The right to a healthy environment as a human right: considerations on the latest climate rulings at the ECtHR

By Sara González Merinero and Paula Moreno-Cervera de la Cuesta

The recent judgment of the Grand Chamber of the European Court of Human Rights (ECtHR), Verein Klimaseniorinnen and Others v. Switzerland, of April 9, 2024 considers that Switzerland failed to fulfill its obligations under the European Convention on Human Rights (ECHR) in relation to its failure to develop and implement an adequate legal framework to address the effects of climate change and its mitigation, with the consequence of having violated the rights of the applicants – an association of elderly women – under Articles 6 and 8 of the ECHR (right to an effective remedy and right to respect for private life, respectively).

On the same date and with similar arguments, the judgments in the cases of Duarte Agostinho and Others v. Portugal and 32 other States and Carême v. France met with a different fate since the Grand Chamber of the ECtHR dismissed the applications brought by the plaintiffs.

In the first case, a group of young Portuguese men sued Portugal and 32 other European states for non-compliance with their greenhouse gas reduction obligations, which the plaintiffs claimed was a violation of the right to life and the right to respect for private life. In addition, they claimed a violation of the prohibition of discrimination (Art. 14), since their generation would suffer more from the consequences of climate change. The Grand Chamber, without examining the merits of the case, dismissed the application on the grounds that (i) all national courts had not been exhausted in relation to Portugal; and (ii) there was no mechanism to apply extraterritorial jurisdiction under the ECHR in relation to the other respondent states.

In Carême, the former mayor of a French municipality brought an action against France, alleging that the French government had failed to take sufficient measures to prevent climate change, which in the applicant’s view entailed a violation of the same rights. The Grand Chamber, again without examining the merits of the case, dismissed the action on the ground that the applicant, although a French citizen, did not reside in France and had no particular connection with the municipality of which he was mayor.

While only one of the three cases had a positive outcome for climate litigation, the ECtHR has recognised the limits to the application of the ECHR in the context of climate change, and has signaled a broadening of its framework for climate change litigation. In this context, it resurges the debate on the possibility of adopting new instruments in which the right to an adequate environment is codified as a substantive right in its own right.

The efforts to codify the human right to a healthy environment

To date, there is no treaty at the international or European level that recognises the right to an adequate (clean, sustainable, healthy) environment as a right with its own substantive status, despite the declared climate emergency, the existence of international treaties under the UN Framework Convention on Climate Change and legislative developments in environmental matters at the European level, and despite intense efforts in the international sphere to codify the right to an adequate environment in a treaty under the auspices of the UN.

These include the text proposed by the Global Pact for the Environment, the UN General Assembly Resolution A/RES/76/300(adopted in 2022), following recognition by the UN Human Rights Council (2021), as well as the reports of the Human Rights Council and the reports of the Special Rapporteur on Human Rights (2018, 2019, 2024). While these efforts have yet to materialise into an international treaty.

At the European level, the Council of Europe (CoE) is the only regional human rights system that has not yet formally recognised the right to an adequate environment. This is despite the fact that 42 of its 46 members have recognised such a right in their legal systems. In this sense, in recent years, the inclusion of the right to an adequate environment has reactivated an intense debate on its possible configuration within the CoE. Several options are being considered: political recognition by the Committee of Ministers, its inclusion in the European Social Convention, the creation of a Convention on human rights and the environment, or the adoption of a new Additional Protocol to the ECHR.

However, despite these advances, the fact remains that there is still uncertainty about the path that the CoE will take. Although the option of adopting a new Additional Protocol to the ECHR – which would include the right to an adequate environment – is the one most acclaimed by civil society, some States Parties have been reluctant to adopt a legal instrument on the right to an adequate environment.

Following the recommendation of the Committee of Ministers in September 2022, it has been possible to see timid commitments from the various leaders of the CoE states regarding the right to an adequate environment. As a paradigmatic example, in May 2023, the Fourth Summit of CoE leaders was held, which ended with the so-called Reykjavik Declaration.

In fact, the torch of the Committee of Ministers was picked up by the Human Rights and Environment Drafting Group, which has been working for three years on a feasibility study of the different instruments to be adopted in the CoE sphere. All that remains now is the formal adoption of this study in June 2024 by the Human Rights Steering Committee and its referral to the CoE Parliamentary Assembly, in a new attempt to codify a right that – until now – has been nourished by the interpretation of other rights contained in the ECHR.

The judgments of the ECtHR of April 9, 2024, and the right to a healthy environment

As we have pointed out, in the absence of the right to an adequate environment in the ECHR, since the early 1990s the ECtHR has developed a rich jurisprudence on the environment under the umbrella of the right to respect for private life (Article 8) and the right to life (Article 2).

However, the environmental aspects in ECtHR judgments are secondary, being highlighted in cases where the Court considers them to be of sufficient importance for there to be a violation of individual rights under the ECHR.

Notwithstanding, in the judgments of April 9, the Court makes some considerations that, even if symbolically, reference the context aforementioned, and show the limitations to currently handle climate cases, under the ECHR.

In addition, the Court sets out criteria applicable to States Parties to the Convention in relation to their climate policies “in order to be genuinely feasible and to avoid disproportionate burden on future generations”. States Parties must therefore adopt appropriate measures and feasible greenhouse gas reduction targets until climate neutrality is achieved, to be “(…) incorporated into a binding regulatory framework at the national level, followed by adequate implementation (…)”.

Taken together, these statements imply: (i) recognition of the climate emergency by the ECtHR and the need for urgent action in all sectors of the economy; (ii) a call for action by States Parties, in an effective manner; and (iii) limitations under the ECHR to effective enforcement of rights in the context of climate change.

The limitations of ECtHR judgments and the absence of the human right to an adequate environment as a right in climate litigation at the ECHR

In the current landscape, although the ECtHR has progressively incorporated environmental considerations into the protection of human rights, the judgments analysed above evidence the existence of a somewhat complex system for environmental and climate protection. Especially considering the strict requirements of ‘victim status’ under the ECHR, stipulated in Article 34.

In the case of Verein Klimaseniorinnen, the ECtHR allowed an association to take legal action without proving that each of its members individually fulfilled the requirements of individual victimhood. However, this position contrasts sharply with the ECtHR’s stance towards individual claimants.

Unsurprisingly, the Court refused to grant victim status to older women, who were deemed not to be directly affected by climate change. In this regard, it has been pointed out that this interpretation denies access to justice for many people affected or at risk of being severely affected by environmental degradation.

Similarly, the Carême case highlights the limitations of victim status in climate issues, as the former mayor’s lack of current residence and direct links to the affected area led to the denial of victim status. This decision reflects the Court’s focus on immediate and personal impacts, which prevents it from capturing the broader and often transboundary nature of environmental harms.

Thus, given the difficulties of proving victim status before the ECtHR, the recent jurisprudence evidences a significant lacuna within the ECHR framework: the lack of a specific and robust mechanism to address environmental problems.

Without entering into the debate as to whether or not litigation before the ECtHR is the right tool to channel the protection of individuals affected by climate change, one cannot help but reiterate that, within the global context, the Council of Europe is the only human rights system that has not taken a firm step towards protecting the right to a healthy environment. Many consider this absence to be increasingly incongruous in a world where environmental challenges are recognised as some of the most pressing human rights issues.

In this context, it is most likely that the adoption of a new instrument containing such a right could significantly enhance the Court’s ability to comprehensively address environmental problems. Such a right would not only support the existing framework of the ECtHR, but would also align with the preventive nature of the Convention’s system of protection, allowing for a more holistic approach in environmental jurisprudence.

Final considerations and reflections

In our view, the following reflections emerge from the discussion in the previous sections:

Climate litigation, although not always with a favourable outcome for the plaintiffs, has shown itself to be a useful tool for extending, albeit timidly, the framework of protection against the effects of climate change in the European Court of Human Rights.
The Court’s considerations in the judgments of 9 April, in the light of international progress in the UN and the EOC with regard to the right to an adequate environment with binding force, show that the current frameworks of anthropocentric rights are not sufficient to guarantee environmental protection and protection against climate change for people and the rest of the species and ecosystems.
Therefore, there is optimism for the effective development of international legal instruments that recognise the human right to an adequate, clean and healthy environment that is worthy of autonomous protection.