QIN Tianbao* & YUAN Yeyangguang**

 

Abstract: Climate change, which is the result of human activities, has wide-ranging impact. It poses a serious threat to human rights. Environmental rights are where the protection of the ecological environment and the development of human rights intersect. In view of the close relationship between the actions for addressing climate change and environmental rights, China should integrate the protection of environmental rights into the actions for addressing climate change, so as to achieve simultaneous development of both. In the process of coping with climate change, the right to climate stability that mainly pursues a “harmless” environment and the right to a more livable climate that pursues a “beautiful eco-environment” are specific manifestations of environmental rights and should be the priority of protection efforts. However, there are still some obstacles to achieving the coordinated development of the efforts to address climate change and the protection of environmental rights because traditional rights protection methods mainly give individuals subjective rights with the power to claim and are thus difficult to meet the needs of environmental rights protection in the context of climate change, and there are inherent value differences between responding to climate change and the realization of other human rights. Building a multi-level national obligation system to address climate change, giving full play to the role of courts in responding to climate change through moderate judicial activism, and coordinating the efforts to cope with climate change and the development of human rights under the guidance of a holistic system view are effective ways to overcome the aforementioned difficulties.

 

Keywords: actions for addressing climate change · environmental rights · judicial activism · holistic system view

 

 

Climate change is probably the most serious threat that humanity faces. Unlike traditional security threats, climate change issues are complex and have multifaceted causal relationships, and it is difficult to predict how they will affect development trends. The impacts of climate change on different countries and their citizens is not the same.¹ Second, limiting carbon emissions, as a mainstream means of addressing climate change, is deeply bound to the already established economic development patterns, energy structures, and consumption patterns of residents, making the measures taken by each country to address climate change usually have impacts on other countries. Finally, although countries have made significant efforts to establish international rules to address climate change from the establishment of the United Nations Framework Convention on Climate Change (UNFCCC) to the signing of the Paris Agreement, a unified, effective, and enforceable international climate law has not yet been formed. From the aforementioned characteristics, it can be seen that climate change is not simply an eco-environmental issue. Understanding climate change needs not just the perspective of natural science, but also the political, economic, social, and legal perspectives. In recent years, human rights have also become an important perspective for understanding and studying climate change. The results of interdisciplinary research on climate change and human rights protection are also conducive to a comprehensive understanding of climate change issues and promoting human rights protection.

 

Currently, there is a new background for interdisciplinary research on climate change and human rights protection. On the one hand, China is a major carbon emitter. To improve global climate governance, build a community with a shared future for mankind, and promote green and low-carbon transformation and development, Xi Jinping, General Secretary of the Communist Party of China (CPC) Central Committee made a solemn commitment to peak carbon emissions by 2030 and carbon neutrality by 2060 during the general debate of the 76^th United Nations General Assembly.² To ensure the successful implementation of the carbon peak and carbon neutrality goals, China has gradually formed a “1+N” policy system represented by the “Working Guidance For Carbon Dioxide Peaking And Carbon Neutrality In Full And Faithful Implementation Of The New Development Philosophy” (hereinafter referred to as the “Working Guidance”) and the “Action Plan for Carbon Dioxide Peaking Before 2030” (hereinafter referred to as the “Action Plan”). Represented by the “carbon peaking and carbon neutrality” goals, China’s response to climate change has been fully launched, and climate governance has also taken a new step. On the other hand, the latest progress in theoretical research³ and international legislation⁴ on environmental rights, as a representative of the new generation of human rights, not only enriches human rights theory but also provides new theoretical support for addressing climate change from the perspective of human rights protection. The protection and realization of the environmental right, as a human right that refers to the benefits enjoyed by humans in the eco-environment, depend on high-quality environmental factors, including a stable climate.⁵ From this perspective, there is a deep correlation between the protection of environmental rights and the response to climate change, which should be carried out in a coordinated manner. However, the main policy documents related to climate change actions, such as the Working Guidance and the Action Plan, have not yet explicitly included content on environmental rights protection. Therefore, this paper aims to analyze the main obstacles that affect the integration of environmental rights protection into climate change response actions and propose solutions, based on clarifying the necessity of coordinated development between environmental rights protection and climate change response.

 

 

Although there are currently no laws, regulations, or policy documents that integrate environmental rights protection with climate change response actions, it cannot be denied that the coordinated development of the two is necessary and legitimate. Generally speaking, it is a legitimate and necessary choice to include the protection of environmental rights in the response to climate change because climate change undermines other human rights, thereby undermining the basis for the realization of environmental rights and because climate change itself is closely related to the realization of environmental rights.

 

 

Although environmental rights as a human right have gradually become a consensus in the international community, this does not mean that environmental rights should be absolute or given a supreme status.6 On the contrary, the rights to subsistence and development are the primary basic human rights,⁷ and the realization of environmental rights needs to be based on, or at least closely related to, the realization of other human rights to a certain extent. However, as of now, climate change has caused serious environmental problems globally and has been continuously discussed and paid attention to by the international community. For example, the Malé Declaration on the Human Dimension of Global Climate Change adopted by small island developing states in November 2007 clearly states that “climate change has clear and immediate implications for the full enjoyment of human rights including inter alia the right to life, the right to take part in cultural life, the right to use and enjoy the property, the right to an adequate standard of living, the right to food, and the right to the highest attainable standard of physical and mental health.”⁸ The United Nations Human Rights Council has also adopted Resolutions 7/23, 10/4, and 48/13, and the Office of the United Nations High Commissioner for Human Rights released Reports A/HRC/10/61 and A/HRC/31/52, emphasizing the threat and harm of climate change to human rights.⁹ To be specific:

 

First, the environmental problems brought about by climate change infringe on the right to life enjoyed by everyone in both “acute” and “chronic” forms. As global temperatures rise, climate-related disasters such as typhoons, droughts, heat waves, and floods pose a significant threat to everyone’s lives. For example, Hurricane Katrina, which hit the United States in 2005, caused over a thousand deaths. The extremely high temperatures that swept across Europe in 2022 caused hundreds of deaths.¹⁰ According to IPCC reports, from 1980 to 2000, approximately 120 million people were threatened by tropical storms each year, and a total of approximately 250,000 people died from tropical storm attacks.¹¹ According to the Human Development Report 2007/2008 published by the United Nations Development Programme (UNDP) in 2007, approximately 262 million people were affected by climate disasters annually from 2000 to 2004.¹² In addition to the “acute diseases” characterized by extreme weather and meteorological disasters, climate change can also affect water resources, land resources, and food, causing various “chronic diseases” for people’s rights to life. Previous studies have shown a positive correlation between global temperature rise and freshwater resource reduction.¹³ Climate change will also exacerbate the scarcity of water resources in arid and semi-arid regions and increase the frequency of droughts.¹⁴ The rise in sea level caused by global climate change not only causes seawater to recharge, and pollutes freshwater resources in coastal areas, but also inundates coastal land or islands, endangering the survival of residents in coastal and island areas, and forcing them to migrate.¹⁵ Moreover, global climate change will also affect the production of major food crops (such as wheat, rice, corn, etc.) in tropical and temperate regions, disrupting the stability of food production and prices.¹⁶ In short, under the dual effects of “acute” and “chronic” problems, the universal right to life enjoyed by humanity has been significantly threatened by climate change.

 

Second, the adverse effects of climate change can also endanger human health. After World War II, the revival of international human rights legislation and natural law theory, as well as the advancement of healthcare, provided impetus for the rise and development of the right to health. The right to health has gradually been recognized by numerous international conventions and domestic legislation.¹⁷ The right to health is a right that combines both negativity and positivity. Its negative implication is that its most basic requirement is the inviolability of the physical integrity and health of citizens.¹⁸ In the field of environmental law, both domestic and international legislation emphasize the connection between the right to health and environmental protection. For example, Article 1 of China’s Environmental Protection Law stipulates “safeguarding public health” as the legislative purpose of the law. For another example, the UN Human Rights Council’s Resolution 48/13 also emphasizes that sustainable environmental development helps present and future generations to enjoy the “right to the highest standard of physical and mental health”. However, as one of the most serious environmental issues today, climate change poses a real and significant threat to human right to health. Under the influence of climate change, the probability of dehydration, heatstroke, and heat exhaustion caused by high-temperature weather, as well as lung diseases caused by near-ground ozone pollution, will increase. In addition, the loss of biodiversity caused by climate change may also increase the risk of infectious diseases such as Lyme disease, schistosomiasis, and Hantaan disease.¹⁹ Therefore, the threat of climate change to human health cannot be ignored.

 

Third, climate change hinders the full realization of the right to development. The harm of climate change to the right to development is usually indirect. Climate change affects the quality and quantity of natural resources necessary for human development, such as water and land, which will weaken the capacity and foundation of development. More importantly, the current global means of addressing climate change will pose constraints on the right to development in the short term. The global energy structure today is still dominated by fossil fuels, which determines that global economic development will inevitably bring a large amount of carbon emissions. In the absence of a dominant position for clean energy, controlling and reducing carbon emissions often results in constraining the economic development of a country or region. In other words, carbon emissions are usually necessary for a country’s development. The measures taken to limit carbon emissions in response to climate change can hurt the development of a country. In particular, it can potentially endanger the realization of the right to development of developing countries.²⁰

 

Finally, climate change directly damages the social and cultural rights of specific groups. The eco-environmental issues caused by climate change may force some people to abandon their original production methods, lifestyles, and habits. Although this practice is a requirement for climate adaptation, it inevitably damages the social and cultural rights of the aforementioned population. Some people who are more affected by climate change have already taken certain protest actions, such as the Inuit lawsuit filed against the United States by the Inter-American Commission on Human Rights. In this case, the Inuit plaintiff filed multiple claims for cultural rights, the right to enjoy and utilize traditional land, and the intellectual property rights of traditional knowledge in the lawsuit, making it the first case to combine addressing climate change with protecting the cultural rights and other rights of indigenous people.²¹ Although the case did not receive a positive response, it at least conveyed the voices of minority groups to countries around the world, emphasizing the harm of climate change to cultural and social rights.

 

As mentioned earlier, climate change and its associated ecological and environmental issues have seriously endangered the realization of basic human rights. According to the relevant expressions in the Working Guidance, adopting measures to address climate change is an inevitable choice made by China to “achieve sustainable development of the Chinese nation” and “build a community with a shared future for mankind.”²² The two goals of “achieving sustainable development of the Chinese nation and “building a community with a shared future for mankind” clearly reveal China’s concerns about human rights issues in the context of climate change, and also indicate that respecting and safeguarding human rights is one of the starting points and goals of China’s response to climate change. Therefore, appropriate emissions and carbon reduction measures significantly promote the protection of basic human rights such as the right to life, health, and development, which are the foundation for the realization of environmental rights or at least contribute to the protection of environmental rights. From this perspective, climate change is not conducive to the realization of environmental rights due to its violation of basic human rights. Measures to address climate change have objectively created the necessary foundation and conditions for the realization of environmental rights by reducing carbon emissions, stabilizing the climate environment, and protecting basic human rights. Therefore, in general, with basic human rights such as the right to subsistence and development as intermediaries, there is a commonality and correlation between actions to address climate change and the protection of environmental rights, and there is a foundation for coordinated progress between the two.

 

 

The content on environmental rights protection of the Human Rights Action Plan of China (2021-2025) indicates that the protection of citizens’ environmental rights cannot be separated from the reduction of greenhouse gas emissions and the enhancement of climate change adaptation capabilities. Therefore, in addition to establishing connections through basic human rights, there is also a direct connection between addressing climate change and safeguarding environmental rights. From the perspective of the fundamental meaning of environmental rights (the right of people to live in a harmless, clean, healthy, and sustainable environment)²³, taking action to address climate change is aimed at addressing the deteriorating climate conditions. Its direct effect is to stabilize the climate, mitigate global warming, curb the rising trend of sea level, reduce the frequency of various extreme weather, and avoid as much as possible the damage caused by unstable climate to human life and property. In other words, adopting measures to address climate change can contribute to climate stability and prevent “harmful climate” from posing threats and harm to people. This coincides with the basic meaning of environmental rights. Similarly, to realize the right to live in a clean, healthy, and sustainable environment, countries should not only take necessary measures to avoid pollution of environmental factors such as air, land, and water but also sustainably use natural resources to protect biodiversity. These measures also contribute to addressing climate change and are highly in line with the requirements of developing a circular economy, repairing ecosystems, and increasing carbon sink growth in actions responding to climate change.²⁴ Therefore, regarding the basic meaning of environmental rights, there is a complementary and mutually reinforcing relationship between measures to address climate change and environmental rights protection.

 

Since China’s socialist construction entered a new era, the concept and theory of environmental rights have undergone significant innovation and development. The environmental rights of the new era are the representative content of the fourth generation human rights.²⁵ Compared to the traditional concept of environmental rights, China’s concept of environmental rights in the new era has new theoretical connotations and value foundations. It is not a simple statement of the process of passive human response to environmental issues, but a summary of the new law of China’s eco-environmental protection work from passive to active, from avoiding environmental degradation to continuously improving environmental quality, to meet the growing needs of the people for a beautiful eco-environment, in the context of the contradiction between the growing need for a better life and imbalanced and insufficient development becoming the main contradiction in Chinese society. In the context of the environmental rule of law, it is an innovative embodiment of the concepts of law-based ecological civilization as well as people’s better lives, the value foundation of the rule of law in the new era, in Xi Jinping Thought on the Rule of Law. In short, China’s concept of environmental rights in the new era has inherited and transcended traditional environmental rights. It does not stop at pursuing a harmless eco-environment for humanity but further recognizes the right of citizens to live in a beautiful eco-environment, which is a new type of right.²⁶

 

China’s response to climate change today and China’s concept of environmental rights in the new era were born together in the new era of socialist construction, and their positions, goals, and main contents have many similarities. According to the Working Guidance, to make climate change measures effective, we must rely on measures such as developing a green and circular economy, vigorously building ecological civilization, and increasing forest coverage. The establishment of a green circular economic system cannot be separated from the implementation of the view of green production and consumption, the green and low-carbon adjustment of industrial structure, and the establishment of a low-carbon and efficient energy system. The construction of ecological civilization, including the improvement of forest coverage, cannot be separated from the prevention and treatment of various environmental pollution problems, the protection and restoration of existing forest ecosystems, the satisfaction of the needs for a beautiful eco-environment, and the pursuit of the concept

of harmonious coexistence between humans and nature. Similarly, China’s concept of environmental rights in the new era not only contains a “new” theoretical connotation and value foundation but also demonstrates the “new” concept of green development in China in the new era. The concept and the green and low-carbon development model confirm and support each other. It requires China to continuously improve environmental quality, enhance the quality and stability of ecosystems, and comprehensively improve the efficiency of resource utilization in the new era.²⁷ The compatibility between the main action plans for carbon peaking and carbon neutrality in China and the main characteristics of environmental rights in the new era indicates that the implementation of measures to address climate change is also the realization process of environmental rights in the new era.

 

From the perspective of ensuring the realization of environmental rights in the new era, what these rights meet is the people’s need for a beautiful eco-environment, that is, to serve the people’s needs for a better life from the perspective of the eco-environment. Compared to basic eco-environment needs, people’s need for a beautiful eco-environment is a higher level of spiritual satisfaction beyond basic physiological needs. In this regard, the state should ensure that people can enjoy high-quality environmental elements, such as clean water, fresh air, comfortable temperature, and sufficient sunlight, in order to obtain an experience of beauty and joy in the eco-environment. However, under the threat of climate change, humanity may not be able to guarantee even basic security needs, let alone higher spiritual needs. Moreover, when facing extreme weather conditions such as high temperatures, storms, and severe cold, the vast majority of people only experience severe discomfort and are almost unable to have any pleasure. Therefore, to ensure the full realization of environmental rights in the new era, the government must take effective measures to address climate change.

 

In summary, whether it is addressing climate change to protect other fundamental human rights and thereby solidify the foundation for the realization of environmental rights, or directly clarifying the correlation between addressing climate change and safeguarding environmental rights, both have strongly demonstrated the interdependence and mutual promotion between action to address climate change and safeguarding environmental rights, which are important components of China’s human rights cause. Therefore, it is a measure with sufficient theoretical basis to coordinate the,response to climate change and the protection of environmental rights, so that the two can develop together and work together.

 

 

In terms of necessity, there is a close relationship between addressing climate change and safeguarding environmental rights, which has the potential and legitimacy for coordinated promotion and development. However, if we return to the norms and reality, in the face of various claims of rights, we should first clarify the types of environmental rights that should be protected in the process of coping with climate change and then face all kinds of difficulties that may be faced in the process of rights protection.

 

 

Environmental rights are a concept with vague connotations. It seems that any interest requirement related to a certain environmental issue or element may be labeled as a certain environmental right. Currently, there are many emerging environment-related rights and demands in both theoretical and practical fields, such as the specific rights to clean air, clean water, tranquility, and landscape.²⁸ Climate change, as a significant environmental issue, has a composite effect on human rights protection, which has given rise to more forms of rights or linked some existing rights with environmental rights. The former includes the newly generated right to climate stability²⁹ and ownership of climate resources,³⁰ while the latter includes the right to food³¹ and cultural rights³² under the influence of climate change. These practices of proposing emerging environmental rights claims or linking other rights to environmental rights through climate change, though objectively reflecting the widespread impact of climate change issues and the anxiety of humanity’s desire to reverse the trend of climate change, have blurred the borders of environmental rights. In addition, many of the aforementioned specific rights remain in the form of natural rights. Their connotation and borders are not fixed, nor have they been explicitly recognized by law. Or,

although they are stipulated in legislation, there is no corresponding rights protection mechanism, which makes them unable to become real rights. Therefore, this approach of infinitely expanding the borders of environmental rights makes it difficult to clarify the specific types, objects, and protection methods of environmental rights that need to be protected. This is not conducive to the clarification and stabilization of environmental rights themselves, and even less conducive to their becoming a determined legal right. This question further makes it difficult for states to determine which environmental factors should be covered in the protection of climate change actions (to improve the quality of these environmental factors), let alone stronger collaborative protection measures, efforts, goals, etc. Therefore, even in the context of a close theoretical connection between addressing climate change and safeguarding environmental rights, the ambiguity of environmental rights may still hinder its further integration with response measures in reality. Therefore, to effectively integrate environmental rights protection into national actions related to climate change, it is necessary to clarify which environmental rights need to be protected in the context of addressing climate change.

 

As mentioned earlier, various rights claims related to climate change are constantly emerging in the theoretical and practical fields of various countries. Although there are various types and they are all related to climate change, they can still be classified into three types. The issues addressed by the first type of rights, although caused by climate change and are indeed related to environmental issues, are not essentially environmental rights, such as the right to environmental health, ownership of climate resources, and the right to food and cultural rights under the influence of climate issues. From the perspective of rights carriers, although the aforementioned rights are referred to as “environment” or “climate,” the nature of their carriers has not changed: the carrier of environmental health rights is still the benefits enjoyed by people for their healthy bodies, and the carrier of ownership of climate resources is still the behavior of the owner to possess, use, benefit from, and dispose of the so-called “climate resources”.” Climate change is the trigger for the crisis faced by the aforementioned rights, and its role, like other eco-environmental issues, and even private infringement, only leads to the occurrence of the fact that rights are damaged, without changing the nature and type of rights themselves. In most cases, the use of existing legal systems can achieve remedies for the aforementioned rights, without the need to create new legal systems in the name of protecting environmental rights.

 

The rights represented by the right to climate stability are the interests that people enjoy in a stable atmospheric environment, corresponding to the second type of rights. The relationship between this right and environmental rights can be understood as follows. Firstly, “climate” is a type of environmental element and is the subordinate concept of “environment.” Therefore, the right based on climate should be recognized as a specific form of environmental right. Second, climate issues mainly manifest as abnormal increases in atmospheric temperature and frequent extreme weather events, which pose a threat to citizens’ lives and property due to the “unstable” nature of climate. Therefore, in contrast, a “stable” climate environment will reduce the frequency of extreme weather events and reduce the threat to citizens’ rights. From this perspective, the basic connotation of the right to climate stability is highly compatible with the “harmless” requirement of environmental rights, and the former can be seen as a specific manifestation of the latter. Finally, a more stable climate not only poses almost no threat to human survival and development but also provides a more suitable environment for human survival and development, which is consistent with the pursuit of a beautiful eco-environment in China’s concept of environmental rights in the new era. Therefore, the right to climate stability should be a specific type of environmental right and the main manifestation of environmental rights in the context of addressing climate change.

 

The right to climate stability often appears in compensation for climate change damages abroad, and plaintiffs often claim that the defendant’s actions have disrupted climate stability and caused physiological, psychological, and property damage to them.³³ From this, it can be seen that the purpose of the plaintiff is proposal for the right to climate stability should be to prevent its legitimate rights and interests from being infringed upon by climate issues, which is in line with the pursuit of sound environment in the traditional sense of environmental rights. Therefore, the rights that are similar to the right to climate stabilization, and whose basic appeal is to protect legitimate rights from the infringement of climate issues can be regarded as the reflection of the traditional concept of environmental rights in addressing climate change issues and can be summarized into a type of rights, and be dealt with and protected by legal means to protect traditional environmental rights.

 

The third type of rights is directly related to the concept of environmental rights in the new era, mainly expressing the rights holder’s need for a comfortable and livable climate. The fundamental difference between environmental rights in the new era and traditional environmental rights lies in the fact that the former is based on the fundamental value of the people’s need for a better life and the direct demand for a beautiful eco-environment. Rightsholders are no longer satisfied with living in a harmless environment but advocate for enjoying a high-quality environment full of beauty and pursuing a state of harmonious coexistence between humans and nature. If the right to climate stability is a reflection of traditional environmental rights in addressing climate change issues, then in the field of climate, environmental rights in the new era should be reflected in concepts such as rights to livable climate and comfortable climate, pursuing appropriate combinations of climate factors such as wind, precipitation, sunlight, and temperature to meet the needs of people’s high-quality living.

 

Based on such categorization, various claims related to climate issues will have clear distinctions. By then, the decision-making and implementation bodies in national action to address climate change only need to determine which types of rights claims should be included in the action to address climate change. Specifically, the first type of claim is not related to environmental rights and is usually satisfied through the realization of environmental rights, so action to address climate change does not need to pay special attention to it. The second and third types of claims correspond to two levels of environmental rights protection, which are specific manifestations of environmental rights claims in the field of climate change and should be given priority attention in response to climate change.

 

 

Protecting environmental rights in response to climate change may face some difficulties, which are not only caused by the special attributes of environmental rights themselves but also by the mutual constraints between environmental rights and other human rights.

 

 

According to traditional legal theory, the realization of environmental rights as a kind of “right” follows the logic of consequentialism, that is, whether the right has been damaged or hindered. When rights are damaged, the mainstream remedy is to grant citizens the subjective right to request and allow them to file lawsuits with judicial authorities when their rights are violated. According to the experience of judicial practice in various countries, when climate change issues harm or threaten citizens’ environmental or other rights, citizens still tend to seek relief through litigation. This type of climate change litigation usually falls into two categories: one is litigation aimed solely at protecting individual subjective rights, and the other is litigation aimed primarily at maintaining objective legal order while suing for subjective rights.³⁴

 

The plaintiff in the first type of litigation usually claims that the defendant’s actions are not conducive to responding to climate change and damage their environmental rights, other basic human rights, or property rights, and then requests compensation for damages or other obligations to pay.³⁵ Generally speaking, this type of litigation combines private interest litigation and public interest litigation, and generally follows the logic of private law, attempting to solve the problem of climate damage through the framework of tort law. Representative cases include the case of Friends of the Earth in the Netherlands v. Royal Dutch Shell plc.,³⁶ the case of Connecticut v. American Electric Power,³⁷ and the Gansu “Abandoning Wind and Solar” case filed by Friends of Nature in China.³⁸

 

Although protecting environmental rights through private law and invoking relevant theories and provisions of tort law can directly follow the existing judicial system and theoretically obtain higher benefits at a lower cost, the shortcomings of this path are also very obvious. By adjusting the theory of tort law, it is possible to solve, at the theoretical level, the problems faced by the establishment of climate change tort liability, such as the difficulty in determining the victim and perpetrator, the difficulty in judging the perpetrator’s duty of care, and the difficulty in proving causal relationships. However, it still faces obstacles from practical political and economic factors.³⁹ Driven by a series of decisions of the UNFCCC Conference of the Parties, such as the Bali Action Plan and the Cancun Agreement, the Paris Agreement has finally provided normative explanations for the concepts of climate loss and climate damage, but cannot be used as a “basis for any liability or compensation.”⁴⁰ This contradictory expression directly reflects the weakness and helplessness of the international cooperation mechanism to address climate change. On the one hand, most of the countries that support compensation for climate damage are underdeveloped island countries, and their weak national strength makes it difficult for them to achieve a position in international negotiations that is sufficient to promote their claims. On the other hand, developed countries that hold opposing views are destined not to support the development of domestic climate change compensation litigation.

 

The second type of litigation aims at influencing domestic policies and actions to deal with climate change, such as German’s “unconstitutional case of the Climate Protection Law”. This type of case has a strong political color and has long been criticized for disrupting the constitutional order. In terms of the constitutional order and power structure commonly used in many countries around the world, most issues related to addressing climate change are political issues. The decision to address climate change should be based on public opinion and made by the legislative body. How to respond to climate change, what measures to adopt, and what timetable and steps to follow should be specifically formulated by the administrative organs and subject to review by the legislative organs. Under such a power distribution pattern, if a country’s judiciary cannot properly handle the boundaries in the review of climate change policy, it may exceed its jurisdiction and invade the space of legislative or administrative authority. Some climate change judgments may seem like judicial decisions made by judicial authorities on their own, but in essence, they are decisions made on behalf of legislative or administrative organs. This is not only contrary to the constitutional order in form but also suspected of replacing representative democracy with an elitist decision-making mode. In addition, once environmental rights related to addressing climate change are established as fundamental constitutional rights, citizens’ demands based on environmental rights not only have traditional defensive aspects but also theoretically have the meaning of requesting the state to pay the necessary conditions for the realization of rights.⁴¹ Because the degree to which the right to request payment for basic rights can be implemented depends more on the country’s actual financial capacity and objective constitutional order, the authority of the constitution will be compromised when financial capacity cannot support various payment requests. Therefore, even Germany, the birthplace of the fundamental rights theory, has adopted a very cautious attitude towards the right to claim for payment.⁴² Based on this, China should also take into account the national power order constructed by the Constitution and treat climate change litigation aimed at influencing the objective legal order with caution.

 

Regardless of the type of litigation, protecting environmental rights through judicial adjudication will still face difficulties due to the ambiguity of environmental rights themselves. This ambiguity comes from the concept and realization standards of environmental rights. First, whether it is environmental rights in the traditional sense or those in the new era, although we can give a definition that can summarize the connotation of environmental right, it still cannot make up for the ambiguity of the concept of environmental rights. Because the carrier of environmental rights, as a kind of right, is “interests enjoyed by people to the environment,”⁴³ but the “environment” itself is an uncertain concept. Although we can enumerate various environmental elements such as air, water, soil, sunshine, and biology to understand the concept of “the environment,” it is difficult to exhaust all environmental elements and clarify the boundary of the concept of “the environment.” What’s more, there is a complex energy transmission mechanism instead of a simple addition and combination relationship among the elements that constitute “the environment.” The existing cognitive abilities of humans cannot fully and clearly understand and explain this intangible connection, and therefore it cannot be accurately described and protected by legal norms. The aforementioned facts show that the openness of the concept of “the environment” leads to the uncertainty of environmental interests and the connotation of environmental rights with the latter as the carrier is inevitably ambiguous. On this basis, it is difficult for courts to accurately determine how many environmental factors are affected by climate issues, and thus it is difficult to achieve comprehensive protection of environmental rights in judgments.

 

Secondly, although the existing definition provides two levels of standards for the realization of environmental rights: “harmless” and “beautiful,” these two standards themselves are ambiguous. As far as “harmlessness” is concerned, it can not only refer to harmlessness in the pure physiological sense, that is, people’s physiological functions work normally and people’s right to life is not threatened, but also refer to mental harmlessness, that is, keeping people’s mental health and avoiding mental diseases such as depression. However, as far as the reality is concerned, it is difficult to identify mental health problems and specific damages, and the causal relationship between the results of mental damage and acts is also vague.⁴⁴ Therefore, at the case level, which psychological damage acts are caused by environmental problems, and should be included in the scope of environmental rights protection, is a huge, controversial issue. Even clear physiological health problems may be controversial. For example, given the differences in personal physique, how should we judge whether the environment is “harmless”? To be based on the physical condition of the vast majority of people in society, or the weakest people, or the most sensitive to specific pollutants? As far as the concept of environmental rights in the new era is concerned, the standard of “beautiful eco-environment” pursued by it is essentially a subjective spiritual enjoyment that can bring pleasure and aesthetic feeling, in which the subjective color is stronger, and it is more difficult to establish objective and unified standards or norms. Generally speaking, the ambiguity of environmental rights is also reflected in the fact that it is difficult for the current legislative technique to define an objective judgment standard for the realization of environmental rights, and then it is difficult to accurately answer the question “What level should the climate and environment be restored to.” In other words, the ambiguity in the concept and implementation standards of environmental rights makes it difficult for judicial authorities to make unified and continuous judgments on environmental rights protection issues in the context of addressing climate change, thereby constraining the actual effectiveness of protecting environmental rights through judicial judgment.

 

To sum up, under the influence of climate change, the traditional way of protecting rights is not the best means to realize environmental rights. Therefore, in the process of coping with climate change, environmental rights protection should not completely rely on traditional judicial proceedings such as “taking environmental rights as the basis of claims” or “supporting climate change victims to file lawsuits,” but should be appropriately innovated in combination with their characteristics.

 

 

To coordinate the response to climate change and the protection of environmental rights, we should not only consider the compatibility and shared goals between the action to deal with climate change and environmental rights but also pay close attention to the relationship between them and other human rights. Environmental rights, along with other types of human rights, constitute the collection of “human rights,” and the full realization of environmental rights does not necessarily mean the full realization of human rights. Human rights protection requires the state to invest necessary legislative, administrative, and judicial resources, as well as financial, human, and institutional support. However, the total amount of resources that the state can invest and use for human rights protection during a certain period of time is limited. Therefore, the ideal way to realize human rights should be that all specific human rights as elements are combined in an optimal proportion, which promotes and restricts each other. The existence of restrictive relationships means that although the fundamental purpose of different types of human rights is consistent, there may still be significant disagreements and competition for resources in the short term.

 

Although climate change is a kind of environmental problem, and actions to deal with climate change mainly have an impact on the protection of environmental rights, climate change will also damage human rights such as the rights to life, health, property, development, and culture. Therefore, while coordinating efforts to cope with climate change and protect environmental rights, the state should also fully consider the relationship between relevant measures and other human rights. However, the fact is that there is inevitably a value difference between measures to address climate change and some other human rights. For example, to replace fossil fuels and increase the proportion of cleaner biofuels in the energy structure, some countries have begun to promote economic crops that are easy to extract biofuels on a large scale. This approach not only triggers land competition between cash crops and food crops but also may further exacerbate the reduction of food production and increase food prices, thereby damaging citizens’ right to food.⁴⁵ For another example, effective carbon neutrality needs to meet the requirements of improving forest coverage to increase the carbon sequestration capacity of ecosystems, which means that the country will protect and conserve forest resources by stronger means and indicates that people who partially depend on forest ecosystems have to change their original lifestyles to meet the new regulatory requirements.⁴⁶ In fact, on a global scale, many indigenous groups are forced to abandon traditional means of survival to meet the climate adaptation requirements of their countries. In general, measures to address climate change may undermine the inherent culture or the right to live in a traditional way of a particular population, which is why the Human Rights Council has called on states to guarantee the right to prior knowledge and consent of affected and vulnerable groups, such as indigenous peoples, when implementing climate change mitigation measures.⁴⁷ Finally, measures to deal with climate change usually require changing the existing energy structure and promoting clean energy. With the introduction of green energy regulatory measures, some enterprises may face the problem of increased production costs in the short term. The total carbon emission control policy under the carbon peaking and carbon neutrality targets may also limit the economic growth of a certain region during a specific period of time, or force some industries to exit.⁴⁸ This confrontation between climate change response and economic interests may affect the realization of the right to development in the short term.

 

The implementation of climate change action contributes to the protection of environmental rights in essence, but the realization of environmental rights will also be affected and restricted by other human rights. Under the influence of the aforementioned differences in values, if China ignores the requirements for the realization of other human rights and implements more extreme measures to address climate change, it will not only be detrimental to the overall development of human rights but also ultimately weaken the foundation for the realization of environmental rights. On the other hand, the value demands of other human rights objectively add some restrictions to the coordinated development of climate change actions and environmental rights protection. Therefore, to further promote the integration of the two, we must correctly understand the relationship among coping with climate change, protecting environmental rights, and developing human rights, avoid insignificant differences as much as possible, and find a common value foundation.

 

 

Traditional rights protection methods are difficult to meet the needs of environmental rights protection under the influence of climate change, and there are competition and differences between coping with climate change and the realization of other human rights. All these are realistic obstacles that have to be overcome in the integration and synergy of dealing with climate change and ensuring environmental rights. To promote the integration of the two, the state should take targeted measures when carrying out actions to deal with climate change, including: safeguarding environmental rights in the way that the state fulfills its obligations to deal with climate change, playing a moderately active judicial role in the coordinated development of climate change and environmental rights protection, and comprehensively considering climate change, environmental rights protection and human rights development under the guidance of the holistic system view.

 

 

As mentioned earlier, facing the demand for environmental rights protection under the influence of climate issues, traditional legal methods make it difficult to achieve the expected results and even face numerous obstacles. In addition to granting citizens subjective rights, the protection of environmental rights can also adopt an objective path of national environmental protection obligations. Compared to the subjective path of rights, the means of requiring the state to undertake environmental protection obligations do not simply pursue the realization of a certain outcome but rather emphasize the regulation of behavior. In other words, as long as the subject of the obligation takes appropriate actions to fulfill its legal obligations, even if the corresponding goal of the obligation is not immediately achieved, it can still be exempt from assuming partial or full legal responsibility. Therefore, compared to the subjective right path, the objective obligation path allows the obligation subject to freely choose the means, methods, and steps to achieve obligations while meeting the requirements of purposiveness and due process. It has stronger flexibility and can not only adapt to the protection needs of emerging rights but also avoid large-scale illegal and unconstitutional phenomena, which helps to maintain the authority of the Constitution and the law.

 

Although climate change does pose a threat to citizens’ environmental rights, addressing it is a long-term process and cannot achieve results in the short term. To avoid the awkward situation where rights have been infringed but cannot be remedied, in the process of addressing climate change, the law should make it the main means to ensure environmental rights by stipulating the state’s obligation to respond to climate change and allow relevant departments to promote the process of addressing climate change in a planned manner based on factors such as industrial structure and financial capacity. In terms of integrating climate change response and environmental rights protection, decision-making and enforcement organs should add and implement climate change obligations that match various types of environmental rights in response to different types of environmental rights claims. Specifically, since the first type of rights claims mentioned above are not strictly environmental rights, their emergence is almost always caused by environmental issues. As long as the harm of climate to human rights is eliminated, relevant issues will be easily resolved. This happens to be consistent with the basic claims of the second type of rights. Therefore, measures to address climate change can fulfill the task of protecting the first two types of rights only by adding national obligations for the second type of rights. The second type of rights emphasizes the importance of climate stability and aims to demand that individuals’ personal and property safety be protected from the threat or infringement of climate change. In response to this, measures to address climate change should include reducing greenhouse gas emissions, changing energy structure, enhancing the development of a circular economy, enhancing forest carbon sequestration capacity, and conducting necessary international cooperation. Reasonable energy conservation and emission reduction goals should be set according to international temperature control requirements, in order to gradually curb global warming trends, reduce the frequency of extreme weather events, and try to avoid an unstable climate that endangers the personal and property safety of citizens.

 

Most of the aforementioned content is already included in the current measures to address climate change, but due to the existence of the third type of rights claims, relevant measures still need to be further improved. The direct source of the core demands of the third type of rights is the people’s need for a beautiful eco-environment, specifically manifested in the demand for a high-quality, livable, and comfortable climate. To ensure the realization of the third type of rights, the relevant measures to deal with climate change should be based on promoting climate stability, guided by people’s needs for a beautiful eco-environment and a better life, and increase the contents of further reducing the total amount of greenhouse gas emissions, continuously expanding the coverage of clean energy, continuously enhancing the ability of sustainable economic and social development, and increasing forest coverage as much as possible, so as to continuously improve climate quality, promote climate stability and make the climate

environment more comfortable and livable.

 

In summary, the objective national obligation path provides a more flexible and operational path for integrating environmental rights protection into climate change response actions. It can not only avoid the numerous obstacles that traditional subjective rights paths may face but also meet the protection needs of different types of environmental rights under the impact of climate change. Actions to address climate change should reflect the relevant obligations and specific implementation methods of the state’s response to climate change in a targeted manner, in order to achieve synergy between addressing climate change and ensuring environmental rights.

 

 

Although the way of protecting environmental rights under the influence of climate change has been discussed before, it is concluded that the traditional way of protecting rights is not the best way to promote the integration of action against climate change and protection of environmental rights and that the realization of environmental rights should follow the objective national obligation as the main approach, it does not deny the role of justice in protecting environmental rights and action against climate change. Under the guidance and turn of moderate judicial activism, China’s judicial organs also have the potential to help cope with climate change and protect environmental rights at the same time, instead of repeating the mistakes of raditional rights protection methods in dealing with climate change.

 

From the perspective of safeguarding human rights, “no remedy means no right,” and bringing a lawsuit to the judicial authorities is an essential means of safeguarding and relieving human rights. The Communist Party of China has always attached importance to the protection of citizens’ basic human rights and contributed to the development of human rights in the world. Under its leadership, China has established a relatively complete human rights protection system, in which judicial relief is an extremely important and indispensable link. Its role is not only reflected in the fact that judicial proceedings provide a basic way for human rights protection and relief but also in the fact that the fairness of the judicial process itself is related to the integrity of human rights realization.⁴⁹ In this regard, General Secretary Xi Jinping has repeatedly pointed out that it is necessary to “improve the judicial guarantee system of human rights”⁵⁰ and “strengthen human rights judicial guarantee.”⁵¹ With unremitting efforts, China has achieved remarkable achievements in the field of human rights justice, such as injecting the concept of respecting and protecting human rights into judicial values, basically forming a litigation system with human rights protection as the core value, and establishing a normalized mechanism for preventing and correcting unjust, false, and erroneous cases.⁵² The importance attached by China to human rights justice is sufficient to demonstrate the important role of justice in safeguarding and relieving human rights. At the same time, the relevant provisions of international human rights treaties further strengthen the above conclusion. For example, Article 8 of the Universal Declaration of Human Rights provides that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” For another example, Article 2, Paragraph 3 (a) of the International Covenant on Civil and Political Rights requires States Parties to provide remedies to any citizen whose rights have been violated, while emphasizing the necessity of judicial remedies in Paragraph 2. In summary, the position of justice in the human rights protection system is unquestionable. It can still play a necessary and powerful role in the realization of new generation human rights such as environmental rights.

 

From the perspective of addressing climate change, the theory and practice of China’s eco-environmental legal construction have proven that environmental justice, with environmental public interest litigation as the core, has the function of preventing and relieving eco-environmental damage and punishing environmental violations. Years of trial work have shown that China’s courts can fully utilize their trial functions to serve the Party and the country’s work arrangement in pollution prevention and control, enriching and improving eco-environment trial rules, constructing a specialized environmental resource trial system, improving eco-environment legal services, and expanding the international influence of environmental justice. This has greatly promoted the process of ecological civilization construction from the judicial aspect.⁵³ Although the issue of climate change is a special one, it ultimately remains an eco-environmental issue that can still be included in the range of environmental justice. Under the guidance of the current national efforts to achieve the goal of carbon peaking and carbon neutrality, special climate justice not only helps to solve disputes caused by new problems such as carbon emission trading, carbon sink trading, and energy substitution⁵⁴ but also explores the realization path of mitigating and adapting to climate change through case judgment under the current situation that the national climate change legislation has not yet been promulgated and the specific carbon peaking and carbon neutrality scheme has not yet taken shape. This will accumulate practical experience for the subsequent formulation of the Climate Change Law and other laws, and provide reference and even binding codes of conduct for the government, enterprises, and individuals.⁵⁵

 

The above arguments show that justice is essential for safeguarding human rights (environmental rights) and coping with climate change. In the cross-cutting areas, climate litigation based on human rights still has the possibility and necessity to promote the simultaneous development of the two. Foreign climate judicial experience shows that there are still some courts in climate change litigation that made a favorable judgment for the plaintiff and promoted the development of climate change litiation, such as “The Dutch Urgenda Foundation v. State of the Netherlands,”⁵⁶ “Asghar Leghari v. Federation of Pakistan,”⁵⁷ and Klimatická žaloba ČR v. Czech Republic.⁵⁸ Moreover, climate change litigation based on environmental rights or other human rights can indeed raise attention to climate change and human rights protection, promote the renewal of climate policies in various countries, and enhance public participation in coping with climate change and protecting human rights.⁵⁹ Of course, we cannot ignore the various issues exposed by foreign climate change litigation practices. Faced with various challenges faced by climate change public law litigation and the bumpy path of climate change private law litigation, China should adopt a judicial activism model to meet the practical needs of the development of climate change litigation.⁶⁰ Specifically, first of all, when handling cases involving climate change, China’s judicial authorities should fully exert their subjective initiative, addressing climate change as the core value and goal. In each case, we should actively explore operable rules that are helpful to achieve the goal of emission reduction and carbon reduction in individual cases and provide preliminary normative guidance for each subject. To ensure that the judiciary will not be “over-active,” the Supreme People’s Court should actively pay attention to the process and results of local judicial organs exploring climate change litigation, and provide local judicial organs with applicable judgment guidelines by issuing guiding cases and formulating judicial interpretations promptly, that is, adopting a combination of bottom-up and top-down methods to gradually fill the normative gaps in the field of climate change and effectively play the role of justice in dealing with climate change. Second, judicial organs should also take the initiative to explore ways to control climate change, air pollution, biodiversity decline, and other problems together, and implement the concept of combining carbon peaking and carbon neutrality with eco-environment protection in individual cases, so as to further enhance the integration of coping with climate change and environmental rights protection. Finally, in the face of the conflict of values between human rights and action to deal with climate change, because it involves the problem of value choice, the judiciary should change the way of performing its functions, alleviate the antagonism in traditional litigation, build a platform for consultation and dialogue for all parties to dispute, guide all parties to agree with the values of climate change goals and environmental rights protection, and support and promote all parties to reach an agreement on value choice and interest compensation.⁶¹

 

 

As pointed out above, although actions to deal with climate change contribute to the realization of environmental rights, they may conflict with other human rights, which is not conducive to the overall realization of human rights. Therefore, when coordinating the promotion of climate change action with the protection of environmental rights, the decision-making and executive organs should not separate the protection of environmental rights from the realization of other human rights but should pay full attention to the internal relations among various human rights and treat the development of human rights with a holistic concept. What is mentioned here is the essence of the holistic system view.

 

The holistic system view is part of the important exposition on the legal guarantee of ecological civilization construction in Xi Jinping Thought on the Rule of Law. It emphasizes integrity and systematicness and requires us to fully understand the primary and secondary contradictions and their primary and secondary aspects from a macro perspective when dealing with problems, respect the objective laws and operation modes of things themselves, and grasp the internal relations among their internal elements. In the field of environmental protection, the holistic system view is reflected as “mountains, forests, lakes, and grasses are a community of life.” We should abandon the concept of reductionism and the fragmentation model, and carry out all-region eco-environment governance with a holistic approach. In the field of socialist modernization, the holistic system view is reflected in promoting the construction of material civilization and ecological civilization as a whole, which must adhere to economic and social development and lay a solid material foundation for ecological environmental protection, while integrating the concept of environmental protection into economic and social development, and insisting on protection in development and development in protection.⁶² In the field of addressing climate change, the holistic system view still has irreplaceable theoretical value. The issue of climate change has complex causes and has gradually formed a situation where diverse interests are intertwined under the influence of political, economic, and social factors. In this context, any attempt to address climate change issues from a partial perspective will fail due to the inability to understand the full picture of the problem and the failure to clarify the complex pattern of interests. In other words, climate change can be effectively dealt with only under the guidance of the holistic system view, including the connection between different legal norms, the coordination of different legal enforcement mechanisms, the cooperation of different state powers, and the effective interaction between different social actors.⁶³

 

To resolve the conflicts between coping with climate change and other human rights, to achieve “seeking common ground while reserving differences” as much as possible, and to give consideration to the realization of climate change goals, the protection of environmental rights, and the overall development of human rights, when coping with the coordinated development of climate change actions and the protection of environmental rights, relevant departments should take the holistic system view as the theoretical guide, correctly understand the holistic value of human rights and the inherent differences among different kinds of human rights. While promoting clean energy, we should establish the necessary infrastructure and provide appropriate subsidies to create conditions for energy consumers to obtain and use clean energy and ensure successful adjustment of energy structure. When reducing total carbon emissions, full consideration should be given to the natural environmental conditions and socio-economic development of the specific region, and the right to development of citizens should be fully guaranteed. When conserving forest resources, increasing forest coverage, and optimizing regulatory measures, the procedural rights of residents should be considered and guaranteed, and the losses suffered by them should be compensated in time. To sum up, according to the theoretical requirements of the holistic system view, the coordinated development of action against climate change and protection of environmental rights does not mean that only environmental rights should be included in the scope of action against climate change, nor only create direct and powerful conditions for the realization of environmental rights, but human rights should be included in the scope of understanding and consideration as a whole. While coping with climate change and protecting environmental rights, substantial obstacles or adverse effects should not be created in the realization of other human rights.

 

 

Climate change is currently the most severe environmental issue facing the world, posing a practical obstacle to the development of human rights, including environmental rights. To cope with the great threat brought by climate change and implement the new concept of green development in the new era, China should unswervingly take the promotion of the carbon peaking and carbon neutrality goals as a guide and comprehensively carry out national actions to deal with climate change. At the same time, to meet the needs of people in the new era for a better life, China should also provide people with a beautiful eco-environment and safeguard their environmental rights. Coping with climate change and environmental rights are closely related have a lot in common, and have the theoretical basis of coordinated development. However, as far as the current theoretical research and practical development of environmental rights and the specific planning to deal with climate change are concerned, it is necessary to overcome the difficulties caused by the lack of protection of environmental rights under the background of climate change by traditional rights protection means and the inherent value conflicts between actions to deal with climate change and other human rights. Research shows that although the problem of unclear connotations and boundaries of environmental rights cannot be fundamentally solved for the time being, we can at least type all kinds of environmental rights claims, so as to choose different coping strategies for different types of rights claims in response to climate change. In addition, compared with the traditional path of giving individuals the subjective right to claim the power to protect human rights, the path of stipulating that the state has the obligation to protect human rights is more suitable for satisfying the needs of environmental rights protection under the background of climate change. In addition, through moderate judicial activism, Chinese courts can still help cope with the deep integration and common development of climate change and environmental rights by trying climate change litigation cases. Finally, the holistic system view provides theoretical guidance for coordinating the competition and conflict between climate change and other human rights, ensuring that the coordinated development of climate change actions and environmental rights will not harm other human rights, and is conducive to the three-in-one synergy of coping with climate change, safeguarding environmental rights and developing human rights.

 

 

(Translated by CHEN Feng)