By: Daria Stanculescu, Junior Research Associate, PILPG-NL
On September 3, 2020, six Portuguese children and young adults aged eight to 21 brought an application before the European Court of Human Rights (ECtHR) against 33 Council of Europe member states, including all states of the European Union, the United Kingdom, Switzerland, Russia, Norway, Turkey, and Ukraine. The application, logged as Duarte Agostinho and Others v. Portugal and Others, raises complex issues related to admissibility and shared responsibility among states for climate change. This blog post will focus on the requirement to exhaust domestic remedies and the problem it poses for this case. It will also provide an alternative to bringing future climate-related claims before the ECtHR that does not require the exhaustion of domestic remedies.
Facts of the Case
The applicants allege that the states are contributing to climate change by failing to take effective measures to reduce their greenhouse gas emissions. These claims are not new. Claimants brought similar arguments in the Urgenda case, in which the Dutch Supreme Court ordered the Netherlands to reduce its emissions by 25% by the end of 2020. The Duarte Agostinho case is, nonetheless, significant as it is the first case concerning climate change appearing before the ECtHR. The applicants allege violations of Articles 2 (the right to life), 8 (the right to private and family life), and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR). Upon asking the applicants to comment on their claims, the ECtHR also raised the application of Article 3 ECHR (prohibition of torture or inhuman or degrading treatment or punishment) of its own accord. While this is not unheard of, it is notable that the Court raised the issue of the individuals’ rights under Article 3, as this provision has not been raised in relevant domestic cases, such as the Urgenda case. The case is currently pending an admissibility examination by the Court. One of the admissibility requirements the applicants must meet is the exhaustion of domestic remedies.
Exhaustion of domestic remedies
The requirement to exhaust domestic remedies compels individuals to first use available procedures under national law before bringing a complaint to the ECtHR. Since the applicants are lodging their case against 33 states, making use of domestic remedies in each of these states would have taken several years. As a result, the applicants, in this case, have not exhausted domestic remedies and are attempting to rely on an exception to this rule.
The non-exhaustion of domestic remedies can be problematic, as the ECtHR is subsidiary to national systems that safeguard human rights. The ECtHR does not replace national courts but works alongside them. The purpose of the requirement is that the national system can remedy the alleged violation of the Convention rights first before the ECtHR is allowed to adjudicate on the state’s behavior.
Although the requirement to exhaust domestic remedies can be decisive, the ECtHR has highlighted the need to apply it with a degree of flexibility and without excessive formalism. The Court has established exceptions to the exhaustion of domestic remedies rule. In the Duarte Agostinho case, the applicants argue the rule should not apply due to the absence of an adequate domestic remedy. The applicants rely on two main arguments that, in their opinion, justify such a statement: that it would not be feasible to pursue domestic proceedings against each of the states, considering the urgency of climate change, and that pursuing domestic remedies in each of the states would impose an unreasonable burden on them. The decision of the Court regarding these arguments will determine if the case will be heard on the merits.
The Future of Climate Change Litigation before the ECtHR
If the Court dismisses the Duarte Agostinho case for not exhausting domestic remedies, the decision may raise doubts about the suitability of the ECtHR in dealing with future climate change-related claims by individuals. However, the ECtHR also supports other types of claims. A possible alternative to individual proceedings, like Duarte Agostinho, would be a request made by a state for an advisory opinion. Under Protocol 16, which entered into force in 2018 for the states that ratified it, the ECtHR can issue advisory opinions on questions concerning the application and interpretation of the ECHR. Such opinions can only be requested by the highest courts and tribunals of a state. Although advisory opinions are not binding, they may provide clarity on how the ECHR applies in climate change cases. This approach would allow the ECtHR to address the material issue without encountering problems stemming from the requirement to exhaust domestic remedies.
Conclusion
The ECtHR’s decision in Duarte Agostinho raises expectations, as it is yet to be seen how the Court rules on the admissibility requirements, particularly regarding the exhaustion of domestic remedies. Regardless of the outcome of the proceedings, Duarte Agostinho embodies an influential case for climate change litigation before the ECtHR. However, individual claims are not the only path for the ECtHR to rule on climate change. Protocol 16 provides a non-binding alternative, through which the Court can rule on climate change issues, without requiring the exhaustion of domestic remedies.