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The writer is professor of law at University College London and visiting professor at Harvard Law School. His latest book is ‘The Last Colony’
On September 27, the European Court of Human Rights in Strasbourg will hear an unprecedented climate lawsuit brought by six young Portuguese taking on 32 European countries. The case is momentous and unique: never before have so many nations been called upon jointly to defend their actions.
The young people argue that these countries have violated their human rights by failing to reduce their greenhouse gas emissions in line with the 1.5C Paris Agreement goal. Portugal is on the front line of the climate change-induced heat extremes that have caused such turmoil in Europe lately. The group says their health and even their lives are threatened by inaction.
The case is part of a tsunami of climate litigation, aimed at heaping pressure on governments balking at the reduction of emissions. The ruling by the Dutch Supreme Court in the Urgenda case — namely that the Netherlands’ targets failed to meet its human rights obligations — lit a touchpaper. Cases are pending before national and international courts across the world. In September the International Tribunal in Hamburg will hear arguments about climate obligations under the law of the sea convention; next year the International Court of Justice in The Hague will follow suit on general international law (in a case in which I am involved).
While the Urgenda decision set a major precedent, the applicants contend it doesn’t go far enough. The Dutch Supreme Court ruled only that the Netherlands was obliged to reach the “absolute minimum” of its fair share of the global emission reduction needed to reach the now obsolete 2C rise temperature goal. The science is clear: if countries do no more than the minimum of their fair share, global warming will significantly overshoot the aims of the Paris Agreement.
The young people are pushing a principle of human rights law known as the “effectiveness principle”. This requires parties to the European Convention on Human Rights to respect our rights in ways that are “practical and effective”, not merely “theoretical and illusory”.
One of the leading cases on the effectiveness principle was brought 50 years ago by Josie Airey, an Irish campaigner for access to justice. She wanted to separate legally from an abusive husband, but couldn’t afford the legal costs. She argued that by failing to provide her with access to legal aid, Ireland violated her right of access to a court under the convention.
Airey faced a significant challenge: the convention said nothing about a right of access to legal aid, except in criminal cases. Yet the court ruled in her favour, on the basis that as things stood her right of access to a court was illusory. The protection needed to be made real.
The Portuguese youth fear their right to live free from serious climate impacts will be illusory if countries continue to be required to do the absolute minimum. Countries have a positive obligation to act. It is a fitting coincidence that former Irish president Mary Robinson — one of today’s leading campaigners for climate justice — represented Airey before the court.
This case goes to the heart of the problem of climate action. The Paris Agreement leaves it up to governments to determine their individual contributions towards the global effort to achieve its temperature goal. That is a major weakness. A year before Paris, the Intergovernmental Panel on Climate Change warned that the “effective mitigation of climate change will not be achieved if each . . . country acts independently in its own interest”. And yet it seems we are on course for a catastrophic nearly 3C of global warming by 2100, precisely because most countries — especially the wealthier ones — are unwilling to act, to go far enough.
Put simply, the aim of this case is to get countries to do more, much more. It does so as the IPCC has warned that there is “a brief and rapidly closing window of opportunity to secure a liveable and sustainable future for all”.
Law is not a panacea. In the face of political failure, what are judges to do? Their role is to interpret and apply the law, not to legislate or make it. Yet this case does not ask them to do so. Just as the judges of the Strasbourg Court filled a gap in ruling many years ago that the European Convention covers environmental harms, so they can interpret what the drafters of the convention put in place in 1950 to protect the rights of every person in practice. Right now, there is no greater threat to those rights than the consequences of climate change. If they do not act, they risk consigning the convention to the garbage heap of good but useless intentions.