Advisory Opinion OC-23/17
At the request of Colombia, the Inter-American Court of Human Rights (IACtHR) issued an advisory opinion regarding the environmental obligations of states that comprise the Inter-American Human Rights System. The IACtHR held that the right to a healthy environment is a fundamental human right and detailed the obligations of states when they have caused or may cause significant environmental harm, including cross-border harm.
Amidst rising international concern about the human rights implications of a trans-oceanic canal in Nicaragua and concerned with implications for the people residing within the Colombian island of San Andrés, Colombia had requested an advisory opinion from the IACtHR in 2016 concerning state obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity.
In the case, the IACtHR addressed Colombia's questions of who can bring a claim about cross-border environmental harm, what rights citizens have related to environmental harm, and what obligations states have in response, under the American Convention, and in light of the environmental obligations established in treaties and customary international law.
The IACtHR reasoned that the enjoyment and exercise of many human rights are profoundly connected to protection of the environment. The IACtHR recognized that the right to a healthy environment is instrumental to the enjoyment of other fundamental rights and defined it as an autonomous human right. The Court highlighted that the right to a healthy environment is recognized expressly in Article 11 of the San Salvador Protocol and should also be considered to be included among the economic, social and cultural rights protected by Article 26 of the American Convention. The violation of this autonomous right to a healthy environment can affect other human rights, most notably the right to life and personal integrity, as well as a range of other rights including health, water, and housing, and procedural rights, such as the right to information, expression, association, and participation.
The IACtHR also explicitly mentioned climate change in the opinion, asserting that the right to a healthy environment is both an individual and collective right that includes current and future generations.
Notably, the IACtHR referenced extraterritorial obligations (ETOs), emphasizing that states’ human rights obligations extend to all people, even those outside of a states’ borders. According to Article 1(1) of the American Convention, states are obligated to respect and guarantee the rights and liberties therein to all persons subject to their jurisdiction. The Court clarified that the term “jurisdiction” in the American Convention is broader than the territory of a State. The advisory opinion provides that a person can bring a claim if they are within the state's territory or outside the border but under a state's authority or effective control, if the state's actions caused environmental damage, and that damage resulted in a violation of a fundamental human right. The IACtHR further elaborated states must cooperate in good faith with other states, which involves notifying, consulting and negotiating with other states whenever the state is aware that an action planned within their territory or under their control or authority may generate significant transboundary environmental harm.
The IACtHR also held that state obligations include the obligation to take measures to prevent significant environmental harm, within and outside of their territories, with "significant" defined as any harm that could result in a violation of the right to life and personal integrity. As preventative measures, states should regulate, supervise, and monitor activities that could cause environmental harm, conduct environmental impact studies when there is a risk of harm, establish contingency plans, and mitigate harm, if it has occurred despite the state's preventative actions.
States are also required to act in keeping with the precautionary principle to protect the rights to life and personal integrity in the event of potential serious and irreversible damage to the environment, even in the absence of scientific certainty.
Moreover, states have procedural obligations, which include guaranteeing access to information related to possible environmental harms, securing the right to public participation in decision-making processes about environmental impact, and ensuring the right to access to justice to enforce state obligations regarding the environment.
Although these obligations were interpreted as applying to the right to life and personal integrity, the IACtHR stated they could still apply to the broad range of rights that are particularly vulnerable in situations of environmental harm.
An advisory opinion by the IACtHR is not a ruling about any legal dispute, and as such, will not be enforced related to any one case. However, the Court has stated that advisory opinions should be taken into account by states exercising their duty to ensure conformity of their domestic legal regime with applicable inter-American human rights instruments (duty to exert conventionality control).
ESCR-Net members Interamerican Association for Environmental Defense (AIDA), Center for International Environmental Law (CIEL), and Centro Mexicano de Derecho Ambiental (CeMDA) were among the organizations that provided input on the legal questions under consideration by the Court.
In this landmark advisory opinion, for the first time, the IACtHR directly upholds the right to a healthy environment and specifically enumerates related state obligations for environmental harm, including cross-border harm. In a related development in 2018, the International Court of Justice decided a significant case on environmental protections, determining the level of compensation in the context of cross-border environmental damages.
The IACtHR’s recognition of the human right to a healthy environment as an autonomous right signifies that in relevant cases, parties no longer need to claim that their right to life, personal integrity, water, or another related right is affected by environmental harm, but can directly claim that their right to a healthy environment is being violated. Moreover, the Court included extraterritorial obligations (ETOs) in its advisory opinion, thus strengthening progressive jurisprudence in relation to the scope of states’ human rights obligations.
The reasoning in this opinion can be used by environmental advocates and potential claimants in future cases related to environmental harms and the human right to a healthy environment. Climate change was also explicitly mentioned in the opinion which provides tools for future climate change litigation by citizens. In an inspiring development, ESCR-Net member, Dejusticia, used the Court's reasoning in their successful climate change litigation on behalf of 25 children and youth against Colombia for failing to curb deforestation in the Amazon.
For decades, decisions from the Inter-American Court have advanced progressive jurisprudence at international bodies across the world. CIEL Senior Attorney Carla García Zendejas remarked that, “this historic precedent will bolster communities seeking justice not only in Latin America but around the world, from communities affected by mining in Colombia to climate justice advocates in the Philippines and beyond.”
In another key development, elevating the importance of recognizing the human right to a healthy environment as the IACtHR has now done, the UN Special Rapporteur on human rights and the environment, David R. Boyd, has urged the United Nations to formally recognize the human right to a healthy environment, commenting that, “as the devastating impacts of pollution, climate change, and extinction accelerate, it becomes essential to use every tool available to address these planetary challenges.”
For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University and the Due Process of Law Foundation (DPLF).
Last updated on: 8 January 2019