So far, it has been a successful year in the courts for climate change activists. In April, the European Court of Human Rights ruled that Switzerland has a responsibility under European law to combat climate change. And last month, the International Tribunal for the Law of the Sea – a United Nations body – said countries have a legal obligation to safeguard the ocean from greenhouse gas emissions.
These are the latest victories in an ongoing legal battle over climate change action. Backed by a series of landmark rulings, citizens, non-profit groups and disaster-wracked countries are increasingly turning to courts to compel governments and fossil fuel producers to address the climate crisis. This year promises to be a seminal one for climate litigation, experts say, with several key cases to be heard in courts around the world.
"We have seen an accelerating wave of climate litigation in national and sub-national court rooms since we started tracking this seven years ago,” says Andrew Raine, Deputy Director of the Law Division at the United Nations Environment Programme (UNEP). “This year is particularly significant as litigation has also recently started – for the first time – in international courts and tribunals."
One Caribbean island nation, Antigua and Barbuda, is at the forefront of this push. It has backed a UN General Assembly resolution requesting the International Court of Justice to weigh in on the obligations of states in respect of climate change.
That case, still in progress, comes with the country facing increasingly severe weather. In 2017, Hurricane Irma devastated the nation of 93,000 people, leaving it with a US$220 million recovery bill. At the same time, warming waters have bleached many of the country’s coral reefs while rising sea waters are eroding beaches and damaging the tourism industry, a key source of revenue.
Zachary Phillips is a Crown Counsel within the Attorney General’s Chambers of Antigua and Barbuda and a member of the country’s delegation to the UN Framework Convention on Climate Change (UNFCC), a global agreement to counter the climate crisis. He has clear memories of Irma. “Ninety-six per cent of all infrastructure on Barbuda was completely destroyed,” he says. “Hurricanes are something I have experienced since I was a child but I have seen an increase in their severity.”
A UNEP report released last year revealed the number of climate change litigation cases rose to 2,180 in 2022 from 884 in 2017. The type of cases has varied, with some plaintiffs challenging the lack of enforcement of climate-related laws. Other litigants are seeking to keep fossil fuels in the ground and hold corporations liable for damage to the environment.
The groups pursuing redress in the courts and tribunals are diverse. They include nations , like Antigua and Barbuda, mainly part of coalitions, such as the Alliance of Small Island States. Cities, such as Paris and Brussels, have also launched cases, as have civil society groups. One of those groups included Swiss seniors who successfully argued in the European Court of Human Rights that their health was threatened by heatwaves made worse by the climate crisis. Indigenous Peoples too, are increasingly going to court, arguing that the climate crisis is affecting their culture, their access to food and water, and ultimately their lives.
The raft of cases comes with the climate crisis deepening and the world struggling to reduce greenhouse emissions in line with the Paris Agreement, negotiated under the UNFCCC.
Does this rise in climate cases showcase the fact that international climate diplomacy is failing, as some have suggested?
“I think the argument that the pursuit of this sort of litigation will undermine the UNFCCC process is a red herring,” Phillips says. “I think both are necessary to achieve the goals we need because no state alone can solve climate change.”
This is echoed by UNEP’s Raine. “It is too early to say multilateral diplomacy has failed but it is true that it is not succeeding fast enough,” he says. “A lot of climate litigation we have seen focuses on seeking to address government responses that are inadequate to meet the objectives of the Paris Agreement.”
Environmental law has been strengthened in recent years, with 159 countries recognizing the right to a clean, healthy and sustainable environment. Meanwhile, environmental courts and tribunals in at least 67 countries have opened their doors to foreign plaintiffs, which have allowed local companies to be sued for their environmental transgressions abroad.
Raine says climate litigation is becoming an increasingly powerful tool. He mentions a number of successful climate litigation cases, including one by Greenpeace questioning the constitutionality of Mexican policies that would limit renewable energy. The organization argued that this would effectively prevent Mexico from meeting its emissions reductions targets.
In other notable cases, Brazil’s Supreme Court recognized the Paris Agreement as a human rights treaty, which enjoys “supranational” status, placing it above national laws. A Dutch court ordered oil and gas company Shell to comply with the Paris Agreement and reduce its carbon dioxide emissions by 45 per cent by 2030. And the UN Human Rights Committee concluded that Australia’s government is in violation of its human rights obligations to Torres Strait Islanders by not doing enough to slow climate change, the first ruling of its kind.
Later this year, advisory opinions are set to be delivered by the Inter-American Court of Human Rights and the International Court of Justice in the case backed by Antigua and Barbuda. For Phillips, the outcome of the latter case will be key, which is taking a broad look at “the scope of international law” and the responsibilities countries have to address climate change.
Phillips says island nations, like Antigua and Barbuda, are suffering deeply from climate change. He believes courtroom victories will help them push for more concrete action on the crisis during negotiations with other countries.
“Ultimately, the right support from these international tribunals and courts will allow us to say ‘the [status quo] is wrong.'”
Next week is Environmental Rule of Law Week. It will feature the Second Global Meeting of the Montevideo Focal Points from 3-5 June. The gathering aims to strengthen the Montevideo Environmental Law Programme, an intergovernmental effort designed to promote the development and implementation of the environmental rule of law.
UNEP is working in Antigua and Barbuda to help set up cost-effective climate-change adaptation measures through innovative financing and ecosystem-based interventions.
