By Ayyoub (Hazhar) Jamali, postdoctoral researcher at the University of Zurich
- Introduction
In a landmark case that garnered global attention, six Portuguese youth took a bold step on 2 September 2020, filing a complaint with the European Court of Human Rights (ECtHR) against 33 countries of the Council of Europe. Their objective was to hold these nations accountable for their insufficient actions on climate change, citing violations of fundamental human rights. The six young activists argued that the respondent states had failed to meet their positive obligations under Articles 2 and 8 of the European Convention on Human Rights (ECHR), especially considering commitments made under the 2015 Paris Climate Agreement. They contended that the impacts of climate change in Portugal, such as devastating forest fires and life-threatening heatwaves, directly infringed upon their right to life and respect for private and family life. Furthermore, they highlighted their generation’s disproportionate vulnerability to the most severe effects of climate change, alleging a violation of Article 14 of the ECHR on non-discrimination. On 27 September 2023, a hearing was held, drawing global attention. Respondent states largely combined their submissions, with additional arguments from the Netherlands, Portugal, and Turkey. Third-party interveners, including the Council of Europe Commissioner for Human Rights, the European Commission, and the European Network of National Human Rights Institutions, also presented their perspectives. The hearing primarily focused on admissibility issues, such as victim status, exhaustion of domestic remedies, and particularly the extraterritoriality of Convention obligations.
2. The Court’s Judgment
After months of anticipation, the ECtHR delivered its judgment on 9 April 2024. The Court found the case inadmissible on two key grounds. Firstly, it ruled out jurisdiction regarding non-territorial states, narrowing the scope of accountability in this complex legal landscape to applicants’ home states. Secondly, it dismissed the application against Portugal due to a lack of exhaustion of domestic remedies.
2.1 Extraterritorial Jurisdiction
The Court acknowledged its jurisdiction concerning Portugal but denied it concerning other non-territorial states. It recognized that under Article 1 of the Convention, jurisdiction primarily pertains to territorial boundaries, implying that individuals can only claim Convention violations against the territorial state where they reside. However, the Court reiterated that the Convention’s reach can extend beyond national borders in two main forms: when a state exercises effective control over an area (spatial concept of jurisdiction, or jurisdiction ratione loci), and when there is state agent authority or control over individuals (personal concept of jurisdiction, or jurisdiction ratione personae) (para 170). In the present case, as neither of these two criteria appeared applicable, the Court denied jurisdiction within the meaning of Article 1 ECHR.
Furthermore, the Court rejected the applicant’s argument that there are ‘exceptional circumstances’ and ‘special features’ for establishing the respondent states’ extraterritorial jurisdiction over the applicants within the specific context of climate change. It emphasized that determining whether the ECHR applies extraterritorially requires examining whether ‘exceptional circumstances’ exist, indicating that the state concerned is exercising extraterritorial jurisdiction over the applicants. This primarily involves exploring the nature of the link between the applicants and the respondent state.
The Court acknowledged that states have ultimate control over public and private activities within their territories that produce greenhouse gas emissions. It noted their international-law commitments, particularly those outlined in the Paris Agreement, which states have incorporated into their domestic laws and policy documents, as well as their Nationally Determined Contributions (NDC) under the Paris Agreement (para 192). Furthermore, the Court recognized the complex and multi-layered causal relationship between activities within a state’s territory that produce greenhouse gas emissions and their adverse impacts on the rights and well-being of individuals residing outside its borders (para 193). It emphasised that while climate change is a global phenomenon, each state bears responsibility for addressing it. However, the Court concluded that these considerations alone cannot justify creating a novel ground for extraterritorial jurisdiction through judicial interpretation or expanding existing ones (para 195). It emphasised that the ECHR protection system is primarily based on principles of territorial jurisdiction and subsidiarity.
The Court further denied the applicants’ claim that bringing a case against Portugal alone would be ineffective and that they had no other means of holding the respondent states accountable for the impact of climate change on their Convention rights. It distinguished between jurisdiction and responsibility, which constitutes a separate matter to be examined in relation to the merit of the complaint (para 202).
The Court further rejected the applicants’ claim concerning the reach of the Convention outside of national boundaries by their reliance on a test of ‘control over the applicants’ Convention interests’. It reasoned that, according to its established case-law, extraterritorial jurisdiction as conceived under Article 1 ECHR requires control over the person him- or herself rather than the person’s interests as such (para 204-206). It highlighted that, except for specific cases under Article 2 concerning intentional deprivation of life by state agents, there is no precedent for a criterion like ‘control over Convention interests’ as a basis for extraterritorial jurisdiction (paragraph 205). Consequently, the Court argued that adopting such an extension would represent a significant departure from established principles under Article 1.
The Court stated that otherwise, and given the multilateral dimension of climate change, almost anyone adversely affected by climate change anywhere in the world could be brought within the jurisdiction of any Contracting Party for the purposes of Article 1 ECHR in relation to that Party’s actions or omissions to tackle climate change. It also rejected the suggestion that such an extension of jurisdiction could be limited to the Convention’s legal space. It reasoned that, given the nature of climate change, including its causes and effects, an extension of extraterritorial jurisdiction by reference to that criterion would be artificial and difficult to justify (para 206).
Moreover, the Court acknowledged the significance of developments in international law, particularly with regards to the interpretations provided by bodies such as the Inter-American Court and the Committee on the Rights of the Child (CRC). It recognised the relevance of these interpretations in shaping the understanding of jurisdiction within the context of human rights treaties. However, the Court noted that these bodies had adopted distinct notions of jurisdiction, which had not been recognised in its own case-law. While the Court considered the insights provided by these international instruments and bodies, it concluded that they did not provide sufficient grounds for extending the extraterritorial jurisdiction of respondent states under the Convention, particularly as proposed by the applicants (para 209-210). Therefore, while remaining attentive to legal developments and global responses to issues such as climate change, the Court found no basis within the Convention for expanding extraterritorial jurisdiction as advocated by the applicants.
In conclusion, the Court found no grounds in the Convention for extending the respondent states’ extraterritorial jurisdiction through judicial interpretation.
2.2 Exhaustion of Domestic Remedies
Regarding Portugal, the applicants’ home state, there was no extraterritoriality issue. Here the Court examined whether effective remedies existed within the Portuguese legal system that the applicants were required to use under the exhaustion of domestic remedies rule. Despite the applicants’ argument that broad constitutional provisions alone could not provide effective and certain remedies, the Court disagreed, highlighting various remedies available in Portugal. These included, for example, constitutional recognition of the right to a healthy environment, actio popularis claims for environmental protection, etc (para 217-223). The Court emphasised the importance of affording domestic courts the opportunity to address issues before having recourse to international remedies. Consequently, the complaint against Portugal was found inadmissible. The Court also rejected the suggestion that it should rule on the issue of climate change before domestic courts had the opportunity to do so, reaffirming the principle of subsidiarity and the role of domestic jurisdictions in adjudicating such matters (para 228).
2.3 Victim Status
The Court found it challenging to determine whether the applicants met the criteria for victim status as set out on the same day in the KlimaSeniorinnen judgment against Switzerland. The lack of clarity is attributed, in part, to the applicants’ failure to exhaust domestic remedies. The Court found that, in any event, the application was inadmissible for the reasons previously outlined. Therefore, the Court declined to examine further whether the applicants could claim victim status (para 229-230).
3. Conclusion
One of the primary issues addressed by the Court was the question of extraterritorial jurisdiction, particularly concerning non-territorial states. Despite acknowledging the gravity of climate change as a global phenomenon and its potential to impact individuals across borders, the Court adhered to a narrow interpretation of jurisdiction under Article 1 of the ECHR. It emphasised the principles of territorial jurisdiction and subsidiarity, concluding that the Convention’s protection system is primarily based on these principles. This decision reflects the Court’s reluctance to expand existing legal frameworks or create novel grounds for extraterritorial jurisdiction through judicial interpretation, despite recognising the evolving nature of international law and global responses to climate change.
Furthermore, the Court’s emphasis on the exhaustion of domestic remedies underscores the importance of allowing national legal systems to address issues before seeking international remedies. Despite the applicants’ arguments regarding the inadequacy of domestic remedies in Portugal, the Court highlighted various legal avenues available within the Portuguese legal system for addressing environmental concerns. This decision reaffirms the principle of subsidiarity and the role of domestic jurisdictions in adjudicating complex matters such as climate change.