Duarte Agostinho and Others v. Portugal and 32 Other States

by Anna Bortolussi

Country	Portugal, European Union
Defendant(s)	States
Law Applied	International Human Rights Law; International Environmental Law; European Convention on Human Rights; United Nations Framework Convention on Climate Change (UNFCCC); Paris Agreement.
Key words	States; Human Rights; Mitigation; Climate Justice.

Case Information:

Court(s): European Court of Human Rights

Dissenting Judgement? No

Filing Date: 2020

Last Update: 2022

Status: Pending

ISSUES

The applicants allege that Portugal and 32 other European states are in breach of the European Convention on Human Rights (ECHR or ‘the Convention’) by failing to adopt adequate measures that will help limit the rise in average global temperatures to well below 2°C and possibly to 1.5°C, the standard agreed to in the 2015 Paris Agreement [1]. They claim that the respondents are breaching Articles 2 and 8, respectively the right to life and the right to privacy, as well as Article 14, protection from discrimination, when taken in conjunction with the 2 previous articles [2].

The European Court of Human Rights (‘ECtHR’ or ‘the Court’) is first asked to decide whether the applicants have procedural standing, having not exhausted local remedies before submitting an application to the Court. The second issue before the Court is substantive, whether the respondents are in breach of their convention obligations under Articles 2, 8 and 14. In communicating the complaint to the respondents, the Court included, on their own initiative, Article 3 as a possible violation [3].

MATERIAL FACTS/BACKGROUND 

The case is brought by six Portuguese children, who complain that the effects of climate change caused by greenhouse gas (GHG) emissions are seriously affecting their quality of life [4]. They claim that the 33 respondent states, which are historically responsible for part of these emissions, are failing to take adequate measures to limit global warming by reversing the effects of their past emissions. 

An application was brought to the ECtHR on the violation of Articles 2, 3, 8 and 14. The Court fast-tracked the application and sent it to the respondent states, asking them to forward their replies by the end of February 2021. The respondents asked the ECtHR to reverse the decision to fast-track the case and asked to first decide on the case’s admissibility. The Court rejected their request and asked to submit both arguments on admissibility and merits, but extended the deadline to submit the arguments [5].

THE ARGUMENTS OF THE PARTIES

The plaintiff’s arguments:

1.The applicants argue that: They qualify under the status of victims as they have been directly exposed to the effects of climate change, mainly through forest fires and a higher frequency of intense storms, which Portugal has been experiencing more intensely given its proximity to the sea [6].

The applicants allege that forest fires occur as a result of increased heatwaves and droughts, which are caused by the rise in the temperature of the earth. [7] These fires, now occurring at an unprecedented frequency and intensity, have an effect on human health, ranging from trouble sleeping, to an increase in allergies and breathing difficulties [8]. They also have an impact on the quality of life of the applicants as they are no longer able to spend time outside and have increased anxiety about the possibility of being faced with other natural catastrophes [9].

2. The applicants argue that the respondent states are in breach of the Convention’s obligations as they have not adopted adequate legislative or administrative measures to limit their GHG emissions and keep the rise in temperatures to 1.5°C. They claim that the respondents are not doing so by: a) permitting the release of emissions; b) permitting the export of fossil fuels; c) permitting the import of goods that are produced by releasing emissions in the atmosphere; and d) permitting entities within their jurisdiction to release emissions abroad [10]. As stated in the Intergovernmental Panel on Climate Change (IPCC) 2018 Report, a rise in temperature of more than 1.5°C  will have negative consequences on human health and will  increase the risk of heat waves in Portugal [11].

Accordingly, they claim a breach of the following articles:

1. ECHR Article 2, which requires states to “put in place legislative and administrative framework designed to provide effective deterrence against threats to the right to life” [12].
2. ECHR Article 8, which requires that there are reasonable and sufficient measures protecting the right to private life, a home and a healthy environment. [13] The applicants claim that considering the consequences of climate change on them, the measures that have been taken by the respondents so far cannot be justified “as necessary in a democratic society”. [14].
3. ECHR Article 14 is taken in conjunction with Articles 2 and 8 because it prohibits states from discriminating on the basis of age, and, in the applicants’ view, the consequences of the rise in global temperature will be borne by the applicants’ generation. They claim that this is a discriminatory approach because it is taken without a legitimate aim or is disproportionate for that aim [15].

The case was directly brought to the ECtHR without exhausting domestic remedies. The applicants put forward two reasons for this. First, as the respondent is not only Portugal but also 32 other countries, to seek a remedy through every respondent state would be an extensive and time-consuming project, which, given the urgency of global warming, should not be required of the applicants. Second, because of the background and social position of the applicants, it would be an unreasonable and disproportionate burden to impose that they exhaust local remedies before bringing their case before the ECtHR. [16]

The defendant’s arguments:

The respondents asked the Court to reverse its decision to fast-track the case and to decide on admissibility first. They also asked the Court for an extension on the deadline to submit their arguments. Their arguments on the matters in question have not been made public yet. [17].

OUTCOME

The case is still pending before the Court.

The application was fast-tracked by the Court in light of the urgency of the threat of climate change and the court sent the complaint to the governments of the respondent states, requiring them to respond to the claims [18]. The Court also decided, on their own initiative, to include Article 3 in the complaint, which prohibits torture and inhuman and degrading treatment. This has been regarded as a novel approach, as this article is not normally invoked in cases of climate change. Owing to the effects that global warming is having on the applicants and other citizens of their age, the Court holds the view that there may be a possible violation of Article 3’s threshold of severity of ill-treatment [19].

Please find the full Court Communication here. Last edited 23 May 2022; with thanks to the case editor, Charlie Bevis.

REFERENCES

[1] Duarte Agostinho and Others v Portugal and 32 Other States [2020] ECtHR (Court Communication to Respondents) (hereafter ‘Duarte Agostinho Court Communication’), available in French at https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-206535%22 [Accessed 23 May 2022].
[2] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), Arts. 2, 8 and 14.
[3] Corina Heri, ‘The ECtHR’s Pending Climate Change Case: What’s Ill-Treatment Got To Do With It?’ (EJIL:Talk!, 22 December 2020), available at https://www.ejiltalk.org/the-ecthrs-pending-climate-change-case-whats-ill-treatment-got-to-do-with-it/ [Accessed 13 April 2022].
[4] Duarte Agostinho Court Communication, p. 1.
[5] Letter from Andrea Tamietti (Section Registrar of the ECtHR) to Sir Marc Willers of Garden Court Chambers (4 February 2021) available at http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2021/20210204_3937120_decision.pdf [Accessed 17 May 2022].
[6] Duarte Agostinho Court Communication, p. 2.
[7] Duarte Agostinho and Others v Portugal and 32 Other States [2020] ECtHR (Application Form) (hereafter ‘Duarte Agostinho Application Form’), available at https://youth4climatejustice.org/wp-content/uploads/2020/12/Application-form-annex.pdf, paras. 16 and 18 (previously no 5).
[8] Duarte Agostinho Court Communication, p. 1
.[9] Ibid., pp. 1-2.
[10] Duarte Agostinho Application Form, paras. 9-13.
[11] Ibid., paras. 14-16.
[12] Ibid., para. 24.
[13] Ibid, para. 25.
[14] Ibid., para 29.
[15] Ibid., para. 31.
[16] Ibid., para. 32.
[17] Letter from Andrea Tamietti, supra note 5.
[18] Ibid.
[19] Heri, ‘The ECtHR’s Pending Climate Change Case’, supra note 3.