Gender Justice & Climate Litigation: Women’s Rights Are Human Rights

Maisy Bentley

In this blogpost with OxCAN, Oxford alumna and litigation solicitor Maisy Bentley explores how women’s rights and matters of gender equality have largely been omitted from legal responses to climate change, and investigates how this omission is perpetuated by human rights climate change litigation.

Women’s rights and matters of gender equality have largely been omitted from legal responses to climate change - is this omission being perpetuated by human rights climate change litigation? This blog post draws on research into quantitative analysis of climate litigation to draw attention to the fact that there are very few cases concerning women’s human rights being brought before human rights courts. It then provides an overview of the current status of climate litigation concerning women’s human rights, and then leaves the reader to consider what the consequences of this omission might be. 

From the start of the legal response to climate change, women’s human rights and matters of gender equality have been omitted. Neither the 1992 United Nations Framework Convention on Climate Change (UNFCCC) nor the 1997 Kyoto Protocol⎯the founding documents of international climate change law⎯include any reference to women, women’s rights, or gender equality.[1] Although the omission of women and women’s human rights from climate change law and policy is not new, what is relatively new is the rise of human rights climate litigation.[2] One of the most prominent and established attempts to track and categorise climate litigation is the Sabin Centre Climate Litigation Database.[3] The database has three primary categories: advisory opinions, suits against corporations and individuals, and suits against governments. In late 2024, there were 176 human rights cases against governments listed on the Sabin Centre database.[4] These 176 cases are further sorted into thematic categories such as youth, indigenous people, and climate migration. With the lowest number of cases by a significant margin, however, was the ‘woman’ category with only two cases.[5] This review of climate litigation cases to date indicates that the omission of women’s human rights and matters of gender equality in legal responses to climate change may be perpetuated by climate litigation.

Ultimately, neither of the two cases within the ‘woman’ category has been adjudicated on its merits. As a result, it is difficult to assess, analyse and respond to courts' engagement with women’s human rights when adjudicating climate litigation. 

The first case, Maria Khan et al. v. Federation of Pakistan et al. began in 2018 when a group of Pakistani women filed a claim which alleged that a lack of state action to address climate change violated rights to a clean and healthy environment and a climate capable of sustaining human life.[6] These rights had previously been recognised by the court in a different case. The applicants further allege that the violation of these rights was also discriminatory, as climate change has a greater impact on women. The case has not progressed to trial. 

The second case, Women from Huasco and Others v. the Government of Chile, Ministry of Energy, Environment and Health, began in 2021 when a group of Chilean women filed a claim which alleged that the emissions from local power plants harmed their right to life, equality before the law and right to live in an environment free from pollution.[7] The court dismissed the claim on the basis that the matter was one for the executive, not the judiciary. 

This changed to some extent in 2024 when the KlimaSeniorinnen case was decided. In KlimaSeniorinnen, an association of over 2,000 older women and four individual older women, Ms Schaub, Ms Volkoff Peschon, Ms Molinari, and Ms Budry, who are members of that association, brought a case to the European Court of Human Rights (ECtHR). The women claimed that Switzerland violated their right to life and right to private and family life under the European Convention of Human Rights (ECHR) due to the impact of climate change-induced and exacerbated heatwaves and the impact on them as older women.[8] Importantly, KlimaSeniorinnen was not just a case brought by women or by older persons, but was premised on the unique susceptibility of older women and those who exist at that intersection to the impacts of climate change. The ECtHR agreed that their right to private and family life had been breached. KlimaSeniorinnen has been hailed by some as a gender win because the women claimants were successful and criticised by others for its lack of intersectionality.[9] At a minimum, KlimaSeniorinnen provides a much-needed example of how Courts could engage with women’s rights in the context of climate litigation. 

Ultimately, a review of existing litigation indicates that women’s human rights and matters of gender equality are being omitted from human rights climate change litigation. Litigation is one way that the obligations states have to protect and advance human rights in the context of climate are being elaborated and substantiated.[10] If women’s human rights and matters of gender equality are being omitted from climate litigation, then they risk being omitted from the state obligations that are developing through this litigation.

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Maisy holds an MPhil (Law), MSt (Women’s, Gender, and Sexuality Studies) (Oxford), which she completed as a Rhodes Scholar. She also holds an LLB(Hons, first class) and BA (Victoria University of Wellington). 

Maisy is currently a litigation solicitor in a large top-tier law firm in New Zealand. She focuses on international law, ESG and climate change disputes. 

She has a range of teaching and research experiences, including several peer-reviewed publications, tutoring on the Floret Programme at Oxford University, being a teaching fellow at Victoria University of Wellington, co-deputy chair of Oxford Pro-Bono Group, a co-convenor of the Feminist Jurisprudence Discussion Group and an associate editor of the Oxford Commonwealth Law Journal.

This article, which draws on her MPhil research, reflects the opinions of the author alone and is published in her personal capacity.

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Endnotes

[1]  Honor Tuohy, ‘Where Gender Equality and Environmental Law Meet: Appointing a Gender Focal Point for Ireland’ (2019) 19 University College Dublin Law Review 29, 41. In contrast, the Convention on Biodiversity and the Convention to Combat Desertification contain references to women and/or gender equality.

[2] Erika George, ‘The Challenge of Climate Change and the Contribution of African Women to Engendering International Environmental Law’ in Jeremy I. Levitt (ed), Black Women and International Law: Deliberate Interactions, Movements and Actions (Cambridge University Press 2015) 188–222, 199; Rosa Celorio, ‘The Kaleidoscope of Climate Change and Human Rights: The Promise of International Litigation for Women, Indigenous Peoples, and Children’ (2022) 13 Arizona Journal of Environmental Law and Policy 155, 170; Cinnamon Carlarne, ‘Environmental Law and Feminism’ in Deborah Brake (ed), The Oxford Handbook on Feminism and Law in the United States (Oxford University Press 2021) 573, 576, 578.

[3] Sabin Centre for Climate Change Law, ‘Climate Change Litigation Database’, accessible at: https://climatecasechart.com/. The status of the Sabin Centre database and its suitability as a starting point for analysing human rights climate litigation in scholarship has been recognised by leading climate law scholars, see Annalisa Savaresi and Joana Setzer, ‘Rights-based litigation in the climate emergency: mapping the landscape and new knowledge frontiers’ (2022) 13 Journal of Human Rights and the Environment 1, 7, 9; Samvel Varvastian, ‘The Advent of International Human Rights Law in Climate Change Litigation Limits and Potential of Human Rights in Pursuit of Climate Justice’ (2020) 38 Wisconsin International Law Journal 369, 374.

[4] This is the time at which my master’s thesis, on which this blog post draws, was being written.

[5] Women from Huasco and Others v. the Government of Chile, Ministry of Energy, Environment and Health (Court of Appeal of Copiapo, 2021, 323-2021); Maria Khan et al. v. Federation of Pakistan et al. (Lahore High Court, 2018, No. 8960 of 2019).

[6] Maria Khan et al. v. Federation of Pakistan et al. (Lahore High Court, 2018, No. 8960 of 2019).

[7] Women from Huasco and Others v. the Government of Chile, Ministry of Energy, Environment and Health (Court of Appeal of Copiapo, 2021, 323-2021).

[8] Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, App no 53600/20, (European Court of Human Rights, 9 April 2024), [296].

[9] See e.g. Angela Hefti, Hannah van Kolfschooten and Aminta Ossom, ‘A Health-Centric Intersectional Approach to Climate Litigation at the European Court of Human Rights’ (2024) 37 Harvard Human Rights Journal 351; Petra Sußner, ‘Intersectionality in Climate Litigation’ (Verfassungsblog, 20 April 2023) <https://verfassungsblog.de/intersectionality-in-climate-litigation/> accessed 28 October 2024.

[10] Honour Tuohy (n 1) 4; Rosa Celorio (n 2) 181, 205.

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