Extraterritorial Human Rights and Climate Change at the ECtHR: The End of the Road?

by | May 15, 2024

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About Lara Ibrahim

Lara Ibrahim is currently a Judicial Fellow at the International Court of Justice. She is a DPhil candidate in the Faculty in Law at the University of Oxford, where her doctoral research focuses on extraterritorial human rights obligations of States in the context of climate change. Prior to this, Lara completed the Bachelor of Civil Law at the University of Oxford and her undergraduate Law degree at the University of Sheffield.

On 9 April 2024, the European Court of Human Rights (ECtHR or Court) handed down its judgment in the case of Duarte Agostinho and Others v Portugal and 32 Other States. The case, brought by six youth applicants from Portugal, was an ambitious one, relying on the extraterritoriality of Convention rights to bring the case against 32 other Council of Europe Member States. Specifically, the applicants alleged that there had been a breach of their rights under Articles 2, 3, 8 and 14 of the European Convention on Human Rights (ECHR) due to the existing and future impacts of climate change caused by the respondent States’ greenhouse gas (GHG) emissions. In the end, the case was found inadmissible [231]. Most notably, the Court refused to expand its extraterritoriality test in the context of climate change [208], arguably limiting the scope for climate litigation at the ECtHR.

The applicants in the Duarte Agostinho case, relying on jurisprudence from the Inter-American Court of Human Rights and the Committee on the Rights of the Child, put forward a proposal for extending States’ extraterritorial jurisdiction based on ‘control over the applicants’ Convention interests’ [126]. This proposal was based on the ‘special features’ of climate change, namely its transboundary nature.

Despite the Court’s acceptance that ‘climate change is a global phenomenon’ [193] that is ‘of a truly existential nature for humankind’ [194], it did not accept the applicants’ approach to extraterritoriality. Instead, it stated that ‘these considerations cannot in themselves serve as a basis for creating by way of judicial interpretation a novel ground for extraterritorial jurisdiction or as justification for expanding on the existing ones’ [195]. As a result, it followed its past caselaw which relies on control over persons to establish extraterritorial jurisdiction. It justified this decision on the basis that an expansion of extraterritorial jurisdiction in the way the applicants envisaged would ‘lead to an untenable level of uncertainty for States’ and would ‘entail an unlimited expansion of States’ extraterritorial jurisdiction under the Convention’, thus turning the ECHR into a ‘global climate change treaty’ [208]. As a result, the Court found that the applicants had only established territorial jurisdiction with respect to Portugal [214], but as domestic remedies had not been exhausted, the entire case was inadmissible [231].

The question therefore remains: what scope is there for the extraterritorial application of rights in the context of climate change in future cases at the ECtHR? It is widely acknowledged that the current approach to extraterritoriality of human rights, and the one which the ECtHR rigidly stuck to in its decision, is not sufficient to deal with climate change where GHG emissions and the impacts of climate change are, by nature, extraterritorial. Indeed, the Court’s current approach, which requires either effective control over an area or State agent authority and control, has been applied primarily in the context of overseas military action. This ignores situations where, as in the context of climate change, actions occurring within a State’s territory cause transboundary harm, impacting the human rights of individuals living outside that territory. In the case of climate change, those individuals facing worst impact are located in the Global South; a restrictive approach to extraterritorial jurisdiction thus risks a limited scope for climate justice at international courts and tribunals.

Although the ECtHR refused to accept an effects-based approach to extraterritorial jurisdiction in Duarte Agostinho, it is encouraging that this is being adopted by other international courts and tribunals. This effects-based approach, which relies on a State having control over a situation that produces extraterritorial effects, opens up the door for more progressive climate change litigation decisions. It recognises the need to go beyond traditional legal doctrines that constrain climate justice in the courts. Therefore, although it is unclear what the current opportunities are at the ECtHR for this progression, it will certainly not be achieved without future cases like Duarte Agostinho being brought forward to attempt to push the boundaries.

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