Is It Time?

While the UN and almost every region around the world have explicitly recognized the right to a healthy environment, there is one region that still lacks this right: Europe.

But why has Europe not yet fully recognized the right? Is there no need to formally acknowledge such a right at the European level? With new proactive measures emerging, it seems the time may finally be ripe for Europe to embrace the right to a healthy environment.

Four years ago today, on the 10th September 2020, a global call was presented to the UN Human Rights Council to urgently recognize the right to a safe, clean, healthy, and sustainable environment. By the following year, this right was officially recognized as a human right. In 2022, the UN General Assembly followed suit. Now, history appears to be repeating itself as another call for the recognition of the right to a healthy environment gains momentum, this time in Europe. A campaign of over 470 civil society organizations and an academic letter of support are currently circulating within the international legal world to advocate for such a right.

It is surprising that the right to a healthy environment is still missing in Europe, considering all 46 Council of Europe (CoE) and 27 European Union (EU) member states have voted in favour of its recognition in 2022. In addition, 101 States have already incorporated the right into their own national legislation. The right can also be discovered across various regional human rights instruments, such as the Protocol of San Salvador, the Arab Charter on Human Rights, the African Charter on Human and Peoples’ Rights, and in the jurisprudence of the Inter-American Court of Human Rights. A flood of climate cases has further demonstrated how the right to a healthy environment and human rights in general are utilized to hold States accountable for their lack of climate action. Still, the CoE and EU have not yet formally recognized the right. But why is Europe behind on this matter?

No Explicit Right to a Healthy Environment in Europe

Within the CoE, neither the European Convention on Human Rights (ECHR) nor the European Social Charter (ESC) explicitly include the right to a healthy environment. Similarly within the EU, the Charter of Fundamental Rights (CFR) does also not acknowledge the right, although Article 37 CFR refers to environmental protection.

Despite the absence of an explicit right to a healthy environment, European human rights bodies have proactively addressed environmental concerns through evolving case law, effectively “greening” human rights. The European Court of Human Rights (ECtHR), for example, has interpreted existing rights, such as Articles 2 and 8 of the ECHR, to cover environmental issues, which has led to a substantial body of environmental case law. Notable cases like López Ostra v. Spain  and Fadeyeva v. Russia  established that violations of Article 8 can occur due to environmental harm, such as industrial pollution. Moreover, when the ECtHR recently addressed climate change for the first time in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, it found a violation of the right to “effective protection by the State authorities from serious adverse effects of climate change on life, health, well-being, and quality of life” under Article 8 (para. 519). However, the Court repeated that there is no general protection of the environment as such under the ECHR and that other international and domestic frameworks are better suited for environmental protection (para. 445). Meanwhile, the European Committee of Social Rights (ECSR) has taken a more progressive stance. Already in 2007, it explicitly interpreted the right to a healthy environment within Article 11 of the ESC, linked to Articles 2 and 3 ECHR, in MFHR v. Greece. This forward-thinking approach, adopted 17 years ago, illustrates how judicial bodies have proactively integrated environmental protection within existing human rights for years.

However, this raises the question whether they should be the ones to establish such a right. In his partly concurring, partly dissenting opinion to the KlimaSeniorinnen judgement, Judge Eicke argued that the Strasbourg Court is not the appropriate body to decide on this matter and expressed concerns that the majority’s creation of a “new right/obligation” under Article 8 could detract from legislative efforts to explicitly recognize the right and potentially blur the separation of powers (para. 69). In addition, relying on interpretation rather than formal recognition further weakens the right’s impact, especially given the urgency of environmental issues. A formal legislative inclusion of the right would offer more robust and comprehensive protection.

Past Unsuccessful Efforts and Promising Emerging Initiatives

In fact, there have been several legislative attempts to implement such a right for many years. Already in 1999, the Parliamentary Assembly suggested the implementation of the right through a European charter for the environment or an additional protocol to the ECHR. 25 years later, there is still no official acknowledgement, despite a variety of further efforts and even a concrete proposal put forward in 2021.

So far, those opposed to a formal recognition have prevailed, highlighting concerns such as the vague and ambiguous nature of the right and that the judiciary may overstep its role, consequently undermining the separation of powers. Additionally, they warn of courts being overwhelmed by an influx of climate litigation and argue that the “greening” of existing human rights is already sufficient.

It is also important to note, that embedding this right within the CoE presents a greater challenge than at the global level, as it would require enshrining it in binding “hard law”. While the recognition of the right in non-binding UN resolutions remains important, it lacks legal force. Many, including former UN Special Rapporteur David R. Boyd, argue that a legally binding instrument at the UN level is also the “logical next step” to prevent the right from being treated as a “second-class” right. A legislative recognition within the CoE’s framework would therefore not only enhance enforcement but also position Europe ahead of global efforts in protecting this right.

Promising is the work of the CDDH-ENV Drafting Group, which is currently evaluating the need and feasibility of new instruments on human rights and the environment within the CoE. The group explores options such as integrating the right into existing treaties through additional protocols, references in preambles and also considers non-binding political recognitions. However, important to note is, that CDDH-ENV’s role is merely preparatory and advisory, and leaves it to the member states to determine the specifics of  the “developing right”. Furthermore, their draft report was expected to be presented for adoption in June 2024 during the 100th meeting of the Steering Committee for Human Rights, but was delayed until December. At the EU level, the Resolution on Biodiversity Strategy for 2030 also advocates for the inclusion of the right. While this is a positive step, there appears to have been little progress in advancing this goal so far.

Does Europe Need a Right to a Healthy Environment?

The years of failed efforts of recognition raises the question whether there is no need for a right to a healthy environment in Europe.

One could argue, that the existing human rights framework comprised of the ECHR, ESC and CFR is sufficient and that environmental protection can be “greened” and interpreted within available provisions such as Articles 2, 3, 6, 8, 13, 14, 34 ECHR, Article 11 ESC and Articles 2 and 3 CFR. On the other hand, such interpretation may not sufficiently cover the full scope of climate challenges and offer only limited protection, particularly due to procedural hurdles. In fact, the aftermath of the KlimaSeniorinnen case exemplifies the downside of such an approach, since Switzerland is currently rejecting the ECtHR judgement. An official recognition within the whole CoE could urge States like Switzerland to pursue more climate action and reach stronger commitments. In addition, it would emphasize the importance of a human rights-based approach in the climate context and complement the European human rights framework by filling gaps.

The proposal receiving the most attention involves an additional protocol to the ECHR. This would enable individuals to seek binding decisions and bring claims against States due to their lack of climate action before the ECtHR, even if these claims do not impact other Convention rights. It would further showcase the CoE’s dedication to protect its citizens from climate crisis implications and tackle climate-based human rights violations. It would also encourage swift, comprehensive climate actions within national frameworks and create consistency among member states. Furthermore, it could include the protection of environmental human rights defenders. On top, a clear, explicit right could help manage the workload of the ECtHR and other national courts by providing clearer guidelines and replacing the current fragmented approach of some recognizing the right while others do not.

It is Time to Join the Rest of the World

David R. Boyd, who published a User’s Guide on the right to a healthy environment in April before his end of term as Special Rapporteur, stressed the urgency of recognizing the right in Europe and anticipated that there will be “extreme pressure brought to bear by civil society on the Council of Europe”. He was right. The current campaign of over 470 organizations and 200 academics initiated by GNHRE demands the recognition through an additional ECHR protocol and reminds of the call to the Human Rights Council four years ago.

Despite fruitless efforts, the willingness to guarantee such a right in Europe is evident. Undoubtedly, the realization of a new environmental right will require considerable resources for implementation, enforcement and monitoring. It will also be a lengthy process. To give an example: it took nine years for the CFR to come into force, which illustrates the often slow pace of European initiatives. The CDDH-ENV’s feasibility analysis will also take time, given the current delay. Therefore, this issue cannot be resolved quickly or with a short-term solution. In the meantime, recent climate litigation and environmental case law illustrate how existing instruments can be used if the high judicial thresholds are met. Present rights, however, may not sufficiently address the full scope of future environmental challenges long-term. The ICJ’s upcoming advisory opinion further highlights the need to clarify environmental and climate protections and signals that the European region should not indefinitely delay addressing this critical issue. Without doubt, it seems time for Europe to join the rest of the world and follow the calls in recognizing the right to a healthy environment. What better occasion to demonstrate the Council of Europe’s relevance and its ability to adapt human rights to contemporary challenges than in the wake of its 75th anniversary?