With the climate breakdown accelerating, new legal theories must be considered by climate litigators, particularly in the United States, to change the behaviour of the state and federal governments so that they begin to stabilise the climate.

Litigating the right to life may be one good new approach.

THE RIGHT TO LIFE UNDER INTERNATIONAL LAW

The right to life is protected by international law,[1] considered the “supreme right,”[2] which a state must protect even in times of national emergency.[3]

The right to life is a jus cogens norm under international law,[4] meaning it is a right of the highest order, which must be protected by all governments. In general, a state has an affirmative obligation to protect individuals against violations of the right to life where threats to life are foreseeable.[5]

THE RIGHT TO LIFE IS RARELY LITIGATED IN THE UNITED STATES

In the United States, the right to life is protected in both the federal Constitution (the Fifth Amendment prohibits the government from depriving someone of life without due process of law) as well as by each state’s constitution.

However, there is a paucity of legal analysis regarding the right to life in the United States. Right to life cases in the United States tend to focus on police misconduct in which a person has been deprived of live through a police shooting. California’s Constitution, which expressly protects the right to life, and which is the constitution of the most populous U.S. state, has only a single case where the right to life was litigated: a WestLaw search related to the right to life produces a case from 1917, in which the a court of appeal in California recognised the right to self-defence as being an inherent part of the right to life.[6]

THE RIGHT TO LIFE AS AN AVENUE FOR CLIMATE LITIGATION

The recent Urgenda case highlights the potential usefulness of litigating the right to life. As perhaps the most fundamental of human rights, the Dutch Supreme Court invoked international law and the European Convention on Human Rights in holding that the Netherlands has an obligation to reduce carbon emissions due to the risks that threaten the citizens’ of the Netherlands right to life and well-being.

Whilst the world awaits the English version of the Dutch decision, the right to life as a potential vehicle for climate litigation should be explored in the United States. Each state’s constitution provides and protects for the right to life in some way—and there may be ways to litigate at a state level the right to life that may be as fruitful, or more fruitful, than the approach taken in the Netherlands. California makes clear that right to life litigation may be an entirely new concept. It could be a powerful tool in the arsenal of the modern climate litigator.

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Legal citations

[1] American Convention on Human Rights, Inter-American Commission on Human Rights, articles 3 and 4, (November 22, 1969) https://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm; International Covenant on Civil and Political Rights, United Nations Human Rights, article 6 (December 16, 1966) https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx; American Declaration of the Rights and Duties of Man, article 1 (1948); UN Human Rights Committee General Comment No. 36, ¶ 62. https://www.oas.org/dil/access_to_information_human_right_American_Declaration_of_the_Rights_and_Duties_of_Man.pdf.

[2] General Comment No. 6: The right to life (Article 6), UN Doc HRI/GEN/1Rev 6 (30 April 1982) 127, para 1; General Comment No. 14: Nuclear Weapons and the Right to Life (Article 6), UN Doc HRI/GEN/1/Rev1 (9 November 1984) 18, para 1.

[3] UNHRC, General Comment No 36, para 2.

[4] Rosalyn Higgens, ‘Derogations Under Human Rights Treaties’ (1977) 48 British Yearbook of International Law (1976-77) 281; WP Gormley, ‘The Right to Life and the Rule of Non-Derogability: Peremptory Norms of Jus Cogens’ in Bertrand G Ramcharan (ed), The Right to Life in International Law (Ledien, Martinus Nijhoff, 1995) 145.

[5] General Comment No. 31: The Nature of the General Obligation Imposed on States Parties to the Covenant (29 March 2004) UN Doc CCPR/C/21/Rev1/Add 13, UNHRC, para 8; Annakkaragae Sranjini Sadamali Pathmini Peiris v. Sri Lanka (2011) UNHRC Communication No. 1862/2009, UN Doc CCPR/C/103/D/1862, para 7.2.

[6]People v. McDonnell, 32 Cal.App. 694 (Ct. App. 1917)

Dave Inder Comar is the co-founder of Human Rights Pulse and a practising attorney.

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