What Role for Private International Law in Youth-Led Climate Change Litigation?
The author of this post is Martina Mantovani, Phd Candidate at the University Panthéon-Assas.
Climate change litigation has increased dramatically since 2015, the year of the Paris Agreement. A 2021 Report drafted by the Grantham Research Institute on Climate Change and the Environment inventoried more than 1.000 new cases brought to court over the past six years. Among these, a specific type of disputes is gaining considerable momentum: those initiated by children and youth applicants.
While youth-led climate change litigation may at first appear rather “niche”, a closer look at the number and types of cases brought in the name of children demonstrates that this phenomenon is all but negligible for its size, its geographical scope, and its impact on domestic legal systems. A blog post authored by Lorenzo Gradoni and myself for Verfassungsblog and Völkerrechtsblog examines this strand of climate change litigation in a North-South perspective, offering insights on its origin, actors, drivers and prospects.
From the standpoint of the private international lawyer, it is worth remarking that just one of out of the 76 judicial complaints of this kind speaks the language of conflicts of laws. Milieudefensie et al. v. Royal Dutch Shell plc., decided by the Hague District Court in May 2021, is a class action brought by seven NGOs – including Young Friends of the Earth – and 17,379 individuals against a private corporation having its principal place of business in the Netherlands. The case raised the question as to whether a private company can violate a duty of care and human rights obligations by failing to take adequate action to curb greenhouse gas emissions. Before moving on to the merits of a case that presented several cross-border elements, the Hague District Court had to assess its own jurisdiction over the defendant and to identify the applicable law. The Brussels I bis and the Rome II Regulation were deemed applicable to the case at hand.
Considering the outcome of this case – a big victory for the plaintiffs – one may wonder why only 1.3 per cent of the examined cases borrows private international law (PIL) techniques to advance the fight against climate change. The marginal role played by PIL until now may seem surprising, especially when compared to the much bigger part reserved to public international law, whose arguments and discourse feature in most of the domestic complaints and star in some prominent cases brought before the European Court of Human Rights, the Inter-American Commission on Human Rights, the UN Committee on the Rights of the Child (CRC), with a possible debut before the International Court of Justice.
This post sheds some light on the broader phenomenon of youth-led climate change litigation, while addressing at once the plausible reasons behind the performance gap between private and public international law in this field.
Strategic Litigation All Around
Why choosing children and youth as applicants? That’s among the burning questions raised by youth-led climate change litigation. And, indeed, the background of the cases belonging to this trend suggests that we are faced, in this regard, with a strategic move made by the promoters of this litigation. Even though most of the examined cases have been filed by children and youth in their own name, these received substantial support (not only legal, but often also organisational and financial) from several NGOs, who place a special emphasis on their role as initiators of strategic litigation.
The American NGO Our Children’s Trust (OCT) deserves a special mention, being the undisputed forerunner of this kind of litigation. Having brought, since 2011, a great number of actions in the US and consistently acting as an advisor in high-profile cases brought in other jurisdictions, OCT defines itself as “a non-profit public interest law firm that provides strategic, campaign-based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate”. The “highly strategic legal campaign” this organization is leading “includes targeted media, education, and public engagement work to support the youths’ legal actions”. In the same vein, the Centre for Environmental Rights, who is behind the first South African youth-led constitutional case, “engages in strategic litigation, advocacy, and supports community groups in defending their right to a healthy environment though training and other support initiatives”. Plan B, the initiator of several youth-led climate change cases in the UK, “has been established to support strategic legal action against climate change” with a view to “harnessing market forces towards a better future for us all”. (All italics of this paragraph are added for emphasis).
Strategy is the deliberate search for a plan of action that will develop a competitive advantage and compound it, with a view to facilitate the achievement of the envisioned objectives. These goals emerge with particular clarity from the definition of “strategic litigation” given by the Grantham Research Institute on Climate Change and the Environment, i.e., lawsuits “where the claimants’ motives for bringing the cases go beyond the concerns of the individual litigant and aim to bring about some broader societal shift”, such as “advancing climate policies, creating public awareness, or changing the behaviour of government or industry actors” (here, at 12).
When thinking in terms of legal strategy, child and youth applicants may bring along an important competitive advantage, insofar as they can advance specific arguments both on the merits and on procedural grounds that would be either unavailable or not as compelling if put forth by adults (more on this later). But there could be more to youth applicants than sheer legal advantages. In our blogpost, Lorenzo and I suggest that youth-led litigation may be a sophisticate implementation of a broader strategy that straddles law and behavioural sciences, as expressed by Lovejoy’s Law, a presumptive law of social psychology named, curiously enough, after Helen Lovejoy, the Reverend’s wife in The Simpsons. According to Lovejoy’s Law, the love for children is likely to be invoked as an emotional trump card when opponents in a political dispute run out of rational arguments. Said otherwise, it is hard(er) to say no to children, and adults might be more willing to make compromises for the sake of their kids than they would normally make for their own good. Youth-led litigation might therefore create higher engagement, both in the members of the presiding court and in the general public, in keeping with the strategies pursued by the promoting NGOs.
The Absence of PIL from Youth-Led Litigation
None of the above explains why youth-led litigation has not embraced PIL in the fight against climate change. On the contrary, such omission remains baffling for two reasons.
First, the effects of Lovejoy’s law, if any, could be felt in a trial against a private multinational corporation just as well as in an action against a sovereign state, a type of action which is vastly prevalent in current youth-led climate change litigation. In this respect, it is interesting to note that the complaint in Milieudefensie evokes this Lovejoyan motive, when it affirms that “[c]limate change is an urgent issue. Not only are we already confronted with the consequences every day at present but our children’s future is at stake too. […] Milieudefensie senses that responsibility and it, therefore, makes climate justice the central theme of this new General Policy Plan (here, § 153). The action brought against Royal Dutch Shell aimed at implementing said Plan (at § 154).
Second, PIL has traditionally given the nod to strategic litigation, forum shopping being, according to some scholars, among the most unforgettable notions of this field of law, that keeps lingering even in the minds of those who are largely uninterested in the subject (here, at 49).
The absence of PIL from the toolbox of youth-led climate change litigation has seemingly little to do with the alleged inability of this field of law of addressing global governance issues in a meaningful way. Rather, the explanation appears more “down to earth”, one may say, insofar as it may stem, on the one side, from the particular way in which this strategy is conceived and implemented at the global level and, on the other side, from the current state of climate change legislation.
As for the latter, the statements made by ClientEarth – one of the most important NGOs in the field – are particularly revealing of the dissatisfaction with the current state of climate change legislation. In a section named “How we work”, this NGO distinguishes between “shaping” and “enforcing the law”, suggesting that much works needs to be done on both accounts. This explains why most of the efforts made until aims at filling the gaps of the extant legal framework, either by holding states accountable for commitments made in international agreements (rather than in ad hoc national legislation) or by proposing innovative and expansionist readings of traditional legal notions of domestic (constitutional) law, with a view to deploying them in relation to the “new” problems created by climate change (e.g. the use of the public trust doctrine in the US: see here, at 875). In the words of ClientEarth, the promoters of this litigation: “know how to use the legal system as a lever of change, how to enforce it and how to win” and thy do “not shy away from challenging governments and businesses in court”.
Lawsuits of this kind are situated at the crossroads between “shaping” and “enforcing” domestic laws. This is evidenced (a) firstly, by the lack of global consensus, among the applicants, on very important aspects of such litigation, such as the criterion for apportioning the burden of mitigating measures among states and, (b) secondly, by the emphasis placed by NGOs on the efforts made to adopt, for the purposes of human rights-based litigation, a common (ie global) scientific standard regarding emission reductions, on the assumption that such standard is not satisfactorily embodied in current laws (correspondence with NGOs on file with the author). Against this backdrop, choosing to pursue the action against states seems the most logical way forward, fuelled by the hope of triggering Neubauer-like scenarios, whereby a big win in a (constitutional) forum is followed by a wide-ranging adaptation of existing legislation. Once the desired scientific standard is enshrined in domestic laws, cases against non-compliant businesses may be less cumbersome and become a more straightforward expression of a strategy based on the sheer “enforcement of laws”, in its “public” and “private” variations.
The main reason for the absence of PIL from youth-led climate change litigation lies, precisely, in the choice of defendant made by the “first generation” of claims. A case – even a civil claim – brought against a state in relation to its (sovereign) environmental policy choices will never give rise to issues of jurisdiction, understood as the identification of the competent (state) courts. In fact, this sovereign will have to be summoned before its own courts, in order to prevent the use of state immunity as a foreseeable defence. In the same vein, when the claim questions the quality or the adequacy of a state’s legislation, or invokes the responsibility of said state in relation to an alleged violation of its obligations or duties of care, there is no real issue of applicable law. This will always be the law of the defendant state, eventually read in the light of pertinent international norms. In other words, PIL has not much to say on these matters, the international fungibility between (state) courts and between (state) laws that lies at its core being plainly and incurably lacking in cases presenting this specific conformation.
This is not to say that PIL will not play any role in the future. A closer look at the genesis and conception of the litigation strategy behind the youth-led cases brought until now reveals its highly experimental nature. This strategy is built on a process of trial and error: small and bigger changes are tried and tested, on an experimental basis, in subsequent cases, those that are beneficial being gradually transposed and tested in other jurisdictions. A similar pattern will likely be replicated as regards the choice of defendants: in this sense, the win in Milieudefensie may pave the way to other youth-led climate change cases brought against oil and gas corporations.
PIL Moving into the Spotlight?
Intimations of a change in this direction come directly from the world of NGOs. The Children’s Investment Fund Foundation is “the world’s largest philanthropy that focuses specifically on improving children’s lives” and counts “climate change” among its priorities. It is currently among the major funders of youth-led climate change litigation, that it backs with a $ 83,6 million grant. More precisely, a $ 26,4 million grant is tied to the “ClientEarth Phase III” project, which supports “strategic litigation to accelerate Europe’s low carbon transition and secure Europe’s climate leadership by putting it on a Paris-aligned trajectory”, and $ 21,9 millions are allocated to the File project, which supports similar litigation “in multiple jurisdictions”. It is also worth stressing that the Children’s Investment Fund Foundation has recently been the recipient of some criticism: despite having being created to improve “the lives of children in developing countries who live in poverty”, this organisation has, more recently, allegedly “been used … to pass money towards environmentalist campaigns and other foundations pushing for legal action against energy companies due to the cost of climate change”.
The assumption underpinning this criticism is, at best, debatable: legal actions against energy companies in rich countries might well have indirect beneficial effects on the lives of children in developing countries. However, what is important for the purpose of this blogpost is the acknowledgment of a shift in the flow of funds, that seems to favour, at present, litigation directed against private corporations. Consequently, PIL will play an increasingly important role: owing to a variety of factors – such as the breadth of the activity of transnational corporations, the geographical complexities of their corporate structure, the origin of the applicants, the ubiquity of the damage caused by CO2 emissions, etc – these cases will likely present a “foreign element”, triggering questions about jurisdiction, applicable law and, why not, enforcement of foreign civil judgments.
Transposable Legal Strategies?
It is hard to foresee whether this prospective “private strand” of climate change litigation will turn out to be similar to the cases directed against states In cases brought against states before constitutional and international courts, child and youth applicants may be in a more favourable position when arguing both on the merits of the case and on its admissibility.
Concerning admissibility, child applicants might more convincingly plead for the setting aside of the requirement of the prior exhaustion of domestic remedies. While the CRC decisions in Sacchi may disprove this assumption, this is what the lawyers in Duarte Agostinho are trying to advance (here, § 40), given that, in applying this rule, the ECtHR has traditionally paid due regard to the “personal circumstances of the applicant” in order to prevent disproportionate obstacles to the effective exercise of the right of individual application under Article 34 of the Convention (here § 109 and 111). Concerning the merits, child and youth applicants may invoke, first, a principle of non-discrimination, whereby they shall be entitled to the same level of protection of fundamental rights afforded to prior and present generations of adult citizens. Second, they may allege a specific kind of damage. According to the constitutional complaint in Held v Montana, § 231, owing to their “unique physiological characteristics and vulnerabilities, and lack of autonomy and dependency on caregivers” children are “more vulnerable to rights violations”. Being“at a critical development stage in life, as their capacities evolve and their physiological and psychological maturity develops more rapidly than at any other time in life”, youth and children form part of “a separate suspect, or quasi-suspect, class in need of extraordinary protection“. While being specific to a constitutional complaint made under the equal protection clause, arguments of a similar kind could be also invoked within the framework of an action, such as the one put forth by Milieudefensie, aiming at imposing a “duty of care” upon corporations. This should therefore be especially stringent and more compelling vis-à-vis children and youths, as a special class of individuals in need of extraordinary protection.
One should also ask whether, in a lawsuit brought against a corporation, PIL would grant child and youth applicants any kind of comparable favor that is, one that would place them in a better position than an adult filing a comparable claim. In current law, the answer is in the negative. Concerning access to justice, only a few EU Regulations in the field of parental responsibility manifest a certain favor for the child as such, insofar as the sheer presence of the child on the territory of a Member State may, in exceptional circumstances, justify the exercise of jurisdiction by the authorities of that state (e.g. Article 11 of the Brussels IIter Regulation). Outside this particular case, the mere quality of being a child cannot be invoked to bend, in any way, the uniform rules of jurisdiction set by the EU legislator, ie to open a forum in Europe when there is none. The CJEU has confirmed, in case C-393/18 PPU, that the particular vulnerability of the child, deriving from his lack of decisional autonomy and his dependency vis-à-vis his caregivers, cannot serve as a basis for an extensive interpretation of the grounds of jurisdiction established by EU law.
This same argument should apply, a fortiori, in civil and commercial matters, which youth-led climate change litigation belongs to. Here, the principle of the best interests of the child is no longer at the forefront, and there is no detectable favor for younger applicants. As far as the Brussels Ibis and the Rome II Regulations are concerned, child and youth applicants are in the exact same position as an adult bringing a comparable claim. It is equally unlikely that the condition of dependency of the child vis-à-vis the caregivers could warrant the opening of a forum of necessity under domestic rules of PIL, on the basis that “proceedings abroad are impossible or cannot reasonably be required” (cf art. 3 of the Swiss law on PIL).
Nonetheless, there are good reasons to suspect that an increasing number of youth-led climate change cases against corporations will land in Europe in the near future. In fact, despite the neutral attitude adopted by PIL vis-à-vis child applicants, the procedural framework set out by EU law remains remarkably advantageous for the plaintiffs.
First, these could profit from the “hard-and fast” logic underpinning the rules of the Brussels Ibis Regulation, that makes establishing jurisdiction vis-à-vis a corporate defendant having its statutory seat, its central administration or its principal place of business in the EU a relatively straightforward affair, as evidenced by cases such as Luciano Lliuya v. RWE AG or Milieudefensieitself. Youth-led climate change litigation could also follow the trail blazed by the cases on social corporate responsibility and learn from this experience in order to attract, in that same European forum, eventual subsidiaries domiciled in third states. Second, in terms of applicable law, the EU legal framework might be particularly appealing in the light of the policy-oriented rule of conflict set out by Art. 7 of the Rome II Regulation, that grants the plaintiffs a choice between the law of the country where the damage occurred and that of the country of the unlawful event. This could point, in most cases, to the applicability of the law of a Member State, embodying the European acquis on environmental law and abiding to a fairly high standard of protection.
A thorough analysis of the advantages (and potential inconveniences) underpinning the rules of EU PIL is beyond the scope of this blog post. I formerly discussed the possible strategies employed to “open” a forum in the EU based on the Brussels Ibis Regulation here. For the rest, I gladly refer to the overview given here by Eduardo Álvarez-Armas. It should just be added that the recently published Proposal for a Directive on corporate sustainability due diligence might bring along a new, unprecedented advantage for child applicants who succeed in seizing a court in the EU. The proposed Directive – which purports to effectively contribute to combating climate change: cf Recital 50 – seeks to introduce, inter alia, a uniform rule on civil liability for the violation of the (also uniform) obligations of due diligence set out by the proposed instrument. This rule would be applicable also to companies established outside the EU “where 80-90 % of the harm of EU production may occur”, provided that the turnover criterion set out in Art. 2(2) of the proposed Directive is complied with (see here, at 8). Equally remarkable is the fact that the rule on civil liability shall be “of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State” (Art. 22 (5) of the Proposal). This civil liability rule will therefore complement the law identified under Art. 7 of the Rome II Regulation, in cases where the latter provision will not, due to the specific features of the harmful event, point to the law of a Member State. This plaintiff-friendly legal framework, coupled with the existence of child-specific and geographically targeted funding within the framework of the ClientEarth Phase III project, will likely turn Europe into the hub of youth-led climate change litigation against corporations in the coming years.
