The European Court of Human Rights, an Underrated Forum for Environmental Litigation

Abstract

The ECHR organs have examined, since the 1960s, over 270 applications related to the protection or the degradation of the natural environment. The article offers a selective, systematised and up-to-date analysis of this vast body of case law and of applications pending the Court’s examination. It explores the implications of the ECHR general principles for environmental litigation, in particular, the notions of “direct victim”, “serious specific and imminent danger”, “minimum level of disturbance”, and “wide margin of appreciation”. Whenever warranted, it applauds the Court’s acceptance of surrogate protection of the environment through civil and political rights and the doctrine of positive obligations, or voices criticism of its conservative approach to giving precedence to economic considerations over the environmental harm. The article then takes a forward-looking view on the work of the ECtHR, focusing on its dynamic and evolutive approach to the interpretation of the scope of the ECHR-protected rights and the cross-fertilisation of ideas which is occurring between the ECtHR and the IACtHR. The article ultimately predicts that wise and widespread environmental litigation can make the ECtHR start to employ ecological rationality in explaining the value of nature in cases in which its protection paradoxically seems to collide with conventionally-perceived anthropocentric rights.

Keywords: environment, human rights, environmental litigation, European Court of Human Rights, direct victim, serious specific and imminent danger, precautionary principle, minimum level of disturbance, margin of appreciation, public trust doctrine, air pollution, traffic, remedies for environmental human