Human Rights-Based Climate Litigation and the Rights of Nature: International Case Review and Analysis
By Emma Freedman and Jacob Metz-Lerman
On August 2, 2024, Germany’s Erfurt Regional Court found that rights of nature can be derived from the EU Charter of Fundamental Rights. The court ruled that Nature is not an object but, rather, a subject with its own right to protection. This decision may mark a new era in both climate change litigation and the Rights of Nature (hereafter RoN) movement.
The German ruling stands on over a decade of litigation that has pushed the boundaries of how we understand victimhood and culpability in climate litigation. Increasing global temperatures and governments’ failures to curb emissions have led to a flood of climate-related cases as advocates turn to the courts for climate action. Many of these cases have highlighted a moral dimension to the climate crisis by invoking rights—both human rights and RoN.
These two litigation strategies offer contrasting, yet complementary, visions of climate-related harm. Cases based on human rights argue that the effects of climate change negatively impact human wellbeing to the point of violating fundamental rights. Cases based on RoN hold that the natural world has a right to protection, regardless of people’s dependence on it.
While human rights-based climate litigation has paved the way for the RoN movement in some ways, its strict anthropocentrism may ultimately prove to be at odds with the RoN movement’s ecocentric approach. These two legal movements thus have the potential to both mutually reinforce and conflict with one another.
The Rise of Human Rights-Based Climate Litigation
Climate cases based on human rights argue that the impacts of climate degradation violate people's rights, including rights to life, health, food, water, and liberty. Litigants demand that governments and corporations protect human rights by taking steps to limit greenhouse gas (GHG) emissions, support efforts to adapt to climate change impacts, and provide reparations for losses and damages caused by climate change.
Since 2015, advocates have filed over 400 human rights-based climate cases in courts and tribunals around the world. This trend is accelerating, as more than two thirds of these human rights-based cases were filed in just the past five years. Litigants have filed cases before international bodies, regional courts, and domestic courts in 51 different countries. Employing a diverse range of strategies, advocates rely on rights enshrined in constitutions, international treaties, and domestic law (including both statutes and judge-derived common law).
While most of these cases seek more aggressive action on climate change and its impacts, some challenge climate action in an effort to protect fossil fuel profits or ensure a more just transition. In other words, climate cases based on human rights do not always seek to protect Nature, but they do always seek to protect human interests.
International Cases
In 2019, a group of children filed a petition with the U.N. Committee on the Rights of the Child, arguing that their governments had violated their rights by failing to cut GHG emissions and lobby other nations to take aggressive environmental action. Two years later, the Committee ruled against the children on procedural grounds, despite affirming the substance of their claims. It found that the countries had violated the rights of the children by failing to curb emissions, but that child petitioners had failed a procedural requirement to “exhaust” domestic remedies in domestic courts. As a result, the Committee deemed their complaint inadmissible.
The following year, the U.N. Human Rights Committee (HRC) delivered a landmark decision in Billy v. Australia. In this case, Indigenous residents of four low-lying Australian islands argued that changing weather patterns and sea level rise had harmed their traditional lifestyle and culture. The plaintiffs argued that Australia, by failing to adapt to climate change, had violated the human rights commitments codified in the International Covenant on Civil and Political Rights. The HRC sided with the plaintiffs, concluding that by failing to protect Indigenous islanders from increasingly violent storms and rising tides, Australia had violated the islanders’ rights to enjoy their culture and live free from interference with private life, family, and home.
Regional Cases
In 2019, the Inter-American Court of Human Rights (IACtHR) issued an advisory opinion in which it concluded that the right to a healthy environment is a human right under the American Convention on Human Rights. The opinion noted that climate change is widely understood to interfere with the enjoyment of human rights and articulated that States have a responsibility to mitigate environmental damage and climate change.
In a crucial nod to the RoN movement, the IACtHR observed:
[The right to a healthy environment] protects nature and the environment, not only because of the benefits they provide to humanity or the effects that their degradation may have on other human rights . . . but because of their importance to the other living organisms with which we share the planet that also merit protection in their own right. (¶62)
This language is evidence of a potential relationship between human rights-based litigation and RoN. It marked a key step toward recognition of RoN at the regional level and provided a foothold for RoN litigation, as we explore below.
In 2024, the European Court of Human Rights (ECtHR) built on the IACtHR Advisory Opinion in its own groundbreaking opinion on climate change and human rights. In the case KlimaSeniorinnen v. Switzerland, a group of senior women sued the Swiss government for failing to adequately curb climate change and mitigate its effects. They argued that this inaction threatened their lives and health by increasing the frequency and intensity of heat waves. The Swiss courts summarily rejected the senior women’s claims on the basis that climate change had not affected their individual rights. The women appealed to the ECtHR, arguing that Switzerland’s inaction had violated their rights to life and respect for private and family life. The ECtHR found that the right to respect for private and family life includes protection by the State from “serious adverse effects of climate change on . . . life, health, well-being and quality of life.” The court ruled that Switzerland failed to comply with its obligations under the convention by failing to effectively set and meet its GHG emissions reduction targets.
Domestic Cases
Domestic courts around the world have also found that climate change poses a threat to human rights. In Neubauer v. Germany, the German Federal Constitutional Court ruled that Germany’s Federal Climate Protection Act was incompatible with constitutional rights to life and health because it did not include sufficient rules for emissions cuts after 2030. The court found that Germany was offloading emissions reductions to future generations, thereby violating their fundamental freedoms. The court reasoned that the government was unfairly burning through the country’s “carbon budget”—the share of GHGs that the country can emit while keeping the world below agreed upon temperature targets. In other words, by over-polluting, the German government violated the freedom of future generations, limiting their ability to “safely” pollute the atmosphere.
In Belgium’s Klimaatzaak case, the Brussels Court of Appeal and the Brussels Court of First Instance held that the Belgian authorities had violated the plaintiff citizens’ rights to life and respect for private and family life, as well as their duty of care under the Belgian Civil Code, by failing to limit GHG emissions. The Court of Appeal ordered the defendant governments to reduce GHG emissions by at least 55% compared to 1990 levels by 2030.
Notably, two lawyers asked the court for permission to join this case on behalf of 82 specific trees with long lifespans. They argued that the trees were legal subjects in need of protection from the harms threatened by climate change. The lawyers’ request stated that the intervening trees “must be respected throughout their lives, with the right to develop and reproduce freely, from their birth to their natural death.” However, the Brussels Court of First Instance rejected the request. The court held that “trees are not ‘subjects of rights’, i.e. beings capable of having and exercising rights and obligations . . . only [human] interests are subject to the regulations established by law . . . [thus] trees have no standing to bring a claim.”
The United States has also been a site of rights-based climate litigation. In Held v Montana, sixteen youths challenged Montana’s fossil fuel policy, claiming that it violated their right to a clean and healthful environment. They challenged a provision of the Montana Environmental Policy Act that “forbids the State and its agents from considering the impacts of greenhouse gas emissions or climate change.” The youth plaintiffs argued that this provision violates Montana’s state constitution, which guarantees “the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” In its decision, the Montana District Court determined that the plaintiffs’ injuries—which would not have occurred if the state considered GHG levels in its permitting practices—were “inconsistent with protecting Plaintiffs’ constitutional rights.” The decision marked the first time in which an American court decided on the merits that a law promoting the use and consumption of fossil fuels infringed upon constitutional rights by contributing to climate change.
Rights of Nature
Advocates have also turned to a new area of law to meet today’s environmental crisis: Rights of Nature (RoN). RoN holds that Nature itself—including animals, rivers, and entire ecosystems—bears legal rights. This body of law positions itself as an ecocentric critique of anthropocentric legal systems. Under this view, Nature is entitled to legal protections regardless of whether those protections also benefit humans.
The RoN movement has gained legal traction in recent years. Numerous jurisdictions have codified RoN in statutes. In 2008, Ecuador became the first country to include RoN in its constitution. The constitution states that Nature “has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.” More recently, Spain, New Zealand, Panama, U.S. municipalities, and other locations have passed laws recognizing that specific ecosystems or bodies of water hold legal rights. These laws have faced legal challenges, as well as criticism for lacking enforcement mechanisms; however, they illustrate the growing breadth and legitimacy of RoN as a movement and legal theory.
Advocates have also brought a number of RoN court cases over the past two decades, with some key victories. And in recent years, RoN advocates and judges have begun to draw connections between the RoN worldview and climate change.
In 2018, the Supreme Court of Colombia made history by applying RoN to climate change in Future Generations v. Ministry of the Environment. This case, brought by a group of young Colombians, argued that their rights were threatened by climate change and the deforestation of the Amazon. In siding with the plaintiffs, the Supreme Court recognized the Colombian Amazon as a “subject of rights,” entitled to protection, conservation, and maintenance. The court arrived at this conclusion by noting that the plaintiff’s human rights were “substantially linked [to] and determined by the environment.” In this way, the court presented human rights as the basis and justification for RoN.
In 2021, Ecuador’s Constitutional Court issued a landmark RoN ruling in the Los Cedros case. The court prohibited mining in the protected forest of Los Cedros on the basis that the mining would violate the forest’s rights. The court cited the IACtHR’s Advisory Opinion on the right to a healthy environment, thus tying in a human rights precedent in its decision. The ruling determined that economic activity violates the Rights of Nature if it risks severe, irreversible damage to Nature, even if there is scientific uncertainty about the potential harm. The court also specified that the RoN extend to all areas of the country, not just protected areas. This case has been hailed as one of the strongest rulings on Nature’s rights.
Rio Marañon © Miguel Araoz Cartagena
In 2024, Peruvian courts adopted a similar approach to that taken by the Supreme Court of Colombia in Future Generations v. Ministry of the Environment, albeit with a bolder RoN interpretation by the Peruvian judges. In March of that year, the Mixed Court of Nauta recognized that the Marañón River is a subject of rights. The court held that the river, which had been contaminated by numerous leaks from an oil pipeline, is entitled to a number of specific rights, including the right to biodiversity, the right to flow freely, and the right to protection and restoration. The case was brought by the Federation Huaynakana Kamatahuara Kana, an Indigenous women’s association (this case was supported by Earth Law Center). The court appointed the Indigenous communities and the Peruvian state as co-guardians of the river and ordered the Petroperu company to take steps to prevent oil contamination of the Marañón River.
The Peruvian court relied on human rights law to reach its decision. The ruling drew on cultural and territorial rights for Indigenous peoples, which have long been recognized in the international system. As in the Los Cedros case, the court cited the IACtHR’s Advisory Opinion on the right to a healthy environment and a decision from the Constitutional Court of Peru recognizing the constitutional validity of biocentric and ecocentric approaches to protecting Nature. Weaving these precedents together, the judge concluded that human rights law provided a basis for recognizing RoN, and the ruling was upheld upon appeal.
Also in 2024, as noted above, the Erfurt District Court in Germany became the first European court to affirm that climate change adversely impacts RoN. The case concerned a claim for damages caused by an illegal, emissions-defeating device that the defendant manufacturer had installed in the plaintiff’s RV. In calculating the damages owed to the plaintiff, the court considered RoN on its own accord. The judge held that the emissions-defeating device had violated RoN by emitting pollutants beyond the legal limit. The court recognized RoN by reinterpreting the original German text of the EU Charter of Fundamental Rights. The charter uses the term “personne” to refer to rights-holders. “Personne” was later taken to mean “person.” However, the judge determined that this interpretation is incorrect, and it would be more accurate to translate the term to mean “everyone” or “anyone,” including non-human entities. According to the court, if the drafters of the document had been referring exclusively to humans, they would have used the word “mensch.” This seemingly innocuous case thus became the first in Europe to establish that carbon emissions can violate RoN.
Several other RoN climate cases are still being litigated. For example, in Asociación Civil por la Justicia Ambiental v. Province of Entre Ríos, a group of plaintiffs, including a class of children, are challenging an Argentinian province and municipality for failing to safeguard the Delta del Paraná, a wetland that experienced extensive fires throughout 2020. Citing human rights and Argentina's commitments under the Paris Agreement, the plaintiffs seek recognition that the ecosystem has an independent right to exist because of its role in climate mitigation and adaptation. Similarly, in Alvarez v. Peru, a group of Peruvian youth are challenging the government for insufficient action on climate change. They seek recognition of the Peruvian Amazon as a subject of rights and a governmental plan of action to reduce deforestation.
The Rights of Future Generations as a Potential Bridge to RoN
A number of recent cases have recognized that climate change threatens the rights of future generations of humans—rulings that seem to bring human rights and RoN discourse even closer together. For example, the plaintiffs in the groundbreaking climate case Urgenda v. The Netherlands argued that failure to reduce GHG emissions violated the human rights of future generations. The court agreed, deciding that the government must significantly cut emissions to protect future generations' right to a stable climate.
While grounded in longstanding legal principles, the Urgenda holding, and others like it, are helping to establish a newly broad view of rights and rights-holders. The recognition that governments and corporations have an obligation to protect future humans could lend strength to the RoN argument that they also have an obligation to protect Nature. Indeed, there are conceptual similarities between future generations and the more-than-human world. “Future generations” is a fluid and boundless category that does not refer to any specific individual or entity. Like Nature, future generations are unable to directly advocate for themselves. Instead, they must rely on representatives, or guardians, who can only provide a logical approximation of their interests. These similarities provide openings for RoN advocates.
The Impacts of Human Rights-Based Litigation on the RoN Movement
Cases based on the Rights of Nature and those based on human rights frequently share the common objective of protecting the environment from pollution and human activities. These cases frame harm to Nature in moral terms, challenging the long-held view that humans are distinct from Nature. While human rights cases have thus paved the way for the RoN movement in some ways, the tradition of human rights can also come into tension with the ecocentrism embodied in RoN, and it remains to be seen whether that tension will prove productive or inhibitory to the RoN movement over time.
As described above, several courts have already recognized RoN by drawing on human rights frameworks. These courts reason that human interests are served by recognizing the legal personhood of Nature. This approach of leveraging human rights in RoN litigation may be critical in countries that have not passed an explicit constitutional or statutory basis for RoN. The success of cases that combine human rights with RoN underscores the potential for human rights-based cases to support RoN litigation.
Cases based on human rights, however, also have the potential to limit RoN-based climate litigation by further binding environmental protection to its implications for human well-being. Human rights-based cases focus on how environmental crises—desertification, biodiversity loss, sea level rise—affect humans. In this way, human rights-based litigation favors protecting species or specific environmental conditions that most directly or evidently impact humanity. It can be difficult, if not impossible, to predict how harm to Nature will impact humans.
The RoN movement aims to escape this anthropocentric paradigm; it seeks to protect the biosphere not only because of how it exists in mutual reciprocity with humanity but also because of its intrinsic value. In this regard, RoN cases are not hindered by scientific uncertainty about the interrelations between humans and Nature. RoN advocates argue that humans (and our long-term interests) are interwoven with Nature, much like a cell thrives within a larger, interconnected body. With this understanding, protecting Nature becomes synonymous with protecting human rights, and the differences between RoN litigation and human rights litigation appear in a totally new light.
Human rights cases can provide a foundation for recognizing RoN by establishing a moral interest in environmental protections and expanding the category of rights-holders. Yet, these cases could also foreclose RoN litigation by winning similar, but lesser, environmental protections. Cases like Klimaatzaak in Belgium—in which the court ordered the State to reduce GHG emissions while excluding Nature’s interest (in the form of the lawyers who sought to have 82 trees join the case as plaintiffs)—illustrate that courts are likely to avoid recognizing RoN if they can limit climate pollution through more conventional, anthropocentric means. More fundamentally, these approaches present contrasting grounds for environmental protection. Cases based on a narrow framing of human rights could actually permit dangerous climate pollution and harm to the environment by limiting the inquiry to normative human interests.
Conclusion
By litigating on behalf of future generations, human rights-based climate cases have helped to expand the definition of rights holders and build momentum in environmental litigation. However, while human rights-based cases have opened the door for RoN litigation in certain ways, the anthropocentrism embedded in human rights law remains in tension with the ecocentrism of the RoN movement.
If advocates keep this tension in mind, these two litigation strategies can complement and build on each other. Human rights cases can set valuable precedent for RoN cases by underscoring Nature’s intrinsic value and the complex, interdependent relationship between humans and Nature. In turn, RoN litigation can achieve long-term environmental protections that uphold human rights in cases where human interests are more obscure or unknown.
But human rights litigation can also undermine the RoN movement. A narrow conception of human rights and our relation to Nature can lead to insufficient environmental protections. Indeed, anthropocentrism gave us the grave ecological crises we face today. Neubauer illustrates this danger: the German Constitutional Court reasoned that human rights protect a future human interest in polluting the atmosphere with GHGs. Under this logic, human rights justify pollution up to the perceived limit where that pollution would impose severe harms on humans. If advocates aren’t careful, human rights litigation could preserve an anthropocentric frame that risks dangerous harm to Nature.
The recent Erfurt Regional Court decision that RoN can be derived from the EU Charter of Fundamental Rights illustrates both the overlap and the tension between the RoN movement and human-rights based climate litigation. The court ruled that the Charter, a document meant to protect human rights, can also be leveraged to protect non-human beings. While this ruling may support initiatives based on the RoN, it also contains the idea that environmental preservation is valuable only because it is necessary for the preservation of human rights. For now, the conundrum of anthropocentric legal worldviews lives on even as advocates and judges bring RoN more and more into mainstream legal discourse.
