Why a Court Alone Won’t Bring Us to Heaven
A Note on the Hearing of Duarte Agostinho and Others v. Portugal and 32 Others
On 27 September 2023, the case of Duarte Agostinho and Others v. Portugal and 32 Others (no. 39371/20) was heard by the Grand Chamber of the European Court of Human Rights. The case sparked widespread interest, and considerable hopes are placed on its outcome. I believe, however, that a certain degree of scepticism is warranted. The Duarte Agostinho case can be seen as a mirror of the disastrous state of the climate crisis and the limits of youth participation.
The Case and Its Reception in a Nutshell
The case heard by the European Court of Human Rights last month deals with the application of six Portuguese citizens who are currently between eleven and 24 years old and labelled “youth-Applicants”. With their application, filed originally against 33 contracting parties to the European Convention on Human Rights, they invoked Articles 2 (right to life) and 8 (right to respect for private and family life) as well as the prohibition of discrimination under Article 14 (taken together with Article 2 and/or Article 8). During the proceedings, they also invoked Article 3 (prohibition of torture and ill-treatment) (p188-192). Essentially, the Applicants argue that their rights are violated by the Respondents “through their respective contributions to climate change”.
Needless to say, the case generated a lot of attention among international lawyers and political scientists alike. At least since then, a remarkable body of research has been emerging, dedicated to the litigation efforts of young people fighting the climate crisis (see for instance here and here).
However, the case has not only aroused academic interest but also great hopes. The Global Legal Action Network (GLAN), a non-profit organisation supporting the Applicants, made clear what it expected if the case is successful: “The judgment that the youth-Applicants seek would (…) be the equivalent of a legally binding regional treaty compelling the Respondent countries to rapidly accelerate their climate action.”
Mapping Youth Participation
Unsurprisingly, during the hearing, the Counsel of the United Kingdom, speaking on behalf of thirty Respondents, criticised the proposed understanding of the powers of the European Court of Human Rights: “Climate change is a global challenge and there is already a global treaty regime for dealing with that challenge contained in the UNFCCC and the Paris Agreement. That regime requires international cooperation. The Applicants’ attempt to impose a parallel regime just for the Respondent States but without the consent of the Respondent States risks undermining that international process. In short, the Applicants are asking the Court to act as legislators rather than judges (…).” (at 12:34) This statement seems so emphasise another forum which is not the European Court of Human Rights. This points to an interesting question: How are young people participating in the aforementioned arena of “international cooperation”, beyond the Duarte Agostinho case?”
It might be surprising that there are indeed many modes of youth participation. Some States offer young people to be part of their official delegation to the Conference of the Parties (see for instance Austria). This Youth Delegate programme should not be confused with the so-called “Youth Delegates” who attended the Pre-COP26 in Milan. The latter were not chosen by States or the young people of their respective State but apparently by the Office of the UN Secretary-General’s Envoy on Youth. As such, they did not have the status of delegates but of observers. Besides that, there are also the Youth Delegates to the UN General Assembly, who regularly address the climate crisis and advocate for distinct measures. Furthermore, young people organise themselves in NGOs as well. YOUNGO is the official youth constituency of the UNFCCC and comprises 200 youth-NGOs. The official meeting of the members of YOUNGO, called Conference of Youth (COY), annually takes place before the Conference of the Parties and claims to be “the biggest and most substantial youth conference related to the multilateral UN climate processes.” Outside the UN-system, the Council of Europe has created an extensive architecture of youth participation. There are not only two Youth Delegate programmes (see here and here), but there is also a Youth Department which, amongst other things, “elaborates guidelines, programmes and legal instruments for the development of coherent and effective youth policies at local, national and European levels”. While I certainly could not offer a comprehensive map, it becomes clear that there are manifold opportunities for formal youth participation not only in international climate governance but also in the Council of Europe.
A Grain of Scepticism
In this context, I trust, a difficult albeit worthwhile question appears: Have those modes of youth participation led to any normative changes in the climate change regime? There are exciting research projects in the field of international relations, trying to better understand the functioning and value of those modes (see for instance here and here). While there are no comprehensive answers yet, I fear that overly high hopes may come at the expense of some necessary scepticism.
Let’s draw on the statement of the Respondents again. It has been pointed out that “international cooperation” is required. The various modes of youth participation may feed the impression that there is indeed a space for young people – outside the courtroom – where they can co-design the climate change regime. The decisive role of State consent, as rightly highlighted by the Counsel, cannot, however, be circumvented. Wherever young people committed to climate action go, this is the barrier they encounter. Against this background, litigating against more than 30 States at once at the European Court of Human Rights as the court of first instance seems like an act of desperation. Desperation, because “international cooperation” along with its inclusion of young people has only brought us so far.
Although there are plenty of modes of youth participation and numerous climate protection laws, the average global temperature “was about 1.15 °C above the 1850-1900 average” last year. According to the World Meteorological Organization “[t]here is a 66% likelihood that the annual average near-surface global temperature between 2023 and 2027 will be more than 1.5°C above pre-industrial levels for at least one year.” In October of last year, the UN Environment Programme put it quite sombrely: a scenario in which the 1.5°C target is reached “is currently not credible” (pXV). At least in the Duarte Agostinho case, strategic litigation appears as a mirror of the disastrous state in which we currently find ourselves. I worry that, whatever the outcome, the Duarte Agostinho case will neither magically change the predicted scenarios nor bring a breakthrough for youth participation in international law. As I have argued elsewhere, for young people it will remain a struggle, a process. Thus, a court alone won’t bring us to heaven.