Even though future generations will suffer most from the climate crisis, they cannot participate in today’s political decision-making process. Their interests must therefore be protected in another way and starting a climate court case may be a possible one. The rising number of worldwide climate court cases means that protecting environmental rights through legal avenues is apparently becoming popular .
“Climate litigation is a broad and still maturing term that refers to the rapidly growing body of lawsuits in which climate change and its impacts are either a contributing or key consideration in legal argumentation and adjudication”.
 Ganguly, Setzer & Heyvaert, 2018, p.843.
Around the globe, approximately 1800 climate change cases have been labeled as climate change litigation, mostly as a side issue . Strategic climate litigation is less common but receives more attention. It involves cases filed to put pressure on states (“strategic public climate litigation”) or businesses (“strategic private climate litigation”) to reduce, adapt or compensate for the damage caused by climate change .
Strategic public climate litigation aims to “influence public policy or policy decisions with climate change implications” . A good example is the Dutch Urgenda case. In 2018, the Dutch Court of Appeal compelled the National Government to do more to reduce greenhouse gas emissions in the Netherlands. The case focused on future generations, and directly relied on the European Convention on Human Rights (ECHR), especially articles no.2 “Right to life” and no.8 “Right to private and family life” .
Strategic private climate litigation, instead, aims to “influence corporate behaviour and strategies in relation to climate change” . However, due to its ramified and international corporate organization, multinationals can easily bypass judication for misdeeds.
Generally, business strategies are planned in the powerhouses of the Western world, physical production is outsourced to low-wage countries, and raw materials are extracted from poor areas prone to weak governments and corrupt judges. This complex business strategy raises questions about the responsibility of multinationals – e.g., in terms of human rights and environmental pollution – a debate that has been ongoing since the 1970s .
To clarify multinationals responsibility, Ecuador recently proposed a UN Treaty on Transnational Corporations. The proposal has been negotiated since 2015 and, so far, it gained support from a majority of 85 UN member states – including China and Russia. The European Union was reluctant at the start of the negotiations, but “[t]here has been a tipping point over the last two years” in favor of the treaty .
In the meantime, case law should provide clarity. The verdicts from e.g., the UK Supreme Court and the Dutch Court of Appeal against Royal Dutch Shell in Nigerian oil pollution cases, show that parent companies do have a duty of care over its subsidiaries, and can therefore be held liable for their misdeeds . This creates more opportunities to hold multinationals accountable . However, these trials are very time consuming. Prosecutor “Friends of the Earth Netherlands” together with four local plaintiffs had to wait 13 years for justice in the Dutch Shell case .