A slow dance: What next for the right to a healthy environment after the European Court of Human Rights Climate judgment?

Introduction

Advocates for the human right to a healthy environment have long argued for a binding legal instrument in the European regional human rights system. The European Court of Human Rights has not hidden its frustration about the lack of an environmental right. In Verein Klima Seniorinnen Schweiz v Switzerland, the Grand Chamber decided that Switzerland must take steps to protect its citizens from the adverse impacts of climate change so they can enjoy their fundamental human rights. Sue Willman (Senior Lecturer at the Dickson Poon School of Law, King’s College, London and co-founder with Harry Balfour-Lynn of the Environmental Rights Recognition Project) reviews the Council of Europe’s slow progress to implement the right to a healthy environment. She argues that whilst the KlimaSeniorinnen case advances the campaign for the human right to a healthy environment in the Council of Europe, legislation is still needed.

“…the question is no longer whether, but how, human rights courts should address the impacts of environmental harms on the enjoyment of human rights” (Klima para 451)

Hesitant steps by Lawmakers

In June 1972, the first global environmental conference issued the Stockholm Declaration, which proclaimed the right to an environment adequate for present and future generations. Fifty-two years on, Europe has the only regional human rights system that has not formally acknowledged a human right to a healthy environment, lying a long way behind Africa, the Americas and domestic systems. Over 150 nations have recognisedthe right to a healthy environment in some form. The UN General Assembly adopted Resolution 76/300, recognising the human right to a clean, healthy and sustainable environment in 2022, with only eight states abstaining and none voting against it.
It has been argued in academia that this is a right with its roots in the Global South, resisted in the Global North. But there has been plenty of time for the Global North to catch up. As long ago as 1999, the Parliamentary Assembly of the Council of Europe passed Recommendation 1431 which called on the Committee of Ministers to look at the feasibility of adding the right of individuals to a healthy and viable environment to the European Convention. The Ministers refused to act. Thus began a tennis match between the two sides as similar proposals in 2003 and 2009were also rejected with virtually no progress for a decade.
So, there was considerable excitement in 2021 about a revived campaign for a right to a healthy environment when 89 out of 108 states voted in favour of the PACE Recommendation 2211 (2021), ‘Anchoring the right to a healthy environment: need for enhanced action by the Council of Europe’. This recommended that the Committee of Ministers endorse a draft additional protocol to the European Convention providing for ‘the right to a safe, clean, healthy and sustainable environment’, which they said was essential to ‘enable the Council of Europe to remain legitimate in the 21st century’.
However, this initiative was followed by disappointment in September 2022 when the Committee of Ministers responded with Recommendation CM/Rec(2022)20 which merely encouraged member states to ‘reflect’, and to review their national legislation and practice, whilst confirming that the right and Recommendation had no effect on states’ existing legal obligations and did not establish new standards. The current state of play is that the Steering Committee for Human Rights (CDDH) Drafting Group on Human Rights and Environment is producing a feasibility study on the need and options for an instrument on human rights and the environment to be considered by the Committee of Ministers in June 2024. Instead of recommending a particular route such as a new Treaty or preamble or Protocol to the Convention, the report explores all the various options including a separate complaints system to a Commissioner and/or amendment to the European Social Charter.

The Court taking the floor

The European Court of Human Rights (the Court) has at least attempted to respond to demands for environmental rights. Back in 1994, when a Spanish woman complained about a stinking local tannery, the Court found a breach of her Article 8 ECHR rights to family and private life in what was welcomed as its first environmental case (Lopez Ostra v. Spain). But the Court has struggled with the shackles of the ECHR which only protects the environment through the gateway of other human rights. It is always slightly artificial to rely on Article 8 where there is harm to someone’s private or family sphere, or other ECHR articles protecting the right to life (Article 2) and property rights (Art 1 of the First Protocol). These human rights were not intended to provide the protection the environment needs. So, where a development damaged an important natural wetland habitat the Court could not find that this breached the applicant’s Article 8 rights (Kyrtatos v. Greece).
There was a hint of the Court’s frustration in October 2022, in a decision that Russia was breaching Article 8 rights by failing to protect against industrial air pollution in Pavlov and others v. Russia. Judge Serghides took the highly political step of engaging in the debate about an additional protocol to the Convention, capable of securing the right to a healthy environment, arguing that “it would provide broader and more complete Convention protection of the potential right secured by the Court…”.
This brings us to the recent KlimaSeniorinnen judgment. In its previous jurisprudence, some of which is referred to above, the Court had recognized that the quality of the environment underlies the enjoyment of human rights, especially the right to life, but had not been able to find a basic standard of environmental quality as a prerequisite to the full enjoyment of human rights. This changed on 9 April 2024 with the Verein Klima Seniorinnen Schweiz v Switzerland judgment. It took the Grand Chamber a year to draft its 657 paragraph decision. In simple terms, the Court found that the Swiss State did not take adequate urgent action to tackle climate change, despite being aware of the threat to current and future generations. Second, the Court acknowledged that the effect of climate change interfered with the enjoyment of basic human rights under Article 8 ECHR. The Court agreed with the Association representing over 2000 older Swiss women that Switzerland had infringed their Article 8 right to effective protection from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change.

Switzerland’s problem was that, unlike the majority of similar states, the country has no strategy to comply with the UNFCCC and Paris Agreement’s commitment to limit global temperature increase to no more than 1.5oC above preindustrial levels. Attempts to introduce a strategy including via a referendum had failed. Also, Switzerland does not have any policies in place for sectors like agriculture and construction. The Swiss failures were laid bare in a judgment that included a forensic analysis of climate change impacts, including the extreme heatwaves affecting central Europe and the serious risk of harm posed to the Swiss population, especially older women. All this took it well beyond a margin of appreciation which was tighter in the case of the climate crisis than in other contexts. The Court stressed that climate change’s lack of respect for national borders was distinct from other areas. So at present the case is clearly limited to climate change; it would require more judicial activity to extend it to other environmental harms, such as Europe’s polluted rivers.

One of the principal arguments of Ireland and other intervening states was that the Swiss women were aiming to bypass the democratic process through which climate action should take place. The Court was nimble in its response. Aware that a majority had voted against proposed measures to tackle climate change, the Court said ‘democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law’ (para 412). Whilst it took the significant step of deciding that ECHR member states must comply with the Paris Agreement to comply with Article 8, the Court mitigated the blow by indicating that it is up to each state to choose its own pathway subject to a binding regulatory framework. The Court left it to the Swiss Confederation, with the assistance of the Committee of Ministers, to decide on how best to implement the judgment.

The Court provided a useful outline of initiatives to advance the human right to a healthy environment spanning over the past two decades. But the judgment carefully refused to ‘determine whether the general trends regarding the recognition of such a right give rise to a specific legal obligation’. Instead, the majority of the judges approached the developments as part of the international law context in which the Court has to assess Convention rights, balancing them against competing rights and interests, whilst recognising ‘a close link between the protection of the environment and human rights’.

The Applicants also succeeded in proving their rights under Article 6 had been violated due to lack of access to a court since the Swiss courts had refused to consider their applications. The Court found that the procedural aspect of Article 6 meant that states must provide adequate information about climate regulation and have procedures in place that allow for consultation in the decision-making process. The preamble of the Aarhus Convention recognises that every person has the right to live in an environment adequate to their health and well-being, and provides for procedural rights to implement it. However, as a preamble, it does not offer a binding right.

Could the Courts lead the dance without a specific right to a healthy environment?

Dissenting judge Tim Eicke objected to what he considered the Court creating a new right to effective protection from [climate change] by stealth (see para 4 dissent, referring to para 519 and 544 of the main judgment). He saw this as a clear break with the Court’s traditional approach in relation to difficult social and technical spheres. Some of Switzerland’s press and politicians called for its withdrawal from the Council of Europe. The UK’s then Energy Secretary, Claire Coutinho, expressed her concerns about the verdict on X: ‘How we tackle climate change affects our economic, energy, and national security. Elected politicians are best placed to make those decisions’. In June, the Swiss Parliament refused to implement the judgment.
In his March 2024 report to CoE, Belgian Rapporteur Simon Moutquin, expressed his frustration: ‘this is without any doubt the greatest existential emergency for humankind and requires immediate and concerted action’. In response, the Parliamentary Assembly adopted yet another watered-down recommendation Rec. 2272 – Recommendation – Adopted text closely followed at the May 2024 Ministers’ meeting with a bland encouragement to member states to implement its earlier Recommendation CM/Rec(2022)20 and an invitation to its Deputies to set up an ad hoc intergovernmental multidisciplinary group to prepare a Strategy on the Environment. Then in June 2024, the Steering Committee for Human Rights (CDDH) requested a postponement until December 2024 to present the Committee of Ministers with a feasibility report of the Drafting Group on Human Rights and the Environment. As the Council of Europe celebrated its 75th birthday, a coalition of civil society and academics urged it to act.
We are approaching a critical juncture. The European Court of Human Rights has already demonstrated its willingness to engage with climate issues, even without the formal backing of a Right to a Healthy Environment. The logical response to the feasibility report is clear: the recognition of an ECHR right to a healthy environment. This would not only provide legitimacy to the ECtHR’s consideration of the climate emergency but also empower national courts to play a more active role. Such a right could serve as a pivotal development, helping to align the Council of Europe Member States with the objectives of the UNFCCC and the Paris Agreement. Will the Council of Ministers take a bold step and introduce a new right to harmonize climate policy across Europe, or will they leave the courts struggling to find an awkward solution? The floor is set for a potentially transformative movement in environmental and human rights law.