Litigating the Climate Emergency: The Global Rise of Human Rights-Based Litigation for Climate Action

Abstract

This article analyzes the rise and proliferation of human rights-based climate change (HRCC) litigation. It presents the results of a study of the universe of HRCC cases filed in domestic courts and in regional and international judicial and quasi-judicial bodies around the world. This article focuses on the period after the 2015 Paris Climate Agreement, during which the large majority of cases have been filed or decided. I argue that the regulatory logic and the strategy of HRCC litigation should be examined at the intersection of international and domestic governance. Specifically, I posit that litigants have predominantly followed a two-pronged strategy. They have (1) asked courts to take the goals of the climate regime (as set out in the Paris Agreement, IPCC reports, and other authoritative sources) as benchmarks to assess governments’ climate action and (2) invoked the norms, frames, and enforcement mechanisms of human rights to hold governments legally accountable for such goals. In the face of governments’ reluctance or hostility towards taking the urgent measures that are needed to address the climate emergency, HRCC litigation can be viewed as a bottom-up mechanism that provides domestic traction for the international legal and scientific consensus on climate action. However, climate change is too complex a problem for any single regulatory tool to adequately address. Rights-based litigation is only one such tool – one that, as this article shows, has its own challenges and blind spots, including insufficient attention to climate adaptation, corporate responsibility, and the limitations of human rights norms in dealing with the complex causality and temporality of global warming.