The world is currently experiencing a surge in climate litigation, establishing precedents for governments on how to address the growing concerns of climate change and the associated risks.
This week, Latin America’s human rights court conducted a final hearing in Brazil for a case that is part of this global wave of climate litigation. Simultaneously, several international courts are preparing to deliver their first-ever opinions on the measures countries must take to combat climate change.
These decisions could also trigger a range of new lawsuits filed by citizens, businesses, and governments. However, the enforcement of such rulings remains largely untested.
Recently, a Swiss parliamentary committee dismissed a decision by a top European court, which stated that Switzerland has violated its citizens’ human rights by failing to take adequate measures to prevent climate change.
Previously, in a landmark ruling for climate justice, the International Tribunal under the United Nations (UN) Law of the Sea declared that states have a legal responsibility to reduce greenhouse gas (GHG) emissions to protect the marine environment.
Since carbon emissions contribute to marine pollution, nation-states are required to go beyond the Paris Agreement to safeguard the oceans, interpreting and upholding the 1982 UN Convention on the Law of the Sea, an international treaty.
Meanwhile, the International Court of Justice (ICJ) is expected to issue its opinion, potentially aiming to consolidate previous decisions into a single global ruling applicable to all UN member nations.
Cases in multilateral courts are diverse; however, they all overlap to some extent on the issue of the international legal obligations of states in response to the climate emergency.
Additionally, while the opinions of multilateral courts apply only to the states under their jurisdiction, they all wrestle with one fundamental question: whether states are obligated to protect people from climate change, and to what extent.
Given the scant legal precedent on climate change, their deliberations, involving a complex web of laws, treaties, and UN proceedings, appear symbolically significant.
For example, the case before the Inter-American Court was the largest to date, featuring over 600 participants in hearings held in Brazil and Barbados, and 262 written submissions from Indigenous groups, civil society, scientists, and one company.
Furthermore, the European Court of Human Rights (ECtHR) is reviewing three climate cases before the Grand Chamber, fully briefed and awaiting a decision.
These cases, brought by applicants from Switzerland, France, and Portugal, allege violations under Article 2 (right to life) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
One notable case, Verein Klima Seniorinnen Schweiz and Others v. Switzerland, involves a Swiss organization representing older women and several individual Swiss women over 80. They claim health issues exacerbated by heat waves and argue that Swiss domestic courts failed to address their concerns.
In November 2020, they appealed to the ECtHR, also alleging a violation of Article 13 (right to an effective remedy). The case was transferred to the Grand Chamber in April 2022, with a hearing in March 2023.
The potential for divergent opinions on specific climate obligations of states is a pressing issue given the range of cases presented. For example, there is the issue of extraterritorial obligations regarding the impact of climate change.
Another significant area where divergence is likely concerns children’s rights. All courts, except the ITLOS Tribunal, are being asked to consider the climate obligations of some or all states in relation to the UN Convention on the Rights of the Child.
Another tactical issue arises with the politically sensitive yet crucial question of common but differentiated responsibilities (CBDR) is primarily addressed by the Inter-American Court of Human Rights (IACtHR).
This principle, within the UN Framework Convention on Climate Change (UNFCCC), acknowledges the varying capabilities and responsibilities of individual countries in addressing climate change. Although not explicitly stated, the focus on small island developing states in the ITLOS and ICJ applications, which suffer severe effects of climate change despite minimal contributions, effectively brings CBDR before these courts as well.
A strong CBDR stance from the IACtHR, issued before the ITLOS or ICJ finalize their opinions, could encourage these bodies to adopt a more progressive approach to the topic.