(Green European Journal) Is society ready to break with legal and political norms to tackle the climate crisis? Perhaps: in France, between the end of 2018 and the beginning of 2019, the L’Affaire du siècle (the case of the century) petition broke records by gathering more than two million signatures. Launched by the non-profit Notre Affaire à Tous, together with three other NGOs,[1] it aims to have the French state’s duty and failure to act on climate change recognised. More than just a legal battle, this global movement for climate justice is profoundly political.

Reaching a million signatures in just two days, the strength of support for the Affaire du sièclepetition took even its backers by surprise. What’s behind this success? The hugely symbolic resignation of France’s Environment Minister, Nicolas Hulot, at the end of August 2018, and monthly Climate Marches that followed have shown that the French are impatient for political action on climate change. Meanwhile, Greta Thunberg launched the Climate Strikes that continue to spread around the world, and the convergence of these dynamics has quickly become apparent. In the autumn of 2018, the Gilets Jaunes revolt changed the situation: its origins lay in another petition – demanding the cancellation of fuel tax rises – which also received over a million signatures. For the team behind L’Affaire du siècle, trying to compete with this social movement made no sense, so the petition was launched just after the COP 24 summit in December 2018. Less than a month later, it had collected over two million signatures. Whether this marks an historic turning point or simply the expression of public expectations, we are now seeing growing awareness and calls for action.

The team behind the petition recognise the historic nature of this massive support. Indeed, a survey is underway to better understand the expectations of signatories and find out what they would like the future strategy to be. But they emphasise that this approach isn’t new: in fact, similar initiatives have been launched around the world over the past few years. The Notre Affaire à Tous organisation was inspired by the Urgenda Foundation, which, together with 886 citizens, took the Dutch government to court to force it to take more action against climate change. In 2015, a court in the Hague ruled that the Dutch state had a legal duty to take measures to reduce greenhouse gas emissions: the court even ordered the government to revise its emissions reduction targets upwards from 17 per cent to 25 per cent by 2020. Although (having already lost two appeals) the Dutch government is now challenging the ruling in the country’s supreme court, the case is another building block in climate case law.

Creating a new area of law

“There still aren’t enough rights for citizens when it comes to environmental and climate damage”, explains Marie Pochon, coordinator at Notre Affaire à Tous. “We are part of an ongoing struggle: first there was the fight for civil rights, then in the 20th century there was the fight for social rights. We are convinced that the great battle of this century will be for environmental rights”. This means having damage recognised and, with it, liability. “Our idea is that the government should act in the public interest and therefore protect the most vulnerable”.

This fight to recognise liability is not new: the concept of ecocide dates to the Vietnam war and the use of Monsanto’s Agent Orange by the US Army to clear forest, the health effects of which have been felt for generations.[2] “There has been a correlation between environmental destruction and the undermining of people’s living conditions. Damaging vital ecosystems threatens human peace and security: serious harm to the environment must therefore be recognised as a crime”, adds Valérie Cabanes, a lawyer and co-founder of Notre Affaire à Tous. Environmental destruction is recognised as a crime in the statute of the International Criminal Court, but only in wartime: there are efforts to have it recognised as a crime in peacetime, ideally as a criminal offence in its own right: the crime of ecocide.

“We are convinced that the great battle of this century will be for environmental rights”

The thinking around ecocide is developing a conception of law that incorporates living species’ rights of existence and regeneration, the interdependence between species and the rights of future generations. From this standpoint, the first duty of the state is to protect the rights of its people and territory. Defending the interests of multinationals, for example, is of secondary importance. “Recognising the principle of interdependence is intended to build a regulatory framework around industrial activity and ultimately upend the hierarchy of norms”, explains Cabanes. “Since the 1970s, international law has been undermined by commercial law, which most of the time conflicts with human or environmental rights, and even trumps these, as is the case with rulings made by the private arbitration courts put in place by the WTO, which can overturn judgments of the International Court of Justice. This situation is totally unprecedented for humanity. It calls for the creation of new law”. That’s the first goal of the L’Affaire du siècle petition: if the state, by prioritising economic and industrial interests, does not act fast enough in addressing climate change, it needs to be reminded that it has a duty to its citizens too, not just to multinationals and big business.

If there are victims of climate change, there are villains too

The idea of apportioning blame is fundamental to the work of the Notre Affaire à Tousorganisation. “As the 2017 Carbon Majors report shows, 100 multinationals are responsible for 71 per cent of CO2 emissions in the world since 1988, and just 25 of them are responsible for 50 per cent of these emissions. These multinationals act in the knowledge of the consequences of their decisions, they are aware of the destruction of our planet and the species inhabiting it, and they threaten our rights. We have the right and the duty to regulate them”, argues Pochon. To protect people, the state should regulate the activities of polluting companies. That’s why the petition is not just seeking recognition of environmental damage and the state’s liability: it hopes that the court will order the government to act. “We are simply demanding that the law be enforced and commitments kept, but the judge may also order the state to go further”, says Pochon. For example, even though France does not extract hydrocarbons, the country has invested 11 billion euros in fossil fuels, notably through tax breaks: the Climate Action Network has denounced the tax breaks for certain fuels, like kerosene. According to Pochon, “given the emergency, this is unacceptable! The state must massively divest from fossil fuels, including from imported emissions and their financing.”

By adding another building block for climate justice, we can also directly strengthen social justice.

Regulating the companies’ activities would also shift the burden on to polluters. “What’s the point in making individual efforts when the state has not honoured its commitments made at COP 21, targets are not met and concrete measures that could be powerful levers are delayed? Rather than issuing edicts to change behaviour on waste, transport or energy, it would be fairer if the state played a supporting role to ensure that the ecological transition is built on social justice,” adds Pochon. “The Gilets Jaunes are simply demanding that the burden doesn’t fall on the shoulders of the poorest”. This social movement which, with a protest every week for months, has broken records, was born out of opposition to an increase in fuel duty. The petition originally suggested other ways for mitigating the carbon impact of transport without penalising ordinary people (encouraging remote working, subsidising the purchase of green vehicles, moving jobs closer to where people live, etc.). “I think I can speak for all those who are fed up with paying for the mistakes of politicians and who don’t want to keep on paying for everything at any price”, declared Priscillia Ludosky in her conclusion to the petition she started.

By adding another building block for climate justice, we can also directly strengthen social justice. The number of climate change victims is growing, especially in the poorest countries. In Europe, the impacts are now starting to be felt, and are hitting the most vulnerable hardest: the elderly, who suffer most during heatwaves; poor people who live in badly insulated housing; professions that are directly dependent on the state of biodiversity like fishing and farming; and young people, whose very future could be marred by climate change. Research shows that the French state is not doing enough in its role as facilitator for transition: for example, a report by the Institute for Climate Economics published in November 2018 highlighted how France lags behind when it comes to clean investment, like low-carbon vehicles, while investment in vehicles with internal combustion engines remains massive.[3] According to Pochon: “If we don’t point the finger at anyone, people think that a bit of blame lies with everyone, which in reality means no one in particular, so nothing happens and the crisis deepens. This is why we feel powerless in the face of global change. Today, across the world, a call for justice is emerging”.

The explosion in climate lawsuits worldwide

The L’Affaire du siècle has snowballed from France to other parts of the world. “We are feeding others just as others fed us. The L’Affaire du siècle petition is part of a worldwide movement. Legal action is being taken around the world, especially by young people, and young women in particular. It’s historic!”, says Pochon. Over the last ten years, some 1200 cases have been brought in courts in every part of the world and at every level, from micro-local to national to European: Notre Affaire à Tous is part of the People’s Climate Case, litigation brought by ten families from Portugal, Germany, Italy, Romania, Kenya and Fiji, together with the Sweden’s Saami Youth Association, Sáminuorra. They are taking the European Union to court because its climate targets lack ambition and endanger their fundamental rights. They are demanding the EU’s 2030 climate targets be increased through the regulation of carbon emissions, the promotion of energy efficiency and the regulation of natural carbon sinks like soil and forest.

In Belgium, the Klimaatzaak lawsuit has over 63 000 supporters. Further legal action is planned in Spain, Slovenia and Italy. When asked which is more effective, action at national level or action at European level, Pochon’s response is: “Both. For example, while Emmanuel Macron claims to be the leader on climate,[4] this isn’t what he champions on the European stage”. The organisation therefore hopes that the ruling in the Affaire du siècle case will highlight France’s inconsistency when it comes to its European and international commitments and, by exerting political pressure, force its leaders to act.

A body of climate case law is thus being slowly built up across the world upon the initiative of ordinary people. Some of the first verdicts have come from places as far afield as Pakistan and Colombia. Cabanes cites the latter as an example: “It began with a lawsuit by young people demanding the end of deforestation in the Amazon. The Supreme Court recognised the right of future generations to a healthy environment and granted the Amazon the status of a legal person, whose intrinsic qualities can then be defended, which is the corollary of recognising the crime of ecocide in criminal law. Colombia did not address rights of nature in its constitution, so these have been recognised not through legislation but through case law”.

A body of climate case law is being slowly built up across the world upon the initiative of ordinary people.

This aspect of collective work based on citizens’ movements is crucial. At the UN, we have seen the first attempts to implement binding climate treaties in a top-down approach: this has not been very effective, as states are free to disregard these rules in the name of national sovereignty. “Climate is completely changing the way politics is done by challenging many things. There is a real issue around our governance in the face of the climate crisis”, says Pochon. “That’s why we’re taking legal action: leaving polluting multinationals to decide our future is an enormous democratic problem.” Is climate justice a new side to democracy? “It’s true that our action involves political issues. Case law takes a long time, which is why we need non-profits to be a driving force. But through this approach we can think long-term, more so than through the electoral system.”

Between central government and citizens, on the front line when it comes to managing the consequences of climate change, local authorities are acting too: several French municipalities, together with the former mayor of Grande-Synthe and Green MEP Damien Carême, have launched a legal challenge with France’s Council of State for “climate inaction”. In the same vein, in October 2018, 13 French towns sent an open letter to Total demanding that the company meets the targets set out in the Paris Agreement. Notre Affaire à Tous also supported these actions.

Moving forward together

“At Notre Affaire à Tous, we never work alone because we believe that we can only win together. Many would like to see us divided”, claims Pochon. Although the organisation tries to break down the silos between environmental experts – the L’Affaire du siècle lawsuit is the result of two years’ interdisciplinary work with lawyers, academics, non-profits and the media – , it also advances the long-standing demands of NGOs to increase the influence of its action. This alchemy between different stakeholders is one of the key ingredients for the L’Affaire du siècle petition’s success, with each mobilising its representatives to exert considerable political pressure: “with two million people, we can do many things”, enthuses Pochon.

For Cabanes, the approach’s success lies in its dual objective: to achieve a legal victory while also raising awareness. “The law evolves with our level of awareness. It can evolve by influencing policies, but if citizens don’t understand the issues, it makes it difficult to adopt new legal frameworks. The L’Affaire du siècle is helping to raise awareness of the fact that our laws are no longer in line with the laws of biology and to allow citizens to join the debate. The issue has truly penetrated the collective unconscious. At the last European elections [in May 2019], in France five parties included the recognition of ecocide in their manifestos. A few years ago, people looked at me as if I were from outer space!”

Recent debates in the French Senate on a draft bill to recognise ecocide revealed the degree of awareness surrounding the issue: it wasn’t attacked for its substance, but for its form, emphasising the need to tackle the issue at international level. “They were no longer in denial or cynical. Their reasoning stemmed from their acknowledgement of the need for the recognition of ecocide, ideally by the International Criminal Court”, explains Cabanes, who sees this as another sign of progress in the cultural fight to shift politics towards a new conception of justice.

[1] La Fondation pour la Nature et l’Homme, Greenpeace France and Oxfam France.

[2] Valérie Cabanes. Un nouveau droit pour la terre, pour en finir avec l’écocide.

Seuil : 2016

[3]   “Landscape of climate finance in France”. I4CE : 2018. Available at: <https://www.i4ce.org/go_project/landscape-of-domestic-climate-finance/landscape-climate-finance-france/ >

[4] See for example Macron’s stirring “Make our planet great again” speech in response to the United States’ withdrawal from COP 21.