Rights-based litigation in the climate emergency: mapping the landscape and new knowledge frontiers

This article revisits and expands on extant scholarly inquiries into the so-called ‘ rights turn ’ in climate litigation, with the objective of providing a more comprehensive appreciation of the role of human rights litigation in the context of the climate emergency. We rely on well-established categories used in the literature on climate litigation and on human rights and the environment to provide the first systematic analysis of rights-based litigation that aligns with climate objectives. Building on this basis, we consider the significant data and knowledge gaps concerning human rights litigation that does not align with climate objectives. We flag the need to better understand the role of rights-based litigation in the context of the complex societal changes associated with a just transition towards net zero emissions. The article contributes to scholarly inquiry into this new and increasingly prominent area at the intersection of human rights and environmental law, highlighting knowledge gaps that deserve further investigation, both from an academic and from a policy and practice perspective.


INTRODUCTION
Litigants around the world increasingly file lawsuits asking state and corporate actors to reduce greenhouse gas emissions and redress the harms associated with the impacts of climate change. 1 The literature commonly describes this 'climate litigation' as lawsuits raising questions of law or fact regarding climate science, mitigation or adaptation, which are brought before international or domestic judicial, quasi-judicial and other investigatory bodies. 2n recent years, more and more climate lawsuits have invoked human rights and/or have been brought before human rights bodies.At the end of May 2021, the world's most established climate litigation databasesthose compiled by the Sabin Centre for Climate Change Law at Columbia Law School and the Grantham Research Institute on Climate Change and the Environment at the London School of Economics 3 listed 112 (out of 1841) cases that relied in whole or in part on human rights (see Annex).These rights-based lawsuits typically seek to hold to account public authorities and private actors for not taking adequate climate action.Therefore rights-based climate lawsuits strive to fill the accountability and enforcement gaps left by international and national climate change law, which presently provide little to no means to sanction inadequate climate action by state and corporate actors. 4he use of rights-based litigation to target inadequate environmental laws and/or the inadequate enforcement of environmental laws is not new.Human rights have long been invoked to protect environmental interests and provide remedies where environmental law does not. 5This practice has been amply documented in the literature, 6 and has been thoroughly mapped by the UN Special Rapporteur on Human Rights and the Environment. 7As climate laws are adopted all over the world, it is therefore hardly a surprise that rights-based litigation has also started to target climate change concerns.
Scholars promptly noticed this new trend, describing it as a 'rights-turn' in climate litigation. 8The literature has however taken a largely piecemeal approach to the analysis of this litigation, focusing on the details of individual cases, rather than systematically mapping main trends and patterns in this burgeoning case law. 9There are, in other words, gaps in our knowledge of how rights-based litigation is used to pursue climate objectives, and how it compares with general trends in climate litigation, as well with general trends in rights-based litigation concerning other environmental interests.
There is furthermore a significant gap in our understanding of rights-based litigation that does not align with climate objectives, whereby human rights law and/or remedies are used to challenge measures and projects designed to deliver climate change adaptation and/or mitigation.This phenomenonwhich other scholars 10 and databases 11 have already identified, without analysing it systematicallyis also hardly surprising.While fossil-fuel-based economies have undoubtedly created winners and losers, changing the status quo entails striking new equilibria between competing societal interests. 12So, as measures to address the climate emergency are adopted and implemented all over the world, numerous groups will be negatively affected by these new laws and policiesfor example, restricting land uses or enabling the development of dams and windfarms.In this connection, the notion of a 'just transition' has been invoked to highlight that the benefits of decarbonization should be shared, and that those who stand to lose should be supported. 13In this article we define as 'just transition litigation' cases that rely in whole or in part on human rights to question the distribution of the benefits and burdens of the transition away from fossil fuels and towards net zero emissions.While we know that this litigation is happening, at present there are no comprehensive data collections of these cases.
This article therefore sets out to address two significant gaps in the literature.First, we provide a systematic scholarly analysis of rights-based litigation that aligns with climate objectives.In section 2, we analyse the 112 cases listed in the world's largest climate litigation databases on 31 May 2021 that rely in whole or in part on human rights (see Annex), with the aid of well-established categories developed by the literature on climate litigation.We consider who has brought these rights-based climate cases, against whom and where.The objective is to identify main trends in rightsbased climate cases, and to understand how they compare with climate litigation that does not rely on human rights.In section 3 we analyse the same 112 rightsbased climate cases, using standard categorizations deployed in the literature on human rights and the environment.The objective is to identify the human rights most invoked in rights-based climate cases, and to compare these with common trends in rights-based litigation concerning other environmental interests. 14econd, we rely on the limited evidence available to identify knowledge gaps concerning rights-based litigation that does not align with climate objectives.Specifically, section 4 relies on the analysis carried out in section 3 to identify knowns and unknowns about what we describe above as 'just transition litigation'.The objective is to understand rights-based opposition to action taken to address climate change and its consequences.The conclusion brings together the salient points resulting from these analyses and invites greater and deeper scholarly reflection over rights-based litigation, in order to develop a rights-based approach to climate decision-making. 15

MAIN TRENDS IN RIGHTS-BASED LITIGATION THAT PURSUES CLIMATE OBJECTIVES
When compared with general climate litigation, rights-based climate cases display a few peculiarities. 16irst, geographically, rights-based climate cases have been predominantly filed in Europe, followed by North America, Latin America, the Asia-Pacific and Africa.Roughly 13 per cent of rights-based complaints have been lodged before international and regional human rights bodies (Figure 1).This geographical distribution broadly aligns with the main trends detected in litigation involving environmental rights, which has been particularly prominent in Europe and Latin America. 17These regions are endowed with regional human rights bodies that have historically been sympathetic towards the use of human rights complaints to pursue environmental objectives. 18However, this geographical distribution significantly differs from trends observed in general climate litigation, where the vast majority of cases have been brought in the US, followed by Europe and the Asia Pacific, with a comparatively small number of cases filed in Africa, Latin America and before international bodies (Figure 2). 19econd, chronologically, rights-based climate litigation is a comparatively recent phenomenon.Human rights arguments started to feature more prominently in climate  litigation after the parties to the climate regime 20 and international organizations 21 explicitly recognized the links between climate change and human rights law.Rights-based climate lawsuits were lodged with increasing frequency after the adoption of the Paris Agreement in 2015 and over two-thirds of these have been filed since 2018 (Figure 3).Conversely, general climate litigation has steadily risen since 2005 (Figure 4).As we noted, this rise in rights-based litigation arguably is a result of efforts to bridge the accountability and enforcement gaps affecting climate change law, both at the international and the national level.Climate law is still in its infancy and, even where it exists, it typically does not provide for measures to hold public and private actors to account for failing to meet climate targets.Climate litigants therefore increasingly rely on various sources of law, including human rights law and remedies, in order to bridge these accountability and enforcement gaps.
In this section, we analyse rights-based climate cases, distinguishing between the type of defendant and applicant; the type of climate action under dispute; the role of climate change and human rights in litigation; and the outcomes of the litigation. 22

The type of applicant and defendant
The literature typically distinguishes climate lawsuits on the basis of the type of applicants (individuals and/or groups, corporations, governments, NGOs) and defendants (state, public authorities and corporations). 23n general climate litigation, the vast majority of cases have been brought against states and public authorities by corporations, followed by individuals, governments and NGOs, or both acting together. 24ights-based climate litigation only partially aligns with this general trend.The applicants in rights-based climate cases typically are individuals (48) and groups (51) or a combination of individuals and groups (4).Only very few cases have been brought by industry groups (3), 25 subnational governments (2) 26 or indigenous peoples' self-government bodies on behalf of their members (3). 27In one instance courts have considered human rights grievances proprio motu (1). 28This constellation of applicants in rights-based litigation is to be expected, given that individuals and groups are the main, if not the sole, rights-bearers under human rights law.It is therefore rather unusual for corporate actors to bring a complaint on the basis of human rights law.This stands in contrast with general climate litigation, which has frequently seen corporate actors initiating cases to challenge new climate law measures or the withdrawal of licences and permits.The defendants in rights-based climate cases typically are states and public authorities (93 out of 112 cases).This is also to be expected, as in human rights law states are the primary entities with duties.This ratio of cases is not too different from that observed in general climate litigation. 29In recent years, however, the growing recognition of corporate actors' human rights responsibilities at the international, 30 regional 31 and national 32 level has been associated with a rise in litigation concerning corporate human rights abuses. 33Relatedly, there is a small but rapidly rising number of rights-based climate cases specifically targeting corporations, asking domestic courts and non-judicial bodies to interpret corporate due diligence obligations in light of human rights law and of the temperature goal enshrined in the Paris Agreement.At the time of writing, 16 such cases have been recorded, with 12 cases filed by NGOs and four by individuals.Despite being relatively rare, these cases have attracted considerable attention, due to their groundbreaking nature and potentially revolutionary impacts. 34

The types of climate action: adaptation, mitigation and/or compensation
The literature typically distinguishes lawsuits on the basis of the type of climate action pursued, that is, whether the applicants complain about measures concerning climate change mitigation, adaptation or both.The vast majority of climate litigation concerns either mitigation or a combination of mitigation and adaptation.Only 180 cases concern adaptation alone. 36Although adaptation is commonly viewed as a responsibility of state authorities, 37 23 adaptation cases have been filed against corporations, with the aim of establishing corporate liability for past contributions to climate change. 38These include a series of cases brought by states and municipalities in the US, seeking billions of dollars in damages for climate change adaptation infrastructure, such as sea walls to protect coastal properties. 39ights-based litigation broadly reflects these trends: 83 of 112 concern mitigation, 9 concern adaptation and 20 both mitigation and adaptation.Rights-based cases dealing with adaptation argue that human rights law imposes obligations on states to act to address climate impacts, and/or to refrain from activities that cause climate change.Instead, we have identified only one rights-based climate case dealing with adaptation and brought against a corporation. 40ights-based complaints concerning climate mitigation typically argue that human rights law imposes on states/corporations the obligations to reduce greenhouse gas emissions and to adopt measures to fight climate change.In the famous case Urgenda Foundation v The State of the Netherlands, 41 for example, a group of individuals and NGOs relied in part on human rights law arguments to challenge the Dutch government's inadequate action on climate mitigation.Another 37 cases have since built on similar strategies, 42 which van Berkel et al. describe as 'systemic mitigation' litigation. 43t least in principle, litigants in rights-based cases can also seek compensation for harms associated with the impact of climate change.But while the use of human rights to seek redress for loss and damage has been the subject of much scholarly speculation, 44 36.Of these, 100 were filed in the US and 80 outside the US, the majority of which (61) were brought before the Australian courts, and many relate to the application of principles and standards relating to climate change adaptation in planning and environmental impact assessments.37. Emily Williams, 'Attributing Blame?-Climate Accountability and the Uneven Landscape of Impacts, Emissions, and Finances' (2020) 161 Climatic Change 273.38.Setzer  rights-based cases specifically seeking redress for the impacts of climate change are yet to materialize in a significant way. 45

The role of climate change and of human rights: central or peripheral
The literature typically categorizes climate litigation according to the role that climate concerns play in applicants' pleadings or in courts' judgments. 46Climate concerns are therefore 'central' whenever climate law or policy is at the core of the applicants' complaint.Climate concerns are considered 'peripheral' in litigation that only broadly deals with climate change policy and law, but largely focuses on other matters.Finally, the literature suggests that climate concerns are 'incidental' in cases that do not explicitly mention climate law or policy, but that nevertheless still have a clear impact on emissions.For example, climate change concerns are incidental in complaints concerning deforestation or the operation of coal power plants, which do not mention climate change explicitly.Climate litigation databases generally do not include cases where climate concerns are only incidental.
Analyses of global ligation trends reveal that climate concerns tend to be peripheral in most climate cases. 47This trend contrasts with rights-based climate litigation, where climate concerns are central in most (76 out of 112) and peripheral in fewer cases (36 out of 112).For example, climate change is central in Juliana v US, 48 whereby 21 young people alleged that the government's 'affirmative actions' causing climate change had violated their constitutional rights to life, liberty and property.Conversely, climate change is peripheral in PSB et al. v Brazil (on Amazon Fund), 49 whereby four political parties asked a Brazilian court to order the Ministry of the Environment to resume activities to protect the Amazon and avoid deforestation, which is the main source of greenhouse gas emissions in the country.
We used a similar approach to understand whether human rights concerns play a central or peripheral role in rights-based climate litigation.Human rights concerns are 'central' whenever human rights are at the core of the applicants' climate case.Human rights concerns are instead considered 'peripheral' in climate litigation that relies on human rights, alongside other sources of law.Applying these categories, we found that human rights played a central role in 75  applicants relied solely on human rights law to formulate their grievances.For example, in Sacchi et al. v Argentina et al. a group of children asked an international human rights bodythe UN Committee on the Rights of the Childto investigate multiple alleged human rights violations perpetrated by states as a result of the actual and projected impacts of climate change. 50Similarly, in the so-called Carbon Majors inquiry, a group of Filipino citizens and civil society organizations asked a national human rights bodythe Philippines Human Rights Commissionto consider alleged human rights violations associated with corporate greenhouse gas emissions. 51onversely, human rights played a peripheral role in 37 cases, where they were used to corroborate and support complaints largely based on administrative or private law obligations.In these cases, applicants typically argued that state or corporate actors' duties under administrative law or tort law must be interpreted in light of human rights obligations.Some of the most celebrated climate cases have relied on this approach.For example, in both Urgenda 52 and Milieudefensie et al. v Royal Dutch Shell plc, 53 the applicants invoked human rights duties enshrined in international and EU law to define the scope of state and corporate duty of care and due diligence obligations under national tort law.In both cases, human rights considerations were peripheral in the applicants' arguments, but turned out to be decisive to the outcome of litigation, as the courts largely relied on human rights law to justify their decisions. 54

The outcomes of litigation
The literature on climate litigation identifies different ways to categorize the outcomes of lawsuits.A narrow approach considers the 'direct outcome' of a case, looking at the final decision of the adjudicating body, vis-à-vis the requests of the applicants to determine whether that outcome advances or undermines climate action. 55 broader approach focuses on the 'overall impact' of the case, both inside and outside of, as well as before, during and after, the legal proceedings.Such impact might include (but is not limited to) changes to the behaviour of the parties, and/or to public opinion, as well as financial and reputational consequences for a variety of actors, and further litigation. 56n this article we follow the narrow approach and only consider the direct outcomes of climate litigation.As such, we consider cases to be 'successful' where the adjudicating body found in favour of climate action.We consider cases to be 'unsuccessful' where the judge ruled against climate action.Based on this definition, of 57 rights-based climate cases that have been decided to date, 25 were successful and 32 were unsuccessful (Figure 5).
Compared with overall trends in climate litigation outside the US, rights-based cases so far have been comparatively less successful than other climate litigation, where over half of the decided cases delivered outcomes that are supportive of climate change action (Figure 6). 57owever, not all 'wins' are due to successful human rights arguments.For example, in Friends of the Irish Environment v the Government of Ireland the Irish Supreme Court quashed the government's climate change plan because it was deemed to be inadequate vis-à-vis national climate law, not because it was inconsistent with the protection of human rights. 58Therefore, the success of climate cases cannot be unequivocally attributed to human rights arguments.Further research should explore in a more granular way the extent to which human rights determine the success of climate cases.

Main trendsanalysis and assessment
In 2018 Jacqueline Peel and Hari Osofsky identified a 'rights turn' in climate litigation. 59The turn they first detected has since significantly intensified.Our analysis of rights-based litigation that aligns with climate objectives has revealed that the vast majority of cases concern mitigation, target states, and are brought by citizens and NGOs.Rights-based cases targeting corporations are still relatively rare and are typically constrained by the limited development of human rights law concerning corporate actors.Ongoing international and regional law-making processes on corporate due diligence may soon change this state of affairs.
In the meantime, the picture of rights-based climate litigation is rapidly evolving, with most cases pending, but with a few important milestone victories.Many of these cases deal with fundamental questions and values and frequently have high visibility.Therefore, their wider impacts can already be felt, even if cases remain ongoing. 60here seems to be scope for rights-based climate litigation to continue expanding in the foreseeable future.With growing international consensus on the causes of climate change and increased evidence of its impacts, more litigation concerning climate change adaptation and climate-forced displacement seems likely.Lessons on how to use climate litigation most effectively and strategically are already being learned and shared. 61This knowledge will be precious, as more countries around the world adopt and implement dedicated climate legislation.Future climate litigation is likely to focus more and more on the enforcement of legislation, and on state or corporate failure to meet climate targets.

HUMAN RIGHTS STRATEGIES IN CLIMATE LITIGATION
The literature on human rights and the environment typically characterizes rightsbased litigation according to the types of rights invoked, which in turn require states to take different kinds of action.These distinctions entail a degree of arbitrariness associated with the fact that typically human rights complaints do not invoke only one human right, and/or a single type of obligation.Nevertheless, this approach to case law analysis is routinely applied by the literature, 62 63 and human rights bodies 64 when investigating how rights-based litigation is used in the pursuit of environmental interests.This literature also distinguishes between substantive and procedural obligations associated with the protection of environmental interests. 65n extreme synthesis, substantive obligationssuch as those associated with the right to life, adequate housing, food and the highest attainable standard of healthrequire preventative measures to avert human rights violations associated with environmental harm, as well as remedial measures to redress such violations, once they have occurred.Procedural obligations, instead, require access to remedies for human rights violations associated with environmental harms, which might include monetary compensation and injunctive relief.The right to take part in the conduct of public affairs also requires public participation in environmental decision-making, especially by those likely to be affected, as well as adequate access to environmental information. 66s noted above, so far the literature has made no systematic effort to ascertain what specific human rights are invoked and what strategies are deployed in rights-based climate litigation.This section bridges this gap, applying standard human rights categorizations to analyse the 112 rights-based climate cases included in the Annex.We analysed these cases examining applicants' pleadings and adjudicatory bodies' decisions, as well as decisions at the appeals stage, where available.We report below the result of our analysis, distinguishing between the defendants (state/corporate) and the types of human rights obligations (substantive/procedural) invoked.

State actors
According to the UN Special Rapporteur on Human Rights and the Environment (UNSR), states' substantive human rights obligations in relation to climate change may be divided into three main categories.First, states have positive duties to adopt adequate measures, including legislation, concerning climate change adaptation and/or mitigation.Second, states have positive duties to enforce legislation, and to provide redress to those suffering from the impacts of climate change.Third, states have negative duties to refrain from authorizing activities (such as, for example, oil concessions) and from themselves undertaking activities that contribute to human rights violations.States' procedural obligations require them to assess the impacts both of climate change and of measures to tackle climate change, and that they make such information public.They furthermore must provide access to remedies for climate-related human rights violations.Finally, states must facilitate public participation in decision-making over action to tackle climate change, especially by those likely to be affected.States must furthermore protect individuals and groups against abuse by third parties, including business enterprises, by taking steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication (Figure 7). 68n this section, we use these categories to analyse the way in which obligations have been invoked in rights-based litigation.

Substantive obligations
A total of 79 rights-based climate cases relied in whole or in part on states' substantive human rights obligations; 60 of these were filed since the adoption of the Paris Agreement in 2015.Most of these cases rely on states' positive duty to adopt adequate climate legislation, and on their negative duty to refrain from adopting measures and authorizing projects that have negative climate impacts.

Positive duty to adopt legislation
In 34 cases, climate applicants pursued a classic strategy in rights-based litigation: to demand that states take positive legislative/executive action to tackle environmental degradation that affects the enjoyment of human rights. 69In Urgenda, 70 for example, the applicants argued that substantive obligations associated with human rights enshrined in international lawnamely, the rights to life and to respect for family lifeimpose upon states a positive duty to adopt legislation and other measures to mitigate climate change.The Dutch courts heavily relied on these substantive obligations as formulated and interpreted under the European Convention of Human Rights to set the contours of the Dutch state's duty of care standards, finding that it had fallen short.As noted above, although human rights arguments were peripheral to the applicants' pleadings, they gained prominence in the court proceedings and ended up being decisive on appeal and before the Dutch Supreme Court. 71imilar strategies have been attempted in relation to adaptation.For example, in the Torres Strait Islanders complaint pending before the UN Human Rights Committee, 72 the applicants relied on Australia's positive duties associated with the protection of the rights to life, culture, to be free from arbitrary inference with privacy, to argue for the adoption of legislation and other measures to adapt to the impacts of climate change and to lament the lack of adequate action to deal with climate-related internal displacement.In this, as in the other climate-change-related complaints before human rights bodies, human rights play a central role.

Positive duty to enforce legislation
In 15 cases, applicants relied on another classic strategy in rights-based environmental litigation, arguing that states cannot respect, protect and fulfil human rights while breaching environmental legislation they have themselves adopted. 73In these climate cases, therefore, applicants typically rely on states' human rights obligations to enforce extant laws concerning mitigation, adaptation, or both.For example, in PSB et al. v Brazil, four political parties alleged that failure to implement Brazil's Action Plan for the Prevention and Control of Deforestation in the Legal Amazon had violated the right to a healthy environment of Indigenous peoples and future generations. 74Similarly, in Leghari, the applicant successfully argued that the Pakistani authorities had failed to properly implement extant plans and policies concerning both climate mitigation and adaptation, leading to a breach of his right to life, and, implicitly, of the right to a healthy environment. 75n some of these cases applicants have not only requested the enforcement of extant laws, but also the recognition of new human rights. 76For example, in IEA v Brazil the applicants asked the court to order the government to control deforestation in the Amazon, calling for the recognition of the right to a stable climate system capable of sustaining human life as a new and autonomous dimension of the right to a healthy environment, which is already protected by the Brazilian constitution. 771.1.3Negative duty to prevent human rights violations In 30 climate cases, applicants deployed another consolidated strategy in environmental litigation: they argued that states should refrain from authorizing activities or adopting policies leading to environmental impacts that in turn affect the enjoyment of human rights, such as those to life, family life, property or to a enjoy an environment of a certain quality.78 For example, in Nature and Youth and Greenpeace Norway v The Government of Norway, 79 the applicants unsuccessfully invoked, among others, the right to a healthy environment to challenge the Norwegian authorities' decision to issue new production licences for oil and gas in the Arctic.Here human rights concerns were only peripheral in the line of argumentation pursued by the applicants, and, rather controversially, 80 did not significantly influence the thinking of the Norwegian courts.

Procedural obligations
Only 14 rights-based climate cases were filed against governments, relying in whole or in part on procedural human rights obligations.Nine of these were filed since the adoption of the Paris Agreement in 2015.The vast majority of these cases rely on the state's positive duty to provide access to information, but lately cases have started to rely also on the state's duty to provide access to justice.

Access to information
The right to access to environmental information is frequently deployed in rights-based litigation. 81So far, 12 rights-based climate cases have specifically relied on this right, arguing that states have a duty to assess the impacts of both climate change and of measures to tackle climate change, and to make such information public.For example, in Greenpeace Luxembourg v Schneider, the applicants complained that the public authorities had failed to respond to a request for information concerning how the national sovereign pension fund planned to align investments with the objectives of the Paris Agreement, and concerning the climate-related risks associated with said investments. 82

Participation
The right to participation in environmental decision-making is frequently deployed in rights-based litigation, particularly in Europe. 83We could identify only two climate cases that relied solely on this right. 84In other cases, applicants relied on the right to participation alongside other rights.For example, in Friends of the Irish Environment CLG v Fingal County Council the applicants unsuccessfully tried to rely on the right to participate in decision-making to challenge a decision to grant a planning permission extension to construct a new runway at Dublin airport. 851.2.3 Access to justice We could not identify any rights-based climate lawsuits that relied solely on the right to access to justice.In other cases, applicants relied on this right alongside other rights.As lawsuits fail, however, applicants are more likely to resort to higher courts or to international human rights bodies to complain about lack of access to justice.For example, in Klimaseniorinnen, after national courts' refused to hear on the merits their complaints over Switzerland's inadequate climate policy, a group of elderly Swiss applicants complained to the European Court of Human Rights for alleged breaches of the rights to access to justice and to an effective remedy.86 Similarly, in Armando Carvalho and Others v The EU Parliament and Council 87 the applicants unsuccessfully argued that the refusal of the Court of Justice of the EU to consider the merits of their complaint against EU climate legislation had breached their right to access to justice.88 national 91 and international 92 adjudicating bodies have maintained that businesses 'must respect and protect human rights, as well as prevent, mitigate, and accept responsibility for the adverse human rights impacts directly linked to their activities'.93 According to the UNSR, corporate human rights responsibilities in relation to climate change have two main facets.On the one hand, corporate actors have a responsibility to reduce greenhouse gas emissionsincluding those produced by their own activities and by their subsidiaries, their products and servicesand to minimize emissions from their suppliersas well as to support, rather than oppose, public policies intended to effectively address climate change.94 On the other hand, at a procedural level, corporate actors also have responsibility to publicly disclose their emissions, climate vulnerability and the risk of stranded assets; and to ensure that people affected by business-related human rights violations have access to effective remedies 95 (Figure 8).
As we also noted above, however, rights-based climate litigation against corporate actors remains rare.Only 16 rights-based climate cases target corporate actors.For example, in Milieudefensie, a group of activists and NGOs successfully argued that Shell should reduce its emissions and align with the temperature goal enshrined in the Paris Agreement, 97 construing the corporate duty of care and due diligence under Dutch tort law on the basis of human rights obligations associated with the protection of the right to life and the right to privacy.The applicants furthermore successfully alleged that Shell has a specific duty to prevent the serious risks caused by emissions they generate. 98The Court specifically cited 'the widespread international consensus that human rights offer protection against the impacts of dangerous climate change and that corporations must respect human rights'. 99The Court went as far as saying that the responsibility of business enterprises to respect human rights 'is a global standard of expected conduct for all business enterprises wherever they operate'. 100These findings are pathbreaking, given that Shell does not have formal obligations under international human rights law. 1012.1.2Positive duty to support climate policy Four rights-based climate complaints relied on human rights recognized in national and international law to argue that corporate actors have a positive duty to support, rather than oppose, climate policies and their enforcement.In the landmark Carbon Majors inquiry carried out by the Philippines Human Rights Commission, 102 civil society organizations lamented human rights violations associated with the impacts of climate change, and the responsibility of the so-called Carbon Majors for causing these.The applicants alleged breaches of a series of human rights recognized both in national and international law, most saliently the rights to life, to the highest attainable standard of physical and mental health, to food, to water, to sanitation, to adequate housing and to self-determination.103 They furthermore alleged that the Carbon Majors have long known that the use of their products substantially contributes to climate change, which, in turn, has a significant impact on vulnerable populations.Finally, the applicants claimed that, to pre-empt the adoption of measures reducing greenhouse gas emissions, the Carbon Majors knowingly advanced or promoted misleading information, casting doubt on the connection between fossil fuels and climate change.104 As such, the applicants argued that the Carbon Majors should be held responsible for the human rights violations associated with the increasingly severe impacts of climate change in the Philippines.105 3.2.1.3Negative duty to refrain from activities causing harm In ten rights-based climate cases against corporate actors, the applicants specifically relied on corporations' negative duty to refrain from activities causing harm.For example, in the Carbon Majors inquiry, the applicants highlighted the corporate negative duty to refrain from activities causing harm as a result of substantive obligations associated with the protection of the right to life.106 Similarly, in Notre Affaire à Tous and Others v Total the applicants asked the court to issue an injunction ordering Total to prevent environmental damage, which they linked to corporate human right duties under French due diligence legislation.107

Procedural duties
We found only two rights-based climate complaints relying on corporate procedural duties.Both were lodged with the National Contact Points (NCPs) established under the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises and alleged insufficient disclosure of emissions, climate vulnerability and stranded assets.In one of these cases, a Polish NGO complained about lack of information concerning corporate emissions and the financial impacts of insuring coal mining in Poland.In response, the Polish NCP recommended that the company disclose relevant non-financial information and adopt policies that respect human rights. 108In the other case, a Japanese NGO complained that three banks had failed to require the sponsors of coal-fired power plants to disclose information about the projects' emissions and measures to mitigate these. 109The applicants also lamented the banks' failure to exercise their leverage to ensure that the communities affected by the power stations were adequately consulted during the project development.So far, there seems to be no evidence of cases alleging breaches of the corporate duty to provide remedies against the adverse human rights impacts they cause or to which they contribute. 110

Main trendsassessment
Our analysis of the rights invoked in climate litigation reveals that in most cases applicants and courts rely on states' substantive human rights obligations, either to take The number of climate cases relying on the positive duty to enforce existing legislation is however rising.As we noted above, with states increasingly adopting climate laws, litigation based on the enforcement of extant laws is likely to increase in future.Similarly, litigation concerning negative duties to refrain from harmful activities, such as oil concessions and logging concessions, can also be expected to rise, as climate considerations become streamlined into public policy and corporate practice.
Conversely, to date, comparatively few rights-based climate cases concern alleged breaches of procedural obligations.Rights-based litigation based on procedural rights is generally frequent, as these rights are typically used to object to activities that are potentially harmful, as well as to react to environmental harms once they have occurred. 112The small number of climate cases relying on procedural rights can be explained by the fact that traditionally complaints over breaches of procedural obligations relate to actual policies and/or projects, and not to a lack thereof.Moreover, complaints concerning access to justice typically emerge only after applicants have had their cases dismissed.So, as climate legislation expands, complaints based on procedural rights are likely to become more widespread, in line with established trends in human-rights-based litigation concerning environmental interests.
The same may be said about litigation targeting corporate actors.Human rights law and remedies are not particularly well suited to pursuing corporate actors.Their increasing use must be viewed as part and parcel of the global movement to enhance corporate accountability for environmental harms, which is at the centre of potentially path-breaking law and policy developments at the regional and international level. 113he outcome of these processes is likely to determine the extent to which human rights arguments and tools will be used in future.In the meantime, extant mechanisms, such as human rights due diligence legislation at the national level and OECD National Contact Points, are likely to continue to remain the main tools used in rights-based climate litigation against corporate actors.

JUST TRANSITION LITIGATION: A NEW KNOWLEDGE FRONTIER
The first studies mapping the different types of climate litigation identified the possibility for 'anti-regulatory', 'defensive' or 'anti' cases.Markell and Ruhl used the term 'anti-regulatory' to describe lawsuits that aim to delay or dismantle existing or emerging regulatory measures for climate change. 114Peel and Osofsky use the same term to describe litigation which reacts to regulation that promotes climate action. 115haleigh, in turn, labelled this category 'defensive' climate litigation, as 'it defends the status quo of a regulatory vacuum'. 116Similarly, Hilson identified as 'anti' cases those brought against local authorities (eg contesting planning permission for wind farms) by industry (challenging new climate laws which affect its economic interests) or by climate change deniers. 117Little systemic knowledge exists on litigation that does not align with climate objectives. 118While climate litigation databases report some 'anti' cases, 119 they do not report cases where climate change concerns are merely incidental.
The same may be said about rights-based cases that do not align with climate objectives, which we describe as 'just transition litigation'.In just transition litigation, climate change concerns typically play a peripheral or even incidental role.These complaints do not object to climate action in and of itself, but rather to the way in which it is carried out and/or to its impacts on the enjoyment of human rights.In theory, just transition litigation can be brought by individuals and groups to challenge state and corporate actors, before national or international judicial, quasi-judicial or non-judicial fora.
Given the lack of systemic data, it is not possible to carry out a quantitative analysis of who brings these cases, against whom, where, and on the basis of which human rights.However, the academic and grey literature report evidence of just transition litigation targeting corporate actors and states for breaches of human rights obligations associated with the rights of Indigenous peoples. 120For example, Indigenous peoples and civil society organizations have filed a lawsuit relying on French due diligence legislation, asking that energy company EDF be ordered to suspend the building of a wind farm in Mexico. 121Indigenous peoples have also complained of multiple violations of the right to free, prior and informed consent perpetrated by Mexico in the context of processes for the approval of wind farm projects. 122imilarly, Indigenous peoples have challenged the decision to approve solar energy projects in the US, alleging violations of their rights to be adequately informed and consulted under federal law. 123International human rights bodies have also received complaints challenging measures to reduce forest emissions 124 and the construction of hydroelectric dams, 125 alleging, amongst other things, breaches of human rights associated with traditional land uses and culture, as well as the rights of Indigenous peoples.
In other just transition cases, applicants have alleged breaches of the right to access to justice, associated with the adoption of climate change legislation and projects.For example, individuals and groups have filed complaints before the European Court of Human Rights, alleging that public authorities' refusal to reconsider the authorization of wind farm projects had violated, amongst others, the rights to access to justice and access to remedies. 126Similarly, both the UK and the EU have been found to have breached their obligations under the Aarhus Convention, for having adopted renewable energy law and policy without adequate public participation. 127his litigation emphasizes the importance of safeguarding procedural and substantive rights, and of protecting individuals and groups from the arbitrary and unjust decisions of governments and corporations.Human rights bodies have already underscored the need to give voice to vulnerable groups who are most likely to be adversely affected by climate policies or projects, and, as a result, risk becoming victims of 'climate apartheid'. 128Going forward, there seems to be a clear need to collect and systemically analyse just transition litigation.Greater understanding of this litigation is necessary to appreciate tensions associated with the transition towards zero carbon societies, and ways in which such tensions may be resolved.

CONCLUSION
This article set out to provide a more comprehensive appreciation of the role of rightsbased litigation in the context of the climate emergency.We carried out the first systematic analysis of rights-based litigation that aligns with climate objectives, revealing main trends and patterns in this burgeoning area of legal practice.Our analysis has delivered new knowledge over who has brought rights-based climate cases, against whom, where, and on the basis of which human rights.We show that, at least to date, the bulk of rights-based litigation on climate change has been brought by civil society organizations and individuals against states, largely before national courts, and on the basis of substantive, rather than procedural, human rights obligations.As Urgenda and other milestone victories have demonstrated, some of this litigation has already helped to engender a change in attitude by courts and lawmakers.Rights-based lawsuits have contributed to the momentum towards the adoption of dedicated and more ambitious climate legislation. 129In future, we predict that more rights-based litigation is likely to focus on the enforcement of this legislation, and on the protection of procedural rights associated with it.
As both climate legislation and litigation progressively reach maturity, there will be scope to use human rights law and remedies more widely in the quest for means to deliver the energy transition away from fossil fuels and to protect those most affected by it.This article has therefore highlighted the need to explore the new frontier of rights-based litigation that does not align with climate objectives.The tensions between the protection of rights and climate action should not be regarded as dysfunctional.Instead, there is a genuine need to better understand the tensions underlying just transition litigation and how to resolve them, in order to fully realize the transformative potential of rights-based approaches for climate decision-making. 130Such approaches are crucial to ensure that governments and corporations take steps to address the climate emergency and its consequences in a manner that ensures the participation of civil society and addresses inequalities.The new knowledge frontier of just transition litigation therefore needs to be urgently explored, to help deliver net zero emissions and an energy transition that is just and inclusive.

ANNEX
The following lists shows the human-rights-based climate litigation analysed in the article in alphabetical order, last update: 31/05/2021.

Figure 1 Figure 2
Figure 1 Geographical distribution of rights-based climate cases

Figure 3 Figure 4
Figure 3 Chronological distribution of rights-based climate cases 35 29. Outside the US, 54 out of 454 climate cases have been brought against corporations.See Setzer and Higham (n 16).In the US, 95 out of 873 climate cases filed between 1990 and 2016 were brought against corporations.See Sabrina McCormick et al., 'Strategies in and Outcomes of Climate Change Litigation in the United States' (2018) 8 Nature Climate Change 829.30.See UNHRC Res 26/9 'Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights' (14 July 2014) UN Doc A/HRC/RES/26/9, establishing the mandate of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights.31.Parliament and Council Directive 2014/95/EU of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups (Text with EEA relevance) [2014] OJ L330/1.See also ongoing negotiations on due diligence legislation in the EU: European Commission, 'Proposal for a Directive on Corporate Sustainability Due Diligence and Annex' COM(2022) 71 final.32.See the repository of legislation at: 'Mandatory Due Diligence' (Business & Human Rights Resource Centre) <https://www.business-humanrights.org/en/big-issues/mandatorydue-diligence/>accessed 22 July 2021.33.See eg Jacques Hartmann and Annalisa Savaresi, 'Corporate Actors, Environmental Harms and the Draft UN Treaty on Business and Human Rights: History in the Making?' [2021] QIL QDI <http://www.qil-qdi.org/corporate-actors-environmental-harms-and-the-draftun-treaty-on-business-and-human-rights-history-in-the-making/>accessed 15 August 2021.34.See eg Annalisa Savaresi and Margaretha Wewerinke-Singh, 'Friends of the Earth (Netherlands) v Royal Dutch Shell: Human Rights and the Obligations of Corporations in the Hague District Court Decision' (31 May 2021) <https://gnhre.org/2021/05/31/friends-ofthe-earth-netherlands-v-royal-dutch-shell-human-rights-and-the-obligations-of-corporations-inthe-hague-district-court-decision/>accessed 4 June 2021; Chiara Macchi and Josephine van Zeben, 'Business and Human Rights Implications of Climate Change Litigation: Milieudefensie et al. v Royal Dutch Shell' (2021) 30(3) Review of European, Comparative & International Environmental Law 409.35.Markell and Ruhl (n 2); Setzer and Higham (n 16); 'Global Climate Litigation Report: 2020 Status Review' (n 23).
14. Alan E Boyle and Michael R Anderson, Human Rights Approaches to Environmental Protection (Oxford University Press 1998); Shelton (n 6); Anton and Shelton (n 6); Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (OHCHR 2015) A/HRC/28/61.15.See eg the call for greater scholarly inquiry into rights-based approaches to climate decision-making in: Sébastien Jodoin, Annalisa Savaresi and Margaretha Wewerinke-Singh, 'Rights-Based Approaches to Climate Decision-Making' (2021) 52 Current Opinion in Environmental Sustainability 45. 16.Joana Setzer and Rebecca Byrnes, 'Global Trends in Climate Change Litigation: 2020 Snapshot' (London School of Economics 2020); Joana Setzer and Catherine Higham, 'Global Trends in Climate Litigation: 2021 Snapshot' (London School of Economics and Political Science School of Economics 2021).

22. Joana Setzer and Mook Bangalore, 'Regulating Climate Change in the Courts' in Alina Averchenkova, Sam Fankhauser and Michal Nachmany (eds), Trends in Climate Change
Commune de Grande Synthe v France and City of Lyon v French Deposits and Consignments Fund.27.See eg Lho'imggin et al. v Her Majesty the Queen.28.Court on its own motion v State of Himachal Pradesh and others.
and Higham (n 16).39.Robin Kundis Craig, 'California Climate Change Lawsuits: Can the Courts Help with Sea-Level Rise, and Who Knew What When?' (2018) 3 Asia-Pacific Journal of Ocean Law and Policy 306; Albert C Lin and Michael Burger, 'State Public Nuisance Claims and Climate Change Adaptation' (2018) 36 Pace Environmental Law Review 49; 'Legal Interventions: How Cities Can Drive Climate Action' (C40 Knowledge Hub 2021).40.Animal Legal Defense Fund v Foster Poultry Farms consists of a lawsuit filed in 2020 before the California Superior Court, alleging that a chicken slaughterhouse's use of groundwater was unconstitutional, particularly as California's drought is being exacerbated by the effects of climate change.41.Urgenda Foundation v The State of the Netherlands C/09/456689 / HA ZA 13-1396 (2015) ('Urgenda').42.Setzer and Higham (n 16).43.See Lucy Maxwell et al., 'Standards for Adjudicating the Next Generation of Urgenda-Style Climate Cases' in this issue.44.Richard SJ Tol and Roda Verheyen, 'State Responsibility and Compensation for Climate Change Damages -A Legal and Economic Assessment' (2004) 32 Energy Policy 1109; Roda Verheyen, Climate Change Damage and International Law: Prevention, Duties and State Responsibility (Martinus Nijhoff 2005); Tim Stephens, 'See You in Court?A Rising Tide of International Climate Litigation' (The Interpreter, 30 October 2019); Alan Boyle, 'Litigating Climate Change under Part XII of the LOSC' (2019) 34 The International Journal of Marine out of 112 rights-based cases, where and Coastal Law 458; Margaretha Wewerinke-Singh, State Responsibility, Climate Change and Human Rights under International Law (Hart Publishing 2019); Annalisa Savaresi, 'Inter-State Climate Change Litigation: "Neither a Chimera nor a Panacea"' in Ivano Alogna, Christine Bakker and Jean-Pierre Gaucci (eds), Climate Change Litigation: Global Perspectives (Brill Nijhoff 2021).45.In Notre Affaire à Tous et al. v France, n. 1904967, 1904968, 1904972, 1904976/4-1, Tribunal Administratif de Paris, 3 February 2021, the plaintiffs requested symbolic monetary compensation for the moral and ecological damages they allegedly suffered.46.See eg Peel and Osofsky, 'A Rights Turn in Climate Change Litigation?' (n 8); Kim Bouwer, 'The Unsexy Future of Climate Change Litigation' (2018) 30 Journal of Environmental Law 483.47.An assessment of climate litigation outside of the US suggests that climate change is peripheral to 242 cases and central to 211 cases, with the number of cases where climate change is a central issue increasing over time.An equivalent analysis of centrality for US litigation is yet to be undertaken.See Setzer and Higham (n 16).48.Juliana v United States, Case No 6:15-cv-01517-TC, 2016 WL 6661146 (10 November 2016).49.PSB et al. v Brazil (on Amazon Fund), Federal Supreme Court of Brazil, 5 June 2020.
Outcome of climate litigation outside the US 57.Setzer and Higham (n 16).The 'neutral' category in climate litigation outside of the US refers to cases that had no impact over climate action and cases that were dismissed as the order became unnecessary.For the US, McCormick et al. analysed the outcomes of 873 climate cases between 1990 and 2016.Their study suggests there were more outcomes that favoured anti-regulatory (309) compared to pro-regulatory positions (224), with a ratio of about 1.4 to 1. McCormick et al. (n 29).58.Friends of the Irish Environment v the Government of Ireland, Supreme Court, Appeal No: 205/19, Judgment of 31 July 2020, 7.2-7.22.
in reports commissioned 59.Peel and Osofsky, 'A Rights Turn in Climate Change Litigation?' (n 8).60.Anke Wonneberger and Rens Vliegenthart, 'Agenda-Setting Effects of Climate Change Litigation: Interrelations Across Issue Levels, Media, and Politics in the Case of Urgenda Against the Dutch Government' (2021) 15 Environmental Communication 699.61.See eg Ben Batros and Tessa Khan, 'Thinking Strategically about Climate Litigation' (Social Science Research Network 2020) SSRN Scholarly Paper ID 3564313 <https://papers.ssrn.com/abstract=3564313>accessed 26 August 2021; and see Lucy Maxwell et al., 'Standards for Adjudicating the Next Generation of Urgenda-Style Climate Cases' in this issue.62. See eg Shelton (n 6); MR Anderson, 'Human Rights Approaches to Environmental Protection: An Overview' in A Boyle and MR Anderson (eds), Human Rights Approaches to Environmental Protection (Oxford University Press 1998); Dinah L Shelton, 'Human Rights and the Environment: Substantive Rights' in Malgosia Fitzmaurice, David M Ong and Panos by international organizations Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (OHCHR 2018) A/HRC/ 37/59, especially paras 16-18.67.See Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment(OHCHR 2016) Corporate human rights responsibilities associated with climate change 91.See eg the decision of the Canadian Supreme Court in Nevsun Resources Ltd v Araya, 2020 SCC 5 (CanLII) (28 February 2020).This case is part of a growing global trend of civil liability litigation against businesses for their alleged involvement in rights abuses.For other cases, see <https://www.law.ox.ac.uk/content/civil-liability-gross-human-rights-abuses> accessed 27 July 2021.92.See eg the decision of the International Centre for Settlement of Investment Disputes in Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v The Argentine Republic, 2016, at 1993-6.93.See eg the judgment of the Inter-American Court of Human Rights in Kaliña and Lokono Peoples v Suriname, 2015, at 224. 94.Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment A/74/161( OHCHR 2019), at 71-2.95.ibid.Positive duty to reduce emissions In the 16 rights-based climate cases brought against corporations, applicants typically argued that corporate actors have a positive duty to reduce emissions, and thus to contribute to climate change mitigation.
105. ibid 61.For an analysis, see: Annalisa Savaresi and Jacques Hartmann, 'Using Human Rights Law to Address the Impacts of Climate Change: Early Reflections on the Carbon Majors Inquiry' in Jolene Lin and Douglas Kysar (eds), Climate Change Litigation in the Asia Pacific Market Forces v Sumitomo Mitsui Banking Corporation, Mitsubishi UFJ Financial Group and Mizuho Financial Group (2018).110.Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (2018) A/HRC/37/59.climateaction or to avoid harmful activities.This pattern largely aligns with general trends in rights-based environmental litigation, which typically targets states on similar grounds.111 93. R (People & Planet) v HM Treasury (Queen's Bench Division, Administrative Court, 2009) 94.Reynolds et al. v State of Florida 95.Rights of Indigenous People in Addressing Climate-Forced Displacement 96.Ruling on Modification to Ethanol Fuel Rule 97.Sacchi v Argentina 98. Sanders Reed v Martinez 99.Sharma and others v Minister for the Environment 100.Sheikh Asim Farooq v Federation of Pakistan etc. 101.Shrestha v Office of the Prime Minister et al. 102.Sierra Club v U.S. Army Corps of Engineers 103.Sinnok, et al. v State of Alaska, et al. 104.Six Youths v Minister of Environment and Others 105.Trans Mountain Pipeline ULC v Misavair 106.UN Human Rights Committee Views Adopted on Teitiota Communication 107.Union of Swiss Senior Women for Climate Protection v Swiss Federal Council and Others 108.Urgenda Foundation v Netherlands 109.VZW Klimaatzaak v Belgium 110.Youth for Climate Justice v Austria, et al. 111.Youth Verdict v Waratah Coal 112.Zoubek et al. v Austria Source: All cases are available from the Grantham Research Institute on Climate Change and the Environment at the London School of Economics at <https://climate-laws.org/> and the US cases are available from the Sabin Centre for Climate Change Law at Columbia Law School, at <http://climatecasechart.com/>.