Duarte Agostinho and Others v. Portugal and 32 Others (dec.) [GC]

Legal summary

April 2024

Duarte Agostinho and Others v. Portugal and 32 Others (dec.) [GC] - 39371/20

Decision 9.4.2024 [GC]

Article 1

Responsibility of States

Territorial jurisdiction of Portugal established in respect of complaints by a group of young Portuguese concerning the harm caused by climate change

Lack of extraterritorial jurisdiction of remaining respondent States: inadmissible

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Application to the Court without pursuing any of the remedies available in the Portuguese domestic legal order concerning climate-change complaints: inadmissible

Facts – The six applicants, all Portuguese nationals living in Portugal, complained, in particular, that there had been a breach of Articles 2, 3, 8 and 14 of the Convention owing to the existing, and serious future, impacts of climate change imputable to their home country and thirty-two other States, and specifically those in relation to heatwaves, wildfires and smoke from wildfires, which affected their lives, well-being, mental health and the amenities of their homes. The applicants argued that Portugal was one of the European countries that would be most affected by the adverse impact of climate change and that it faced “hard limits” to its ability to adapt to the impact of global warming. They relied on relevant international documents, general reports and expert findings concerning the harm caused by climate change to human health.

The applicants lodged their application directly with the Court; they did not bring their situation to the attention of any of the authorities in any of the respondent States; nor did they attempt to use any legal remedies in any of those States.

On 28 June 2022 a Chamber of the Court relinquished jurisdiction in favour of the Grand Chamber.

Law –

(a) Preliminary issues –

(i) The application against Ukraine – Having considered the applicants’ wish to withdraw their application in so far as it concerned Ukraine given “the exceptional circumstances relating to the ongoing war” and that all the issues of general importance raised would be sufficiently elucidated in the examination of the application in regard to the remaining respondent States, the Court struck out that part of the application of its list of cases in accordance with Article 37 § 1 (a) of the Convention.

Conclusion: struck out (absence of intention to pursue application) (unanimously).

(ii) The application against the Russian Federation – The Court had jurisdiction to deal with the complaints in so far as they related to facts that had taken place prior to 16 September 2022, the date on which the Russian Federation had ceased to be a party to the Convention. However, any complaint as regards the situation in relation to the Russian Federation after that date was incompatible ratione temporis with Article 35 § 3 of the Convention. Furthermore, that Government’s failure to participate in the Grand Chamber proceedings could be taken as a manifestation of their intention to abstain from further participation in the examination of the application. The Court had held that the cessation of a Contracting Party’s membership of the Council of Europe did not release it from its duty to cooperate with the Court. That duty continued for as long as the Court remained competent to deal with applications arising out of acts or omissions capable of constituting a violation of the Convention. Since the Court retained jurisdiction to deal with the application, the respondent Government’s failure to engage with the proceedings could not be an obstacle for its examination.

(b) Jurisdiction – The Court’s examination of the issue of jurisdiction was limited to that of States in relation to the adverse effects arising from climate change and did not deal with possible issues of extraterritorial jurisdiction, such as those which might arise, for instance, in the context of more localised transboundary environmental harm.

(i) Territorial jurisdiction – All the applicants were residents of Portugal, and thus under its territorial jurisdiction, which meant that under Article 1 of the Convention Portugal must answer for any infringement attributable to it of the rights and freedoms protected by the Convention in respect of the applicants. As regards the other respondent States, the applicants had not argued nor would there be any basis to find, that their territorial jurisdiction could be established in respect of them.

(ii) Extraterritorial jurisdiction – There was no suggestion that any of the respondent States exercised in any manner effective control of an area outside its national territory bringing the applicants within its jurisdiction ratione loci. Neither could jurisdiction be established on the basis of the “State agent authority and control” criterion (none of the respondent States exercised authority nor control over the applicants within the meaning of the Court’s case-law on Article 1) or on the basis of the jurisdictional link criterion as regards the procedural obligation to investigate under Article 2 (the question whether and to what extent a jurisdictional link could potentially be established by instituting the relevant domestic proceedings did not arise as no such steps had been taken by the applicants in any of the respondent States).

It was clear that the applicants’ complaints in the present case did not correspond to any of the circumstances which in earlier cases had given rise to a finding of extraterritorial jurisdiction. The existing case-law therefore provided no basis for establishing extraterritorial jurisdiction of the respondent States (other than Portugal, which had territorial jurisdiction). The Court thus examined whether there were valid grounds for developing the existing case-law on extraterritorial jurisdiction as put forward by the applicants in their submissions given their reliance on a number of “exceptional circumstances” and “special features”.

In so far as the applicants had relied on the “exceptional circumstances” mentioned in M.N. and Others v. Belgium (dec.) [GC], in that case the Court had not established the existence of extraterritorial jurisdiction of the respondent State nor intended to establish a distinct jurisdictional test. The assessment of any “exceptional circumstances” was ultimately one of effective authority or control over the applicants, in line with established case-law.

Noting the specific characteristics of climate-change cases as explained in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC] the Court first acknowledged the following aspects of climate change emphasised by the applicants.

First, States had ultimate control over public and private activities based on their territories that produced GHG emissions. In that connection, they had undertaken certain international-law commitments, notably those set out in the Paris Agreement, which they had developed in their domestic laws and policy documents as well as in their Nationally Determined Contributions under that Agreement. Moreover, as set out in Verein KlimaSeniorinnen Schweiz and Others, certain positive obligations arose under the Convention as regards climate change. Secondly, albeit complex and multi-layered, there was a certain causal relationship between public and private activities based on a State’s territories that produced GHG emissions and the adverse impact on the rights and well-being of people residing outside its borders. Thirdly, the problem of climate change was of a truly existential nature for humankind, in a way that set it apart from other cause-and-effect situations.

However, the above considerations could not 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. The Court thus addressed the other arguments put forward by the applicants as a basis for justifying an extension of extraterritorial jurisdiction.

First, in so far as the applicants had argued that jurisdiction should depend on the content of the positive obligations which they sought for the Court to impose on States given the gravity of the impact of climate change on their Convention rights, it was not possible to consider that the proposed positive obligations of States in the field of climate change could be a sufficient ground for holding that the State had jurisdiction over individuals outside its territory or otherwise outside its authority and control. Further, there was no particular link or connection between the applicants and any of the respondent States (other than Portugal) that could form a basis for allowing the Court to consider that any positive obligations to which States might be subject had to be exercised with due regard to the applicants’ particular situation. The fact that through their Portuguese nationality the applicants also enjoyed EU citizenship could not serve to establish a jurisdictional link between them and the twenty-six respondent States that were also EU member States.

Secondly, in so far as the applicant submitted that the Court should establish extraterritorial jurisdiction so as to facilitate broader litigation relating to climate change and to allow them to act instead of “appropriate applicants from each State [bringing] comparably ambitious applications”, the Convention was not designed to provide general protection of the environment as such and other international instruments and domestic legislation were specifically adapted to dealing with this particular. Accepting the applicants’ argument would entail a radical departure from the rationale of the Convention protection system, which was primarily and fundamentally based on the principles of territorial jurisdiction and subsidiarity.

Nor could the applicants’ submission relating to the limited share of Portugal’s alleged responsibility for climate change – as the territorial State – be accepted as a basis for concluding that the jurisdiction of thirty-one other States should be established. Jurisdiction had to be differentiated from the issue of responsibility, which constituted a separate matter to be examined, if appropriate, in relation to the merits of the complaint. What was more, while climate change was undoubtedly a global phenomenon which should be addressed at the global level by the community of States, each State had its own share of responsibilities to take measures to tackle climate change and the taking of those measures was not determined by any specific action (or omission) of any other State.

Thirdly, as regards the applicants’ reliance on a test of “control over the applicants’ Convention interests”, according to the Court’s established case-law, extraterritorial jurisdiction as conceived under Article 1 of the Convention required control over the person himself or herself rather than the person’s interests as such. Reliance on such a criterion for establishing the State’s extraterritorial jurisdiction would lead to a critical lack of foreseeability of the Convention’s reach.

The Court also noted that while combating climate change through the reduction of GHG emissions at source was chiefly a matter of exercise of territorial jurisdiction, the harmful consequences produced by GHG emissions, were the result of a chain of effects that were both complex and more unpredictable in terms of time and place and were therefore particularly diffuse, making it difficult to establish the respective contributions to the adverse impact of the emissions abroad. The scope of the extraterritorial jurisdiction sought by the applicants would in effect be without any identifiable limits.

In sum, extending the Contracting Parties’ extraterritorial jurisdiction based on the proposed criterion of “control over the applicants’ Convention interests” in the field of climate change – be it within or outside the Convention’s legal space – would lead to an untenable level of uncertainty for the States. More importantly, accepting the applicants’ arguments would entail an unlimited expansion of States’ extraterritorial jurisdiction under the Convention and responsibilities under the Convention towards people practically anywhere in the world. This found no support in the Convention.

Lastly, none of the relevant international instruments and materials provided support for establishing the States’ extraterritorial jurisdiction under the Convention in the manner, and on the grounds, proposed by the applicants.

In view of the above considerations, while also mindful of the constant legal developments at national and international level and global responses to climate change, together with the ever-increasing scientific knowledge about climate change and its effects on individuals, the Court found that there were no grounds in the Convention for the extension, by way of judicial interpretation, of the respondent States’ extraterritorial jurisdiction in the manner requested by the applicants.

Conclusion: territorial jurisdiction established in respect of Portugal (unanimously); inadmissible (unanimously) in respect of the remaining thirty-one States (lack of jurisdiction).

(c) Exhaustion of domestic remedies (Portugal) – It was uncontested that the applicants had not pursued any legal avenue in Portugal concerning their complaints. The Court, however, found that there was a comprehensive system of remedies in the national legal order.

In particular, there was an explicit Constitutional recognition of the right to a healthy and ecologically balanced environment (Article 66) which was directly applicable and enforceable by the domestic courts. The Constitution and the Law on the right to procedural participation provided for a possibility of instituting actio popularis actions through which the claimant (without demonstrating a direct interest in the action) could request the adoption by public authorities of certain conduct regarding, inter alia, the protection of the environment and quality of life. Such an action could also be instituted under the Environmental Policy Framework Act which guaranteed to everyone the right to a full and effective protection of their rights and interests in environmental matters. Moreover, the Climate Law recognised climate change as an emergency situation and provided to everyone the right to “climate balance” as the right of defence against the impact of climate change as well as the ability to demand that public and private entities complied with the duties and obligations to which they were bound in climate matters.

Furthermore, the above-noted constitutional right could be enforced through a civil action which could lead to the prevention of the impugned threat or to mitigate the effects of harm that had already occurred. There were other civil and administrative remedies available, as well as mechanisms to overcome the parties’ lack of means for legal representation and effective remedies for the excessive length of proceedings.

Although no case specifically concerning climate change had so far been decided, the domestic case-law demonstrated that environmental litigation was now a reality of the domestic legal system.

There had not been any special reasons for exempting the applicants from the requirement to exhaust domestic remedies in accordance with the applicable rules and the available procedures under domestic law. The applicants had thus failed to take appropriate steps to enable the national courts to fulfil their fundamental role in the Convention protection system, that of the Court being subsidiary to theirs.

Conclusion: inadmissible (non-exhaustion of domestic remedies) (unanimously).

Lastly, the Court did not examine the issue of victim status under Article 34 of the Convention noting that the applicants’ failure to exhaust domestic remedies made it difficult to examine whether they satisfied the victim-status criteria set out in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC].

(See also M.N. and Others v. Belgium (dec.) [GC], 3599/18, 5 May 2020, Legal Summary; Georgia v. Russia (II) [GC], 38263/08, 21 January 2021, Legal Summary; H.F. and Others v. France [GC], 24384/19 and 44234/20, 14 September 2022, Legal Summary; Ukraine and the Netherlands v. Russia (dec.) [GC], 8019/16 et al, 30 November 2022, Legal Summary; Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], 53600/20, 9 April 2024, Legal Summary; Paris Agreement of 12 December 2015, United Nations, Treaty Series, vol. 3156)

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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