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Climate lawsuits – New thinking is also needed here

Climate change is a massive threat to people and their rights, especially those of the poorest sections of the population. The obligations of states and companies to protect the climate and the environment have therefore been increased in numerous court decisions. Lawyer Miriam Saage-Maß describes the current developments and the need for action.

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The coming decade will be crucial to whether we can still avert the climate collapse predicted by scientists, or at least mitigate it. However, a science-based approach alone will by no means be sufficient to achieve a truly just transition of our societies and economic systems into a climate-neutral age. Rather, what is needed is a human rights-based approach and a clear understanding of the historical responsibility for the climate crisis and the extremely unequal distribution of the damage caused by climate change. 

In the spring of 2021, the Federal Constitutional Court – like the Pakistani and Colombian Supreme Courts before it – found that  climate protection is a human rights obligation of the state is. According to the court, the rights of future generations in particular play a role in the implementation of climate policy in the present. However, this judgment is only a first step. A number of important questions remain unanswered: How should the unequal distribution of climate damage and its consequences be dealt with worldwide? How can the historical responsibility of Western industrialized countries and transnational corporations be taken into account when compensating for climate damage in countries that have contributed little or nothing to climate change? How can it be ensured nationally and globally that the necessary economic and social change is fair and not at the expense of marginalized groups?

The UN Special Rapporteur on extreme poverty,  Philip Alston, pointed  out in June 2019 that the poorest sections of the population within a country and the poorest countries worldwide will bear the worst consequences of climate change. There is a threat of climate apartheid, as Alston calls it: the already rich will protect themselves as best they can with technical expertise and, despite dramatic environmental damage, be able to finance a reasonably comfortable life. 

The poor will be left in need. Although they contribute the least to climate change, it is the marginalized and poor who are least able to protect themselves from the negative consequences of the climate catastrophe. Climate protection measures must therefore be planned and implemented taking into account human rights standards. Otherwise, there is a risk that nature reserves or CO2 compensation areas will be set up at the expense of the indigenous and poor rural population. For example, when reforestation projects or wind farms are not carried out on golf courses or luxury residential areas, but on the land of rural communities. Social, economic and cultural human rights provide clear benchmarks for sharing the burden of climate change: a human rights-based approach will always ask who is affected by certain climate protection measures and how. Social and economic rights, such as the right to water, land and decent housing or the rights of indigenous groups, provide clear guidance for government action and oblige states to better protect vulnerable groups by sharing the burden fairly. 

The question of how to deal with the historical and extraterritorial responsibility of Western states and companies is still unresolved. The legal and political debate about the responsibility of states and transnational companies for damage outside their sovereign territory will therefore have to be discussed even more intensively in the future. The national courts will certainly also play a role in this. A Peruvian farmer's lawsuit  against RWE  is probably just the beginning.

But it is also not enough to focus on social and economic human rights. The rights of nature must also be taken into account. In order to enable a just transition to climate neutrality, Western societies and legal systems must deal with the scientifically proven fact that humans and nature are so closely intertwined that the preservation of human rights depends to a large extent on an intact climate, an intact environment depends. In order to guarantee social and economic human rights, it therefore requires more than appropriate state social policies. Here, too, non-European dishes are pioneers: Whether in India, New Zealand, Guatemala, Ecuador or Colombia,  more and more dishes are recognizing assumes that nature also has legal personality. The rights of nature must not be enforced against the rights of the people who depend on them, as it may seem in some nature conservation projects. The UN Human Rights Council recognized this remarkable development and in October 2021   passed a resolution recognizing the human right to a healthy environment and taking the view that human rights and the environment must be thought of together. A special rapporteur on human rights and climate has also been appointed. 

In order to find a fair way of dealing with the climate crisis, we must not concentrate solely on climate protection measures to protect civil liberties. Rather, the climate crisis must be thought of in the categories of social and economic human rights, Western societies must be clear about their historical responsibility towards the societies of the Global South, also in the legal sense. And we need to understand human rights much more closely in interaction with nature. Only then will we be able to avoid the state of climate apartheid envisioned by Alstom.

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