Portillo Cáceres and Others v. Paraguay, CCPR/C/126/D/2751/2016, Communication 2751/2016
A campesino farming family in Paraguay petitioned the United Nations Human Rights Committee claiming the mass use of agrotoxins by nearby large agrobusinesses had poisoned many local residents and led to the death of their relative, Ruben Portillo Cáceres. The Committee found violations of the family members’ rights to life; to privacy, family, and home; and to an effective remedy, noting that the state had failed to adequately enforce environmental regulations and did not properly redress the resulting harms.
On January 6, 2011, farmer Ruben Portillo died in transit from a hospital after experiencing severe nausea and fever, allegedly because of his intake of agrochemicals (pesticides and insecticides). Twenty-two other members of Colonia Yeruticreadaen (“Colonia”), in the Curuguaty District of Paraguay, were affected by similar symptoms at the same time. On January 13, 2011, a group of farmers, residents filed a criminal complaint with the Paraguayan prosecutor's office alleging that the large-scale soy farmers whose land bordered the Colonia had used agrochemicals in violation of environmental norms and caused the illnesses and Mr. Portillo’s death. The farmers also filed an amparo suit claiming constitutional rights violations, alleging that the agrochemical use also violated their rights to life, to a healthy environment, and to adequate food, water, health, and quality of life.
The Colonia is inhabited by small-scale farmers who are dedicated to campesino agriculture for their own consumption and sale. Since 2005, the land surrounding the Colonia has seen some of Paraguay's biggest agribusiness expansion, principally genetically-modified soy that requires extensive agrochemical fumigation. Paraguayan law requires farmers who use pesticides to establish buffer zones around bordering farms and water sources, standards that the agribusinesses did not meet. Farmers in the Colonia claimed to have experienced a wide variety of health concerns, including headaches, fevers, stomach issues, and skin sores since the expansion of soy production.
In response to the criminal complaint, Curuguaty District Criminal Court conducted an investigation and named seven farmers whose soy crops bordered the Colonia as potentially responsible. Even though the investigation revealed that a well at one of their homes contained prohibited agrochemicals, criminal charges against these seven farmers were eventually dismissed. An autopsy was never performed, and blood and urine tests of affected farmers were never incorporated into the criminal record. Furthermore, the owners and administrators of the two closest soy farms to the affected people were not criminally charged, even though the investigation revealed that they did not follow environmental norms and applied agrochemicals without adequate technical guidance. In 2017, four of those originally charged were charged once more.
The constitutional claim was remanded to the Curuguaty Criminal Court, which found that the Ministry of the Environment and National Plant and Seed Quality and Health Service did not adequately enforce environmental norms, with potentially serious consequences for the health of Colonia residents. According to the complainants in the international case, despite this local judicial finding, the fumigations continued with impunity.
In their 2013 petition to the United Nations Human Rights Committee, the complainants alleged that Paraguay violated their rights under the International Covenant on Civil and Political Rights (ICCPR) to life, physical integrity, and a life with dignity by failing to enforce environmental controls over the fumigations. Furthermore, they alleged that their right to protection from arbitrary and unlawful interference with their privacy, family, and residence, under Article 17 of the treaty, encompassed protection from the intrusion of environmental pollution by third parties. Finally, they claimed a lack of an effective remedy, noting investigative failures such as delays, neglecting to incorporate critical evidence, and avoiding prosecuting certain large farm owners.
The Paraguayan state argued that the ICCPR does not protect the right to a healthy environment, such that the case was inadmissible. The Committee held that the farmers did not allege a violation of a right to a healthy environment. Rather, they claimed rights enumerated under the ICCPR, and the claims were therefore admissible.
The Committee reviewed Paraguay’s contestations of the farmers’ factual allegations. Paraguay argued there was insufficient proof that Mr. Portillo’s death and the other illnesses were caused by the agrochemical use. However, Committee observed that the criminal investigation revealed the presence of banned agrochemicals in a well used for drinking water. Also, Paraguay had failed to perform an autopsy of Mr. Portillo and to incorporate blood and urine samples into the criminal record. The state also never provided evidence showing residents’ blood and urine contained normal levels of the chemicals. In the absence of refuting evidence, the Committee held it could consider the complainants’ allegations to be well-founded. The Committee also noted the widespread documentation of the danger that agrochemical use poses to human life.
The Committee found Paraguay violated the right to life, recalling “its general comment No. 36, in which it has established that the right to life also concerns the entitlement of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death”. It explained that states must take positive measures to confront societal conditions that may threaten life, including environmental contamination, even if these have not yet ended lives. In this case, mass fumigations constituted reasonably foreseeable threats to life. The fumigations threatened the water sources, crops, and animals that the farmers used as sources of sustenance. Furthermore, Paraguay persisted in failing to stop the fumigation, though multiple state entities acknowledged their harmfulness and authorities’ failure to control them.
The Committee reasoned that Paraguay also violated the complainants’ rights to privacy, family, and home under Article 17. The pollution had direct repercussions on the crops, fruit trees, fish, drinking water, land, and other aspects of their lives. Because these farmers depend on their land for their subsistence, their immediate land and surroundings fall within the privacy and residence protections of Article 17. Finally, Article 17 protections are not limited to protection from intrusion. States must also respect the right from reasonably foreseeable threats. As the Committee found, “[w]hen pollution has direct repercussions on the right to one’s private and family life and home, and the adverse consequences of that pollution are serious because of its intensity or duration and the physical or mental harm that it does, then the degradation of the environment may adversely affect the well-being of individuals and constitute violations of private and family life and the home.”
Finally, because Paraguay failed to investigate adequately, to incorporate medical evidence, to prosecute certain parties, to stop the fumigations, and to implement the findings of the internal judicial processes, the state violated the complainants’ rights to effective remedy.
The Committee called on Paraguay to provide reparations to the complainants, specifically an exhaustive investigation; criminal and administrative sanctions; and full reparations for the harm they suffered, including compensation. Paraguay must report within 180 days of the decision on the progress of the measures adopted to fulfill the reparations.
The case is particularly notable for the Human Rights Committee’s recognition of an explicit link between environmental protection and human rights in an individual case, building on the related jurisprudence of regional bodies. The Committee drew on its recent General Comment 36, reaffirming the right to a life with dignity and noting that, “states should take all appropriate measures to address the general conditions in society that may give rise to threats to the right to life or prevent individuals from enjoying their right to life with dignity, and these conditions include environmental pollution.”
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.