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Six Portuguese youngsters have taken 32 governments to Europe’s top human rights court in the continent’s largest case yet linked to failures to address climate change.
The EU’s 27 member states along with Norway, Turkey, the UK and Switzerland were at the European Court of Human Rights (ECHR) in Strasbourg on Wednesday to answer to accusations that they have failed to adequately cut emissions in the case brought by Portuguese campaigners aged between 11 and 24.
Russia is also named in the case, but was not present at the hearing.
The lawsuit, described by lawyers as a “David and Goliath case”, was the first time that so many countries have had to defend themselves in front of a court anywhere in the world. The case was named Duarte Agostinho after three siblings among the Portuguese youths.
The six plaintiffs, who travelled by road and rail over two days to reach Strasbourg, argued that their rights to life, privacy and family under the European Convention of Human Rights had been infringed by multiple years of extreme heat and wildfires in Portugal.
They said they had not been able to attend school or go out and had struggled to sleep due to temperatures that topped 40C.
“Governments around the world have the power to stop this. The European governments are choosing not to,” said Catarina dos Santos Mora, 23, from Leiria in central Portugal.
Alison Macdonald, lead counsel for the Portuguese youngsters, argued that all the governments were responsible for their suffering: “It’s immaterial that the source of pollution might not be near to the applicants’ homes . . . Greenhouse gases do not respect national boundaries.”
She pointed to the “unbearable” heat suffered by the applicants, while fossil fuel companies reaped “unacceptable” profits.
“The court is in a unique position to turn this year of burning heat into a year of burning ambition. With this case, the court holds the key to making this happen,” said Amy Sander, a barrister for the Portuguese campaigners, in her statement on Wednesday.
Lawyers for the governments argued that the youths had not exhausted all legal avenues on a national level and that the court would go beyond its jurisdiction by ruling in their favour. Climate change should be dealt with through international agreements such as the 2015 Paris climate accord and not through case law, they argued.
“Any person on the planet could claim to be in the jurisdiction of each and every one of the respondent states,” said Sudhanshu Swaroop, KC, a UK lawyer who spoke on behalf of the 32 states.
“The applicants are seeking to impose wide-ranging obligations with profound social and economic consequences” for the governments involved, he said.
As part of its defence, the UK government had pointed to its 10-point climate action plan, laid out in November 2020, which it scrapped parts of last week.
The case is a landmark in an increasing number of legal proceedings against governments and authorities for failing to cut greenhouse gas emissions fast enough to meet the Paris Climate Agreement target of keeping global temperature increases to under 1.5C.
On top of the 87 lawyers present on behalf of governments were also those involved in two similar but smaller cases brought by a former French mayor against the French government and by a group of Swiss women aged between 78 and 89 against Bern.
The outcomes of those two cases and progress in six other suits are pending subject to the ECHR’s ruling, which is expected in the first half of next year.
“People are increasingly desperate and we increasingly have a disconnect between governments saying they are committed to decarbonisation and a lack of policy to do so,” said Sebastien Duyck, senior attorney at the Center for International Environmental Law, a US-based legal NGO.
The Council of Europe’s Commissioner for Human Rights Dunja Mijatović who intervened in the case called for the recognition of climate risk with the European human rights convention.
Mijatović has made youth rights a key plank of her mandate and told the Financial Times the case was “crucially important for the future of our children, of future generations and our planet”.
The Duarte Agostinho case follows a ruling in the US state of Montana in August, judge Kathy Seeley found in favour of 16 young environmental campaigners who said that state agencies were neglecting their duty to protect citizens by granting fossil fuel permits without accounting for greenhouse gas emissions.
The UN general assembly recognised a “clean, healthy, and sustainable environment” as a universal human right by unanimous vote in July 2022.
Gerry Liston, legal officer at Global Legal Action Network, which is representing the youths, said they were hoping for a judgment that would in effect act as a “binding treaty” for governments to address global warming.
Future climate litigation would be “clearly” affected by the ECHR’s ruling, Liston said “because all . . . decisions [adjudicated] at a national level are based on the Convention of human rights.”
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