The grand chamber of the European Court of Human Rights has heard from six young people and 31 governments in the biggest climate change case to reach the court.
The day-long hearing was held before 22 judges this week in Strasbourg, France. The court heard the six Portuguese applicants, aged between 11 and 24, had dropped their case against Ukraine, and Russia would not take part.
The applicants argue the countries are failing to comply with their positive obligations under Article 2 (right to life) and Article 8 (right to respect for private and family life) as well as an issue under Article 3 (prohibition of ill-treatment) of the convention and a violation of Article 14 (prohibition of discrimination).
Richard Matos, speaking on behalf of Portugal, praised the applicants – Catarina dos Santos Mota, Martim Duarte Agostinho, Cláudia Agostinho, Mariana Agostinho, André dos Santos Oliveira and Sofia dos Santos Oliveira – for their commitment but said being part of the ‘young generation’ was ‘not sufficient to establish victim status’.
Alison Macdonald KC, for the applicants, said all the states ‘have materially contributed to climate change and the consequent risk of harm to the applicants’. She added: ‘Action is required from all of the respondents in order to mitigate that risk by limiting global warming to 1.5 degrees.’
Sudhanshu Swaroop KC, for the UK, who addressed the court on behalf of the respondents, said: ‘The applicants in reality are asking the court to build a new model of extra trial jurisdiction contrary to the legal principle and with the effect that any person on the planet who claims to be effected by climate change could claim to be within the jurisdiction of each and every one of the respondent states.
‘Cases of climate change are global, the causes and contributions of each respondent state are a fraction of the total thus it cannot be said that any of the respondents control the applicants alleged convention interests, or has caused the alleged effects on the applicants, or has it within its capacity to protect the applicants alleged interest.’
Isabelle Niedlispacher, for Belgium, also speaking on behalf of the respondents, added: ‘There is no reason in the present case to exempt the applicants from the obligations to exhaust domestic remedies.
‘The applicant, although they had accessible, adequate and effective domestic remedies in each of their states, chose to refrain from exhausting them and they were all the more obliged to do so because they raised complex issues for which there is no constant case law.’
Matas said: ‘[The applicants] wanted to have a say in the matter, they wish to be heard and actively participate in the fight against climate change. One cannot but praise the applicants for their commitment to this case which should be a case for all.
‘The impact of climate change does not specifically affect one particular group of the population. Climate change is indiscriminate by nature. It affects everyone, everywhere even if perhaps in different degrees. The fact that the applicants belong to the young generation is not sufficient to conclude that they have the victim status under the convention.’
McDonald said: ‘Today’s case is about the young, it is about the price that they are paying for the failure of states to tackle the climate emergency. It is about the harm that they will suffer during their lifetimes unless states step up to their responsibilities.
‘The respondents’ message is clear, yes climate change is the greatest threat humanity has faced but it is not seemingly for you, the court, to concern yourselves with. The convention gives no protection, they say, to young people whose lives have been blighted by the destruction of the very planet we need for our survival.
‘This amounts to saying that the problem is just too big. It is too complex. It is too global so the court, they say, should look away and the respondents’ case, the human rights that grow out of post war Europe have reached the end of the road. The respondents are wrong.
‘All of the respondents have materially contributed to climate change and the consequent risk of harm to the applicants and action is required from all of the respondents in order to mitigate that risk by limiting global warming to 1.5 degrees. The unique factor of climate change is central to the applicant position on jurisdiction.
‘Bringing litigation in 33 states simultaneously would be wholly impractical for the applicants. Insisting that they bring 33 cases before coming here would impose an impossible burden and what render their rights illusory.
‘It is immaterial that the source of pollution may not be proximate to the applicants…all global emissions stand in an equal causal relationship to the impact on the applicants. Greenhouse emissions in other words do not respect national boundaries.’
Submissions were also heard from third parties including the Office of the Commissioner for Human Rights, the European Commission and the ENNHRI.
The countries involved are Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey and the UK.
Duarte Agostinho and others v Portugal and 32 others is one of three cases, and the biggest, which has been heard by the grand chamber this year.
Judgment was reserved.
