Court:
European Court of Human Rights
Date:
9 April 2024
International provisions/other sources:
European Convention on Human Rights, Articles 2, 3, 8 and 14.
United Nations Framework Convention on Climate Change, Articles 1, 2, 3, 4.
The Kyoto Protocol, Article 3.
The Paris Agreement, Article 2, 3, 4.
Glasgow Climate Pact
Sharm el‑Sheikh Implementation Plan
Synthesis report on the technical dialogue of the first global stocktake under the Paris Agreement, FCCC/SB/2023/9, 8 September 2023
Aarhus Convention, Articles 2 and 9.
Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters
Human Rights Resolution 48/13 on the human right to a clean, healthy and sustainable environment of 8 October 2021
Resolution no. 43/53 on the protection of global climate for present and future generations of mankind adopted on 6 December 1988.
General Comment No. 36 on Article 6 (Right to life), 3 September 2019, UN Doc. CCPR/C/GC/36
Committee on Economic, Social and Cultural Rights, General Comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, 10 August 2017, UN Doc. E/C.12/GC/24
General Comment No. 26 (2023) on children’s rights and the environment, with a special focus on climate change, 23 August 2023, UN Doc. RC/C/GC/26
General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4), 12 December 2015
Inter-American Court of Human Rights, State Obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity: Interpretation and scope of Articles 4(1) and 5(1) in relation to Articles 1(1) and 2, Advisory Opinion OC-23/17 of 15 November 2017 on The Environment and Human Rights.
Domestic provisions:
Constitution of Portugal, Articles 9, 16, 17, 18, 52, 62.
Law no. 83/95 of 31 August 1995, on the Right to Procedural Participation and Collective Action, Sections 1 and 2.
Civil Code, Article 70.
Code of Civil Procedure, Article 16 and 878.
Law no. 19/2014 of 14 April 2014 (Environment Basic Law), Sections 1, 5, 7.
Law no. 67/2007 of 31 December 2007, on Non-Contractual Civil Liability of the State and Legal Persons Governed by Public Law, Sections 3 and 7.
The Code of Administrative Courts Procedure, Articles 9, 109, 112, 131.
Law no. 35/98 of 18 July 1998, on Environmental Non-Governmental Organisations, Sections 9 and 10.
Decree-Law no. 147/2008 of 20 July 2008, which establishes the legal framework for liability for environmental damage and transposes Directive 2004/35/EC of the European Parliament and of the Council of 21 October into national law, Sections 1 and 2.
Law no. 98/2021 of 31 December 2021 (Framework Climate Law), Sections 2, 5, 9.
Law no. 34/2004 of 29 July 2004, on access to justice and the courts, Sections 8 and 16.
Law no. 108/2017 of 23 November 2017, which establishes measures to support the victims of the forest fires that occurred between 17 and 24 June 2017, as well as urgent measures to reinforce the prevention of and fight against forest fires, Sections 1, 2, 15, 16, 18.
Case summary:
Background:
Following forest fires and increasingly severe heatwaves, six young Portuguese, members of the movement Youth 4 Climate Justice filed a case in the European Court of Human Rights against 32 European states. The case was heard on 27 September 2023 before 22 judges and 86 government lawyers and raised interest globally, with extensive media coverage.
Issue and resolution:
Jurisdiction and exhaustion of domestic remedies. The applicants claimed that by failing to control and limit their emissions in a way that was consistent with meeting the target of ensuring a maximum of 1.5°C in global warming, the defendants had violated their rights under Articles 2 (right to life), 3 (torture or inhuman or degrading treatment or punishment), 8 (respect for his private and family life), and 14 (non-discrimination) of the European Convention on Human Rights. The applicants specifically referred to the existing and serious future impacts of heatwaves, wildfires and smoke from wildfires in their lives, well-being, mental health and the amenities of their home. The Court found the case inadmissible.
Court reasoning:
Jurisdiction
The Court ruled that as all of the applicants were residents of Portugal and within its territorial jurisdiction, Portugal was liable for any violations of the rights and freedoms guaranteed by the Convention regarding the applicants. The Court noted the difference between liability and responsibility and that in order to determine responsibility, the merits of the complaint had to be evaluated.
With regards to other states’ jurisdiction, the Court decided that there was no indication that any of the respondent states: (i) effectively controlled an area outside of their borders, so putting the applicants under their jurisdiction nor (ii) exercised authority or control over the applicants. However, the Court noted that climate change cases are distinguished from “classic” environmental issues by a number of particular features, requiring an adaptation of the existing Court case law. Therefore, the Court evaluated whether the applicants’ arguments for expanding the body of case law on extraterritorial jurisdiction were valid, considering the fact that they relied on certain unique characteristics and extraordinary circumstances.
The Court held that:
- “States have ultimate control over public and private activities based on their territories that produce GHG emissions” and that some positive obligations arise from the Convention with regards to climate change.
- There is a causal relationship between public and private actors’ activity within a State territory and the detrimental effect on the rights and welfare of those living outside its borders.
- Climate change is inextricably linked to the existence of humankind and is different from other cause-and-effect situations because emissions in one territory have global repercussions.
However, the Court did not find these arguments sufficient to establish new grounds for extraterritorial jurisdiction.
The Court found that the argument that the States would be required to apply the Convention to the circumstances of people who are not within its jurisdiction due to its obligations under a specific article of the Convention or with regard to a specific Convention issue is not supported by the case-law of the Court regardless of its alleged seriousness or gravity.
Prior to assessing whether the Court has jurisdiction to oversee the compliance with the Convention, the Court had to assess whether the complaint fell within the jurisdiction of the respondent State. The Court added that, besides Portugal, there was no specific connection between the applicants and any of the respondent States that would support the Court’s conclusion that any positive obligations of States had to be exercised taking into account the specific circumstances of the applicants and that nationality/EU citizenship was not sufficient to prove that connection.
The Court also held that, unlike other instruments, the Convention is not aimed at providing broad environmental protection and that extending the States’ extraterritorial jurisdiction on the basis of the control that States have over applicant’s interests under the Convention would lead to uncertainty.
Exhaustion of domestic remedies
The Court concluded that jurisdiction could only be established in relation to Portugal. With regards to Portugal, the Court held that all domestic remedies had not been exhausted and that the claim against Portugal was therefore inadmissible. The applicants had not pursued legal action nationally before approaching the ECHR and the Court noted the existence of a number of potential legal actions that could have been initiated in Portugal.
Joint concurring opinion
Three members of the Committee issued a joint concurring opinion in the case. While they agreed with the Committee’s conclusion, they held that the Committee should have examined the author’s complaints under Articles 6 (2) and 37 (b) of the CRC. They argued that the Committee could have found a violation of these provisions.
Citation:
Duarte Agostinho and Others Against Portugal and 32 others [GC], no 39371/20, 9 April 2024
Link to Full Judgment
https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-233261%22]}
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.