The Portuguese Children’s Case – Shared Responsibility for the Human Rights Impacts of Climate Change

By Dr. Viktoriya Gurash, postdoctoral researcher at the University of Zurich

On 27 September 2023, the Grand Chamber of the European Court of Human Rights (ECtHR) heard the Duarte Agostinho case, brought by six young Portuguese people born between 1999 and 2012. This case involves 33 Contracting Parties of the Council of Europe as defendants. The ECtHR, with the same Grand Chamber composition, had already heard two other climate cases brought against Switzerland and France this past March (the KlimaSeniorinnen and Carême cases, respectively). After this third and final hearing on climate change issues, the Court will prepare co-ordinated leading judgments in all three cases. Ultimately, these cases hold the promise to clarify States’ human rights obligations in light of the specific characteristics of anthropogenic climate change. Relying on their right to life and respect for private and family life, established in Articles 2 and 8 of the European Convention on Human Rights (ECHR), the applicants urge the ECtHR to call upon governments to take measures which limit climate change. However, the Court’s opportunity to deliver climate justice depends on whether admissibility hurdles can be overcome.

Each of the climate cases currently pending before the Grand Chamber faces difficult admissibility questions, requiring the ECtHR to reconsider its case law in various structural regards. For example, the KlimaSeniorinnen case raises the significant issue of the association’s victim status, whereas the question in Carême revolves around the situation of the applicant’s residency. However, the admissibility challenges in Duarte Agostinho are the most complex of the three cases. In addition, this case required specific procedural adjustments before the ECtHR. In light of the recent hearing, this post highlights the unique features of Duarte Agostinhoand considers the call for a fresh approach to extraterritorial jurisdiction (ETJ) as one of the main contentious points raised by this case.

Tailored procedure

The need for a transnational answer to global warming prompted the Duarte Agostinho applicants to bring a case against 33 Members States of the Council of Europe. In response to a question posed by Judge Kucsko-Stadlmayer during the hearing, the applicants clarified their reasoning behind the selection of the 33 respondents. Specifically, these respondents are the major emitters within the Council of Europe for whom sufficient evidentiary material is available for scientific analysis. According to the applicants, it was beyond their means to compile the evidence necessary for the assessment of all 47 States that were party to the Convention in 2020 when they submitted their application.

Considering the number of States involved in Duarte Agostinho,certain procedural arrangements were necessary. First, regarding the Court’s composition, the judge elected from the relevant Contracting Party sits as an ex officio member of the Grand Chamber, as per Article 26 §§ 4 and 5 of the ECHR. The participation of 33 judges is unconceivable, since Article 26 § 1 of the ECHR specifies that seventeen judges should sit in the Grand Chamber. In cases such as Duarte Agostinho, where the respondent Contracting Parties have a common interest, the Rules of the Court provide for the possibility of appointing a single judge elected from one of the Contracting Parties to serve as a common-interest judge who will be called upon to sit ex officio (Rule 30¹ § 1). During the hearing, the President of the Court, Siofra O’Leary, announced that according to the above Rule, Judge Tim Eicke was appointed as common-interest judge.

Furthermore, the massive scale of the Duarte Agostinho case required the coordination of the submissions and presentation of positions between 33 States before the Court. The applicants withdrew their complaint against Ukraine, likely to avoid further procedural delays caused by the extension of time limits due to the war. Not all the respondent governments presented their views during the hearing. Instead, the UK provided a joint position of the respondent States on the question of jurisdiction, while Belgium discussed the issue of the exhaustion of domestic remedies and Portugal addressed the question of victim status. In addition, the Netherlands, Portugal, and Turkey presented case-specific arguments. Furthermore, in order to assist the parties in preparation for the hearing, questions by some judges (Pastor Vilanova, Bårdsen, and Guerra Martins) were sent to them in advance. Nonetheless, the judges were able to put further questions to the parties during the oral hearing.

In addition, a significant number of organisations were granted permission to intervene in the written proceedings in Duarte Agostinho as third parties. However, only three party interveners were allowed to present during the hearing. Due to the number of third-party interventions in this case, the President of the Court reiterated the primary purpose of third-party interventions during the hearing, which is to acquaint the Court with the views of States and other persons not party to the case on the issues raised, and to provide additional information and alternative arguments which may differ from those presented by the parties.

Significance of the Duarte Agostinho case

It is clear from the hearing that Duarte Agostinho raises groundbreaking and fundamental questions. Specifically, it questions whether the Court should make an exception to its rule on the exhaustion of domestic remedies. The applicants argue that fragmented litigation across Europe is not an effective remedy, and some State-level proceedings have failed due to the lack of guidance from the ECtHR. Furthermore, this case compels the Court to clarify whether the Convention should be interpreted as granting rights to ‘future generations’.

Regarding substantive issues, Duarte Agostinho raises new questions pertaining to Articles 3 and 14 of the ECHR in the context of climate change. These questions concern the effects which climate change may have on the applicants and their families, and its consequences on the applicants due to their young age. In addition, in its communication to the governments, the Court raised a question regarding the relevance of principles from international environmental law, such as the principle of precaution and intergenerational equity, in interpreting States’ human rights obligations in the climate context. However, these substantive issues were insufficiently addressed during the hearing and were discussed only in relation to the question of victim status.

Call for a new model of extraterritorial jurisdiction (ETJ)

The primary hurdle in Duarte Agostinho is whether the Convention applies extraterritorially to 31 of the respondent States (with the exception of Portugal, the applicants’ home State). Judge Bošnjak’s question during the hearing suggests that the Court may consider whether the possibility of States’ substantive obligations constitutes a ‘special feature’ which can trigger ETJ. To date, the ECtHR’s extraterritorial application in view of special features has been limited to procedural positive obligations (e.g., Hanan v. Germany; Carter v. Russia).

Nonetheless, the parties agreed that the facts of this case do not fit into any of the established ETJ categories. The respondent governments have strenuously argued that the applicants’ approach will require the creation of a new ETJ model. However, this is unsupported by the text of the Convention, the principles of treaty interpretation, and by the principles developed in the Court’s case law. According to the governments, the ‘cause and effect test’, applied by the UN Committee on the Rights of the Child and the Inter-American Court of Human Rights, is contrary to the Court’s established case law.

The applicants claimed that the principles of ETJ are not curved in stone. According to them, the primary issue regarding jurisdiction is whether there is a sufficient factual or legal connection between the State and an individual for activating the State’s obligations under the Convention. They concluded that the cumulative force of the jurisdictional principles derived from the Court’s case law, when applied to the special features of climate change, establishes the necessary connection between the respondents and the applicants.

Furthermore, during the hearing the applicants emphasised that their position on Article 1 of the ECHR does not necessarily imply the global extension of jurisdiction beyond the Convention’s legal space concerning climate change. They argued that numerous principles in the Court’s case law, along with special features of this case, can be used to delineate the scope of jurisdiction in the context of climate change. Of particular relevance are the vulnerability of the applicants, considering their age, location, and Portugal’s limited adaptive capacity, and the imperative of avoiding a vacuum of human rights protection within Convention’s legal space. Whether the ECtHR adopts a new ETJ model in light of the specific characteristics of climate change remains to be seen. Regardless of the outcome, the Duarte Agostinho case presents a unique opportunity for the Court to clarify its position on this fundamental question.

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