Last year, in September, four children and two young adults from Portugal filed the first-ever case for climate change in the European Court of Human Rights (ECHR). They moved the court seeking action against 33 European countries, which ‘had not done enough to prevent the impacts of climate change from violating their citizens’ human rights.
The case was filed three years after the Portugal wildfires (following which the country experienced record-breaking hot summers) and has already been granted a priority status by ECHR.
This case is unique for several reasons. For starters, it is one of the few cases to be fast-tracked by the ECHR, and if the court rules in favour of the Portugal youths, 33 European countries will be legally bound to make deep emission cuts. Secondly, it is one of the few cases that address the cross-border impact of emissions of different countries and can therefore pave the way for international climate laws in future.
An International non-profit organization, Save The Children, volunteered to be a third-party intervenor in the case earlier this year. Ulrika Cilliers, Global Policy and Advocacy Director at Save the Children, told News18.com, “Our role as an intervenor is to help the court (ECHR) understand how the climate crisis affects children, and also their rights. We have volunteered to be a third party in the case also to stress the fact that when children take this kind of actions and take countries to court, we really need to sit down and support them because the climate crisis is a huge concern for children today and for more children tomorrow."
“I think strategic litigation and the court system is a really important way through which civil societies, activists and children can push governments towards accountability. Countries should abide by international laws relevant to climate change and apply them in a way that works for children," she added.
In recent years, we have seen several climate change cases in court, and many of them have been filed by youths. On April 29, 2021, Germany’s apex court ruled in favour of young activists in a landmark climate case. The ruling stated that certain aspects of the climate protection legislation of the country are unconstitutional because it unfairly places too much burden on the younger generation for the reduction of greenhouse gas emissions.
In an interview with News18.com, Radha Chelappa, Deputy Director of Poverty & Inclusion at Save the Children, said, “When children are provided with knowledge, information, and the right platform to engage, they are able to identify problems in their immediate environment and come up with innovative solutions. Children are also in the forefront adapting and making others change their behaviour by adopting environment-friendly actions in their daily lives."
Chelappa also pointed out that it is not that effective climate change policies are not in place, but that their implementation has been challenging in the past.
Perhaps that’s the reason why climate change litigations have been on the rise since the Paris Climate Agreement became effective in 2015.
Climate Change litigation and the Paris Agreement
Climate change litigations generally consist of disputes that relate to climate change and litigation to catalyze legal or policy-based changes on environmental issues. According to a report by The Geneva Association, the adoption of the Paris agreement has accelerated climate litigations, especially domestic litigations that have increased in volume and expanded in scope and geographical coverage.
The report stated, “Between 1986 and 2020, 1,727 litigation cases were documented worldwide: 1,308 in the U.S. and 419 in other jurisdictions and regional and international courts. Importantly, more than half of the total recorded cases have been brought since 2015."
“To date, the majority of cases have been brought against governments, but the number of lawsuits against corporate entities – particularly carbon majors – is on the rise," the report added.
Domestic climate change litigation has been relying heavily on the Paris Agreement since 2015. The Paris agreement, although still at a very nascent stage, provides a robust framework for international climate change governance. Recently, a Dutch court ordered the Shell group to cut their carbon dioxide emissions by a net 45% by the end of 2030. To reach this decision, the court referred to international treaties like the Paris Agreement on climate change and human rights law to interpret the standard of care. An article published in The Wire claimed that “Even though the agreement doesn’t legally bind the corporations, the court made Shell directly responsible by endorsing the universal status of the Paris Agreement."
Souvik Bhattacharjya, Associate Director at the Resource Efficiency and Governance Division in TERI, told News18.com, “It was a humungous challenge to get so many different countries, with different levels of socio-economic development, and varied emissions to come on board and sign the Paris Agreement. Therefore, the agreement itself does not comprise any penalty mechanism because that would have deterred countries from willingly participating and ratifying it. But, at the same time, the text of the Paris agreement is made in such a manner that it is understood that the commitments that the countries make are legally binding."
Therefore, Bhattacharjya pointed out that the Paris Agreement not only serves as a legal reference point in several domestic climate change litigations but is also a legally binding agreement in itself.
Ambiguous definition, missing mechanism
However, despite serving as a touchstone for domestic climate change litigation, international climate change litigations have barely gained anything from the Paris Agreement. In fact, the entire global climate change litigation domain is a very ambiguous space, with no defined apex body to rule or no clear definition or consensus among the international community in terms of what constitutes as ‘climate crimes’, pointed out Sunil Fernandes, Advocate-on-record, Supreme Court.
“There is much to be done in terms of international laws vis-à-vis climate change. Before we devise laws to penalize those adversely affecting the climate, there is a seminal thing that has to be addressed. We need to have a broad consensus on what can be categorized as international environmental crimes because, unlike each country, which has some framework to answer that question within their jurisdiction, there is no international unanimity as to what especially constitutes a crime against the environment," pointed out Fernandes.
“Secondly, there is also a need to define a legal system, which can judge these issues. Under the Rome Convention, the ICC does rule on environmental damage if it is a part of a larger crime, like genocide or war crimes, etc. But, for exclusively environmental crimes done by corporates, or countries there is no defined international legal body that can try the case. And, more importantly, another mechanism that has to be figured out is how to enforce international climate litigation. It would require cooperation and coordination of all countries/corporates involved in the case, and to achieve that may not be an easy task," he added.
“Until now, all climate conventions and agreements have majorly focused on reducing greenhouse gases, or protection of the ozone layer, or bringing down the emission levels. So, the attention has been more on mitigating the existing problems. But, the question is, how do you penalize a corporation or a country that commits a crime against nature or cause such environmental damage that hampers the fundamental human rights?" asked the advocate.
International adjudication is crucial to address climate change because man-made borders do not bind nature.
Why we need international climate laws?
Climate change cannot be addressed in isolation or on a country-specific basis, pointed out Maria Socorro Manguiat, UNEP’s Head of the National Environmental Law Unit.
“Climate change is a truly global threat to humanity – its effects transcend borders, continents and social and economic classes. The consequences of the actions by an individual of one country in one region of the world may be experienced, directly or indirectly, by those living in other regions around the globe," said Manguiat.
“No area of the world is immune to the effects of a changing climate, even if those effects may be experienced differently. An inland region of one country may be experiencing a severe drought while its neighbouring coastal country suffers from excessive rainfall or flooding. By strengthening multilateralism and taking a whole-of-society approach to environmental challenges, we recognize these differing global experiences and begin to more fully understand the true scope of the climate crisis. This helps us form a clearer picture of what needs to be done to meet the needs of all countries and regions around the globe. By working across borders, we recognize that the actions to fight climate change in one country may complement the actions of another country, leading to a solution that is greater than the sum of its parts," she added.
Avinash Chanchal, Senior Climate Campaigner at Greenpeace India, told News18.com, “To tackle the climate crisis, It is very crucial to fix accountability and acknowledge that we are already witnessing climate emergencies. The implementation of existing regulations on the ground in letter and spirit is the need of time."
“Any climate action policy must be notified under relevant acts of the law, without which the policy becomes merely a guiding document. To put it in plain and simple words, climate denial has increased the risk of catastrophic global change. We all understand that harming the environment means harming the lives and livelihood and impacts on biodiversity. So, if we know a crime is ongoing, then as UNESCO too had said, we do need to bring these climate crimes to justice. It is also important to state that the implementation of these legal frameworks needs to be done and adhered to," added n Chanchal.
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