Beyond the turn to human rights: a call for an intersectional climate justice approach

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.

KEYWORDS:

• International human rights law
• rights-based climate litigation
• intersectionality
• climate justice
• intergenerational justice
• Duarte Agostinho case
• Klimaseniorinnen case
• Sacchi case

1. Introduction

Driven by disillusionment with states’ attempts to combat the climate crisis,¹ recent years have shown an increase in climate litigation. Climate litigation has traditionally been based on domestic statutory and administrative law.² Emerging cases, in contrast, increasingly bring in international human rights as a basis for states’ wrongdoing by inaction. Since the mid-2000s, the link between climate and human rights has been progressively acknowledged, especially at the international level.³ Corresponding state obligations to mitigate and adapt to the effects of the climate crisis have likewise been established.⁴

The turn to human rights to try to incentivize governments to live up to their obligations has proven effective. Domestic climate cases such as the Pakistani Leghari case⁵ and the Dutch Urgenda case⁶ show that judges are receptive to the argument that failure to combat the climate crisis entails a violation of human rights, most often the right to life, food, development, family life and health.⁷ Although successful domestic cases involve international human rights, the turn to rights before international and regional human rights courts and treaty bodies lags. Case law on human rights and climate change is sparse, and often does not revolve around climate change directly, such as Ioane Teitiota v New Zealand.⁸ A rapidly growing influx of pending cases before international and regional human rights courts and treaty bodies indicates that the movement is picking up speed. In Europe, three notable climate cases are pending before the European Court of Human Rights (hereafter: ECtHR). Duarte Agostinho and Others v Portugal and 32 Other States⁹ and the Klimaseniorinnen v Switzerland case¹⁰ have been referred to the Grand Chamber. A third case, Greenpeace Nordic and others v Norway, has been postponed.¹¹ Rights of Indigenous People in Addressing Climate-Forced Displacement has been petitioned at Special UN Rapporteurs for assessment.¹²

The turn to human rights in climate litigation at the level of international and regional human rights courts and treaty bodies is not without its problems, however. Climate change affects all, but all are not affected equally. Climate change interacts with existing systems of oppression such as racial or ethnic oppression, transphobia or discrimination against disabled persons.¹³ When New Orleans was hit by hurricane Katarina in 2005, marginalised people were not only less likely to be able to evacuate and live elsewhere, they also had poorer prospects if they did find the means and ability to move.¹⁴ The regions hit hardest by problems caused by climate change, such as food shortages, are regions that are already underdeveloped.¹⁵ The people within these regions who are hit the hardest are more often than not marginalised communities and minorities: Indigenous people, women, people with a disability, ethnic or cultural minorities, etc.¹⁶ The international human rights framework demands that persons are protected from climate-related harm to the enjoyment of their human rights, yet it tends to focus on siloed human rights violations, with little attention to the way in which multiple forms of oppression influence and compound one another. This forms a significant hurdle to find redress for climate change-related human rights violations in international, human rights-based climate litigation. The diffuse character of climate change-related human rights violations poses significant challenges for meeting locus standi requirements, as illustrated by the recent inadmissibility judgment of Sacchi et al. v Argentina, Brazil, France, Germany and Turkey by the Committee on the Rights of the Child (hereafter: CRC). Without the tools to see how the climate crisis disproportionately affects the most vulnerable, international and regional human rights courts fall short of safeguarding the enjoyment of human rights, in particular for those most at risk.

I argue that intersectionality is an essential and necessary tool in human rights-based climate litigation to realise adequate and meaningful human rights protection from climate-related violations. The effect of intersectionality is twofold. Procedurally, the intersectional perspective aids victims of climate-related human rights violations in meeting locus standi requirements. Intersectionality illuminates how a characteristic that is structural and distinguishes a person as part of a relatively neutral group – such as a certain generation – can, when considered in the context of climate change, become a disadvantage and a factor capable of negatively impacting the enjoyment of one’s human rights.¹⁷ With a traditional, non-intersectional approach, cases revolving around such seemingly non-disadvantaged groups would be filtered out by locus standi requirements. In contrast, the intersectional approach brings to light that, when seen in context, a characteristic is structurally used to distinguish individuals, determining their position in society – possibly to their disadvantage. Substantively, an intersectional lens provides courts with a complete view of how climate change impacts individuals in the enjoyment of their human rights. It is only by moving away from an essentialist, static human rights framework and by having an eye for the multitude of intersecting issues that persons face, that courts can properly analyse what impact a human rights violation has on a persons’ rights, and therefore, provide adequate, meaningful and just redress.

To substantiate the argument, I briefly touch on the link between human rights and climate change in section 2, followed by a more in-depth discussion of procedural hurdles in human rights-based climate litigation. In section 3, I explain the theoretical framework of intersectionality, in general as well as in the context of climate change. Section 4 provides an analysis of currently pending cases before international and regional human rights courts, which demonstrates that the intersectional perspective sheds light on the intersection of age and the climate crisis, offering both a substantive and a procedural advantage.

2. Human rights and climate change

Most international human rights documents do not explicitly establish a link between human rights and climate change. The preconditional role of the environment for the realisation of human rights, however, has been established since the mid-2000s. In 2008, the Human Rights Council (hereafter: HRC) adopted a resolution ‘taking note of […] the understanding of the link between the enjoyment of human rights and the protection of environment’,¹⁸ following a petition made by Inuit activist Sheila Watt-Cloutier in 2005 to the Inter-American Commission on Human Rights to seek relief ‘from human rights violations resulting from the impacts of global warming and climate change’.¹⁹ The rights most often mentioned as those jeopardised by the effects of climate change include the right to life, food, development, family life, and health.²⁰

Corresponding human rights obligations for states in relation to climate change have primarily been developed by specific human rights treaty bodies and NGOs. States have two major obligations in the context of climate change under UN human rights treaties. First, states must mitigate climate change-related harm that is caused by conduct or omissions within their jurisdiction or territory, whether it is caused by a state or a non-state actor such as a business.²¹ This entails the duty to take all reasonable steps to mitigate and adapt to the effects of climate change. States must prevent negative impacts on human rights, including the adaptation or creation of legal and institutional frameworks.²² In the same vein, states must respond to the core causes of climate change as much as can be reasonably expected of them. In fulfilling these substantive obligations, states must safeguard procedural rights, inter alia by enabling public participation in environmental decision-making and providing effective judicial and administrative remedies for people who have suffered harm.²³ Secondly, in fulfilling the obligation to protect people from the adverse effects of climate change, states must put human rights at the forefront. This requires making sure that the measures taken to fulfil the former obligation, do not result in a violation of human rights,²⁴ such as taking land away from Indigenous communities to develop solar power plants. Better yet, the transition toward more sustainable societies should be utilised as an opportunity to develop as human rights-based societies too, correcting rather than exacerbating existing inequalities in the enjoyment of human rights.²⁵ As such, states carry special obligations toward specific groups, notably women, children and Indigenous communities, to safeguard that these groups, which tend to be put at disadvantage due to systemic discrimination and marginalisation, do not fall victim to further discrimination in the climate crisis.²⁶

3. Procedural hurdles for human rights-based climate litigation

International state obligations in the context of climate change may exist on paper, but an obligation can hardly be called a true obligation unless there is a possibility to enforce it. Legal remedies before a court are essential to ensure compliance. Rights-based climate litigation faces several difficulties, such as the issue of causality and the scope of states’ human rights obligations concerning climate change.²⁷ Locus standi requirements of international and regional human rights courts and treaty bodies in particular form a considerable procedural hurdle for individual applicants to find legal redress in the context of climate change-induced human rights violations.

Locus standi conditions in international human rights treaties, such as Art. 34 and 35 ECHR, Art. 2 First Optional Protocol to the ICCPR, Art. 2 Optional Protocol to the CEDAW, and Art. 5 to 7 Third Optional Protocol to the CRC delineate who has access to legal relief of international and regional human rights courts and treaty bodies, aiming to prevent uncontrollable influxes of cases filed by persons who have no actual interest in the case. Without disregarding slight variations in the interpretation of these requirements, admissibility criteria generally require the applicant to inter alia have sufficient and direct concern regarding the action that is challenged.²⁸ In international human rights law, that typically means that the applicant has to meet victim status: the applicant must have suffered, through acts or omissions of a signatory state, specific and concrete alleged harm, that concerns a substantive right included in the document over which the court or legal body at hand has jurisdiction.²⁹ Additionally, there must be a (at least) to some extent detectable causal connection between the alleged injury and the conduct that is challenged.³⁰ Given the subsidiary role of international and regional human rights courts and treaty bodies, international human rights litigation also requires the applicant to have exhausted all domestic remedies, unless these remedies objectively have no prospect of success.³¹

In cases related to climate change, difficulties regarding legal standing concern multiple locus standi requirements. In cases before international and regional human rights courts and treaty bodies that challenge multiple states at once like the ECtHR case of Duarte Agostinho and the CRC case of Sacchi, the applicants have not exhausted all domestic remedies.³² They invoke the aforementioned exception of the absence of effective domestic proceedings, arguing that the imminence and severity of climate change-induced human rights violations justify skipping past the burdensome and time-consuming task of exhausting domestic remedies in six separate jurisdictions. In October 2021, the CRC rejected that argument. It declared the case inadmissible on grounds of failure to exhaust domestic remedies. The ECtHR has not yet decided on the admissibility of the Duarte Agostinho case, although in anticipation, it has fast-tracked the case and referred it to the Grand Chamber.

Although the requirement of exhausting domestic remedies forms a significant hurdle for human rights-based climate litigation, the focus of this article is on the locus standi requirement of a specific and concrete injury, often in the form of a victim status requirement. This criterion requires a person to substantiate that they have suffered concrete harm of a high enough level of severity to classify as a human rights violation. This is a challenge in the case of human rights violations caused by climate change, due to their potential and diffuse character. The requirement of a concrete injury in principle does not include prospective injuries.³³ As the effects of climate change progress in a gradual way and for a long time were not felt very intensely – especially in certain parts of the world – this formed a well-known barrier in climate cases. As mentioned in the previous subparagraph, exceptions exist in the case of a reasonable probability of harm. Moreover, the rapid development of climate change, due to which in many places the effects of climate change are not prospective anymore but rather imminent, mitigates this procedural hurdle.

However, the victim status requirement in the international human rights framework generally requires the alleged victim or victims to be impacted specifically, i.e. more than others. This creates a barrier particularly in climate cases because the effects of environmental damage rarely degrade the human rights of one specific individual, but rather impact communities or societies as a whole and gradually. Because climate change is by nature a global issue and therefore affects all people – even if the effects of climate change are experienced in highly diverse ways and unequally distributed amounts – applicants must in some way distinguish their harm from the general population, explaining why specifically their rights are curbed. The focus on individual, isolated concern hampers the establishment of a specific and concrete injury, as well as of the connection of that injury to the context, i.e. climate change.

These challenges are not exclusive to climate cases before international and regional human rights courts and treaty bodies. At other courts, too, climate cases that revolve around fundamental rights fail to meet admissibility criteria. An example is the People’s Climate Case before the Court of Justice of the European Union (hereafter: CJEU). The admissibility criteria in art. 263 (4) TFEU are interpreted through the so-called Plaumann formula. This formula prescribes that the act that is being challenged must affect the applicants ‘by reason of certain attributes that are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the addressee’.³⁴ That means that the applicants must be individually impacted by the act as if they were the addressee, by means of attributes peculiar to them or circumstances that make that they are differentiated from all others. According to the CJEU, the applicants in the People’s Climate Case did not meet this high threshold of individual concern.³⁵

Recent domestic climate change-related cases show that rights-based climate litigation can overcome strict locus standi requirements. Although in the groundbreaking Urgenda case³⁶ by the Dutch Supreme Court individual complainants did not have standing, Urgenda as an advocacy organisation could take legal action.³⁷ In April 2021, the German Constitutional Court decided that individual claims as ‘advocates of nature’ were admissible.³⁸ At the international level, however, it remains to be seen whether human rights-based climate applications meet locus standi requirements. Regardless of its ultimate decision that the case was inadmissible, the CRC recognised in the Sacchi case that the applicants were particularly impacted by the effects of climate change, meeting the requirement of victim status in Art. 7 CRC. Central to that conclusion was the fact that the applicants were children, which made that the applicants were particularly impacted by climate change.³⁹ The ECtHR cases of Duarte Agostinho and Others and Klimaseniorinnen v Switzerland similarly revolve around age as constituent of a specific vulnerability. Intersectionality, a legal tool originating from critical race and feminist theory that lends itself to explaining how different social issues can intersect, and by result, aggravate one another, can explain how climate change has a specific impact on certain generations. This is explained in the next paragraphs.

3. The intersectional perspective and climate change

Traditionally, the international human rights movement has acknowledged that although human rights are universal, certain characteristics are structurally used to distinguish persons, resulting in the determination of their position in society based on these characteristics. As such, certain groups based on these characteristics have been the victim of human rights violations more than others. Examples are women, Indigenous people, people of ethnic or religious minorities, non-heterosexual persons and disabled persons. Specific norms are formulated to protect marginalised groups, such as the Convention on the Elimination of Discrimination Against Women (hereafter: CEDAW) for women⁴⁰ and the UN Declaration on the Rights of Indigenous Peoples for Indigenous people.⁴¹

This framework of specialised protection based on categories of identity or demographic characteristics lends itself to an essentialist conception of inequality, which regards a characteristic on the basis of which a person is disadvantaged, as fixed and universal.⁴² For example, in an essentialist conception of gender inequality, women are seen as a homogeneous group sharing the characteristic of their gender and a universal experience of gender discrimination. Their gender is believed to heavily influence their socio-economic circumstances, but it is a fixed and exclusive category.⁴³ All women, therefore, experience gender discrimination in the same way. In reality, the group of persons that can share the characteristic of ‘woman’ is not homogeneous at all but comprises many women with various other characteristics that are also structurally used to distinguish them such as race, sexual orientation, disability, or religion, relating to varying levels of privilege or oppression.⁴⁴ Therefore, not all women will experience discrimination in the same way. People’s identities do not fit in neat categories but are made up of a multiplicity of demographic characteristics that cannot be separated from each other, and identities are susceptible to change due to experience.⁴⁵

Originating as a legal tool in the Black Feminist movement located in the US in the ‘80s, intersectionality was used in discrimination cases to uncover how oppression and marginalisation on multiple grounds, like race, gender or disability, culminates in a unique form of oppression and marginalisation, as opposed to viewing oppression and disadvantage on multiple grounds as different situations of oppression which can be neatly separated from each other.⁴⁶ Rather than assessing a situation of inequality on multiple grounds as a cumulative sum of separable demographic characteristics, for example, being poor + identifying as homosexual + holding status as a refugee, the intersectional approach recognises that all these personal characteristics that lead to a social positioning of that person, can intersect. At the intersection of these grounds of inequality, a unique form of inequality originates, which is more than the mere sum of the previously named grounds and instead a multilayered inequality.⁴⁷ Without taking into account these multiple layers, the reality of inequality cannot adequately be seen.

Besides properly reflecting the reality of injustice, intersectionality emphasizes that inequality and human rights violations do not have single causes that stand alone, but instead are caused by a multiplicity of intermeshed causes, leading to structural inequality.⁴⁸ As a perspective, it sheds light on the interaction of power structures and systems of privilege and oppression. The interaction of social actions on the basis of characteristics like race, gender, class, and disability concerns not just individual, discriminatory actions, but is transcribed into social structures, which in turn transcribe into institutional domains like politics and economy, where they become structures of power.⁴⁹ This leads to systemic inequality, which is not a result of a collection of individual, discriminatory actions, but rather the result of the intersecting (oppressive) structures in which demographic characteristics play a role.⁵⁰

By highlighting all these different aspects of injustice and inequality, intersectionality provides a holistic perspective to situations of injustice.⁵¹ By offering multi-level analyses of systemic social injustices and associated human rights violations and thus reaching a more complete understanding of the social and political circumstances of such injustices, the intersectional perspective can benefit international human rights law and policy approaches based on human rights in general.⁵² The breakneck intensification of climate change, leading to increasingly rampant effects of climate change on human rights, renders the intersectional perspective particularly important in the context of climate change. Intersectionality illuminates that these effects of climate change intersect with existing oppressive structures like racism, ableism, and gender discrimination, leading to a rapid exacerbation of existing inequalities.⁵³ Less developed countries are affected more severely but are to a lesser extent able to adapt to climate change. On a local scale, social disadvantage carries through vis-à-vis climate change.⁵⁴ Disadvantaged groups are at an increased risk of exposure to climate hazards. As exposure increases, they are also more susceptible to damage caused by said climate hazards. This occurs even within disadvantaged groups: the homes of the relatively more well-to-do tend to be made of sturdier materials, leading to relative advantage.⁵⁵

It is not simply a question of socioeconomic inequality, however, as the intersectional perspective points out.⁵⁶ Marginalised groups and minorities are overrepresented among the less affluent in many societies. As a result, not only do they suffer from ‘general’ inequality, but they also suffer disproportionately from the adverse effects of climate change, for instance, Afro-Latinos in Latin America.⁵⁷ The structural oppression of any group is exacerbated in the context of climate change. A very direct way in which existing oppression of women interplays with climate change, is that cultural gender norms discourage girls from learning survival skills such as swimming and tree climbing.⁵⁸ In many countries, women are burdened with tasks such as collecting water, which puts them at risk during extreme weather.⁵⁹ More indirectly, gender discrimination at schools and in the workplace makes that women have a harder time rebuilding their life following displacement due to climate change.⁶⁰ They are also often excluded from decision and policy-making forums, leading to further marginalisation and a disregard for the way climate change impacts women.⁶¹ Notably, many studies which enquire into the relationship between gender and climate change do so with a binary concept of gender. As LGBTQIA+ people still face (state-sponsored) violence, discrimination and social stigma, they are in a particularly vulnerable position in general.⁶² Heteronormative assumptions in government and insurance policies can make support less accessible. For instance, the assumption of ‘couple’ referring to a man and a woman has resulted in same-sex couples being excluded from support programmes.⁶³ During a tsunami in India, persons who could not be officially recorded as either male or female were denied aid and shelter.⁶⁴

The traditional, essentialist framework of inequality is unable to reflect this disproportionate and multidimensional effect of the climate crisis on people who are in vulnerable positions to begin with. Without an intersectional perspective, we can see that certain groups of people suffer disadvantages on grounds of a demographic characteristic, but we cannot go beyond that simple analysis and see that the disadvantages are the result of a complex, structural issue. To understand the effects of climate change on society, an intersectional lens is necessary.⁶⁵ Accordingly, an intersectional approach is vital to adequately and meaningfully protect people against human rights violations in the context of climate change.

The intersectional approach of the climate crisis illuminates that the climate crisis is not just environmental but at its core a structural social and political issue.⁶⁶ Accordingly, taking an intersectional lens calls forth the concept of climate justice, which recognises the disproportionate effect of climate change on society’s most vulnerable groups irrespective of climate change,⁶⁷ and in particular on those who have contributed the least to the climate crisis.⁶⁸ An emphasis is put on how exposure to pollution and environmental risks are structurally unequally distributed among ethnic/racial groups and socioeconomic status, a practice that continues in the context of climate change.⁶⁹ Subsequently, striving toward climate justice includes the correction of such imbalances in the safeguarding of human rights against the detrimental effects of climate change.⁷⁰

The special obligation of states to safeguard that those who are already facing systemic discrimination and marginalisation do not fall victim to further discrimination in the climate crisis, is an institutional recognition of the concept of climate justice.⁷¹ Climate justice requires addressing inequality in the mitigation of and adaptation to climate change. Beyond preventing further inequality, the structures causing marginalisation and inequality in the first place should be addressed. In fulfilling states’ obligations, i.e. mitigating and adapting to climate change, states should move not only toward more sustainable societies but more equal and just societies too. The societal transitions undertaken should be viewed and utilised as opportunities to combat existing inequalities in the enjoyment of human rights.⁷²

Thus, for human rights-based climate litigation to effectively hold states to their human rights obligations under international law, an intersectional perspective is essential. It puts the spotlight on the full effect of climate change on the enjoyment of human rights, including the exacerbation of structural injustices, and as such reveals that climate change is a social as well as an environmental issue.

4. Intersectionality in international human rights-based climate litigation

Despite the growing awareness and acknowledgment of the importance of intersectionality and the concept of climate justice, international and regional human rights courts and treaty bodies are not at the forefront of implementing these concepts in human rights litigation.⁷³ Even when an intersectional approach is taken, it is often exclusively applied in the context of various forms of discrimination.⁷⁴ In the context of climate change, a limitation to the context of discrimination is precarious because climate-related human rights violations are not directly associated with discrimination. Rather, the effects of climate change compound structural discrimination. To properly analyse the complexity of the climate crisis, the intersectional perspective should not be confined to evident discrimination cases, but be applied in any climate case to identify the compounding effect of structural inequality and human rights violations with climate change.⁷⁵ In the following section, I discuss two cases before international and regional human rights courts and treaty bodies which touch on climate change, although they do not challenge state actions concerning climate change directly: Ioane Teitiota v. New Zealand before the Human Rights Committee, and Advisory Opinion OC-23/17 by the Inter-American Court of Human Rights. Given the lack of definite case law on climate change-related human rights cases and the hesitancy with which intersectionality has been implemented by most international and regional human rights courts and treaty bodies, the question remains how currently pending climate cases will be approached. I analyse what intersecting issues could be at play in three cases that are currently pending before international and regional human rights courts and treaty mechanisms: Indigenous Peoples, Klimaseniorinnen v Switzerland and Duarte Agostinho and Others v Portugal and 32 other States. I argue that with an intersectionality, it becomes possible to see how being part of a generation intersects with the climate crisis, resulting in particular harm due to climate change.

4.1. Current approach in human rights-based climate litigation

As rights-based climate litigation at the international level is still a developing phenomenon, definitive case law of international and regional human rights courts and treaty bodies that focuses on climate change is still sparse. A small body of case law that does not centre on climate-related state obligations per se, broaches the effects of climate change on human rights. Ioane Teitiota v. New Zealand before the Human Rights Committee is the first ruling of a UN human rights treaty body on climate refugees.⁷⁶ Although in its ruling the HRC repeatedly mentions particular vulnerabilities, no intersectional analysis was made. This is in stark contrast with the dissenting opinion of Committee Member Duncan Laki Muhumuza, who emphasized the need to ‘employ a human-sensitive approach to human rights issues’, thereby signifying that the situation of the individual at stake should be considered in detail. The Committee Member recognised that within the group of people vulnerable to climate change (persons residing in Kiribati), some are more vulnerable than others: he noted that those who are reliant on subsistence agriculture and fishing for food and those who already are in poor health, such as Teitiota and his family, are particularly vulnerable. Had the HRC viewed the case through an intersectional lens, Teitiota might have met the threshold of Art. 6 ICCP, thereby triggering the obligation of non-refoulement for New Zealand.

A second case that covers the effects of climate change in a more or less indirect manner, is Advisory Opinion OC-23/17⁷⁷ of the Inter-American Court of Human Rights (hereafter: IACtHR). This opinion concerns the responsibility of states for transboundary environmental harm under human rights law of the IACtHR but also deals with the effects of climate change on human rights more generally. In contrast to the HRC, the IACtHR in substance attests to the importance of intersectionality in climate change-related cases. The Court stresses that the effects of environmental damage on human rights could be excessively experienced by persons who belong to population groups who are already in a vulnerable situation.⁷⁸ Based on international human rights law, states have the obligation to confront such vulnerabilities ‘on the principle of equality and non-discrimination’.⁷⁹ By not only connecting environmental damage or climate change with pre-existing vulnerabilities but with the issue of equality and discrimination as well, the Court took a leap toward viewing climate change-induced human rights violations through an intersectional lens.

As a prime example of the intersection between (climate change-induced) environmental damage and an existing vulnerability, the Court paid special attention to the situation of Indigenous and Tribal Peoples.⁸⁰ States must take positive measures to ensure that members of such communities have access to a dignified life, including protection of their ancestral land and the close relationship they have with it⁸¹ and special attention to the survival of their way of life, customs and language.⁸² Moreover, they must be included in environmental impact assessments, an obligation stemming from the precautionary principle in environmental law.⁸³

In October 2021, the CRC decided on the case of Sacchi, which in contrast to the cases above, directly revolves around human rights violations due to climate change. Although the case was declared inadmissible due to failure to exhaust domestic remedies, the CRC briefly commented on the question if the applicants were victims of any human rights violations. It considered that the applicants were specifically impacted by the effects of climate change as children.⁸⁴ This showcases that the CRC took an intersectional perspective, which I elaborate on in §4.3. First, I discuss three cases currently pending before international and regional human rights courts and treaty bodies.

4.2. Rights of Indigenous people in addressing climate-forced displacement

In 2020, the Alaska Institute for Justice submitted a complaint on behalf of five Indigenous tribes located in Louisiana and Alaska, who face internal and forced displacement due to the effects of climate change. The complaint at hand was not filed at a regional human rights court or a UN human rights treaty body but rather submitted to ten UN Special Rapporteurs, including the Special Rapporteur on the Rights of Indigenous Peoples and, the Special Rapporteur on the Human Rights of Internally Displaced Persons and the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment. The tribes requested that several recommendations be made to the US Government and the State Governments of Louisiana and Alaska, who allegedly violate international human rights obligations by failing to respond adequately to climate change, which thereby leads to the forced internal displacement of Indigenous Peoples.

When it comes to climate change cases that concern Indigenous Peoples, it is rather clear-cut why specifically these persons are impacted by climate change. International human rights law explicitly considers Indigenous Peoples a distinct group of persons, for whom their status of being Indigenous structurally results in a (negative) impact on the enjoyment of their rights. Accordingly, various international human rights documents ascribe specialised human rights to Indigenous groups, such as the UN Declaration on the Rights of Indigenous Peoples and the Indigenous and Tribal Peoples Convention, with a specific substance and character compared to general human rights.⁸⁵ Although some international human rights documents include collective rights,⁸⁶ generally speaking the international human rights discourse emphasizes individual rights. This focus on individual rights is at tension with the Indigenous worldview, while it is exactly what Indigenous worldview and corresponding culture that Indigenous rights aim to protect.⁸⁷ As such, the UN Declaration on the Rights of Indigenous Peoples includes in addition to individual rights a substantial number of collective rights, which encompass communities, Peoples and Tribes as a whole.⁸⁸ Examples of these rights are the right to self-determination of a People in Art. 3 and the right to their ancestral lands in Art. 26 of the UN Declaration on the Rights of Indigenous Peoples.

It is no less than evident that from a legal perspective at least, being Indigenous has a notable effect on the enjoyment of human rights. From a material perspective, being Indigenous affects the enjoyment of human rights as well. Due to marginalisation, members of Indigenous tend to be at the bottom of the social and economic ladder in most modern societies, facing discrimination,⁸⁹ extreme poverty and bad access to for instance educational and healthcare services.⁹⁰ This is even more ardent for Indigenous persons who carry additional marginalised identities such as women⁹¹ and disabled persons.⁹² As such, Indigenous identity always intersects with the enjoyment of human rights. Human rights in the context of Indigenous Peoples inherently require an intersectional approach.⁹³

Circling back to climate change and the complaint, the effects of climate change hit Indigenous uniquely compared to individuals who do not hold such a status. Indigenous identity and culture are so inextricably tied to their land, including the existence of a spiritual connection,⁹⁴ which makes that climate-induced damage to their land or forced displacement entails a loss of an integral part of their identity. Regarding climate justice, intersectionality lays out in the open that extra effort must be made for Indigenous communities and persons. The climate crisis exacerbates the pre-existing inequality that affects Indigenous Peoples. Beyond that, it leads to even further deterioration of the rights of Indigenous Peoples. At the same time, Indigenous (owned or managed by Indigenous peoples) territory encompasses around 20% of global land area, which accounts for 80% of the world’s biodiversity.⁹⁵ The intensified effects of climate change on Indigenous communities go further than ‘simple’ physical effects such as water shortage but entail harrowing spiritual effects too, severely harming their cultural traditions and identity. From the perspective of justice, it is thus necessary to address the injustices that have been done and continue to be done to Indigenous communities in the wake of colonisation. This fully justifies their locus standi before international and regional human rights courts and treaty bodies.

4.3. Klimaseniorinnen, Duarte Agostinho and Sacchi: generation as a relevant social characteristic

Whereas it is rather clear how Indigenous Peoples are specifically impacted by climate change due to their status as Indigenous Peoples, the cases of Klimaseniorinnen and Duarte Agostinho, as well as the inadmissible Sacchi case, at first glance lack characteristics that explain how climate change hinders these persons in the enjoyment of their human rights more than others. The applicants in the cases at hand claim that they are specifically impacted in the enjoyment of their human rights by the effects of climate change due to the generation that they are a part of. In the case of Klimaseniorinnen, the crux of the matter in the case is whether the (impending) effects of climate change are imminent and sufficiently severe enough to form an actual threat to the senior women.⁹⁶ Notably, the collective explicitly identifies itself as a group of senior women – not simply ‘women’ or ‘seniors’, but a combination of the two, which brings the notion of gender into the equation as well. The association claims that their unique experience of the effects of climate change lies in the specific susceptibility of older women to health issues as a result of or during heatwaves, which occur more frequently and more intensely due to climate change.⁹⁷ That frequency and intensity will only increase as climate change progresses, and the susceptibility of senior women is greater than that of the general population. According to the application, the risk of mortality and morbidity for older women is especially high because of ‘the “cumulative effect” of all the consequences the Applicants already experience and will experience’, which points at the multiplicity of their issues.⁹⁸

In the case of Duarte Agostinho, it is their youth rather than seniority that, according to them, makes the enjoyment of their human rights particularly susceptible to climate change-induced degradation. This lies for example in the increase of water insecurity and water scarcity due to climate change, and the fact that children are particularly affected by water scarcity because of their increased water needs.⁹⁹ Likewise, in the reply of Sacchi et al. to the admissibility objects of the respondent States, the applications append that the effects of climate change lead to disruption of their schooling.¹⁰⁰ Experiencing extreme temperatures in childhood has been shown to negatively correlate to the total years of education in Southeast Asia, leading to a subtraction of as much as 1.5 years of schooling.¹⁰¹ Extreme temperatures thus result in less education overall. Similarly, disrupted rainfall patterns (mostly periods of drought) in early childhood are negatively associated with educational attainment among children in Central American and the Caribbean, with a predicted decline of 1.8 years of their total time in education.¹⁰² As such, children will be impacted in the enjoyment of their right to education in a way that those who have completed their education in the past, have not.

The claim that younger generations are more severely affected in their enjoyment of human rights by climate change than older generations ties into the concept of climate justice, which features in the application of Duarte Agostinho. In §8, the applicants mention intergenerational equity. Intergenerational equity is the concept of justice between generations, i.e. issues of one generation should not be left untreated only to become a burden on the shoulders of younger or future generations.¹⁰³ Specifically in the context of climate change, it describes how older and present generations carry an obligation to act with responsibility toward younger generations. Simply put, if the generations who currently can mitigate and adapt to climate change as much as possible (i.e. adults) refuse to do so, this would be unjust toward younger and future generations.¹⁰⁴ This is amplified by the fact that as the effects of climate change are becoming increasingly intense, younger people will be faced with the most intense impact on the enjoyment of their human rights. At the same time, young people, simply by virtue of being alive for a shorter period, have contributed less to the climate crisis than older persons.

In the frame of climate justice, we take a bird’s eye perspective of society in the face of climate justice, however, rather than considering the case of the individuals at hand. Does a particular age distinguish a person enough from others to justify the locus standi? Age is often in international human rights documents included as a possible ground for discrimination as part of an open-ended list.¹⁰⁵ It can, thus, be of influence on how an individual experiences their human rights. There are also specific international documents for the specific rights of certain age groups, such as the Convention on the Rights of the Child and the UN Principles for Older Persons. Nonetheless, this does not explain how being a young person or an elder can specifically disadvantage one in the context of climate change in the structural way that inter alia ethnicity, disability, and sexual orientation do.

Yet, the CRC accepted in the Sacchi case that the applicants were particularly vulnerable to the effects of climate change precisely because they were children. On how exactly, no further explanation was given. I argue that what sets these applicants apart is the notion of climate change in combination with their generation. Both the Klimaseniorinnen and Duarte Agostinho applicants mention that their vulnerability to heatwaves can be exacerbated by pre-existing disability or health conditions, in the case at hand respiratory problems of some applicants.¹⁰⁶ Adding health inequality¹⁰⁷ and the prevalence of racial bias in healthcare¹⁰⁸ to that, a heatwave is likely to impact the most vulnerable in society, and drive those toward situations in which they face marginalisation. Similarly, research shows that children from more educated households tend to be affected the most by irregular weather patterns in the Global South, because they have the most access to education and therefore the most to lose.¹⁰⁹ However, if children who grow up in more developed socioeconomic circumstances are inhibited in their access to education, then one can imagine that for children at the bottom of the socioeconomic ladder, access is inhibited to an even greater extent. Given the importance of education for the rebalancing of inequality¹¹⁰ and especially the fact that the places most affected by the changing climate are developing countries,¹¹¹ the deterioration of education will hit those already at disadvantage – be that through socioeconomic status only or through a combination of intersecting discrimination grounds – the hardest.

A potential injustice is not enough to speak of a human rights violation and locus standi. The crux is that climate change actualizes such potential injustices. It was only recently, in October 2021, that the UN General Assembly passed a resolution recognising that the challenges that older persons face, can be compounded by other violations of their human rights.¹¹² It is climate change that forms an issue, which then in turn intersects with age and inequality in inter alia water availability, access to education and health. When climate change causes effects such as water scarcity, heatwaves and forced migration, generation stops being a ‘neutral’ social category. Instead, the generation that one is a part of can heavily influencing how one’s enjoyment of human rights is impacted. Much like characteristics that already result in a social positioning that puts a person at a disadvantage, which is exacerbated in the climate crisis – like Indigenous status or minority ethnicity – the generation that a person is a part of, can be particularly vulnerable. One’s seniority and connected respiratory condition suddenly morph into a particularly high risk of mortality due to the occurrence of heatwaves; one’s youth transforms into a particular risk of deprivation of education, which in turn translates into a greater risk of poverty. In other words, for young people, a failure to address climate change and its effects results in a bereavement of their chances on a good life, in particular for the least privileged.

Although generation and climate change can intersect in isolation and in that way create a unique disadvantage in the enjoyment of human rights, it is all the more likely that age and climate change are not the only issues in the lives of many persons within a certain generation. When pre-existing inequalities such as race, gender or disability are added to the equation, the new intersection of age and climate change exacerbates those pre-existing inequalities even more. An example is the aforementioned intersection of health inequality and race: the augmented prevalence of ethnic minorities at the bottom of the social ladder, in combination with health inequality and racial bias within healthcare,¹¹³ result in an accumulation of disadvantages in the face of climate change.

Intersectionality is essential to explain how at the intersection of age and climate change, the generation you are a part of becomes a social characteristic that structurally influences the way in which the enjoyment of your human rights is impacted by climate change, further compounding pre-existing inequalities. It is only by embracing the notion that persons can carry multiple identities or characteristics rather than fitting into a singular, monolithic demographic group, the notion that these identities can intersect and thereby create unique disadvantages, and the notion that one’s generation combined with climate change can form such a unique disadvantage, that courts can properly assess how climate change affects individuals and meaningfully prevent the burden of effects from landing on the shoulders of those already burdened by inequality.

These benefits do not apply exclusively to the most climate-vulnerable persons and communities, but extend to anyone who finds their human rights severely impacted by climate change, as everyone’s social position is multi-layered, complex and dynamic. An intersectional perspective enables courts to take into account the social structures that shape the experience of climate-vulnerable persons, and recognise the varying individual experiences of persons and communities due to their social context.¹¹⁴

5. Conclusion

The worsening of the climate crisis and states’ failure to combat it have given rise to an increase in climate litigation. The turn to human rights has taken up an increasingly significant role in pushing states to act against climate change and associated human rights violations. As successful as some domestic climate litigation has been, however, human rights-based climate litigation is not without hurdles. The effects of climate change are gradual and diffuse in that they tend to affect not particular individuals, but communities or even societies as a whole. Yet, to meet locus standi requirements such as art. 34 ECHR and art. 7 Third Optional Protocol to the CRC and get access to a court, victims of climate change-induced harm must show that they are specifically and concretely harmed by climate change.

In this article, I have argued that the intersectional perspective is essential and necessary for the turn to rights against climate change to succeed in providing proper protection of human rights. Intersectionality as a perspective in legal cases brings to light injuries that in the traditional approach to human rights stay concealed. The traditional approach regards those within a group that is based on a social characteristic as having static, monolithic and singular identities, viewed in isolation. Intersectionality, in contrast, considers the persons in such groups in their context, including their community, their circumstances and their full identity. In the context of the climate crisis, intersectionality illuminates how the most vulnerable due to structural social injustices bear the brunt of the impact. Climate change interacts with existing systems of oppression such as racial or ethnic oppression, transphobia or discrimination against disabled persons, exacerbating these existing injustices.

To ensure that human rights-based climate litigation properly protects persons against the detrimental effects of climate change on their human rights, courts should utilise the perspective that intersectionality as a framework offers. To enforce the standards of the international human rights framework in light of the climate crisis, courts must consider how the applicant is particularly impacted by climate change not by looking at relevant social factors as additive, but as connected, dynamic, context-dependent and the result of complex and structural power relations. Intersectionality has a dual effect: procedurally, it aids victims of climate change-induced human rights violations in meeting the requirements of locus standi. Through an intersectional lens it becomes visible how individuals can be specifically vulnerable to and impacted by climate change, helping persons to substantiate that the alleged human rights violation they experience is severe and specific enough. Many characteristics that structurally put individuals at a disadvantage, such as being part of a minority ethnic group, sexual orientation, or disability, lead to an even greater disadvantage when climate change is brought into the mix. I have argued that in the climate crisis, even a characteristic that would ordinarily not result in a social positioning that is specifically disadvantageous in the face of climate change, such as being part of a certain generation, can become an issue that adversely affects the enjoyment of human rights. When considered in conjunction or intersection with the climate crisis, the generation that one is part of – be that youth or the elderly – can make one particularly vulnerable to climate-related human rights damage in a structural manner, especially when the effects of climate change compound existing social injustices that this person may face as a result of structural oppression on the basis of their characteristics. At the intersection of climate change and age, problems such as the increased risk of mortality and deterioration of education actualise. Consequently, age can intersect with pre-existing issues that cause inequality, like ethnicity, gender and sexual orientation. Intersectionality helps to substantiate the claim that a person or community is particularly hit by climate change. It is in this way that it offers support in meeting locus standi requirements and facilitating access to courts in climate change-related cases, aiding the promotion of human rights protection and climate justice.

The second effect of intersectionality is substantive. By uncovering how climate change intersects with pre-existing issues and inequality, the intersectional approach provides a holistic and proper overview of the full effects of climate change on the enjoyment of human rights. If being part of a certain generation can lead to being disproportionately impacted by climate change, then it becomes conceivable that climate change will intensify pre-existing inequality linked to characteristics used to structurally distinguish persons such as race. This is exactly what States must prevent under the notion of climate justice. Intersectionality makes this perceptible to courts, thereby enabling them to enforce such State obligations. International and regional human rights courts and treaty bodies seem to increasingly, albeit still hesitantly, embrace the notion of intersectionality, as illustrated by the decision of the CRC on the Sacchi case. Similar cases are in the pipeline, like Klimaseniorinnen and Duarte Agostinho before the ECtHR. The turn to rights to combat the effects of climate change on human rights is not enough. To promote climate justice, it is essential that human rights courts and treaty bodies approach climate cases with an intersectional perspective. That way, they can properly assess how climate change uniquely affects persons and communities based on their specific social context, including the dynamic and contextualised power relations that are at play, and prevent the burden of effects of climate change from landing on the shoulders of those already burdened by inequality.

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).

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.

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’.