Credits: Glen Bledsoe, from Flickr.com

By Martina Olivera

This post is the second part of a two-part discussion on state obligations regarding adaptation to climate change and the International Court of Justice. You can read Part 1 here.

The first part of the blog post introduced the reader to ICCL and described the relationship between climate change and human rights to justify the importance of adopting a human rights approach to the state's obligations on adaptation to climate change. Furthermore, it analysed some state obligations identified by the Human Rights Committee concerning adaptation to climate change. This second part of the blog post will examine the relevant regional and national cases for the ICJ to consider while adopting the AO on climate change and will provide an overall conclusion.

‘Global stocktake’: regional and national level

At the regional level, it is worth noting one missed opportunity of the recently adopted judgments on climate change cases by the ECtHR (here). The KlimaSeniorinnen v Switzerland case was presented by an association of senior women because their health was threatened by the heat waves caused by climate change and the inadequate climate policies adopted by the Swiss government. Even though the Court addressed the merits of the case, it explicitly said that they would not engage with the adaptation measures (not) adopted by Switzerland. According to the judges, to conclude with the violation of the positive obligations of Switzerland under Article 8 ECHR (the right to respect for private and family life), would be enough to analyse the failure to adopt mitigation measures (para. 555).

Similar to the findings on the right to life in the Billy and others case discussed in part 1, in the KlimaSeniorinnen v Switzerland case, the ECtHR argued that there has to be a ‘real and imminent risk to life’ in order to determine a violation to Article 2 ECHR (paras. 511-513). This pattern shows us that, according to the current developments in human rights law, a violation of the right to life arising from climate change might only be caused by a ‘real and foreseeable’ or ‘real and imminent risk’ to life. This high threshold does not mean that, in the future, there might be an evolutive interpretation of the specific implications of climate change for the right to life.

In fact, at the national level, we find a slightly different approach to the threshold for the right to life. In the Urgenda case (here), the Dutch Supreme Court ruled that the state’s obligations arising from an imminent threat to the right to life and to private life and family (Articles 2 and 8 ECHR respectively) may encompass adaptation measures (para. 5.3.2).

In that case, the Dutch Supreme Court found that the ‘threat’ and not the ‘risk’ to life was enough to declare a violation of the right to life and to private life and family. In this sense, the ICJ might have to face a decision on whether to add the high threshold, the lower one or to remain silent about this situation. In my opinion, considering that 2023 was the warmest year in the 174-year observational record according to the World Meteorological Organization (WMO) and that scientists had already released ‘final warnings’ in terms of the climate crisis, I believe that adopting a higher threshold might be unrealistic.

We find two other decisions at the national level regarding adaptation to climate change. In Pakistan, a farmer sued the national government for the failure to implement the already existing climate change policy, which negatively impacted his right to life. In 2015, the High Court of Lahore ruled in favour of the applicant by determining that ‘the delay and lethargy of the state in implementing the Framework offend the fundamental rights of the citizens’. From this statement, it can be argued that states have a duty to develop a policy and implement it without delay. This obligation to adopt and implement adaptation measures without delay was also identified at the international level in the Billy case analysed in part 1.

Finally, in Colombia, inhabitants of a small town argued that due to climate change and increases in the population, the reservoirs of natural water dried out; consequently, the government should cover the provision of basic services. The Constitutional Court ruled in favour of the claimants and ordered the government to ensure the provision of water. An interesting point in this judgment is that the state’s duties were intensified due to climate change.

This last ruling implies that, as an adaptation measure to climate change, the states hold the obligation to provide basic water services, which should be taken into consideration by the ICJ in their reasoning. This is especially relevant since this determination is in line with the UNGA Resolution 64/292 of 2010 which explicitly recognized the human right to water and sanitation and acknowledged that clean drinking water and sanitation are essential to the realisation of all human rights (See also General Comment no 15 of the Committee on Economic, Social and Cultural Rights).

Concluding remarks

The state’s obligations regarding anthropogenic climate change touches upon different branches of IL, including IHRL. In this sense, the ICJ has the responsibility to condense in one document all the state obligations scattered around different treaties. But it also has the unique opportunity to recognize the relationship between IHRL and ICCL as well as to take the practice of national, regional and international jurisdictions to interpret the obligations of the states regarding adaptation to climate change from a human rights perspective.

The national, regional, and international practices show us important leads for the ICJ to address when analysing state obligations regarding adaptation measures to climate change that arise from human rights law. In this sense, the ICJ should engage with the promptness of the adoption of adaptation measures, the individual responsibility of states when acting in front of climate change adaptation, the obligation to provide basic water services, the intensified obligations of states when dealing with climate change and, especially, with the groups more vulnerable to climate change, like Indigenous communities.

Bio: