Transnational Legal Strategies in the Pursuit of Climate Justice – An Analysis of Current Climate Case Law in Europe

Abstract

Climate change litigation, or climate litigation, has increased exponentially in the past few years. While it is a global phenomenon, most climate litigation has thus far taken place in jurisdictions in the Global North in the form of strategic cases. As climate change is a phenomenon with wide-ranging consequences, there are plenty of sources to base a claim on. However, human rights-based litigation has become one of the most popular and, indeed, successful strategies. A decisive factor in this development was the decision in Urgenda v. State of the Netherlands in 2015, which has since influenced other plaintiffs in Europe and beyond. The current situation in Europe is interesting since plaintiffs commonly base their claims on articles of the European Convention on Human Rights, but as the European Court of Human Rights has not yet issued a decision on the issue of human rights and climate change that could be used as precedent, plaintiffs and judges in domestic courts are finding creative ways to interpret the Convention.

Using Urgenda as somewhat of a blueprint, other plaintiffs have achieved success in domestic courts applying similar strategies, indicating unilateral legal developments have the potential to create transnational strategies. This thesis identifies and analyzes the strategies used in five recently filed climate cases in Europe; Urgenda v. State of the Netherlands, Friends of the Irish Environment v. Ireland, VZW Klimaatzaak v. Kingdom of Belgium and Others, Notre Affaire à Tous and Others v. France and Duarte Agostinho and Others v. Portugal and 32 Other States. As climate change exacerbates existing vulnerabilities, the impacts of climate litigation on climate justice are also discussed.

The cases are compared on justiciability and the various legal bases they have chosen to invoke in order to identify the challenges most commonly encountered in climate litigation and the strategies used to overcome them. It is found that three distinct narratives have emerged; a narrative of urgency, human rights stories, and justice. The urgency narrative illustrates how science and law are intertwined and how knowledge in this way is co-produced. Despite high confidence in the science, plaintiffs and defendants view the need for action with contrasting urgency. The focus on human rights concretizes the effects of climate change and provides for the use of legal venues in an already well-established system to accommodate the new and rapid developments taking place as a result of climate change, and the discrepancy between the causation of and consequences suffered from climate change has led plaintiffs to invoke different concepts of justice. How these narratives will be interpreted by the European Court of Human Rights remains to be seen, but what is clear is that the decision will be influential regardless.