Can countries be sued over climate change?

By Martha Onate Inaingo

Published on: October 16, 2023 at 11:25 IST

Over the years, climate change issues have been the subject of global debate in the United Nations conferences, regional organizations conferences and national conferences. The world is our home, keep it safe, keep it healthy, have been slogans chosen by countries and states to initiate movements that address climate change.

Climate change have negatively impacted on the environment, economy, and sustainable development of countries in different parts of the world. Countries around the world suffer environmental challenges like drought, flood, famine, storms, wildfires, cyclone etc. which turns out to further impact industries like the agricultural sector, transportation , telecommunication and so on. This is why the subject of climate change is of paramount importance globally.

A number of laws have been instituted at the global level in recognition of the fact that climate change is a major threat to the environment and economic development of every country in the world. About 150 countries around the world are parties to these laws: Sustainable Development Goals, The United Nations Framework Convention on Climate Change 1992, Kyoto Protocol 1997 and the Paris Agreement 2005, the Vienna Convention for the Protection of the Ozone Layer 1985, and the Montreal Protocol 1987.

Based on these international laws and some municipal laws regarding climate change or environmental protection, individuals have instituted actions against other individual, companies, and organizations.

This Article intends to address the issue of climate change, and answer the questions; can an individual institute a climate change related matter? If yes, what are the legal provisions available for an offended party to institute climate change related matters? And the crux of this research, whether countries can be sued for climate change related matters?

What is Climate Change?

Climate change is often used interchangeably with global warming, however the terms are different. Climate Change is a general term that refers to the shifts of temperatures and weather patterns over the long-term.^[1]

Article 2 of the United Nations Framework Convention on Climate Change (UNFCCC) defines climate change as “a change in climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable periods of time”^[2]

The major effect of climate change is global warming which can lead to a global heat wave. Global warming typically refers to the increase in the temperature of the earth surface and this is usually caused by the emission of green house gases. Weather patterns that are peculiar to seasons of the earth are subject to change and quite unstable to predict because of climate change.

What are the causes of Climate Change?

Some of the causes of climate change are natural due to changes in the activity of the sun and moon or large volcanic eruptions while others are based on human activities which includes burning of fossil fuels such as coal, oil and gas, deforestation and industrial activities that contribute to the emission of green house gases such as methane and carbon dioxide.^[3]

Climate Change has negatively impacted on countries all over the world ranging from intense droughts, water scarcity, severe wildfires, rising sea levels and salt water intrusion, flooding, melting polar ice, catastrophic storms and declining biodiversity.^[4]
The severe effects of climate change has affected health, agriculture, housing, safety and work, migration etc. In present times, there are more climate refugees than it was recorded five years ago due to conditions such as flooding, water scarcity or any other negative impact of climate change that caused people to relocate.

South Asian countries like India, Bangladesh, Pakistan, Nepal, Maldives, Sri Lanka, Afghanistan have also suffered the severe impacts of climate change as they often experience droughts, floods, cyclones, heat wave, hail storms, sea water intrusion related coastal salinity, and hence, food security and nutrition.^[5]

Laws Regulating Climate Change

Climate change was not a global issue until the 20^th century when production activities by many industries in various countries radically contributed to the increase of emission of green house gases. Developed countries like China, Russia, United Kingdom, the United States of America, and India were recorded as the biggest emitters of greenhouse gases and needed to be regulated because of the world wide impact.

Since climate change affects countries in every part of the world in one way or the other, laws were put in place to address the global challenge and regulate carbon emissions in order to ameliorate the impact of climate change. Some of the international laws addressing climate change are enunciated below:

• The Vienna Convention for the Protection of the Ozone Layer 1985 and the Montreal Protocol 1987, and subsequent amendments.

These international laws were adopted for the regulation and control of the production and use of chlorofluorocarbons and any other substances that deplete the Ozone Layer. These laws are responsible for stipulating that the production and use of chlorofluorocarbons have phased out and recommend environmental friendly substances for the production of machines, equipment and other electronics e.g. refrigerators, air conditioners etc. ^[6]

• The United Nations Framework Convention on Climate Change (UNFCCC) 1992

The United Nations Framework Convention on Climate Change (UNFCCC) was signed by about 150 countries in Rio de Janeiro in June 1992,

The UNFCCC is one of the most far-reaching treaties ever negotiated and adopted as a significant step to addressing the challenge of global warming and climate change.^[7] It was signed in Rio de Janeiro in June 1992, by about 150 countries. It is not on its own binding however it served as a measure to scrutinize and monitor the emission of greenhouse gases of countries that are party to the treaty. The provisions of the UNFCCC imposes some form of obligations on the countries that are party to it.

Article 2 of the UNFCCC states the objective of the treaty which is ‘…stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.

The UNFCCC established a number of international environmental principles which includes the Intergenerational Equity Principle, Precautionary Principle, Principle of Sustainable Development, and the promotion of supportive and open international economic system.^[8]

The first principle is provided in Article 3 of the UNFCCC which states that ‘The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities’.

Article 4 of the UNFCCC provides for all parties to the treaty to make undertaking that they are committed to meeting the treaty’s objective. Although these commitments were not binding and were stated in general terms in the framework convention, additional legal instruments that were negotiated later made the commitments more specific by stating the permissible emission levels of each country. The UNFCCC defines three categories of countries that are parties to the treaty; developed countries, developed countries with special financial responsibilities, and developing countries, and establishes different emission commitments and responsibilities for them.^[9]

All parties to the Convention were required to develop, periodically update, publish, and make available to the Conference of the Parties (COP) their national inventories of emissions of all greenhouse gases that are not under of the Montreal Protocol.^[10]

• Kyoto Protocol 1997

The Kyoto Protocol is the additional legal instrument to the United Nations Framework Convention on Climate Change. It was named after the Japanese city where it was negotiated and adopted on December 11, 1997; was opened for signing on March 1998 and came into force on February 16, 2005.^[11]

The Kyoto Protocol is one the most detailed and influential plans undertaken by the UNFCCC. In the efforts to combat climate change, the protocol introduced three flexibility mechanisms to enable countries to meet up their emission requirements and to promote businesses and low-income countries to contribute to the efforts of reducing emissions that cause global warming.^[12]

The Protocol categorized parties according to their different commitments, into three main groups as Annex I, Annex II, and Non-Annex I countries. The Annex I parties are the big emitters who are required to reduce emission by a given percentage that varies among the countries. The specific requirements are known as emission targets.

The Annex II parties are required to provide financial support to developing countries to enable them reduce their greenhouse gas emissions, while the Non-Annex I parties which are mostly low-income countries do not have legally binding targets to reduce their emissions during the first commitment period.^[13]

• Paris Agreement

The Paris Agreement was the first climate treaty to explicitly recognize the relevance of human rights to climate change, and that actions to address climate change must comply with human rights obligations.^[14] The Agreement also commits states to minimize the economic, social and environmental impacts that may result from the implementation of response measures to mitigate or adapt to climate

The Paris Agreement preamble focuses only on states’ response measures, not the human rights implications of climate change itself. OHCHR advocates a broader approach, underlining that states should not authorize activities or adopt policies leading to environmental impacts that in turn affect the enjoyment of human rights (for example, the right to life, family life or property).

These laws formed the basis for countries to make national laws addressing the subject of climate change and also enabling individuals, organizations, companies and countries to sue for climate change based matters.

Findings in the Global Climate Litigation Report compiled by the Sabin Center for Climate Change Law at Columbia University and the UN Environment Programme (UNEP) and published before the first anniversary of the UN General Assembly’s declaration of access to a clean and healthy environment as a universal human right, show that the total number of climate change cases have increased since 2017, from 884 to 2,180 in 2022.^[15]

The Report which is based on review of cases that are hinged on climate change concludes that climate litigations are not peculiar to the US as they taking root world wide in developed and developing countries, in Britain, Europe, Australia and Asia and are gradually becoming an integral part of securing climate action or justice, in international, regional or national courts and other adjudicatory bodies.^[16]

Can countries be sued over climate change?

According to Michael Burger, the Executive Director of the Sabin Center in the Global Climate Litigation Report, “Litigation is a critical tool that’s available to a wide range of actors, including governments at all levels, nongovernmental organizations and community groups, individuals and the private sector to seek to advance climate action,” this shows that litigation has now become a tool that is used to compel companies, and countries to reduce their carbon emissions or achieve net zero.^[17]

The report shows that climate change based litigations are not just instituted against countries but also against companies or corporations that have failed to fulfil their international commitments or adopt purposeful climate change policies.

The report divided climate change litigations into six categories which are:^[18]

• Cases Relying on Human Rights Enshrined in International Law and National Constitutions

The ground for cases under this category is that fundamental human rights such as right to life, health, food and water that are protected by international laws or national constitutions are violated when appropriate climate measure are not taken.^[19]

UNEP report illustrates that court decisions are beginning to link human rights and climate change and that it is intended to protect the most vulnerable groups in society as well as encourage accountability, transparency and justice, that would compel governments and corporations to adopt more achievable climate change mitigation and adaptation measures.^[20]

In the case of PSB et al. Vs. Brazil, ^[21] where the applicants alleged the Brazilian government of failure to implement its Action Plan for the Prevention and Control of Deforestation in the Legal Amazon violated the fundamental rights of indigenous people and future generations and contributed to dangerous climate change, the Brazil Supreme Court held that the Paris Agreement is a human rights treaty which enjoys ‘supranational’ status.

Another successful case was that of Future Generations Vs. Ministry of Environment Colombia,^[22] where 25 youths sued several parastatals within the Columbian government for failure to tackle deforestation of the Amazon or take the necessary measures to reach the targets set by the Paris Agreement and the Colombia’s National Development Plan.

The Colombian Supreme Court held that the Colombian Amazon is a ‘“subject of rights”, and its entitled to protection, conservation, maintenance and restoration by the State and the territorial agencies’.^[23] The court ordered generally that the various government agencies, with claimants, the communities affected and the interested population to participate in formulating a short, medium and long-term action plans within four months to mitigate the rate of deforestation in the Amazon, thereby tackling climate change effects.

In a similar case in September 2022, the UN Human Rights Committee found that the Australian government violated it’s human right obligations to the indigenous residents of Torres Strait Island, because the inadequacy of its climate policy and climate inaction. The Commission ordered Australia to implement significant climate change adaptation measures.^[24]

On August 14, 2023 a state judge made a landmark ruling in the Montana case brought by 16 young people alleging that the state’s dependence on an energy system that uses fossil fuels amounts to a violation of their constitutional rights to a healthy environment. The ruling was that laws limiting the ability of regulators to take climate impacts into consideration are unconstitutional. The decision influenced other lawsuits by young climate activists in Utah, Hawaii and Virginia.^[25]

The most controversial case is the one of Duarte Agostinho and Others Vs. Portugal and 32 Other States,^[26] six Portuguese youth instituted an action in the European Court of Human Rights against 33 countries (Member States of the Council of Europe which are, Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Greece, Denmark, Estonia, Finland, France, Croatia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain and Sweden, as well as Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom.

The complaint relying on Articles 2, 8, and 14 of the European Convention on Human Rights, which protects the right to life, privacy, and freedom from discrimination, alleged that the respondents have violated their human rights by failing to take adequate action on climate change in reducing their emission as provided by the Paris Agreement, and sought the Court to order that they take more ‘ambitious action’.

The court had third party interventions from Amnesty International and the European Commission supporting the claimants position that international law obligates countries and companies to the human rights of people within and outside their borders by fulfilling their commitments. The matter was not conclusive.

• Challenges To Domestic Non-Enforcement Of Climate-Related Laws and Policies

Cases under this category are brought on the ground that states have positive duties to enforce climate change based legislations to which they are parties and provide redress those that re affected by climate change. This is the based on the rationale that states cannot protect human rights while breaching legislations they have adopted.^[27]

Countries and their agencies that have made climate commitments through legislations, regulations or policy statements can be challenged on the workability or efficacy of such commitments whether the actions are sufficient to secure human rights.

In the 2021 case of Neubauer et al Vs. Germany, where certain provisions of the Federal Climate Protection Act were struck down because they violated human rights, the court held in favour of the German young people and ordered the government to implement climate efforts in line with the Paris Agreement, stating that “one generation must not be allowed to consume large parts of the CO2 budget under a comparatively mild reduction burden if this would at the same time leave future generations with a radical reduction burden . . . and expose their lives to serious losses of freedom.”^[28]

In Massachusetts Vs. EPA, the U.S. Supreme Court decided that the Environmental Protection Agency has authority under the Clean Air Act to regulate greenhouse gas emissions.^[29]

The 2019 case of Milieudefensie Vs. Royal Dutch Shell, is one of the high-profile climate cases based on human rights and international standards, which was instituted by Dutch friends of the Earth. The Hague District Court found that Shell’s emissions violated its duty of care and human rights obligations and the Dutch Supreme Court ordered the company to comply with the Paris Agreement to reduce it’s carbon emissions by at least 45 percent by 2030.^[30]

• Litigants Seeking to Keep Fossil Fuels in Ground

Cases under this category challenges fossil fuel projects and the considerable processes that fail to take climate implications into consideration. In 2021, law students in New Zealand sued the Minister for Energy and Resources over its decision to grant permits for oil and gas exploration, on the grounds that the permits were inconsistent with the New Zealand’s Zero Carbon Act and its commitments under the Paris Agreement.^[31]

• Advocates For Greater Climate Disclosures and an End to Greenwashing

Under this category, climate change activists sue companies that misrepresents that they are fulfilling net zero commitments while engaging in fossil fuel projects.

Many cases are instituted to challenge misleading corporate statements about following climate change mitigation or adaptation measures. For instance environmental groups in the Netherlands sued KLM for its ad campaign of “Fly Responsibly” which represents that flying is sustainable with its carbon offset and alternative fuel measures. The group accuse KLM of using misleading advertisement to make the company seem more environmentally friendly than it really is.^[32]

In 2018, Suncor Energy and ExxonMobil were sued by Boulder and San Miguel County in Colorado for producing fossil fuels knowing that the products would cause severe environmental challenges such as heat waves, wildfires, droughts and floods. Similarly the city and county of Honolulu, Hawaii, also sued multiple fossil fuel companies in 2020 because of decades of disinformation.

The American Petroleum Institute and other fossil fuel companies were sued by Minnesota on the ground that the companies downplayed the risks of the operations while knowing about the harmful impact.^[33]

These cases attempt to hold companies that produce fossil fuel responsible for climate change impacts because the fossil fuels they produce are a public nuisance or because the companies have failed to warn the public about the potential harms their products cause.^[34]

• Claims Addressing Corporate Liability And Responsibility For Climate Harms

Countries have started enacting laws that require companies to ensure that human rights and the environment are protected including the export and import operations. For example, France has passed its duty of vigilance law in 2017, imposing on large corporations the obligation to identify and manage their environmental, human rights and health risks. Australia, Germany and the Netherlands have followed suit.^[35]

Corporate liability and human rights responsibilities of companies have crystalized to become binding legal obligations through domestic legislation mandating the companies to conduct human rights due diligence before embarking on a new project or investment. These binding obligations that are established by the domestic laws forms the basis of rights-based legal challenges in the courts.

The case of Notre Affaire à Tous and Others vs Total,^[36] was instituted based on the France corporate due diligence legislation, and the claimants sought an order of the court commanding Total to issue a corporate strategy that highlight the risks resulting from its greenhouse gas emissions, the risks of serious climate-related harms being committed by Total as outlined in the IPCC special report of October 2018, and the action the company will take to ensure its activities align with a trajectory compatible with the climate goals of the Paris Agreement.^[37]

In another case against the global retailer Groupe Casino in France in March 2021, the due diligence law of France was relied on again to demand that casino supermarkets take all the requisite measures to exclude beef gotten from the deforestation and taking of indigenous territories of Brazil, Colombia and any other place.^[38] In France, cases of duty of vigilance have been instituted against a variety of companies: including McDonald’s, BNP Paribas, Yves Rocher and Danone; these cases determine the standard for the duty of vigilance that corporations must meet.

• Claims Addressing Failures to Adapt Impacts of Climate Change.

Under this category the governments of various countries and companies are sued for ignoring climate risks and not taking steps to prepare to mitigate climate change impacts. Some cases seek compensation for adaptation strategies that had unintended harmful impacts.^[39]

In the case of Pandey Vs. India, the claimant Ridhima Pandey, a nine-year-old filed a suit against India , questioning the adequacy of India’s climate change mitigation efforts vis-à-vis Public Trust Doctrine and other legal obligations. The claimant argued that the commitments of India under the Paris Agreement was not replicated in the Environment (Protection) Act 1989 and that children are most vulnerable groups to feel the impact of climate change. The court dismissed the claims stating that the environmental policies of the Indian government reflect their obligations under the Paris Agreement and other international protocols.^[40]

Also the case of Leghari vs Federation of Pakistan,^[41] unravels how a Pakistani farmer sued the national government for failure to carry out the National Climate Change Policy of 2012 and the Framework for Implementation of Climate Change Policy (2014-2030), which resulted in water and food scarcity in Pakistan. The Lahore High Court held that human rights which guarantee healthy environment under the Constitution can also extend to cover climate. The court also ordered the government to publish an adaptation action plan and establish a climate change commission to monitor the progress.

In 2023,105 United Nations member countries led by Vanuatu, a vulnerable Pacific Island nation, asked the International Court of Justice to issue an opinion that would clarify the rights and responsibilities of states with regard to climate action. They are asking the court to spell out the legal obligations of states to protect their people from climate impacts, and if there are legal consequences for failing to meet those obligations. While the opinion will be nonbinding, it would clarify what obligations countries have under international law to tackle climate change.^[42]

Conclusion

The impact of climate change is felt worldwide and the rate of climate change cases are rising on a trend, the most of which are based on human rights. These climate change actions can be instituted against countries, a parastatal in the government of a country, and companies.

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