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Climate lawsuits turn to human rights in search of justice
A person holds inflatable Earth as climate activists stage a protest demanding more action whilst G20 climate and environment ministers hold a meeting in Naples, Italy, July 22, 2021. REUTERS/Guglielmo Mangiapane
What’s the context?
Climate litigation is increasingly using human rights laws as basis to hold countries and companies to account on green pledges
- More climate litigation now using human rights as basis
- Countries, companies face climate lawsuits across borders
- Companies can work with communities to cut legal risks
KUALA LUMPUR/MUMBAI - Indonesian fisherman Radith Giantiano is still suffering the fallout of tropical cyclone Seroja two years after it devastated his coastal community with heavy rains, floods and landslides.
The 30-year-old from Kupang in the eastern province of East Nusa Tenggara has since seen his fishing catch shrink after the cyclone damaged coral reefs, sunk boats and destroyed homes. Seroja - one of the most powerful cyclones to ever hit Indonesia - killed more than 160 people nationwide in April 2021.
But rather than just wait for the next climate disaster to land, Giantiano is one of 13 complainants looking to take legal action against the Indonesian government - part of a global trend of climate litigation based on human rights violations.
The complainants - made up of youths and communities from across Indonesia - claim the government has violated their human rights under the constitution, as they face life-threatening challenges, and adverse impacts to their health, education, livelihoods, food and water supplies due to climate change.
Giantiano said the goal was to show the government that the "climate crisis has already happened to us", and that Seroja "should really be a lesson" - urging them to listen to their complaints and prepare better for future climate disasters.
Used to enforce or enhance climate commitments by countries and companies, such cases no longer just target fossil fuel industries but also sectors such as agriculture, aviation, transport, plastics and finance, according to Will Nichols, head of climate and resilience at Verisk Maplecroft.
But with limited success rates to date, activists are increasingly turning to human rights laws as the basis of climate litigation - be it through international, national or local courts, he said.
Boosted by the U.N. General Assembly resolution declaring the right to a healthy environment a human right in July 2022, campaigners and lawyers are using these basic rights - such as a clean and healthy environment that are often enshrined in constitutions or in international law - to launch lawsuits.
Forty such cases were brought between 2015 and 2020, especially in nations or states that have guaranteed rights to a healthy environment in their constitutions or local and national laws, according to Verisk Maplecroft.
"The pivot that these activists have taken is to start using human rights law," London-based Nichols said in an interview. "It seems to be a newer approach."
Climate lawsuits ignore national boundaries
In late 2021, the U.N. Human Rights Council recognised access to a clean and healthy environment as a fundamental right, formally adding its weight to the global fight against climate change.
Then, in March this year, the International Court of Justice - the world's top court - was empowered to define the obligations of states to combat climate change - a legal opinion that could drive countries to take stronger measures.
Previously, climate activists were also emboldened by a landmark ruling by a Dutch court in May 2021 that ordered energy giant Royal Dutch Shell to drastically deepen planned greenhouse gas emission cuts, according to Nichols of Verisk Maplecroft.
Highlighting the shift, the European Court of Human Rights will hear three climate cases based on human rights this year, with more than 30 European countries accused of infringing citizens' rights by failing to act on climate change.
"This is something companies need to be increasingly aware of," said Nichols, adding that there are around 150 countries that have some sort of right to a clean environment as a constitutional right.
Such litigation will likely focus on nations such as India Indonesia, and Nigeria, which have less robust courts, poor climate records, limited environmental protections, and often an abundance of natural resources, according to Nichols.
Recent examples include a lawsuit filed by a group of Torres Strait Islanders against the Australian government, and a complaint brought to a Swiss court by several Indonesian residents against the world's top cement-maker Holcim, he said.
To mitigate litigation risks, Nichols said firms should engage with local communities and people impacted by their operations to became a "good neighbour", and warned that they could face lawsuits in countries where they are headquartered.
"We're starting to see more extra-territorial litigation, so companies being taken to court in European countries even though the offence, as it were, is taking place elsewhere," he said.
"They could come for you on your home patch, as it were. There are a lot of different frontiers of risk."
Young leaders drive action in India and Indonesia
For Indian teenager Ridhima Pandey, the death and destruction caused by flash floods in the northern state of Uttarakhand in 2013 motivated her to take legal action.
Pandey was nine when she sued the Indian government in 2017 - saying it had failed to implement its environment laws.
The legal action called on the National Green Tribunal of India - a special court for environment-related cases - to direct the government "to take effective, science-based action to reduce and minimise the adverse impacts of climate change".
Her petition was dismissed in 2019, but Pandey then took it to the Supreme Court, where it is currently pending.
The now 15-year-old climate activist said that while researching climate change, she made the connection between the actions of older generations and the human rights of children being violated.
"My life will change, my generation will suffer in the coming years and we are not the ones creating problems. I found nobody cared and that is why I wanted to do something," she said.
"Elders are said to have all the sense and they are meant to teach but they were doing the total opposite for me, which is why I filed this petition."
In Indonesia, campaigners began to brainstorm with green groups about possible climate litigation in 2021, said Melissa Kowara, an activist with Extinction Rebellion and youth-led coalition group Jeda Untuk Iklim ("Strike for Climate").
They invited the public to respond to questionnaires online, contacted communities impacted by climate disasters, and asked lawyers from legal non-profits to help build the case, she said.
The complaint is seeking the backing of the country's human rights commission to give it more credibility, with the aim of filing a legal challenge in 12 to 18 months time.
"Our case says that the government has the responsibility to uphold our basic human rights," said Kowara, who has a key role preparing the legal action involving the fisherman Giantiano.
"(These) include water, food, safety, health, life, education - and all the things that are going to be threatened by the climate crisis."
Giantiano, who began fishing aged 10 after being taught by his grandfather, said that the tuna and mackerel he catches are now becoming increasingly hard to find, forcing him to fish further out to sea in rougher waters.
"We want a life in the future that is better than now," he said, adding that he was worried about future generations.
"We already tried to reach the government ... Maybe by going through these (legal) channels, we can finally be heard."
(Reporting by Michael Taylor in Kuala Lumpur and Roli Srivastava in Mumbai; Editing by Kieran Guilbert and Laurie Goering)
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