Amoakuh Climate Change Litigation

Climate Change Litigation and Rights-Based
Strategies: Why International Human

Rights Approaches to Climate Change Are
Not Easily Transplanted to the American
Legal System
Konadu Amoakuh*
I. INTRODUCTION .................................................................................................... 196

II. BODIES OF LAW RELEVANT TO THE RIGHTS-BASED APPROACH
TO CLIMATE LITIGATION ................................................................................... 198
A. International Environmental Law .............................................. 198
B. International Human Rights .......................................................... 201
III. CURRENT CASES ARE EXPLORING HOW TO APPLY THE EXISTING
INTERNATIONAL HUMAN RIGHTS FRAMEWORK TO CLIMATE
CHANGE................................................................................................................. 208
IV. CAN THIS INTERNATIONAL HUMAN RIGHTS STRATEGY BE
TRANSPLANTED TO U.S. CLIMATE LITIGATION? .......................................... 213
A. Domestic Legal Barriers to the Rights Strategy .................... 213
B. Lack of Treaty Obligations.............................................................. 216
V. EXAMINING THE JULIANA CASE PROVIDES INSIGHT INTO THE
CHALLENGES THAT DOMESTIC RIGHTS-BASED CLIMATE CLAIMS
CURRENTLY FACE ............................................................................................... 218
VI. REASONS ADVOCATES HAVE NOT BEEN ABLE TO TRANSPLANT
THE INTERNATIONAL HUMAN RIGHTS STRATEGY TO U.S.
LITIGATION........................................................................................................... 227
VII. CONCLUSION ........................................................................................................ 230
*J.D., Stanford Law School, 2023.
195
196 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 41:195
I. INTRODUCTION
As of February 2022, the Earth’s global average temperature has
risen 0.81 degrees Celsius above the twentieth-century average,
largely due to an increase in anthropogenic carbon dioxide emissions,
as well as other anthropogenic changes to environments and
ecosystems like deforestation.1 This rise in temperature is linked to
extreme climatic events, global sea level rise, and ocean acidification,
among many other dramatic global environmental changes that
encompass the phenomenon known as climate change. 2 In 2018, the
Intergovernmental Panel on Climate Change (IPCC) predicted that,
should the current rate of emissions continue, the global average
temperature will increase by 1.5 degrees Celsius above pre-industrial
levels sometime between 2030 and 2052.3 Such an increase would
accelerate habitat loss, exacerbate water scarcity, raise sea levels by
another 1-2 feet, and expose 1 billion people to deadly heatwaves. 4
Even if global emissions reach net-zero in the coming decades,
warming caused by anthropogenic emissions from the pre-industrial
period to the present will inevitably cause long-term changes in the
climate system because of how long already-emitted carbon will
remain in the atmosphere. 5 Reaching and sustaining net zero global
carbon emissions by 2050 could, however, prevent the earth from
reaching or surpassing the 1.5-degree threshold identified in the
2018 IPCC report.6 Over 130 countries as well as hundreds of
companies, cities, and financial institutions have now set or are
considering a target for reducing their emissions to net-zero by mid-
century.7 The fundamental challenge is how to ensure countries
1. State of the Climate: Global Climate Report for February 2022, NOAA NAT’L CTRS. FOR
ENV’T INFORMATION (Mar. 2022), https://www.ncei.noaa.gov/access/ monitoring/monthly-
report/global/202202; see also Climate Action, EUROPEAN COMM’N, https://ec.europa.eu/
clima/climate-change/causes-climate-change_en (last visited Apr. 1, 2022).
2. Climate Change: How Do We Know?, NASA GLOBAL CLIMATE CHANGE: VITAL SIGNS OF THE
PLANET, https://climate.nasa.gov/evidence/ (last visited Mar. 25, 2021).
3. IPCC, Summary for Policymakers, in GLOBAL WARMING OF 1.5°C. AN IPCC SPECIAL REPORT
ON THE IMPACTS OF GLOBAL WARMING OF 1.5°C ABOVE PRE-I NDUSTRIAL LEVELS 4 (V. Masson-
Delmotte et al. eds., 2018).
4. Brad Plumer & Henry Fountain, A Hotter Future is Certain, Climate Panel Warns. But
How Hot is Up to Us, N.Y. TIMES (Nov. 11, 2021), https://www.nytimes.com/2021/
08/09/climate/climate-change-report-ipcc-un.html.
5. Tim Kruger, After Net Zero, We Will Need to Go Much Further and Clean Up Historic
Emissions, THE CONVERSATION (June 10, 2021, 5:16 AM EDT) https://theconversation.com/
after-net-zero-we-will-need-to-go-much-further-and-clean-up-historic-emissions-162332.
6. IPCC, supra note 3, at 12.
7. Climate Action: The Global Coalition for Net-Zero Emissions is Growing, UNITED
NATIONS, https://www.un.org/en/climatechange/net-zero-coalition (last visited Jan. 21,
2022) (discussing the growing global efforts to reach net zero).
2022] CLIMATE CHANGE LITIGATION 197
follow through on their commitments to make the deep emissions

cuts necessary to reach these targets.
Due to both scientific uncertainty about specific policy
interventions and the difficulty of identifying legally responsible
parties, progress on international climate policy is often halted by
collective action problems and lack of consensus about how to
approach the complex socio-economic and socio-political issues
inherent in tackling climate change.8 Because of this, over the past
thirty years, individuals and organizations have increasingly looked
to courts and legal systems worldwide in order to bring claims for
injuries suffered as a result of climate change.9 Many of these cases,
both internationally and in the United States, have relied on a “rights-
based” strategy to climate litigation, emphasizing plaintiffs’ right to a
healthy environment in order to hold states accountable for their
failure to decrease carbon emissions and mitigate the effects of
climate change.10 Many international lawyers view litigation as an
effective alternative to political and economic mechanisms because
of its potential to force governments to review their policy
priorities.11 International litigation against states might also generate
press attention, mobilize public interest groups, galvanize citizens,
and secure compensation for victims.12
International litigation aimed at addressing climate change has
pursued two primary strategies in international fora. One focuses on
imbuing existing obligations to protect the global environment with
an erga omnes character in order to provide standing for non-injured,
non-state parties before international courts, like the International
Court of Justice (ICJ).13 This strategy allows claimants to attempt to
hold states responsible for environmental damage, despite not
otherwise meeting traditional standing requirements under the law
of state responsibility.14 The other approach, known as the “rights
strategy,” employs international human rights law: claimants pursue
remedies for environmental damages by filing petitions in
8. Maiko Meguro, Litigating Climate Change Through International Law: Obligations

Strategy and Rights Strategy, 33 LEIDEN J. INT’L L. 933, 933 (2020).
9. See JOANA SETZER & REBECCA BYRNES, GLOBAL TRENDS IN CLIMATE CHANGE LITIGATION:
2020 SNAPSHOT 1, 14 (2020).
10. Id. at 12.
11. Meguro, supra note 8, at 934.
12. Eric A. Posner, Climate Change and International Human Rights Litigation: A Critical
Appraisal, 155 U. PA. L. REV. 1925, 1931 (2007).
13. Meguro, supra note 8, at 934-35.
14. Id. at 934.
international human rights fora.15 In addition to harnessing the

normative weight of human rights law, this approach can make use of
existing human rights tribunals, courts, and committees to allow
individuals and communities to bring claims.16 This paper is not a
comprehensive analysis of international or domestic climate
litigation. Instead, this paper will focus on how the rights strategy in
international climate litigation has seen early success. Additionally, it
will assess concerns that advocates may not be able to translate
similar rights-based strategies to United States-based climate
litigation, using Juliana v. United States as a case study.
II. BODIES OF LAW RELEVANT TO THE RIGHTS-BASED APPROACH TO CLIMATE

LITIGATION
A. International Environmental Law
The longstanding paradigm amongst the global community has
been that climate change is an issue to be dealt with using
international environmental law.17 Though progress in this area of
law has been gradual and dependent on the availability of new
scientific evidence,18 international environmental law began to
solidify as a body of law in the twentieth century when states began
to recognize transboundary environmental harm resulting from their
activities.19 In the seminal case, the 1941 Trail Smelter arbitration, the
arbitral award compensated United States citizens for damages
suffered as a result of noxious fumes emanating from the stacks of the
Consolidated Mining and Smelting Company of Canada.20 Most
notably, the tribunal held that “no State has the right to use or permit
the use of its territory in such a manner as to cause injury by fumes
in or to the territory of another or the properties or persons
therein.”21 This “no harm” principle demonstrates that international
15. Id. at 935; see also Whaling in the Antarctic (Austl. v. Japan; N.Z. intervening),
Judgment, 2014 I.C.J. Rep. 226 (Mar. 31) (finding Australia could institute proceedings against
Japan over its large-scale whaling program despite not being an injured state party).
16. Posner, supra note 12, at 1925-26.
17. Cinnamon Carlarne, Delinking International Environmental Law & Climate Change, 4
MICH. J. ENV’T. & ADMIN. L. 1, 1 (2014).
18. See id. at 41-42.
19. MARTE JERVAN, THE PROHIBITION OF TRANSBOUNDARY ENVIRONMENTAL HARM: AN
ANALYSIS OF THE CONTRIBUTION OF THE INTERNATIONAL COURT OF JUSTICE TO THE DEVELOPMENT OF
THE NO-HARM RULE 21 (PluriCourts ed., 2014).
20. Trail Smelter Case (U.S./Can.), 3 R.I.A.A. 1905, 1965 (1941), as reprinted in 35 AJIL
684, 716 (1941).
21. Id.
environmental law did not originally focus on environmental

protection but rather on the protection of sovereign interests,
property, and corresponding financial compensation for harm. 22 The
framework articulated in the Trail Smelter case also established a
bilateral approach to transboundary environmental issues in
international law, where only states that are victims of the
transboundary harm, not private parties, can bring the polluting state
to account.23
By the 1950s, the international community began developing a
legal framework to address oceanic oil pollution. In subsequent
decades, this was followed by stricter scrutiny of the regional
consequences of water and air pollution, as well as the destruction of
flora and fauna.24 Various international treaties concerning climate
change eventually followed, beginning with the Montreal Protocol in
1987.25 Though intended to tackle ozone depletion, not climate
change, the Montreal Protocol became a model for future climate
change diplomacy and was eventually ratified by every country in the
world.26 The 1992 United Nations Framework Convention on Climate
Change (UNFCCC), ratified by 197 countries, later became the first
global treaty to explicitly address climate change. 27 The annual
Conference of the Parties (COP) it established would later produce
the Kyoto Protocol in 2005 and the Paris Agreement in 2015.
The Kyoto Protocol, which was signed but not ratified by the
United States, was the first legally binding treaty on climate change.
It required developed countries to reduce emissions by at least five
percent below 1990 levels and established a system to monitor
countries’ progress.28 The Paris Agreement requires all countries to
22. Jutta Brunnée, Book Review, 102 AM. J. INT’L L. 395, 395 (2008) (reviewing REBECCA M.
BRATSPIES & RUSSELL A. MILLER, TRANSBOUNDARY HARM IN INTERNATIONAL LAW: LESSONS FROM THE TRAIL
SMELTER ARBITRATION (2006)).
23. Id. at 396 (2008).
24. PHILIPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 4 (2d ed. 2003); see
also James Paley, 35 Vintage Photos Taken by the EPA Reveal what American Cities Looked Like
Before Pollution was Regulated. BUS. INSIDER (Aug. 14, 2019, 9:55 AM),
https://www.businessinsider.com/what-us-cities-looked-like-before-epa-regulated-
pollution-2019-8 (documenting pervasive water and air pollution in U.S. cities before the
federal government began regulating in the 1970s).
25. See Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987,
26 I.L.M. 1541 (entered into force Jan. 1, 1989).
26. Lindsay Maizland, Global Climate Agreements: Successes and Failures, COUNCIL ON
FOREIGN RELATIONS (updated Nov. 17, 2021, 2:30 PM), https://www.cfr.org/
backgrounder/paris-global-climate-change-agreements.
27. Id.; see United Nations Framework Convention on Climate Change (UNFCCC), May 9,
1992, S. Treaty Doc No. 102-38, 1771 U.N.T.S. 107.
28. See Kyoto Protocol to the United Nations Framework Convention on Climate Change,
set emission-reduction pledges, with the goal of preventing the global

average temperature from rising two degrees Celsius above pre-
industrial levels.29 In addition to encouraging global net-zero carbon
emissions, the Agreement aims to keep global temperature rise to
below two degrees Celsius—and preferably below 1.5 degrees
Celsius—compared to pre-industrial levels.30 Scientists predict that
even this half-degree margin would create additional risks of severe
weather events, biodiversity loss, and threats to public health, food
security, and livelihoods.31 The Paris Agreement has, however, been
criticized by climate advocates, who argue that its “bottom-up
approach” is too weak to compel national policy change and will not
achieve its temperature goals.32 In particular, critics argue that, by
allowing each party to prepare its own nationally determined
contribution, the Agreement enables states to set contributions that
do not go far enough in ensuring that the world avoids disastrous
consequences for human rights, which will likely occur even at levels
below two degrees Celsius.33 At the time of signing, most climate
advocates, as well as the parties themselves, recognized that states’
initial reduction pledges under the agreement were not sufficient to
limit climate change to below the two degrees Celsius limit, and
would likely only limit temperature increase to 2.7 degrees Celsius. 34
Others argue that, as a legally binding instrument, the Paris
Agreement has the potential to spark greater compliance with
emission reduction goals. Although the Agreement includes non-
binding elements, it applies to both developed and developing
Dec. 10, 1997, 2303 U.N.T.S. 162.

29. Melissa Denchak, Paris Climate Agreement: Everything You Need to Know, NAT. RES.
DEF. COUNCIL (Feb. 19, 2021), https://www.nrdc.org/stories/paris-climate-agreement-
everything-you-need-know.
30. See Paris Agreement to the United Nations Framework Convention on Climate
Change art. 2, Dec. 12, 2015, T.I.A.S. No. 16-1104.
31. IPCC, supra note 3, at 7-9.
32. Yann Robiou du Pont & Malte Meinshausen, Warming Assessment of the Bottom-Up
Paris Agreement Emissions Pledges, NATURE COMMUNICATIONS 1, 2 (2018),
https://doi.org/10.1038/s41467-018-07223-9.
33. John H. Knox, The Paris Agreement as a Human Rights Treaty, in HUMAN RIGHTS AND
21ST CENTURY CHALLENGES: POVERTY, CONFLICT, AND THE ENVIRONMENT 1, 341 (Dapo Akande et
al. eds., 2018). Adverse climate impacts related to warming of even two degrees Celsius above
pre-industrial levels, which is likely given the current trajectory of state goals, would
adversely impact the rights to life, health, food, and water as a result of climate-related
disasters, displacement, and resource scarcity. Joint Statement by UN Special Procedures on
the Occasion of World Environment Day: Climate Change and Human Rights, U.N. HUMAN RIGHTS
OFF. OF THE HIGH COMM’R (June 5, 2015), https://www.ohchr.org/EN/NewsEvents/
Pages/DisplayNews.aspx?NewsID=16049&LangID=E.
34. Daniel Bodansky, The Paris Climate Change Agreement: A New Hope?, 110 AM. J. INT’L L. 288,
290 (2016).
countries; furthermore, it requires states to periodically review their

collective progress, institutionalizing a long-term iterative structure
to achieve its targets.35
These mechanisms, however, do not fully address the issue of
states not actually implementing the commitments they have already
taken on under the Paris Agreement. This is where some litigants
have found that international human rights law might be useful. The
international human rights legal framework, discussed in Part I.B
below, sets binding standards in the context of human rights
violations, potentially including those caused by climate change. By
contrast, some plaintiff’s attorneys view international environmental
law, as codified in instruments like the Paris Agreement and Kyoto
Protocol, as a voluntary “carrot rather than stick approach,” which,
while valid in the diplomatic system, will not achieve the necessary
reductions in carbon emissions to minimize disastrous
consequences.36 Deeper cuts in carbon emissions, these advocates
contend, can thus be better accomplished via binding international
human rights treaties guaranteeing rights currently at risk due to
climate change.
International environmental law has thus evolved from Trail
Smelter’s “no harm” principle to international cooperation via
multilateral agreements such as the Paris Agreement. Advocates have
now begun to turn to an existing body of law, international human
rights law, to prompt more aggressive state action on climate change.
While these strategies of international environmental law continue
to play important roles in ensuring state carbon reduction,
sometimes even aiding human rights litigants in their arguments, 37
the human rights strategy has proven unique in allowing individual
and non-state litigants to bring climate claims.
B. International Human Rights

Over the past decade, human rights treaties have been invoked in
an increasing number of climate cases, creating what some scholars
have called a “rights turn” in climate litigation.38 The shift to rights-
35. Id.
36. Telephone Interview with Scott Gilmore, Of Counsel, Hausfeld (Mar. 4, 2021).
37. In Urgenda, the Court repeatedly stated that, for the Netherlands to meet its
obligations under the Paris Agreement to keep temperatures under two degrees Celsius, the
country would need to institute more stringent emissions controls. Urgenda,
C/09/456689/HA ZA 13-1396.
38. Jacqueline Peel & Hari M. Osofsky, A Rights Turn in Climate Change Litigation?, 7
TRANSNAT’L ENV’T LAW 37 (2018).
based claims can partly be explained by the greater capacity of

human rights law to hold states to binding obligations as compared
to international environmental law. Along with customary
international law, a series of both United Nations treaties and
regional human rights instruments adopted since 1945 have
strengthened the legal framework of international human rights.39
Generally, these treaties and instruments require states to assume
obligations and duties under international law to “respect, protect,
and fulfill human rights,” often requiring governments to put in place
domestic measures to facilitate their treaty obligations.40 When these
governments fail to fulfill their treaty obligations, international
human rights instruments help ensure human rights standards are
enforced, offering mechanisms for filing individual complaints at the
regional or international level.41
Most international human rights bodies require petitioners to
establish that the body has jurisdiction over their complaint.42 The
petitioner does not need to be a national or resident of the defendant
state.43 They must, however, make a prima facie case that their
human rights were or are being violated as a result of activities over
which the defendant state had control.44 This presents an advantage
for climate litigation, where complainants can likely establish that a
state’s emission activity is the cause or one of the causes of their
climate-related injury.
Despite this advantage, the transboundary nature of climate
change and climate-related harms also creates difficulties for
litigating these harms through international human rights
frameworks. Climate litigators face two major challenges in bringing
human rights claims: first, identifying the damages for which a state
is individually responsible, and second, proving that holding a single
government accountable will provide some redress for the harms
experienced by petitioners. 45 Compared to international
environmental law, where state liability for transboundary harm is
39. International Human Rights Law, U.N. HUM. RTS. OFF. OF THE HIGH COMM’R
https://www.ohchr.org/en/professionalinterest/pages/internationallaw.aspx (last visited
Apr. 1, 2021).
40. Id.
41. Id.
42. Margaretha Wewerinke-Singh, Remedies for Human Rights Violations Caused by
Climate Change, 9 CLIMATE L. 224, 232 (2019).
43. Id.
44. Id.
45. Meguro, supra note 8, at 940.
well established,46 there is a general presumption in international

human rights law that state obligations do not apply
extraterritorially.47 For example, the European Court of Human
Rights (ECtHR) has found that, under the European Convention on
Human Rights, its jurisdiction is primarily territorial. Exceptions to
this rule apply in only a handful of circumstances,48 such as military
action or occupation that causes a state to exercise effective control
over an area or persons.49
However, promising recent developments in international human
rights courts indicate a willingness to widen states’ extraterritorial
human rights obligations. In Andreou v. Turkey, the ECtHR found
Turkey had jurisdiction over the shooting of Greek-Cypriot civilians
and two British U.N. Peacekeeping Force in Cyprus (UNFICYP)
soldiers by Turkish forces inside the U.N. buffer zone in Cyprus, which
the Turkish government argued was outside of its territory and
control despite the presence of its troops.50 Both the International
Court of Justice (ICJ)51 and UN treaty-monitoring bodies 52 have
recently reached similar decisions. A 2019 joint statement by five
human rights treaty bodies also confirmed that state parties have
obligations, including extraterritorial obligations, to respect, protect,
and fulfill the human rights of all peoples. Failure to take measures to
46. See Trail Smelter, supra note 20, at 1905.

47. See Maarten den Heijer & Rick Lawson, Extraterritorial Human Rights and the
Concept of ‘Jurisdiction’, in GLOBAL JUSTICE, STATE DUTIES: THE EXTRATERRITORIAL SCOPE OF
ECONOMIC, SOCIAL, AND CULTURAL RIGHTS IN INTERNATIONAL LAW 153, 190 (Malcolm Langford et
al. eds., 2012).
48. Ben El Mahi v. Denmark, 2006-XV Eur. Ct. H.R. 365.
49. Id.; see, e.g., Assanidze v. Georgia, 2004-II Eur. Ct. H.R. 221; Ilaşcu v. Moldova, 2004-
VII Eur. Ct. H.R. 179.
50. Andreou v. Turkey, App. No. 45653/99, 2009 Eur. Ct. H.R. (2009) (finding the
actions of Turkish officials were the direct and immediate cause of the applicant’s territories,
thus giving the court jurisdiction over the case). This case indicated there can be state
responsibility for extraterritorial harm, even where that state possesses no effective control.
51. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 2004 I.C.J. 136 at 191-92 (July 9) (finding that Israel, as an
occupying power, had human rights obligations toward individuals in the occupied Palestine
territories under the Convention on the Rights of the Child and the International Covenant on
Civil and Political Rights).
52. Hum. Rts. Comm., Concluding Observations of the Human Rights Committee: Israel,
UN Doc. CCPR/CO/78/ISR, at 11 (2003) (noting that “the provisions of the Covenant apply to
the benefit of the population of the Occupied Territories, for all conduct by its authorities or
agents in those territories that affect the enjoyment of rights enshrined in the Covenant and
fall within the ambit of state responsibility of Israel under the principles of public
international law”); see also Comm. on Econ., Soc., and Cultural Rts., Concluding Observations
on Israel, U.N. Doc. E/C.12/1/Add.90, at 15 (2003) (expressing concern about Israel’s position
that the Covenant does not apply to areas not subject to its sovereign territory and
jurisdiction).
prevent foreseeable human rights harms caused by climate change,

these treaty bodies concluded, could constitute a violation of a state’s
human rights obligations.53
In addition to establishing jurisdiction, petitioners must also
show that the harms they have suffered due to climate change
constitute a breach of a state’s human rights obligations. Many
regional human rights treaties explicitly include a right to a healthy
environment or related rights in their articles. For example, in the
Inter-American system, the 1999 Protocol of San Salvador contains
provisions explicitly recognizing a universal right to a healthy
environment.54 The American Democratic Charter, adopted by the
Organization of American States (OAS) General Assembly in 2001 by
all thirty-five member states, also explicitly mentions environmental
protections.55 The African Charter on Human & Peoples’ Rights
(Banjul Charter), which came into force in 1981, guarantees a right to
a “general satisfactory environment favorable to their
development”56 and free disposal of wealth and natural resources,57
which could be read to be more or less protective of the environment
than other instruments. Though it does not create any regional court,
the Arab Charter on Human Rights (ACHR) also cites a right to control
over wealth and natural resources. 58
Of the nine core international human rights instruments created
under the United Nations,59 only the Convention on the Rights of the
Child (CRC) specifically protects against disease, malnutrition, and
negative health impacts due to the risks of environmental pollution.60
53. Statement on Human Rights and Climate Change, U.N. Doc. HRI/2019/1 (including
the Committee on the Elimination of Discrimination Against Women, the Committee on
Economic, Social and Cultural Rights, the Committee on the Protection of the Rights of All
Migrant Workers and Members of Their Families, the Committee on the Rights of the Child,
and the Committee on the Rights of Persons with Disabilities).
54. Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights “Protocol of San Salvador,” art. 11, opened for signature
Nov. 17, 1988, O.A.S.T.S. No. 69, (entered into force Nov. 16, 1999).
55. Inter-American Democratic Charter, Preamble, Sept. 11, 2001, O.A.S. Doc.
OEA/SerP/AG/Res.l.
56. The African (Banjul) Charter on Human & Peoples’ Rights art. 24, opened for
signature June 27, 1981, 21 I.L.M. 59 (entered into force Oct. 21, 1986).
57. Id. at art. 21.
58. League of Arab States, Arab Charter on Human Rights art. 2, opened for signature
May 22, 2004, reprinted in 12 Int’l Hum. Rts. Rep. 893 (2005) (entered into force Mar. 15,
2008).
59. The Core International Human Rights Instruments and Their Monitoring Bodies, U.N.
HUM. RTS. OFF. OF THE HIGH COMM’R, https://www.ohchr.org/en/professionalinterest/
pages/coreinstruments.aspx (last visited Apr. 2, 2021).
60. See Convention on the Rights of the Child art. 24, opened for signature Nov. 20, 1989
Though universal treaties like the International Covenant on Civil and

Political Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR) do not explicitly mention a right
to a healthy environment, a 2009 Office of the High Commissioner for
Human Rights report emphasized that all UN human rights treaty
bodies recognize an intrinsic link between the environment and the
realization of individual rights to life, health, food, water and
adequate housing, a collective right to self-determination, and
procedural rights concerning access to information and participating
in decision-making regarding environmental risks.61 UN Special
Rapporteurs and independent experts have also been mandated by
the UN Human Rights Council (HRC) to address these themes, which
were discussed at the fifteenth COP in Copenhagen in December 2009
and the sixteenth COP in 2010.62 In 2012, John Knox was granted a
mandate as an Independent Expert by HRC, which was later renewed
as a special rapporteur mandate on human rights and the
environment in 2015.63 In his role as special rapporteur, Knox
created a mapping report containing all the statements by human
rights bodies and other important sources on human rights
obligations relating to the enjoyment of a safe, clean, and healthy
environment,64 substantiating that these rights are recognized in
international human rights law.
This recognition, in addition to a greater emphasis in the climate
change regime on adaptation, has brought the international
environmental law regime into closer alignment with international
human rights, as demonstrated by lobbying efforts leading up to the
UNFCCC negotiations in 2015 to mention human rights in the Paris
Agreement.65 Though the draft text including language on human
rights ultimately did not make into the final document, this language
was included in the preamble, stating:
(entered into force Sept. 2, 1990).

61. U.N. Human Rights Off. of the High Comm’r, Report on the Relationship between
Climate Change and Human Rights, ¶ 18, U.N. Doc. A/H.R.C./10/61 (Jan. 15, 2009); see also
Peel & Osofsky, supra note 38, at 43.
62. Knox, supra note 33, at 326.
63. Id. at 326-27.
64. John H. Knox, Report of the Independent Expert on the Issue of Human Rights
Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment,
U.N. Doc. A/H.R.C./25/53 (Dec. 30, 2013).
65. Peel & Osofsky, supra note 38, at 45; Human Rights Must Be Part of any Climate
Change Agreement in Paris, U.N. HUM. RTS. OFF. OF THE HIGH COMM’R,
http://www.ohchr.or//ewsEvent/age/OP21.aspx (last visited Apr. 2, 2021); see also Knox,
supra note 33, at 329-30.
Parties should, when taking action to address climate change,

respect, promote and consider their respective obligations on
human rights, the right to health, the rights of indigenous peoples,
local communities, migrants, children, persons with disabilities and
people in vulnerable situations and the right to development, as
well as gender equality, empowerment of women, and
intergenerational equity.66
Because every party to the UNFCCC belongs to at least one human

rights treaty, this language makes clear that states have human rights
obligations relevant to climate change.67
If a petitioner is able to demonstrate that a state party failed to
meet these human rights obligations, that petitioner must also show
their claims can be redressed. Petitioners can often invoke the law of
state responsibility when seeking redress in international human
rights bodies. Under this principle, a state that violates its obligations
must “so far as possible wipe out all the consequences of the illegal
act and reestablish the situation which would have existed had that
act not been committed.”68 This establishes that states must do more
than pay damages or discontinue activities to redress human rights
violations, but must take affirmative action to prevent a violation of
obligations in the future.69 This is supported by the International Law
Commission’s Articles on State Responsibility for Internationally
Wrongful Acts, which declares that a state that violates international
obligations must continue to perform its original obligations and
cease the wrongful conduct, and the HRC, which recognizes both a
duty of cessation and obligation to prevent the recurrence of a
violation.70
Similarly, the Articles on State Responsibility recognize a distinct
obligation under human rights law to “make full reparation” for an
injury caused by a wrongful act. 71 As demonstrated in the Velasquez-
Rodriquez case in the Inter-American Court of Human Rights
(IACtHR), restitution is also the primary remedy for violations of
international human rights law and involves the restoration of the
prior situation, reparation of the consequences of the violation, and
66. U.N. Framework Convention on Climate Change, Adoption of the Paris Agreement,
U.N. Doc. FCCC/CP/2015/L.9/Rev.1, pmbl., T.I.A.S. No. 16-1104 (Dec. 12, 2015).
67. Knox, supra note 33, at 8-9.
68. Factory at Chorzów (Germ. v. Pol.), 1928 P.C.I.J. (ser. A) No. 17, at 47 (Sept. 13).
69. G.A. Res. 56/83, annex, Responsibility of States for Internationally Wrongful Acts,
art. 30(b) (Dec. 12, 2001) [hereinafter ARSIWA]
70. Wewerinke-Singh, supra note 44, at 235.
71. ARSIWA, supra note 69, at art. 31(1).
indemnification for patrimonial and non-patrimonial damages,

including emotional harm.72 This approach has also been endorsed in
the jurisprudence of the ECtHR and the African Commission on
Human and Peoples’ Rights (ACHPR)73, demonstrating the
willingness of many regional and international bodies to grant some
reparation or compensation to victims of human rights violations. In
addition to these forms of redress, “satisfaction” or acknowledgment
of the breach, expression of regret, and sometimes fact-finding and
full public disclosure of truth is another form of redressing a violation
of international human rights law.74 Because “[m]ost states belong to
human rights treaties, and many of the obligations embodied in these
treaties have become norms of customary international law,” the
international human rights framework “give[s] individuals (as
opposed to foreign governments) claims against states” implicated in
alleged rights violations, which can be an effective way of holding
states accountable.75
However, there are also many limitations to the international
human rights regime. Beyond the fact that human rights treaty-body
decisions are generally non-binding, there are limitations to the
mandates of some regional human rights bodies as far as remedies
are concerned.76 The IACtHR is considered to have the most
comprehensive mandate, as it provides that, upon establishing a
violation, the Court should rule that the injured party should be
ensured the enjoyment of his right or freedom that was violated and,
if appropriate, that the consequences of the breach be remedied and
fair compensation be paid.77 The African Court on Human and
Peoples’ Rights (AfCHPR) also has a broad mandate to make
appropriate orders to remedy the violation.78 The ECtHR is more
limited in that Article 41 of the European Convention on Human
Rights (ECHR) provides that, “if the internal law of the High
Contracting Party allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured

73. Id.
74. ARSIWA, supra note 69, at art 37(1).
75. Posner, supra note 12, at 1927.
76. See Wewerinke-Singh, supra note 44, at 230-32.
77. See Organization of American States (OAS), American Convention on Human Rights,
“Pact of San José, Costa Rica” art. 63, Nov. 22, 1969, 1144 U.N.T.S. 144, 159; Wewerinke-Singh,
supra note 44, at 230.
78. See Protocol to the African Charter on Human and Peoples’ Rights on the
Establishment of the African Court on Human and Peoples’ Rights, art. 27, adopted June 10,
1998.
party.”79 The variation in the scope of these mandates will have

bearing on the potential a rights-based climate claim brought in
regional and international human rights courts.
III. CURRENT CASES ARE EXPLORING HOW TO APPLY THE EXISTING

INTERNATIONAL HUMAN RIGHTS FRAMEWORK TO CLIMATE CHANGE
While the human rights approach to climate change litigation is
not entirely new, success in this arena is a more recent phenomenon.
“The Inuk Petition,” a petition filed by members of the Inuit with the
Inter-American Commission on Human Rights (IACHR) in 2005, is
widely considered the first such attempt at this approach in an
international human rights body.80 In the petition, the petitioners
explained how climate change was interfering with and would
continue to affect Inuit human rights relating to culture, identity,
property, and economy because of increasing temperatures and
resulting melting of snow and sea ice. 81 It laid out how, as the largest
greenhouse gas emitter at the time, the United States had failed to
make real efforts to reduce emissions and was thus responsible for
climate-related rights violations in the Arctic. Ultimately, the
Commission declined to accept the petition, stating that there was not
enough information to determine if the facts provided constituted a
violation of protected human rights.82 Despite this result, many
consider the petition to have raised awareness and publicity of the
impacts of climate change on the Arctic and the potential
effectiveness of human rights framed tribunals as appropriate venues
for addressing the “cross-cutting” issues inherent in climate change.83
79. Council of Europe, European Convention on Human Rights art. 41, opened for
signature Nov. 4, 1950, C.E.T.S. No. 005 [hereinafter ECHR].
80. Knox, supra note 33, at 2; see also Peel & Osofsky, supra note 38, at 46.
81. 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,
Inter-Am. Comm’n H.R., ¶ 1 (Dec. 7, 2005), http://climatecasechart.com/climate-change-
litigation/wp-content/uploads/sites/16/non-us-case-documents/2005/20051208_na_
petition-1.pdf.
82. Letter from the Inter-American Commission on Human Rights Declining to Process
Inuk Petition (Nov. 2006), http://climatecasechart.com/climate-change-litigation/wp-
content/uploads/sites/16/non-us-case-documents/2006/20061116_na_decision-1.pdf.
83. Hari M. Osofsky, The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change and
Indigenous Peoples’ Rights, 31, AM. INDIAN L. REV., 675, 696 n.82 (2007) (citing a 2006 Westlaw search
revealing twenty-five news articles in the preceding year that contained the words “Inuit” and “Inter-
American”). The former UN Special Rapporteur on human rights and the environment also stated
that “the Inuit petition was the first harbinger of a sea-change in how the international community
thinks about climate change.” U.N. ENV’T PROGRAMME & COLUMBIA LAW SCHOOL, CLIMATE CHANGE AND
HUMAN RIGHTS, at vii (2015).
Researchers have found that, from 2015 to May 2020, litigants

brought thirty-six lawsuits against states and three lawsuits against
corporations for human rights violations related to climate change.84
These cases were filed in twenty-three national jurisdictions, two
regional, and two global judicial or quasi-judicial bodies, compared to
only five rights-based climate cases filed in the world prior to 2015.85
These cases argued that, to comply with human rights obligations,
states are required to reduce greenhouse gas emissions with the
highest possible level of effort, given the state’s available resources
and that they are informed by the notion of ‘common but
differentiated responsibilities.’86
This uptick in rights-based cases is exemplified by the initial
decision in the Urgenda v. State of the Netherlands case in 2015, the
first case to establish a national government’s legal duty to prevent
the dangerous effects of climate change.87 Since then, the Supreme
Court of the Netherlands has released a final judgement in 2019
upholding the decisions of the District Court and the Hague Court of
Appeal that the state had a duty, under Articles 2 and 8 of the ECHR,
to take climate mitigation measures.88 Using rights assured under the
ECHR, the court was able to push the government toward more
effective implementation of its international commitments. On this
basis, the court found that the Netherlands must ensure Dutch
emissions of greenhouse gases in 2020 are at least 25% lower than
the level of emissions in 1990, based on the general duty of care
under Dutch law and the scientific consensus that, to keep the global
average temperature below two degrees Celsius, developed countries
must lower their emissions 25-20% from 1990 levels.89 The Dutch
Supreme Court also made clear that, even without finding rights in
84. Setzer & Byrnes, supra note 9, at 14.

85. Id.; see also César Rodríguez-Garavito, Human Rights: The Global South’s Route to
Climate Litigation, 114 AM. J. INT’L L. UNBOUND 40, 4044 (2020).
86. See, e.g., Rb. Den Haag [RBDHA] [District Court of The Hague] 24 juni 2015,
ECLI:NL:RBDHA:2015:7145 (Stichting Urgenda/De staat der Nederlanden (ministerie van
infrastructuur en milieu)) (Neth.), translated in RBDHA 24 juni 2015,
ECLI:NL:RBDHA:2015:7196 (Urgenda Found./The State of the Netherlands (Ministry of
Infrastructure and the Environment)) (Neth.); Communication to the Committee on the Rights
of the Child, Saachi v. Argentina, (Sept. 23, 2019) [hereinafter Saachi Communication]; see also
Setzer & Byrnes, supra note 9, at 15.
87. Urgenda, C/09/456689/HA ZA 13-1396; see also Setzer & Byrnes, supra note 9, at
16.
88. Hoge Raad der Nederlanden [HR] 20 December 2019, Nederlandse Juxisprudentie
[NJ] 2020, 19/00135 m.nt (Staat der Nederlanden/Stichting Urgenda).
89. Urgenda, No. C/09/456689 / HA ZA 13-1396 ¶ 4.86; see also Knox, supra note 33 at
25.
the ECHR or existing case law, the national court could still provide
an opinion on the precise scope of the state’s positive obligations.90
Basing its decision on rights assured under the ECHR, the court was
able to push the government toward more effective implementation
of its international commitments. Though a decision in a domestic
court, the fact that the decision was upheld based on the Netherlands’
obligations under an international human rights instrument signifies
a noteworthy success for these international rights-based claims.
Another domestic case, Ashgar Leghari v. Federation of Pakistan,
represents an important landmark for successful rights-based
climate cases. The Pakistani appellate court in that case considered a
claim from a Pakistani farmer that the government’s failure to
implement its national policy violated his right to a clean and healthy
environment and thereby his right to life.91 The court found not only
that these rights were violated, but also ordered government
agencies to take specific action and established a Climate Change
Commission.92
A 2017 Advisory Opinion requested by Colombia in the Inter-
American Court of Human Rights went even further than the Urgenda
and Leghari cases, which only addressed the obligations each state
had toward its own citizens. In the Advisory Opinion, the court
clarified environmental obligations under the American Convention,
declaring that states have the obligation to prevent causing
transboundary harm.93 A combination of the arguments used in
Urgenda and in the Advisory Opinion helped form the basis for the
communication submitted to the Committee on the Rights of the Child
in Saachi v. Argentina,94 which was recently declared inadmissible on
the grounds that the child-petitioners had failed to exhaust all
domestic remedies in the five respondent states.95
Cases continue to be brought in front of international human

91. Ashgar Leghari v. Federation of Pakistan, W.P. No. 25501/2015 (2015) (Pak.).
92. Id.
93. The Environment and Human Rights (State Obligations in Relation to the
Environment in the Context of the Protection and Guarantee of the Rights to Life and to
Personal Integrity: Interpretation and Scope of Articles 4(1) and 5(1) in Relation to Articles
1(1) and 2 of the American Convention on Human Rights), Advisory Opinion OC-23/18, Inter-
Am. Ct. H.R (ser. A), No. 23 (Nov. 15, 2017) http://blogs2.law.columbia.edu/climate-change-
litigation/wp-content/uploads/sites/16/non-us-case-documents/2017/20171115_OC-
2317_opinion-3.pdf.
94. Gilmore, supra note 36.
95. Saachi v. Argentina (CRC/C/88/D/104/2019), Decision, Comm. on the Rights of the
Child ¶¶ 10.15-10.21 (Nov. 11, 2021), https://documents-dds-ny.un.org/doc/
UNDOC/GEN/G21/322/87/PDF/G2132287.pdf?OpenElement.
rights bodies with varying success. In 2020, the U.N. Human Rights
Committee held in Teitiota v. New Zealand that it was not in a position
to conclude that Ioane Teitiota, who had filed for refugee status in
New Zealand, had his rights under Article 6 of the ICCPR violated
when he was deported back to Kiribati in September 2015, where he
and his family faced economic, health, and safety challenges as a
result of climate change and sea level rise.96 Even though the HRC
found Teitiota’s claim did not meet the high threshold of imminence
required to trigger non-refoulement obligations, the case is viewed
as significant and historic by the U.N. OHCHR and international
practitioners because the HRC acknowledged state obligations to
respect and ensure the right to life when it comes to the threats that
severe environmental degradation can pose to individuals. 97
Litigants will likely continue to bring climate cases in
international human rights fora to hold states accountable for
climate-related harm. Though no petition in a regional or
international human rights forum has yet seen success, it is important
to examine what aspects of international human rights law a
successful petition might rely on to determine if it could prove a
useful avenue for pursuing and apportioning state liability for climate
change claims. Like any other type of human rights claim, climate
change international human rights litigation requires establishing a
causal link between the state’s climate laws, policies, or practices and
a harm suffered by the complainant to make a prima facie case that
rights have been violated.98 Once this is demonstrated, there are a
number of ways that customary international law and international
human rights law could be applied to redress the injuries of victims
in international human rights fora.
The HRC’s duty of cessation, discussed above, could be used in the
climate context to obligate states to adopt and implement enforceable
96. Teitiota v. New Zealand (CCPR/C/127/D/2728/2016), U.N. Human Rights

Committee, Jan. 7, 2020.
97. See, e.g., Historic UN Human Rights Case Opens Door to Climate Change Asylum Claims,
U.N. HUMAN RIGHTS OFF. OF THE HIGH COMM’R (Jan. 21, 2020), https://www.ohchr.org/
EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25482; 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 (Jan. 28, 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/; Lauren Martin, The Significance of
Teitiota v New Zealand: McAdam Speaks at the British Institute of International and
Comparative Law, UNSW KALDOR CTR. FOR INT’L REFUGEE LAW (Mar. 30, 2021),
https://www.kaldorcentre.unsw.edu.au/news/significance-teitiota-v-new-zealand-
mcadam-speaks-british-institute-international-and.
legislation to protect human rights from future climate impacts.99

This might entail courts attempting to determine what levels of
emission reductions are required of states to fulfill their human rights
obligations. Courts that have been willing to do this, such as in
Urgenda, have based their determinations on the best available
scientific evidence, technical possibilities for precautionary
measures, and estimated costs and benefits.100 Determining
reparations for climate-related injuries is more difficult because of
the scientific uncertainty surrounding climate change and the
difficulty of apportioning responsibility for reparations between
states.101 Some petitions get around this issue by not asking for
reparations at all, therefore bypassing this apportionment
challenge.102
Another approach would be to allocate responsibility for
reparations according to the states’ respective contributions to
historical emissions.103 While compelling this restitution will likely
be a more difficult remedy, given the extreme nature of climate-
related harms and associated high financial cost, doing so will likely
be key to addressing climate change human rights violations, since
harms to culture and traditions cannot be remedied by compensation
alone.104 The Saachi petition to the Committee on the Rights of the
Child (CRC) recognized both that states would not be able to fully
compensate these types of violations and that, because of the global
nature of climate change, it could open up potentially limitless
liability for a state if framed as a compensation case. 105 On the other
hand, remedial or injunctive relief, such as the recommendations the
petitioners in Saachi asked the CRC to adopt,106 would provide a more
realistic legal remedy to prevent future imminent harms. It remains
to be seen whether this particular strategy will be successful.
99. Id. at 235.

100. Urgenda v. The Netherlands, C/09/456689/HA ZA 13-1396, (The Hague Court of
Appeal, Civil-law Division, Oct. 9, 2018), ¶¶ 4.63, 4.86.
101. Wewerinke-Singh, supra note 44, at 237-38.
102. Saachi Communication, supra note 86; see also Gilmore, supra note 36.
103. Wewerinke-Singh, supra note 44, at 237-38.
104. Id. at 239-241.
105. See Gilmore, supra note 36.
106. Saachi Communication ¶ 33, http://climatecasechart.com/climate-change-
litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190923_
Communication-No.-1042019-Argentina-Communication-No.-1052019-Brazil-
Communication-No.-1062019-France-Communication-No.-1072019-Germany-
Communication-No.-1082019-Turkey_petition.pdf.
IV. CAN THIS INTERNATIONAL HUMAN RIGHTS STRATEGY BE TRANSPLANTED TO

U.S. CLIMATE LITIGATION?
Most climate litigation worldwide occurs in the United States, by
a significant margin. From 1986 to May 2020, there were 1213
climate cases filed in the United States, with the second-most being
Australia at 98.107 Many of the notable climate litigation claims in
American courts have been based around statutory interpretation;
for example, in the landmark case Massachusetts v. EPA, the plaintiffs
brought claims alleging that the United States Environmental
Protection Agency (EPA) abused its discretion by refusing to regulate
GHG emissions pursuant to the Clean Air Act.108
A. Domestic Legal Barriers to the Rights Strategy

There are often higher barriers to bringing a case in domestic
court compared to international courts because of the difficulties of
establishing standing, causation, and attribution, as well as the
challenge of discerning environmental standards in abstract human
rights provisions.109 While regional human rights courts do have
admissibility criteria for petitioners, they have tended to be more
open to accepting climate cases than American federal courts.
Recently, in February 2021, the American Ninth Circuit Court of
Appeals affirmed a district court decision in Juliana v. United States
which found that, while the plaintiffs in that litigation met the
standards for injury and causation to establish standing, they failed
to show that their injuries could be redressed through actions by the
federal defendants, thus foreclosing the chance for a federal court to
hear the case on the merits.110 Litigation targeting the Unites States
government for failing to regulate greenhouse gas emissions can also
be less likely to succeed because of sovereign immunity.111
Domestic climate litigation in the United States may be a more
promising avenue than litigation in international tribunals, both
because of the limited power of international tribunals to enforce
judgments and the potential to use the Alien Tort Statute (ATS) to
address climate-related human rights abuses by domestic companies

108. Massachusetts v. E.P.A., 549 U.S. 497 (2007).
110. See Press Release, Our Children’s Trust, 9th Circuit Denies En Banc Review for
Juliana v. United States; Youth Plaintiffs will Take Their Case to Supreme Court (Feb. 10, 2021),
https://static1.squarespace.com/static/571d109b04426270152febe0/t/6024303
eba0e5b78c9b7a2fd/1612984382920/2021.02.10.Juliana+Press+Release.pdf.
111. Posner, supra note 12, at 1927.
in United States courts.112 In order to qualify as a tort, the plaintiff’s

injuries would need to be the result of global warming, or constitute
an injury to life, health, or property due to flooding, disease, or some
other phenomenon connected to global warming.113 ATS claims also
require a violation of international law, typically involving egregious
corporate misconduct that has an identifiable and strong
transnational dimension.114 As mentioned, though there are
references to the right to a healthy environment in many regional
treaties, there is consensus among scholars that these do not by
themselves create an international human right to a healthy
environment or an environment free of global warming or of
pollution.115 Thus, plaintiffs bringing climate claims under the ATS
are left to rely on rights to life and health, which some American
courts have previously said do not constitute international human
rights.116
Since many ATS claims involve human rights,117 plaintiffs may be
able to rely on human rights law as the underlying substantive law on
which to base an ATS suit.118 Though states are not currently required
under international human rights law to regulate the extraterritorial
activities of businesses domiciled in their territory, they may be
allowed to do so as long as there is some recognized jurisdictional
basis, which the ATS could provide for federal courts.119 Though there
are some recognized violations of international law that may give rise
to an ATS claim when state action is involved, such as arbitrary
detention, forced disappearance, or extrajudicial killing, it would
likely be difficult to prove state actions in suits against United States
corporations, unless the theory is that a state’s regulatory inaction is
seen as authorizing the relevant corporations to continue harmful
activity within United States territory.120 This is essentially the same
argument that was made in the 1941 Trail Smelter arbitration and has
112. Id. at 1928. It is worth noting that the Alien Tort Statute is limited and cannot be
used to bring claims against the U.S. government.
113. Id.
114. Myanna Dellinger, Post-Jesner Climate Change Lawsuits under the Alien Tort Statute,
44 COLUM. J. ENV’T L. 241, 243 (2019).
115. Posner, supra note 12, at 1930-31.
116. Id.
117. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013).
118. Dellinger, supra note 114, at 268.
119. Id. at 268-69; see also John Ruggie, Report on the Issue of Human Rights and
Transnational Corporations and Other Business Enterprises, at 7, U.N. Doc. A/HRC/17/31
(Mar. 21, 2001).
120. Dellinger, supra note 114, at 272-73.
since come to be known as the “no-harm principle.”121 Yet this

argument has not been tested in United States courts since, and
would likely require more judicial goodwill towards climate change
litigation than is presently available in order to be successful. 122
Although there are other avenues of addressing harmful climate-
related activity by governments or companies through litigation, they
are unlikely to succeed. One such avenue would be for plaintiffs to file
claims for damages framed as an issue of international law under 28
U.S.C. § 1331 federal question doctrine. In other contexts, the
Supreme Court has acknowledged that the law of the United States
incorporates international law.123 Assuming this is also true in the
human rights context, claimants could argue that a violation of
international law arguably falls within federal question jurisdiction
as “law or treaties of the United States.”124 The “near-closing” of the
ATS door for cases arising on foreign soil might lead some plaintiffs
for the first time to test this proposition in court.125 However, even if
plaintiffs can access federal courts under federal question
jurisdiction, neither the Law of Nations nor federal law authorizes
damage awards in a civil claim, meaning this may not be a fruitful
path for litigation.126 In addition, unless such a case presented a
substantial United States interest, it is unlikely that the current
Supreme Court would see this as a viable claim.127
Another option for plaintiffs would be to sue in state court for
international law violations—assuming that greenhouse gas
emissions are considered a violation of international law—since state
courts enjoy general jurisdiction. Although the Supreme Court would
not have the final say as to the extent to which federal common law
incorporates the law of nations in these cases, there is also reason to
believe that state courts will follow many federal courts in using the
political question doctrine to reject hearing climate cases on the
merits.128 Plaintiffs could instead sue in state court under rules of
foreign law addressing climate change and human rights, either if the
case is brought in contract or tort and foreign laws apply under the
121. Id. at 273.

122. Id.
123. Pierre N. Leval, Beyond Kiobel: The Future of Human Rights Litigation in US Courts,
19 UCLA J. INT’L L. & FOREIGN AFFS., 1, 14-15 (2015) (citing The Paquete Habana, 175 U.S. 677
(1900); and Brown v. United States, 12 U.S. 110 (1814)).
124. 28 U.S.C. § 1331.
125. Leval, supra note 123, at 16.
126. Id.
127. Dellinger, supra note 114, at 291.
128. Id. at 292.
state’s choice of law rules or if a state’s highest court rules that

customary international law has been incorporated into that state’s
common law.129 However, this hypothetical approach runs up against
the dominant view among courts and commentators that providing
human rights remedies is a foreign relations function reserved to the
federal government,130 making its success uncertain.
Lastly, plaintiffs may sue in federal court by claiming a violation
of their due process rights, which the plaintiffs in Juliana did. As
discussed in Part IV below, this approach is vulnerable under the
political question doctrine. In general, using international law creates
difficulties for suits aimed at state and not corporate liability because,
though there are many possible defendants that emit greenhouse
gases, international law creates obligations for states and not
corporations or individuals.131 As a result, even if a successful case
can be brought against a state, major private emitters, including
international emitters, may evade liability. This feature could enable
a defendant state to argue that the court cannot grant a remedy that
will redress the plaintiffs’ injuries. It also supports the argument that
these cases hinge on non-justiciable political questions about
whether states or private emitters should bear the cost of global
warming.132 Because states are usually protected by sovereign
immunity in Unites States courts, invoking international law is also
often not a viable option.
B. Lack of Treaty Obligations

The relative failure of the United States to accede to international
human rights treaty obligations as compared to other nations is one
reason for the difficulty in bringing rights-based climate claims
against the government in United States courts. For example, the
judgment in the Urgenda case was largely dependent on the
Netherlands’ regional human rights treaty obligations, as the court
found that the Dutch government had an obligation under the ECHR
to protect its citizens from the threat that climate change poses to
129. Leval, supra note 123, at 17 (citing Sosa v. Alvarez-Machain, 542 U.S. 694-95 692,
2744 (2004)) (referencing Sosa as an example of the Supreme Court incorporating the Law of
Nations into the federal common law and extrapolating that states could perhaps do the
same).
130. Seth Davis & Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L.
REV. 397, 398 (2018).
131. See Posner, supra note 12, at 1930-31.
132. See Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 876-77 (N.D.
Cal. 2009), aff’d, 696 F.3d 849 (9th Cir. 2012).
their right to life under Article 2,133 as well as their right to private
life, family, home and correspondence under Article 8. 134 The
Urgenda court responded to the Dutch government’s argument that
it was making legislation, in violation of its role under the Dutch
constitution, by reaffirming that its role was to apply the provisions
of treaties to which the Netherlands is a party. 135 Unlike the
Netherlands, the United States is not bound to any self-executing
human rights treaty that would obligate it to protect and ensure these
rights. It is important to note that the Dutch Supreme Court also made
clear that even without finding rights in the ECHR or existing case
law, the court could still provide an opinion on the precise scope of
the state’s positive obligations.136
This highlights another difficulty for this type of litigation in
United States courts: the fact that the United States Constitution has
been seen by the vast majority of judges and legal scholars as
providing only “negative rights, which require the government to
refrain from certain conduct, as opposed to positive rights, which
impose affirmative duties on the government to take actions or
expend resources to meet the needs of citizens.” 137 This negative
rights construction restricts the ability of American courts to
determine the scope of the government’s obligations toward the
public in the absence of a treaty provision.
By contrast, environmental rights are usually written as positive
rights in constitutions, making them incompatible with the focus on
negative rights in the United States.138 Therefore, though many state
constitutions establish positive environmental rights in their
constitutions, United States courts generally have not taken
constitutional guarantees of environmental rights seriously and have
instead viewed them as statements of public policy rather than
133. ECHR, supra note 77, at art. 2.

134. Id. at art. 8.
135. Rb. Den Haag [District Court of The Hague] 24 juni 2015,
ECLI:NL:RBDHA:2015:7145, ¶¶ 4.94-4.102 (Stichting Urgenda/De staat der Nederlanden
(ministerie van infrastructuur en milieu)) (Neth.), translated in RBDHA 24 juni 2015,
ECLI:NL:RBDHA:2015:7196 (Urgenda Found./The State of the Netherlands (Ministry of
Infrastructure and the Environment)) (Neth.);; see also Knox, supra note 33, at 345-46.
136. Knox, supra note 33, at 346; see also Setzer & Byrnes, supra note 9, at 16.
137. Michael J. Gerhardt, The Ripple Effects of Slaughter-House: A Critique of a Negative
Rights View of the Constitution, 43 VAND. L. REV. 409, 410 (1990); see also Jorge M. Farinacci-
Fernos, Looking Beyond the Negative-Positive Rights Distinction: Analyzing Constitutional
Rights According to Their Nature, Effect, and Reach, 41 HASTINGS INT’L & COMPAR. L. REV. 31, 31
(2018).
138. Joshua J. Bruckerhoff, Giving Nature Constitutional Protection: A Less
Anthropocentric Interpretation of Environmental Rights, 86 TEX. L. REV. 615, 626-27 (2008).
enforceable rights, or as “voicing aspirations rather than creating

substantive law.”139 Under this view, positive rights also usually
cannot be individually invoked and thus enforced. 140 One strategy to
bypass this issue could be to frame environmental rights as negative
rights that do not require further legislative action to enforce. 141
Thus, instead of requiring the government to provide a healthy
environment to citizens, these rights can be framed as barring the
government from acting in ways that foreseeably harm the
environment.142 Commentators have proposed an environmental
rights amendment to the United States constitution that does just
this.143 Others have advocated for framing existing state
environmental constitutional rights in a similar way,144 though
enforcement of such a right would still depend on courts interpreting
it as self-executing.
Rights-based claims in the United States have also recently begun
to rely on the public trust doctrine in addressing governmental action
with regard to climate change.145 While the public trust doctrine has
been historically incorporated into the common law to hold common
natural resources, such as waterways and lakes, in trust for the
benefit and use of citizens, claimants have recently argued in favor of
expanding the resources to be protected to include the
atmosphere.146 In this context, the public trust doctrine, though it
does not use the language of rights, establishes the public’s right to
access, use, and enjoy a clean and healthy atmosphere and a stable
environment.147 However, as seen in the Juliana case, this framing has
not yet overcome some of the issues anticipated due to a lack of
constitutional or treaty right to a healthy environment.
V. EXAMINING THE JULIANA CASE PROVIDES INSIGHT INTO THE CHALLENGES
139. Bryan P. Wilson, Comment, State Constitutional Environmental Rights and Judicial
Activism: Is the Big Sky Falling?, 53 EMORY L.J. 627, 628 (2004).
140. Bruckerhoff, supra note 138, at 626.
141. Id. at 627.
142. Id. at 626-27.
143. See, e.g., J.B. Ruhl, An Environmental Rights Amendment: Good Message, Bad Idea, 11
NAT. RES. & ENV’T 46, 46 (1997).
144. Bruckerhoff, supra note 138, at 636-37.
145. Brian J. Preston, The Evolving Role of Environmental Rights in Climate Change
Litigation, 2 CHINESE J. ENV’T L. 131, 135 (2018).
146. Id. at 135.
147. Id. at 135-36; see also Peel & Osofsky, supra note 38, at 55-58.
THAT DOMESTIC RIGHTS-BASED CLIMATE CLAIMS CURRENTLY FACE
Though preceded by other United States cases, such as Kanuk v.

State of Alaska,148 Sanders-Reed v. Martinez,149 and Chernaik v.
Brown150 (all of which failed to reach the merits), Juliana v. United
States is considered a breakthrough public trust case. The plaintiffs
in the case claimed that the United States government’s inaction in
regulating carbon dioxide emissions resulted in climate change-
related harm to them.151 The district court went “further than any
other court ever has in declaring a fundamental obligation of
government to prevent dangerous climate change”152 when it
declined to dismiss the action in 2016. It found that the public trust
doctrine could, contrary to the government’s assertions, provide
some substantive due process protections for the plaintiffs’ claims.153
The district court ultimately held that the public trust doctrine
applied to the federal government.154 The most recent Ninth Circuit
panel opinion from January 17, 2020, also acknowledged that the
record compiled by the plaintiff:
[left] little basis for denying that climate change is occurring at an

increasingly rapid pace[,] . . . that [the] unprecedented rise [in
carbon levels] stems from fossil fuel combustion and will wreak
havoc on the Earth’s climate if unchecked[,] . . . [and] that the federal
government has long understood the risks of fossil fuel use and
increasing carbon dioxide emissions.155
The court also found the record sufficient to establish that the
government’s contribution to climate change was caused not only by
inaction, but also by the government’s promotion of fossil fuel use
through beneficial tax provisions, permits for imports and exports,
and subsidies, among other policies.156
148. Kanuk v. State, No. A-5681, 1996 WL 33686440 (Alaska Ct. App. Mar. 13, 1996).
149. Sanders-Reed ex rel. Sanders-Reed v. Martinez, 350 P.3d 1221 (N.M. Ct. App. 2015).
150. Chernaik v. Brown, 475 P.3d 68 (Or. 2020).
151. Preston, supra note 145, at 138.
152. Eric Holthaus, The Kids Suing the Government Over Climate Change Are Our Best
Hope Now, SLATE (Nov. 14, 2016 1:56 PM), https://slate.com/technology/2016/11/the-kids-
lawsuit-over-climate-change-is-our-best-hope-now.html (quoting Michael Gerrard, Director
of the Sabin Center for Climate Change Law at Columbia Law School).
153. Preston, supra note 145, at 138.
154. Juliana v. United States, 217 F. Supp. 3d 1224, 1256 (D. Or. 2016), rev’d and
remanded, 947 F.3d 1159 (9th Cir. 2020).
155. Juliana v. United States, 947 F.3d 1159, 1166 (9th Cir. 2020).
156. Id. at 1167.
Yet ultimately, the Ninth Circuit found that the plaintiffs in Juliana
did not have standing to bring the suit. It held that, while the district
court correctly found the injuries suffered by the plaintiffs were
concrete and particularized,157 and the causal chain between the
plaintiffs’ injuries and U.S.-based carbon emissions from fossil fuel
production, extraction, and transportation was sufficiently
established,158 the plaintiffs’ injuries were not redressable.159 It is
nevertheless significant that even a “generalized grievance” like
climate change can still meet the injury requirement, regardless of
how many persons are injured, if the plaintiff’s injuries are concrete
and cognizable.160 The fact that plaintiffs bringing similar suits must
meet all three requirements in order to get to a judgment on the
merits raises the question of what was missing in this case—and in
American climate rights-based litigation in general—that prevented
plaintiffs from establishing standing.
In the Juliana case, the court primarily took issue with the
plaintiffs’ requested remedy of an injunction requiring the
government both to cease permitting, authorizing, and subsidizing
fossil fuel use, and also prepare a plan to decrease harmful emissions
that would be subject to judicial approval.161 Because reducing the
global consequences of climate change would require more than the
government ceasing to promote fossil fuels, but rather a
“fundamental transformation of this country’s energy system,” the
court found that the requested injunction was not sufficiently likely
to redress the plaintiffs’ injuries, as required under the first prong of
the Article III redressability test.162
The court also found that the second prong was not met, because
ordering, designing, supervising, or implementing the suggested plan
to decrease fossil emissions would require complex policy decisions
entrusted to the executive and legislative branches rather than to the
court.163 Therefore, the plaintiffs’ claims were deemed nonjusticiable
and remanded to the district court for dismissal. 164 The dissent
argued that the immense magnitude of the threat from climate
change and its irreversible harms meant that “the perpetuity of the
157. Id. at 1168 (finding that a plaintiff’s claim of being forced from her home due to
water scarcity constituted a concrete injury).
158. Id. at 1169.
159. Id. at 1170-71.
160. Id. at 1168 (citing Massachusetts v. EPA, 549 U.S. 497, 517 (2007)).
161. See id. at 1170.
162. See id. at 1170-71.
163. See id. at 1172.
164. See id. at 1174-75.
Republic” was at stake in this claim.165 Judge Staton thus contended,

because the continued vitality of the Republic is a “guardian of all
other rights” in American constitutional structure, plaintiffs
justifiably invoked the Fifth and Fourteenth Amendment Due Process
Clauses, which has been held to safeguard certain fundamental
interests such as this one.166 Thus, the dissent argued, this perpetuity
principle does not require courts to determine the optimal level of
environmental regulation or other complex policy matters, but
instead simply “prohibited . . . the willful dissolution of the
Republic.”167 In other words, climate change is such an immense issue
that it threatens the future of our government. And this threat means
that courts have the duty under the perpetuity principle to act to
prevent this dissolution, not by attempting to write policy for climate
change writ large, but by requiring the government to take some
action to reduce emissions to put it on a path to constitutional
compliance.
The plaintiffs in Juliana filed to amend their complaint in March
2021 after the Ninth Circuit upheld its decision to dismiss the case in
February 2021.168 The amended complaint narrowed the remedy
sought to include only a declaratory judgement that the nation’s fossil
fuel-based energy system is unconstitutional, omitting the specific
injunctive relief sought in the original complaint.169
Although the Juliana case does not directly resemble the rights-
based claims being advanced in international human rights bodies, or
the domestic cases that have invoked international human rights
obligations, there is one principle of international law that can be
useful in strategizing how to frame similar claims moving forward. In
the Juliana case, neither the original complaint nor the newly
proposed second amended complaint makes use of the precautionary
principle, which has been put forward as a way to address the “proof
problem” inherent in climate lawsuits.170
The precautionary principle is an environmental standard171 that
165. See id. at 1177-78 (Staton, J., dissenting).

166. See id.
167. Id. at 1179.
168. Plaintiffs’ Motion for Leave to Amend and File Second Amended Complaint for
Declaratory and Injunctive Relief; Motion to Lift the Stay Pursuant to Fed. R. Civ. P. 15,
Juliana v. United States, No. 15-cv-01517-AA (D. Or. filed Mar. 9, 2021).
169. Id.
170. Lydia Akinyi Omuko, Applying the Precautionary Principle to Address the “Proof
Problem” in Climate Change Litigation, 21 TILBURG L. REV. 52, 64-66 (2016).
171. It is also considered by some to be a principle of customary international law. See
Jonathan Remy Nash, Standing and the Precautionary Principle, 108 COLUM. L. REV. 494, 499
requires decision makers to take measures to prevent a polluting

substance from causing harm, even when there is no conclusive
scientific proof linking the particular activity to the harm or when
there is scientific uncertainty about the level of harm it would cause
(and therefore how much a reduction in emissions would reduce
harm).172 The precept is also a key element of environmental law for
many countries in the European Union, although it is not an explicit
aspect of United States environmental legal principles. 173
Though the Ninth Circuit did not take issue with the causation
prong of the plaintiffs’ standing, in examining the first element of
redressability, it did express concern that the plaintiffs’ experts
admitted uncertainty about whether the proposed injunction would
do anything significant to “reduc[e] the global consequences of
climate change.”174 Thus, because plaintiffs were not asserting a
procedural right and did not have sovereign status, showing that the
requested relief might to some extent ameliorate injuries was not
enough.175 Utilizing the precautionary principle to frame how the
court should think about redressability might have been useful here,
especially because it is featured prominently in international and
domestic legal instruments such as the Rio Declaration on
Environment and Development, the UNFCCC guiding principles, and
the Lisbon Treaty.176
In public lawsuits like Juliana, the success of a case usually
depends on proving causation and linking impacts to GHG emissions
from a specific activity that needs to be regulated.177 Some courts take
a flexible approach, like in Massachusetts v. EPA, where a majority of
the Supreme Court found that there was an adequate link between
GHG emissions from the United States transportation sector and
injuries to Massachusetts caused by rising sea levels and coastal
erosion.178 The Juliana Court took a similarly liberal approach by not
requiring rigorous step-by-step proof of a causal link, but this
liberality did not extend to their examination of redressability.
Application of the precautionary principle is generally triggered
(2008) (citing Mark Geistfeld, Implementing the Precautionary Principle, 31 ENV’T L. REP.
11326, 11326 (2001)).
172. Omuko, supra note 170, at 62-63.
173. Jacqueline Peel, Issues in Climate Litigation, 5 CARBON & CLIMATE L. REV. 15, 20
(2011).
174. Juliana v. United States, 947 F.3d 1159, 1170-71 (9th Cir. 2020).
175. See id. at 1171.
176. Omuko, supra note 170, at 62.
177. See id. at 56.
178. Id. at 59.
by: (1) threat of serious or irreversible damage; (2) scientific

uncertainty linking activity to damage; and (3) proportionality.179
Had the court approached the issue of redressability while taking
each of these elements into account, it is possible that the Juliana
majority decision would have resembled the reasoning of the dissent.
Judge Staton’s dissent first addresses the efficacy prong of
redressability by stating that “it is not measured by our ability to stop
climate change in its tracks and immediately undo the injuries that
plaintiffs suffer today…but to curb by some meaningful degree what
[is] otherwise [an] inevitable march to the point of no return.” Thus,
Judge Staton seems to be incorporating the precautionary principle,
without using that language, into her analysis of the efficacy of the
requested relief, saying that a perceptible (even if small) reduction in
the advance in climate change would be enough. 180
The precautionary principle allows courts to consider the
increased likelihood of the impacts of climate change, despite
scientific uncertainty as to the specific impacts of climate change in a
particular area.181 While the majority in Juliana did not seem to doubt
that there was some risk of future harm or existing injuries to the
plaintiffs due to climate change, they grounded their grant of
dismissal on the uncertainty surrounding the effect of the remedies
the plaintiffs requested and whether they would redress their
injuries. The precautionary principle has previously been used in
other countries to lessen the level of certainty needed to take action
in the face of climate risk. In Australia, for example, the Victorian Civil
and Administrative Tribunal applied the precautionary principle to
the impact of sea level rise on coastal environments when it was
evident there will be some increased risk of harm, even if the
magnitude of that consequence could not be ascertained by current
technology.182
Without using the explicit language of the precautionary
principle, the Supreme Court has used flexible approaches to
standing and particularly redressability in the past that evoke the
principle. In Friends of the Earth, Inc. v. Laidlaw Environmental
Services, the Court held that for the injury requirement, a person’s
reasonable concerns about the defendant’s pollutant discharges were
sufficient to establish standing, and for redressability, that those
179. Id. at 63.

180. See Juliana v. United States, 947 F.3d 1159, 1182 (9th Cir. 2020) (Staton, J.
dissenting).
181. See Peel, supra note 173, at 21.
182. Id.
injuries could be redressed by civil penalties that would deter

ongoing and future violations of law even though these penalties
would not be paid to the plaintiffs.183 Though this decision was
outside of the climate context and therefore did not deal with the
same causal complexities, it could be read to suggest that deterrence
and prevention constitute sufficient redress for injuries that stem
from “reasonable concern” or risk. Climate-related harm would
certainly seem to fit the bill here, given that the Juliana court
acknowledged that the plaintiffs suffered injury-in-fact and that new
government policies or penalties would similarly deter future
emissions. However, the fact that polluting activity in Laidlaw was
illegal also seemed to be an important point for the majority,184
making it unclear whether this lower burden for redressability could
be applied in the climate context where there are fewer
comprehensive laws regulating CO2 emissions in the United States.
In Massachusetts v. EPA, the Court also said it retained jurisdiction
to decide “whether the EPA ha[d] a duty to take steps to slow or
reduce [global warming]” and that the fact that developing countries
were poised to increase emissions was not dispositive because a
“reduction in domestic emissions would slow the pace of global
emissions increases, no matter what happens elsewhere.” 185 This
again suggests that the Supreme Court is willing to take a
precautionary approach to redressing climate harms despite causal
uncertainty. However, it is important to note that this seminal
decision on standing rested on firmer ground than Juliana in that the
EPA had statutory authority under the Clean Air Act (according to the
court) to regulate greenhouse gases, but merely refrained from doing
so. Regardless, the reasoning still suggests that courts should not shy
away from climate cases on the grounds that any remedies might not
completely remedy the effects of climate change. This interpretation
was echoed in Connecticut v. American Electric Power Co., in which the
Second Circuit found that the plaintiffs—eight states, a city, and three
land trusts—had redressable claims in a public nuisance suit against
power companies operating fossil-fuel-fired plants for their
contribution to global warming, demonstrating that the same
183. Friends of the Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167, 184-88 (2000)
(“It can scarcely be doubted that, for a plaintiff who is injured or faces the threat of future
injury due to illegal conduct ongoing at the time of suit, a sanction that effectively abates that
conduct and prevents its recurrence provides a form of redress. Civil penalties can fit that
description.”).
184. See id. at 185-186 (emphasizing the importance of a sanction that deters “illegal
conduct” and encourages defendants to discontinue current and future “violations”).
185. Massachusetts v. EPA, 549 U.S. 497, 499-500 (2007).
reasoning, as of now, can also be applied to suits against private

companies.186
There is also evidence that United States courts have applied the
precautionary principle by deferring to agency policy judgments that
encourage regulators to err on the side of caution when
implementing policy and that allow them to relax evidentiary
requirements for protective policy goals.187 Historically, the
precautionary principle was first used in worker health and safety
law, in cases like Industrial Union Department, AFL-CIO v. Hodgson.
Here, the court deferred to agency discretion to promulgate more
stringent asbestos standards even where there was “insufficient
data” because the agency rested its decision on a policy judgment
“concerning the relative risks of under-protection as opposed to
overprotection.”188 The Second Circuit in Society of Plastics Industry v.
Occupational Safety and Health Administration later reiterated a duty
for the secretary of OSHA to “act to protect the workingman, and to
act where existing methodology or research is deficient,” implying a
mandatory precautionary approach in this area of regulation.189
Later, in interpreting standard-setting for criteria pollutants
under the Clean Air Act, the Court in Lead Industries Association v.
EPA, the DC Circuit agreed with the EPA that Congress had directed
the administrator to err on the side of caution in making the
necessary decisions under the statute.190 Though the DC Circuit later
departed from this precautionary approach in reviewing agency
decisions regulating hazardous air pollutants in Natural Resources
Defense Council v. EPA, courts have clearly been willing to use a
precautionary approach when there is a risk to human health and
safety in the past. It remains to be seen whether the rationale
underlying these cases involving specific government agencies and
their discretion over agency decisions would extend to a suit against
the federal government as in Juliana. However, this historical
186. Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 348 (2d Cir. 2009), rev’d on other
grounds, 564 U.S. 410 (2011). The Second Circuit’s exercise of jurisdiction was affirmed by an
equally divided court. Am. Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410, 420 (2011).
187. Nicholas A. Ashford, The Legacy of the Precautionary Principle in US Law: The Rise
of Cost-Benefit Analysis and Risk Assessment as Undermining Factors in Health, Safety and
Environmental Protection, in IMPLEMENTING THE PRECAUTIONARY PRINCIPLE: APPROACHES FROM
THE NORDIC COUNTRIES, EU AND USA 352, 354-55 (Nicolas de Sadeleer ed., 2007).
188. Id. at 362 (citing Indus. Union Dep’t, AFL-CIO v. Hodgson, 499 F.2d 467, 474-75
(D.C. Cir. 1974)) (interpreting the D.C. Court of Appeals decision as a “permissive use of the
precautionary principle”).
189. Id. at 362 (citing Soc’y of Plastics Indus., Inc. v. Occupational Safety & Health
Admin., 509 F.2d 1301, 1308 (2d Cir. 1975)).
190. Lead Indus. Ass’n, Inc. v. EPA, 647 F.2d 1130, 1153 (D.C. Cir. 1980).
application of the precautionary principle does show that courts, at

least in some circumstances, feel comfortable with this approach
whether determining standing or reviewing agency decisions.
Critics have argued that the precautionary principle is too vague
and arbitrary to ensure rational decision-making as compared to
other economics-based approaches, such as cost-benefit analyses.191
Scholars also disagree on the scope of the principle and its meaning,
including how it manages the tradeoffs between the risks associated
with regulating an activity and the risks associated with non-
regulation.192 Application of the precautionary principle to standing
and redressability could address these concerns by being limited to
contexts in which the harm at issue is “catastrophic” or “irreversible,”
as is usually the case with climate harms.193 Because the principle
would be applied specifically to the standing analysis, there is less of
a need for the court to grapple with the risks of implementing the
remedies requested and balancing costs and benefits. Instead, they
can focus on whether the proposed remedies might redress these
harms, given the uncertainty surrounding the injury and the risk of
inaction.
Some scholars have suggested that future plaintiffs, post-Juliana,
could identify more specific and easy-to-administer remedies to be
implemented by the executive branch to successfully plead
redressability.194 These could include implementing stricter vehicle
mileage standards, ending fossil fuel leasing on public lands, or
ceasing government approvals for new pipeline projects, relying on
the discretion of both the president and agencies like the Department
of Transportation to set such standards or review such
applications.195 Though these more limited remedies could cause a
court to emphasize causation in its review, asking whether the
emissions associated with a specific government policy are a “major
causal factor in the plaintiffs’ injuries,196 this might be another
opportunity to apply the precautionary principle to shift the causal
burden off the plaintiffs. Despite the uncertainty associated with the
particular effect of government policy on actual emissions, under the
191. Ashford, supra note 187, at 366.

192. See Nash, supra note 171, at 501-503.
193. See id. at 496.
194. Matt Lifson, Camila Bustos & Natasha Brunstein, Redressability of Climate Change
Injuries After Juliana, LEGAL PLANET (June 12, 2020), https://legal-planet.org/
2020/06/12/guest-contributors-matt-lifson-camila-bustos-and-natasha-brunstein-
redressability-of-climate-change-injuries-after-juliana/.
195. Id.
196. Id.
precautionary principle, some scientific causal relationship between

the two could be enough to establish that these limited remedies
redress the plaintiffs’ injuries.
These principles also overflow into Staton’s analysis of the second
prong of redressability: the power of the court to act in this sphere.
The majority suggests that judicial review is not appropriate because
of the complex policy considerations and decades-long supervision
the proposed plan would require. Scholars have interpreted this as
being the court’s true basis for failing to find the plaintiffs’ claims
redressable, noting that much of the majority’s suggestion that the
claims could not be redressable unless the court’s remedy “solve[ed]
global climate change” was dictum.197
Staton responds in her dissent that the court is constitutionally
empowered to undertake these tasks precisely because it is the role
of the court to curb acts of other branches that contravene
fundamental tenets of American life, such as a “right to be free from
irreversible and catastrophic climate change.”198 In other words, as
the precautionary principle suggests, judicial intervention here may
still be legitimate even if the supporting evidence is incomplete or the
costs of regulation are high, particularly when there are reasonable
grounds for concern.199 This suggests that not only is climate change
a justiciable political question, but that a lack of judicial standards or
scientific uncertainty should not stop the court from acting on
difficult policy questions precisely because of the seriousness of the
threat of damage. Thus, Staton’s analysis of the power of the court to
act also incorporates some of the considerations that would trigger
application of the precautionary principle, suggesting if this principle
were used and accepted by the court, the analysis of standing might
look different.
VI. REASONS ADVOCATES HAVE NOT BEEN ABLE TO TRANSPLANT THE

INTERNATIONAL HUMAN RIGHTS STRATEGY TO U.S. LITIGATION
Even if American plaintiffs begin to incorporate aspects of
international law, like the precautionary principle, in their claims, it
is unclear how successful domestic cases like Saachi or international
judgements, like the 2017 Inter-American Commission Advisory
197. Id.
198. Juliana v. United States, 947 F.3d 1159, 1182 (9th Cir. 2020) (Staton, J., dissenting).
199. Cf. EUROPEAN COMMISSION, THE PRECAUTIONARY PRINCIPLE: DECISION-MAKING UNDER
UNCERTAINTY 4 (Sept. 2017) (explaining the precautionary approach under EU regulatory
law).
Opinion, can inform American climate litigation. The difficulty the

Juliana plaintiffs had even getting to the merits of the case
demonstrates this. One difference is simply a lack of legislation in the
United States pertaining directly to climate change. Though there is
not necessarily a direct correlation between the amount and
comprehensiveness of legislation in a jurisdiction and litigation
brought, researchers have found that more than half of the 1,200
climate-related lawsuits identified by the Sabin Center have been
brought under only four categories of legislation: the National
Environmental Policy Act (NEPA), the Clean Air Act (CAA), state
environmental impact assessment laws, and wildfire protection
statutes.200 Though the United States ratified the UNFCCC in 1992 and
mandated greenhouse gas reporting under the CAA and other
appropriations acts, the other main pieces of legislation passed or
proposed in the United States regarding climate change have been tax
credits, carbon pricing, and energy legislation that includes research
and development for clean energy technologies, tax incentives and
phasing down the production and consumption of
hydrofluorocarbons.201 None of these pieces of legislation provide a
cause of action for citizens injured by climate-related events caused
by these emissions. In the past decade, over twenty bills have been
proposed in Congress to create a federal market-based carbon
emissions cap, and none have been signed into law.202
Unlike countries that have a progressive legal or policy
framework on climate change, 203 such as Peru, which can provide
grounds for litigation to fill enforcement gaps, the lack of such a
framework in the United States might both encourage litigants to
bring more cases in an effort to push more ambitious policies, 204 as
demonstrated by the high incidence of cases brought in American
courts, which can make it more difficult to actually succeed on these
claims. Based on recent data, the United States and the Netherlands
have the same range of 11-20 laws on climate change.205 Though

201. Congress Climate History, CTR. FOR CLIMATE AND ENERGY SOLUTIONS,
https://www.c2es.org/content/congress-climate-history/ (last visited Apr. 3, 2021).
202. PETRA BARTOSIEWICZ & M ARISSA MILEY, THE TOO-POLITE REVOLUTION: UNDERSTANDING
THE FAILURE TO PASS U.S. CLIMATE LEGISLATION, 4 (2014).
203. Framework Law No. 30754 on Climate Change, GRANTHAM RSCH. INST. ON CLIMATE
CHANGE AND THE ENV’T, https://climate-laws.org/geographies/peru/laws/framework-law-no-
30754-on-climate-change (creating a national commission that can propose adaptation and
mitigation measures).
205. Id. at 10.
number or comprehensiveness of laws is not determinative of

success in climate litigation claims, the fact that United States courts
have been markedly less willing than Dutch courts to make
judgments about the appropriate level of emissions regulation may
be the result of the ability of plaintiffs in the latter system to rely on
binding human rights treaty obligations. Outside of the United States,
judges appear to be more inclined to support climate action,
particularly in the Global South where human rights norms have been
especially important for climate litigation.206
Another issue is that, unlike the Netherlands, the United States
government has not fully adopted any regional human rights treaty
as federal law. Between 1988 and 1994, the United States signed and
ratified the Convention on the Prevention and Punishment of the
Crime of Genocide, the ICCPR, the International Convention on the
Elimination of All Forms of Racial Discrimination (CERD) and the
Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT).207 This is unusually low compared
to other Western nations such as the United Kingdom, France,
Germany, or Canada, which have either ratified or acceded to the
above treaties in addition to the other three foundational
international human rights treaties—the ICESCR, the Convention on
the Elimination of All Forms of Discrimination Against Women
(CEDAW), and the CRC—and other regional human rights
instruments and optional protocols.208
These treaties often provide greater protection for individual
rights than is available under United States constitutional or
statutory law.209 However, when the United States ratified the ICCPR,
CAT, and CERD, it included a declaration stating that the substantive
articles of the treaty are not self-executing, meaning Congress would
need to enact additional legislation before those rights could be
judicially enforceable.210 This also means private litigants could not
invoke the treaty provisions. Though some have justified these non-
self-executing declarations as a way of assuring that changes in
United States law will reflect the democratic process through
legislation, this practice has also been criticized by some as against
206. See id. at 14.

207. Penny M. Venetis, Making Human Rights Treaty Law Actionable in the United States:
The Case for Universal Implementing Legislation, 63 ALA. L. REV. 97, 100 (2011).
208. See id. at 101.
209. David Sloss, The Domestication of International Human Rights: Non-Self-Executing
Declarations and Human Rights Treaties, 24 YALE J. INT’L L. 129, 131 (1999).
210. Id. at 130-31.
the spirit of Article VI of the Constitution and original intent, which

provides expressly for lawmaking by treaty.211 This can be especially
problematic given that, of the treaties it has ratified, the United States
has only enacted implementing legislation for the Genocide
Convention and some, but not all, of the implementing legislation
necessary to enforce the CAT.212 The committees overseeing the
ICCPR, CAT, and CERD have also expressed concerns that the United
States has rejected some of these treaty norms. 213 Though the United
States was influential in shaping the UN Charter and the Universal
Declaration, it has signed but not ratified the American Convention
on Human Rights creating the IACHR and IACtHR.214
The United Nations has also not yet provided global,
intergovernmental recognition of the right to a healthy and
sustainable environment, though it is clear that the right exists at
regional and national levels, further cementing the importance of
regional human rights instruments.215 Therefore, although the
universal recognition of a right to a healthy environment under any
of these instruments is still not a foregone conclusion, the inability
for plaintiffs to fall back on international human rights obligations as
a framework under which to bring rights claims might explain why
these types of claims have not been as successful thus far.
VII. CONCLUSION
As suits claiming harm due to climate change continue to be filed
domestically and internationally,216 there is an emerging
211. Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator
Bricker, 89 AM. J. INT’L L. 341, 346 (1995).
212. Michelle S. Friedman, The Uneasy U.S. Relationship with Human Rights Treaties: The
Constitutional Treaty System and Nonself-Execution Declarations, 17 FLA. J. INT’L L. 187, 232,
235 (2005).
213. Doug Cassel, The United States and Human Rights Treaties: Can We Meet Our
Commitments?, AM. BAR ASS’N, (Apr. 1, 2015), https://www.americanbar.org/
groups/crsj/publications/human_rights_magazine_home/2015—vol—41-/vol—41—no—
2—-human-rights-at-home/the-united-states-and-human-rights-treaties—can-we-meet-
our-com/.
214. Joseph Diab, United States Ratification of the American Convention on Human
Rights, 2 DUKE J. COMPAR. & INT’L L. 323, 323-24 (1992).
215. Dellinger, supra note 114, at 271; see also John Knox, Report of the Special
Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean,
Healthy and Sustainable Environment, ¶ 16, UN Doc. A/HRC37/59, July 19, 2018.
216. In September 2020, six petitioners from Portugal who had experienced extreme
heat and wildfires submitted a historic complaint to the ECtHR against thirty-three European
countries, and in November 2020, the Court ordered the defendant countries to respond to
the claims in the petition. See Ciara Nugent, Does Climate Change Violate Children’s Human
Rights? A European Court May Soon Decide, TIME (Nov. 30, 2020, 1:57 PM),
convergence of international human rights and international

environmental law. The inclusion of human rights principles in the
Paris Agreement is one illustration of this convergence, as newer
instruments emerge in environmental law while international human
rights instruments remain relatively stagnant. The global nature of
climate change and difficulty of attributing impacts make
international litigation attractive, while domestic courts have the
power to force national governments to adhere to their emission
commitments. At the same time, debates continue around the
inclusion of environmental rights in human rights discourse and
whether environmental rights should be formalized in the
international human rights scheme. International success in rights-
based climate claims is likely to have an impact on American
litigation. While differences in the force and efficacy of international
human rights treaties and constitutional limits mean that successful
rights-based claims in the United States will look different from those
in international fora or foreign courts, these cases still inform how
United States climate litigation can continue to push forward.
One such point of influence might be an increased prevalence of
plaintiffs advocating for the court to take a precautionary approach
to standing requirements. Although the most recent Juliana ruling
might have come out the same under the precautionary approach,
had the court “erred on the side of caution” in examining
redressability in the case, the plaintiffs’ requested remedy of an
injunction might have redressed their injuries despite its inability to
solve global climate change. While the Juliana plaintiffs have filed a
motion to amend their complaint and remove the remedies the Ninth
Circuit took issue with, future plaintiffs making rights-based claims
may be able to look to how European courts and even some United
States courts, albeit informally, have applied the precautionary
principle to past environmental suits.
https://time.com/5916362/climate-change-human-rights-portugal/. In March 2021, the

ECtHR accepted a complaint filed by the Senior Women for Climate Protection Switzerland
and Greenpeace Switzerland in an effort to force Switzerland to take effective climate
measures to protect rights to life and health. See Press Release, Senior Women for Climate
Protection Switzerland (KlimaSeniorinnen) & Greenpeace Switzerland, European Court of
Human Rights Greenlights Swiss Seniors’ Climate Case (Mar. 3, 2021),
https://klimaseniorinnen.ch/wp-content/uploads/2021/03/European-Court-of-Human-
Rights-greenlights-Swiss-seniors-climate-case.pdf. These petitions, among many others,
show the continuing importance of climate litigation’s reliance on the international human
rights framework.

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Climate Change Litigation and Rights-Based

Strategies: Why International Human

I. INTRODUCTION .................................................................................................... 196

*J.D., Stanford Law School, 2023.

follow through on their commitments to make the deep emissions

8. Maiko Meguro, Litigating Climate Change Through International Law: Obligations

international human rights fora.15 In addition to harnessing the

II. BODIES OF LAW RELEVANT TO THE RIGHTS-BASED APPROACH TO CLIMATE

environmental law did not originally focus on environmental

set emission-reduction pledges, with the goal of preventing the global

Dec. 10, 1997, 2303 U.N.T.S. 162.

countries; furthermore, it requires states to periodically review their

B. International Human Rights

based claims can partly be explained by the greater capacity of

well established,46 there is a general presumption in international

46. See Trail Smelter, supra note 20, at 1905.

prevent foreseeable human rights harms caused by climate change,

Though universal treaties like the International Covenant on Civil and

(entered into force Sept. 2, 1990).

Parties should, when taking action to address climate change,

Because every party to the UNFCCC belongs to at least one human

indemnification for patrimonial and non-patrimonial damages,

72. Wewerinke-Singh, supra note 44, at 239.

party.”79 The variation in the scope of these mandates will have

III. CURRENT CASES ARE EXPLORING HOW TO APPLY THE EXISTING

Researchers have found that, from 2015 to May 2020, litigants

84. Setzer & Byrnes, supra note 9, at 14.

90. Setzer & Byrnes, supra note 9, at 16.

96. Teitiota v. New Zealand (CCPR/C/127/D/2728/2016), U.N. Human Rights

legislation to protect human rights from future climate impacts.99

99. Id. at 235.

IV. CAN THIS INTERNATIONAL HUMAN RIGHTS STRATEGY BE TRANSPLANTED TO

A. Domestic Legal Barriers to the Rights Strategy

107. Setzer & Byrnes, supra note 9, at 6.

in United States courts.112 In order to qualify as a tort, the plaintiff’s

since come to be known as the “no-harm principle.”121 Yet this

121. Id. at 273.

state’s choice of law rules or if a state’s highest court rules that

B. Lack of Treaty Obligations

133. ECHR, supra note 77, at art. 2.

enforceable rights, or as “voicing aspirations rather than creating

V. EXAMINING THE JULIANA CASE PROVIDES INSIGHT INTO THE CHALLENGES

THAT DOMESTIC RIGHTS-BASED CLIMATE CLAIMS CURRENTLY FACE

Though preceded by other United States cases, such as Kanuk v.

[left] little basis for denying that climate change is occurring at an

Republic” was at stake in this claim.165 Judge Staton thus contended,

165. See id. at 1177-78 (Staton, J., dissenting).

requires decision makers to take measures to prevent a polluting

by: (1) threat of serious or irreversible damage; (2) scientific

179. Id. at 63.

injuries could be redressed by civil penalties that would deter

reasoning, as of now, can also be applied to suits against private

application of the precautionary principle does show that courts, at

191. Ashford, supra note 187, at 366.

precautionary principle, some scientific causal relationship between

VI. REASONS ADVOCATES HAVE NOT BEEN ABLE TO TRANSPLANT THE

Opinion, can inform American climate litigation. The difficulty the

200. Setzer & Byrnes, supra note 9, at 9.