This article is an opinion piece and its contents represent the standpoint of its author, not UPF Lund or The Perspective’s editorial board.
Fairytales and legends are full of them: the powerless hero who takes on the dragon, the witch or the evil ruler—and emerges victorious. These stories are still told today, through films and books where the unknown challenger takes on the usurper and wins the throne. But it is also told in the news, when young climate activists take on governments in legal battles and come out on top.
Our favourite Swede, Greta Thunberg—underpowered-turned-successful activist—started 2023 with being carried off by police from a mine protest in Germany and participating at the World Economic Forum in Davos the next day. She likes to urge us to ‘listen to the scientists’ to mitigate climate change. But politicians and policymakers are slow to take action, and people are now turning to courts of law, hoping that they will hear their pleas instead.
Climate litigation seems to be the current trend in climate activism, with some 1840 cases globally. When individuals sue the state, the cases are often framed in terms of a battle between strong and weak, David versus Goliath, the young against the old, activists versus the establishment. Turning to courts of law is seen as a final expression of frustration, coming from a generation that has grown up with the threat of climate change hanging over them. They see the recent rise in natural disasters and extreme weather conditions as the beginning of their darkest nightmares come true. Cases against states are the ones that get the most attention. However, they only form a small part of climate litigation, with less than 100 cases in total. Other types of climate litigation cases include actions against companies and action taken by companies.
Individual versus government-cases catch the attention of the public partly because the claimants typically seek “bold, conspicuous remedies”, according to a UN report. One might expect them to ask for financial compensation, but the claims go much further than that. Rather, they are often asking the judges to change legislation and policies, or to implement strategies where the politicians have failed to do so.
In the Urgenda case, young activists sued the Netherlands and asked the court to change the emission targets that the parliament had agreed on—which the court did. In a later case before the German Constitutional Court, the judges refused to set new emissions targets themselves and instead asked legislators to change them.
A similar case is the Aurora case, launched in Sweden in 2022. It is less radical compared to the Urgenda case, as they are not asking the court to set new emissions targets. Instead, they are asking the court to order the government to properly investigate how much emissions Sweden can afford, if the global aim of maximum 1.5°C temperature increase is to be reached, and to then implement effective measures to reach those goals.
Until now, the only way of getting these demands into governments and parliaments would have been by trying to influence politicians by way of voting, protesting, or trying to find broad support for them. That is how opinion forming traditionally works in a democracy. By suing the state, the youths are questioning that system.
This is what makes climate litigation so controversial. What type of remedies can courts grant? Should courts really be deciding the emission targets of states? Traditionally, it would be outside the scope of a court’s power to make decisions regarding emission targets and other environmental protection measures. Many argue that such decisions should be left to politicians and legislators, partially because they have the resources and overview necessary to make big policy decisions, and partially to protect democratic legitimacy. Courts cannot be displaced by voters if people are unhappy with their decisions.
In a famous case from the USA, a group of youths sued the state, asking for a plan to phase out fossil fuel emissions on the grounds that the ‘climate system’ is critical to their constitutional rights to life, liberty, and property. The case was later dismissed, but the judges took the opportunity to say that they could not possibly give the claimants the phasing-out plan they asked for, because it would entail “a host of complex policy decisions which for better or worse must be entrusted to the wisdom of the legislative and executive branches”.
The ‘juridification’ of climate policy is gaining relevance at the international level too. High-stakes political meetings and attempts at binding agreements have ended in disappointment too many times, and now individual states are turning to international courts for aid. It is a clash between small island nations whose entire existence is threatened by rising sea levels on the one hand, and rich states striving to avoid financial obligations and costly adaptations on the other. For those who enjoy the narrative of the small versus the big powers, this is hot stuff.
Island nations in the Pacific Ocean are quite literally drowning. Already in 2009, the President of the Maldives held a cabinet meeting entirely underwater to draw attention to the dire situation. The foreign minister of Tuvalu gained international recognition in 2021 by giving a speech at the COP26 in Glasgow standing in water, in a similar bid for attention and action.
Currently, Vanuatu and other island nations have banded together and are pursuing two legal disputes at the highest level. The first one is a request for an advisory opinion from the International Tribunal for the Law of the Sea. In late 2022, they asked the court what obligations states have under the UN Convention on the Law of the Sea to protect and preserve the marine environment in relation to climate change impacts. If the application remains successful, this will be the first time an international court gets to comment on these questions.
The island states are also gathering support from other countries for taking the matter before the International Court of Justice (ICJ), the highest international court. They want to know exactly what obligations states have under international law, including human rights law, to protect the planet from environmental degradation. They are also asking what responsibility the states that have caused most of the greenhouse gas emissions have—in essence, who should pay for the damages caused by climate change. If they get half of the states in the UN General Assembly to agree, which is not unlikely, they can ask the ICJ for an advisory opinion on the matter. The fateful vote is scheduled to take place tomorrow, on March 29th.
Advisory opinions are not legally binding, but they could still prove a hard blow for industrialised states. The recent COP27 centred around matters of financial responsibility and compensation, and it remains unclear how the ‘loss and damages’ fund that was established is supposed to work. If the courts decide that states have a legal obligation to pay for injuries caused to vulnerable states by climate damage, it will be a difficult argument for rich states to avoid in future negotiations.
The tale of the powerless versus the powerful continues. Stay tuned.
By Sofia Gierow
