Human Rights Approach to Climate Change Litigation and Its Limits

Mingzhe Zhu

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Chapter 6 Human Rights Approach to Climate Change Litigation and Its Limits

In: Chinese Yearbook of Human Rights, Volume 6 (2024)

Author:

Zhu Mingzhe

Zhu Mingzhe
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Translator:

Gao Jing

Gao Jing
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Type:: Chapter

Pages:: 137–162

DOI:: https://doi.org/10.1163/9789004697362_007

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Abstract

In recent years, litigants have begun to use human rights as gateway to climate change litigation in some jurisdictions and achieved limited success. Some scholars see this “human rights turn” as new opportunities to advance climate change mitigation through the judicial process, while others criticize it as an abuse of human rights law that could lead to illegitimate sanctions on emitters. Human rights-based climate change litigation should be understood as strategic litigation, whose purpose is not to resolve a specific dispute or gain compensation for damages, but rather to promote broader social and policy change. To achieve this goal, plaintiffs use as wide a range of rights as possible, including the rights to life, property, peace in private life, health, environment and so on, and expand the subject of rights to future generations and foreign citizens, arguing that both the state and carbon majors should be held accountable for the diminished human rights caused by climate change. In theory, the strength of the human rights approach lies in empowering the judiciary to go beyond the paradigm of updating the interpretation of existing norms and create norms. There are hardly any obstacles in terms of legal techniques to the performance of this function, as filling lacune of law through recourse to various principles of human rights law has already become a relatively mature model of judicial reasoning. However, a series of factual obstacles still exist and may hinder the implementation of this theoretically well-established function. The judiciary, after all, cannot enforce its own policy decisions without the cooperation of other public authorities. Furthermore, the power of norm-making by appealing to human rights is highly culture-specific, which means it might not be supported in a culture of adjudication where right is not considered as trump.

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Chinese Yearbook of Human Rights, Volume 6 (2024)

Series: Chinese Yearbook of Human Rights, Volume: 6

E-Book ISBN:: 9789004697362

Publisher:: Brill | Nijhoff

Print Publication Date:: 17 Jul 2024

Subjects
- Human Rights and Humanitarian Law
  - Human Rights
- International Law
  - Asian Law

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Chapter 6 Human Rights Approach to Climate Change Litigation and Its Limits

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Chinese Yearbook of Human Rights, Volume 6 (2024)

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