations on the State. These paths are addressed in the paragraphs that follow.

With regard to individualized obligations in the face of global problems, in the Urgenda case, the Court stated that the Dutch State has to fulfill its own concrete positive obligations which arise from international norms and commitments, and cannot excuse itself on the grounds that the behavior of other States is also at stake. In the Shell case, the UN Guiding Principles on Business and Human Rights have been invoked to strengthen the duty of care (Macchi, Van Zeben) and to transform the obligation of unwritten liability into a concrete and specific judicial imposition on the company. The German Federal Constitutional Court, in a similar direction, stated that despite the undeniable international dimension of the climate crisis, Germany is responsible for implementing its own climate actions and measures sufficiently.

Scientific knowledge has played an important role in climate litigation (Stuart-Smith et al). In the Urgenda and Shell cases, data provided by climate scientists was used to support the State/company’s duty of care as an imposition to act proportionately and sufficiently. The German Federal Constitutional Court also made use of science to confront the role and discretion of the legislator. The Court did not deny a degree of scientific uncertainty surrounding the problem of calculating, within a cost-benefit analysis, the causes and effects of GHG emissions (Ekardt/Bredow). This explains why the Court asserted that, in the face of such uncertainties, it must exercise its power of constitutional review carefully. On the other hand, the Court stated that this does not mean that there is an open space of discretion for the legislator; according to Article 20a of the German Constitution, a special duty of care arises for the legislator in the face of uncertainties.

In both Dutch cases, positive obligations were judicially imposed on the State and on Shell. The German Federal Constitutional Court, likewise, in the decision mentioned, asserted that the State has a duty to protect life and physical integrity (Art. 2(2) first line, German constitution), which, combined with the duty to act in relation to the climate (Art. 20a), imposes an obligation, including on the legislator, to take sufficient precautionary steps to ensure the transition to climate neutrality.

The UN High Commissioner for Human Rights asserted in relation to Urgenda that international human rights law imposes a legal obligation on States to reduce GHG emissions. Essentially, rights impose concrete positive obligations on States based on international human rights standards. Rights act as a bridge between States’ general duties and concrete and specific obligations; they fulfill norms related to liability and to the duty of protection (Savaresi; Setzer).

These three examples serve to advance the justiciability of sustainability. Ingrid Leijten wrote “Climate change is a human rights issue.”; maybe we can say, more broadly, that sustainability is a humans rights issue and, therefore, we should learn from the rights-based domestic climate litigation in order to advance sustainability as a justiciable concept.

Bio

Luísa Netto is Asst. Professor at Leiden University and joined the Department of Constitutional and Administrative Law in 2023, after having worked for more than 20 years in Brazil as a state attorney and law lecturer. She holds a PhD from Lisbon University, where she defended a thesis on the open character of the fundamental rights system.