Duarte Agostinho v. Portugal

In the fall of 2020, six Portuguese children and young adults filed a petition with the European Court of Human Rights (ECtHR) against thirty-three European countries, arguing that the respondent countries’ failure to adequately address climate change, as well as their own contributions to climate change, violated the young people’s rights guaranteed under the European Convention on Human Rights (ECHR).

“The respective independent contributions of multiple states to environmental harm, in breach of each state’s international obligations, give rise to shared responsibility for that harm. The relevant international obligations are the duties under Articles 2, 8, and 14 [of the European Convention on Human Rights] . . . The Respondents must be presumed to share responsibility under the Convention for the interferences to the Applicants’ rights caused by climate change.”

Petition Annex

In some ways, this case is quite like other rights-based climate cases that have been filed around the world. In essence, the petition argued that the climate change impacts that will result from the current trajectory of greenhouse gas (GHG) emissions violate the petitioners’ rights to life and respect for private and family life. This parallels other climate cases – like Amazon’s Future Generations v. Ministry of Environment and Juliana v. United States – which have argued that countries’ actions or omissions contributing to climate change violate protected human and constitutional rights.

In several important ways, however, this case stands out. The case was filed, in substantial part, to take advantage of the regional authority of the ECtHR. The young plaintiffs sought a holding that the respondent countries are obligated to pursue GHG emission reductions that would be collectively consistent with limiting global warming to well below two degrees Celsius. In this way, they sought to help enforce the goal of the Paris Agreement (limiting warming to well below two degrees Celsius and working to limit it to 1.5 degrees Celsius) while providing the teeth that the Paris Agreement lacks (countries’ specific commitments to reduce GHG emissions under the Paris Agreement are not binding).

“[I]t is more appropriate that the Respondents rather than the Applicants bear the consequences of the absence of a clearly defined approach to global burden-sharing. The ambiguity surrounding the nature of a state’s ‘fair share’ is a direct consequence of the failure by states (globally) to agree a clearly defined approach to sharing the burden of mitigating climate change. Burden-sharing is, by definition, a matter for states, including the Respondents, to resolve between themselves rather than a matter arising as between the Applicants (or victims of climate change generally) and the Respondents (or states generally).”

Petition Annex

Because the Paris Agreement contains an overarching goal to limit the average temperature increase of the planet but does not include a method to distribute responsibilities for reducing specific quantities of emissions, countries can commit to reducing quantities of emissions that collectively – when all countries’ commitments are tallied – will fail to limit warming to well below two degrees Celsius. The plaintiffs sought to undercut that risk by requiring each respondent country to accomplish their “fair share” of emissions reductions – shares which, by definition, would need to be collectively consistent with the Paris temperature goal if other countries pursued similarly ambitious reductions.

Court Finds No Extraterritorial Jurisdiction

In April 2024, on the same day that the ECtHR delivered its landmark judgment in KlimaSeniorinnen, the Court held that the plaintiffs’ case was inadmissible.

Because the plaintiffs lived in Portugal, their claim against the 32 other respondent countries rested on the fact that those countries were responsible for climate change impacts in Portugal. Under Article 1 of the ECHR, the court only exercises “extraterritorial jurisdiction” in limited circumstances:

1. when the respondent state exercises “effective control” over an area outside its borders;
2. when the respondent has power or control over an agent acting outside its borders; or
3. when there are special procedural circumstances that warrant extraterritorial jurisdiction, such as when a country has begun a criminal investigation into deaths that occurred outside the country (ECHR Decision, ¶168).

The plaintiffs acknowledged that their case did not fit within these grounds for jurisdiction, but they argued that “special features” of climate change justified extraterritorial jurisdiction.

In its judgement, the Court agreed that climate change has special features and that it presents a “truly existential” challenge that sets the case apart from other cases (¶194). The court also affirmed that states have control over public and private GHG emissions, which have an “adverse impact on the rights and well-being of people residing outside [the state’s] borders” (¶168).

However, the Court declined to establish a new jurisdictional test for climate change. The Court first noted that jurisdiction is a threshold issue which must be decided before reaching the merits of the case. The Court further reasoned that a state’s capacity to impact individuals beyond its borders does not impose a positive obligation to protect those individuals (¶198). The respondent states, excluding Portugal, did not have any control over the plaintiffs or the territory where they resided.

Additionally, while the plaintiffs’ proposed jurisdictional test could facilitate unified action on climate change, the ECHR “is not designed to provide general protection of the environment” (¶201). Instead, the Convention rests “on principles of territorial jurisdiction and subsidiarity” (¶201). However, this does not make the ECHR entirely ineffective in the context of climate change. Citing KlimaSeniorinnen, the Court explained that:

each State has its own share of responsibilities to take measures to tackle climate change and . . . the taking of those measures is not determined by any specific action (or omission) of any other State . . . each State can be held accountable for its share of the responsibility for the breach in question . . .

(¶202)

The Court worried that expanding extraterritorial jurisdiction would leave states uncertain about their obligations under the ECHR. It would be difficult for states to assess their responsibility for climate change impacts in other countries, given the complexity of climate change. Thus, the Court reasoned, the plaintiffs’ proposed jurisdictional test would “entail an unlimited expansion of States’ extraterritorial jurisdiction . . . and responsibilities under the Convention towards people practically anywhere in the world. This would turn the Convention into a global climate-change treaty” (¶208).

In conclusion, the Court held that it did not have extraterritorial jurisdiction over the respondent countries. It did, however, have territorial jurisdiction over the plaintiffs’ claims against Portugal, since the plaintiffs were Portuguese.

Court Dismisses Case for Lack of Exhaustion

Having concluded its jurisdictional analysis, the Court then assessed whether the plaintiffs had met the procedural requirements for bringing their case against Portugal.

To bring a case to the ECtHR, applicants must first exhaust their domestic remedies. They do not need to exhaust remedies that would be “inadequate or ineffective,” however, applicants are not relieved of this requirement by “mere doubts” about the effectiveness of domestic remedies (¶215). In this case, the plaintiffs did not pursue legal action in Portugal. They instead argued that no domestic remedy would have provided effective relief.

But the ECtHR was unpersuaded. It determined that the young plaintiffs should have first pursued legal recourse in Portugal. The Court noted that the Portuguese Constitution recognizes the right to a healthy and ecologically balanced environment, and the country’s Climate Law provides individuals the right to “climate balance” (¶220). The Portuguese legal system also allows individuals to bring public interest actions and demand that the state comply with its climate change obligations.

The Court observed that the plaintiffs could have sought administrative remedies, injunctive relief, or compensation, including for environmental damage. By failing to bring the case in Portugal, the plaintiffs had denied domestic courts the opportunity to rule on the issue. This, in turn, had denied the ECtHR a sufficiently detailed record to review.

Providing an inclusive definition of the greenhouse gas emissions for which countries / corporations are responsible

The petitioners argued that the respondent countries are responsible for contributing to climate change by (1) permitting the release of greenhouse gas (GHG) emissions within their territories and areas they control; (2) allowing the export of fossil fuels extracted from within their territories; (3) permitting the import of goods whose production results in the release of GHG emissions; and (4) allowing “entities within their [territories] to contribute to the release of emissions overseas, e.g. through their extraction of fossil fuels overseas or by financing such extractions.”

This is an inclusive framing of the GHG emissions for which countries are responsible, as opposed to a narrower framing which may only include those GHG emissions released within a given country’s territorial boundaries. This wider framing is important because it addresses the way in which countries, especially developed countries, offload emissions onto other countries by importing carbon-intensive goods from abroad. Moreover, by including the extraction of fossil fuels within a country’s boundaries, the petitioners sought to prevent countries from evading responsibility for supplying the fossil fuels driving the climate emergency.

Tying countries’ / corporations’ climate and human rights obligations to international climate and environmental law, including, for example, the temperature target established by the Paris Agreement

Here, the petitioners argued that the content of countries’ obligations under the European Convention on Human Rights should take into account relevant international environmental and climate principles. This includes the provision of the Paris Agreement underscoring the need to limit global warming to 1.5 degrees Celsius in order to prevent “significant deleterious effects. . . on human health and welfare” (Paris Agreement Art. 2(a); UNFCCC Arts. 1(1), 3). It also includes the obligation to consider the best interests of the child under the UN Convention on the Rights of the Child, the principle of intergenerational equity found in the Rio Declaration and the UN Framework Convention on Climate Change, and the precautionary principle.

Affirming country / corporate responsibility for their ‘fair share’ of emission reductions, regardless of the actions of other countries or corporations.

Countries often try to avoid taking sufficiently ambitious emission reductions by arguing either that (1) they can’t be required to take more ambitious action because their actions alone won’t stop the climate crisis, or (2) that there is no internationally agreed upon method to divide up specific quantities of greenhouse gases, so courts can’t mandate one.

The petition preemptively addressed these arguments. The plaintiffs argued that the respondent countries are responsible for violations of rights stemming from their own contributions to climate change because no requirement exists under the applicable case law that the petitioners prove the impacts would not occur ‘but for’ the respondent countries’ contributions to climate change. Moreover, countries can share responsibility for acts that violate a legal obligation when those actions together create an indivisible – meaning “impossible to divide or separate” – injury. Here, since the respondent countries each contribute to climate change, they could be held responsible for the indivisible injuries generated by climate change that the petitioners experience.

Regarding the lack of a methodology to divvy up quantities of greenhouse gas emissions, the petitioners first argued that a country’s fair share must contribute to the collective achievement of the Paris temperature goal. From there, they asserted that – in the absence of a precise method to divide emissions consistently with the collective temperature goal – the respondent countries should bear the consequences, not the petitioners. This is justified because the lack of a methodology is a direct consequence of countries’ failure to agree on such a method and because sharing the emissions reduction burden is a matter for countries to resolve among themselves.

Shifting the presumption of proving the adequacy of the countries’ / corporations’ climate actions to the respondent countries / corporations

Plaintiffs in climate cases sometimes struggle to provide an appropriate method to prove that a given country’s climate actions are inadequate.

Here, the plaintiffs offered a way around this. They pointed to a general principle of law that provides that:

where one or more of a number of potential wrongdoers must have caused a particular harm, but there is uncertainty as to which of them in fact caused that harm, then each of those potential wrongdoers is presumptively responsible in law for the harm in question, such that the onus is on those potential wrongdoers to show that they did not cause it.

(¶28)

Here, this applies because there is a harm (the climate harms experienced by the petitioners) and multiple potential wrongdoers (the respondent countries who released emissions or otherwise contributed to climate change), but uncertainty as to whether a specific respondent country’s emissions caused a specific harm experienced by the petitioners. As a result, the onus here should be on the respondent countries to prove that they did not cause the harms at issue – or, in other words, to prove that their climate policies are adequate.

Emphasizing the urgency of taking climate action now, given the compounding and permanent effects of climate change as time progresses

The facts that carbon dioxide emissions, once emitted, are permanent over human timescales (because they remain in the atmosphere for hundreds of years), and that the impacts of climate change are compounding and accelerate over time, should be taken into consideration when assessing a climate case, as various litigators and courts have argued.

Here, the plaintiffs asserted that the urgency of climate change – and the need to act now in order to prevent compounding and accelerating effects – means that they should not be expected to litigate in the domestic courts of each respondent country before bringing the case before the European Court of Human Rights. More specifically, because there is an extremely limited amount of time left for countries to take the mitigating measures necessary to prevent warming above 1.5 degrees Celsius, there is a substantial need to expedite legal processes. A positive judgment by the ECtHR would have vastly increased the likelihood that domestic court litigation would be resolved in a timely manner.