The European Court of Human Rights has referred a climate case brought by six young people to its top-tier panel in a move that those involved in the case describe as “highly exceptional.”
The decision, which was announced last week, means that the case challenging 33 countries’ climate policies will be heard by the 17-judge Grand Chamber of Europe’s highest human rights court.
Only a “tiny” number of cases that raise questions of exceptional importance are referred to this chamber, according to a statement from the Global Legal Action Network, the non-profit that is supporting the handful of Portuguese children and young adults who have brought the case. Filed in September 2020, Duarte Agostinho v. Portugal and Others, as the case is known, was the first climate case to be filed with Europe’s top human rights court. Its central argument is that the 33 countries have violated human rights by failing to take sufficient action on climate change.
The group is represented by a team of ten lawyers from a number of U.K. chambers, including Essex Court Chambers, Doughty Street Chambers, Garden Court Chambers and Cloisters Chambers.
Gerry Liston, Global Legal Action Network’s legal officer, told Law.com International that the case is unprecedented due to its extraterritorial scope, the number of governments sued and the ambitious emissions reduction targets it hopes all 33 governments will be held to.
Most climate lawsuits until now have taken individual, national governments to task. But the Agostinho case takes aim at 33 countries, most of them in southern, central, western and northern Europe, along with Turkey and Russia. Unlike many other climate cases, it seeks to curb global emissions inside as well as outside these countries’ borders—for instance, those resulting from the overseas activities of multinationals headquartered in these countries.
The lawyers, Liston explained, are also pursuing far more aggressive emissions reduction targets than those ordered by a Dutch court in the Urgenda case—one of the most impactful and far-reaching climate lawsuits to date.
The 25% emissions reduction target set by the Dutch Supreme Court in that case, he explained, was determined on the basis that developed countries had previously agreed to reduce their emissions by 25% to 40% relative to 1990 levels by 2020 in order to keep global warming to 2°C.
“Our argument is that states must essentially do the opposite to what was required in the Urgenda decision, which is to pursue mitigation measures in line with more stringent interpretations of their fair share” of the required global reductions, he said. “If all countries pursue the lowest end of a fair-share range, we can’t achieve any collective goal—whether it’s 2 degrees, 1.5 degrees or anything else.”
Although the Strasbourg court doesn’t have any enforcement powers, its decisions are binding and most decisions are complied with, Liston added. He noted that domestic climate change litigators would also be able to use a positive judgment by the ECHR in their national cases.
Jessica Holgersson, a senior associate at Equity Generation Lawyers, the law firm behind a key climate lawsuit in Australia known as Sharma v. Minister for the Environment, told Law.com International that both cases deal with personal injury caused by climate change impacts, including the physical impacts associated with fire, smoke and heatwaves. “Whilst Agostinho directly raises human rights issues, including the right to life, the home and non-discrimination, both raise important issues of intergenerational equity and are fighting to change how those in power are accountable for climate-associated harm,” she said in an email.
She noted that both cases asked respective courts to deal with climate-related issues for the first time—the Agostinho case is the first climate case to rely on Article 14 of the ECHR, which establishes the right not to experience discrimination—while the Sharma case was the first Australian case to ask the country’s Federal Court to recognize a duty of care.
“Agostinho has the potential to improve climate outcomes for vulnerable people, and as the lawyers representing the children in the Sharma case, we hope the applicants are successful,” she added.
The European Court of Human Rights was set up in Strasbourg by the Council of Europe member states in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
The court is likely to deliver its judgment in the first quarter of 2023, Liston said.