ECHR holds landmark hearing in its largest and first ever climate change case

On 27 September 2023, the Grand Chamber of the European Courts of Human Rights (ECHR) conducted a hearing in the case of Duarte Agostinho et al. v Portugal and 32 Others (Duarte Agostinho case). This case is one of the three climate change lawsuits currently pending before the Grand Chamber of the ECHR and ground-breaking in several respects. It is the first ever climate change case filed with the ECHR and also unprecedented in terms of scale. Although Duarte Agostinho was the first lawsuit to be brought before the ECHR, the hearing took place only now, almost six months after the hearing in two other climate change disputes KlimaSeniorinnen and Others v Switzerland and Carême v France, which took place on 29 March 2023. This is due to the particular complexity of the Duarte Agostinho case with 33 European respondent States, large number of third-party interveners and extensive case materials.

Current state of the proceedings

The Duarte Agostinho case was referred to the ECHR in 2020 when a group of six Portuguese nationals, aged between 11 and 24 and supported by the NGO Global Legal Action Network, filed a complaint against Portugal and 32 other European States alleging human rights violations due to the failure of these States to take measures to adequately limit greenhouse gas emissions. In their submissions, the applicants claim, in particular, that the forest fires that have occurred in Portugal since 2017 and other effects such as storms, rising sea levels and heat waves are results of global warming. They assert that the States’ inadequate measures to curb global emissions violate various rights under the European Convention on Human Rights, impacting their physical and mental health. Like in the famous Urgenda case, the applicants also allege violations of the right to life (Article 2) and the right to respect for private and family life (Article 8) in the light of the undertakings under the 2015 Paris Agreement on climate change. Moreover, they assert infringements of two other Convention rights that have not been much explored in the context of climate change litigation: they invoke the prohibition of ill-treatment under Article 3 and a violation of the prohibition of discrimination under Article 14 of the Convention, arguing that the interference with their rights is more severe because of their age than for the older generation.

The Court decided that the case would be heard by the Grand Chamber, which only occurs in exceptional cases of fundamental importance. The hearing focused on admissibility issues and, in particular, on the questions of jurisdiction and the (non-)exhaustion of local remedies whereas the ECHR did not discuss the merits of the complaint. Unlike the two other climate change cases before the ECHR, the Duarte Agostinho case is not only against the applicants’ home state (i.e. Portugal), but also against 32 other states. However, following the case law in the Banković case, the ECHR does not normally have jurisdiction to hear extraterritorial claims. While the applicants sought a relaxation of this doctrine, arguing that they could not be placed in a legal vacuum, the States rejected this, pointing out the uncertainties that such an approach would entail and the risk of a docket crisis that could arise following an expansion.

Moreover, the applications in the Duarte Agostinho case did not exhaust local remedies before bringing the case before the ECHR, although this is normally required. The applicants have argued that any attempt to exhaust local remedies would have been futile due to (i) the lack of legal standing, (ii) non-existent prospects of success and (iii) the inadequacy of the remedies. The respondent States, on the other hand, maintain that exhaustion of local remedies remains necessary, as any other approach would call into question the principle of subsidiarity and deprive the ECHR of the prior assessment of a domestic court.

Following the oral hearing, the ECHR will start its deliberations and is expected to issue a decision in the first half of 2024.

Outlook on the implications of the decision

The Duarte Agostinho case is a good example of the trend of claimants and NGOs increasingly deploying human rights arguments to hold actors account. Although there are many substantive questions still not addressed by the ECHR, including the concrete actions required from States to comply with their obligations under the Paris Agreement, the case will have wider implications. In this context, three different aspects are worth mentioning.

First, the case offers the ECHR the opportunity to develop its case law on climate change disputes and, in particular, to provide more clarity with regard to the scope of extraterritorial jurisdiction and the requirement to exhaust legal remedies in these types of disputes. The court’s ruling will be binding on all respondent States and could also provide guidance for climate change disputes before domestic courts.

Second, the decision of the ECHR will also be reflective of the future role that the ECHR intends to play in climate change disputes and the level of scrutiny it will exercise. It remains to be seen whether the court will lean towards a hands-on approach, focusing on the principles of dynamic interpretation of the Convention and the effective protection of rights, or whether it will choose to emphasise the margin of appreciation of the member states under the principle of subsidiarity and adopt a more reserved approach.

Third, the Duarte Agostinho case serves as an inspiration for future lawsuits. Even now, pending the ECHR’s decision, the case has sparked applicants to file lawsuits along similar lines, e.g. in the cases De Conto v Italy and 32 Other States and Uricchio v Italy and 32 Other States. Ultimately, the Duarte Agostinho case is a testament to the rise of sustainability-linked disputes, which are increasingly reaching international forums and using human rights instruments.