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.
Climate litigation forms an important part of the Court’s broader environmental case law. Yet, while the Court has shown a degree of leniency towards locus standi of organisations in climate cases such as KlimaSeniorinnen and, later, in the Greenpeace Nordiccase, this should not be mistaken for a general relaxation of its traditionally stringent approach to the locus standi of individuals and organisations.
Political momentum
After decades of recommendations, research, reports, and institutional discussions within the Council of Europe, including the calls from the Parliamentary Assembly of the Council of Europe (PACE) since 1999 to adopt a legally binding instrument, the Steering Committee for Human Rights’ (CDDH) study on the need for and feasibility of a further instrument or instruments in the field of human rights and the environment and the subsequent discussions within the Committee of Ministers, the need for action has become increasingly compelling. With States now considering the way forward, momentum towards a legally binding instrument has continued to grow. As of September 2026, an increasing number of States have expressed support for such an instrument, suggesting that the long-standing debate may be approaching a decisive stage.
Incremental steps forward
Article 8 ECHR – Right to Respect for Private and Family Life
The Court’s case law makes clear that the right to private and family life is not engaged in every instance of environmental pollution, as:
“[t]here is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8” (Jugheli and Others v. Georgia (later confirmed in Çiçek and Others v. Turkey).
For a case to fall within the scope of Article 8 ECHR, the environmental harm must reach a certain threshold of severity. This is assessed by the circumstances of the case, such as the intensity, duration, and the physical or psychological impact on the individual affected. As a result, the bar is set high for applicants, limiting the effectiveness of this Article as a tool for broader environmental protection.
Nevertheless, in the landmark KlimaSeniorinnen judgment, the Court acknowledged for the first time that under Article 8 ECHR, States have a duty “to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change” (para 545). However, the Court also emphasised its traditional approach that the Convention does not offer general environmental protection. It pointed to other international frameworks and national legislation better suited to address such complex environmental challenges. Furthermore, the Court refrained from reviewing more specific or individualised measures for Switzerland, in light of the need to respect the margin of appreciation afforded to Member States and to maintain the separation of powers.
Article 2 ECHR – Right to Life
To receive protection under the right to life, guaranteed under Article 2 ECHR, individuals must prove that the environmental risks they encounter are both “real and imminent.” This sets a significantly higher standard than Article 8 ECHR. Therefore, until recently it excluded the long-term threats posed by climate change. Only in KlimaSeniorinnen, even though the Court ultimately based its findings on Article 8 ECHR, did it acknowledge for the first time that Article 2 ECHR could, in theory, apply to the climate crisis. Yet this cautious step forward was met with criticism in Judge Eicke’s dissenting opinion, where he argued the Court had overreached by even suggesting such applicability (paras 59-62).
Despite this tension, there are some signs of important progress. In Cannavacciuolo and Others v. Italy, the Court relaxed the traditionally strict requirement for a direct causal link between environmental harm and a threat to life. It accepted that in cases involving complex and diffuse pollution, the risk to life may still meet the “real and imminent” threshold. This nuanced shift reflects an emerging openness to the precautionary principle, an essential component of environmental protection, which recognises that waiting for irreversible harm before acting is both legally and morally untenable.
This growing judicial awareness underscores the urgent need for the formal recognition of the right to a healthy environment. Without such recognition, human rights protections will continue to lag behind the triple planetary crises of our time.
Locus standi and a level playing field
The well-established case law of the Court excludes the locus standi of NGOs to bring cases relating to environmental matters under the above-mentioned Articles 2 and 8 ECHR (see, for example, Maatschap Smits and Others v. Netherlands (2001), or Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği v. Turkey (2021)). Only in the climate context was this case law eased, and the KlimaSeniorinnen judgment established the test for NGOs to have legal standing before the Court in climate litigation. However, as rightly pointed out by Judge Krenc in his concurring opinion to the Cannavacciuolo judgment, “in [those] both cases, it is the right to a healthy environment that is at stake” (para 6). It is clear that without a standalone convention explicitly recognising such a right, only the climate change cases brought by NGOs will benefit from the scrutiny of the ECtHR, leaving the rest of the NGO-led environmental cases aside.
Political pushback on the KlimaSeniorinnen judgment
The political pushback following the KlimaSeniorinnen judgment further underscores the need for a standalone convention recognising the right to a healthy environment. Switzerland’s dismissive response to the ruling, where top officials questioned the Court’s authority and signalled reluctance to implement its findings, reveals the challenges of relying on judicial interpretation without a clear legal mandate in favour of environmental protection. Such resistance highlights how environmental protection remains fragmented in the absence of explicit, binding commitments. Such a legally binding instrument would not only strengthen the legal basis for environmental protection but also help shield it from political undermining by affirming its place within the core of human rights law.
Conclusion: recognition as a necessary step forward
The Court’s environmental jurisprudence demonstrates that the Convention system is capable of responding to contemporary environmental challenges. Judgments such as KlimaSeniorinnen and Cannavacciuolo reflect a growing recognition of the profound impact environmental degradation and climate change can have on Convention rights. These developments should be welcomed as important milestones in the evolution of European human rights law.
At the same time, these cases reveal the limits of relying exclusively on existing Convention rights to address environmental harms. The Court has been required to develop environmental protection through Articles 2, 6 and 8 ECHR, provisions that were not originally designed for that purpose and which accordingly carry extensive limitations. A standalone convention recognising the right to a clean, healthy and sustainable environment would not replace or diminish these judicial advances. Rather, it would build upon them by providing a clear legal framework within which the Court could continue developing its case law with greater coherence, predictability and legal certainty.
To bridge the remaining gaps in the Court’s case law, the Council of Europe must now move beyond incremental developments and adopt a legally binding instrument explicitly recognising the right to a clean, healthy and sustainable environment. For decades, the Council of Europe has already made numerous political commitments to environmental protection and to recognising the right to a healthy environment, including several recommendations adopted by PACE since 1999 (see recommendations 1431, 1614, 1885, 2211, 2545 and 2272) as well as recommendations and a declaration adopted by the Committee of Ministers, including the Reykjavik Declaration and CM/Rec(2022)20.
Over the past year, political momentum for such an instrument has grown significantly. The call for recognition has received support from Alain Berset, Secretary General of the Council of Europe; Michael O’Flaherty, Commissioner for Human Rights; and Petra Bayr, President of the Parliamentary Assembly of the Council of Europe (PACE), reflecting an increasingly broad institutional consensus within the Council of Europe. In their public statements, O’Flaherty and Bayr have repeatedly emphasised the need for a legally binding instrument on the right to a clean, healthy and sustainable environment, while Berset has similarly called for the Council of Europe to respond to the environmental crises facing Europe by strengthening protection of this right.
The time has come to translate those commitments into law. Incremental expansions of existing rights cannot substitute for the clarity, coherence and normative value that a standalone right would provide. A standalone legally binding convention would establish a clear legal foundation for environmental protection, strengthen the Court’s ability to address environmental harms, and ensure that the right to a healthy environment is protected not only for people today, but for generations to come.
This blog was co-authored by Sumeyra Arslan (legal and policy advisor (climate) at Child Rights International Network – CRIN) and Malgorzata Kwiedacz-Palosz (senior fundamental rights lawyer at ClientEarth), both members of the Campaign for the Right to a Clean, Healthy, and Sustainable Environment at the Council of Europe.
