Climate change is killing us. Can human rights law provide protection?

Tomos Owen

Climate change is undoubtedly killing us. Climate change itself is not unprecedented and there are records of at least five ice ages in Earth’s history to attest to this. However, when we talk about contemporary climate change we are referring to the rapid climate change caused by the actions of mankind, which is certainly a first. The famous hockey stick graph demonstrating temperature rise in the last 1000 years shows just how rapid this change has been. The rapidity of this change has left us with little time to react and the effects of climate change are now seriously impacting our lives. Our continued overreliance on aspects of industry and travel that led to these changes in the first place only makes the future more bleak. This raises the question, does human rights law place obligations on states to protect us from the effects of climate change? If so, reframing the climate change narrative by emphasising it as a human rights issue may well be a greater catalyst for change at a national level in comparison to other approaches, such as global climate treaties like the Kyoto Protocol, which have failed in the past.

The relationship between human rights and climate change in the UK

The UK is significantly affected by climate change. Temperatures are rising; the ten hottest years on record have all been recorded since 2002. Rainfall is increasing; seven out of the ten wettest years have all been recorded since 1998. Equally, with global temperatures continuing to increase, sea-level rise will threaten many coastal regions across the country. The implications of these changes for those living in the UK are already severe. Last year alone, Public Health England estimated that summer heatwaves led to almost 900 excess deaths. Comparable heatwaves are expected every other year by 2050 and given that human rights law affords us the right to life this poses a significant threat. 

Having touched on the right to life in relation to a discussion on terrorism previously, it suffices only to reiterate that the UK not only has a duty to protect the right to life through the European Convention on Human Rights but must also take positive measures to do so. In this context, the right to life appears to create obligations on the part of the UK government to mitigate some of the effects of climate change. However, this has not yet been recognised and whether a state could ever be held in violation of human rights law for failing to tackle the impacts of climate change remains to be seen. This is in part due to the sheer amount of resources that would be required to mitigate the effects of climate change, making it likely that the European Court of Human Rights would judge the required action beyond what could be reasonably expected. There is also very little precedent for the scale of action that this would require. Any case remotely comparable relates to isolated incidents which are relatively small scale. One example is the ECtHR case of Budayeva and others v. Russia, where the Russian government was found to have violated the right to life for failing to take preventative measures to mudslides which resulted in several deaths in 2000. It remains difficult to see how this could translate into action against a state for failing to deal with the effects of climate change across an entire country.  

Whereas the effects of climate change are for the most part out of control of the UK government, invoking human rights law as protection against the causes of climate change may actually prove more fruitful. The causes of climate change pose an equal, although arguably more immediate, threat to public health and safety. Globally our reliance on greenhouse gases has led to increased temperatures, but this reliance has also had a devastating effect on air quality at a local level. Public Health England has marked air pollution as the ‘greatest environmental threat to health in the UK’ and estimates that it is now causing between 28,000 and 36,000 deaths per year in the UK. This is an astounding figure and whereas climate change globally has been caused by numerous states, local air quality is invariably caused by national emissions. In the UK, this means that the government has far more control in tackling this issue through their own emission targets and investment in sources of renewable energy. It also means the UK government is more easily established as a wrongdoer for failing to take bold action.

It is possible that we could soon see litigation invoking human rights law against the UK government in an attempt to tackle the causes of climate change. Last year, the landmark Supreme Court of the Netherlands case of Urgenda Foundation v State of the Netherlands found that, by failing to decrease emissions by at least 25% by the end of 2020, the Dutch government were acting unlawfully and in contravention of the duty of care under Article 2 and 8 of the ECHR. This marks one of the first occasions where human rights law has been used to invoke action on climate change and is likely to have far reaching ramifications. The UN High Commissioner for Human Rights said that the Urgenda ruling, “provides a clear path forward for concerned individuals in Europe – and around the world – to undertake climate litigation in order to protect human rights.” It therefore now only seems a matter of time before similar cases are brought against the government in the UK. This appears to be a much more promising route than bringing human rights cases against the government in relation to the effects of climate change already felt in the UK. Interestingly, this approach also has the ability to be a far more effective response to climate change than those we have seen previously. Whereas emissions targets set at global climate change treaties are invariably missed due to a lack of enforceability, if a government can be held to account in their domestic courts as per Urgenda we are likely to see much more positive action. 

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