Peru’s Constitutional Tribunal found that residents of two impoverished settlements were living in a polluted, unsanitary environment that violated their constitutional rights, compelling defendant government entities to rectify the situation that put at risk residents’ health.
Residents of two impoverished residential communities filed a complaint against the regional government of Loreto, regional health department, provincial municipalities of Maynas and Punchana, and the social welfare agency of the region of Loreto. The complainants alleged that there was a lack of essential public services in the provision of potable water and trash collection, which had led to the proliferation of contagious disease. The Constitutional Tribunal found that the unsanitary situation violated the constitutional rights to: a balanced and adequate environment, potable water, life, health, and physical integrity, adequate housing, public services, and well-being.
The Tribunal relied on the following facts to analyze the alleged violations:
First, the Tribunal found a violation of the right to a balanced and adequate environment, which is recognized as a fundamental right in Article 22 of the Political Constitution of Peru. The Tribunal relied on Article 2, Subsection 22 to determine that the content of the right included the following elements: 1) the right to enjoy the environment, and 2) the right to the preservation of this environment.
Second, the Tribunal found a violation of the right to potable water. The Tribunal found this right by reading the content of Law 30588, which recognizes the right to access water as a constitutional right, in conjunction with Art. 58 of the Constitution, which obliges the state to provide public services. The Tribunal also referenced the General Observation 15 (2002) on the right to water by the Committee on Social, Cultural, and Economic Rights of the United Nations.
Next, the Tribunal began its analysis of the rights to life, health, and physical integrity under Article 12 of the International Covenant on Economic, Social and Cultural Rights. Article 12 requires that party states adopt a set of measures to full effectiveness of the right to health, since every person has the right to enjoy the highest possible level of physical and mental health. The State is obliged to adopt measures that prevent violations of the right by third parties, to satisfy the right by adopting measures that give it full effectiveness, and to provide goods and services effectively.
In finding that the plaintiffs’ right to housing and access to public services had been violated, the Tribunal referenced jurisprudence from the US and South Africa and noted that the Tribunal’s jurisprudence had previously recognized housing as a fundamental right, as indicated in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. For the right to housing to be satisfied, the following elements must be present: a) security of tenure, b) availability of services and infrastructure, c) reasonable expenses that do not compromise the satisfaction of other basic necessities, d) a habitable, affordable home that provides access to employment and social services, g) a home that permits expression of cultural identity.
Lastly, the Tribunal found a violation of the right to free development and well-being under Article 2 section 1 of the Peruvian Constitution. This right does not imply that the state must assure that all people accomplish what they desire; for the right to be fulfilled, the person must have attained a quality of life that permits them to assure their wellbeing and that of their family. The State, therefore, must at least promote minimum conditions necessary and assume the duty of removing obstacles to the fulfillment of this right. Here, the plaintiffs’ living conditions prevented them from exercising their right to well-being. Considering the risks and problems related to the lack of basic public services, plaintiffs were unable to attain a quality of life that assured their own wellbeing and that of their families.
Considering the rights that had been violated, the Tribunal declared an unconstitutional state of affairs. It noted that the violations to the Constitution constituted a structural problem that was present in different impoverished communities throughout the region. The gravity of the problem led the Tribunal to order that the defendants:
The government and relevant state bodies were required to stop dumping the untreated waste within 30 days of the decision to comply with the orders of the Tribunal, and were given 45 days to submit an action plan to the enforcement court and Ombudsman for the more systemic changes, such as the construction of the canal system. The civil court of Loreto and the Ombudsman were responsible for supervising the execution of the defendants’ action plan to address the various violations. Despite this, the enforcement of the decision has remained complex, with the Tribunal needing to issue a further order in June 2024 requesting that the government and its ministers share information with the enforcement court regarding institutional issues that are preventing full implementation and compliance with the July 2023 order, along with a request for information on their current capabilities to be able to rectify the unconstitutional situation plaguing their citizens.
Within Peru, this is the first case where the Tribunal has recognized and demanded the need for structural change to create access to clean water and counter environmental pollution. Within the context of international law, it adds to increasing case law finding that there is a human right to a healthy environment (deemed a “balanced and adequate” environment in this case). This case is also an example of a court ruling in favor of impoverished communities seeking to better their living conditions through the legal system. Here, their use of the legal system vindicated their rights, relying on international and domestic jurisprudence to do so. The case resulted in an enforceable ruling intended to improve the conditions that led to the infringement of their rights.
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