(The Conversation) – A little over three years ago, a group of Portuguese youths filed a legal action against 33 European governments to the European Court of Human Rights (ECHR) over what they say is a failure to adequately tackle global heating. Now, the Strasbourg court will be hearing them on 27 September, in a novel, far-fetching bid to arm-twist them into taking climate action.

The case represents the third time that a climate lawsuit is held at the ECHR. It is also momentous through the sheer number of governments on trial and its plaintiffs’ ages, now ranging from 11 to 24. Among the accused are the EU’s 27 member states as well as the United Kingdom, Switzerland, Norway, Russia, Turkey and Ukraine.

The claim

Plaintiffs expressed their grave concern over governments’ insufficient efforts to limit global warming to 2°C above pre-industrial levels. Were the rest of the world to mirror their commitments, the global temperature would hike by 2 to 3°C, according to Climate Tracker.

The youths argue that their way of life and health are threatened by the climate crisis’s impacts, including Portugal’s annual heat waves and wildfires which inspired them to crowdfund the legal action in October 2017.

Human rights to the rescue of climate justice

Against a global backdrop of increasing climate litigation, the Duarte Agostinho application follows in the steps of other climate lawsuits to draw a clear link between human rights violations and climate change. The first to have blazed that trail in 2015 was the Urgenda Foundation, whose legal action compelled the government to cut emissions by 25% from 1990 levels on the grounds of its applicants’ human rights.

With an eye to the latter, the group of Portuguese allege global heating has already taken a toll on their health and puts them at risk of suffering more significant health problems in future. They also claim to suffer from anxiety after wildfires in Portugal in 2017 killed more than 120 people.

Governments, they argue, have failed to comply with their positive obligations under Article 2 of the European Convention on Human Rights:

“Everyone’s right to life shall be protected by law.”

In addition, they assert governments did not comply with Article 8, the right to respect for one’s privacy and family life:

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the
   law and is necessary in a democratic society in the interests of
   national security, public safety or the economic well-being of the
   country, for the prevention of disorder or crime, for the protection
   of health or morals, or for the protection of the rights and freedoms
   of others.

The latter is often used by the court in other environmental cases to extend the scope of its protection to the victims’ homes and habitats, as well as to their surroundings. In the absence of a specific article on environmental protection, these articles are essential tools for protecting people against various forms of pollution and other nuisances.

The youths also argue that governments, in failing to take bold climate action, have breached Article 14, which guarantees the right not to suffer discrimination in the “enjoyment of the rights and freedoms set forth in this convention,” with the view that climate change impacts their generation in particular.

Ushering in effective action

Lawyers representing the youth will be seeking to avoid a repeat of some of the failures of the Urgenda case. While a landmark case, the Dutch Supreme Court had ruled at the time that the Dutch state would have to carry out the “absolute minimum” of its fair share of emission reductions.

To prevent this from happening again, young people will be banking on a range of principles from human rights, including that of effectiveness. According to this postulate, states cannot remain passive in the face of a violation of the rights of individuals. For the court, this principle originally offered a guarantee that states would implement the positive obligations of protection required by the convention.

Should this interpretation prevail in the Duarte case, the court’s decision would oblige each of the 33 states to demonstrate that they had done everything in their power not to violate the applicants’ human rights.

The court could also choose to interpret “effectiveness” as the “efficiency” of the measures put in place by governments to protect their citizens. In the Duarte case, this could mean that the court checks not only that states have legislation capable of protecting individuals’ rights, but that the laws in question weigh up against the climate crisis. This reading could precipitate a favourable outcome for claimants, requiring the states to show what specific measures they have taken to address climate change. The decision could serve as a model and exert a certain – moderate – influence on national decisions or on national human rights bodies (National Human Rights Commissions).

However, the court could also content itself with gauging effectiveness, which would consist in verifying that the states have the legislative tools to deal with climate change, without delving into the details of each national law. Such an approach would leave the states their own “margin” of appreciation so that they monitor their legal systems themselves.

Lawyers could also push for an interpretation of the convention based on the precautionary principle.

The latter orders parties to take action to prevent a provision from being violated, even in a context of uncertainty. In the Duarte case, the political authorities as well as the administrations, will have to identify, evaluate and take into consideration certain climate risks quoted by the young applicants.

The European court’s climate challenge

The case will undoubtedly constitute what lawyers refer to as a “hard case” – where judges need to balance equities and law – and will play an important role in other future climate applications.

The ECHR takes on average two years to reach a decision, though this period may vary depending on the complexity of the case. Because the ruling is set to be issued by the Grand Chamber, there will no possibility of appealing against it.
The question of its impact on the continent’s climate justice also remains to be seen. It will not, for example, have the power to annul or modify decisions taken by national courts. However, it could sharpen states’ resolve in climate and human rights’ matters. For instance, France has in the past been constrained to change its laws on phone tapping and police custody conditions following rulings by the ECHR.

Ultimately, the ECHR’s verdict will show whether it is fit to hold states to account over their obligation to protect against a global threat. As the century progresses, the court will inevitably have to evolve and give a “greener” interpretation of the convention. Its ability to protect fundamental rights in a world on the verge of exhaustion depends on it.

Marta Torre-Schaub, Directrice de recherche CNRS, juriste, spécialiste du changement climatique et du droit de l’environnement et la santé, Université Paris 1 Panthéon-Sorbonne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

He was, however, also dogged by questions about Ukraine and Russia.

He replied, “There is no doubt that we condemn Russia’s violation of Ukraine’s rights with the invasion, but it is of no use to say who is right or wrong. The war must be stopped.”

Resumenlatinoamericano reports that he complained that the current international mechanisms for peacemaking are broken. He said, “We live in a world where the UN Security Council, the permanent members, all of them are the world’s biggest arms producers, they’re the world’s biggest arms sellers and they’re the world’s biggest war participants.”

He pointed to the invasion of Iraq by the US without a UN Security Council resolution as an example of lawlessness by members of the UNSC. MEMO quotes him as saying, “”When the United States invaded Iraq, there was no discussion in the Security Council. When France and England invaded Libya and when Russia invaded Ukraine, there was no discussion either.”

He added,

“Why aren’t Brazil, Spain, Japan, Germany, India, Nigeria, Egypt, South Africa [permanent members]? Those who currently make decisions are the winners of the Second War, but the world has changed. We need to build a new international mechanism that does something different. I think it is time that we start to change things and it is time that we make a G20 of Peace, which should be the UN”.

Lula has spoken before about his notion of a G20 of Peace, countries with the weight in world affairs to mediate peace agreements but which had the respect of both sides in major conflicts. These would include Indonesia, India, China and some Latin American countries.

He complained that the UN is no longer intervening effectively to resolve longstanding disputes.

“The UN was so strong that, in 1948, it managed to create the State of Israel. In 2023, it fails to create a Palestinian state.”

Lula was presumably referring to the 1947 United Nations General Assembly resolution proposing a partition of British Mandate Palestinian into a Jewish and a Palestinian state. This resolution did not actually create Israel, though it gave the idea international legitimacy and supporters of Israel have often cited it for that legitimacy.

In fact, the UNGA is a deliberative body and had no authority to partition Palestine, which the 1939 British White Paper had promised to the Palestinians for a state of their own.

Pro-Israel propagandists often say that the Jewish community in Palestine accepted the UN partition plan whereas “the Arabs” did not.

This allegation assumes that it was virtuous to accord the UN General Assembly an authority it did not have. It is also incorrect, since the Jews in British Mandate Palestine fought hard in 1948 to subvert the borders proposed by the UNGA, much expanding the territory claimed for the new state of Israel at the expense of the Palestinians, over half of whom were ethnically cleansed. David Ben Gurion, Israel’s founding father, noted in his diary in May 1948 when Israel came into existence that it had no fixed borders, just as the US had not. He clearly envisaged a big expansion. Ben Gurion later launched the 1956 war on Egypt in a bid to seize Egyptian lands for himself. So nothing in the historical record would make a dispassionate observer conclude that the Israelis accepted the UNGA partition plan, despite its vast generosity to them far beyond what their land ownership (6%) or population (1/3) would have warranted.

As for the Palestinians, they never got their state, in large part because Israel illegally seized Gaza and the West Bank in 1967 and have squelched Palestinian aspirations ever since, while sending in hundreds of thousands of Israeli squatters to steal Palestinian privately-held land and build Jewish-only housing on it.

Lula is correct, however, that the United Nations has not played the sort of role in midwifing a Palestinian state in 2023 that its founders would have wanted for it. That is because the United States systematically vetoes any UN Security Council resolution that would advance the cause of Palestinian statehood.

That obstreperousness was what Lula was complaining about. He was saying that the Security Council can’t make peace in the world because the five permanent members are themselves serial aggressors and they are not honest brokers in the major conflicts the world faces.

His point is a smart one, that the architecture of international peacemaking envisaged by the framers of the UN in San Francisco in 1945 has proven inadequate to the task or been subverted by the warmongering of the five permanent members. Whether his proposed fix has any life in it remains to be seen.

Wind now generates 26% of Portugal’s electricity consumption, and another 23% is provided by hydroelectric facilities. The country’s last coal plant closed late last year, but it still uses methane gas for 29% of its electricity production.

Portugal’s main utility company, EDP, is trying to expand solar, which only provides 3.5% of the country’s electricity needs. Solar panels are bulky and take up land needed for other purposes. So EDP put 12,000 panels on the huge Alqueva Reservoir, according to Sergio Goncalves and Miguel Pereira at Reuters, and will begin generating electricity for 1,500 local homes imminently. Alqueva is already used to generate hydroelectricity.

EDP says that the cost of the electricity produced by the floating solar array is one-third that of a gas-fired power plant.

Reuters: “Portugal builds Europe’s largest floating solar park”

So this arrangement has many advantages. For one, the electricity generated by the panels can easily be plugged into the grid through the same nodes used by the hydroelectric facility. Further, solar panels’ efficiency can be reduced when they get really hot. Being on the water cools them and keeps them producing electricity at a high level. A reservoir like Alqueda typically is the sort of place where it is easy to put in pumped hyrdro. The new solar facility will push water uphill during the day to be stored and then released at night. It will also be complemented by 2 gigawatts of lithium-ion battery storage, another way of releasing power to the grid when the sun is not shining. There is a further benefit, which is that the solar panels over the water cut down on evaporation, a real threat with increasing temperatures. This last consideration means that in India and California panels are already being put over irrigation canals, for instance.

EDP will expand the facility to 70 megawatts of installed capacity.

That is still small compared the the 122,000- panel floatovoltaic farm on the Tengeh Reservoir in Singapore, perhaps the largest inland such facility in the world, generating 60 megawatts of electricity that power its five water treatment plants. Singapore, an island city-state, plans more such floating solar farms, including on the ocean surrounding it.

Pakistan is putting a 300 megawatt floating solar panel over the reservoir created by the Tarbela dam.

The Rewa solar company in India is putting a 600 megawatt solar farm on the Omkareshwar reservoir in Madhya Pradesh.

Shandong Province in China south of Beijing is planning 10 offshore solar plants in the shallow waters near the coast.

I think we can see a trend skyrocketing.