Countries may be compelled to take stronger action due to an impactful climate case

Stay updated on Climate legislation with our free updates.

Sign up to receive a daily email, myFT Daily Digest, that summarizes the latest Climate legislation news every morning.

The author is a distinguished professor of law at University College London and also holds a visiting professorship at Harvard Law School. His most recent publication is ‘The Last Colony’.

An unprecedented climate lawsuit will be heard by the European Court of Human Rights in Strasbourg on September 27. The lawsuit, brought forth by six young individuals from Portugal, challenges the actions of 32 European countries. This case is significant and unique as it marks the first time that multiple nations are collectively tasked with defending their actions.

The plaintiffs argue that these countries have violated their human rights by failing to effectively reduce greenhouse gas emissions in accordance with the 1.5C goal set by the Paris Agreement. Portugal, being at the forefront of climate change-induced heat extremes impacting Europe, is experiencing turmoil. The group claims that inaction threatens their health and even their lives.

This case is part of a wave of climate litigation aimed at pressuring governments to act decisively on emissions reduction. The ruling of the Dutch Supreme Court in the Urgenda case, which concluded that the Netherlands’ targets did not meet its human rights obligations, ignited this movement. Climate-related cases are currently pending before national and international courts around the world. In September, the International Tribunal in Hamburg will examine arguments regarding climate obligations under the law of the sea convention. In the following year, the International Court of Justice in The Hague will address similar issues in a case in which I am involved.

While the Urgenda decision established a significant precedent, the plaintiffs argue that it falls short. The Dutch Supreme Court ruled that the Netherlands was only obligated to achieve the “absolute minimum” of its fair share in global emission reduction required to reach the now obsolete 2C temperature goal. The scientific consensus is clear: if countries do no more than the minimum, global warming will surpass the aims outlined in the Paris Agreement.

The young plaintiffs advocate for the “effectiveness principle” in human rights law. This principle requires parties to the European Convention on Human Rights to ensure practical and effective respect for our rights, rather than mere theory and illusion.

One of the prominent cases highlighting the effectiveness principle was brought forward 50 years ago by Josie Airey, an Irish activist fighting for access to justice. Airey sought to legally separate from an abusive husband but could not afford the associated costs. She argued that Ireland’s failure to provide her with legal aid violated her right of access to a court under the convention. Despite the convention’s lack of explicit mention of a right to legal aid except in criminal cases, the court ruled in her favor, emphasizing that her access to a court was illusory without adequate protection.

The Portuguese youth fear that their right to live without serious climate impacts will also become illusory if countries are only obligated to do the absolute minimum. Countries have a positive obligation to take action. It is fitting that Mary Robinson, a leading advocate for climate justice, previously represented Airey before the court.

This case addresses the core issue surrounding climate action. The Paris Agreement leaves it to individual governments to determine their contributions towards the global effort to achieve the temperature goal. This is a significant weakness. The Intergovernmental Panel on Climate Change warned a year prior to the Paris Agreement that independent actions by each country in its own self-interest will not effectively mitigate climate change. Yet, we are currently on track for nearly 3C of global warming by 2100, primarily due to the reluctance of most countries, particularly wealthier ones, to take sufficient action.

In simple terms, the objective of this case is to compel countries to do more, to go above and beyond. This aim aligns with the IPCC’s warning that there is a rapidly closing window of opportunity to secure a livable and sustainable future for all.

The law is not a cure-all. In the face of political failures, what can judges do? Their role is to interpret and apply the law, not to create or change it. However, this case does not require them to do so. Just as the judges of the Strasbourg Court previously extended the application of the European Convention to cover environmental harms, they can now interpret the provisions put in place in 1950 by the convention’s drafters to practically safeguard the rights of every individual. Currently, there is no greater threat to these rights than the consequences of climate change. Failure to act risks rendering the convention a collection of well-intentioned but ineffective aspirations.