Extraterritorial Jurisdiction and Climate Harm: Rethinking the ECtHR's Approach in Duarte Agostinho

Abstract

This article analyses the judgment of the European Court of Human Rights (ECtHR) in Duarte Agostinho and Others v. Portugal and Others, which addressed the question of whether States can be held accountable under the European Convention on Human Rights (ECHR) for extraterritorial climate-related harm caused by their greenhouse gas (GHG) emissions. The Court rejected the applicants’ call to expand jurisdiction beyond Portugal, reaffirming a traditional, control-based interpretation of Article 1 that ties jurisdiction to effective authority over individuals or territory. Through a close reading of the Court’s reasoning and the applicants’ arguments, the article highlights the structural limitations of the ECtHR’s current jurisdictional framework when applied to the transboundary and systemic nature of climate change. It argues that while the Court’s cautious approach preserves doctrinal consistency, it risks rendering the Convention ineffective in addressing one of the most pressing human rights challenges of our time. The article proposes a narrowly scoped recalibration of jurisdiction that remains within the Convention’s legal framework while allowing for meaningful accountability in exceptional climate harm cases.