While 2020 was a tumultuous year for climate change- think of the Californian and Australian bushfires, massive locust swarms, and Antarctic ‘green snow’- it was full of environmental law breakthroughs. From a historic UN Human Rights Committee decision that opened the door to future climate refugees to migrate to other countries, to the quashing of Ireland’s “excessively vague and aspirational” climate change mitigation plan, let’s take a look back at some of the most noteworthy legal cases of 2020.
Amping up Protections for Climate Refugees: Ioane Teitiota v New Zealand
2020 heralded a major decision that amped up legal protections for “climate refugees,” referring to those seeking refuge from the adverse effects of climate change. In its first landmark ruling on climate refugees Ioane Teitiota v New Zealand, the UN Human Rights Committee held that receiving states cannot deport individuals facing climate change-induced conditions that infringe their right to life.
Ioane Teitiota brought this case before the Committee in 2015, claiming that New Zealand had violated his right to life by removing him and his family back to Kiribati. He claimed that Kiribati had become an “untenable and violent environment” for them due to the adverse effects of sea level rise, which included coastal erosion and regular flooding, scarcity in habitable space leading to violent land disputes and saltwater contamination of freshwater supply. In 2013, he and his family’s refugee claim was rejected by the New Zealand Immigration and Protection Tribunal, on the grounds that there was no evidence of life-threatening environmental conditions in Kiribati and that sufficient protection measures had been implemented by the Kiribati Government to protect its citizens from climate change. They were subsequently deported back to Kiribati.
While the Committee’s ruling did not change the outcome of Teitiota’s case- since the Committee ultimately found that the Kiribati Government could take affirmative measures to protect and relocate its citizens in the next 10 to 15 years before Kiribati became uninhabitable – Committee expert Yuval Shany praised this ruling for “[setting] forth new standards that could facilitate the success of future climate change-related asylum claims.” Notably, the Committee accepted that climate change and environmental degradation threatens the ability of present and future generations to enjoy the right to life. Extreme environmental risks, including the submersion of an entire country, may cause living conditions to become incompatible with the right to life with dignity even before the risk is realised. As such, the Committee clarified that climate refugees need not prove that they will face imminent harm if returned to their home countries, effectively extending refugee protections to those fleeing from slow-onset processes like sea level rise. The Committee also held that without robust national and international efforts, the effects of climate change may expose individuals to violations of their right to life, thereby triggering an obligation on climate refugee-receiving states to refrain from expelling these individuals to their home state, where they would be in danger of being subjected to irreparable harm – in other words, enlivening the non-refoulement obligation of climate refugee-receiving states. Moving forward, this case may open up the doors for future climate refugees to migrate to other countries and clarifies the legal burden they have to meet.
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Continuing the “Human Rights Turn”: Lhaka Honhat Association v Argentina
Another significant decision in 2020 was handed down by the Inter-American Court of Human Rights in Lhaka Honhat Association v Argentina. This was the first contentious case where the Inter-American Court ruled on a violation of the right to a healthy environment, continuing the trend of using human rights arguments as the dominant climate litigation strategy, coined the “human rights turn.” It was also the first Inter-American Court case related to an Indigenous claim in Argentina and a “first sign of justice for a centuries-old debt” to the Lhaka Honhat, an association of 132 Indigenous communities located in the Salta province in Argentina.
This case was first brought to the Inter-American Commission on Human Rights in August 1998 by the Lhaka Honhat, representing more than 10 000 Indigenous individuals, who alleged that the Argentinian Government had not provided full legal recognition of title to their ancestral lands. Indigenous representatives alleged that the Government had violated their property rights, guaranteed under Article 21 of the American Convention on Human Rights, by allowing the continued co-existence of other communities on their ancestral lands and permitting activities like uncontrolled cattle grazing and illegal logging that damaged their environment, food and cultural identity.
The Inter-American Court upheld the violation of property rights by Argentina, noting that the special character of Indigenous ancestral lands and the dependence of Indigenous communities on these lands placed a greater due diligence burden on governments, such that Indigenous peoples must enjoy their traditional way of life, benefit from any activities carried out on their territory, and participate in free, prior and informed consultations. Given that the Argentinian Government had failed to take sufficient action to ensure that the Indigenous communities could enjoy their property without interference, they had breached their due diligence obligations.
The Court made valuable observations on the autonomous right to a healthy environment, which it derived from Article 26 of the American Convention providing for “progressive development of economic, social, educational, scientific and cultural standards.” It established that the right to a healthy environment was intricately linked with the right to food, water and cultural identity, and that states had an obligation not only to respect these rights, but also an obligation to prevent third parties from violating them, since they were a “universal interest” and “fundamental for the existence of humanity.” On the facts, Argentina failed to guarantee the Indigenous communities their property rights, which in turn detrimentally affected their traditional way of life and violated their rights to water, food and a healthy environment. Moving forward, this case will be a valuable precedent for how states should attend to the needs of Indigenous peoples and, more generally, the right to a healthy environment.
Challenging Inadequate Government Policy: Friends of the Irish Environment v Ireland
Praised by the UN Special Rapporteur on human rights and the environment David Boyd, as a “landmark decision,” the Supreme Court in Friends of the Irish Environment v Ireland quashed the Irish Government’s National Mitigation Plan for climate change, because it was not “sufficiently specific” as to how the mitigation targets laid out in the plan would be met over the whole period to 2050. Such specificity was important, so as to enable members of the public to judge whether the plan is “effective and appropriate” for meeting the national mitigation targets by 2050. The Court’s willingness to hold the Irish Government to account is not only monumental for Irish climate law, it also provides a standard against which to judge other governments’ climate plans and a possible basis for litigation in other countries.
Climate Protesters on Trial: Credit Suisse Protesters Trial
Following intense climate protests in 2019 like Extinction Rebellion’s, many protesters were arrested and charged. 2020 saw some of these protesters put on trial. In Switzerland, it was a tumultuous year for twelve climate protesters, mostly students, who had occupied a Credit Suisse branch to protest against its fossil fuel investments and were subsequently charged with trespassing and fined. The protesters initially had their fines overturned, because a District Court judge held that the protesters’ actions were necessary and proportional to the imminent danger of the climate crisis, which the Swiss Government had contributed to by failing to take sufficient measures against climate change. The protesters used a novel defence called the “state of necessity,” arguing that their actions were required due to the urgency of climate change.
Later in September, the protesters were once again found guilty of trespassing on appeal. While the Appeal Court agreed that the danger of climate change was “imminent,” it held that the defendants could have employed other means of protesting. It will be interesting to see how courts approach the trial of climate protesters in the future.
Summing up 2020’s Litigation Lessons
2020 was a year full of noteworthy environmental law cases. Looking back, we can see that climate litigation was a useful tool to clarify environmental obligations, initiate new climate change mitigation measures or challenge existing measures, and protect the human rights of vulnerable groups. As we continue to battle with the COVID-19 pandemic in 2021 and consider how to rebuild and strengthen our environmental systems, climate litigation may remain as important as ever.