1.Aspects of admissibility: the initial lack of direct reference to the right to a healthy environment in the Convention

Although the concern for environmental protection is quite old, the development of the right to the environment is relatively recent. In fact, environmental concern did not appear in multilateral international relations until the Stockholm Conference of 1972. For this reason, neither the European Convention on Human Rights, adopted in Rome on 4 November 1950, nor its Protocols, contain any reference to a right to the environment as such or allude to the concept of the environment. Indeed, when the Convention was drafted, environmental issues were not a major concern and international environmental law did not yet exist³⁶. Moreover, one of the characteristics of the right to the environment at the international level is that it is a law based on the proclamation of norms and rules whose practical scope is not always easy to determine. However, such a right is difficult to enforce before an international court, in particular a court responsible for ensuring the protection of human rights such as the European Court of Human Rights. 

In response to the growing concern of States for the environment, several attempts have been made to enshrine this right in the Convention, but all have failed. The original rejection dates back to 2003, when the Parliamentary Assembly launched the idea of an additional protocol to the Convention mentioning the protection of the environment, enshrining environmental judicialization.³⁷ The Council of Ministers rejected this proposal³⁸. This means that neither the Convention nor the protocols directly contain obligations for states. Eicke believes that it has deprived litigants of both their fundamental rights to a safe, clean, healthy and sustainable environment, but also of their procedural rights to actively assert these rights in court.³⁹ While the proposal for an additional protocol to the European Convention on Human Rights on the protection of the environment was rejected in 2003, it should be stressed that more recent initiatives show a renewed commitment to anchor a right to a healthy environment within the Council of Europe. For example, in 2021,⁴⁰ the Parliamentary Assembly of the Council of Europe adopted Recommendation 2211, calling on member states to explicitly recognise this fundamental right. In addition, the Committee of Ministers adopted the Recommendation CM/Rec(2022)20 on human rights and environmental protection,⁴¹ which encourages States to ensure an environment of sufficient quality to allow a dignified life. These initiatives illustrate the current momentum towards a formal recognition of the right to a healthy environment at European level, even though no additional protocol has yet been adopted.

The protection of this right is, however, indirectly taken into account by the European Court of Human Rights when environmental damage infringes a right guaranteed by the European Convention on Human Rights. However, the Court remains limited in its field of intervention in environmental matters. While today the Court's mechanisms⁴² open up great opportunities for environmental defenders, because of the large number of people to whom it is addressed, they are limited by the condition that their application is admissible. Indeed, since the concept of environmental protection is not recognized as such in the Convention, many cases have been declared inadmissible. Given the absence of a direct reference to the environment in the Convention, it is not surprising that the Court initially rejected applications before it concerning alleged infringements of environmental law, mainly on the grounds that it lacked jurisdiction ratione materiae.

Thus, in the case of X and Y v. Germany⁴³, the Court held that the application was inadmissible on the ground that "no right to nature conservation is, as such, guaranteed by the Convention".⁴⁴ It thus specified that the applicant had to demonstrate that the damage caused to the environment constituted a violation of a right provided for in the Convention in order for the application to be declared admissible⁴⁵. Although the applicants in the present case were members of an environmental protection organisation, which owned part of the land intended for nature observation, they complained of the use of the adjacent swamps for military purposes, which could hinder the protection of the environment by causing pollution. Furthermore, the Court held that "as regards the present complaint, no right to the preservation of nature is as such included among the rights and freedoms guaranteed by the Convention and in particular by Articles 2, 3 or 5 invoked by the applicant".⁴⁶ Therefore, indirectly, the Court has assumed jurisdiction over environmental damage caused by ricochet, that is, through the protection of human rights.⁴⁷

The Court reaffirmed this idea in its judgment in Hamer v. Belgium⁴⁸, in which it affirmed that the environment has a value and that "economic imperatives and even certain fundamental rights, such as the right to property, must not take precedence over environmental considerations, especially when the State has adopted laws in this area". It confirms a constant and sustained interest in public opinion, and consequently in the public authorities⁴⁹. In this way, it has shown that it can, where appropriate, rely on other environmental legislation to serve as an argument for environmental concerns and developments. In order for their application to be admissible, the applicants now plead a violation of a right recognized by the Convention or its Protocols. 

In recent cases, the Court has tried to keep the floodgates closed, focusing on a ratione personae approach.⁵⁰ For example, it carefully and continuously assesses whether or not applicants are "sufficiently affected" by the alleged violations, with respect to their right to life, privacy and an effective remedy. Although climate change is a global phenomenon, it is irrelevant whether the claim is "inextricably linked to communities on the frontlines of crisis in the Global South" in determining the scope of litigants' right to family life.⁵¹ Similarly, with regard to methane emissions from agriculture, and irrespective of the fact that the consumption of soy feeds on a UK factory farm is a key driver of deforestation in the Amazon basin⁵², the Court found that the claimants were, once again, not sufficiently affected by the alleged infringements.

The Court cautiously assesses the direct damage caused to litigants and the standing of a person to bring proceedings in climate litigation. He also felt that a nonprofit leading a campaign against animal exploitation: the food industries as "the main source of ecosystem destruction and climate change, mass extinctions and animal abuse, threats to human health, equality, food security and peace",⁵³ had not reached the threshold to be sufficiently affected.

The Court aims to maintain a balance to avoid an avalanche related to climate litigation by taking a very narrow, if not strict, approach to the litigant to be sufficiently affected – in person (personae) and substantially (materiae) rather than extraterritorially (loci).⁵⁴ The Court aims to decline victim status in order to increase its relevance. Indeed, the concept of victim is a dynamic concept that is shaped through cases. The article will focus on the declination of the status of recognized victim used in climate disputes – direct victim, indirect victim and indirect victim. It will further analyse the substantive rights that can be invoked to mitigate climate-related risks in court.

1.1.The declination of victim status in climate litigation

This trend established by the Court is reaffirmed in its most recent cases. Indeed, the status of victim⁵⁵ is an autonomous concept and granted stricto sensu. The status of victim is to be defined in article 34 of the Convention, which deals with the question of who can bring a complaint before the Court. This is "any person, non-governmental organization or group of individuals who claim to be victims of a violation by the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto".⁵⁶

The concept also protects litigants if the allegation is a failure to take sufficient steps required by a positive obligation. The assessment of victim status in relation to an allegation of omission requires a comparison of the measures adopted by the state with what is required under the international obligation – in this case, climate-related rights, interpreted in light of current conditions and the "best available science".⁵⁷

The remaining basis for victim status is that individuals are "personally affected" by the offending measure if they are in a situation of "high environmental risk",⁵⁸ in which the environmental threat "becomes potentially dangerous to the health and well-being of those exposed to it". The Court implements different categories of victimization – direct, indirect, by ricochet. The article will also address the case where no victim status is granted.

1.1.1.Variation of victim status – the direct victim

The distinction made by the Court between the applicants is entangled with the ability of each to assert, in a well-argued and detailed manner, that, in the absence of adequate precautions taken by the authorities, the degree of probability of damage occurring is such that it may be regarded as constituting a violation, provided that the consequences of the act complained of are not too remote. In practice, the Court is aware of the scope of the obligations depending on the circumstances of each case. These are the circumstances of the case and the Court assesses "the intensity of the violations, their seriousness, their harmfulness to people and the environment".⁵⁹ The Court found that natural persons were not subject to a sufficiently intense infringement.⁶⁰ It is possible to advance that a direct victim is defined as an individual or entity whose rights are immediately and personally affected by the alleged violation. The applicant must demonstrate that the authorities’ failure to act, or their actions, have created a probable and proximate risk of harm. The seriousness and intensity of the alleged breach are assessed on a case-by-case basis.

For example, in the case of Verein Klima Seniorinnen Schweiz and Others v. Switzerland, the Court denied the four individual applicants the status of victim, while the association, which was also an applicant before the Court, had the right to lodge the complaint. In so doing, it has, in particular, broadened the concept of the status of "victim" within the meaning of Article 34 of the Convention and has created positive obligations (under Article 8 and, possibly, Article 2) with regard to "the effective protection by the authorities of the State against serious adverse effects on their lives, their health, well-being and quality of life resulting from the adverse effects and risks caused by climate change".⁶¹ Therefore, the public authorities must respect the obligation of prevention and vigilance to avoid a violation of a right enshrined in the Convention.

By taking a casuistic approach in each case, the Court assesses the intensity of the alleged breaches in relation to the scope of the duty. It takes into consideration the seriousness and harmfulness to human health and the environment. Such an analysis allows the Court, on the one hand, to interpret the Convention dynamically, but also, on the other hand, to create uncertainty for individuals as to the decision on applications brought before the courts, since it is based on case-law. It allows for another differentiation of the status of victim – the indirect victim.

1.1.2.Variation of victim status – the indirect victim

An indirect victim is a person whose rights are violated as a result of the violation of the rights of others. This status has been held by the Court mainly in cases of the death or disappearance of a family member, irrespective of his or her right to inherit and most often in the context of a possible violation of the inviolable rights of the Convention.⁶² In addition, the Court accepts that the death of the victim after the application has been lodged gives the right to his or her relatives or heirs to continue the proceedings if they have a legitimate interest in doing so.⁶³ In hindsight, an indirect victim status can be defined as a person whose rights are affected as a consequence of harm to another, typically in cases involving the death or disappearance of a family member. The Court allows relatives or heirs to continue proceedings if they have a legitimate interest, and, in exceptional circumstances, may permit applications on behalf of vulnerable individuals.

In exceptional circumstances, the Court accepts that an application may be filed on behalf of the victim, where the person intending to make the application would not have the authority to do so. While the Court has adopted this very broad interpretation of the right of appeal for the benefit of the victim's relatives, it now recognises that the vulnerability of an individual justifies the possibility of a legal person representing him, even if the latter had died before the application was lodged. This solution will only be extended in an extremely rare way, as the concept of indirect victim cannot be recognized in favor of the legal person. It is in order to protect the applicant from an imminent risk to his life (art. 2) or to his physical integrity (art. 3) that the Court accepts motions on the basis of article 39.⁶⁴ While deportations and extraditions are the most important part of the dispute, the dangers invoked are numerous: persecution linked to sexual orientation or health.

1.1.3.Variation of victim status - a complex judicialization of climate victims

The Court's declination of victim status suffers as well as the advantages for litigants, in the sense that indirect victims are recognized, as well as victims by ricochet. In rare cases, the Court has recognized individuals as victims who have not yet suffered harm but would likely do so without judicial intervention. This approach reveals a cautious openness to broader standing, though the Court generally resists actio popularis (generalized public interest standing). Indeed, the Court has granted this status to persons who have not yet suffered from the violation of their right but who would certainly be victims of it without its intervention⁶⁵, as well as to others who could, no doubt, suffer from it, revealing a kind of recognition of the actio popularis⁶⁶. The Court endeavours to maintain a very delicate balance between ensuring effective protection of the rights contained in the Convention; Without granting, through the criteria of victim status, to lean, de facto, towards the acceptance of actio popularis.⁶⁷ In G.C. Burden v. the United Kingdom, the Court recognized that the existence of a law or practice, even in the absence of an individual act of enforcement, may present a sufficiently real risk of violation for individuals to justify their status as victims.⁶⁸ However, he does not accept that the motions are based solely on conjecture.⁶⁹

Contrary to a logic tending to limit the flow of individual applications, the Court has opened up the referral to a greater number of applicants, through the concept of victim and the power of representation. In addition, requests for interim measures should be given priority, on the basis of its Rules of Procedure, if serious violations of fundamental rights are likely to occur.

The only crucial factor common to these very rare recognized and legitimate cases of "highly exceptional circumstances"⁷⁰ is an apparent departure from the mandatory requirement that the alleged victim must have been "directly affected" in the past by the measure in question, or, to the extent that it applies in cases of positive obligations, by the inaction of the respondent government.⁷¹ Following the implementation of the Paris Agreement, Switzerland has not adopted a nationally determined contribution to combat its greenhouse gas emissions.⁷² To prevent an excessive influx of climate litigation, the Court adopts a strict approach: applicants must show that they are “sufficiently affected” by the alleged violation, both personally and substantially. The harm must not be too remote, and generalized or extraterritorial claims are typically excluded. The Court’s dynamic interpretation of victim status is shaped by evolving case law, but it remains cautious in expanding access to justice, especially for collective actions or NGOs acting in the public interest.

In short, the absence of explicit reference to this right in the European Convention on Human Rights and its Protocols can be explained by the historical context of their adoption, at a time when environmental issues were not yet at the forefront of international concerns. Thus leaving a legal gap that the European Court of Human Rights is trying to fill through a dynamic interpretation of existing rights, this indirect approach, although limited, makes it possible to protect individuals from environmental damage by linking them to fundamental rights recognized by the Convention.

2.The inclusion of climate rights in the ratione materiae of the Convention: a comprehensive catalogue for an effective climate litigation

As explained above, environmental and by extension climate rights are not enshrined as such in the Convention.⁷³ For the judges of the ECHR, it was therefore a question of linking and interpreting the rights enshrined in the Convention to enshrine protection for a healthy environment. In concrete terms, the Court has adopted a so-called "indirectly" approach: it examines whether an environmental attack also infringes one or more rights guaranteed by the Convention. For example, serious pollution of a living environment may be considered as an infringement of the right to respect for private and family life (Article 8), as in the case of López Ostra v. Spain. Similarly, a major environmental risk can be analysed from the perspective of the right to life (Article 2), as in the case of Oneryildiz v. Turkey. The right to property (Protocol No. 1), freedom of expression (Article 10) and the right to an effective remedy (Article 13) are also used in certain climate disputes.

This method allows the Court to adapt the Convention to climate issues without creating an autonomous right to a healthy environment. It thus guarantees indirect but real protection for litigants in the face of environmental damage, while respecting the initial text of the Convention. However, this approach has limitations: it assumes that the applicant can demonstrate that the environmental damage directly infringes a recognized fundamental right, which explains the difficulty of access to climate justice for individuals.⁷⁴

In summary, the inclusion of climate rights in the scope of the Convention is based on a dynamic and evolving interpretation of existing rights, allowing the ECHR to respond, on a case-by-case basis, to the new challenges posed by climate change. However, the Committee of Ministers of the Council of Europe notes that environmental damage is increasingly an obstacle to the realisation of first- and second-generation human rights at the individual level and in society as a whole, thus undermining the common values that the Council of Europe is mandated to defend.⁷⁵ These damages are recognised in national environmental litigation procedures, both in Europe and beyond. There is a compelling reason to strengthen and update the Council of Europe's legal arsenal and to link actions at national level to commitments under relevant international treaties, such as the UNFCCC (United Nations Framework Convention on Climate Change) and the Paris Agreement.⁷⁶

At the level of the European Convention on Human Rights, the Court's practice highlights the use of five distinct rights related to the protection of climate rights by litigants. The legal arsenal, or catalogue as favoured in this article for an effective remedy, is composed of the right to life, property, speech, privacy and to a fair trial or an effective remedy.

2.1.Right to life

The Court recalls that the Convention imposes an obligation on the State to take the necessary measures where the risk to the life and well-being of persons is proven, immediate and known to the State.⁷⁷

Although the Court interprets the Convention very broadly, it cannot rely on an environmental text. The protection of the environment by the Convention can therefore only be indirect, through rights recognized in the Convention, i.e. through protection against ricochets . The Court therefore defines the right to the environment through the rights recognized in the Convention.

The Court also accepts the possibility of examining whether damage to the environment may constitute an infringement of the right to life, enshrined in Article 2 of the Convention. For example, in the Grand Chamber's judgment in the case of Oneryildiz v. Turkey⁷⁸, the applicant complained that a methane explosion in a landfill where he lived with his family had resulted in the death of nine family members. The Court concluded that the right to life had been violated by the Turkish State, which should have taken all necessary measures to protect the lives of persons under its jurisdiction. This is the landmark case in which the Court established a link between the right to life and the right to the environment.⁷⁹

2.2.Right to property

The Court sees the link between the right to the environment and the right to property. The latter is not incorporated into the Convention, but is included in Additional Protocol No. 1, according to which every natural or legal person has the right to the peaceful enjoyment of his property.⁸⁰ This right can be invoked when a person's property and environment have been unjustifiably violated.

In the case of Oneryildiz v. Turkey⁸¹ , the Court recognized that by failing to take adequate measures to limit environmental damage, the State had harmed the property of the victims, even though it had been implemented illegally. Property therefore deserves to be protected regardless of its status. However, this should not be taken to mean that the Court recognizes a right to be maintained in a pleasant environment: it is currently impossible for a plaintiff to invoke an infringement of his property by alleging an infringement of his immediate or global environment.⁸²

In addition, the Court has held, in particular in the case of Fredin v. Sweden⁸³, that the protection of the environment is a matter of public interest, which may justify the deprivation of property⁸⁴. Arguably, the plaintiffs were not formally expropriated. Moreover, the consequences of the withdrawal were not serious enough for there to have been a de facto expropriation. For example, in the absence of an impediment to any reasonable use of the land; The plaintiffs retained ownership of the gravel resources. It left them the possibility for them to continue to exploit them, the exploitation of which was made uncertain by the amendments to the 1973 law. In a note dated 14 May 1984, the State authority (prefecture) indicated two possible ways of interrupting the exploitation of the gravel pit: to stop the extraction as soon as possible, because of the degradation of the environment and the existence of sufficient gravel resources in the area, or to continue it for a few years, which would restore the site to a natural appearance. Given that a certain level of flexibility was granted to litigants by the State, the Court did not consider the deprivation of property to be disproportionate. It must be inferred from this that a measure taken by the State is capable of restricting the right to property if it serves the protection of the environment.

2.3. Freedom of speech

Another fundamental right that is increasingly invoked in the context of the environment is freedom of expression. Indeed, states cannot impose censorship on an issue of environmental interest.

In the case of Mamère v. France⁸⁵, the Court noted that the conviction of Mr Mamère for complicity in the defamation of a public official constituted an interference with the exercise of his right to freedom of expression guaranteed by the Law of 29 July 1881 on the freedom of the press. In the present case, the applicant, an elected politician, had been found guilty of defaming a senior official of the Central Service for Protection against Ionizing Radiation in a television programme in which the accident at the Chernobyl nuclear power plant had been mentioned. The Court emphasises here that the applicant's remarks concerned matters of general interest, namely the protection of the environment and public health. The Court emphasised that, in view of the extreme importance of the public debate in the course of which the remarks had been made, the applicant's conviction for defamation could not be regarded as proportionate and therefore as "necessary in a democratic society".⁸⁶ The Court thus concluded that there had been a violation of Article 10, affirming once again that the environment is a matter of general interest, and showing that everyone has the right to communicate on this subject, but also to be informed of the social debates that concern him.⁸⁷

In addition, States have an obligation to inform individuals about environmental issues themselves. In the case of Tatar v. Romania, referring to national and international law, the Court affirmed that the Romanian State had an obligation to inform the persons concerned of the consequences and risks of industrial activities for the environment.⁸⁸ Indeed, a significant quantity of contaminated cyanide (100,000 m3) was discharged into the tailings water. The company that operated the gold mine has not ceased operations. Similarly, after the disaster, the Romanian authorities should have informed the population concerned of the consequences of this accident and of the measures taken to prevent further accidents. Similarly, in the case of Fadeyeva v. Russia⁸⁹, in the face of an environmental situation recognized as worrying, the Court reaffirmed the principle of the public's right of access to environmental information. ⁹⁰ In this case, the Severstal steel plant belonged to the Ministry of Metallurgy of the Russian Soviet Federative Socialist Republic (RFSSR). It was – and still is – the largest steel company in Russia, providing, directly or indirectly, jobs for around 60,000 people. In order to limit the areas where the pollution generated by steel production was likely to be excessive, the authorities had demarcated, for the first time in 1965, a buffer zone – "the health safety zone" – around the site where the steel installations were located. A decree of 10 September 1974 issued by the Council of Ministers of the RFSSR required the Ministry of Metallurgy to relocate, by 1977 at the latest, the inhabitants of the health security zone who resided in sectors Nos. 213 and 214, which was not done. In 1990, a programme on "Improving the quality of the environment in Cherepovets" was adopted by the RFSSR government. He said that "the concentrations of toxic substances in the city's air are several times higher than acceptable standards" and that the death rate of the residents of Cherepovets is higher than average. On 3 October 1996, the Government of the Russian Federation adopted Decree No. 1161 on the Special Federal Programme "Improvement of the Quality of the Environment and Public Health in the Cherepovets Regions" for the period 1997-2010. The decree also stated that "the environmental situation of the city results in a continuous deterioration of public health". According to a letter from the Mayor of Cherepovets dated 3 June 2004, the Severstal steel plant was responsible for more than 95 per cent of the industrial emissions measured in the city's air in 1999. The State had access to this information but did not disclose it and did not relocate the complainant to a safer area, as the State has held by successive national decrees.

2.4.Right to privacy

The first of the rights alleged to have been violated by the applicants is the right to respect for private and family life. The Court regularly recognises this right by invoking the right to respect for private and family life, enshrined in Article 8 of the Convention. According to this article, " everyone has the right to respect for his private and family life, his home and his correspondence ".⁹¹ The main purpose of this article is to protect the individual against arbitrary interference by public authorities, but also includes obligations for the State to guarantee respect for the private or family life of individuals.⁹²

The Court therefore considers that environmental damage may constitute a failure by the State to respect this right, as illustrated by the case of López Ostra v. Spain. ⁹³ The question arose here as to whether the nauseating and permanent odours emanating from a defective sewage treatment plant constituted a violation of the Convention on the rights of the litigant. The Court has ruled that serious damage to the environment can affect people's well-being and deprive them of the enjoyment of their homes in a way that infringes on their private and family life. It also clarified that this principle applies even if the nuisance in question does not have the effect of endangering the health of the person, since the mere interference with the enjoyment of the home is sufficient to qualify as a violation by the State. As the right to housing is recognized by the Convention, the State must comply with it, and thus protect property from the environment.

In addition, in its judgment in Tatar v. Romania⁹⁴, the Court also affirmed a violation of Article 8 of the Convention. In this case, he does not blame the State for direct facts, but for a lack of regulation, which could harm the environment. In this case, a leak of polluted water had occurred as a result of an accident at a gold ore extraction site, polluting nearby rivers and killing living organisms in those rivers. The Court examined the case from the perspective of Article 8 of the Convention, which, according to the Court, " may be applicable in environmental matters whether the pollution is directly caused by the State or whether the State's responsibility arises from the lack of adequate regulation of private sector activity ".⁹⁵ In line with the evolution of its case-law, the Court has emphasised here that " where a person is directly and seriously affected by noise pollution or other forms of pollution, a question may arise from the point of view of Article 8 ".⁹⁶ As these nuisances can deprive individuals of the enjoyment of their homes, their private and family life is infringed. The Court therefore concluded that the Romanian authorities had failed in their obligation to assess the risks of the activity and to take measures guaranteeing the rights of individuals to respect for their private life and their home and, more generally, to the enjoyment of a healthy and protected environment. The latter right is defined independently of the others: the Court expressly recognizes the right of everyone to enjoy a healthy environment.⁹⁷

2.5.Right to a fair trial and an effective remedy

Finally, the right to the environment can be considered through different procedural rights granted to individuals, such as Article 6 of the Convention, which guarantees the right to a fair trial, and Article 13⁹⁸, which guarantees the right to an effective remedy. Thus, under Article 6 § 1⁹⁹, applicants may invoke the right to have their case heard within a reasonable time.

This was the case, for example, in the case of Zimmermann and Steiner v. Switzerland¹⁰⁰. The parties were seeking a ruling on whether the length of the proceedings was considered reasonable. The Court answered in the affirmative the complaint based on the length of the procedure for compensation for damage caused by air and noise pollution caused by an airport close to the homes of individuals.

The issue of lack of access to jurisdiction has also been raised quite frequently in environmental matters, for example in the case of Arrondelle v. the United Kingdom.¹⁰¹ In the present case, the applicant claimed that her exposure to the intensity, duration and frequency of noise from an airport and a motorway located not far from her home had affected her privacy and constituted a violation of Article 8 of the Convention; although the domestic law of the time did not provide for the possibility of taking legal action against the nuisance caused by civil aviation, on landing and departure.

The restrictive interpretation of the Convention, which some scholars attribute in part to a lack of interest in environmental issues, resulted in the use of the "ricochet" interpretation to grant the rights it encountered to adapt more dynamically to the challenges posed to the Court, in light of the varying imperatives facing our society.

3.Conclusion

Ultimately, the European Court of Human Rights assesses the rights granted to the environment in an evolving way. Indeed, he expands them as and when the cases are submitted to him. The recognition it gives to the environment is more and more frequent, although variable, is becoming more and more precise, which makes it possible to erect it into a freedom falling within the scope of the Convention on Human Rights.

The Court raises the hopes of some environmental defenders, but also their disappointment. The Court's contribution to the implementation of international environmental law remains limited, due to the characteristics of this branch of law; However, it makes an indirect contribution in this area. The Court thus specifies the environmental extensions of the rights guaranteed by the Convention. The decline in the Court's victim status is a definite step towards the effectiveness and development of climate justice. A "Praetorian Environmental Code" is thus tending to emerge. Accordingly, the Court recognizes that the right to the environment is linked to the fundamental freedoms protected by the Convention.

Its recent developments constitute an increasingly precise contribution to the implementation of international environmental law. In its judgment in Fredin v. Sweden¹⁰², the Court recognized for the first time that it was aware that today's society is increasingly concerned about the environment. The countries that make up the European Community first wondered whether it was not possible to protect environmental rights in the same way as human rights, because they are very anthropocentric and not nature-centered. However, this was never done; As no European right to the environment is recognised as such, the protections granted are only indirect.

The existence of this right is increasingly recognized by the Court by referring to human rights as a fundamental freedom in their application. The case of Duarte Agostinho and Others v. Portugal and others, is another example of the unclear accessibility for individuals to bring climate-related cases before the Court. Indeed, this case has become emblematic of the climate litigation before the ECHR. In this case, six young Portuguese people brought a case against 33 European states before the Court, arguing that their climate inaction violated their fundamental rights, including the right to life and respect for private and family life. The Court ultimately found the application inadmissible, mainly on grounds of territorial jurisdiction and admissibility: it considered that the applicants could not invoke the extraterritorial responsibility of all the respondent States, and that the causal link between national climate policies and the alleged harm was not sufficiently direct. This decision illustrates the difficulty of access to climate justice for individuals at the European level: the Court adopts a restrictive approach to admissibility, requiring applicants to demonstrate that they are directly and personally affected by the contested policies. The "unclear accessibility" referred to here refers to the uncertainty for litigants as to whether their application will be examined on the merits, due to the strict criteria applied by the ECHR in terms of jurisdiction and victim status.¹⁰³

This can be explained by the Court's desire to continue to analyse the claims submitted to it in a casuistic and restrictive manner. Climate litigation may be a growing trend, but climate justice is not.