16/12/2020

These Kids Are Suing European Governments Because Of The Climate Crisis

VICE - Tristan Kennedy

The young climate activists, aged from eight to 21 years old, appear to have judges from the European Court of Human Rights on their side.

L-R: Cláudia Agosthino (21) Martim Agostinho (17) Mariana Agostinho (8) Catarina Mota (20) André Oliveira (12) Sofia Oliveira (15). Photo courtesy of Global Legal Action Network. Background: RAFAEL MARCHANTE / REUTERS.
In June of 2017, wildfires ripped through central Portugal’s Leiria region, killing 66 and injuring hundreds more. Fuelled by an abnormally hot, dry spring, and fanned by winds whipping off the Atlantic, the flames moved so fast that many victims burned to death in their cars as they tried to flee. On one stretch of road, 47 people lost their lives, including families with children as young as four.

For Catarina Mota and her friend Cláudia Agostinho, who had recently celebrated her 18th birthday, it was a “very, very scary” summer. “Our houses were filled with ash from the fire,” Cláudia remembers, as I speak to the pair over Zoom. “Watching the news and seeing all the people that were dying, I think it's something that we can't forget. It was very overwhelming.”

Two hours to the south, in Lisbon, Sofia Oliveira and her younger brother André (who were 12 and nine at the time) were similarly traumatised by what they saw, and felt similarly powerless. Fast-forward three years, however, and the four of them – along with Cláudia’s younger siblings, Martim and Mariana – have just achieved a groundbreaking legal first in the fight against climate change.

Despite the fact the oldest among them is still only 21, and the youngest just eight years old, these six young adults and children are suing the governments of 33 countries, including the UK, in the European Court of Human Rights. Their case is based on the assertion that, by failing to act on climate change, these governments are violating their fundamental right to life.

So far, the judges have been incredibly receptive to their arguments. In October, barely a month after their case was filed, the Court announced they were granting it priority due to the “importance and urgency of the issues raised”. In early December, when the case was officially communicated to the defendant countries, the Strasbourg-based body took the even more unusual step of adding an extra element to the rap sheet. 

The Court’s communication included questions about whether, in failing to make meaningful cuts to emissions, these governments were violating not just Articles Two and Eight of the European Convention on Human Rights (the right to life, and the right to family life), but also Article Three, which deals with torture and the prohibition of inhuman treatment.

Gerry Liston and Gearoid O Cuinn. Photo by the author.
For the lawyers working on the kids’ case, this response has been hugely gratifying. I meet Gearóid Ó Cuinn and Gerry Liston on a cold, bright day in Galway, on the west coast of Ireland, where their legal NGO, the Global Legal Action Network (GLAN), is based.

When the organisation started, everyone worked pro bono; it’s only recently that it’s been able to employ “five-and-a-half” full-time staff. The pair met Cláudia, Catarina and the other kids through a Portuguese legal researcher who was volunteering for free with them in 2017. Having decided they could build a convincing case, they raised the money to do so through crowdfunding.

To the untrained eye, the idea that government inaction on climate change might violate treaties on torture could seem a stretch. But having immersed himself in the case since 2017, Gerry explains that he’s not surprised by the Court’s response. “I remember being shocked by the evidence myself, and feeling that the judges could only be equally shocked,” he says. 

If greenhouse gas emissions continue on their current trajectory, he explains, these children and young adults could live to see a world in which global average temperatures are four degrees hotter by 2100. “That's a world where, in Portugal, you could have heat waves with daytime temperatures of over 40 degrees, lasting for over 30 days at a time.”

Heatwaves are killers in their own right. According to the World Health Organisation, 166,000 people worldwide died as a direct result of exposure to extreme temperatures between 1998 and 2017. GLAN’s submission to the court points out that even if emissions continue on a lower trajectory, leading to a 2.8 degree increase in average global temperatures by 2100, the news still isn’t positive.

“Thirty times more people would die from extreme heat in western Europe in the final three decades of this century, compared to the first decade of the century,” Gerry says.

Long dry spells would also massively increase the risk of further devastating forest fires within the kids’ lifetimes. “The number of days on which there's an extreme risk of forest fires would quadruple in some parts of the country, rising up to 90 days a year,” says Gerry. “Portugal is one of the most vulnerable parts of Europe to climate change,” and the horrific impacts that the kids have witnessed even in their short lifetimes look set to get immeasurably worse unless “deep and urgent” cuts to emissions are made, he says.

Armed with this evidence, the case for arguing human rights violations becomes obvious. After all, as Gerry explains, “human rights law doesn't just require states to refrain from harming people. Obviously, not torturing people is a very important part of human rights law, but it's also about states proactively protecting people. When you think about it, climate change poses a bigger threat to human life and wellbeing than almost anything else.”

Sofia and Andre Oliveira meet their lawyers, Gearoid and Gerry, in Portugal. Photo courtesy of Global Legal Action Network.
In many ways, says Gearóid, what’s more surprising is that this is the first time climate change has been put before the Strasbourg Court. Some of this has to do with complex questions of admissibility. What makes Gerry’s work unique, the pair explain, is his argument around causation, and his use of a legal principle famously applied in asbestos poisoning cases to show that all of the governments they’re suing bear a responsibility for the impacts of climate change on these Portuguese kids’ lives. 

The court’s reaction so far shows GLAN has also been successful in one of its other key arguments – that, as an international issue, this case should go straight to an international court, rather than taking the usual path through domestic courts first.

“They could've kicked us out for not exhausting domestic remedies,” says Gearóid. But the fact that they haven’t – and instead have fast-tracked the case – suggests there’s a keen appetite among these senior judges to consider the thorny legal issues at stake. “It is worth noting that only 15 percent of cases are communicated, typically,” he says, “and the number of cases that are communicated and given priority is even less than 15 percent – it's round the 7 percent mark.”

If the case has come a long way already, its future passage is potentially even more important. “[Decisions about] the European Convention on Human Rights have a huge effect on the domestic law of these countries,” says Gerry. If they’re successful, governments could be held responsible for breaking not just international law, but their own laws too. As Gearóid explains, “Having a decision from the [Strasbourg] Court would unlock the huge potential of domestic courts in the climate fight.”

The next steps will be hard. It’s a David and Goliath match-up that pitches six kids and what Gearóid himself calls “the underdog of legal NGOs” against the massed legal might of 33 European governments. It will also be expensive. GLAN and the young Portuguese applicants have already launched a second crowdfunding appeal to help cover their legal costs, at Youth4ClimateJustice.org. But for everyone involved, the stakes could not be higher.

As 12-year-old André Oliveira explains, “We just experienced the hottest November in recent history. It is not only in our lifetimes that we are going to be affected – this is affecting our lives now.”

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