By Sumeyra Arslan and Malgorzata Kwiedacz-Palosz
The European Convention on Human Rights (ECHR, the Convention) does not explicitly recognise the right to a healthy environment. Nevertheless, environmental protection has featured prominently in the case law of the European Court of Human Rights (the Court), which has ruled on more than 300 cases concerning air, water, and noise pollution, as well as environmental degradation. Despite this growing body of jurisprudence, the absence of an explicit legal basis for environmental protection under the Convention has resulted in limited, often indirect, protection of the environment.
The origins of the ECHR
While the Court applies the living instrument doctrine, which allows it to interpret the ECHR in light of contemporary conditions, it remains bound by its text and underlying intent. Drafted in the aftermath of World War II, the Convention was drafted to prevent another war from happening and safeguard civil and political rights. Issues like environmental protection and the climate crisis were simply not envisioned by its drafters. This historical context has created clear gaps and limitations in the Convention’s capacity to adequately respond to current environmental challenges.
The Court’s limitations
The Court has acknowledged its limitations in providing environmental protection. In Kyrtatos v. Greece, the Court stated that the ECHR was not designed to offer general environmental protection, thus affirming the restricted scope of its application in this domain. As a result, the Court has typically addressed environmental harms only where they intersect with other protected rights, particularly the rights to life and to private and family life (Articles 2 and 8 ECHR), as well as the right to a fair trial (Article 6 ECHR). This approach narrows the reach of environmental protection under the Convention and only provides indirect environmental protection through existing rights.
The current framework of the ECHR presents other key limitations in effectively addressing environmental human rights. These include restrictive rules on victim status that allow associations only to bring climate claims before the Court, the lack of fair-hearing guarantees for public-interest environmental litigation, and insufficient access to environmental information. Moreover, the Court remains reluctant to order preventive or remedial general measures in the environmental context. These gaps stem from the ECHR’s lack of a standalone right to a healthy environment.
As a result of these limitations, the Court’s environmental case law has developed in a fragmented, inconsistent manner, ‘lacking foreseeability and normative coherence.’ A new legal instrument, i.e. a standalone convention recognising the right to a healthy environment under the Council of Europe umbrella, could fill this legal void, enabling the Court to adjudicate environmental claims with greater clarity, consistency, and legitimacy. Member States have been examining this possibility for the last five years, with a standalone Convention emerging as the favoured option over a protocol to the ECHR or an expansion of the existing environmental work of the European Committee of Social Rights. Adopting such an instrument is particularly relevant in light of the recent KlimaSeniorinnen judgment, where the Court lacked comprehensive scope and left environmental protection fragmented by relying on indirect protection under Article 8. It left uncertainty regarding harms not easily linked to individual victims, such as biodiversity loss and ecosystem degradation; maintained different legal standards for climate change, industrial pollution, and environmental disasters; and therefore perpetuated a fragmented approach to environmental protection.
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