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ABSTRACT
Climate litigation against states is increasingly based on international human rights law. As a result, more climate cases are filed at international human rights courts and treaty bodies. Strict standing requirements pose significant hurdles, however, for individuals and communities to access such courts and treaty bodies, especially for those most vulnerable to the effects of climate change. This article argues that an intersectional perspective aids in overcoming procedural hurdles and can help international and regional human rights courts and treaty bodies to provide access to justice in climate cases, thus enforcing international human rights standards. Intersectionality unveils how climate change exacerbates pre-existing injustices and how society’s most vulnerable are structurally hit the hardest by climate change. It thus offers courts a more complete view of the impact of the climate crisis on human rights. Moreover, it illuminates how certain individuals are particularly affected by the climate crisis, aiding them in meeting standing requirements such as victim status and individual concern requirements. Examining recent cases brought on by generational groups, the article illustrates how intersectionality uncovers how the intersection of age and climate make certain generations particularly susceptible to climate change-induced human rights violations.
Acknowledgements
This article has been adapted from my LLM thesis, written at Radboud University Nijmegen in 2020, under the supervision of Simon Tans and Jasper Krommendijk. I would like to express my gratitude to Simon Tans, Jasper Krommendijk, the Research Centre for State and Law (SteR), and Debadatta Bose for their valuable feedback and comments. I would furthermore like to thank the anonymous reviewers for their insightful remarks and suggestions. All errors remain my own.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 IPCC, Global Warming of 1.5°C (2018).
2 Jacqueline Peel and Hari Osofsky, ‘A Rights Turn in Climate Change Litigation?’ Transnational Environmental Law 7, no. 1 (2017): 37.
3 Michael Wentz and Jessica Burger, Climate Change and Human Rights (Nairobi: United Nations Environment Programme, 2015), VIII.
4 Art. 4(2) Paris Agreement; HRC Res. 41/21, July 23, 2019, UN Doc A/HRC/RES/41/2, §2; CESCR, Statement on Climate Change and the International Covenant on Economic, Social and Cultural Rights, October 31, 2018, UN Doc E/C.12/2018/1, §6. See also Benoit Mayer, ‘Climate Change Mitigation as an Obligation under Human Rights Treaties?’ American Journal of International Law 115, no. 3 (2021): 409.
5 Leghari v Federation of Pakistan (2015) WP No 25501/2015.
6 Dutch Supreme Court, Judgment of December 20, 2019, case number 19/00135, ECLI:NL:HR:2019:2006.
7 Jane McAdam and Marc Limon, Human Rights, Climate Change and Cross-Border Displacement (Geneva: Universal Human Rights Group, 2015), 11, 22.
8 CCPR/C/127/D/2728/2016, Ioane Teitiota v New Zealand (January 7, 2020).
9 Application of Duarte Agostinho and Others v. Portugal and 32 Other States to the ECtHR, September 3, 2020, no. 39371/20.
10 Application of Klimaseniorinnen v. Switzerland to the ECtHR, November 26, 2020, no. 53600/20.
11 Application of Greenpeace Nordic and Others v. Norway to the ECtHR, June 15, 2021, no. 34068/21.
12 Communication of Alaska Institute for Justice to UN Special Rapporteurs, January 15, 2020.
13 UNHCR, ‘Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance on Ecological Crisis Climate Justice and Racial Justice’ (2022) UN Doc. A/77/2990.
14 Nancy Tuana, ‘Viscous Porosity: Witnessing Katrina’, in Material Feminisms, ed. Stacy Alaimo and Susan Hekman (Bloomington: Indiana University Press, 2008), 189.
15 Wentz and Burger, Climate Change and Human Rights, 2.
16 S. Nazrul Islam and John Winkel, ‘Climate Change and Social Inequality’ (DESA Working Paper No. 152, 2017), 4, 15 <https://www.un.org/esa/desa/papers/2017/wp152_2017.pdf>. It is important to note that such groups are not inherently vulnerable. Rather, it is the social circumstances that results in their vulnerability. See e.g. Erin Cunniff Gilson, ‘Vulnerability and Victimization: Rethinking Key Concepts in Feminist Discourses on Sexual Violence’, Signs: Journal of Women in Culture and Society 42, no. 1 (2016): 71.
17 Marica Caterina La Barbera and Marta Cruells Lopez, ‘Towards the Implementation of Intersectionality in the European Multilevel Legal Praxis: B. S. v. Spain’, Law & Society Review 53, no. 4 (2019): 1167, 1170–171.
18 Preamble UNHRC Resolution 7/23, March 28, 2009, 2.
19 Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States, December 7, 2005.
20 Jane McAdam and Marc Limon, Human Rights, Climate Change and Cross-Border Displacement (Geneva: Universal Human Rights Group, 2015), 11, 22.
21 David Ismangil et al., Climate Change, Justice and Human Rights (Amsterdam: Amnesty International Netherlands 2020), 15.
22 OHCHR, Key Messages on Human Rights and Climate Change, 1; Ismangil, Climate Change, Justice and Human Rights, 15.
23 Wentz and Burger, Climate Change and Human Rights, 16–19; OHCHR, Key Messages on Human Rights and Climate Change, 1; Ismangil, Climate Change, Justice and Human Rights, 15.
24 Wentz and Burger, Climate Change and Human Rights, 26–27.
25 Ibid.; Ismangil, Climate Change, Justice and Human Rights, 15–16; OHCHR, Key Messages on Human Rights and Climate Change, 2.
26 CEDAW, CESCR, CPRAMWMF, CRC & CRPD, Joint Statement on “Human Rights and Climate Change” (Geneva: OHCHR, 2019), §3; Wentz and Burger, Climate Change and Human Rights, 27–28.
27 For more information, see Jacqueline Peel, ‘Issues in Climate Litigation’, Carbon & Climate Law Review 5, no. 1 (2011): 15.
28 Anna Kaijser and Annica Kronsell, ‘Climate Change Through the Lens of Intersectionality’, Environmental Politics 23, no. 3 (2014): 417–22.
29 UN General Assembly, Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power, November 29, 1985, UN Doc A/RES/40/34.
30 Anne Van Aaken, ‘Making International Human Rights Protection More Effective: Rational-Choice Approach to the Effectiveness of Ius Standi Provisions’ (forthcoming), 4.
31 Gherghina v Romania, 44219/07, ECtHR, July 9, 2015, §87; CRC/C/88/D/104/2019, Sacchi et al. v Argentina, Brazil, France, Germany and Turkey (October 8, 2021), §10.18.
32 The background of these cases will discussed in more detail in §4.
33 Van Aaken, ‘Making International Human Rights Protection More Effective’, 28.
34 Case 25-26 Plaumann v Commission of the European Economic Community [1963], ECLI:EU:C:1963:17, 107.
35 Case T-330/18 Carvalho and Others v European Parliament and Council of the European Union [2019], ECLI:EU:T:2019:324.
36 Dutch Supreme Court, Judgment of December 20, 2019, case number 19/00135, ECLI:NL:HR:2019:2006.
37 Dutch District Court, Judgment of October 9, 2018, case number 200.178.245/01, ECLI:NL:GHDHA:2018:2591, §36. This was decided by the District Court and was not disputed before the Supreme Court. The fact that Urgenda could take action, is thanks to a Dutch legal provision (Art. 3:305a BW) that allows collective legal action by advocacy organizations.
38 Bundesverfassungsgericht, ‘Constitutional Complaints Against the Federal Climate Change Act Partially Successful’ (Press Release 31/2021, April 29, 2021) <https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-031.html>; Anna-Julia Saiger, ‘The Constitution Speaks in the Future Tense: On Constitutional Complaints Against the Federal Climate Change Act’ (VerfBlog, April 29, 2021) <https://verfassungsblog.de/the-constitution-speaks-in-the-future-tense/>.
39 CRC/C/88/D/104/2019, Sacchi et al. v Argentina, Brazil, France, Germany and Turkey (October 8, 2021), §10.13.
40 UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, December 18, 1979, UN Doc A/RES/34/180
41 UN General Assembly, Declaration on the Rights of Indigenous Peoples, 13 September 2007, UN Doc A/RES/61/295.
42 See also Lisa Crooms, ‘Indivisible Rights and Intersectional Identities or “What do Women’s Rights have to do With the Race Convention?”’ Howard Law Journal 40 (1997): 619.
43 Ivona Truscan and Joanna Bourke-Martignoni, ‘International Human Rights Law and Intersectional Discrimination’, The Equal Rights Review 16 (2016): 103–105.
44 La Barbera and Cruells Lopez, ‘Towards the Implementation of Intersectionality’, 1171.
45 Truscan and Bourke-Martignoni, 105.
46 Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’, University of Chicago Legal Forum 1 (1989): 139–149.
47 Margaret Andersen and Patricia Hill Collins, Race, Class and Gender: An Anthology, 9th ed. (Belmont: Wadsworth Publishing, 2015).
48 La Barbera and Cruells Lopez, ‘Towards the Implementation of Intersectionality’, 1169.
49 Vivian May, Pursuing Intersectionality: Unsettling Dominant Imaginaries (Abingdon: Routledge, 2015), 82; Sylvia Walby, ‘Complexity Theory, Systems Theory, and Multiple Intersecting Social Inequalities’, Philosophy of the Social Sciences 37, no. 4 (2007): 449–460.
50 La Barbera and Cruells Lopez, ‘Towards the Implementation of Intersectionality’, 1169; Kaijser and Kronsell, ‘Climate Change Through the Lens of Intersectionality’, 420.
51 Keina Yoshida, ‘Towards Intersectionality in the European Court of Human Rights: The Case of B.S. v Spain’, Feminist Legal Studies 21 (2013): 195–196.
52 See also G. De Beco, ‘Protecting the Invisible: An Intersectional Approach to International Human Rights Law’, Human Rights Law Review 17 (2017): 633 and S. Henderson, ‘The Legal Protection of Women Migrant Domestic Workers from the Philippines and Sri Lanka: An Intersectional Rights-Based Approach’, International Journal of Care and Caring 5 (2021): 65.
53 IPCC, AR5 Climate Change 2014: Impacts, Adaptation and Vulnerability (2014).
54 Nazrul and Winkel, ‘Climate Change and Social Inequality’, 6.
55 Ibid.
56 Idem., 16.
57 IPCC, Global Warming of 1.5°C, 10.
58 Nellemann, Women at the Frontline of Climate Change: Gender Risks and Hopes. A Rapid Response Assessment, 6–7.
59 IPCC, 2014: AR5 Climate Change 2014: Impacts, Adaptation and Vulnerability, 796.
60 Ibid., 105.
61 Ritu Verma, Christian Nellemann and Lawrence Hislop, Women at the Frontline of Climate Change: Gender Risks and Hopes. A Rapid Response Assessment (Nairobi: UNEP, 2011), 19, 32–33.
62 Aengus Carrol, State Sponsored Homophobia 2016: A World Survey of Sexual Orientation Laws: Criminalisation, Protection and Recognition (Geneva: ILGA 2016).
63 Dale Dominey-Howes, Andrew Gorman-Murray and Scott McKinnon, ‘Queering Disasters: On the Need to Account for LGBTI Experiences in Natural Disaster Contexts’, Gender, Place & Culture 21, no. 7 (2014): 905–910.
64 Chaman Pincha, Indian Ocean Tsunami through the Gender Lens: Insights from Tamil Nadu, India (Mumbai: Oxfam International 2008), 41. In 2014, the Supreme Court of India recognized a third gender category and the right to self-identify as a certain gender, constitutionally safeguarding inter alia access to medical care and disaster aid for transgender persons and persons not conforming to gender binaries. See Supreme Court of India National Legal Services Authority v Union of India, April 15, 2014.
65 Kaijser and Kronsell, ‘Climate Change Through the Lens of Intersectionality’, 426.
66 Laura McKinney and Gregory Fulkerson, ‘Gender Equality and Climate Justice: A Cross-National Analysis’, Social Justice Research 28, no. 3 (2015): 293–294.
67 David Estrin and Helena Kennedy, Achieving Justice and Human Rights in an Era of Climate Disruption: Climate Change Justice and Human Rights Task Force Report (London: International Bar Association 2014), 3.
68 David Elliot and Lindsey Fielder Cook, Climate Justice and the Use of Human Rights Law in Reducing Greenhouse Gas Emissions (Geneva: Quaker United Nations Office), 4.
69 An example of this is the Flint Water Crisis, in which a disproportional percentage of Black children in America (76.8%) were exposed to water heavily contaminated with lead, to which the local government failed to respond for several years. Additionally, mainly children from families with a lower socioeconomic status were exposed. Mona Hanna-Attisha et al., ‘Elevated Blood Lead Levels in Children Associated with the Flint Drinking Water Crisis: A Spatial Analysis of Risk and Public Health Response’ AJPH Research 106, no. 2 (2016): 283.
70 Estrin and Kennedy, Achieving Justice and Human Rights in an Era of Climate Disruption, 4.
71 CEDAW, CESCR, CPRAMWMF, CRC, CRPD (n 24), §3; Wentz and Burger, Climate Change and Human Rights, 27–28.
72 Ibid.; Ismangil, Climate Change, Justice and Human Rights, 15–16; OHCHR, Key Messages on Human Rights and Climate Change, 2.
73 Keina Yoshida, ‘Towards Intersectionality in the European Court of Human Rights: The Case of B.S. v Spain’, Feminist Legal Studies 21 (2013): 195–198.
74 Meghan Campbell, ‘CEDAW and Women’s Intersecting Identities: A Pioneering Approach to Intersectional Discrimination’ (Oxford University Working Paper Vol. 2 No. 3, 2016), 3 <https://globalnaps.org/wp-content/uploads/2018/08/cedaw-and-women-s-intersecting-identities-a-pioneering-approach-to-intersectional-discrimination.pdf> (accessed March 20, 2022), 3; See also Patricia Schulz, CEDAW and Racism: Intersectionality of Gender and Racism (Geneva: CEDAW, 2013).
75 Shellae Versey, ‘Missing Pieces in the Discussion on Climate Change and Risk: Intersectionality and Compounded Vulnerability’, Policy Insights from the Behavioral and Brain Sciences 8, no. 1 (2021): 67.
76 Adaena Sinclair-Blakemore, ‘Teitiota v New Zealand: A Step Forward in the Protection of Climate Refugees under International Human Rights Law?’ (Oxford Human Rights Hub, January 18, 2020) <https://ohrh.law.ox.ac.uk/teitiota-v-new-zealand-a-step-forward-in-the-protection-of-climate-refugees-under-international-human-rights-law/>. See also Chhaya Bhardwaj, ‘Ioane Teitiota v New Zealand (advance unedited version)’, Environmental Law Review 23, no. 3 (2021): 263; Ivanka Bergova, ‘Environmental Migration and Asylum: Ioante Teitiota v. New Zealand’, Justice System Journal 42, no. 2 (2021): 222; and Katrien Steenmans and Aaron Cooper, ‘Ioane Teitiota v New Zealand: A Landmark Ruling for Climate Refugees?’ Coventry Law Journal 25, no. 2: 23.
77 IACtHR, Advisory Opinion OC-23/17, November 15, 2017.
78 Ibid., §67.
79 Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, January 15, 2009, UN Doc. A/HRC/10/61, §42; Human Rights Council, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, February 1, 2016, UN Doc. A/HRC/31/52, §81.
80 See also IACtHR Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina, February 6, 2020 about Indigenous Peoples and climate change.
81 IACtHR, Advisory Opinion OC-23/17, §113 & 152.
82 IACtHR, Advisory Opinion OC-23/17, §48 & §169.
83 IACtHR, Advisory Opinion OC-23/17, §160–169 & 227.
84 CRC/C/88/D/104/2019, Sacchi et al. v Argentina, Brazil, France, Germany and Turkey (October 8, 2021), §10.13
85 UN General Assembly, UN Declaration on the Rights of Indigenous Peoples, 13 September 2007, UN Doc A/RES/61/295; General Conference of the International Labour Organization, Indigenous and Tribal Peoples Convention, June 7, 1989, No. 169.
86 See for example Art. 1 ICESCR and Art. 1 ICCPR, as well as CEDAW General Comment no 21 on the right to self-determination, UN Doc A/51/18 (1996).
87 Alexandra Xanthaki, ‘Collective Rights: The Case of Indigenous Peoples’, Amicus Curiae 25, no. 7 (2000): 8; UN Sub-Commission, Indigenous Peoples Preparatory Meeting: Comments on the First Revised Text of the Draft Declaration on Rights of Indigenous Peoples, July 1989. See also Robert Coulter, ‘The UN Declaration on the Rights of Indigenous Peoples: A Historic Change in Internationla Law’ Idaho Law Review 45 (2009): 539; and Austin Badger, ‘Collective v. Individual Human Rights in Membership Governance for Indigenous People’ American University International Law Review 26, no. 2 (2011): 485.
88 Alexandra Xanthaki, ‘Collective Rights: The Case of Indigenous Peoples’, Amicus Curiae 25, no. 7 (2000): 7–8.
89 ILO, Eliminating Discrimination against Indigenous and Tribal Peoples in Employment and Occupation: A Guide to ILO Convention No. 111 (Geneva: International Labour Organization 2007), 5.
90 Siegfried Wiessner, ‘The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges’, The European Journal of International Law 22, no. 1 (2011): 121–127.
91 ILO, Eliminating Discrimination against Indigenous and Tribal Peoples in Employment and Occupation, 6.
92 United Nations Inter-Agency Support Group on Indigenous Peoples’ Issues, Rights of Indigenous Peoples/Persons with Disabilities (Geneva: IASG 2013), 3.
93 For any individual, their context plays a large role in how they enjoy or are inhibited from enjoying human rights. With Indigenous peoples, however, this is particularly explicit and is reflected in the legal framework of their rights.
94 Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’, Harvard Human Rights Journal 12, no. 57 (1999): 115.
95 Claudia Sobrevila, The Role of Indigenous Peoples in Biodiversity Conservation: The Natural but Often Forgotten Partners (Washington, D.C.: The World Bank, 2008), 5.
96 For more on the human rights of the elderly, see also Bridget Lewis, Kelly Purser and Kirsty Mackie, The Human Rights of Older Persons (New York: Springer, 2020).
97 IPCC, Global Warming of 1.5°C, 240.
98 Application of Klimaseniorinnen v. Switzerland to the ECtHR, November 26, 2020, no. 53600/20, additional submission §33.
99 WHO, Quantitative Risk Assessment of the Effects of Climate Change on Selected Causes of Death, 2030s and 2050s (Geneva: WHO 2014), 80.
100 Committee on the Rights of the Child in the case of Sacchi et al. v Argentina, Brazil, France, Germany and Turkey, Petitioners’ Reply to the Admissibility Objections of Brazil, France, and Germany, §48.
101 Heather Randell and Clark Gray, ‘Climate Change and Educational Attainment in the Global Tropics’, Proceedings of the National Academy of Sciences of the United States of America 166, no. 18 (2019): 8840–8842.
102 Ibid., 8843.
103 Edith Brown Weiss, ‘Intergenerational Equity’, Max Planck Encyclopedia of International Law (online ed. 2013) <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1421>.
104 Gro Brundtland, ‘Our Common Future: Report of the World Commission on Environment and Development’ Geneva 1987 UN Doc. A/43/427, 216.
105 E.g. ‘other status’ in Art. 14 ECHR, see ECtHR, Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention, December 31, 2020, 34.
106 Application of Klimaseniorinnen v. Switzerland to the ECtHR, November 26, 2020, no. 53600/20, additional submission §12; Application of Duarte Agostinho and Others v. Portugal and 32 Other States to the ECtHR, September 3, 2020, no. 39371/20, §20.
107 Devdatta Ray and Mikael Linden, ‘Health, Inequality and Income: A Global Study Using Simultaneous Models’, Journal of Economic Structures 7, no. 22 (2018): 1–18.
108 Ivy Maina et al., ‘A Decade of Studying Implicit Racial/Ethnic Bias in Healthcare Providers Using the Implicit Association Test’, Social Science & Medicine 199, no. 219 (2018): 222–24; Raj Bhopal, ‘Racism in Health and Health Care in Europe: Reality or Mirage?’, European Journal of Public Health 17, no. 3 (2007): 238–239.
109 Randell and Gray, ‘Climate Change and Educational Attainment in the Global Tropics’, 8843–844.
110 Abdul Abdullah, Hristos Doucouliagos and Elizabeth Manning, ‘Does Education Reduce Income Inequality? A Meta-regression Analysis’, Journal of Economic Surveys 29, no. 2 (2015): 301.
111 IPCC, Global Warming of 1.5°C, 79.
112 UN General Assembly, Human Rights of Older Persons, October 5, 2021, UN Doc A/HRC/48/L.5.Rev.1.
113 Bhopal, ‘Racism in Health and Health Care in Europe: Reality or Mirage?’, 239.
114 Notably, the holistic approach that the implementation of intersectionality entails is not an uncomplicated approach. It requires an extensive analysis of the applicant and the societal context, which can be time and knowledge intensive. As such, there are various conditions that are essential for implementing intersectionality as an interpretive framework, such as the traning of law practitioners and the inclusion of third-party interveners like NGOs and experts in litigation. See also La Barbera and Cruells Lopez, ‘Towards the Implementation of Intersectionality’.
Additional information
Notes on contributors
Irthe J. M. de Jong
Irthe J. M. de Jong is a PhD researcher at the Amsterdam Centre for Law and Governance, University of Amsterdam, the Netherlands, and Université Libre de Bruxelles, Belgium. She has a background in international human rights law and philosophy and has previously worked on socio-legal empirical research on climate justice and climate litigation. Since 2022, she is engaged in PhD research as part of the Horizon Europe project RED-SPINEL (Responding to Emerging Dissensus: Supranational Instruments & Norms of European Liberal Democracy). In this context, her PhD project investigates the extent to which citizen participation in European climate governance can aid the fulfilment of both procedural and substantive environmental rights.