Duarte Agostinho v Portugal – Strasbourg Gives Judgment in Landmark Climate Change Case
The Grand Chamber of the European Court of Human Rights has given judgment in Duarte Agostinho and Others v Portugal and 32 Others (App. No. 39371/20).
In summary, the Grand Chamber has emphasised the importance of exhausting domestic remedies and applied this in an orthodox manner in the climate context. This gives important procedural guidance to individuals who seek to raise human-rights based arguments concerning climate change in future. While the Grand Chamber did not go on to consider the substance of such arguments in this claim, it did do so in the judgment in Verein KlimaSeniorinnen Schweiz v Switzerland (App. No. 53600/20), handed down at the same time (which is the subject of a separate update on our website).
The Facts
The case was brought by a group of 6 children and young adults who argued that Portugal and 32 other signatory states had breached the ECHR by failing to cut greenhouse gas emissions according to their Paris Agreement commitments.
The applicants alleged that the respondent states collectively had contributed to global warming and, in turn, heatwaves and wildfires that have affected their lives, well-being, mental health and the amenities of their home. They argued that the respondent states were under a positive obligation to take adequate measures to regulate their contributions to climate change. They relied on Arts 2, 3, 8, Art 1 of the First Protocol and Art 14 ECHR (taken with Arts 2 and 8).
The Ruling
The Grand Chamber dismissed the claim for procedural reasons without considering the substantive ECHR arguments. It did so for lack of jurisdiction and for failure to exhaust domestic remedies.
As to jurisdiction, the Court held that the Art 1 ECHR obligation to “secure [ECHR] rights and freedoms” only extended to Portugal. This was the state in which all the applicants resided. It was the only state with territorial jurisdiction over them within the meaning of Art 1 ECHR (§179). Whereas the ECHR can apply extraterritorially in limited circumstances, the Court has “consistently rejected” the notion that extraterritorial jurisdiction can apply merely because a state takes a decision “which has an impact on the situation of a person abroad” (§184).
There was no basis in the Court’s case-law for applying the ECHR extraterritorially in this case (§185). Nor were there valid grounds or exceptional circumstances for developing the case-law in the climate change context. The Court held that doing so would “entail a radical departure from the rationale of the Convention protection system, which is primarily and fundamentally based on the principles of territorial jurisdiction and subsidiarity” (§201). Noting that the major sources of greenhouse gas emissions were in the fields of industry, energy, transport and the like, the Court held that combating climate change through the reduction of such emissions at source was “chiefly a matter of exercise of territorial jurisdiction” (§207). Accepting the applicants’ arguments would entail an “unlimited expansion” of states’ extraterritorial jurisdiction, “towards people practically anywhere in the world”, and would “turn the Convention into a global climate-change treaty” (§208).
As to the usual obligation to exhaust domestic remedies before bringing an ECHR claim, it was “uncontested that the applicants did not pursue any legal avenue in Portugal concerning their complaints” (§217). The Court rejected their arguments that the domestic remedies available to them would have been inadequate, finding that a “comprehensive system of remedies” existed (§224). Whereas there was no decided case specifically on climate change, environmental litigation was now “a reality of the domestic legal system” (§224). The existence of mere doubts as to the prospects of securing “a particular remedy which is not obviously futile” was not a “valid reason for failing to exhaust that avenue of redress” (§225). Nor were there any special reasons for exempting the applicants from their usual obligations to exhaust domestic remedies in this case (§226).
The Court found it “difficult to accept” the applicants’ argument that the Strasbourg Court should rule on the issue of climate change before national courts are given the opportunity to do so (§228). Such a position was “in sharp contrast to the principle of subsidiarity”, the Court not being a “court of first instance” or otherwise equipped “to adjudicate on large numbers of cases which require the finding of basic facts which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions” (§228).
It is also notable that the Court declined to determine the question of whether the applicants had victim status under Art 34 ECHR. Since the claim fell to be dismissed on the grounds mentioned above, it was unnecessary to decide this issue (§§229-230).
Conclusion
Whereas the claim concerned an issue of great public importance, the Grand Chamber’s judgment represents an orthodox ruling on the procedural issues of both jurisdiction and the duty to exhaust domestic remedies. The principles governing both issues are well established in the Court’s case-law. The Court saw no reason to develop the case-law further.
Dr Alex Williams is a member of the Cornerstone Climate group. He has been involved in various environmental and climate cases including R (Finch) v Surrey County Council, which was heard in the Supreme Court last year, on downstream greenhouse gas emissions and environmental impact analysis.
