By Richard Reynolds, Gerry Liston and Marc Willers QC.
In a groundbreaking case, six young people from Portugal have filed an application with the European Court of Human Rights (ECtHR) against 33 Member States of the Council of Europe, including Ireland. The youth-Applicants claim that these States are in breach of their rights under articles 2, 8 and 14 of the European Convention on Human Rights (the rights to life, to private and family life, and to non-discrimination) for two broad reasons:
The Applicants are four children and two young adults, whose ages range from 8 to 21. Two of them live in Lisbon and four live in the Centro Region of Portugal, one of the regions worst hit by the devastating wildfires of 2017 which killed 120 people. The increasing frequency and intensity of heatwaves that Portugal has experienced in recent years as a result of climate change is already interfering with the youth-Applicants’ ability to sleep and to exercise and spend time outdoors. Events like the 2017 fires have also caused them anxiety about the impacts of climate change on them and their families, and the families they hope to have in the future. Sadly, they have every reason to be fearful.
According to an expert report prepared for the case by Climate Analytics, if we remain on our current course, thirty times more people will die from extreme heat in Western Europe in the final three decades of this century, compared to the beginning of the century. The report also explains that the youth-Applicants face the possibility of living to see a 4⁰C warmer world. In such a scenario, Portugal would experience deadly heatwaves of temperatures of over 40⁰C, which last for up to a month. Furthermore, in some parts of the country, the number of days on which there is an extreme risk of forest fires would quadruple, rising to up to 90 days per year.
At the heart of the youth-Applicants’ case is the contention that the Respondent States are in presumptive breach of the Convention given that global warming, on its current trajectory, is projected to far exceed the 1.5°C target that is the goal of the Paris Agreement. This puts the onus on States to demonstrate the adequacy of their climate change mitigation efforts. This also has implications for how the uncertainty as to what amounts to a State’s “fair share” of the global effort required to achieve the Paris Agreement target is to be resolved. So far, governments have taken advantage of this uncertainty and chosen self-serving interpretations of their “fair share”. This, indeed, is the very reason global warming is on course to exceed the goal of the Paris Agreement so significantly.
By contrast, the youth-Applicants argue that the ambiguity surrounding the “fair share” question must be resolved in their favour. In effect, this means that the Respondent States must justify their mitigation efforts according to relatively more demanding measures of their “fair share.” This approach is consistent with the methodology of the authoritative “Climate Action Tracker” to rating the mitigation efforts of States. It rates the mitigation measures of each of the EU, the UK, Switzerland, Norway, Russia, Turkey and Ukraine (which together make up the 33 Respondent States) as insufficient to meet the Paris Agreement goal.
With so little time remaining to keep global warming to the 1.5°C target, the youth-Applicants have applied to the ECtHR for an urgent hearing of their case. A judgment in their favour would further empower individuals bringing climate change cases in domestic courts throughout Europe. This is particularly important in Ireland where the Supreme Court recently left open the possibility of a future climate change case being advanced (in part) under the European Convention on Human Rights Act 2003.
The youth-Applicants are supported in bringing the claim by the Global Legal Action Network, a UK and Ireland based non-profit organisation. Gerry Liston is a Legal Officer at GLAN and a qualified solicitor in Ireland. The Applicants are represented by five barristers from Garden Court Chambers in London, namely, Paul Clark, Richard Reynolds, Irena Sabic and Ella Gunn, led by Marc Willers QC, a member of the English and Irish Bars.