28 September 2023

Act Three for Climate Litigation in Strasbourg

The ECtHR’s Grand Chamber Hearing in the Portuguese Children’s Case

Yesterday, on 27 September 2023, a historic hearing took place before the Grand Chamber of the European Court of Human Rights. The Court heard the Duarte Agostinho case, brought by six Portuguese children and young people against a whopping 33 Member States of the Council of Europe. Having heard two other climate cases this past March (the KlimaSeniorinnen v. Switzerland and Carême v. France cases, respectively), this was the Court’s final hearing before it issues its first-ever findings on climate change. It was also the Court’s first youth climate case.

For several reasons, yesterday’s hearing was a historic one: Duarte Agostinho is the Grand Chamber’s biggest-yet climate case, both in terms of the substantive rights invoked and the number of States involved. A violation finding in this case would have the farthest-reaching impact on the Convention system as it currently stands, and would bring the Court closest to delivering on demands for climate justice. However, of the three cases, this one also faces the most difficult admissibility hurdles. The following sets out my observations from inside the hearing and emphasises key points of note about the case and related developments in Strasbourg.

The state of play

Duarte Agostinho was the first-ever climate case filed at the Court. The fact that it was heard after two other applications reflects its massive scale: the case file involves submissions from the 33 respondents and several third parties, as well as highly detailed briefs from the applicants themselves. Like the other two Grand Chamber climate chases, this one was declared urgent under the Court’s priority policy, and all three cases are being heard by one and the same 17-judge formation. Seven other climate cases have been adjourned pending the outcome before the Grand Chamber, and two further applications have been declared inadmissible on victim status grounds (without any reasoning).

During yesterday’s hearing, we heard joint interventions from the majority of respondent States, separate interventions from the Netherlands, Portugal and Türkiye, and third-party oral pleadings from three third parties who received leave to intervene orally (i.e. the Council of Europe Commissioner for Human Rights, Dunja Mijatović; the European Commission; and ENNHRI, which also intervened in KlimaSeniorinnen). Since Duarte Agostinho was filed, the applicants have withdrawn their complaint against one of the 33 States, namely Ukraine, likely to avoid further procedural delays caused by the extension of time limits to do with the war. In addition, the Russian Federation is no longer a Member of the Council of Europe, and did not participate in the proceedings.

Novel arguments in this case

The broad strokes of all three pending Grand Chamber climate cases are similar: they demand more ambitious greenhouse gas mitigation measures and argue that States are violating Articles 2 and 8 ECHR (the right to life and the right to respect for private and family life, respectively) by failing to take sufficiently ambitious emissions reductions to avoid concrete impacts like wildfires, rising sea levels, and heat waves. In doing so, they draw on scientific evidence and refer to the targets set out under the 2015 Paris Agreement while also building on the Court’s extensive environmental case-law.

However, Duarte Agostinho distinguishes itself from Carême and KlimaSeniorinnen in a number of ways. First, the six young Portuguese applicants bring extraterritorial claims against 32 of the States involved, whereas both Damien Carême and the KlimaSeniorinnen association and its members have brought their applications only against their own home States. If successful, Duarte Agostinho’s claims would expand the Court’s currently limited doctrine on extraterritorial jurisdiction. With some exceptions, that doctrine appears rather unsuitable where global or cross-border environmental impacts are concerned, and the applicants argue that this places them in a rights protection vacuum. During the hearing, the respondent States strongly objected to revisiting the Court’s classic Bankovićstyle test of territorial jurisdiction, warning of legal uncertainty and a docket crisis.

Secondly, the applicants did not comply with the Court’s exhaustion of domestic remedies rule (Art. 35(1) ECHR). They did not, in other words, turn to domestic courts in any of the 33 respondent States before bringing their case to Strasbourg. Instead, the applicants argue that these remedies would not have been effective in their case, and neither would proceedings under EU law. Noting examples of the ongoing ‘turn to rights’ in climate litigation, and arguing that these cases (e.g. in France, Germany and the Netherlands) did not go far enough for various reasons, they argue that they would have lacked standing before domestic courts, would have not enjoyed any prospect of success, and that the available remedies would have been insufficient.

Furthermore, while this case employs the Urgenda model of climate litigation (i.e. drawing on Articles 2 and 8 ECHR, the two rights that were successful in the landmark Dutch domestic climate case), it also goes beyond them. While KlimaSeniorinnen also made procedural rights arguments (invoking Articles 6 and 13 ECHR), Duarte Agostinho raises two provisions of the Convention that have so far taken a back seat in discussions around Convention obligations in respect of climate change: Articles 3 and 14 ECHR, the prohibitions of torture and ill-treatment and discrimination, respectively. These provisions raise poorly understood issues around climate anxiety as an impact on mental health, and around the inequalities inherent in the causes and effects of climate change.

Unfortunately, before the Grand Chamber, these substantive issues were not discussed. The merits of the complaint were mentioned only tangentially, to demonstrate that the applicants had been sufficiently affected to merit victim status. All of the oral interventions focused heavily on the admissibility issues in the case, which are admittedly where the brunt of the contentious issues lies.

Crucial moment for environmental rights protection in Strasbourg

Deliberations in the case will begin today. Because the Court has never dealt with climate change before, because the climate-related risk to ECHR rights is clear, and because these rights have played important roles in domestic climate proceedings, the three pending climate cases already merit particular attention as leading cases, regardless of the outcome.

This hearing stands against the background of different relevant institutional developments. In the wake of the Reykjavik Declaration, its suggestion for a Reykjavik Committee on environmental rights is rumoured to be on the cusp of operationalization. In a parallel development, this week saw discussions concerning the recognition of a right to a healthy environment by the Council of Europe’s CDDH-ENV. Notably, all Member States of the Council of Europe supported the UN’s political recognition of that right just last year. Ultimately, however, this case is about the ECtHR, and its willingness to adapt Convention protections to the reality of climate change. Doing that effectively will require a tweaking of admissibility criteria, especially victim status requirements.

Outlook

Duarte Agostinho’s outcome will hinge on the admissibility, especially the exhaustion and jurisdiction questions. Still, a range of different outcomes is conceivable here, given that this case challenges existing Convention standards while building on well-established principles, like the dynamic interpretation of the Convention and the effective protection of rights.

Regardless of its outcome, this case and others like it can only be described as the first wave of climate litigation at the Court, with many more applications sure to follow. Charting a clear course in this regard will benefit all involved, including the Court itself. What this looks like in practice is not yet clear: there are a number of unresolved questions at play, including on the levels of ambition and concrete pathways required from States, many of whom seemed eager to distinguish themselves yesterday (with the Netherlands invoking the “unique” impact of the Urgenda case, Türkiye arguing that it had not ratified the Paris Agreement at the material time, and EU Member States arguing that they were doing enough under the Green Deal).

These arguments – much like the “drop in the bucket” discussion and fears of undermining the Convention system by facilitating global climate justice cases – require an unequivocal response if existing rights are to remain credibly protected in the Anthropocene, and if vulnerable individuals, including children and youth, are to receive appropriate protection and access to justice. The coming months are likely to show whether and how the Court will rise to this challenge, which is perhaps its greatest ever.

For further engagement: A webcast of the hearing is available here, while the parties have shared the case documents here. A live summary of the hearing by the author is available here.


SUGGESTED CITATION  Heri, Corina: Act Three for Climate Litigation in Strasbourg: The ECtHR’s Grand Chamber Hearing in the Portuguese Children’s Case, VerfBlog, 2023/9/28, https://verfassungsblog.de/act-three-for-climate-litigation-in-strasbourg/, DOI: 10.17176/20230928-223415-0.

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