Original article by Isabella Kaminski republished from De Smog.

Portuguese young people claim their human rights have been violated, while accused countries argue the lawsuit should be thrown out.

After Portugal experienced massive wildfires and extreme heat waves this summer, six children and youth from the nation appeared in the European Court of Human Rights Wednesday for a landmark lawsuit against 32 European nations charged with violating their human rights due to the impacts of climate change.

At the hearing in Strasbourg, France, lawyers representing six Portuguese young people said the youth were being discriminated against by state inaction in cutting greenhouse gas emissions, the effects of which have been “foreseeable for decades.” 

Inadequate action to curb global emissions, the lawyers argue, violates the youths’ rights to life, privacy and family life, and to be free from torture, inhuman or degrading treatment. Additionally, it violates their rights to be free from discrimination on grounds of their age, the lawyers said. All of these are enshrined in the European Convention on Human Rights, which the court is responsible for upholding. 

This case is “truly historic,” said Sébastien Duyck, senior attorney at the Center for International Environmental Law. It forces the national governments in the suit “to lay out a legal defense justifying the gap between their climate policies and what science says is needed to avoid climate breakdown.”

Cláudia Duarte Agostinho, age 24, Catarina dos Santos Mota, 23, Martim Duarte Agostinho, 20, Sofia dos Santos Oliveira, 18, André dos Santos Oliveira, 15, and Mariana Agostinho, 11, are suing 32 countries, including all EU member states, the United Kingdom, Norway, Turkey, Switzerland and Russia, for failing to act on the climate crisis. It is unprecedented  that so many governments have to defend themselves in front of any court in the world.

In 2017, damaging wildfires in Portugal, made worse by climate change, killed more than 100 people and sparked the youths to file the lawsuit, which began in 2020. Over the past three years, the young people’s legal team filed a number of supporting documents, including a detailed climate science briefing. The documents show that the current global trajectory for cutting greenhouse gas emissions falls far short of keeping the global temperature rise under the 1.5C threshold agreed by states at the COP27 climate talks last year.

Portugal hit hard by climate change

Portugal describes itself as the European country most affected by the adverse impact of climate change. Since 1976, it has seen a significant trend in heat waves and tropical nights, with high temperature records broken in 2018, 2019 and 2022. This summer, severe drought hit the country and wildfires blazed again.

The young people live in Lisbon and Leiria, parts of Portugal that are particularly at risk. And according to the Intergovernmental Panel on Climate Change, the country faces “hard limits” to its ability to adapt.

The young claimants in the lawsuit point to research by Climate Action Tracker, which calculates a “fair share” of emission cuts for the 32 countries at the center of the case, based on their levels of development, capacity and/or historic responsibility. Most of these cuts are higher than the states’ current goals for the year 2030.

To address this, they want all 32 states to increase their climate ambitions and meet these goals by cutting the production and export of fossil fuels, lowering their consumption emissions, and forcing companies domiciled within their territories to clean up their global supply chains. 

The lawsuit describes the young people as both current and future victims of climate change, outlining the existing effects on their physical and mental health.

It notes the dangerous impacts of extreme heat, including heatstroke and the exacerbation of chronic conditions such as asthma and other  respiratory problems experienced by Martim Duarte Agostinho, Catarina dos Santos Mota and André dos Santos Oliveira. During periods of extreme heat, some of the youth in the suit have had had to stop playing and exercising outdoors, while extremely hot nights have made it difficult to sleep, leaving them more tired and less able to study and work.

A psychological assessment showed they were all experiencing symptoms of anxiety or depression. The three also describe a form of mental suffering called “moral injury” caused by an awareness of the failure by those in authority to protect them.

The severity of all these impacts, the legal team concludes, will only get worse if nations can’t meet the 1.5C warming threshold. Although climate change affects everyone, lawyer Alison Macdonald argued in court that it will have a disproportionate impact on the young people at the heart of the case, “as they will have to live longer with the consequences of the respondents’ failures.”

This is the third climate case heard by the European Court of Human Rights this year. In March, a group of older Swiss women known as the KlimaSeniorinnen argued that they were disproportionately affected by the climate crisis and wanted the court to order Switzerland to do more to cut its emissions. This was followed the same day by a claim brought by a former French politician who also argued France was breaching his human rights.

The court wants to hear all three of these cases before making a final decision. There are a handful of other climate-related cases pending before it.

But the claimants in the Portuguese youth case have some big technical hurdles to overcome before judges even begin to consider the merits of their lawsuit.

The governments named in the lawsuit submitted individual responses to the court, and all except Russia and the Netherlands also submitted a joint statement, which says the states recognise the severity of the threat of climate change and the need for urgent action.

But it says the case should be thrown out for failing to meet the court’s basic rules on admissibility. These include the requirement to have exhausted all national legal options before filing a claim at the ECHR. Ignoring this, it says, would involve “radically overhauling” legal precedent.

The young people’s legal team argues that the rule should be lifted in their case because climate change is such an urgent issue and because it would be a practically and financially unreasonable burden, taking huge legal resources, time, and money, for the group. 

All states. except Portugal, also argue they should not be held to account for harms in another country. The claimants contend that the impacts of greenhouse emissions do not respect national boundaries.

Representing 30 states in court, UK lawyer Sudhanshu Swaroop said the lawsuit requires the court to “exceed its mandate.”

“The applicants in reality are asking the court to build a new model of extra-territorial jurisdiction, contrary to legal principles and with the effect that any person on the planet that claims to be affected by climate change could claim,” he noted. 

He added that these issues are being addressed through the UN Framework Convention on Climate Change (UNFCCC) and that the young people “are asking the courts to act as legislators rather than judges, and to legislate for a global challenge without having global jurisdiction.”

Ricardo Matos, a lawyer for Portugal, said the young people could not claim to be victims of the 2017 wildfires, and were effectively trying to bring an actio popularis – a claim on behalf of the wider public rather than themselves as individuals. The European Convention on Human Rights does not allow such claims.

The governments also argued that the young people are not ‘victims,’ pointing out they cannot prove that they suffer more than the general population by virtue of their age. 

The young people’s legal team believes these hurdles can be overcome. “This court is uniquely well placed to address these legal issues in the transnational way that climate change requires,” Macdonald told the court. “Piecemeal regulation across Europe represents no effective remedy.”

According to Climate Action Network, which submitted a third-party intervention, a successful judgment in this case would be “like a new, legally binding treaty, directly obligating 32 European governments to act urgently on the climate crisis.” 

It also wields “remarkable influence” in the broader context of global litigation, said Duyck, “given that the European Court of Human Rights holds a prominent role in setting legal precedents within Europe and beyond.”

Speaking outside the court after the hearing, the oldest claimant, Cláudia Duarte Agostinho, said what she had just heard was “very sad.” 

“The governments have just said that what’s happening all around us is not important,” she added. “They are minimising the effects that climate change has on our human rights. 

“Outside the courtroom they say all the right things about the climate emergency,” she continued. “But today they are denying the reality that what we are experiencing is getting worse and worse.”

Travel to report on this lawsuit was supported by a grant from the Foundation for International Law for the Environment.

Original article by Isabella Kaminski republished from De Smog.