Duarte Agostinho ECHR Case: A Bump in the Road for Youth Climate Justice?
Introduction
On 9th April 2024, the European Court of Human Rights (ECtHR) handed down its judgements on a trio of climate cases; KlimaSeniorinnen v Switzerland, Duarte Agostinho and Others v Portugal and 31 Others, and Carême v. France. In the days and weeks proceeding, the landmark success of the Swiss Senior women’s appeal in KlimaSeniorinnen has received widespread media coverage, followed by extensive discussion from legal experts (see here and here, for examples).
The ambitious European Youth Climate Case, Duarte Agostinho, found inadmissible by the ECtHR, has received similar attention, but far less celebration. After three and a half years awaiting an outcome, the Court’s decision to dismiss was received with disappointment by the six young Portuguese plaintiffs and by child rights advocates more broadly. However, as the ripple of climate litigation continues to spread, it is important to reflect not only on the high-profile success stories, but on the cases that have seemingly fallen short of their goals to advance climate justice. Analysing the Court’s clarification on procedural matters in Duarte Agostinho provides a learning opportunity for future litigants before the ECtHR. Yet focusing solely on the procedural questions that led to the case’s dismissal, may also detract from important human rights law arguments advanced by the Portuguese youth as well as the intergenerational developments yielded from the adjacent KlimaSeniorinnen decision; developments that may continue to provide hope and direction to young climate justice advocates globally. This blog post considers the tensions between the goals of ambitious youth-led climate litigation and the need for attainable climate litigation results, alongside the power of youth climate justice more broadly.
The European Youth Climate Justice Case
After witnessing wildfires burn across their home country of Portugal, in the midst of a summer marked by successive heatwaves, four children and two youth filed a complaint to the ECtHR challenging the climate policy of 33 European States (including Russia, which is no longer a member of the Council of Europe, and the Ukraine, against which proceedings was abandoned due to the ongoing Russia-Ukraine conflict).
The plaintiffs individually noted the ways in which the fires impacted them: from Martim (20), who was forced to stay home from school when smoke from wildfires caused high levels of air pollution, to Catarina (23), who suffers from asthma and was unable to exercise outdoors for fear that it would worsen her symptoms, as well as siblings Sofia (18) and André (15), who experienced anxiety in the aftermath, as the fires claimed the lives of 100 people and caused widespread destruction.
The young applicants alleged that the failure of these nations, including their own, to take sufficient action on climate change had impacted their physical and mental health. They claimed these impacts amounted to violations of their right to life (Art. 2), right to private and family life (Art. 8), and the right to equal enjoyment of human rights (Art. 14) under the European Convention on Human Rights (ECHR).
The Right to Life and the Right to Private and Family Life
The right to life (Art. 2) and the right to private and family life (Art. 8) have been at the forefront of many of the 300 environment-related cases considered by the ECtHR. Drawing on one such case from 2016, Mučibabić v. Serbia, the Duarte Agostinho application argued that States have an obligation, under Article 2, when authorising dangerous activities to ensure the risk is reduced to a reasonable minimum. It further argued, citing Tatar v Romania, that Article 8 establishes the requirement for reasonable and sufficient measures capable of protecting the right to a private life, home and, more generally, a healthy, protected environment. The plaintiffs continued that these duties had been triggered due to the climate-change-causing GHG emissions by respondent State’s which were yet to align with the targets of the Paris Agreement. Climate change, it was suggested, entails a “current impact upon and risk to the lives and health of the Applicants”. Consequently, the respondent States had violated the plaintiff’s rights.
This is a similar formulation of the climate-induced human rights violations alleged in ground-breaking Dutch Supreme Court case, Urgenda v the Netherlands, and KlimaSeniorinnen’s appeal to the ECtHR. In both cases, plaintiffs argued that their home state had breached Articles 2 and 8 of the ECHR, with the Courts deciding in their favour in each instance.
The Right to Equal Enjoyment of Human Rights
The argument made under Article 14, has alternatively been recognised, as novel in character. It alleged a violation of the plaintiffs’ rights to equal enjoyment of all rights protected under the ECHR on the basis of age, and the implications this has on their vulnerability to climate impacts. The complaint stated that “[t]he Applicants are currently exposed to a risk of harm from climate change, in particular from increased heat and its associated consequences. This risk is set to increase significantly over the course of their lifetimes and will also affect any children they may have” (para 21), highlighting the temporal dimension of the rights the violations of which they are alleging. Under Article 14, age is not included as a specific ground upon which discrimination is recognised. The applicants instead argued that age should be considered as “other status”. Interestingly, age is not recognised under any of the UN human rights treaties, including “paradoxically”, the Convention on the Rights of the Child. In highlighting the disadvantages faced by children and young people in a continuously heating world, the applicants drew on the precautionary principle, the principle of intergenerational equity, and the UNCRC’s best interests of the child principle (Art. 3), to support their claim.
Procedural Challenges
To assess the merits of the case’s human rights arguments, the Court first needed to consider whether Duarte Agostinho met the required tests to establish extra-territorial jurisdiction and to waive the exhaustion rule.
Extra-Territoriality
The Court’s finding on extra-territoriality in Duarte Agostinho has been a central take-away from its April 9th decisions (see, here and here). The scope of the ECHR’s application is determined by Article 1, which requires the State Parties to “secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention”. While the term ‘jurisdiction’ is never defined in the ECHR, its inclusion, rather than the more definitive term ‘territory’, gives rise to the potential human rights obligations of States Parties to individuals beyond their territory. As such, the ECHR has extraterritorial application. The challenge many litigants face is the limited circumstances under which the existence of extraterritorial duties has been accepted by the ECtHR (see for example, Al-Skeini and Others v United Kingdom).
Generally, the Court has established extraterritorial jurisdiction in instances where a foreign State possesses authority over a population or possesses effective control over a territory. Recognising that neither such test may be satisfied in this case, the Portuguese youths relied on jurisprudence from the Inter-American Court of Human Rights and the Committee on the Rights of the Child, and proposed an extension of extraterritorial jurisdiction based on respondent States’ “control over the applicants’ Convention interests”. Such an extension, they argued, was warranted due to the transboundary nature of climate change which presents “special features” the Court should consider. “Special features” are recognised as special circumstances creating a jurisdictional link between parties, thereby allowing for exceptions to the standard test for extraterritorial jurisdiction. The special features doctrine has been invoked in a growing number of cases before the ECtHR (see, Georgia v Russia (II) and Hanan v Germany) but uncertainty remains as to its scope.
In Duarte Agostinho, the Court concurred that in the context of climate change, the case did not fit the standard model of extraterritorial jurisdiction. It recognised that States have “ultimate control” over GHG-emitting activities, and that there is a “certain causal relationship” between GHG-emitting activities in one State and the adverse impact on the rights of people outside its borders (paras. 193 and 194). Ultimately, however, the Court was not convinced this warranted the proposed extension, holding that the capacity to impact rights abroad was insufficient to establish grounds for extraterritorial jurisdiction (para), while EU citizenship was irrelevant (para ). In turn, it decided no particular link existed between the applicants and any of the respondent states, aside from Portugal.
Further elaborations by the Court have been viewed as considerable blows to future climate litigation attempts before the ECtHR, with the Court firstly finding the applicants’ proposal would lead to ‘a critical lack of foreseeability of the Convention’s reach’ (para 206). Secondly, the Court identified the risk of a potential transformation of the ECHR into a “global climate treaty”, allowing for individuals globally to bring suit before the ECtHR (para 208). Additionally, the Court raised concern over the dilution of its own substantive jurisdiction, with the judgement clarifying the ECHR is “not designed to provide general protection of the environment” (para 201) and ii). This final statement, in particular, has been met with disappointment, with the perception it demonstrates the Court’s unwillingness to deeply recognise the increasing threats environmental damage and the climate crisis pose to human rights, and the pivotal role of human rights courts in addressing this challenge. In conclusion, the ECtHR was unable to establish extraterritoriality and the complaint against all Respondent States, bar Portugal, was dismissed.
Exhaustion of Domestic Remedies
With Portugal the only remaining Respondent State, the Court addressed the lack of domestic remedies sought by the plaintiffs prior to their application to the ECtHR. The right to effective remedy is an important component of international human rights law and is recognised under Article 13 of the ECHR. Simultaneously, the ECHR establishes that “the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law”, under Article 35.
The applicants in Duarte Agostinho however, argued they should be exempt from the requirement to exhaust all available domestic remedies on the basis that it would be unreasonable and time-consuming to pursue legal action across the 32 Respondent States’ domestic courts in addition to being financially prohibitive, due in part to their status as child and youth with limited resources. They further argued that seeking a singular remedy in a Portuguese court would be insufficient to address the breadth and urgency of the matter. With the Court having already dismissed the case against all States except Portugal, the Court was left to consider only the latter argument. Similar to the findings of the UN Committee on the Rights of the Child (UNCRC) in Sacchi et al. v Argentina et al., the Court held that the young applicants needed to have exhausted their domestic remedies prior to approaching the ECtHR. Drawing on well-charted case law, the Court held that demonstrating “doubt” in the adequacy or effectiveness of available remedies is not sufficient to sidestep the procedural exhaustion rule.
Interestingly, the Court articulated the right to a healthy and ecologically balanced environment, recognised under Article 66 of the Portuguese Constitution, would have provided a possible avenue for such legal action by the applicants (para 219). This is a similar sentiment expressed in the UNCRC’s decision in Sacchi, which identified the right to a healthy environment and environmental protection in Articles 41 and 43 of the Argentine constitution, in particular, as providing a feasible basis for domestic remedy. The right to a healthy environment is not yet directly recognised in the European human rights system, but has instead been derived from the right to life and the right to private and family life of the ECHR in a number of cases, as discussed above. Such statements may be interpreted as affirmation of the significant potential the growing recognition of the right to a healthy environment holds for future climate litigants.
A Disappointing Outcome?
In dismissing the case, the merits of the applicants’ claims were not part of the Court’s decision. Some commentators have argued this was predictable, with a strong likelihood that the ambitious case would be thrown out on procedural grounds. Others have been more critical, describing the outcome as inevitable, and harmful to the momentum of European climate litigation. This view asserts the ECtHR was not ready to expand its application of extraterritoriality so broadly, so rapidly. Ideally, the expansion of extraterritoriality, in order to appropriately address climate change and human rights concerns, needed to happen progressively rather than all at once, with the Duarte Agostinho outcome thereby setting rights–based climate litigation back, before the ECtHR. Simultaneously, no one can be certain that this alternative avenue would have yielded an appropriate expansion in a timely enough manner.
Future Directions for Youth Climate Justice in Europe
While the Court’s findings are still being unpacked, it is important not to disregard the impact of Duarte Agostinho on climate justice. The submissions made in this case will remain a resource for future litigants, particularly on child rights and the rights of future generations. The principle of intergenerational equity may have additionally (and surprisingly!) been reiterated and advanced in part, by the KlimaSeniorinnen decision. The Swiss senior women’s case, the success story from April 9th, featured a strong focus on “intergenerational burden-sharing”, specifically. While the ECtHR’s decision still leaves the status of intergenerational equity as a principle in international law up for debate, it suggests a willingness from the Court to address aspects of intergenerational climate justice. Youth climate litigation is a powerful tool for advancing such forms of justice, as witnessed around the world from Colombia to Germany and Australia. Duarte Agostinho may not have yielded the ideal outcome but it is evidence of a growing movement from young people that continues to reach new heights.
By Clare Lagan
Clare Lagan is a member of WY4CJ’s Asian Front and Legal Advocacy Taskforce. She is currently a PhD Candidate at the University of Western Australia researching climate litigation and the rights of future generations. Motivated by the climate impacts she has witnessed from her home in Australia, and her passion for using human rights law to address environmental issues, she is involved in both grassroots and international youth climate justice campaigns.