YANG Xin*

 

Abstract: Climate change lawsuits represented by strategic litigation have become a new force to promote global climate governance. Among them, using the norms and theories of human rights law to present litigation claims, conduct legal reasoning, and form human rights-based argumentation has been one of the most successful strategies for climate change lawsuits. The Paris Agreement marked a major watershed for human rights-based argumentation in climate change lawsuits: Before the signing of the Agreement, human rights-based argumentation in climate change lawsuits remained in its trial stage; since the signing of the Paris Agreement, as a litigation strategy, it has become more flexible and diversified, as its relationship with climate governance is becoming increasingly complicated. The uncertainty of climate legal obligation and the process of legalization of climate targets have fostered new dimensions for human rights-based argumentation: Shifting from an accountability logic to a litigation strategy, from international law to domestic law, from holding governments accountable to holding enterprises accountable. There are micro, medium, and macro paths to clarify the human rights-based argumentation, all leading to truly integrating human rights perspectives and ideas into a nation  s specific process of climate governance and valuing and leveraging the value of human rights-based argumentation as a tool, so as to achieve the goal of climate governance.

 

Keywords: climate change lawsuits · strategic litigation · human rights-based argumentation · climate targets

 

 

The sixth report of the Intergovernmental Panel on Climate Change (IPCC) of the United Nations uses scientific facts to warn human society, which focuses on the   immediate crisis  , that if the global temperature rise cannot be controlled within 1.5 in the next two decades, climate change disasters will pose huge irreversible risks to the global ecosystem and human society.¹ Despite scientific evidence that climate change poses a significant threat to the near future of humanity, and economists attempts to use the   discount rate   to guide humanity in re-understanding the costs and benefits of climate action, it is very difficult to confront and respond effectively to the threat, which is the Giddens Paradox of climate change governance.² International political cooperation in climate governance is carried out amidst ups and downs. Compared to other risks currently occurring in the international community, the climate crisis has a delayed effect, making addressing climate change a form of posture politics   featured by grand strategy but empty content.³ The COP26 Glasgow Conference in 2021 is considered a fragile victory.⁴ But from the perspective of advancing the goals of the Paris Agreement, this conference cannot be considered a victory. In contrast to the posture politics in addressing climate change, climate change lawsuits have grown globally and become important in promoting global climate governance. It is worth noting that the systemic risks brought about by climate change make it the most immediate human rights threat. The IPCC believes that the threat of climate change to human rights is  severe, universal, and irreversible. ⁵ Based on the human rights-based argumentation, the strategic litigation of climate change policy has gradually become a trend: From holding the country accountable to policy initiatives and law enforcement supervision. from international law litigation to domestic law litigation, from challenging government climate targets to  challenging big carbon emitters.  After the Paris Agreement, all countries have legalized their committed climate targets. Carbon neutrality and climate neutral  have become the latest development of their climate legislation for a while.⁶ The human rights-based argumentation in climate change lawsuits has also undergone an important shift. The human rights-based argumentation in climate change lawsuits is constantly evolving, and the joint efforts of all parties in climate governance are participating in actions, playing a positive role in the dilemma of climate-related posture politics. This article analyzes the evolution of human rights-based argumentation in climate change lawsuits, showcasing the characteristics and new perspectives of human rights-based argumentation in judicial operation under national climate objectivism and exploring the development path of human rights-based argumentation in future climate justice.

 

 

Despite the controversy in the academic community regarding the definition of climate change lawsuits, domestic and international research mostly adopts a narrow definition, which is given by the Grantham Research Institute on Climate Change and the Environment in its annual report cases brought to judicial or quasi-judicial bodies where substantive legal disputes involve climate science, policy, and law. ⁷ According to this definition, as of May 2022, there were a total of 2002 climate change lawsuits, of which approximately 71 percent occurred in the United States and 29 percent in 43 other countries and 15 regions.⁸ Although the United States has the highest number of climate change lawsuits based on the current total number of lawsuits, the number of cases in Australia, the European Union, the United Kingdom, and Asia is also growing rapidly. Among them, representative, successful, and rights-based lawsuits are more common in EU countries.

 

 

An important classification of climate change lawsuits is strategic litigation and non-strategic litigation. Strategic climate litigation is more common in the United States, while outside the US, according to a research report by Grantham Research Institute, climate change strategic litigation continues to grow every year, accounting for approximately 40 percent of the total number of cases.9 Strategic climate litigation typically receives widespread attention from academia, government, media, and public opinion, resulting in a series of cascading effects on climate governance. The impact of strategic litigation is not limited to the two parties involved in litigation in court. Its impact is also beyond the court: Focusing on promoting climate policy development, changing government and corporate behavior, and awakening public awareness.¹⁰ Of course, a considerable portion of climate change lawsuit cases are non-strategic litigation, and the results of these cases only affect the two parties involved in the litigation. It can be seen that the key to judging whether a case belongs to strategic climate litigation is to examine the intention of the plaintiff. In a common strategic litigation, the applicant is a non-governmental organization (NGO), and its lawyer usually uses strategic agency  selecting the case that most attracts social attention and using judicial litigation as a tool to promote public policy change.¹¹ 

 

Defining strategic litigation from its characteristics: The plaintiff in the case, in addition to pursuing legal remedies within the court, also focuses on the social effects outside the court, especially on promoting changes in political and economic policies. Therefore, efforts outside the courtroom are as important as those inside.¹² Another notable feature is that the winning or losing of a case is not simply measured by court judgments, but rather by a comprehensive assessment of various factors both inside and outside the court. It can be seen that the litigation cases themselves are only a stage toward achieving the ultimate strategic goal.

 

With the development of strategic climate litigation theory and practice, their complexity is gradually becoming apparent. Firstly, strategic litigation is a double-edged sword for climate governance. Its purpose can be either to support climate governance and carbon emissions control, or to oppose climate governance and intend to delay or even prevent carbon emissions control policies. Second, the strategies used by litigation lawyers in strategic litigation vary from case to case, and even the same strategy can have different outcomes and impacts in different countries and regions. Finally, the goal of strategic litigation affects the construction of the basic framework of litigation, directly determining the legal basis and reference of litigation claims. According to the objectives of strategic litigation, there have been three important types of strategic litigation in support of climate governance in recent years.¹³ The first type is lawsuits where the defendants are governments, and the lawsuits challenge the climate targets and policy effectiveness of governments. The typical representative is the famous case of the Urgenda Foundation v. the Dutch government. The second type is cases where the defendants are big carbon emitters, and the lawsuits challenge their policies, regulations, and business practices that have a negative impact on climate change. The typical representative is the case of Friends of the Earth v. Shell Oil Company in the Netherlands. The third type is cases where the defendants are governments, which challenge the governments   public investment in fossil energy projects. Besides, there are also climate adaptation, climate disaster compensation, Greenwashing  (providing misleading climate information to the public), and personal liability cases. From this, it can be seen that strategic climate litigation plays a role in promoting the process of national legal policies and influencing the behavior of government and enterprises, becoming a tool for governance.¹⁴ The parties to the lawsuit and the court cooperate to build the foundation for climate law and policy reform through judicial cases and develop a governance-based judicial model. Strategic litigation under the framework of diversified environmental governance can have direct legal impacts and indirect social impacts. The most typical one is the case against the Environmental Protection Agency (EPA) in Massachusetts. In the United States, this case is a great example of strategic litigation that includes greenhouse gases into federal regulation through administrative law interpretation. It also serves as an enlightening case for strategic climate litigation in other countries.¹⁵

 

 

The purpose of human rights-based argumentation in strategic climate litigation is to influence or change the policy of national governments and the behavior of carbon emitters, rather than simply promoting human rights development. The practice of using strategic litigation to promote the legalization of rights has a long history in the civil rights movement. In the United States, where judicial agencies have a high level of initiative, and litigation culture is prevalent, strategic litigation has played a positive and crucial role in the civil rights movement. In Europe, the European Court of Human Rights has cultivated a public interest in strategic human rights litigation through its precedents.¹⁶ Similarly, in the field of traditional environmental governance, environment groups (NGOs) also mobilize public support through strategic litigation to promote environmental legislation and policy change. Against the backdrop of climate change becoming a global crisis, human rights lawsuits and strategic litigation naturally converge, forming the human rights-based argumentation in climate change lawsuits.

 

The positive role of human rights law theory and practice in climate governance is being noticed. More and more research is focusing on the common areas of human rights law and climate governance, and in practice, a series of influential strategic climate litigation cases have emerged. There was the 2005 petition to the Inter-American Commission on Human Rights by Inuit concerned with Indigenous human rights. There was the Asghar Leghari v. Federation of Pakistan in 2015, which focused on fundamental constitutional rights from the perspective of climate change.¹⁷ There was the human rights law interpretation of the Dutch government's duty of care in the Urgenda Case in 2015.¹⁸ The Neubauer et v. Germany case focused on the human rights of future generations. ¹⁹ So far, under the difficulties of the traditional strategy of taking human rights as the basis of litigation claims, scholars have gradually focused on the claims and legal argumentation inspired by human rights law in climate change lawsuits and then construct strategic litigation to achieve litigation objectives. They believe there has been a so-called rights turn in climate change lawsuits.²⁰

 

The human rights-based argumentation in climate change lawsuits studied in this paper refers to the litigation strategy of using the norms and theories of human rights law to construct litigation claims and conduct legal argumentation in climate change lawsuits. The purpose of human rights-based argumentation is not limited to human rights relief, but also aims to generate broader social effects in climate governance. The human rights-based argumentation as a litigation strategy is not equivalent to climate change lawsuits based on human rights law. The research on climate change lawsuits based on human rights law mainly focuses on the application of human rights law in the field of climate change. It is usually a case in which the petitioner claims that the   inaction  or improper actions of the government or other organizations in dealing with climate change have violated their basic constitutional rights or basic human rights under international law.²¹ Rights-based litigation is only a minority in climate change lawsuits. As of May 2021, there were a total of 112 rights-based lawsuits, with most of the defendants being governments and a small number being enterprises.²² There are currently two possible paths to the strategy of using human rights law as the basis for litigation claims. The first path is to connect climate change with human rights through the environmental rights system. However, international and domestic law have no consensus on the environmental rights system. Resolution 48/13 of the UN Commission on Human Rights, with its groundbreaking recognition of the right to a clean, healthy, and sustainable environment as an essential human right, is considered a breakthrough in environmental human rights.²³ But climate governance is different from ordinary environmental governance, and the theory and practice of environmental rights cannot be simply transplanted into the field of climate change.²⁴ The second path is to directly incorporate climate governance into the concept and system of human rights law and develop so-called climate human rights. In the Institute of Amazon Studies v. Brazil case, the petitioner argued that the right to a stable climate is an independent and fundamental human right in the Brazilian Constitution.²⁵ The path of advocating for independent climate human rights mainly affects domestic laws through strategic litigation, and it still faces many challenges to succeed.

 

This paper focuses on human rights-based argumentation as a litigation strategy. It focuses on the human rights-based argumentation put forward the claimants (lawyers) and on how the courts responded to the argumentation. It also focuses on human rights jurisprudence in climate policy litigation. The key is not to explore the difficulties and breakthroughs of the human rights approach in climate change lawsuits, but to observe and reflect on the litigation strategy inspired by human rights jurisprudence, as well as its operating logic and trend. The human rights-based argumentation in climate change lawsuits is complex and diverse, and the so-called rights turn in climate change lawsuits is a relatively optimistic judgment. How and where to turn remains to be observed.

 

 

Climate change lawsuits have grown rapidly since the Paris Agreement in 2015. During the thirty years prior to 2015, there were only 800 climate change lawsuits, while in the seven years after 2015, the number reached 1,202. The Paris Agreement is an important watershed for climate change lawsuits. Therefore, the evolution of human rights-based argumentation in climate change lawsuits can be divided into pre-Paris Agreement and post-Paris Agreement.

 

 

The pre-Paris Agreement period was a period of exploration and experimentation in human rights-based argumentation in climate change lawsuits. In 2005, Inuit from the United States and Canada petitioned the Inter-American Commission on Human Rights, which was considered the first attempt at human rights-based argumentation in climate change lawsuits. Inuit people advocated that the United States government  s laissez-faire greenhouse gas control would lead to climate warming and threaten the life, health, property, and cultural rights of Inuit people. Although the case made efforts to prove the cause and effect of human rights damage, the Inter-American Commission on Human Rights held that the claims of the Inuit could not prove the existence of human rights violations. Although the case was not successful in the judicial process, it generated an enlightening appeal, causing all sectors to pay attention to and demonstrate the relationship between climate change and human rights protection.²⁶ There have also been cases following Inuit  s human rights-based argumentation, but no progress has been made in entity and procedure. The most famous strategic climate litigation of the same period was Massachusetts v. the Federal Environmental Protection Agency in 2007. In this case, the United States Supreme Court held that carbon dioxide was in line with the regulation coverage of the Clean Air Act, so the Federal Environmental Protection Agency had the statutory authority and obligation to make a  hazard identification  of carbon dioxide.²⁷ The success of the litigation strategy in this case lies precisely in the fact that it did not adopt the immature human rights law strategy at that time. Instead, having the state as a plaintiff in a Clean Air Act lawsuit allowed the Supreme Court to grant standing to the state in consideration of its particularities, avoiding the challenge of proving standing in a climate change case. Compared to the human rights-based argumentation strategy in the 2015 Juliana v. United States case,²⁸ the Massachusetts case  s litigation strategy was more successful. In the Juliana case, the plaintiff is a child and future generation represented by NGOs, based on the due process provisions of the Fifth Amendment to the United States Constitution and public trust theory. The plaintiff believes that the federal government  s indulgence in greenhouse gas control violates the plaintiff  s constitutional rights.²⁹ The Ninth Circuit Court rejected the case in 2020 on the grounds of litigation qualification.³⁰

 

During the pre-Paris Agreement period, the human rights-based argumentation in climate change lawsuits was characterized by borrowing the liability framework of human rights law to construct litigation claims. The basic idea of human rights law, namely liability for damages, faces many legal challenges in the field of climate change. These challenges mainly include the following aspects: Legal argumentation of litigation qualifications; establishing a causal relationship between greenhouse gas emissions and human rights damage; the damage caused by climate change is global, systematic, and unevenly distributed, which adds difficulty to the human rights claims of specific populations; the negative impact of climate change on future generations   human rights is difficult to prove due to the fact that the damage has not occurred; the inability to hold the government of the country accountable for damages that occur outside its jurisdiction, and so on.³¹

 

 

Since the Paris Agreement, there have been significant changes in the human rights-based argumentation in climate change lawsuit cases. Environmentalists have criticized the institutional arrangement of Nationally Determined Contributions (NDCs) in the Paris Agreement as a compromise. Indeed, compared to mandatory emissions reduction obligations, the NDC model is more flexible and free. Whether a country has fulfilled its NDC commitments under the Paris Agreement cannot be a reason for initiating litigation, as NDC commitments do not have legal enforceability.³² However, after the Paris Agreement, several contracting parties have legalized their promised NDC climate targets, providing a new opportunity for the strategic transformation of climate change lawsuits. Therefore, after the Paris Agreement,   climate framework litigation   was launched against governments of various countries, one after another, urging them to formulate or implement climate change laws and policies by challenging their climate targets. The human rights-based argumentation is presented in a more flexible and diverse manner in these litigations. Besides, inspired by the development of international human rights law in the field of climate change, progress has been made in strategic climate litigation based on the fundamental rights of the country's Constitution.

 

In the 2015 Asghar Leghari v. Federation of Pakistan case,³³ human rights-based argumentation was at the core of the litigation strategy. The petitioner filed a public interest lawsuit alleging that the Pakistani government had not fully implemented laws on climate change mitigation and adaptation, making the negative impacts of climate change a threat to their rights to life, dignity, and property under the Pakistani Constitution. The Lahore High Court has adopted a new interpretation of the fundamental rights in the Constitution under the concept of climate justice,³⁴ which can be seen as an attempt to develop   climate human rights. In the landmark Urgenda v. Netherlands case of the same year, the human rights-based argumentation emerged with a more clever strategy. The case was originally torts-based litigation. The petitioner believed that the 2020 greenhouse gas emissions reduction targets set by the Dutch government were insufficient to meet its international and domestic obligations. The court held that the Dutch government  s emissions reduction targets violated its duty of care. In its interpretation of this duty, the court cited articles 2 and 8 of the European Convention on Human Rights, stating that the neglect of these human rights provisions resulted in the Dutch government not fulfilling its duty of care.   The representativeness of the Urgenda case lies in its creative use of human rights-based argumentation as a tool to interpret an open legal concept.³⁵ Thus, in practice, utilizing human rights-based argumentation to expand the Dutch government's climate governance obligations.³⁶ However, considering the uniqueness of the application of international law in the Netherlands, the probability of the human rights-based argumentation in the Urgenda case being successfully replicated in other countries is relatively low. From the perspective of the litigation framework, the Neubauer et al. v. Germany case in 2020³⁷ is a combination of the Leghari case and the Urgenda case. In the human rights-based argumentation of this case, the petitioner believes that the emissions reduction targets in Germany  s climate protection law³⁸ violate   intergenerational fairness and their fundamental rights under the German Constitution. The court held that, from the perspective of intergenerational justice, existing climate targets made the burden of addressing climate change partially unconstitutional by creating  excessive restrictions³⁹ on the constitutional freedoms of future generations.

 

In the post-Paris Agreement period, the human rights-based argumentation in climate change lawsuit cases has broken through the legal difficulties of a single litigation strategy that uses human rights law as the basis of claims. In this period, lawsuits against governments are the mainstream. Meanwhile, the relationship between business and human rights has also received widespread attention, and climate lawsuits targeting large enterprises such as big carbon emitters have emerged one after another. As a litigation strategy, human rights-based argumentation is diverse, flexible, and creative to some extent. It has become an emerging trend in climate strategy litigation, attracting more widespread attention to climate change lawsuits.

 

 

In the post-Paris Agreement period, the number of cases using human rights-based argumentation has continued to increase, showing diversity and complexity. The complex relationship between human rights-based argumentation and climate governance has become a focus of observation, mainly reflected in the following aspects.

 

First, human rights-based argumentation advocates substantive rights and procedural rights. It focuses on both positive and negative obligations. Substantive rights require states to take proactive measures to actively address climate change while avoiding the negative impact of their mandated actions on human rights. Procedural rights require the government to fully consider human rights protection and comply with both positive and negative obligations in the process of formulating climate policies. During this period, negative obligation lawsuits have been challenging government-authorized actions. In Australia  s Sharma v. Minister for the Environment case in 2020,⁴⁰ for example, one of the issues at question was whether the minister had breached the common law duty of care to Australian children in approving the expansion of a coal mine. Although the court acknowledged that the minister for the environment did bear some protective responsibility toward Australian children during the authorization process, it still rejected the petitioner's request for the minister to ban the project.⁴¹ Viewed alongside the Urgenda case, this case reflects the differences in the application of human rights-based argumentation as a strategy in cases with different legal demands and jurisdictions.

 

Second, the lawsuits against big carbon emitters and related enterprises have become a new field of human rights-based argumentation in climate change lawsuits. According to the polluter pays principle, companies with higher carbon emissions should bear more responsibility for climate change. The human rights-based argumentation in some cases attempts to explore the human rights responsibility  of carbon emitters and expand the intersection between human rights protection and business operations. In the 2019 case of Milicudefensicet al v. Royal Dutch Shell Plc. in the Netherlands, a human rights-based argumentation model very similar to the Urgenda case was adopted. The special feature of the Shell case compared to Urgenda is that the court attempted to establish Royal Dutch Shell as the holding company of Shell Oil Group, which assumed an unwritten standard of care in the Dutch Civil Code through human rights-based argumentation.⁴² From this, it can be concluded that the company bears a certain due diligence obligation⁴³ regarding the negative impact of its business behavior on climate change. However, due to the difference between the main body of a country and a company, the obligation of deducing and adding the obligation of a country arising from the Paris Agreement and other international treaties to an enterprise aroused great controversy.⁴⁴

 

Finally, there have been cases based on conflicts between climate governance strategies and human rights protection. Not all strategic climate litigations have promoted climate governance. Some lawsuits use human rights-based argumentation to oppose climate regulation. Some scholars use anti-regulatory⁴⁵ litigation to define such cases. There is indeed a conflict between human rights protection and climate governance. This conflict exists in different types of human rights, and also in different regions and different needs for human rights protection. According to the report of the United Nations Human Rights Council, climate change poses a threat to the right to life, self-determination, development, food, water, health, residence, environmental information, decision-making and the rights of future generations. Meanwhile, the impact of climate change on people in different countries and regions varies greatly. For example, coastal and island countries pay more attention to climate change than inland countries. Climate change control measures that benefit the right to life and health of some people may have a negative impact on the property and residential rights of others. Therefore, cases opposing climate regulation are also important for strategic litigation. The just transition⁴⁶ litigation is similar to the  anti-regulation litigation, but the purpose of such litigation is not necessarily to oppose regulation, more to question the unreasonable regulatory methods of the government or enterprises. The emergence of these strategic litigations demonstrates the complex relationship between climate governance and human rights protection. Such complexity stems from the complex and differentiated impact of climate change on global human rights.

 

 

The author has outlined the evolution of human rights-based argumentation over the past 30 years by reviewing typical cases of climate change lawsuits and human rights-based argumentation. The Paris Agreement has been a watershed moment, prompting new dimensions have emerged in the human rights-based argumentation in climate change lawsuits. Next, the author will discuss these new dimensions, analyze their characteristics, reasons, and trends, and combine them with the international political and legal framework of climate governance.

 

 

The nature and content of greenhouse gas emissions reduction obligations are important in international climate conventions. They determine the nature of international law responsibilities undertaken by countries and directly affect the legal basis and litigation strategy of climate change lawsuits. There are two different types of obligations in the current international legal framework for climate change. The first, represented by the Kyoto Protocol, involves member states   obligations to cut emissions. This specific obligation stems from the principle of  common but differentiated responsibilities ⁴⁷enshrined in Article 4 of the United Nations Framework Convention on Climate Change (UNFCC), which was continued in the Kyoto Protocol.⁴⁸ Developed countries, which have a large historical contribution of greenhouse gases, have taken on more responsibility, and this responsibility is not abstract, but specific to each country's carbon budget targets, with deadlines. Although combating climate change is a globally shared responsibility, under the framework of the Kyoto Protocol, this abstract shared responsibility is specifically assigned to countries. The second is the abstract common obligation represented by the Paris Agreement. Article 4 of the Paris Agreement states that  Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions. For the specific targets of nationally determined contributions by contracting parties, they should reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances. ⁴⁹ It can be seen that the obligations under the Paris Agreement are procedural obligations: There is no requirement for legal review of NDCs in each contracting party, nor is there any substantive standard provided. Article 2 of the Paris Agreement sets temperature targets and sets a ceiling requirement for greenhouse gas emissions for all contracting parties. In fact, there is still a debate over whether these targets are a statement of motivational nature or scientific targets that can generate legal obligations. Temperature control is the original intention of international law treaties on climate change, so temperature targets are the core of the entire treaty framework and should be regarded as a common responsibility. In the Paris Agreement, this shared responsibility is no longer specific to countries as it was in the Kyoto Protocol, but a shared responsibility for climate change.

 

While the UNFCC has generally established the principle of common but differentiated responsibilities, the Kyoto Protocol and the Paris Agreement set out different obligations for the contracting parties. Such uncertainty of obligations has an impact on the strategy of climate change lawsuits, especially human rights-based argumentation, which makes it difficult for sovereign states to assume human rights responsibilities based on climate change treaties in international law. The human rights-based argumentation strategy under the traditional liability logic faces the challenge of state obligation argumentation.⁵⁰ Starting from the international legal framework of climate change, the human rights obligations undertaken by countries in the context of climate change are uncertain in the presence of two different types of obligations, namely the Kyoto Protocol and the Paris Agreement. Suppose the temperature target set in the Paris Agreement is considered a common and legally binding obligation for all contracting parties. In that case, all contracting parties will assume their obligations without distinction or share, which is contrary to the principle of   common but differentiated responsibility.   Besides, from the perspective of human rights-based argumentation, the obligation of a country to protect human rights is usually defined by a  bottom line standard   for determining illegality. However, the temperature target in the climate change treaty is the upper limit requirement   that each contracting party needs to strive to achieve. The uncertainty of national obligations in the legal framework of climate change has led to the need for human rights-based argumentation in climate change lawsuits to break away from the limitations of traditional human rights law liability logic and then combine it with strategic litigation to find more diverse legal anchors and open up broader legal space.

 

 

The international climate legal framework pursues a fair and reasonable normative order, attempting to strengthen cooperation among all parties and promote collective action while urging all contracting parties to commit to climate targets and strengthen their implementation actions.⁵¹ The core of the international climate legal framework is the allocation of national responsibility for greenhouse gas control. In this regard, the Kyoto Protocol adopts a top-down approach: Assigning responsibility through legally binding emissions reduction targets. Although this approach was intended to share responsibilities fairly and reasonably, it was difficult to reach a consensus. The Paris Agreement adopts a bottom-up approach of nationally determined contributions (NDC): Respecting countries autonomy in setting emissions reduction targets. This more liberal model prevents the parties from assuming fixed, quantified and rigid emissions reduction responsibilities.⁵² The changes in the allocation of responsibilities mentioned above demonstrate the trend of difficulty in forming consensus in international climate political negotiations and also indicate that climate governance is more challenging than traditional environmental governance. Climate governance involves systematic reform of the energy structure and even the entire social development model, with multiple risks coexisting, making it a very thorny issue.⁵³

 

The top-down allocation of reduction targets was once considered an effective mechanism. After the Kyoto Protocol, the European Union followed the protocol model and established a legal mechanism for allocating emissions reduction targets among member states the Effort Sharing   policy. Afterward, through the Effort Sharing Decision in 2009⁵⁴ and the Effort Sharing Regulation in 2018⁵⁵, the EU has continued to operate a top-down model.⁵⁶ Although the Effort Sharing mechanism creates mandatory obligations for member states, this obligation is not equivalent to the obligation of the state to protect human rights: Individuals cannot sue the government based on the Effort Sharing Regulation.⁵⁷ Outside the European Union, inspired by the climate legal framework, it has become popular for all types of governments and organizations, including sovereign states, to set targets to address climate change. At present, 73 countries, 14 regional organizations, 398 regional cities, 786 enterprises, and 16 investment companies in the world have set the goal of achieving carbon neutrality by 2050.⁵⁸ Many countries and regional organizations have legalized these climate targets. Among them, the United Kingdom became the first country to declare the carbon neutrality goal in its Climate Change Law in 2008.⁵⁹ Germany  s Climate Change Law stipulates that carbon neutrality should be achieved by 2045. The European Union also stipulated in the Climate Change Law that climate neutrality should be achieved by 2050.

 

Using goals as a policy tool is very common in the field of traditional environmental governance. Under the legal framework of the UNFCC, the Kyoto Protocol, and the Paris Agreement, implementing treaty obligations and setting and codifying climate targets have become features of climate governance.⁶⁰ Climate targets have become a hot topic in international climate governance. The Chinese government has also pledged to achieve carbon peaking by 2030 and carbon neutrality by 2060. The challenge faced in the legalization of climate targets is to transform   posture politics   goals and commitments into effective actions. It is a practical and feasible option to use climate change lawsuits to urge the government to implement climate targets into legal policies and effective actions. An important trend in post-Paris Agreement climate change lawsuits has been to challenge the targets set by states to meet their obligations under international treaties. This development actively makes up for the shortcomings of the non-compulsory NDC mechanism of the Paris Agreement and makes national obligations to address climate change more specific, substantive, and legalized. The vague and uncertain international law obligations are transformed into clearly defined domestic law obligations. Meanwhile, reviewing a country  s domestic legal obligations to address climate change within the framework of fundamental rights has become an important trend.⁶¹ After the Paris Agreement, the legalization of climate targets objectively promoted the shift in the focus of human rights-based argumentation in climate change lawsuits from international law to domestic law.

 

 

With the process of legalizing climate targets, challenging the effectiveness of government climate targets and policies has become a hot topic in climate change lawsuits in recent years. As of May 2022, there were a total of 73 such cases, of which 23 were filed against local governments. It is worth mentioning that this type of lawsuit has a high success rate in the highest courts of various countries, with six out of eight Supreme Court judgments achieving results conducive to climate governance.⁶² From the perspective of human rights law, the government is the main obligor of human rights protection obligations, resulting in a large number of cases to hold the government accountable. With the proposal and discussion of corporate human rights responsibilities,⁶³ the initiators of climate change lawsuits have gradually realized that what affects the implementation of government climate targets is the traditional energy industry behind it, which contributes greatly to greenhouse gases, especially those big multinational carbon emitters. In the Shell case, which used human rights-based argumentation, the court  s reasoning was criticized by skeptics. This reflects that although human rights-based argumentation can be used in accountability strategies, they are imperfect strategic tools for filling loopholes in law enforcement.⁶⁴ The imperfect human rights-based argumentation has become the catalyst for developing legal litigation methods and promoting climate human rights policies. Inspired by the case, the European Commission has released a proposal for a Corporate Sustainability Due Diligence Directive (CSDDD).⁶⁵ The proposal aims to address the deficiencies in the legal basis for corporate climate responsibility, control the risks of human rights litigation, and promote domestic legislation in EU member states. The success of human rights-based argumentation does not entirely depend on whether the legal argument is rigorous and comprehensive, whether the judge supports the lawsuit, or other factors. More importantly, under the requirements of business operation and risk control, when facing legal risks, enterprises will make preventive adjustments or change their behaviors to avoid losses caused by relevant lawsuits, or change their business model and conduct internal compliance reviews. From this perspective, the goal of using strategic litigation to hold companies accountable may have been achieved.

 

The debate on human rights in climate change lawsuits has expanded from holding governments accountable to holding companies accountable and even to broader subjects such as financial institutions. This indicates that resorting to judicial authorities to solve the climate crisis has become an important way to combat climate   posture politics. Meanwhile, climate change lawsuits have also become an effective way for the public, especially those from all walks of life who support climate action, to participate in and influence climate governance. From holding governments accountable to holding companies accountable, the most important reason for the success of human rights-based argumentation, apart from the right litigation strategy, is that the court or judge has an innovative attitude and the determination to promote change on the issue of climate change. In climate strategy litigation,   legal and judicial processes have become the means to achieve positive climate change responses, with courts acting more like agents of social and policy change than troubleshooters of specific disputes. ⁶⁶Whether human rights-based argumentation in climate change lawsuits is accepted by the courts depends on the basic attitude of a country's judicial authorities toward climate issues. However, the important role of rights advocates and lawyers is often overlooked. Under the premise of procedural justice, climate governance justice is a climate justice model in which the court cooperates with the initiator of the lawsuit and uses legal skills to promote the change of climate laws and policies. The success of human rights-based argumentation depends on the judge's legal argumentation skills and the ability of the litigation initiator to shape the optimal litigation framework. From the perspective of strategic litigation, the expansion of human rights-based argumentation from the accountability of government to the accountability of enterprises is in the right direction, but there are still efforts to be made in the legal methods of litigation.

 

 

Reviewing the development of human rights-based argumentation in climate change lawsuits, relevant cases provide rich materials for academic reflection. The human rights-based argumentation in climate change lawsuits has gradually gone beyond the traditional discussion on the liability of human rights law, oriented towards domestic law, expanded the object of liability, and played a key role in climate change lawsuits in a more flexible and diversified way. With the development of climate science and the changes in the world pattern of climate governance, there will also be new trends in the human rights-based argumentation in climate change lawsuits. Next, the author will analyze the approaches to these new trends.

 

 

The core controversy of climate change lawsuits, whether they are against governments or businesses, lies in the legal obligations that defendants should bear for the damage caused by climate change. The sources of legal obligations are also diverse in the context of diverse norms. Faced with a rich legal toolbox, human rights-based argumentation in climate change lawsuits needs to find a suitable anchor.⁶⁷ Different countries have different abilities of judicial action, different approaches to accepting human rights-based argumentation, and different attitudes towards directly or indirectly invoking international treaties in domestic court proceedings. However, it is currently feasible to find appropriate anchors to build human rights-based argumentation and use multiple norms for legal interpretation and reasoning. As a legal method of litigation, human rights-based argumentation has broken down the barriers to current legal argumentation in litigation and played a crucial role in different types of cases.

 

From the perspective of the legal method, human rights-based argumentation creates new norms through legal interpretation. The most prominent example is the legal interpretation of state obligations. The legal anchor in the Urgenda case is the concept of duty of care.  The court believed that the relevant provisions of the European Convention on Human Rights serve as the basis for the interpretation of open legal standards and concepts in Dutch domestic law. The court believed that unreasonable emissiond reduction targets do not directly violate human rights and cannot be used as a basis for deriving national obligations. But the obligation of human rights law has become a tool of legal interpretation through the reflection effect. The Urgenda case ostensibly did not create a duty of care for countries to respond to climate change, and the duty of care in this case originated from domestic tort law in the Netherlands.⁶⁸ However, the legal reasoning in this case actually expands the connotation of the duty of care, reflecting the political stance of the court in supporting climate action. Such legal reasoning actually creates new elements of norms. This kind of open legal concept has opened a door for human rights-based argumentation in climate change and has become an essential object for subsequent litigation to build human rights-based argumentation and seek legal anchors.

 

The legal anchors of human rights-based argumentation are in tort law and also in administrative law. In the In re Vienna-Schwechat Airport Expansion case, non-governmental organizations filed a lawsuit with the Austrian Federal Administrative Court, seeking to overturn the Austrian government  s decision to approve the expansion of the runway at Vienna Airport. The core issue in the administrative court ruling was the measurement of the   public interest   of the airport runway expansion project. The court believed that the project had led to an intensification of climate change, with more negative impacts on basic human rights and ecosystems than positive impacts. Therefore, it concluded that the expansion project was not in the public interest.⁶⁹ In this case, the measurement of public interest was a discretionary space granted by law to administrative agencies. It was also necessary content for judicial review by the court. Compared with the legal concept, the measurement of public interest is more like an open area reserved by law, so it is not inappropriate for courts to adopt human rights-based argumentation. Although the argumentation in this case was not inappropriate, the decision of the Austrian Administrative Court regarding the Vienna Airport project was ultimately overturned by the Austrian Constitutional Court, which believed that the Administrative Court had broadly considered the negative effects of climate change in the process of balancing interests and had misunderstood Austria  s obligations under international treaties.⁷⁰ It can be seen that after the Urgenda case, human rights-based argumentation, as an innovative legal method, has been increasingly valued, studied, and followed. However, whether judges are willing or able to make reasonable judicial interpretation and reasoning innovation on the open concepts and standards in domestic law, as well as to what extent the judicial system provides legal interpretation space for judges, affects whether human rights-based argumentation can play a positive role in strategic litigation.

 

 

With the emergence of climate change lawsuits based on fundamental constitutional rights, the concept of climate constitutionalism has begun to be discussed in the academic community,⁷¹ and relevant theories are being elaborated and summarized. This trend shows the role that climate change lawsuits are playing in promoting climate legal policies: The obligation of countries to deal with climate change is gradually shifting from international law to domestic law, from political commitment to normative commitment, and from general legal policy to the constitutional norm. At present, many countries have constitutions that stipulate so-called   climate clauses,   mainly those in Latin America and Africa.⁷² These climate clauses are generally national commitments to take action on climate change. Some are principled provisions that appear in the preamble to a country  s constitution, while others are principled provisions that appear in the main parts of the constitution. A few national constitutions directly link the protection of individual rights to the fight against climate change. These immature constitutional climate clauses are an attempt to move toward climate constitutionalism, and these attempts have also encountered setbacks in some developed countries. Climate constitutionalism may not necessarily be achieved through climate clauses. The constitutional expression and declaration of climate action vary greatly under the influence of different countries   political systems and legal cultures. One of the foundations of human rights-based argumentation in domestic legal proceedings is the constitutional system of fundamental rights. Since the 1970s, the development of environmental constitutionalism has mainly been carried out through two models:  Construction of environmental rights and national goal responsibility. ⁷³ In either model, there are implications for climate constitutionalism. The positioning of traditional environmental governance in a country  s constitution largely determines its approach to climate governance. For countries adopting a national goal responsibility model, human rights-based argumentation in climate change lawsuits requires new legal carriers, diverse legal methodologies, and an open and innovative judicial system.

 

The development of climate constitutionalism cannot be separated from the support of judicial practice. From the current trend, the human rights-based argumentation in climate change lawsuits injects new ideas into and creates new perspectives for the development of climate constitutionalism. On the one hand, the more radical cases argue for relatively independent climate human rights in the constitution, such as the Amazon Research Association v. Brazil case, which asserts a  right to a stable climate. ⁷⁴On the other hand, more lawsuits claim climate-justice interpretations of existing constitutional rights. A typical case is the future generation litigation represented by the Neubauer v. Germany case, which claims that inadequate government action on climate issues undermines the fundamental constitutional rights of future generations. In Asia, similar youth lawsuits have emerged in South Korea. In the Do-Hyun Kim et al. v. South Korea case, young Koreans represented by NGOs argue that the climate targets set by the Republic of Korea  s climate change law are insufficient to meet the temperature control targets of the Paris Agreement. The petitioner cited the fundamental rights clause of the ROK Constitution and argued that the ROK government has violated the right to life and the pursuit of a better life enjoyed by the younger generation.⁷⁵ The petitioner specifically pointed out that the unequal distribution of the burden of addressing climate change between future and existing generations is contrary to the provisions of Article 11 of the ROK Constitution.⁷⁶ The emergence of youth litigation or future generation litigation is closely related to the current situation of the youth movement on climate change and civil society mobilization represented by   environmental girl Greta Thunberg. Such lawsuits attract wider social attention, and thus are more likely to win the approval of judges and succeed in a relatively liberal judicial system.

 

 

From the petition of the Inuit to the Inter-American Commission on Human Rights to the upsurge of litigation on the government  s climate targets caused by the Urgenda case, human rights-based argumentation has explored more successful strategies to urge relevant parties to take effective action with the change of the international climate governance pattern. The purpose of human rights-based argumentation in climate change lawsuits is to achieve victory in court and promote the action of the entire society to respond to the climate crisis. Meanwhile, such actions should be in line with the spirit of fundamental human rights and achieve a balance of human rights needs between different types, subjects, and generations under the premise of climate justice. The key experience provided by human rights-based argumentation in climate change lawsuits for climate governance is to supervise the climate actions of governments and enterprises with the glasses of rights awareness. As scholars have said, the development of the human rights approach to climate change lawsuits relies on the legal and cultural background of a rights-based approach, and its successful experience may only be limited to a few countries.⁷⁷ However, from the perspective of pragmatism, human rights-based argumentation as a litigation strategy is not just to seek victory in the court and change the behavior model of society in coping with climate change. Observing the evolution of human rights-based argumentation in climate change lawsuits, we can see the change of human rights-based argumentation in climate justice: From the failure of the Inuit to the success of Urgenda, the attitude of the judicial system towards climate change hazards and the causal proof has made great progress compared with that in 2005, which shows the positive meaning of policy litigation. Although the human rights-based argumentation in climate change lawsuits has failed in some countries   courts, the reflection on human rights and climate change caused by the case can still play an important role in raising awarenesss and promoting behaviorial change. Legal culture and concepts are constantly changing, which is also the focus of human rights-based argumentation as a review standard.

 

At present, the governments of sovereign countries still bear the main responsibility for climate governance. Therefore, as a review standard, human rights-based argumentation in climate change lawsuits mainly involves different levels of government. This includes both the supervision of the central government's overall climate governance framework and the supervision of local governments  climate policies; both a substantive review of climate legislation and a procedural review of government policies; both the review of the government's own law enforcement actions and the review of programs authorized or funded by the government; and both the review of the government's climate change mitigation initiatives and the review of the government's climate change adaptation initiatives. In the above lawsuits against the government on climate change, the human rights-based argumentation has proven the legal legitimacy of human rights review. Of course, the scrutiny of human rights-based argumentation is gradually targeting the energy and transportation industries that contribute significantly to greenhouse gas emissions, especially enterprises with significant carbon emissions. For climate change lawsuit strategies for companies, in addition to drawing experience from litigation against governments, human rights-based argumentation seeks to establish climate due diligence⁷⁸ for corporate governance and business operations. The human rights-based argumentation strategy in the aforementioned Shell case appears to be inadequate, so finding more suitable legal anchors has become the focus of judicial construction for climate due diligence. Friends of the Earth filed a shareholder representative lawsuit against Shell Oil in the United Kingdom in February 2023, claiming that the Shell Oil Board failed to reasonably control and manage foreseeable climate risks, thereby violating British corporate law.⁷⁹ This is the first corporate law lawsuit in the field of climate change, which attempts to use the fiduciary obligations of directors in corporate law to construct a legal anchor for corporate climate responsibility. Although the ultimate success of the climate due diligence approach still requires the accumulation and development of litigation cases, in the commercial field, litigation risk can form certain constraints on the behavior and decision-making of enterprises, which is expected to promote the overall transformation of high-carbon industries.⁸⁰

 

 

Climate change lawsuits have alleviated the difficulty of posture politics in climate governance and promoted international and domestic climate governance actions. Human rights-based argumentation has played a positive role in different types of climate change lawsuits, especially in strategic litigation. The application in cases supporting and opposing climate action reflects the relativity and complexity of human rights-based argumentation in climate change. The creative application in influential cases reflects the possibility of innovative legal methods, climate constitutionalism, and climate human rights review. In the current international climate governance structure, the main players of governance are still the states. The human rights-based argumentation in climate justice has gone beyond the difficulties of human rights obligation argumentation and focused on national goal obligations, developing from liability logic to litigation strategies, from international law obligations to domestic law obligations, and from monitoring government behavior to commercial field. The human rights-based argumentation in climate change gradually transcends the scope of traditional human rights law and promotes climate change lawsuits through more flexible and diverse approaches.

 

It should be emphasized that climate change lawsuits are now at the forefront of climate governance, which is a judicial response to social changes such as the growing maturity of climate change science, the increasing public understanding of climate change risks, and the gradual strengthening of consensus on climate action. It is not climate change lawsuit cases that have changed climate governance, but judicial litigation that reflects the progress of climate governance. From the perspective of strategic litigation, human rights are the purpose and the means of climate change lawsuits. The focus on human rights-based argumentation in climate change lawsuits is not to support the supremacy of rights or to fall into the trap of Western-dominated human rights views, but to better understand the instrumental value of human rights-based argumentation and use them to achieve the goal of promoting climate action. During this process, the public will have a more comprehensive understanding of the complex and profound relationship between climate change and human rights. After all, the process of legal development is a   game of thrones   and a   game of rights.   The human rights-based argumentation in climate change lawsuits promotes effective action by all parties and the true integration of human rights perspectives and concepts into the specific process of national climate governance.

 

(Translated by CHEN Feng)

 

 

1. IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability (IPCC, 2022).

 

2. Anthony Giddens, Politics of Climate Change, translated by Cao Rongxiang (Beijing: Social Sciences Academic Press, 2009), 2.

 

3. Ibid., 3.

 

4. Ethan Van Diemen,   The Clasgow Climate Pact Barely Keeps the 1.5 Coal Alive. In November 2022, the 27th session of the Conference of the Parties of the UNFCCC (COP 27) was held in Egypt. The highlight of this meeting was the agreement to establish a Loss and Damage Fund to relieve countries suffering losses due to climate disasters. Although the fund needs to be further put into practice, this breakthrough is a step forward in achieving climate justice.

 

5. IPCC, Climate Change 2014: Synthesis Report   (IPCC, 2014).

 

6. Chris Hilson, Hiting the Targets? Analyzing the Use of Targets in Climate Law  , 32 Journal of Ensirormertal Law 2 (2020): 195-196.

 

7. Joana Setzer and Catherine Higham, Global Trends in Climate Change Lawsuits: 2022 Snapshot, page 6, accessed February 25, 2023.

 

8. Ibid., 2.

 

9. Joana Setzer and Catherine Higham, Global Trends in Climate Change Lawsuits: 2021 Snapshot.

 

10. Ibid.

 

11. Due to the difficulty of judicial proof in climate change lawsuits in the early stages, lawyers usually systematically select the case that has the most chance of winning or can attract widespread social attention (Systemic Lawyering) in cases filed by NGOs. In the face of difficulties in climate legislation and policy, strategic climate litigation is a tool for lawyers public policy initiatives (Movement Lawyering).

 

12. Ben Batros and Tessa Khan,   Thinking Strategically About Climate Litigation   (Discussion Paper, February 2020).

 

13. For specific types and classifications, please refer to Clobal Trends in Climate Change Lawsuits: 2022 Snapshot, Joana Setzer and Catherine Higham, page 6.

 

14. Jacqueline Peel and Hari M.Osofsky,   Litigation as a Climate Regulatlory Tool in Voigt eds., International Judicial Practice on the Environment: Questions of Legitimacy (Cambridge: Cambridge University Press, 2019), 322-324.

 

15. Jody Freeman, The Environmental Protection Agency's Role in U.S. Climate Policy: A Fifty Years of Appraisal , 31 Duke Environmental Law & Policy Forum 1 (2020): 32.

 

16. Ben Batros and Tessa Khan, Thinking Strategically About Climate Litigation  (Discussion Paper, February 2020).

 

17. the Ashgar Leghari v. Federation of Pakistan case, available in the database of the Sabine Climate Change Law Center at Columbia University, accessed February 25, 2023.

 

18. K.J. de Graaf and J.H. Jans, The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change, 27 Journal of Environmental Law 3 (2015): 517-527.

 

19. the Neubauer et v. German case, available in the database of the Sabine Climate Change Law Center at Columbia University, accessed February 25, 2023.

 

20. Jacqueline Peel and Hari M. Osofsky, A Rights Turn in Climate Change Lawsuits?, 7 Transnational Environmental Law 1 (2018): 37-42.

 

21. UNEP, Global Climate Change Lawsuits Report 2020 Status Review, accessed February 25, 2023.

 

22. Data and conclusions can be found in the Global Trends in Climate Change Lawsuits: 2021 Snapshot, Joana Setzer and Catherine Higham

 

23. Wu Weixing,   Evolution of Environmental Human Rights in the United Nations System: Comments on UN Human Rights Council Resolution No.48/13  , Human Rights Law 3 (2022): 2.

 

24. Gong Yu, Liability for Climate Damage in the Context of Human Rights Law: Illusion or Reality,   Science of Law 1 (2013): 8.

 

25. See the Institute of Amazonian Studies v. Brazil case, available in the database of the Sabine Climate Change Law Center at Columbia University, accessed February 25, 2023.

 

26. Jacqueline Peel and Hari M. Osofsky, A Rights Turn in Climate Change Lawsuits?  , 47.

 

27. Massachusetts v. EPA, 549 U.S.497 (2007).

 

28. Juliana v. United States case, available in the database of the Sabine Climate Change Law Center at Columbia University, accessed on February 25, 2023.

 

29. Juliana v. United States, 947 F. 3d 1159 (9th Cir. 2020).

 

30. Article 3 of the United States Constitution has three basic requirements for litigation qualification: Injury-in-fact; Causation; Redressability. For research on the litigation qualification of environmental cases in the United States, please refer to Wang Xi, Examination of the Qualification of Environmental Precedents in the US Supreme Court  , Tsinghua University Law Journal 2 (2021): 71-93. In the court opinion of the case in 2020, the Federal Circuit held that the plaintiff  s claim in the Juliana case that the federal government's approval and funding of the fossil industry that caused climate change, which resulted in infringement of the plaintiff  s constitutional rights, did not meet the requirement of Redressability in the litigation qualification and therefore should not be supported.

 

31. Jacqueline Peel and Hari M. Osofsky, A Rights Turn in Climate Change Lawsuits?, 46.

 

32. Esmeralda Colombo, Enforcing International Climate Change Law in Domestic Courts: A New Trend of Cases for Boosting Principle 10 of the Rio Declaration?, 35 UCLA Journal of Environmental Law and Policy 1 (2017): 107.

 

33. the Ashgar Leghari v. Federation of Pakistan case, available in the database of the Sabine Climate Change Law Center at Columbia University, accessed February 25, 2023.

 

34. In its decision, the Lahal High Court derived the constitutional value of climate justice from the value of environmental justice. The judgment advocates that the interpretation of fundamental constitutional rights should comply with the values of democracy, equality, and socio-economic justice in the Constitution and fully consider important values in the environment of the country: sustainable development, prevention principles, intergenerational equity, and public trust. Environmental protection has become a central value of Pakistan  s constitutional rights system.

 

35. Jacqueline Peel and Hari M. Osofsky,  A Rights Turn in Climate Change Lawsuits?, 49-51.

 

36. Zhu Mingzhe, Climate Change Lawsuits: The Human Rights Approach and Its Limitations  , Chinese Journal of Human Rights 3 (2022): 11-13.

 

37. the Neubauer et v. Cerman case, available in the database of the Sabine Climate Change Law Center at Columbia University, accessed February 25, 2023.

 

38. The emission reduction target set by Germany  s Federal Climate Protection Act is to reduce greenhouse gas emissions by 55% by 2030 compared to 1990 levels.

 

39. For the interpretation of the constitutional issues in this case, see Duan Qin,   The Limited Function and Development Space of Constitutional Environmental Rights: From the Climate Ruling   of the Federal Constitutional Court of Germany, Chinese Journal of Human Rights 3 (2022): 21-32.

 

40. See Sharma v. Minister for the Environment case, available in the database of the Sabine Climate Change Law Center at Columbia University, accessed February 25, 2023.

 

41. The uniqueness of this case in terms of human rights-based argumentation lies in: firstly, it is not a constitutional lawsuit, but a lawsuit based on administrative law. Its core is to discuss the negative obligation of the government to protect human rights in administrative procedures. Secondly, in this case, the source of the government's reasonable care obligation to protect Australian children is not the Constitution, but rather the provisions of the Environment Protection and Biodiversity Conservation Act 1999:   The government should avoid causing personal harm to children or threatening their right to life when making administrative decisions.   Thirdly, the target of the government's reasonable care obligation   is not limited to the petitioner in this case, but to all Australian minors.

 

42. See the Milieudefensie et al. v. Royal Dutch Shell Plc case, available in the database of the Sabine Climate Change Law Center at Columbia University, accessed February 25, 2023.

 

43. The court's legal argumentation regarding the unwritten care obligation   was questioned in this case. See Du Zhonghua,   A Failed Attempt to Strengthen Corporate Liability for Climate Infringement with Human Rights Law: A Critical Study of the Royal Dutch Shell Case  , Chinese Journal of Human Rights 3 (2022): 41-43. This paper reasonably questions the court  s improper invocation of the United Nations Guiding Principles on Business and Human Rights as an international soft law norm in the interpretation of the concept of tort law, and points out that this argument confuses international and domestic law obligations and cannot apply international law obligations to disputes of a domestic private law nature through a consistency interpretation. The court's slightly convoluted human rights-based argumentation in this case demonstrates the importance of finding appropriate and proper legal errors in climate strategy litigation. From the Urgenda case to the Shell case, the strategies of finding an  anchor in tort law have become inadequate.

 

44. Jacqueline Peel and Rebekkah Markey-Towler, Recipe for Success?: Lessons for Strategic Climate Litigation from the Sharma, Neubauer and Shell Cases  , 22 German Law Journal 8 (2021): 1484-1498.

 

45. David Markell and JB Ruhl,   An Empirical Assessment of Climate Change in the Court: A New Jurisprudence or Business as Usual?, 64 Florida Law Review 1 (2021): 65-70.

 

46. Joana Setzer and Catherine Higham, Global Trends in Climate Change Lawsuits: 2021 Snapshot, page 15.

 

47. According to this principle, the UNFCC sets specific emission reduction obligations for developed countries in Annex I, with the aim of forming a top-down, specific emission reduction responsibility among developed countries. See the United Nations Framework Convention on Climate Change (Chinese version), at the United Nations Framework Convention on Climate Change website.

 

48. Article 3 of the Kyoto Protocol sets specific targets for countries in Annex I to reduce their greenhouse gas emissions by 5% from 1990 levels between 2008 and 2012. See the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Chinese version), available on the website of the United Nations Framework Convention on Climate Change.

 

49. The Paris Agreement (Chinese version), available on the website of the United Nations Framework Convention on Climate Change.

 

50. See Gong Yu for related research, Gong Yu,   Liability for Climate Damage in the Context of Human Rights Law: Illusion or Reality,   Science of Law 1 (2013): 8; He Jingjing,   The Human Rights Law Dimension of Climate Change  , Human Rights Studies 5 (2015): 84-101; He Zhipeng and Zhang Xin,   Reflection and Breakthrough of Climate Change: From the Perspective of Human Rights Law  , Northern Legal Science 5 (2021): 104-115.

 

51. Maiko Meguro, Litigating Climate Change Through International Law: Obligations Strategy and Rights Strategy  , 33 Leiden Journal of International Law 4 (2020): 942.

 

52. Daniel Bodansky, The Paris Climate Change Agreement: A New Hope?, 110 American Journal of International Law 2 (2016): 291-292.

 

53. See K.Levin et al, Overcoming the Tragedy of Super Wicked Problems: Constraining Our Future Selves to Ameliorate Global Climate Change, 45 Political Science 2 (2012): 127-129.

 

54. Effort Sharing Decision-Decision No.406/2009/EC of the European Parliament and of the Council, April 23, 2009.

 

55. The Effort Sharing Regulation-Regulation (EU) 2018/842 of the European Parliament and of the Council, May 30, 2018.

 

56. The obligation of EU member states in the emission reduction contribution sharing is mandatory. Failure to achieve the goal will trigger intervention mechanisms within the EU.

 

57. See Peeters M & Athanasiadou N, The Continued Effort Sharing Approach in EU Climate Law: Binding Targets, Challenging Enforcement?, 29 Review of European, Comparative & International Environmental Law 2 (2020): 201-211.

 

58. Climate Ambition Alliance: Nations Renew Their Push to Upscale Action by 2020 and Achieve Net Zero CO2 Emissions by 2050 (Press Release Issued on behalf of the Chilean Presidency of COP 25).

 

59. See UK Climate Change Act 2008.

 

60. Chris Hilson, Hiting the Targets? Analyzing the Use of Targets in Climate Law, 196.

 

61. Hari M Osofsky, The Continuing Importance of Climate Change Lawsuits,Climate Law 1 (2010): 6.

 

62. Joana Setzer and Catherine Higham, Global Trends in Climate Change Lawsuits: 2022 Snapshot, page 3, accessed February 25, 2023.

 

63. Jacques Hartmann and Annalisa Savaresi, Corporate Actors, Environmental Harms and the Draft UN Treaty on Business and Human Rights: History in the Making?, Questions of International Law 83 (2021): 27-32.

 

64. Ibid., 45.

 

65. European Commission: EU Corporate Sustainability Reporting Directive, available on the official website of the European Union, htps://ec.europa.eu/info/sites/default/files/1_1_183885_prop_dir__ susta__en.pdf.

 

66. Zhu Mingzhe, How Justice Participates in Climate Governance: From the perspective of Comparative Law  , Political Science and Law 7 (2022): 25.

 

67. Due to the lack of legal provisions on climate human rights in most countries, strategic climate litigation for human rights-based argumentation needs to find an anchor where international climate treaties and human rights law can be linked to domestic law. In the Urgenda case, the anchor is duty of care in the Dutch Tort Law.

 

68. Zhang Zhongli,   Judicial Determination of State Duty of Care in climate change lawsuits: A Case Study of Urgenda Foundation v. Netherlands  , Journal of Law Application 18 (2019): 99-110.

 

69. The petitioner cites relevant provisions in the EU Charter of Fundamental Rights and the Austrian Constitution, stating that the expansion of the airport will result in an increase in greenhouse gas emissions, which violates Austria  s obligations under international climate treaty and also violates EU and domestic laws. See In re Vienna Schwechat Airport Expansion case, available in the database of the Sabine Climate Change Law Center at Columbia University, accessed February 25, 2023.

 

70. Ibid.

 

71. James R. and Erin Daly, Global Climate Constitutionalism and Justice in the Courts, in Research Handbook on Global Climate Constitutionalism (Cheltenham: Edward Elgar Publishing, 2019).

 

72. These countries include the Dominican Republic, Ecuador, Thailand, Tunisia, Algeria, Bolivia, C?te d  Ivoire, Cuba, Venezuela, Zambia, and Vietnam. For the translation of the original texts of the constitutions of these countries, please refer to the World Constitution Text Comparison Research Database, which is available on the website of the project, accessed February 20, 2023.

 

73. China  s Constitution sets environmental protection as a national goal. See Zhang Xiang and Duan Qin,   Environmental Protection as a National Goal: The Theory and Implications of the Federal German Basic Law 20a  , Political Science and Law 10 (2019): 15.

 

74. Joana Setzer and Delton Winter de Carvalho, Climate Change Lawsuits to Protect the Brazilian Amazon: Establishing A Constitutional Right to a Stable Climate  , 30 Review of European, Comparative & International Environmental Law 2 (2021): 197.

 

75. Do-Hyun Kim et al. v. South Kore, available in the database of the Sabine Climate Change Law Center at Columbia University, accessed February 25, 2023.

 

76. The plaintiff  s complaint is not an official English translation, ibid.

 

77. Zhu Mingzhe, Climate Change Lawsuits: The Human Rights Approach and Its Limitations, 18.

 

78. Chiara Macchi, The Climate Change Dimension of Business and Human Rights: The Gradual Consolidation of a Concept of Climate Due Diligence, 6 Business and Human Rights Journal 1 (2021): 93-100.

 

79. Maria Antonia Tigre and Cynthia Hanawalt,   The Fiduciary Duty of Directors to Manage Climate Risk: An expansion of corporate liability through litigation?, available in the blog of the Sabine Climate Change Law Center at Columbia University, accessed February 25, 2023.

 

80. Joana Setzer and Catherine Higham, Global Trends in Climate Change Lawsuits: 2022 Snapshot, page 29, accessed February 25, 2023.