A. The Failure of Past Efforts at Recognition in the ECHR

Although the CoE is no stranger to environmental protection treaties,Footnote ²² and academic proposals to recognize the right to a healthy environment in this system arose as early as the 1970sFootnote ²³ (around the time of the Stockholm DeclarationFootnote ²⁴), it has not yet recognized this right. This has not been for lack of trying: PACE unsuccessfully recommended the right's recognition in the ECHR in 2003, 2009 and 2012.Footnote ²⁵ In 2021, it launched an emphatic fourth effort to recognize this right, which is still ongoing.Footnote ²⁶

To date, PACE's efforts to encourage recognition of the right to a healthy environment have failed to garner the necessary support from the CoE's Committee of Ministers,Footnote ²⁷ which is the organ of the CoE responsible for treaty-making and is made up of Member States’ ministers of foreign affairs.Footnote ²⁸ In essence, representatives of national parliaments (the PACE membership) have continually pushed for recognition of environmental rights, but domestic executives (whose representatives make up the Committee of Ministers) are wary of accepting any new binding obligations. Different reasons have been given for the failure to adopt a corresponding protocol to the ECHR, including the perceived ambiguity of the right to a healthy environment, its supposed redundancy in the already ‘greened’ ECHR framework, the risk of devaluing other rights or drawing judges into the political arena, and the supposed inability of this right to provide a solid basis for regulating environmental harm.Footnote ²⁹ Aside from these official reasons, concerns about accepting new and binding legal obligations in or adjacent to the strong enforcement machinery of the ECHR are also likely to play an underlying role. Remarkably, even nations that championed recognition of the right to a healthy environment at the UN level have proven reluctant to recognize it in the context of the CoE.Footnote ³⁰

Of all the arguments made against recognizing this right, one deserves particular attention. This is the idea that the European human rights system ‘already indirectly contributes to the protection of the environment through existing convention rights and their interpretation in the evolving case law of the European Court of Human Rights’.Footnote ³¹ There is truth to this argument: the Court has progressively ‘greened’ the rights that it interprets,Footnote ³² which were not ‘specifically designed to provide general protection of the environment as such’.Footnote ³³ In other words, while the text of the ECHR does not cover environmental rights, the ECtHR has interpreted the rights in the Convention—especially Articles 2 and 8 (the right to life and the right to respect for private and family life), but also the right to property (Article 1 of Protocol 1)Footnote ³⁴ and procedural rights (Article 6(1))Footnote ³⁵—as providing some baseline environmental protections. This has resulted in nearly 400 environmental judgments and decisions.Footnote ³⁶ However, while this ‘greening’ means that the rights in the ECHR can and do apply to environmental cases, it still provides only limited environmental protection. This protection is procedurally difficult to obtain, outweighed by competing interests, and always mediated by the need for a connection to an individual person's life, health or another Convention right.

PACE's recent renewed effort to codify the right to a healthy environment shows that it too finds the present approach of the ‘greened’ ECHR unsatisfactory. Rik Daems, President of PACE, has expressed frustration with the Committee of Ministers’ inaction, noting that ‘we adopted a similar Recommendation back in 2003 and in 1999. Twenty years ago. Indeed, all of us are making an effort. But it is not enough, and it is not timely enough.’Footnote ³⁷ Sentiments like this culminated in the fourth and most recent effort by PACE to recognize this right within the CoE system explicitly, discussed in the next section.

B. A Fresh Start: The 2021 PACE Draft Protocol

PACE's 2021 recommendation to recognize the right to a healthy environment did something unprecedented. Instead of simply recommending the right's recognition, PACE prepared its own draft protocol to the ECHR, which it appended to its recommendation.Footnote ³⁸ This draft text, which sets out substantive rights, also contains general principles to guide the protocol's interpretation. It includes references to transgenerational responsibility, equity and solidarity (Article 2), a prohibition of environmental and intergenerational discrimination (Article 3), and the principles of prevention, precaution, non-regression and in dubio pro natura. Previous additional protocols to the ECHR have not featured interpretative principles, making this a comparative novelty.Footnote ³⁹

The substantive rights set out in the PACE draft protocol include an individually formulated right to a healthy environment (‘[e]veryone has the right to a safe, clean, healthy and sustainable environment’), which is clarified as meaning ‘the right of present and future generations to live in a non-degraded, viable and decent environment that is conducive to their health, development and well-being’.Footnote ⁴⁰ The adjective ‘safe’ has since largely been dropped from the discussions, in line with the formulation used by the UN (‘right to a clean, healthy and sustainable environment’), with seemingly no effect on the scope of the proposed right.Footnote ⁴¹ The draft also includes procedural rights to information relating to the environment, a very broadly formulated right to consultation (‘[i]f a project, programme or policy has an impact on the environment and biodiversity, everyone shall be entitled to be consulted in advance’), and rights to access to justice and an effective remedy in matters relating to the environment (Article 6(a)–(d)). These procedural rights reflect aspects of the Aarhus Convention,Footnote ⁴² to which the ECtHR has referred only sporadically in its past case law.Footnote ⁴³

Aside from the substance of a putative CoE right to a healthy environment, its form would also be of crucial importance. Generally speaking, the ECHR system is open to two types of protocols. The first are optional additional protocols, here called ‘rights-expansion’ protocols, which create new obligations only on those States that ratify them. The second are ‘reform’ protocols, which amend the Convention itself and cannot enter into force until all CoE Member States have ratified them.Footnote ⁴⁴ Protocol No 15,Footnote ⁴⁵ which changed the text of the ECHR's preamble and reduced the time limit for applying to the Court from six months to four, was a reform protocol, as were Protocol No 14Footnote ⁴⁶ (introducing the single judge procedure and extending the judges’ term of office, among other changes) and Protocol No 11Footnote ⁴⁷ (creating a full-time Court and eliminating the Commission). An advantage of rights-expansion protocols is that they can enter into force for a subset of the CoE membership without requiring universal acceptance.

In other words, while it is not possible to change the text of the ECHR without the agreement of all States Parties, it is possible to create new additional rights that potentially apply only to a smaller number of ratifying States. The PACE Draft Protocol on the Environment is the latter kind of protocol, ie an optional or rights-expansion protocol.Footnote ⁴⁸ It would accordingly not amend the text of the ECHR but would impose additional obligations on those States that ratify it. Of course, PACE's draft protocol is still merely at the proposal stage. It does not have any legal force as an international treaty, and it would only achieve such force if ratified by States. Neither is this draft text definitive: it would likely undergo (potentially major) changes before a putative ratification process could begin, if it ever reaches that stage. Despite these caveats, the draft provides a basis for much-needed discussion on what could happen in this regard.

C. The Work of the CDDH-ENV

The PACE draft protocol not only makes it possible to evaluate the very idea of recognizing the right to a healthy environment within the Convention system, but also provides the opportunity to discuss the different options available as well as the potential content and scope of such a right. These discussions are currently taking place before the CDDH, which functions as an advisory body providing legal expertise to the Committee of Ministers.Footnote ⁴⁹ This body is undertaking necessity and feasibility studies concerning the elaboration and adoption of a next draft of the Protocol.Footnote ⁵⁰ In 2021, the CDDH tasked the CDDH-ENV Drafting Group with carrying out the Committee of Ministers’ invitation to consider the necessity and feasibility of a further instrument or instruments on human rights and the environment.Footnote ⁵¹ Since then, the CDDH-ENV has, among other things, consulted leading legal experts,Footnote ⁵² participated in conferences,Footnote ⁵³ prepared a draft non-binding instrumentFootnote ⁵⁴ and collected information showing that a majority of CoE Member States already provide constitutional protection of the right to a healthy environment.Footnote ⁵⁵

While PACE's initiatives have all highlighted the potential recognition of the right to a healthy environment in the ECHR,Footnote ⁵⁶ the work ongoing at the CDDH-ENV is not limited to this option, and several alternative possibilities are currently being discussed. These would locate recognition of the right not in the ECHR, but elsewhere in the CoE system. Several of these alternatives are discussed below—including a purely political recognition, the adoption of a separate CoE treatyFootnote ⁵⁷ or the recognition of this right within the CoE's social rights instrumentation, ie the European Social Charter, which has also been ‘greened’ to some extent.Footnote ⁵⁸ However, as Section IV argues, these alternative possibilities have clear disadvantages when compared to locating this right within the ECHR system.

The CDDH-ENV's work was still ongoing at the time of writing, with its report on the need for and feasibility of a further instrument on environmental rights due to the Committee of Ministers by 30 June 2024 for further decision-making.Footnote ⁵⁹ In its work to date, the CDDH-ENV has noted several reasons supporting the recognition of a separate right to a healthy environment. It has considered that doing so would address gaps in the international human rights framework, strengthen discussions about human rights and the environment, clarify private actors’ responsibilities, and harmonize national standards.Footnote ⁶⁰ However, the exact substance of the putative CoE right to a healthy environment is still undefined, and the CDDH-ENV seems unwilling to make firm stipulations in this regard: it currently describes the right as a ‘developing right’ that the CoE States could help shape through recognition.Footnote ⁶¹ In understanding this process, it is important to note that the work of the CDDH-ENV—which serves a preparatory and advisory function, and is accordingly likely to influence further developments at the CoE—is largely being conducted by State representatives. This institutional reality is closely related to another development: the turn towards a purely political recognition of the right to a healthy environment, as discussed in the next section.

D. A Political Turn Since 2022

Since 2022, a political turn or softening of ambitions for the right to a healthy environment has become discernible at the CoE. In that year, the Committee of Ministers issued a recommendation on human rights and the environment.Footnote ⁶² This document uses soft or aspirational language, recommending for Member States to ‘reflect’ on the right to a healthy environment and to ‘actively consider’ recognizing this right at the national level. It also recommends for States to review their national legislation and practice in light of the general principles of international environmental law (including the no-harm principle, the principles of prevention and precaution, the polluter-pays principle, and the need for intergenerational equity), as well as the prohibition of discrimination and other human rights, including those of the most vulnerable. This emphasis on domestic action reflects the logic of subsidiarity that has (re-)shaped the ECHR and its interpretation in recent decades. However, even given this background, the Committee of Ministers’ 2022 recommendation is decidedly underwhelming. After all, earlier that same summer, all current CoE Member States had already voted in favour of the UN's (likewise political and thus non-binding, but international) recognition of the right to a healthy environment.Footnote ⁶³ And, as the explanatory memorandum to the recommendation notes, many Member States have also recognized this right in their own legal systems.Footnote ⁶⁴

A turn towards political recognition was likewise evident in the outcome of the CoE's Fourth Summit of heads of State and government, held in Reykjavík in May 2023. The Summit's outcome document, the Reykjavík Declaration, fell decidedly short of expectations that this might become ‘the moment to act’ on the right to a healthy environment.Footnote ⁶⁵ In their Declaration, the CoE Member States underlined ‘the urgency of additional efforts to protect the environment, as well as to counter the impact of the “triple planetary crisis” of pollution, climate change and loss of biodiversity on human rights, democracy and the rule of law’.Footnote ⁶⁶ They accordingly committed to strengthening their work on the human rights aspects of the environment, including by initiating a ‘Reykjavík process of focusing and strengthening the work of the Council of Europe in this field’, which is laid out in an appendix to the Declaration.Footnote ⁶⁷ This appendix affirms ‘that human rights and the environment are intertwined and that a clean, healthy and sustainable environment is integral to the full enjoyment of human rights by present and future generations’.Footnote ⁶⁸ It declares an intention to recognize the right to a healthy environment domestically and commits to strengthening the CoE's work on human rights and the environment ‘based on the political recognition of the right to a clean, healthy and sustainable environment as a human right’ without, however, amounting to such a recognition.Footnote ⁶⁹

As part of the ‘Reykjavík process’, and to make environmental matters ‘a visible priority for the Organisation’, Member States encouraged the creation of a new intergovernmental committee on environment and human rights, called the Reykjavík Committee.Footnote ⁷⁰ This reflects a recommendation from PACE, made in the run-up to the Summit in Reykjavík, suggesting the creation of a ‘platform to share information, promote best practice, provide legal advice and develop tools for evaluating policies and legislation in the area of environmental protection and the fight against climate change’.Footnote ⁷¹ The Reykjavík Committee had not yet been operationalized at the time of writing, although PACE had urged the Committee of Ministers to take further steps in this regard,Footnote ⁷² and it is not yet clear what its role, if any, will be. While the relevant PACE recommendations had endorsed the creation of such a Committee alongside a legally binding protocol recognizing the right to a healthy environment, the latter recommendation fell away in Reykjavík.Footnote ⁷³ Together with the ‘political turn’, these developments display States’ foot-dragging on environmental rights.

A. The Why: Need for Recognition

While the ECHR does not refer to the environment in its text, a degree of environmental protection is already possible even without a new protocol. By ‘greening’ existing rights, the ECtHR has developed an expansive (if imperfect and substantively limited) case law on environmental matters, having long ago established that environmental harm can fall within the ambit of the Convention.Footnote ⁷⁵ In fact, some scholars consider that the ECHR already provides for a right to a healthy environment ‘all but in name’.Footnote ⁷⁶ The Court's Grand Chamber is currently hearing its first three climate change cases,Footnote ⁷⁷ which promise to take its environmental case law to a new level. As it does so, it is not entirely inconceivable—although institutionally unlikelyFootnote ⁷⁸—that the ECtHR could follow in the footsteps of the UN Committee on the Rights of the Child (CRC), which recently found that the right to a healthy environment was implicit in its own Convention, requiring no amendment of the text to ensure protection of the right.Footnote ⁷⁹

Countering these proposals, it has been argued—by Judge Serghides within the ECtHR, and by John Knox outside it—that (State) recognition of the right to a healthy environment is the only way to fill existing gaps in the ECHR's environmental protection.Footnote ⁸⁰ Gaps are certainly present, because there are limits to how far the rights in the ECHR and its Protocols can be stretched through interpretation, and the Court's existing recognition of ‘greened’ rights is by no means a complete alternative to the right to a healthy environment. Its environmental case law has regularly been limited by the idea that the Convention was not designed to provide environmental protectionFootnote ⁸¹ and cannot allow public interest complaints.Footnote ⁸² This case law also downplays environmental interests when balanced against others, especially economic interests;Footnote ⁸³ it does not protect future generations; and it has not tailored the territorial scope of Convention protection to encompass cross-boundary environmental harms.

Recognizing the right to a healthy environment could counteract these limitations to some degree: it would certainly consolidate and clarify the applicable legal standards, would give the Court a clear mandate to deal with environmental matters, and could contribute to filling gaps and overcoming conceptual limitations of existing rights.Footnote ⁸⁴ In addition, it has been argued that the right has paradigm-shifting potential to revise extraterritoriality rules and implement preventive approaches aligned with environmental law principles.Footnote ⁸⁵ The right could also empower the Court to overcome its own legitimacy concerns—as Elisabeth Lambert has noted, the Court systematically invokes the absence of environmental rights in the ECHR to limit its findings, justify a ‘low profile’ and declare cases inadmissible.Footnote ⁸⁶ Given that ECtHR judges apparently do not feel vested with sufficient legitimacy to recognize or apply a human right to a healthy environment, an explicit recognition of the right could counteract judicial self-limitation.Footnote ⁸⁷ As César Rodríguez-Garavito has suggested, explicitly recognizing the right to a healthy environment would send ‘an authoritative institutional message about the importance of the entitlement in question’.Footnote ⁸⁸ In addition, research has shown that recognition of this right is effective in helping applicants in environmental proceedings win their cases, or, in other words, recognizing the right to a healthy environment has practical implications.Footnote ⁸⁹

Further arguments can be made for adopting the right. These include its contribution to placing environmental interests on equal footing with other human rights; de-fragmenting ‘greened’ human rights; and closing gaps in existing case law, including by protecting ecosystems and environmental human rights defenders and by creating a more meaningful role for civil society.Footnote ⁹⁰ Studies have already shown that recognizing the right to a healthy environment yields better environmental protection in domestic policy, legislation and jurisprudence.Footnote ⁹¹ Beyond substantive entitlements, recognition of the right also strengthens procedural rights, reshapes power relationships, and provides a mobilizing tool for environmental advocates and victims of violations.Footnote ⁹²

At the same time, some have taken a ‘been there, done that’ approach to the CoE's efforts to recognize the right to a healthy environment.Footnote ⁹³ Several potential drawbacks of recognition within the ECHR system have been raised. Some examples are the right's impact on the Court's workload,Footnote ⁹⁴ its potentially strained interaction with domestic standards,Footnote ⁹⁵ and (the limits of) its ability to shift the basic premise of human rights law away from individualism and overwhelming anthropocentrism and towards a more ecocentric perspective or the redistribution of resources.Footnote ⁹⁶ However, it is likewise argued that such issues can be addressed, that it is possible to recognize such a right in the ECHR system, and that resistance to doing so is of a predominantly political nature.Footnote ⁹⁷

With the recognition of any purportedly ‘new’ human right, an anti-inflationist argument is likely, ie an argument that human rights are being overextended. Three counterarguments can be made to this: first, that anti-inflationist objections must be scrutinized to understand the power dynamics that underpin them;Footnote ⁹⁸ second, that rights must necessarily evolve to retain their relevance and function; and third, that the proposal is often not in fact about recognizing ‘new’ rights per se, but about consolidating or concretizing existing entitlements. In the ECHR context, it has been clearly established that environmental harms or hazards can make an impact on a range of Convention rights. Furthermore, as mentioned above, all CoE Member States supported the UN's recognition of the right to a healthy environment, many of them have codified it in their national constitutions, and—as César Rodríguez-Garavito argues—it may even already be part of customary international law.Footnote ⁹⁹ This right may accordingly not be as ‘new’ as it seems, and a discussion of its novelty depends on the scope of the recognized right, which is considered in more detail below.

B. The How: Legal Form and Status, and Problems with Political Recognition

Different forms of recognition of the right to a healthy environment are currently on the table at the CoE. The recent turn towards ‘political’ or domestic recognitions of the right reflects a State preference for a subsidiary and non-binding approach, leaving it to States to decide whether, when and how they will recognize such a right.

Political or soft-law approaches certainly have their place, and can provide a first step towards the creation of further (binding) instruments.Footnote ¹⁰⁰ In some contexts, they may also contribute to the identification of norms of customary international law,Footnote ¹⁰¹ and even a non-binding recognition of the right to a healthy environment could potentially lead to domestic legislative action and increased civic participation.Footnote ¹⁰² It could also encourage the adoption of domestic constitutional protections of the right to a healthy environment, which in turn has been shown to bring about stronger environmental protection.Footnote ¹⁰³ However, political declarations are not a substitute for clear and binding legal rights. They do not bind States on the international level, and accordingly preclude access to monitoring or enforcement mechanisms, ie individual applications to the ECtHR.

It is precisely individual access to the ECtHR which illustrates the importance of recognizing the right to a healthy environment within the ECHR system itself. Political action fails to provide the legal clarity, protection and access to justice that are sorely needed given that impacts on the environment—including anthropogenic climate change—demonstrably affect the enjoyment of many human rights. Questions also remain in relation to political recognition, such as whether and how rights can be litigated to demand better protection and changes to existing domestic policies, how responsibility for transboundary harms can be proven and shared, and who must bear which share of the burden of taking and financing the measures necessary in response.

Against the background of political recognition, human rights bodies like the ECtHR face unparalleled opportunities to interpret rights in a future-proof way, but also unprecedented challenges to accepted doctrines and understandings of their roles. If States were to ratify a treaty (an optional additional protocol to the ECHR) issuing a clear mandate to engage with environmental matters and clarifying the scope of protection, this would send a clear signal of State support for environmental rights protection. It would also prepare and protect these institutions against allegations of judicial activism or overreach in the interpretation of rights. However, large-scale State refusal to ratify such an instrument would send the opposite signal, potentially undermining the developing protection of environmental human rights.

Of course, binding legal protections could take other forms beyond that of an additional protocol to the ECHR, with some options preferable to others. One option is for the Court to interpret existing ECHR rights as containing an implicit right to a healthy environment—ie a more extensive case law-based ‘greening’ of the Convention. Given institutional pressures on the Court, and contestation and legitimacy concerns, this is unlikely, and it would also be constrained by existing doctrines under the Convention, including in terms of subjectivity—the limitation of rights protection to living human subjectsFootnote ¹⁰⁴—and territoriality.

Another possibility would be the creation of a separate treaty on these issues, which would stand outside the ECHR system but under the CoE umbrella. However, such an approach would not give access to the ECtHR's supervisory machinery and does not resolve the pressing problem at hand: environmental degradation affects the enjoyment of justiciable ECHR rights, and the ECtHR will continue to be called to take a stand on these issues.

Yet another—albeit highly unlikely—approach would be to propose a protocol amending the ECHR itself by including the right directly in its text. Although such a protocol would provide the most clear and comprehensive protection of environmental rights, it would require ratification by all 46 Member States to come into force, presenting a significantly higher hurdle for acceptance.

The creation of a separate optional protocol to the Convention has distinct advantages. This instrument would create binding obligations for ratifying States, and a clear environmental mandate for the Court. Because this protocol would stand alongside the ECtHR's current ‘greened’ case law, its adoption would create a situation comparable to that of the ECHR's non-discrimination norm: that right is protected both (as an accessory right) in the Convention itself, and (as an independent right) in Protocol No 12.Footnote ¹⁰⁵ The Court interprets these standards in harmony,Footnote ¹⁰⁶ and it could do the same for the right to a healthy environment by applying the right without prejudicing the application of the existing ‘greened’ case law for non-ratifying States.Footnote ¹⁰⁷

Because ratification of an additional protocol would be optional, it could enter into force without being ratified by all States. This would prevent a few reticent States from impeding its entry into force and leave room for gradual expansion to all 46 Member States. However, if few States ratify the protocol, this could give the impression that environmental matters are a fringe issue under the Convention or strengthen arguments that it is illegitimate for the Court to consider environmental and especially climate-related issues tout court. There are, in other words, a series of trade-offs involved in choosing any one option for recognition, even though the option of an additional protocol to the ECHR is the most promising one.

C. The What: Content, Causation and Interaction with Other ECHR Rights

As phrased in the 2021 PACE draft protocol, the ‘right to a safe, clean, healthy and sustainable environment’ is ‘the right of present and future generations to live in a non-degraded, viable and decent environment that is conducive to their health, development and well-being’.Footnote ¹⁰⁸ PACE's proposed right to a healthy environment is not of an ancillary or accessory nature; it does not need to be co-invoked with another Convention right.Footnote ¹⁰⁹ This is important, as accessory norms easily recede behind other rights, rendering them undervalued ‘Cinderella’ provisions.Footnote ¹¹⁰ Here, the self-standing nature of the right would mean that harm to the environment itself could be contested as a violation of human rights, without needing to prove an associated impact on life, health, property or another aspect of human life protected by an ECHR right.

When compared to litigation concerning current, ‘greened’ ECHR rights, a free-standing right to a healthy environment would provide better protection by tempering existing victim status and causality tests. It would do so by eliminating the need to prove that a specific impact on an individual person's life, health or another right has been caused by environmental factors.Footnote ¹¹¹ This would build on the Court's existing efforts to design a case law that takes into account the ‘evidentiary difficulties’ facing environmental applicants.Footnote ¹¹² Recognizing a self-standing right would not only further reduce these difficulties, but would also better reflect the precautionary principle, which the ECtHR has, with one exception, refused to recognize so far.Footnote ¹¹³ However, this right is also potentially broad enough to capture any degree of impact on the environment. To ensure that human rights protection is not extended to trivial impacts, it has been proposed that it might be necessary to introduce a certain standard of ‘minimum severity’ of environmental harm,Footnote ¹¹⁴ as with, for example, the ILC's understanding of transboundary harm, which must be ‘significant’.Footnote ¹¹⁵ At the same time, it is possible that such a test would ultimately replicate the causality test purportedly relaxed by the introduction of the right, ie that it will reintroduce a requirement of impact on human life or health, and continue the ECtHR's currently restricted approach to environmental harm by another name.Footnote ¹¹⁶

Instead of trying to design a test that determines which kinds of environmental harms are significant or important enough to merit human rights protection, an alternative approach could focus on the limitation of the right to a healthy environment. This means proposing a right to a healthy environment that is not absolute, and instead open to proportionate limitations based on a legitimate aim. This is the approach currently set out by the PACE draft protocol,Footnote ¹¹⁷ and it would allow the Court to ensure that this right does not jeopardize the enjoyment of other Convention rights. In other words, it would allow for a balancing exercise between competing rights. While creating a limitable right is a sound approach that fits the overall logic of the Convention, caution is required to avoid hollowing out the right to a healthy environment. After all, in the Court's present case law, environmental interests are routinely subjugated to economic ones in the context of balancing; in these cases, the impacts of environmental degradation on individuals are outweighed by the presumed collective interest in economic growth and development.Footnote ¹¹⁸

D. The Who: Subjectivity, and the Importance of Collective (NGO) Entitlements

After determining how the right to a healthy environment could be protected, and what it covers, the next important question concerns legal subjectivity under the right. In other words, who could benefit from its protection, and how could this create and aggravate vulnerabilities and inequalities? To explore the question of subjectivity, this article adopts an understanding of climate justice that goes beyond efforts to ‘advance the rights and dignity of the world's most vulnerable people’,Footnote ¹¹⁹ and interrogates structural exclusions of certain subjects (future generations, the environment as such, and racialized subjects in developing countriesFootnote ¹²⁰) from the protection of human rights law.

Legal subjectivity under the Convention is plagued by a number of exclusions, and human rights frameworks generally have been criticized for their construction of the human as premised on ‘disembodied rationalism, historical gender assumptions and the subjugation of “nature”’, as well as colonial legacies and extractivist models of the ‘good’.Footnote ¹²¹ Anna Grear, for example, has discussed the fact that ‘liberal legal subjectivity centres round a disembodied juridical subject … whose structure simultaneously delivers a juridical objectification of the “natural world”’.Footnote ¹²² This critique, which essentially concerns the ways in which the law's anthropocentrism normalizes environmental degradation, shows that the image of a legal subject separate from the natural environment, from human vulnerabilities, and from difference, can work to obscure injustices.Footnote ¹²³ An examination of this critique results in greater understanding of how the Convention—or human rights frameworks, or the law as a whole—produces or replicates substantive, procedural and epistemic injustices.

The current liminal moment invites creativity and contestation in relation to subjectivity. It provides the opportunity to include ‘liminal personae’ or ‘threshold people’Footnote ¹²⁴ in human rights protection, redefining whose interests matter to the law. This may not always be seen as an adequate reflection of radical demands for change. Because the underlying structures are left intact, critical scholars argue that contestation and justice demands may be watered down by fitting them into existing systems.Footnote ¹²⁵ This ties into what Margot Salomon calls ‘nihilistic’ perspectives on international law, which are disillusioned by the capitalist bias of the law and consider that reform efforts cannot go beyond ‘tinkering’ with the surface of its institutions.Footnote ¹²⁶ It is certainly clear that a globally inclusive and post-human subjectivity is difficult to reconcile with the accepted nature and workings of a system like the CoE, as an institution without a global scope that focuses heavily on civil and political rights in a spatially limited context. However, and despite these problems, expanding equal and legally binding protection to liminal personae would constitute an improvement over the currently limited understanding of the subject of human rights. Even if not a fully transformative solution, this aligns with Salomon's idea that ‘to do nothing is also to take a position’, namely, to affirm the status quo.Footnote ¹²⁷ Expanding subjectivity would provide a foothold for the legal contestation of inequalities and ensures the conceptual integrity of human rights law while additionally aiding social and legal mobilization. These advantages appear to be appreciated by environmental litigants and litigators, who see rights as a tool for gap-filling that can be ‘pressed into service’ when other avenues fail.Footnote ¹²⁸

Measured by accounts like Grear's critique of the liberal legal subject, it is clear that the CoE's proposals to recognize the right to a healthy environment are not a radical departure from anthropocentric accounts of subjectivity. Natalia Kobylarz has observed that the current proposals do not go as far as creating rights for animals, nature or its elements, ie they neither propose to recognize the environment as a legal person in and of itself, nor envision rivers, trees or animals as rights-holders.Footnote ¹²⁹ They also do not address the ECHR's protective lacunae around Indigenous peoples’ rights.Footnote ¹³⁰ In other words, and although current proposals go some way towards protecting the law's ‘hidden subjects’ in the form of future generations,Footnote ¹³¹ the right is still mediated by the presence of an individual human subject. This helps to integrate the right within the existing system of human rights protection and ensures its feasibility while also reducing its ability to protect against a comprehensive spectrum of environmental harms or a shift in baseline assumptions around subjectivity.

One less radical way to contest the individualistic, anthropocentric approach to subjectivity is by recognizing the representative standing of NGOs.Footnote ¹³² Unlike proceedings before the European Committee of Social Rights,Footnote ¹³³ ECHR rights are highly individualized. The currently pending climate cases show that environmental cases before the Court may be backed and supported by environmental NGOs, but these NGOs are rarely the applicants themselves.Footnote ¹³⁴ This is because the NGOs are not bearers of the rights primarily concerned, ie the rights to life and respect for private and family life, and the ECHR's requirements around representative standing are restrictive.Footnote ¹³⁵ Allowing environmental NGOs to bring environmental and especially climate cases to the Court would mean revising the victim status requirement, which hampers this kind of litigation because cases brought in the collective interest are routinely declared inadmissible.Footnote ¹³⁶ Revising these rules might make it possible for NGOs to bring cases on behalf of their members. This is currently not possible as a general rule, although there have been certain exceptions in selected environmental cases,Footnote ¹³⁷ and one of the pending climate cases before the Court's Grand Chamber is further challenging these standards, as will be explained below.Footnote ¹³⁸ In the future, perhaps it could also mean NGOs bringing cases on behalf of the environment itself, or of future generations.

The victim status requirement as it currently stands means that applicants must have been ‘actually affected’ by an alleged Convention violation. Although there are certain limited exceptions here,Footnote ¹³⁹ as a rule the Court rejects cases that can be understood as an actio popularis, ie a public interest challenge to policy or legislation.Footnote ¹⁴⁰ Applicants accordingly cannot ‘complain against a law in abstracto simply because they feel it contravenes the Convention’.Footnote ¹⁴¹ It is not the Court's role to re-examine the outcomes of domestic decision-making processes—unless, that is, they have led to the violation of individual rights.

Given the often legally and technically complex and/or financially demanding nature of environmental litigation, it has increasingly been argued that these requirements raise excessive barriers in access to justice.Footnote ¹⁴² A promising case in this regard was the 2004 judgment in Gorraiz Lizarraga and Others v Spain, concerning a dam construction project, where the Court noted that the term ‘victim’ must be adapted to changing conditions in contemporary societies, and found that in some situations ‘recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to [individuals] whereby they can defend their particular interests effectively’.Footnote ¹⁴³ The Court also noted that ‘[a]ny other, excessively formalistic, interpretation of that concept would make protection of the rights guaranteed by the Convention ineffectual and illusory’.Footnote ¹⁴⁴ This finding was developed further in the Melox case, on information and participation rights, where the Court again emphasized the important role of environmental NGOs for bringing certain kinds of cases.Footnote ¹⁴⁵ This case law concerns NGOs’ ability to challenge purported violations of procedural rights, specifically under Article 6 of the ECHR, and similar findings have been made in a small number of later cases,Footnote ¹⁴⁶ albeit without leading to an overhaul of victim status requirements for environmental NGOs generally.Footnote ¹⁴⁷

The PACE draft protocol does not address issues of victim status, which is often also termed ‘standing’ (although this is, technically speaking, a different but related matter under the ECHR system).Footnote ¹⁴⁸ In the CDDH's consultations with experts, it has been argued that the victim status requirement should change, and that the draft protocol should relax the corresponding requirements for environmental NGOs.Footnote ¹⁴⁹ There are different proposed forms that this could take. For example, it has been proposed that the relaxation of rules could be limited to environmental NGOs that have received previous accreditation from the CoE.Footnote ¹⁵⁰

There are certainly good reasons for rethinking the ECHR's victim status requirements. Doing so could ease access to justice in cases that are complex and costly for individuals to bring, which particularly applies to cases in which a large amount of technical, scientific or legal expertise is needed. It could also help to collect and therefore streamline large numbers of individual applications concerning the same environmental impacts. Recognizing a right to a healthy environment also presents an (albeit imperfect) way to defragment and build on existing rights and obligations, providing an overarching entitlement that harmonizes—or at least provides a common minimum for—the law in different CoE Member States. At the same time, if it continues the ECHR's individual rights-based focus, the right might have ‘an atomizing effect, as collective demands for justice become fragmented into individual litigation and claims’.Footnote ¹⁵¹

To some, the conspicuous absence of the right to a healthy environment from the ECHR system—ie the environment-shaped hole in the Convention—practically begs for the recognition of the right. However, there are necessarily trade-offs involved in any effort to recognize the right to a healthy environment, especially when that recognition takes place within the constraint of existing institutions.Footnote ¹⁵² As argued by Giuseppe Palmisano, the former President of the European Committee of Social Rights, the ECHR ‘is characterised by an individualistic conception of human rights that does not fit well with collective and so-called solidarity rights, as the rights concerning environmental issues undoubtedly are’.Footnote ¹⁵³ Despite this, the ECtHR's ability to provide binding judgments against 46 States (compared to the European Committee of Social Rights’ 16 StatesFootnote ¹⁵⁴), if expanded by a right to a healthy environment, supports hopes that it could provide stronger, more expansive, or more equitable environmental protection than is currently being provided within this or other systems. These hopes are particularly high as the Court hears its first climate cases. But what protection gaps would the right to a healthy environment concretely address in these cases? The following section further analyses this, asking whether the Convention, if enriched by a right to a healthy environment, could be expected to deliver a degree of climate justice.

A. Justifying a Focus on Climate Change

The above has concerned environmental rights in a general sense and has only superficially touched on two major issues within the current liminal or threshold moment at the CoE: the temporal and spatial limitations on human rights protection, or, in other words, the rights of future generations and the extraterritorial application of rights. This section considers these two enduring legal exclusions through the lens of a specific institution—namely, the ECtHR—and a specific context—namely climate change.

Discussions around the right to a healthy environment are by no means limited to climate change. However, climate-related considerations are proving central in the CoE's ongoing discussions of that right.Footnote ¹⁵⁵ This is partly because climate litigation and the corresponding demands for climate justice are bringing key aspects of the right to a healthy environment to a head. It could be argued that climate change is different in nature from other environmental issues given the need for a global solution and differentiated burden-sharing. At the same time, however, climate litigation exposes the underlying and legally entrenched oppositions and injustices that shape legal responses to any environmental issue, namely oppositions between the human and the natural, the economic and the environmental, the actionable and the political, and the ‘us’ and the ‘other’. And while not all proposed climate solutions may be compatible with human rights law, as captured by cases comprising the phenomenon of ‘just transition litigation’,Footnote ¹⁵⁶ this does not mean that a rights-based response is incorrect; in fact, it underscores the need for it.

When discussing proposals for recognizing the right to a healthy environment, and its implications for rights protection across time and place, climate change provides a context for understanding the transformations that the current liminal moment could deliver, and reveals the injustices wrapped up in current approaches to legal subjectivity. After all, climate change and the resulting impacts are inextricably linked with inequality, and more specifically with widespread adverse impacts that are inequitably distributed across different populations and regions of the world. In this regard, the Intergovernmental Panel on Climate Change (IPCC) has established that the ‘[v]ulnerability of ecosystems and people to climate change differs substantially among and within regions …, driven by patterns of intersecting socio-economic development, unsustainable ocean and land use, inequity, marginalisation, historical and ongoing patterns of inequity such as colonialism, and governance’.Footnote ¹⁵⁷ It is widely recognized that the current and projected effects of unmitigated greenhouse gas emissions are caused and distributed in ways that are unjust and unethical.Footnote ¹⁵⁸ Demands for climate justice have been funnelled into human rights claims, with the human rights system serving as a proxy for identifying climate injustice despite some scepticism concerning the law's inherent complicity in and predisposition towards environmental degradation through, among other things, its protection of corporate interests.Footnote ¹⁵⁹

To better understand the debate, and the systemic and institutional limitations, the next sections will discuss the possible recognition of rights for future generations, as an expression of an intergenerational climate justice, and the extraterritoriality of State obligations, as an expression of a global climate justice. This analysis will demonstrate how the current liminal moment could move the CoE closer to environmental and specifically climate justice, by placing these demands in the context of both wider discussions and institutional constraints.

B. Recognizing the Rights of Future Generations

The rights of future generations pervade existing discussions and regulatory instruments on the environment, although without creating human rights obligations.Footnote ¹⁶⁰ The relatedFootnote ¹⁶¹ concept of intergenerational justice is aspirationally mentioned in the preamble of the Paris Agreement,Footnote ¹⁶² emphasized in the UN Framework Convention on Climate Change,Footnote ¹⁶³ and foregrounded by different social movements.Footnote ¹⁶⁴ As human rights bodies start to address climate change, they largely seem to be following this approach: they mention the protection of future generations as aspirations or givens, but without further examination or recognition of enforceable rights.Footnote ¹⁶⁵ In other words, the temporal scope of climate-related human rights, ie the matter of whether and how the law can protect legally actionable rights for future generations, remains an unsettled question. This evokes a core (temporal) exclusion of legal subjectivity, and can be subdivided further into questions of how to theorize and how to implement intergenerational justice.Footnote ¹⁶⁶

C. Extraterritoriality

Arguments for future generations suggest that the right to a healthy environment cannot merely be a right of present-day individuals. Instead, it requires the recognition of a collective right to enjoy a viable environment and a habitable planet that avoids inequities along a temporal axis.Footnote ²¹² In other words, neglecting the factor of time and forcing this right to fit individual, presentist logics would impoverish it dramatically. A second impoverishment becomes apparent when the factor of place is considered, taking into account the globally inequitable benefits and impacts of extractivism and the resulting anthropogenic climate change. Heeding Humphreys, this article accepts that any struggle for climate justice that foregrounds one of these factors but ignores the other will be self-defeating.

The crucial question is whether human rights can or should or perhaps already do apply extraterritorially. When it comes to the ECHR system, its regional nature and narrow territorial focus stand in sharp tension with current demands for global climate justice. Under the case law of the Court as it currently stands, drawing on the jurisdictional norm in Article 1 of the ECHR, it appears almost impossible for people from developing countries—who face the brunt of climate-related harmsFootnote ²¹³—to rely on the ECHR to challenge the actions of historically and currently high-emitting CoE Member States. Or, as Lea Raible has noted, ‘[h]uman rights are still primarily a national affair’.Footnote ²¹⁴ While the ECtHR does not yet have case law specific to cross-border environmental impacts,Footnote ²¹⁵ it may be assumed that its existing—and limited, territorial or personal control-based—approach to territorial jurisdiction also applies to environmental cases.Footnote ²¹⁶ In an expert report before the CDDH-ENV, Raible noted that while recent cases such as Carter v Russia indicate that the Convention may apply extraterritorially when a State controls whether a person lives or dies through its agents abroad,Footnote ²¹⁷ the Court is still likely to find that climate cases lack the requisite proximity to the emitting State. Similarly, the Court's former president, Robert Spano, noted that he could not envision ‘how the inherent cross-border and transversal nature of the right to a healthy environment can be reconciled meaningfully with the current formulation of Article 1 of the Convention and the Court's case-law’.Footnote ²¹⁸ The recent hearing in the Duarte Agostinho case before the Court, much of which was dedicated to the issue of extraterritoriality, argued for a different outlook, with the applicants submitting that the existing doctrine needs to evolve to remain true to its underlying principles and guarantee effective rights protection and harmony with the international climate regime.Footnote ²¹⁹ Collective causation, the applicants argued, should not allow States to escape responsibility for a civilization-threatening harm.Footnote ²²⁰ And there is, after all, a customary international legal rule requiring States to prevent transboundary environmental harms: the ‘no-harm’ principle.Footnote ²²¹

The fact that the PACE draft protocol does not address extraterritorial jurisdiction can thus be considered a significant lacuna. It could do so—for example, as Cima argues, it could bring human rights instruments closer to the climate regime's underpinning principle of the common concern of mankind, which collectivizes interests in the environment.Footnote ²²² Or, as Raible suggests, it could extend jurisdiction to situations in which States control the source of harm, with the failure to regulate that harm adequately then constituting a potential violation of the right to a healthy environment.Footnote ²²³ However, this would, she notes, ‘come at the cost of at least some of the main characteristics of the Convention and human rights protection generally’, eg its focus on individual redress.Footnote ²²⁴ This stands alongside other, institutional costs: a further overloading of the Court's docket, a need to engage with legal and factual circumstances outside its established remit, and further contestation of its supposed overreach.

Extraterritorial climate change obligations certainly do raise difficult practical, conceptual and institutional questions. They potentially provide people around the world with access to the ECtHR, endangering the survival and legitimacy of a regional institution with a limited budget, an already overloaded docket and a contested role. They also raise questions about the modalities of redress to be offered in such cases, and about how to distribute responsibility—including historical responsibility—for anthropogenic climate change among States. While the Grand Chamber's pending climate cases de facto limit extraterritorial jurisdiction to the ‘espace juridique’ of the Convention,Footnote ²²⁵ an increasingly intense debate around the extraterritorial scope of the ECHR and the untenability of current approaches based on effective control over person and territoryFootnote ²²⁶ has foregrounded different models. Gone are the days of ‘vague and often misleading gestures to the universality of human rights’Footnote ²²⁷ as scholars explore the potential of a functional approach to territorial jurisdiction,Footnote ²²⁸ one focused on limiting State power in any setting in which it exercises State functions or a sphere of influence.

Applied to a climate context, these approaches challenge the CoE's persistent failure to protect those most affected by the emissions of its Member States, ie persons living in vulnerable areas in developing countries. To quote Carmen Gonzalez, ‘racialized communities all over the world have borne the brunt of carbon capitalism from cradle (extraction of fossil fuels) to grave (climate change)’.Footnote ²²⁹ There are different ways to respond to this reality—from ‘fair shares’ and the Paris Agreement's principle of common but differentiated responsibilities,Footnote ²³⁰ to the polluter-pays principle under environmental law,Footnote ²³¹ the customary international ‘no-harm’ ruleFootnote ²³² or positive obligations under the ECHR. While none of these approaches necessarily reflects a full or equitable account of climate justice—which, given the lack of any one monolithic account of climate justice, may prove to be a moving but worthy target—they attempt to respond to the unequal distribution of the developmental gains and catastrophic impacts associated with climate change. This is something that proposals at the CoE level are failing to redress adequately, or even address.

Institutional justifications for limited rights protection—territorial or otherwise—must be approached with the utmost care. At the same time, as successive waves of contestation reshape the Court's work,Footnote ²³³ there may be short-term legitimacy gains involved in siding with its (largely high-emitting and (hyper-)developed) Member States in terms of the spatial scope of human rights obligations. However, failing to understand climate change as an expression, source and aggravation of global inequality means failing to respond to the core injustices at stake, and entails comparative and long-term legitimacy deficits for any human rights institution.

Meanwhile, climate litigation is showing that there are alternatives. While the recognition of a purely territorial right to a healthy environment best reflects the current logic of the European human rights system, other bodies—among them the Inter-American systemFootnote ²³⁴ and the CRCFootnote ²³⁵—have recognized that it should suffice for the purposes of territorial jurisdiction for harmful greenhouse gas emissions to have originated in the territory of a given State. Admittedly, these bodies move in different institutional, legal and political contexts than the ECtHR.Footnote ²³⁶ Neither would extraterritorial ECHR obligations be a panacea for anthropogenic climate change or global inequality; they would raise practical and resource difficulties, would not bind all global high emitters, and would be unlikely to lead to the redistribution of resources called for under the Paris Agreement regime.Footnote ²³⁷ Scholars have thus far struggled to justify extraterritorial environmental obligations based on accepted understandings of human rights.Footnote ²³⁸ A prominent example comes from former environmental Special Rapporteur John Knox, who in 2016 argued that ‘attempting to describe the extraterritorial human rights obligations of every State in relation to climate change would be of limited usefulness even apart from its potential for controversy’, noting that ‘[t]he practical obstacles to such an undertaking are daunting, and it is instructive that the international community has not attempted to address climate change in this way’.Footnote ²³⁹ In doing so, Knox (incorrectly) infers what is legally possible from the political decision to locate climate-related discussions in a cooperative regime lacking coercive machinery.

Knox's 2016 views are telling of the huge strides that human rights law, writ large, has taken in the intermittent years, as human rights bodies have outpaced scholars’ legal imagination. Practice is starting to show that approaches to territorial jurisdiction based on causality—ie attaching to the point of emission of greenhouse gases—are possible, although deeply disruptive to the existing logics of especially regional human rights systems. In this regard, the applicants in the Duarte Agostinho climate case pending before the ECtHR's Grand Chamber argue—drawing on the Court's own case law—that, in exceptional cases, ‘acts of the States Parties performed, or producing effects, outside their territories can constitute an exercise of jurisdiction’.Footnote ²⁴⁰

When regarding this matter from the perspective of ensuring an adequate rights-based response to climate change, moving the needle even slightly towards a more equitable engagement with the sources and impacts of climate change is worth striving for. This will hold true as long as there are no better alternatives. In the meantime, failing even to discuss the racialized and colonial, temporal and spatial, present and historical global inequities at stake represents an avoidable and crucial injustice in and of itself. The same is true for all of the different dimensions and iterations of the right to a healthy environment discussed in this article. Within the liminal or threshold moment currently ongoing at the CoE, and in human rights systems around the world, creativity and contestation are possible. Failing to seize this opportunity means accepting and entrenching the limitations of these systems.