Massive Pollution, States’ Positive Obligations and Remedies Critical Appraisal of the European Court of Human Rights’ Cannavacciuolo et al. v. Italy Judgment
By Hélène Tigroudja
Published on 23 February 2025
In a very detailed judgment of almost 200 pages and more than 500 paragraphs, a Chamber of the European Court of Human Rights (the ‘Court’) elaborated on the States’ positive obligations to protect life under Article 2 of the European Convention of Human Rights (‘ECHR’) in case of long-standing and ‘ongoing diffuse pollution’ (para. 299) caused by waste dumping and in particular, ‘a large-scale practice of burying toxic, industrial, and generally hazardous waste.’ Despite the significance of the Chamber’s judgment, this post aims to highlight some inconsistencies and room for improvement in how the Court addressed massive pollution, especially in relation to its hermeneutic tools, its approach to the quality of victims, and the suspension of the decision on remedies.
Factual background and findings of the Court
The case, Cannavacciuolo et al v Italy, started as far back as the 1980s, in the Province of Naples (para. 300). The judgment is based on a meticulous gathering and analysis of multiple domestic reports showing illegal waste dumping practices of extreme gravity during many years (paras. 9-101). The judgment also refers to the 2007 and 2010 judgments of the Court of Justice of the European Union on the ‘waste crisis’ in Italy and draws on its own previous case-law, such as Di Sarno v. Italy. Against this background, the Court had ‘to determine whether, given the circumstances of the case, the State did all that could have been required of it to prevent the applicant’s life from being avoidably put at risk’ (para. 379). It iterated (para. 381) that,
‘As to the choice of particular operational measures aimed at the protection of citizens whose lives might be endangered by the inherent risks posed by dangerous activities, […] the choice of means is in principle a matter that falls within the Contracting State’s margin of appreciation […]. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres […].’
In the present case, the Court concluded that Italy had an obligation to protect the life of the applicants under Article 2 ECHR (paras. 383-393). In particular (para. 395),
‘[…] the authorities were, first and foremost, under a duty to undertake a comprehensive assessment of the pollution phenomenon at issue, namely by identifying the affected areas and the nature and extent of the contamination in question, and then to take action in order to manage any risk revealed. They were further expected to investigate the impact of this pollution phenomenon on the health of individuals living in areas affected by it. At the same time, the authorities could have reasonably been expected to take action to combat the conduct giving rise to the pollution phenomenon, namely the illegal dumping, burying and incineration of waste. The authorities were further under an obligation to provide individuals living in areas affected by the pollution phenomenon with timely information enabling them to assess risks to their health and lives.’
Examining the measures adopted by Italy to face this “waste crisis” (paras. 398-458), the Court considered the “delay in taking action to be unacceptable” (para. 461) and that, although the facts were clearly known by the authorities long before the 2010s (para. 461),
‘[…] prior to 2013 the measures to address the pollution phenomenon were fragmented at best, and that no meaningful efforts to approach the problem in a systematic, comprehensive, and coordinated manner can be detected.’
It therefore concluded that Italy had breached its obligation under Article 2 ECHR. It did not examine the claims regarding the alleged lack of protection of health and well-being (Article 8 ECHR) and the alleged lack of access to effective remedies (Article 13 ECHR).
Opening the hermeneutics tools: the missed opportunity of a judicial dialogue with the African Court on Human and Peoples’ Rights
The Court referred to General Comment No. 36 on the Right to Life adopted by the United Nations Human Rights Committee (‘HRCttee’). It also referred to the HRCttee’s Views in Caceres v. Paraguay (2019), in which the HRCttee elaborated on the State’s obligation to protect life in the context of extensive use of pesticides (Article 6 of the International Covenant on Civil and Political Rights).
However, an important missing reference is the judgement of the African Court in Ligue Ivoirienne des droits de l’homme v. Côte d’Ivoire (for a comment, see here), dealing with massive dumping of toxic waste by private actors, and the grave pollution it triggered. In this 2023 judgment, the African Court analyzed the grave and harmful consequences of such illegal activities on the health and life of the population in Abidjan and its surroundings and the grave failures of the State to live up to its duty to protect them against the illegal activities of private companies. Although the factual background is different, the legal questions raised were very similar and the absence of any reference to this African judgement is hardly understandable.
If the European Court is more willing to quote and use the practice of the UN HRCttee, the Inter-American Court, or other human rights bodies, reference to the rich jurisprudence of the African Commission or African Court (or of any subregional organ such as the Economic Community of West African States (‘ECOWAS’) Court of Justice) is almost nonexistent in its practice. There might be several reasons for this absence of cross-reference to the African organs’ jurisprudence. One reason could be the deeply rooted self-perception of the European Court as the most sophisticated and developed human rights system, which can educate other systems but not be educated by them. It took several years before the Court acknowledged its shortcomings in dealing with grave and massive violations of human rights and the need to take inspiration from the Inter-American Court’s case-law. However, to a large extent, the African system is still (wrongly) considered as too embryonic for being used as a potential aid to interpreting the ECHR. Unpacking the colonial stereotypes behind this European hermeneutics would deserve a more thorough analysis and exploration. Nevertheless, in the present case, we will see in the coming sections that it could have usefully guided the Court to address both the quality of the victim issue and the remedies’ part.
Lack of quality of victims for associations in massive pollution cases: Fragmentation of procedural treatment of environmental matters
In their individual opinion, Judges Krenc and Serghides rightly criticized the inconsistent approach to the notion of ‘victim’ (Article 34 ECHR) in the present case. In its judgement, the majority of the Court considered that the conditions set out by the Grand Chamber in the 2024 judgment in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland for granting the quality of victims to associations were not met due to the specificities of climate change. However, as stressed by Judge Krenc, it is artificial and potentially dangerous to make a distinction based on the origin of the alleged violations of rights, whether it is due to climate change, pollution or any other activities detrimental to the environment. In the present case, the facts revealed long-standing illegal practices with large-scale and ongoing consequences on the lives of individuals. Therefore, the Court could have drawn on the approach adopted in its 2024 judgment (paras. 489-503), but also on the African Court’s stance in the abovementioned case. The African precedent perfectly illustrates that when massive pollution is at stake, it is anachronistic to stick to an individualistic definition of the quality of victims. The Lopez Ostra v. Spain (1994) paradigm, where the harmful consequences of pollution on ECHR rights were individualized, must be revised by the European Court. At the domestic level, victims’ actions are more impactful when they create associations to defend their rights and, therefore, these associations must be granted access to the European system. This is also the lesson acknowledged by the Court in the climate change case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. And there would be no legal reason not to apply the same approach to massive pollution cases. The present difference of procedural treatment of climate change and massive pollution claims could, in addition, be detrimental because it implies a fragmentation in the procedural treatment of environmental matters. Quoting again Judge Krenc, the right to a healthy environment is at stake in climate change and pollution issues, so the procedural conditions to lodge a complaint before the European Court for the former should apply to the latter.
Suspension of the decision on remedies: aggravating the delay in the treatment of the victims’ requests
Having concluded the violation of the right to life, the Court decided to apply the ‘pilot-judgment’ proceeding under Article 46 ECHR and to recommend general measures to be applied in a 2-year time-limit to address the structural problems identified in the judgment (paras. 487-503). However, regarding the remedies (Article 41 ECHR), the Court laconically considered that the matter was not ‘ready for decision’ (para. 507) and would ‘depend on the Committee of Ministers’ assessment of the authorities’ response to the deficiencies identified and the remedial measures recommended under Article 46 in the present judgment’ (para. 508).
This procedural treatment of the remedies claims is not fair to the victims. The complaints were lodged before the Court between 2014 and 2015. For some of them, it took up to five years before being communicated to Italy. It means that the judgment was delivered more than ten years after the registration of the complaints and the victims will have to wait a minimum of two years before resuming the discussion on the remedies.
In a case dealing with grave violations of the right to life, including the health of the applicants suffering from severe diseases, where the Court rightly affirmed Italy’s ‘delay in taking action to be unacceptable’ (para. 461), one might have expected its treatment in priority and a rapid determination of the remedies. In this regard, the African Court’s judgment mentioned above (paras. 201-259) is of critical importance and could inspire the determination of the European Court in the (near) future. Based on Article 27 of the Protocol to the African Charter establishing the African Court on Human and Peoples’ Rights, the African Court ordered, inter alia, that Côte d’Ivoire had to establish a compensation fund (para. 212) for material damages as well as non-pecuniary measures, such as setting up a list of all victims of pollution (para. 234), rehabilitation measures, guarantees of non-repetition (paras. 244-249), and an administrative independent mechanism to monitor environmental matters (paras. 253-255). The added value of the African approach to remedies is to provide guidance on how massive pollution violating the rights of a significant and unknown number of victims can be properly addressed, striking a balance between individual and collective measures, and pecuniary and non-pecuniary remedies.
In 2025, the Committee of Ministers of the Council of Europe is expected to decide on the potential formal recognition of the right to a healthy environment within the European system, in order to fill the gap with other regional and universal mechanisms (for the relevant material: here). The Cannavacciuolo et al. judgment consolidates the acquis in terms of positive obligations of States to prevent harmful consequences of pollution on the right to life and to mitigate them. However, it also blurs the Court’s approach to environmental matters and tends towards climate-change exceptionalism, separated from other environmental questions. This creates unnecessary subcategories of victims and fragmentation in the regime of States’ obligations. Hopefully, the much-awaited advisory opinions of the ICJ and the Inter-American Court might contribute to clarifying these complex legal questions.
Professor Hélène Tigroudja is a Visiting Professor of Public International Law at CIL – NUS and a Member of the UN Human Rights Committee
(Views are personal and do not engage the UN)