On 29 March 2023, the European Court of Human Rights (ECtHR) heard its first two climate cases (Verein Klima Seniorinnen and Others v Switzerland and Carême v France). Meanwhile, another much awaited case, Duarte Agostinho et al. v Portugal and 32 Others, will be heard on 27 September 2023. While this case concerns similar issues to the two other climate cases, especially related to science and human rights, victim status, and causal links, it also raises new questions about jurisdiction and non-exhaustion of domestic remedies. The complexity of these issues and the extensive case materials involved are reasons why this case will be heard last.

In Duarte Agostinho, six children and young people, all residing in Portugal, filed an action against Portugal and 32 other States for their joint failure to cut greenhouse gas emissions in line with the 2015 Paris Agreement. They argue that climate change effects, such as wildfires, impacted their physical and mental health; their right to life; and, as children will disproportionately suffer from climate change effects over the course of their lifetime, their right to non-discrimination. In its communication to the parties, the Court also asked whether the prohibition of ill-treatment and the right to property were violated. Before addressing the merits of the case, the Court will likely examine in detail the issues of extra-territorial jurisdiction and exhaustion of domestic remedies.

Extra-territorial jurisdiction for climate harm

The applicants argue that the 32 States (in addition to Portugal, which exercises territorial jurisdiction) exercise extra-territorial jurisdiction, since they cause climate impacts abroad. The Court may adopt a nuanced approach to extra-territoriality tailored to climate cases, drawing inspiration from the Inter-American Court of Human Rights (IACtHR), which developed such standards in its Advisory Opinion OC-23/17, requiring a causal link between the human rights violation committed abroad and the acts in the territory of the State of origin. Recently, the United Nations Committee on the Rights of the Child (CRC) applied this standard in Sacchi et al., v Argentina, and held that the respondent States had jurisdiction over transboundary climate harm, although some applicants lived outside their territorial boundaries. While this rather broad interpretation could possibly extend jurisdiction to harm unrelated to climate change, some kind of causality-based jurisdiction standard makes sense for climate cases, considering their transboundary nature. The Duarte Agostinho case thus presents an opportunity for the ECtHR to clarify the scope of extra-territorial jurisdiction for climate harm.

Exhaustion of domestic remedies

Unlike the two climate cases already heard by the Court, the Duarte Agostinho applicants have not exhausted domestic remedies in any of the 33 States. They argue that as children and youth they face financial and other barriers to access grievance mechanisms and that domestic courts would not respond in time to meet the 1.5°C target set out in the 2015 Paris Agreement. In contrast to the Swiss case, which was also brought by an association that could offset some of the presumably high legal costs, the Duarte Agostinho applicants argued their case in their individual capacities (with the help of the Global Legal Action Network, GLAN).

As such, the Court will need to carefully examine whether an exception to the rule of exhaustion of domestic remedies applies. In principle, applicants must bring their case before all domestic courts to enable them to review their complaints. In certain circumstances, applicants may be exempt from this requirement, such as when doing so would be unreasonable or impose a disproportionate burden. In examining this case, the Court might scrutinise—as the CRC did in Sacchi et al., rejecting the case precisely for non-exhaustion of domestic remedies—whether and to what extent, if at all, the applicants could have pursued remedies in Portugal and the 32 other States. The Court might also consider the availability and efficiency of the remedies and the length of the proceedings in the different States. Finally, it may exceptionally accept barriers of access to justice faced by groups especially vulnerable to climate change impacts, such as children. The Court’s finding in relation to each of these factors has significant implications for the ability to challenge future climate harms in international dispute forums on the grounds of human rights violations.

Want to learn more?

• Read: The Paris Agreement as a Human Rights Treaty: PSB et al. v Brazil 
• Read: Another ‘Green Reading’ of Article 8 of the ECHR in Pavolv & Ors v Russia
• Read: Appraising the Limitations of Linking Climate Reparations to Human Rights
• Listen: Christina Voigt on ecocide
• Read: What do Rivers have to do with Human Rights? A Spotlight on Recent Problems
• Read: Challenging Regression in Climate Commitments: Doctrine of ‘Non-Retrogression’ to the Rescue?