In this page, you will find overviews of the most prominent approaches undertaken by petitioners in R2HE case law.
Note that in some cases, courts will employ these approaches themselves.
Connecting R2HE to the rights of nature (RoN)
Recognizing that R2HE includes protections for nature and the “rights of nature” in virtue of its intrinsic value, not solely because it holds instrumental value for human use. This strategy makes full achievement of R2HE dependent on the recognition and defense of nature’s rights.
Referencing or examining recent international legal developments related to R2HE in order to support the protection of R2HE. International developments may include emerging case law, policy evolution, state practice, regional agreements or international treaties, among others. Commonly referenced international developments include, for example, the Paris Agreement and the UN Resolutions on R2HE.
Emphasizing the obligation to cooperate internationally or nationally
Underscoring the need for governments, sub-governments and other actors to coordinate, cooperate and commonly work toward effective protection of R2HE. This strategy may emphasize the need for cooperation at the domestic level, international level or both, and can entail varying levels of specificity.
Emphasizing the State's duty to regulate or its failure to observe its due diligence obligations
Invoking a government’s affirmative obligations under national and/or international law to regulate and implement policy to advance and monitor the protection of R2HE. One common instance of this strategy appears in the climate change context, where a plaintiff might argue that the government has taken insufficient action to mitigate climate change or reduce emissions. Another common context is that of corporate pollution, which might prompt a plaintiff to argue the government did not do enough to ensure a polluter’s compliance with environmental standards.
Emphasizing the disproportionate and inequitable vulnerability of young people, children and/or future generations to climate change, biodiversity loss and environmental degradation. This emphasis is often articulated through the principles of Intergenerational Equity and Sustainable Development, which generally provide that governments and other entities must ensure the basic needs and rights of future generations when making decisions that bear on the environment. Additionally, the principles suggest that all individuals have a responsibility to care for future generations by limiting environmental degradation and consumption in the present.
Recognizing R2HE’s political weight and implications may entail emphasizing the linkage between – and/or mutual reinforcement of – R2HE and other democratic values. These common imperatives include public participation, access to justice and equity in environmental decision-making. Additionally, this strategy involves invoking R2HE to guide the formation and enforcement of public policy.
Reinforcing the status of the R2HE as a fundamental and independent human right
Recognizing R2HE as a standalone human right – that is, a human right that does not depend on or emerge from any other human right or source, but which exists independently and self-sufficiently. Recognition of R2HE as a fundamental and independent human right can be accomplished, for example, by invoking the UN Resolutions on R2HE.
Using amicus curiae briefs advance the R2HE conceptually
Submitting amicus curiae – documents written by third parties interested in the case who are neither the plaintiffs nor the defendants, and who wish to submit arguments to the Court – in order to bolster and advance arguments supporting and in defense of R2HE. Amicus curiae may relate to a case’s facts, context and/or the arguments presented.
Invoking well-established national laws, norms and/or legal principles in support of arguments related to R2HE. Where R2HE is present in a country’s constitution, the constitution will serve as the primary authoritative source for the right. Other, secondary sources of established domestic law commonly include statutory law and requirements governing public participation and/or the assessment of environmental risks. Environmental principles enshrined in domestic sources of law – for example, the precautionary principle – may also be emphasized to further the protection of R2HE.
Using an established international body of law to support R2HE
Relying on well-established international treaties, norms and principles in making arguments advancing and protecting R2HE. Commonly cited international bodies of law include UN Reports, jurisprudence from international and/or regional courts, General Comments by UN bodies, Declarations and more.
Asserting numerous and diverse legal claims arising out of different bodies of law to increase the likelihood that at least one of the plaintiff’s arguments will succeed before the court. This could take the form, for instance, of a plaintiff bringing both an administrative challenge and a challenge based on the violation of their fundamental rights.
