Not a Leg to Stand on: Assessing the European Court of Human Rights’ Divergent Approach to Standing in the KlimaSeniorinnen and Cannavacciuolo Cases

[Ignacio Portela Giráldez is a Ph.D. candidate at University of New South Wales (UNSW), tutor of ‘Introduction to Military Ethics’ at UNSW and tutor of ‘International Public Law’ at UTS. His research explores new legal pathways to defend communities living in Special territories of the European Union (Outermost regions and Overseas Countries and Territories) and British Overseas Territories.]

In Cannavacciuolo and Others v. Italy, the European Court of Human Rights (“the Court”) has determined that prolonged State inaction regarding the large-scale environmental pollution caused by widespread dumping and poor waste management in Italy’s Terra dei Fuochi region violates Article 2 (right to life) of the European Convention on Human Rights (“the Convention”). In doing so, however, the Court has departed from recent case law on standing, especially Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. As Kobylarz argues, standing before the Court has had a longstanding problem of lack of foreseeability and normative legitimacy, and now it has become even more uncertain. 

In KlimaSeniorinnen, a case concerning climate change impacts, individual applications by natural persons were dismissed in favour of granting standing to an association (a legal person). In Cannavacciuolo, an environmental case about pollution, the Court took the opposite approach and dismissed all associations in favour of individual applications by natural persons. The reason? The Court considered climate change a diffuse ‘special circumstance’ event, whereas environmental pollution can be traced to specific areas with specific victims. The Court has thus created an unnecessary legal divide between environmental and climate change cases, and by extension an unnecessary division among victims of environmental harm. 

Cannavacciuolo has advanced human-rights based environmental litigation on different fronts, as argued by Katia Hamann here and Helene Tigroudja here. This post, however, focuses on the Court’s inconsistent approach to victim status and ‘locus standi’ on environmental and climate matters. Such inconsistencies stem from the Court’s understanding of climate change as an ‘exceptional occurrence’, and therefore this post argues for an urgent review of the Lopez Ostra criteria. 

Who Is a Victim Before the Court?

Standing before the Court on environmental and climate matters has been a point of considerable contention. Article 34 of the Convention holds that any person, association or group of individuals can file individual applications as long as they are victims of a violation, by any of the contracting parties, of any of the rights enshrined in the Convention and its Protocols. The Court has argued repeatedly that the notion of ‘victim’ must be interpreted in an evolutive manner, to guarantee the effectiveness of the Convention system (Mamatkulov and Askarov v. Turkey, paras. 100 and 122), and always in light of ‘present day conditions’ (Loizidou v. Turkey, para. 71). Extensive case-law, and even the Court’s own Practical Guide on Admissibility Criteria, argue against an excessive formalism in interpreting such terms (Gorraiz Lizarraga and Others v. Spain, para. 38, Monnat v. Switzerland, paras. 33-33, Ziętal v. Poland, paras. 54-59). KlimaSeniorinnen was another step forward in our understanding of the distinction between ‘Individual victim status’ and ‘locus standi’ of individual applicant. This evolution, however, is not linear, and sometimes it takes us to unexpected places.

The Narrow Breakthrough of KlimaSeniorinnen

On 9 April 2024, the Court issued its long-awaited climate change decision. The Court found that Switzerland had violated Articles 8 (right to respect for private and family life) and 6(1) (access to court) of the Convention. Swiss authorities had failed in their positive obligations to mitigate the adverse effects of climate change on lives, health, well-being and quality of life of Swiss citizens. State inaction towards climate change is a human rights violation now, it seems, and KlimaSeniorinnen seemed poised to become the blueprint for new climate litigation. 

Once the initial euphoria settled, however, some caveats became apparent. The first is that the Court set a high threshold to meet the required ‘victim-status’ criteria under the Convention, and thus the cases of the four individual applicants were inadmissible. To be considered victims, individual applicants must prove individually that State’s actions or inactions put them at a ‘high intensity of exposure’ to a risk (KlimaSeniorinnen , para. 527); and there must exist a pressing need to ensure their protection resulting from a lack of measures taken to reduce the harm (Id. paras. 487-488). The bottom line being that the impact on the applicants must be proven individually (Id., para 531).

The second caveat: only the association (Verein KlimaSeniorinnen) was granted locus standi, exclusively in the context of the exceptional circumstances of climate change (Id., paras. 489-503). This conclusion begs the question: If no individual person was considered a direct victim, how could members of an association be collectively considered as such? The Court offered two arguments. First, the association acted on behalf of individuals (present and future) who could be subject to the worst effects of climate change (Id., paras. 525-526). Second, the association could be a potential victim itself. The Swiss Courts failed to consider the association’s complaints at the national level, which amounted to a violation of the right to a fair hearing (Id., para. 623). As such, locus standi was granted to the association, but merely on the basis of a violation of a procedural right – even if its individual members would not have such standing themselves (Id., para. 502). 

The third caveat was that the Court concluded the Swiss Confederation had a narrow margin of appreciation regarding the setting up a domestic regulatory framework to address climate change, but a broad one as regards its effectiveness, as argued here. Thus there is a risk the human rights obligations involved could be discharged by setting up a relatively weak regulatory framework.

The Cannavacciuolo Approach: Climate Exceptionalism and Area-Based Victimhood

In Cannavacciuolo, the Court expressly states that KlimaSeniorinnen was a departure from the Court’s traditional case-law. Climate change represents a “common concern of humankind” that requires “intergenerational burden-sharing, limited to this specific context.” As it is based on climate change’s ‘exceptional circumstances’, the KlimaSeniorinnen approach should not apply to environmental harm derived from pollution (Cavannacciuolo, paras. 220-221). This gravely narrows, or even undermines, KlimaSeniorinnen’s already narrow precedential value.

Building on Yusufeli, the Court found that associations, by their very nature as legal persons, cannot claim to be ‘directly affected victims’ of Article 2 breaches (Yusufeli, para. 41; Cannavacciuolo, para. 216). Similarly, legal entities cannot claim physical integrity (Identoba, para. 45), nor rely on Article 8 for health matters (Greenpeace EV v. Germany), or any issue that, by its very nature, can only be endured by physical persons (Asselbourg case). The Court even ups the ante, stating that only individuals, not associations, can claim to be affected by pollution (Cannavacciuolo, para. 218). It is worth noting that, unlike KlimaSeniorinnen, these associations were granted standing by national courts. 

The Court seems to be aware of the apparent contradiction, arguing the facts in Cannavacciuolo are not ‘exceptional’, in the sense that the harm can be individualised and limited to a specific area. This follows the 1994 Lopez Ostra v. Spain case, requiring that harmful consequences of pollution on rights enshrined in the Convention need always be individualised. It is of little surprise that many authors (here and here) argue for this 30-year-old paradigm to be revised. 

Cannavacciuolo thus contributes to entrenching a case law of ‘climate change exceptionalism’. As Kobylarz argues, this creates unnecessary categories of victims, unnecessary distinction between associations, and takes away procedural clarity. Litigants in environmental cases are now left in the dark as to how to proceed before the Court.

Does This Distinction Hold Up to Scrutiny?

In the Court’s defence, it can be argued that it has taken a pragmatic approach. Such ‘pragmatism’ is justified on grounds that the harm caused by pollution is specific and can be individualised to the population in the designated affected area – in contrast to the diffuse, global nature of climate change effects, which by definition, as seen in KlimaSeniorinnen, cannot be individualised.

The Cannavacciuolo case traced back environmental damage caused by pollution to specific and identifiable victims living in specific areas in the Terra dei Fuochi. This formalistic approach streamlines procedural requirements for individual applicants, who no longer need to prove a direct causal link between their individual circumstances and local pollution (Cannavacciuolo, paras. 390-392). Harm can be circumscribed to a specific group of municipalities that have endured the State’s neglectful waste disposal practices for decades. Every individual living in these ‘specially affected’ municipalities is granted automatic ‘victim status’ and no longer needs to prove any specific ailments caused by the pollution. The appeal to such clear-cut approaches is undeniable, and consistent with the Court’s case-law (Cordella, paras. 100-109). 

For once, a formalistic approach benefits people living in high-risk exposure zones. But what happens to people living in surrounding areas who may have actually suffered negative health outcomes, given the transboundary nature of such pollution? The Court has denied these people standing, at least in connection to the bigger phenomenon of the Terra dei Fuochi. 

Strikingly, as Jasmine Sommardal clarifies here, the Court relied on the establishment of facts determined at the domestic level. As the Court argues, the Italian authorities had the best and most relevant information to make the assessment of which areas are most affected, and it is not for the Court, in its subsidiary role, to challenge that assessment (Cannavacciuolo, para. 247). Effectively, this means that the Italian Government has the power to frame the issue. National authorities can now determine which communities can be granted automatic victim status, regardless of individual health outcomes or the actual harm to the environment itself. 

This needs to be unpacked. Applicants from neighbouring areas, claiming that their health issues were connected to the Terra dei Fuochi phenomenon, were excluded from joining this case (Cannavacciuolo, para. 233). At the same time, a person without any adverse medical outcomes living in the defined area would be considered a victim. This would seem unfair. The streamlined, pragmatic procedural approach is effectively excluding potential victims and sidelining scientific evidence. 

What does this approach mean for the ‘locus standi of’ associations? It is settled case law that associations, even if constituted specifically to defend its members from environmental harm, cannot claim to be victims of a Convention violation (Cannavacciuolo, para. 219; Yusufeli v. Turkey, para. 42). In his individual opinion, Judge Frédéric Krenc points out this apparent contradiction. If it is not for the Court to question a State’s determination of specially affected areas, then why deny standing to an association permitted to represent victims at the domestic level? Barring such associations contravenes subsidiarity. (Individual Opinion of Judge Krenc, para. 11). The Court acknowledges the role associations play in national proceedings but nonetheless finds complaints before the Court should be lodged individually (Cannavacciuolo, para. 219). If pragmatism and effectiveness were an argument in favour of Cannavacciuolo’s approach, the reasonableness of requiring each single possibly affected individual to lodge an individual complaint surely makes out a counterargument. If the objective of such an approach is to avoid the current deluge of applications before the Court, would not allowing associations to gather such complaints increase its effectiveness

In Conclusion, Clarity is Urgently Required

The Court should not keep proceeding with its current ‘case by case’ modus operandi, in which victims are left to take their chances as to whether a rotating panel of judges will consider their case as having ‘exceptional circumstances’ (Valentin Campeanu, para. 112) or requiring ‘special consideration’ (KlimaSeniorinnen, para. 475) permitting standing as associations and not just individual applicants. Foreseeability should be a guiding principle of procedure before any court. The need to individualise harm laid out in Lopez Ostra requires urgent re-examination as regards environmental and climate matters. Judge Krenc calls for the Court to lay down clear and consistent guidelines on standing, and to specify any possible exceptions in general and abstract terms. 

Uncertainty can hinder access to justice for victims. It defeats the whole purpose of the European Human Rights System, the same way an excessively formalistic and rigid approach to the victim requirement undermines the very nature of human rights protection. Applicants should always be clear about how to conduct themselves for their claims to be heard by a Court. Inconsistency leaves victims and associations without standing, and the constant comings and goings and contradicting arguments leaves the Court without a leg to stand on.