Legal Challenge laid down by Young Portuguese Claimants
On 2 September, 2020, six young Portuguese claimants - Cláudia Agostinho (23), Catarina Mota (22), Martim Agostinho (19), Sofia Oliveira (17), André Oliveira (14) and Mariana Agostinho (10), filed a complaint with the European Court of Human Rights against 33 countries.
Duarte Agostinho and Others v. Portugal and 32 Other States
The complaint alleges that the respondents have violated human rights by failing to take sufficient action on climate change, and seeks an order requiring them to take more ambitious action.
Photo: Estreito da Calheta, Portugal by Michael Held
The case is brought against the Member States of the EU (Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Greece, Denmark, Estonia, Finland, France, Croatia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain and Sweden) as well as Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom.
The complainants allege that the respondents have fallen short of their human rights obligations by failing to agree to emissions reductions that will keep the temperature rise to 1.5 degrees Celsius, as envisioned by the Paris Agreement.
Further background to the case, include bios of the claimants and ways to help their campaign, can be found on the website of the Global Legal Action Network here: https://youth4climatejustice.org
The complaint relies on Articles 2, 8, and 14 of the European Convention on Human Rights, which protect the right to life, right to privacy, and right to not experience discrimination.
The complainants claim that their right to life is threatened by the effects of climate change in Portugal such as forest fires; that their right to privacy includes their physical and mental wellbeing, which is threatened by heatwaves that force them to spend more time indoors; and that as young people, they stand to experience the worst effects of climate change.
On 30 November, 2020, The European Court of Human Rights fast-tracked and communicated the case to 33 defendant countries, requiring them to respond by the end of February 2021. Only a tiny minority of such cases are fast tracked in this way.
On 4 February, 2021 the Court rejected a motion by the defendant governments asking the Court to overturn its fast-tracking decision. The governments had asked the court to overturn priority treatment of the case and to hear arguments only on the admissibility of the case.
The Court sent a letter to the parties rejecting these motions and gave the defendants until 27 May, 2021 to submit a defence on both admissibility and the merits of the case.
The Court also granted until 6 May, 2021 for third party interventions. Among other seven third-party intervention, on May 5, 2021, Amnesty International intervened in the case and submitted their written observations to the European Court of Human Rights. The submission supports the claimants' position, providing legal arguments to the Court to show that international law requires states to not harm, and to not allow companies within their jurisdiction to harm, the human rights of people outside their borders.
On 19 May, 2021 a new intervention was made by the European Commission submitted written observations to the European Court of Human Rights. Noting the pronounced impact of environmental degradation and climate change on human rights, the Commissioner argues that international environmental and children’s rights law instruments should play a significant role in defining the scope of states’ obligation to prevent human rights violations caused by environmental harm.
The Commission bases its defence of EU policy in the field of environmental protection on sound legal reasoning and science-based evidence. The term ‘climate emergency’ expresses the political will to fulfill the obligations under the Paris Agreement. The Commissioner concludes that:
“the increasing number of climate change-related applications provide the Court with a unique opportunity to continue to forge the legal path towards a more complete implementation of the Convention and to offer real-life protection to individuals affected by environmental degradation and climate change.”
On 14 August 2021, the claimants received the respondent governments’ respective defences. However, on legal advice, the claimants have decided not to make them public. The claimants duly filed responses to these defences on 9 February 2022.
The case is being closely watched by environmental lawyers and environmental NGOs. It will be an important measure of the willingness of the European Court of Human Rights to intervene in the climate change debate, and to set standards for the responses of governments in terms of the human rights of their citizens.
Thanks to Columbia University’s climate case chart for some of the above chronology.