Category: Turkey

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Duarte Agostinho et al. v. Austria et al. (“Portuguese Children’s Case”)

Summary:
This case was brought by a group of six young people, acting together as the ‘Youth for Climate Justice’, against 33 Council of Europe Member States. Theirs was the first climate case to come before the ECtHR. In their application, the six applicants, aged between 8 and 21 at the time, argued that the 33 respondent States failed to comply with their positive obligations under Articles 2 and 8 of the Convention, read in the light of the commitments made under the 2015 Paris Climate Agreement. They claimed that their right to life (Art. 2 ECHR) was being threatened by the effects of climate change in their home State of Portugal, including through the harms caused by forest fires. Moreover, they claimed that their right to respect for their private and family life under Art. 8 ECHR was being threatened by heatwaves that forced them to spend more time indoors. They also noted their anxiety about their uncertain future, and the fact that, as young people, they stand to experience the worst effects of climate change. They accordingly alleged a violation of Article 14 ECHR (non-discrimination), given the particular impacts of climate change on their generation. According to the applicants, the absence of adequate measures to limit global emissions constitutes, in itself, a breach of the obligations incumbent on States.

This was the first climate application brought before the European Court of Human Rights, and it was brought with the support of the Global Legal Action Network (GLAN). The issues raised here were novel in the Strasbourg context. In addition, in communicating the case, the Court also proprio motu raised an issue under Article 3 ECHR, the prohibition of torture and inhuman and degrading treatment.

On 9 April 2024, the Court declared this case inadmissible on jurisdiction and non-exhaustion grounds.

Domestic proceedings:
None: this case was brought directly to the ECtHR. The applicants submitted that, given the complexity of the case and their limited financial means, as well as the limited prospects of success before domestic instances, requiring them to exhaust the domestic remedies in each of the 33 respondent States would impose an excessive and disproportionate burden on them.

Relinquishment:
On 29 June 2022, the 7-judge Chamber to which the case had originally been allocated relinquished jurisdiction over it in favour of the Court’s 17-judge Grand Chamber. Relinquishment is possible where a case either (a) raises a serious question affecting the interpretation of the Convention or its Protocols, or (b) might lead to a result inconsistent with the Court’s case-law (Rule 72, paras 1-2 of the Rules of Court).

During the course of the proceedings, the complaint against Ukraine was withdrawn by the applicants. The Russian Federation ceased to be a Council of Europe Member State during the course of the proceedings, but this was not an obstacle to considering the application as concerns anything taking place before the end of its membership (on 16 September 2022).

In February 2023, the Court announced that it would hold a public Grand Chamber hearing in this case, along with two other climate cases pending before it (Carême v. France and KlimaSeniorinnen and Others v. Switzerland). It announced that it would adjourn the remaining climate cases pending before it in the meantime. The oral stage in these three cases was staggered: Carême and KlimaSeniorinnen were heard on 29 March 2023, while the hearing in Duarte Agostinho was heard by the same composition of the Grand Chamber on 27 September 2023.

Grand Chamber hearing:
A hearing in this case was held on 27 September 2023. A webcast of the hearing is available here.

During the hearing, the respondent States pooled their submissions to a large extent, with additional arguments from the Netherlands, Portugal, and Turkiye. Third-party interveners also received leave to appear during the oral hearing, namely the Council of Europe Commissioner for Human Rights, Dunja Mijatovic, the EU’s European Commission, and the European Network of National Human Rights Institutions (ENNHRI). The substance of the hearing focused largely on admissibility issues, namely victim status, the (non-)exhaustion of domestic remedies and the extraterritoriality of Convention obligations. The judges also asked a number of questions to the parties before retiring to consider the admissibility and merits of the case.

Admissibility:
From the blog post on the case by Ayyoub (Hazhar) Jamali available on our blog

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.

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.

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).

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).

Date:
9 April 2024

Type of Forum:
Regional

Status of case:
Communicated by the Court on 30 November 2020. Relinquished to the Grand Chamber on 29 June 2022. Grand Chamber hearing held on 27 September 2023. Decision announced at a Grand Chamber hearing held on 9 April 2024, along with rulings in the two other climate cases pending before the Grand Chamber.

Suggested case citation:
ECtHR, Duarte Agostinho and Others v. Portugal and 32 Other Member States, no. 39371/20, decision (Grand Chamber) of 9 April 2024.

Links:
For more information on this case, see the following links.

  • For more background on the case and profiles on the applicants, click here: https://youth4climatejustice.org/. 
  • For all of the case documents, including the submissions from the respondent States and the third-party interveners, see here.
  • For analyses of the Grand Chamber hearing, see this post on our own blog by Viktoriya Gurash, or this post on Verfassungsblog by Corina Heri.
  • For the judgment, click here.
  • For the Court’s Q&A on the three climate cases, click here.

Last updated:
9 April 2024

Categories
Climate activists and human rights defenders Domestic court Emissions reductions/mitigation European Convention on Human Rights Non-discrimination Paris Agreement Right to a healthy environment Right to culture Right to education Right to health Right to life Right to subsistence/food Right to water Self-determination Turkey Uncategorized

A.S. & S.A. & E.N.B v. Presidency of Türkiye & The Ministry of Environment, Urbanization and Climate Change

Summary:

On 13 April 2023, Türkiye submitted its updated Nationally Determined Contribution (NDC) to the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC). The NDC states that Türkiye aims to reduce its CO2 emissions by 41% by 2030 compared to the business-as-usual scenario with 2012 as its base year, and plans on peaking emissions by 2038 at the latest. This would increase CO2 emissions by 30% until 2030. Due to this further increase in CO2 emissions, climate activists Atlas Sarrafoğlu, Ela Naz Birdal and Seren Anaçoğlu filed a lawsuit against President Recep Tayyip Erdoğan and the Ministry of Environment, Urbanization and Climate Change before the Council of State (the highest administrative court in Türkiye) on 8 May 2023.

The plaintiffs claimed that Türkiye’s NDC is inadequate under the Paris Agreement and that the resulting increase in CO2 emissions violates their human rights under the country’s constitution, the United Nations Convention on the Rights of the Child, and the European Convention on Human Rights. The rights they claimed had been violated included: the right to life, the right to intergenerational equality, the right to the protection of one’s private life, the right to health, cultural rights, the right to develop one’s material and spiritual existence, the right to live in a healthy and balanced environment, the right to education, the right to work, and the right to healthy food and water. Because of the alleged inadequacy of the NDC under the Paris Agreement, they demanded its annulment and the creation of a more ambitious commitment.

Status of Case:

On 22 December 2023, The Wave reported that the Council of State had dismissed this case without examining it, arguing that the NDC did not constitute an administrative act and was accordingly not open to judicial annulment.

Further reading:

News Article by PAMACC: https://www.pamacc.org/index.php/k2-listing/item/1440-president-recep-erdogan-of-turkey-sued-for-slow-implementiion-of-the-paris-agreement

News Article by the Turkish human rights press agency “Bianet”: https://bianet.org/haber/young-climate-activists-file-lawsuit-against-erdogan-over-inadequate-emission-goals-278474

Date last updated:

22 December 2023.

Categories
Access to a remedy Austria Children and young people Emissions reductions/mitigation European Convention on Human Rights European Court of Human Rights France Gender / women-led Italy Non-discrimination Norway Paris Agreement Portugal Private and family life Right to life Switzerland Turkey

De Conto and Uricchio v. Italy and 32 other States

Summary:
In 2021, two further cases in the style of the Duarte Agostinho application were brought before the European Court of Human Rights, this time by two young people from Italy. The cases were brought against 33 Council of Europe Member States, and refer to storms, forest fires and heat waves experienced by the applicants, as well as associated physical and psychological distress. The applicants, two women aged 18 and 20 at the time of filing, invoked Articles 2, 8, 13 and 14. They made arguments about the positive obligations to protect against environmental harm under Articles 2 and 8 ECHR, discrimination against younger generations, and a lack of access to effective domestic remedies given the excessive burden of being required to bring domestic proceedings in 33 States.

The application forms in these cases have not been made publicly available, and the cases had not yet been communicated by the Court at the time of writing. It had been announced, however, that the cases have been adjourned pending the outcome of Grand Chamber proceedings in three other climate cases (see the following section). More information on the cases will be published as it becomes available.

Status of case:

Adjourned until the Grand Chamber has ruled in the climate change cases pending before it (see the ECtHR’s press release here).

Suggested citation:

ECtHR, De Conto v. Italy and 32 other States, application no. 14620/21, submitted on 3 March 2021.

ECtHR, Uricchio v. Italy and 32 other States, application no. 14615/21, submitted on 3 March 2021.

More information (via climatecasechart.com):

On the De Conto case.

On the Uricchio case.

Last updated:

15 March 2023.

Categories
Argentina Brazil Children and young people Committee on the Rights of the Child France Germany Turkey

Sacchi et al. v. Argentina, Brazil, France, Germany & Turkey

Summary:
On 23 September 2019, 16 children, among them teenage climate activist Greta Thunberg, filed a petition before the Committee on the Rights of the Child (CRC) alleging that Argentina, Brazil, France, Germany and Turkey had violated their rights under the UN Convention on the Rights of the Child (UNCRC) by making insufficient cuts to greenhouse gases and failing to encourage the world’s biggest emitters to curb carbon pollution. Each of the respondent states has ratified the UNCRC, and all of them have signed the Paris Agreement but, according to petitioners, none have made or kept commitments that align with keeping temperature rise.

The sixteen children petitioned the CRC to declare a violation of their rights due to the respondent states’ perpetuation of climate change. They also petitioned the CRC to recommend actions that the respondents must take to address climate change, specifically mitigation and adaptation measures. Their claims are based on the rights enshrined in the UNCRC, and the argument that the respondents have knowingly caused and perpetuated the climate crisis, thereby triggering the applicability of human rights obligations and duties.

In its inadmissibility decision of 22 September 2021, the Committee declared the Communication inadmissible. This decision is indicative of some of the procedural challenges that climate cases will face in the future. Whereas the Committee recognized that the authors of the Communication had victim status, and established that it had jurisdiction over the case, it found the case inadmissible for failure to exhaust domestic remedies.

Adjudicating Body:
UN Committee on the Rights of the Child

Date:
22 September 2021

Status of case:
Declared inadmissible

Third party intervention:
On 1 May 2020, David R. Boyd and John H. Knox (the current and former UN Special Rapporteurs on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, respectively), submitted a third-party intervention regarding this Communication to the Committee. The text of the intervention is available here.

Hearing in these cases:
There were oral hearings before the CRC in these cases. The parties appeared before the Committee via videoconference at five separate hearings between May and September 2021.

Admissibility:
Arguments by the respondent States:
Three respondent States (Brazil, France and Germany) responded to the petition, arguing that it was inadmissible on the grounds of lack of jurisdiction; lack of substantiation (manifestly ill-founded); and the failure to exhaust domestic remedies.

Reply by the petitioners:
In their reply of 4 May 2020, the petitioners argued that:

1) the Committee had jurisdiction because they (the petitioners) are “directly and foreseeably injured by greenhouse gas emissions originating in the Respondents’ territory;”
2) the claims are manifestly well-founded because the children are currently suffering direct and personal harms due to climate change, and they will continue to do so in the foreseeable future; and
3) the pursuit of domestic remedies would be futile.

Findings of the CRC:
The CRC adopted a separate set of Views for each State party concerned; these will be discussed together here.

In terms of the authors’ victim status, the Committee held that they had “prima facie established that they have personally experienced a real and significant harm in order to justify their victim status.” In doing so, it held that the authors, as children, are particularly impacted by climate change, and that States have “heightened obligations to protect children from foreseeable harm”. As a result, the CRC was not precluded by Article 5(1) of the Optional Protocol from considering the communication.

In terms of jurisdiction, the CRC held, with reference to the Inter-American Court of Human Rights’s Advisory Opinion OC-23/17 on the Environment and Human Rights and its own Joint Statement on Human Rights and Climate Change, that States have effective control over carbon emissions and that they are responsible for transboundary harm caused by these emissions. It found that, even though climate change is “a global collective issue that requires a global response, States parties still carry individual responsibility for their own acts or omissions in relation to climate change and their contribution to it.” In light of existing scientific evidence showing the impact of the cumulative effect of carbon emissions on the enjoyment of human rights, including rights under the Convention, the Committee considered with regard to each individual respondent State that “the potential harm of the State party’s acts or omissions regarding the carbon emissions originating in its territory was reasonably foreseeable to the State party”.

Concerning the exhaustion of domestic remedies, the Committee recalled that this requirement does not apply where these avenues do not offer objective prospects of success. In these cases, however, it examined the remedial possibilities in each State in detail, and ultimately reached a finding of inadmissibility, noting that no domestic proceedings had been initiated in the respective States concerned.

In this regard, various arguments made by the authors were unsuccessful. The argument that plaintiffs from other countries were barred from proceedings was disregarded for lack of specific examples (Communication concerning Argentina, § 10.18). The Committee further referred to the existence of discretionary remedies, which the authors had not used. The authors’ “doubts about the prospects of success of any remedy” was not sufficient for the Committee to consider they had exhausted “all domestic remedies that were reasonably effective and available to them to challenge the alleged violation of their rights under the Convention.” The references to environmental cases in which the State parties took several years to reach a decision was not considered sufficient evidence to show that domestic remedies would be unreasonably prolonged.

Merits:
Not examined

Remedies:
Not applicable

Separate opinions:
Not applicable

Implementation measures taken:
Not applicable

Follow-up:
The Committee issued a child-friendly version of its Views in this case. Along with providing a simplified explanation of the case, this document informed the authors of the Sacchi communication that:

“Your case also increased the Committee’s awareness about these issues and highlighted our shared sense of urgency, and therefore we have already announced our decision to write our next General Comment on children’s right and the environment with a special focus on climate change. We plan to consult with children and young people around the world, and we invite you, as the authors of this significant case, to share your views during the processes towards the drafting of the next General Comment.”

Committee on the Rights of the Child, Re: Sacchi et al v Argentina and four similar cases

Following up on this, the Committee on the Rights of the Child issued a General Comment No. 26 on children’s rights and the environment with a special focus on climate change on 22 August 2023.

Keywords:
Admissibility, children’s rights, UNCRC, domestic remedies, transboundary harms, victim status.

Links:
For a summary of the five cases from the UN’s treaty body media service, click here.

For background on the case, click here.

The text of the petition is available on Climate Case Chart, click here to access it.

The full text of the Committee’s Views can be found:

  • Regarding Argentina, the Views can be found here.
  • Regarding Brazil, the Views can be found here.
  • Regarding France, the Views can be found here.
  • Regarding Germany, the Views can be found here.
  • Regarding Turkey, the Views can be found here.

Suggested citation for the Communication concerning Argentina:
Committee on the Rights of the Child, Sacchi et al. v. Argentina (dec.), 22 September 2021, CRC/C/88/D/104/2019.