In a battle akin to that of David and Goliath, six young people from Portugal, aged from 11 to 24, have taken 32 countries – the 27 EU Member States, plus Norway, Russia, Switzerland, Turkey and the United Kingdom – to the European Court of Human Rights (ECHR), claiming that these countries violate their human rights by failing to take sufficient action to tackle climate change. At a hearing in September, the complainants asked the court to find that the countries must fulfil their Paris Agreement commitments in order to protect their human rights.
This complaint is part of a growing trend of climate litigation against countries and corporations. These cases are being brought under a variety of legal instruments, including binding laws and non-binding guidelines, at national and international level. At the same time, through new regulations, countries are also increasing pressure on companies to reduce emissions.
What’s the case about?
The six young people from Portugal allege that, through inadequate climate action, the 32 countries are not doing enough to protect life and health, and to respect private and family life. They point to an international scientific consensus – through the work of the Intergovernmental Panel on Climate Change (IPCC) – that climate change will adversely impact life, health and food security, and lead to migration, among other things. They highlight the particular human rights impacts in vulnerable places, such as Portugal, which faces heat, wildfires, water stress and related health problems.
They ask the court to connect these human rights issues with the Paris Agreement, calling for government action to achieve the Paris goal of limiting global warming to 1.5°C. They argue that current climate actions by the 32 countries are on track for warming above 3°C. As young people, they highlight the need to protect the climate for other young people today and into the future.
The case has groundbreaking features. Typically, governments take action to tackle emissions from activities inside their territories. In this case, the complainants call for the governments to cut emissions outside their territories due to the overseas operations of companies based within the 32 countries; the overseas use of fossil fuels exported from the 32 countries; and the consumption within the 32 countries of goods produced with emissions generated overseas.
The case is also notable because the complainants call for each country to keep its emissions to a “fair share” of the so-called global “carbon budget”, that is, the cumulative amount of global emissions that can be released, while keeping global warming below a particular temperature level, say 1.5°C.
The case will be watched with interest to see how the court handles these groundbreaking issues.
One piece of a global climate litigation puzzle
The Portuguese youth case is part of a trend in climate cases against European countries – we have already seen cases against Belgium, Germany, France, the Netherlands, the United Kingdom, Sweden and Switzerland.
The case brought against the Netherlands by the Urgenda Foundation and 900 Dutch citizens was a real game-changer. The Dutch Supreme Court found that climate change threatens human rights and that the Netherlands was not doing enough to protect those rights by cutting its emissions to meet its share of responsibility under the Paris Agreement.
Climate cases are also underway at international level, with three historic requests for international judges to clarify international law on climate change.
In a first case, the Inter-American Court of Human Rights recognised that climate change adversely affects human rights, including the newly recognised “right to a healthy environment”.
In a second case, a group of small island developing countries have asked the International Tribunal on the Law of the Sea to clarify the duties of countries to protect the marine environment from climate change. The marine environment bears the brunt of climate change – it has absorbed most of the increased atmospheric heat and a sizeable proportion of the carbon dioxide released, leading to increased ocean temperatures, sea levels, acidification and decreased oxygen levels. The ruling is expected in early 2024.
In a third case, Vanuatu, in the South Pacific, led an effort to ask the International Court of Justice to clarify more broadly the obligations of countries to tackle climate change under international law. A hearing is expected in 2024, and the Court will rule in early 2025.
These three international cases will be influential in shaping national climate policies, national court decisions and international negotiations on climate change.
A parallel track: climate regulation
Alongside these climate cases, countries all over the world are adopting (or proposing) the regulation of private companies in relation to climate change. We see examples in Brazil, China, the EU, India, New Zealand, Singapore, the United Kingdom and the United States. These new regulations typically require companies, at a minimum, to disclose their climate performance, often covering their whole global value chain.
The EU is at the forefront. Through its new Corporate Sustainability Reporting Directive, the EU requires companies with significant EU activity to report in detail on their global value chain emissions; their emission reduction targets; their decarbonisation actions; and the money invested in decarbonisation. In its proposed Corporate Sustainability Due Diligence Directive, the EU may require companies to adopt a climate transition plan in line with the Paris Agreement 1.5°C temperature goal.
These parallel trends in climate litigation and regulation are likely to strengthen for the foreseeable future, reinforced by a growing scientific consensus around the causes and consequences of climate change and the insufficiency of actions taken so far to limit global warming. In combination, these trends seek to hold both governments and companies to a higher degree of climate accountability.
The trends are also interconnected: the more governments are targeted in climate litigation, the more likely they are to adopt climate regulation; and that regulation is likely to provide a basis for more litigation. As these trends unfold, we will watch with interest to see what part is ultimately played by a case brought by six young Portuguese citizens against 32 European governments.
Nic Lockhart is a partner at Sidley Austin LLP (Geneva); Stella Perantakou is an associate at Sidley Austin LLP (Geneva); and Dominic Coppens is a senior managing associate at Sidley Austin LLP (Brussels), as well as a professor of International Economic Law at Maastricht University. Lockhart, Perantakou and Coppens focus their practice on sustainability law and policy, including EU and international laws on climate change.