The growing risk of human rights climate litigation

Human rights climate litigation is growing at an exponential rate, with Europe a hot spot together with cases in the US and Australia, and human rights arguments are becoming more and more prominent in environmental litigation, according to law firm Clyde & Co. The law firm notes that several cases relying on human rights arguments have been filed or decided before national courts against both states and corporations this year. Many such cases argue that climate-related human rights arise from existing constitutional or fundamental rights under national law and are intrinsically related to the international obligations under the Paris Agreement on climate change. “International law, although not as powerful in terms of enforcement as national law, therefore has an important role to play in human rights climate litigation,” says Nigel Brook, partner, Clyde & Co. He explains that there are several climate-related human rights cases pending before the European Court of Human Rights in which applicants argue that member states of the Council of Europe have violated their human rights when considered in light of the Paris Agreement. “Significantly, three cases – Duarte Agostinho, KlimaSeniorinnen, and Carême – have been expedited to the Grand Chamber of the court, fast-tracking the otherwise lengthy judicial process due to their potentially significant impact on human rights climate litigation,” says Brook. The hearing in Duarte Agostinho, a case filed by six Portuguese youths against 33 countries for their alleged failure to take sufficient action on climate change and protect the applicants’ human rights, started on 27 September, and once decided is likely to have far-reaching implications for interpretation of the human rights obligations under the European Convention on Human Rights as well as internationally, given the shared universal basis of most human rights treaties, Brook explains. “Since the enjoyment of human rights is intrinsically connected to the quality and intactness of nature we live in, human rights arguments are becoming more and more prominent in environmental litigation, whether it is focused on plastics pollution, climate change or biodiversity loss,” says Brook. Corporates at risk Zaneta Sedilekova, associate, Clyde & Co, says that to date, most human rights climate litigation has been targeted against states: “This is unsurprising given that human rights come from international law that traditionally conferred obligations on states only. Such cases may impact private companies indirectly, given that decisions against governments are often a significant driver of transition risk. Moreover, strategic litigants often first test their human rights arguments against a government, and if successful, use these arguments against corporate actors,” she says. Such a strategy was employed in Europe, where Dutch climate litigants first successfully tested their human rights arguments against the Dutch government in the Urgenda case before deploying them against oil major Shell. In addition, says Sedilekova, there are soft law non-binding instruments, such as UN Guiding Principles on Business and Human Rights that lay down the basis for corporate human rights obligations. These soft-law instruments can be used in litigation to interpret legal principles, such as the duty of care that corporations owe to their employees and, in some cases, other stakeholders. Incoming legal instruments in the EU, especially the Corporate Sustainability Reporting Directive, the Corporate Sustainability Due Diligence Directive and the Deforestation Regulation require companies to scrutinise their value chains and report on their environmental and social impacts, including human rights violations. Sedilekova says these instruments are likely to have multiple cascading and compounding effects on businesses, such as redirecting financial flows away from companies with negative environmental and social impacts, and providing an evidentiary basis for environmental human rights litigation. “The fact that the EU has decided to address environment and human rights in the same legislative instruments further reinforces the profound link between the two – human rights enjoyment is simply dependent on healthy and thriving nature. Finally, these instruments, very much like corporate value chains, transcend state boundaries and have extraterritorial impact. This means that they have a potential to change corporate conduct vis-à-vis people and the planet outside of the EU,” she says. Supply chain risk Much of the litigation risk relates to supply chains, or overseas subsidiaries. Environmental litigation traces the liability of corporations for human rights and environmental violations via supply chains or ownership structures, and in the EU, value chain tracing is prevalent, says Brook, highlighting various examples. It has been used in the French case against supermarket Casino under the French Duty of Vigilance to link beef from ranches on illegally deforested lands in Brazil and Colombia to Casino’s meat counters in France. In Italy, value chains allowed NGO Survival International on behalf of uncontacted members of Paraguay’s Ayoreo tribe to trace leather from ranches on illegally deforested lands to two Italian leather tanneries and their customers – BMW and Jaguar, who use this leather in their car seats. “Importantly these cases are advancing via European legal systems even before the relevant EU law instruments mentioned above are fully implemented. The legal framework for this kind of litigation is already in place in some EU member states,” says Brook. In the UK, he says ownership structures have been used to bring multinational corporations before English courts for human rights and environmental violations committed by their foreign subsidiaries. Most prominently, in the case of Mariana, more than 200,000 victims of Brazil’s worst environmental disaster, which saw a dam collapse and release toxic mining waste hundreds of miles down watercourses in 2015, are seeking billions in compensation from Anglo-Australian mining company BHP. At the time of the disaster, BHP was a parent company of BHP Brazil, which operated the dam jointly with two other Brazilian companies. “All these cases demonstrate the expanding range of possibilities for victims of environmental and human rights violations abroad to sue the ultimate beneficiaries of the corporate misconduct in wealthy countries for financial redress,” says Brook. So how can companies manage/mitigate this risk? “Taking advice on the legal implications of ongoing cases, upcoming legislation as well as voluntary initiatives is always advisable,” says Brook. “This way companies will be able to navigate the increasingly complex liability landscape of environmental and human rights standards and redefine themselves in line with new definitions of responsible business conduct.”

The growing risk of human rights climate litigation

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