On 27 September 2023, the Grand Chamber of the European Court of Human Rights heard the much-awaited case of Duarte Agostinho et al. v Portugal and 32 Others. The case was filed by six children and young adults against 33 Council of Europe member states. The applicants argued that the States’ failure to cut their greenhouse gas emissions exacerbated the effects of climate change, thereby affecting their living conditions and health.
The European Court of Human Rights (ECtHR) was set up to rule on individual or State applications alleging violations of rights enshrined in the European Convention on Human Rights (ECHR). While the ECHR does not provide for a right to a healthy environment as such, the Court has been called upon to develop its case law in environmental matters on account of the fact that the exercise of certain Convention rights may be undermined by the existence of harm to the environment and exposure to environmental risks. Some substantive rights that could be affected by climate change include the right to life, the prohibition of torture, and the right to respect for private and family life. Procedural rights, such as the freedom of assembly and association, might also be affected.
Today, three major climate-related cases have been heard before the Grand Chamber and are awaiting a judgment and/or a decision. A hearing in the Verein Klimaseniorinnen Schweiz and Others v. Switzerland and Carême v. France cases was held on 29 March 2023. More recently, on 27 September 2023, the Grand Chamber also heard the Duarte Agostinho and Others v. Portugal and 32 Others case. These cases raise legal questions on the extra-territorial jurisdiction of the ECtHR and the victim status requirement. Furthermore, the ECtHR will also have to rule on the issue of the exhaustion of domestic remedies in the Duarte Agostinho and Others case where the applicants did not exhaust domestic remedies in any of the 33 States. The outcome of these cases will be decisive for the future of climate action.
In parallel to these hearings, the Global Pact Coalition, along with other non-governmental organizations, has been participating in a campaign calling for the adoption of an additional protocol to the European Convention on Human Rights recognizing the right to a healthy environment. The Coalition believes that the adoption of this instrument would contribute to the protection of the environment and environmental human rights.
States at the United Nations Human Rights Council (resolution 48/13, October 2021) and at the United Nations General Assembly (resolution 76/300, July 2022) have already recognized the right to a clean, healthy, and sustainable environment as a human right for all. Adopting an additional protocol to the ECHR constitutes the next logical step. Note that today, the Inter-American and the African human rights systems have already recognized the right to a healthy environment. Additionally, the majority of Council of Europe member States also recognize this right in their constitutions or national laws.
