Is this the end of the beginning for climate litigation in Europe?
Harj Narulla, Finnian Clarke and Nikila Kaushik consider what the Duarte Agostinho v Portugal and 32 Others case in Strasbourg means for the future of climate litigation
On 27 September 2023, the European Court of Human Rights (ECtHR) heard arguments in an “unprecedented” climate case, the largest-ever claim of its type filed in Europe.
The Duarte Agostinho and Others v Portugal and 32 Other States case is a landmark attempt by six Portuguese applicants, aged between 11 and 24, to establish definitive human rights obligations that would force respondent states to take action on climate change.
This case is part of the “explosion” of climate litigation in Europe, and across the globe, which has followed the twin successes of the Paris Agreement and the Urgenda Foundation v State of the Netherlands decision in 2015.
As case numbers and strategies proliferate, it is important to consider how the Strasbourg proceedings fit within the broader phenomenon of climate litigation. What emerges is that we may be on the cusp of a new era within the field, characterised by more cases, using diverse legal strategies, that are potentially rendered more potent by looming decisions from regional and international courts.
In this sense, Duarte Agostinho is not the end, but perhaps only the end of the beginning for climate litigation in Europe and beyond.
Europe will continue to be a hotbed for climate litigation
Outside of the USA, Europe (including, for present purposes, the United Kingdom) has long been the leading region for climate litigation. Since 1993, 318 cases have been filed across 20 European countries, with the majority coming in the last 15 years.
While these cases have varied in scope and type, “government framework” cases – which seek to challenge a government’s economy-wide policy response to climate change – have been the most successful and prominent. Many of these cases have been modelled on the paradigmatic Urgenda decision, which first established state obligations to reduce greenhouse gas emissions under Article 2 (right to life) and Article 8 (right to private and family life) of the European Convention on Human Rights.
Importantly, the Article 2 and 8 arguments developed in Urgenda now form the basis of the claim in Duarte Agostinho, and each of the 11 other climate cases that have been filed before the ECtHR. Two of these cases are also being heard by the Grand Chamber along with Duarte Agostinho.
A favourable decision from Strasbourg consistent with the Urgenda principles would therefore be an important landmark case, as it would enable a new generation of government framework cases in states – like the UK – where those arguments have not met with success to date.
Advisory opinions from international courts will drive further climate litigation
Given the interconnected manner in which climate litigation has been developing, Duarte Agostinho needs to be considered in the context of proceedings before international courts. Over the next two years, each of the Inter-American Court of Human Rights (IACtHR), the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ) will provide advisory opinions examining the relationship of their respective frameworks with climate change.
As with the ECtHR cases, both the IACtHR and ICJ will consider the human rights obligations of states in addressing climate change. An example is the autonomous right to a healthy environment, which has been expressly recognised by the IACtHR, and which arguably forms part of customary international law after the UN General Assembly recognised the right to a clean, healthy and sustainable environment in Resolution A/76/L.75.
While advisory opinions are non-binding, clarification on these types of international standards is likely to accelerate the pace of domestic climate litigation grounded in international principles. This litigation will not only be based on human rights and public law, but is also likely to include further innovations in private law strategies, such as a growth in climate-focused soft law complaints under the Organisation for Economic Cooperation and Development’s Guidelines for Multinational Enterprises.
The Duarte Agostinho case can be understood as the culmination of a series of human rights climate cases beginning with Urgenda. However, consideration of European and international climate litigation shows that it may indicate something more. With over 50 per cent of climate cases leading to outcomes aligned with climate action, a favourable decision in Strasbourg would provide further impetus to public interest climate litigation in Europe and beyond.
The authors are from Doughty Street Chambers. Harj Narulla is a barrister and co-leads Chambers’ Climate and Environmental Justice Group, Finnian Clarke is a barrister practising in Climate and Environmental Justice, and Nikila Kaushik is a pupil