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 is responsible under European law for combating climate change. 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 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.
Experts say this year promises to be seminal for climate litigation, with several key cases to be heard in courts worldwide.
“We have seen an accelerating wave of climate litigation in national and sub-national courtrooms 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, which is 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 220 million-dollar 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.
Challenging the lack of enforcement of climate-related laws
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 percent of all infrastructure on Barbuda was 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 that 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 like 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.
Environmental law strengthened in recent years
The raft of cases comes as the climate crisis deepens and the world struggles to reduce greenhouse emissions in line with the Paris Agreement, negotiated under the UNFCCC.
As some have suggested, does this rise in climate cases showcase that international climate diplomacy is failing?
“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.”
UNEP’s Raine echoes this. “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 doors to foreign plaintiffs, allowing local companies to be sued for their environmental transgressions abroad.in
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 prevent Mexico from meeting its emissions reduction 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 carbon dioxide emissions by 45 percent by 2030. The UN Human Rights Committee concluded that Australia’s government violates 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, suffer 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.’”