Guest piece by Liliana Flam, A&L Goodbody LLP: The climate case of the Portuguese Youth - Duarte Agostinho and Others v Portugal and 32 Ors

Duarte Agostinho and Others v Portugal and 32 Ors

Six Portuguese youth ranging from age 11 to 22 have taken a case against over 30 governments (including Ireland) arguing that their current climate policies are inadequate for protecting our environment. The case was first filed in September 2020 and due to the 'importance and urgency' of the subject matter it was fast tracked through the European Court of Human Rights (ECtHR) and communicated to the 33 respondent governments requiring them to make submissions to the Court.

The aim of the applicants is to secure a legally binding decision from the ECtHR to require the respondent governments to adopt deeper cuts to their emissions immediately, address their overseas contributions to the climate crises (including emissions from companies and exporting of fossil fuels), and comply with their obligations under the 2015 Paris Agreement on Climate Change (COP21). The six youth-claimants are not seeking financial compensation for the breach of their rights; they are seeking orders for compliance and stronger climate policies from the 33 European governments.

Grounding the Claim

The Portuguese claimants grounded their claim under Articles 2, 8, and 14 of the European Convention on Human Rights (ECHR) respectively. The claimants have argued that under Article 2 their right to life has been threatened by the effects of climate change – in particular citing the reoccurring and increasing forest fires in Portugal. The ongoing wildfires in Portugal have had devastating effects killing over 100 people and destroying over 60,000 acres of forest. Under Article 8 they have argued that their 'right to a private life, a home, and more generally, a healthy protected environment' has been threatened in respect of their wellbeing due to the respondent's emission contributions and inadequate measures to protect the environment. The youth claimants argue that their mental and physical wellbeing has been affected by increased temperatures impacting their ability to exercise, be outside, sleep properly, and has caused continuous distress in respect of ongoing concerns for their own safety as well as that of their families. The claimants have cited that under Article 14 that the respondents have acted in a discriminatory manner in respect of age by pushing the burden of combating climate change onto the younger generations. The case is grounded in the positive obligations placed on the respondents to reduce their emissions and meet temperature targets set by the Paris Agreement and as a part of their human rights and obligations under the ECHR. In particular, the claimants have pointed to the fact that the respondents have not established an agreed upon plan amongst themselves on how they will meet the global target of 1.5 degrees Celsius set by the Paris Agreement (which would effectively require that the EU to reduce its total emissions by 65% in order to meet the target set). Interestingly, the Court has also raised the question of whether Article 3 of the ECHR in respect of 'inhuman or degrading treatment' has been breached, this is an Article of the ECHR which has never before been held to be breached in respect of any case regarding environmental degradation.

Where does the case stand now?

The government respondents sought to have the decision to fast track the case overturned; this motion was rejected in February 2021. The defenses from the respondent governments were received by the claimants in August 2021 but not made available to the public. Importantly a number of third party human rights organisations have made amicus submissions in support of the case brought by the Portuguese claimants. The applicants responded to the government's defenses in February 2022 and a second set of defenses from the respondent governments was filed in June 2022. Significantly, on the 28th of June 2022, the Court referred the case to be hard in front of the ECtHR's 17 – judge Grand Chamber in accordance with Article 30 of the ECHR on 'relinquishment of jurisdiction to the Grand Chamber' whereby if a case raises a 'serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court…' the case may be referred to the Grand Chamber. The case is now set to be heard in the Grand Chamber on the 27th of September 2023 amongst a number of other climate cases which will be addressed over this upcoming period.

The Portuguese youth are continuously crowdfunding to support their ongoing legal battle, and further information on their case can be found on their webpage: 



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