On 9 April 2024, the European Court of Human Rights found that an application of six young Portuguese Nationals which concerned current and future serious effects of climate change was inadmissible. The application was taken against Portugal and 32 other countries, Ireland among those, and alleged that these respondents were responsible for human rights violations by not addressing climate change through sufficient action and sought an order in relation to taking stronger action.
Six Portuguese nationals, born between the years of 1999 and 2012 submitted an application to the European courts in September 2020, about the current experiences of Portugal in relation to climate change, especially extreme heat and wildfires, and about worsening future impacts. The applicants submitted that their generation would be especially affected by climate change due to their age, and thus their rights are being interfered with to a much stronger effect than older generations. Their application drew on the recent reports from the Intergovernmental Panel on Climate Change, and other scientific reports to show that the current level of climate change is unsafe and that significant reductions are needed to achieve 1.5 Degree Celsius goals by 2030. It also focused particularly on the European Convention of Human Rights (the ‘Convention’) regarding Article 2; the right to life, Article 3; prohibition of inhuman and degrading treatment, Article 8; the right to respect for privacy and family life, and Article 14; prohibition of discrimination.
On 28 June 2022, the Chamber, which was assigned the case, relinquished their jurisdiction in favour of the Grand Chamber. The Grand Chamber found that the application was inadmissible on grounds of jurisdiction and lack of exhaustion of domestic remedies.
In relation to jurisdiction, all applicants are Portuguese residents and thus under its territorial jurisdiction and Article 1 of the Convention, there was jurisdiction for action against Portugal. For the other 32 respondent countries, the applicants tried to rely on exceptional circumstances for the court to find grounds for extraterritorial jurisdiction, due to the context of climate change. The court did acknowledge some aspects of the arguments put forward, but also addressed other grounds without support of them as reasons to extend grounds. The court did acknowledge that states have ultimate control in relation to their territorial activities which emit greenhouse gas and linked to this, these states have undertaken international law commitments. The courts also recognised that there is a certain causal relationship in existence between these activities emitting greenhouse gas, and its adverse effects on those outside the state borders. Additionally, the court held climate change affects the existence of humankind, so can be separated from some other cause and effect situations. However, the court found that the considerations presented were not enough to support the basis for either applying the current grounds of extraterritorial jurisdiction or creating a new ground through judicial interpretation.
Turning to Portugal, there was no contention surrounding the fact that the applicants failed to exhaust their domestic remedies. The court, among other things, noted that Portugal has a constitutional right to a healthy and ecologically balanced environment, that this has been enforced in national courts, that applications can be taken against public authorities, and that Portugal has a comprehensive system of remedies in the Portuguese legal order. The court disagreed with the applicants’ concept of subsidiarity, which claimed that the Court should find on the issue of climate change before such opportunity was given to the Portuguese courts. This was not in line with the concept of subsidiarity underpinning the Convention. Therefore, their application was inadmissible due to non-exhaustion of domestic remedies.
Finally, an examination could not be carried out in relation to their victim status per Verein KlimaSeniorinnen Schweiz and Others, due to a significant absence of clarity relating to the situations of the individual applicants.
One of the applicants had previously stated that "Without urgent action to cut emissions, (the place) where I live will soon become an unbearable furnace.” While it is evident that the Court was sympathetic to the concerns presented, it was not willing to overlook foundational requirements of jurisdiction and exhaustion of domestic remedies.
To read the press release, click here.
To read out recent article on Verein KlimaSeniorinnen Schweiz and Others, click here.