Credits: Leonardo Basso on Unsplash
Climate litigation is increasingly used across Europe to hold governments accountable for inadequate climate action. In Italy, this took a significant step forward with A Sud et al. v. Italy, the country’s first systematic climate case. Yet, rather than marking a breakthrough, the case reveals a deeper tension: while Italian law is evolving to recognize the rights of future generations, courts remain hesitant to enforce them. This raises a central question: can constitutional recognition of intergenerational environmental protection influence climate governance if courts refuse to enforce it? This blog post argues that A Sud exposes a growing gap between legal recognition and judicial enforcement, risking the practical protection of future generations.
A promising claim and a missed opportunity
In 2021, more than 200 individuals and 24 environmental associations brought a claim against the Italian State before the Civil Tribunal of Rome. The applicants argued that Italy’s insufficient climate policies violated fundamental rights, framing climate inaction not as a political issue but as a legal wrong. Their argument was ambitious. Drawing on constitutional law, international agreements, and human rights jurisprudence, the claimants asserted a “right to the climate” (“diritto al clima”), understood as a right to a stable and healthy climate, and to preserve “liveable conditions for future generations”. At the domestic level, the claim relied on constitutional protections of life and health (Arts. 2 and 32). Internationally, it invoked the Paris Agreement, specifically the failure of the Italian State to comply with its targets and broader climate obligations. Crucially, the applicants also relied on Articles 2 and 8 of the European Convention on Human Rights (ECHR), arguing that climate change poses a foreseeable and serious risk to life and private life. This makes A Sud a key case for assessing both the potential and the limits of rights-based climate litigation in Italy.
Human rights and climate change: a common thread
This human rights framing reflects a broader European trend. Courts are increasingly recognizing that inadequate climate action can violate fundamental rights. The Dutch Supreme Court’s decision in Urgenda established that States have a duty to reduce emissions in line with scientific evidence. More recently, the European Court of Human Rights (ECtHR) confirmed this approach in the KlimaSeniorinnen case. In that landmark 2024 judgment, the ECtHR held that insufficient climate mitigation can violate Article 8 ECHR, explicitly linking climate change to human rights protection. Against this background, the A Sud case appeared to offer Italian courts an opportunity to align with this emerging human rights approach – an opportunity they ultimately declined.
The Court’s response: avoiding the merits
In February 2024, the Civil Tribunal of Rome (Tribunal) declared the claim inadmissible for lack of jurisdiction (pp. 13-14). The reality or urgency of climate change was not in dispute between the parties (p. 11) – instead, it held that the applicants were asking the judiciary to interfere with political decision-making. According to the Tribunal, decisions on climate policy fall within the discretion of the legislative and executive branches (p. 12). As such, there was no enforceable legal obligation that courts could review (p. 12). The claim was thus characterized not as a protection of rights, but as a challenge to political choices (p.12). This reasoning allowed the Tribunal to avoid engaging with the substance of the case, effectively shielding climate policy from judicial scrutiny. While this reflects a legitimate concern about judicial involvement in complex policy decisions, it also means the Tribunal avoided addressing whether fundamental rights impose limits on such discretion.
A constitutional shift – overlooked
This judicial restraint is particularly striking considering a major constitutional development. In 2022, Italy amended Article 9 of its Constitution explicitly stating that the Republic “protects the environment, biodiversity and ecosystems, also in the interest of future generations.” This reform marked a significant shift: environmental protection is now embedded in the Constitution’s fundamental principles, with an explicit intergenerational dimension. Yet, despite being decided after the 2022 reform, A Sud had been initiated in 2021, before the constitutional amendment entered into force. This may partly explain why the Court did not meaningfully engage with the revised Article 9. Yet this explanation is not entirely convincing. Scholars have pointed out that the amended Article 9 was already in force when the Tribunal issued its decision in February 2024, and that it could have helped overcome the narrow separation of powers reasoning the Tribunal relied upon, precisely because it directly links the State’s constitutional obligations to concrete legislative action on environmental protection (pp. 258-259). It has also been argued that the reform favours an intergenerational reading of constitutionally protected rights, which lies at the heart of the A Sud claim. The Tribunal’s failure to engage with these developments therefore represents more than a missed opportunity, raising the question of whether the Tribunal applied the constitutional framework as it actually stood at the time of the decision. Nevertheless, this omission highlights a key tension and structural limitation within the Italian legal system. On paper, Italian constitutional law has moved toward recognizing duties owed to future generations. In practice, however, courts have not yet translated this principle into enforceable standards.
Intergenerational rights and human dignity
At the heart of the applicants’ claim lies a broader conceptual argument: climate change is not only an environmental issue, but a matter of human dignity across time. The claim linked climate instability to the “essential contents” of fundamental rights, arguing that failing to mitigate climate change undermines the conditions necessary for a dignified life. Importantly, this reasoning extends beyond present individuals. It suggests that future generations are entitled to live under conditions compatible with human dignity. This intergenerational understanding of rights is gaining traction across jurisdictions, as courts and litigants develop new legal arguments to address the long-term impacts of climate change. However, the A Sud decision shows how difficult it remains to operationalize it within traditional legal frameworks.
Structural limits of Italian climate litigation
The outcome of the case also reflects broader structural features of the Italian legal system. As noted in legal commentary, courts are generally reluctant to review legislative choices or impose specific policy outcomes. In addition, Italy lacks a comprehensive climate framework establishing binding mitigation targets. Climate governance is instead largely based on planning instruments, such as the National Energy and Climate Plan (PNIEC), which often lack sufficiently detailed or binding measures, limiting its usefulness as a benchmark for judicial review. This significantly weakens judicial accountability and hinders the implementation of climate obligations, even where fundamental rights are invoked. This highlights how institutional design shapes the limits of climate litigation: without clear legislative benchmarks, courts have little basis to assess the adequacy of climate policies.
Conclusion: recognition without enforcement?
The A Sud case illustrates a paradox at the heart of contemporary climate law. Italy has taken an important step by constitutionally recognizing the protection of future generations. At the same time, its courts remain cautious in giving concrete effect to this principle. This challenge is not unique to Italy: across jurisdictions and in recent case law, climate litigation reveals a gap between recognizing rights and enforcing them. While courts are more willing to acknowledge the human rights implications of climate change, they often hesitate to intervene where doing so would require evaluating complex policy choices. The result is a form of judicial restraint that risks limiting the practical impact of rights-based climate claims. Whether this gap will persist remains an open question. The pending appeal in A Sud may provide an opportunity for Italian courts to engage more directly with the evolving human rights framework on climate change. For now, however, the case suggests that constitutional recognition alone is not enough. Without judicial willingness to enforce these principles, the constitutional recognition of future generations risks remaining largely symbolic, raising doubts whether constitutional promises can truly protect future generations from the accelerating impacts of climate change.
Bio
Eva Persichetti is a student at Leiden University College, majoring in International Justice. She participated in the Research Clinic “Climate Litigation for Future Generations” supervised by Dr. Otto Spijkers.