This case was set in motion by the harrowing wildfires that ravaged Portugal in 2017 and ignited a fervour within the hearts of six Portuguese youths (André age 15, Catarina age 23, Cláudia 24, Mariana 11, Martim 20, and Sofia 18), who witnessed their homeland’s ecological devastation firsthand. Now, represented by a team from the international not-for-profit Global Legal Action Network (GLAN), they seek to hold 32 countries, all signatories of the Paris Agreement, accountable for their actions and inaction in the face of the climate crisis. This case not only symbolises hope for the future, it will also chart a course for climate justice through channels of the law.

In this exclusive interview with Hindustan Times, Dr Gearóid Ó Cuinn, founding director of GLAN, and Gerry Liston, senior lawyer with GLAN, provided insights into the case’s background, its significance, and the potential outcomes that could reverberate globally. Their legal arguments will challenge excessive carbon emissions as a violation of fundamental human rights.

“This is the largest climate change-related case to ever be heard at the European Court of Human Rights. It also makes legal history – never before have so many countries had to defend themselves in front of any court anywhere in the world,” Ó Cuinn said. Read edited excerpts:

Q. Can you provide some background on the case initiated by the six Portuguese youths against 32 nations and the circumstances that led to it?

Dr Gearóid Ó Cuinn: In 2017, a series of deadly wildfires broke out in Portugal, close to where some of the youth applicants live, prompting them to take action to safeguard their futures. It was then that they connected with the GLAN and decided to take a climate case against multiple countries to the ECtHR. They decided to do so because their physical and mental health is already being harmed by the impacts of climate change and unless countries, including European countries, adopt much steeper greenhouse gas emissions reductions urgently, these impacts will worsen dramatically over the course of their lifetimes. Portugal is one of the countries most vulnerable to the impacts of climate change in Europe and it is imperative that global warming is held to 1.5°C, as an absolute upper limit, to ensure that the youth-applicants have a liveable future.

Together with GLAN, they launched a crowdfunding campaign in 2017 and set about building the case. GLAN brought together a team of lawyers and experts and spent two years developing the arguments with them. The case was then filed in September 2020.

Q. What specific impacts, both in terms of health and environment, are these young individuals facing due to climate change and global warming?

Dr Gearóid Ó Cuinn: The youth applicants experience significant impacts from climate change, especially due to increasing heat extremes. In particular, during recent heat waves, they have been restricted in their ability to spend time outdoors, exercise, sleep and concentrate properly. Some of them also suffer from health conditions like asthma which is worsened by extreme heat. The youth are also mentally impacted by the climate crisis and the failure of governments to act, they suffer from climate anxiety and worry for their future.

Q. How have the applicant’s the right to life, right to respect of private and family life, been infringed upon?

Gerry Liston: The youth applicants argue that the respondent countries are obligated by the ECHR to rapidly reduce both emissions released within their borders and also the contributions they make to emissions released in other countries. As to emissions released within their borders, they rely on the Climate Action Tracker’s fair share assessments to show that if every country in the world made the same effort as any individual Respondent country, global warming would reach a catastrophic 3°C or worse by 2100.

The applicants argue that their rights are being violated by governments’ inaction on emissions reductions in line with the Paris Agreement. They say that their right to life (Article 2), right to be free from torture, inhuman or degrading treatment (Article 3), right to privacy and family life (Article 8), and their right to be free from discrimination on grounds of their age (Article 14) is being violated due to the catastrophic impacts of the climate crisis caused by greenhouse gases.

Gerry Liston: Courts are increasingly deciding that climate action is a legal duty of governments. So far in Europe, we’ve seen national courts being willing to force their governments to go further than what they are already committed to doing. For example, in the Netherlands, the Dutch Supreme Court ordered the Dutch government to strengthen its 2020 emissions target. However, one of the central arguments in our case is that national courts in Europe have not gone far enough in ordering governments to reduce their emissions.

That is why we are taking this case to the European Court of Human Rights, where a judgment would act like a binding treaty imposed by the court on the respondents, requiring them to rapidly accelerate their climate mitigation efforts. In legal terms, it would be a game-changer.

However, nobody involved in climate litigation that I’ve ever met sees litigation as a silver bullet. Governments will only be forced to take the necessary action through a combination of efforts, primarily by people organising to put pressure on their governments and parliaments to do much more in lots of different ways. Litigation is only one tool out of a range that needs to be used.

Q. The case raises questions about admissibility due to the youths filing directly to the ECHR without seeking recourse in domestic courts. Could you explain the rationale behind this approach?

Gerry Liston: The ECtHR is the first and last resort for the youth applicants because national courts, even in the successful climate cases in Europe, have not provided remedies capable of protecting the youth applicants. For example, in the landmark Urgenda case in the Netherlands, the Dutch Supreme Court only ordered the Netherlands to achieve what it termed the ‘absolute minimum’ of its fair share of the emissions cuts required to hold global warming to 2C. If every country did this, the world would significantly overshoot the already very harmful 2C temperature threshold.

So, the only court that the youth applicants can turn to in an effort to seek a judgement compelling European countries to do what is necessary to protect them is the ECtHR. After the ECtHR, there is no other court they can go to. Hence, it is the first and last resort.

Q. Can you elaborate on the argument that pursuing separate cases in all 32 countries would be an excessive burden on an issue requiring urgent attention?

Dr Gearóid Ó Cuinn: Since the applicants are lodging their case against 32 states, making use of domestic remedies in each of these states would have taken several years. As a result, the applicants, in this case, have not exhausted domestic remedies and are attempting to rely on an exception to this rule.

The applicants argue that the rule should not apply due to the absence of an adequate domestic remedy. In addition, the applicants argue that it would not be feasible to pursue domestic proceedings against each of the states, considering the urgency of climate change and that pursuing domestic remedies in each of the states would impose an unreasonable burden on them.

Q. As someone deeply involved in climate litigation, what trends have you observed in the increasing number of legal cases worldwide linked to climate challenges, as reported by the UN Environment Programme?

Dr Gearóid Ó Cuinn: 2023 is set to be a real watershed moment for climate change litigation. In Europe, Duarte Agostinho, Verein KlimaSeniorinnen, and Carême are the first-ever climate change-related cases brought before the European Court of Human Rights, and are similar in the sense that they all claim States are breaching human rights due to the governmental failure to tackle the climate emergency. We’ve also seen an uptick in cases at a national level, but they haven’t gone far enough.

Further afield, young people from Montana achieved a landmark victory against their state government, forcing them to maintain a “clean and healthful environment” which is guaranteed in the state’s constitution. Litigation is an effective and important way to force action on climate change, but it is not a silver bullet. It must be used in conjunction with other tools to prompt the action that we need to address the climate crisis.

Badri Chatterjee is head, Communications (Climate & Energy) at Asar Social Impact Advisors, a research and communications organisation that works on social and environmental issues