For more than two decades, the interrelation of the enjoyment of human rights and a healthy environment has been recognised in the Inter-American Human Rights System. This shows that the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights have been willing to interpret the legislative framework — consisting primarily of the American Declaration of the Rights and Duties of Man (the ‘American Declaration’) — in light of changing conditions. Further, in the case of Bámaca-Velásquez v. Guatemala (2000), the Court highlighted the importance of intergenerational justice by stating that the concept of ‘solidarity’ involves past, present and future generations, which also challenges the individualism that has dominated human rights protection (at [23]).
In the Inter-American human rights system, access to protection regarding the right to a healthy environment of individuals and communities is highly possible, since victims, third persons, or NGOs can bring cases before the Commission and Court. Their jurisprudence has mainly been developed in the context of claims of the right to property of indigenous peoples in the case of environmental destruction, which is an important step in the development of a broader approach for general interest (see, for example, the cases of Saramaka People v. Suriname and Mayagna (Sumo) Awas Tingni Community v. Nicaragua).
In particular, the Inuit petition, which was submitted to the Commission in 2005, changed the dialogue around climate change and its interrelation with human rights. In that case, the petitioners argued that the lack of policy for protecting them from greenhouse gas emissions amounted to a violation of their human rights. However, the Commission refused to proceed with the claim, reasoning that the petitioners failed to provide sufficient information on whether the claim was within the scope of the rights protected under the American Declaration. Nonetheless, after that case, a new understanding took shape in the region regarding a healthy environment and its relationship with human rights.
In 2008, the Organization of American States (OAS) – which was established at the same meeting that produced the American Declaration – recognised the impacts that climate change has on human rights. Later, in 2016, OAS published a comprehensive report on how climate change-induced impacts affect human rights, including the right to a healthy environment, the right to life, and the right to water and food. Furthermore, after receiving a massive number of cases related to this issue, the Inter-American Commission called for the Member States to advocate for human rights while negotiating the Paris Climate Change Agreement.
However, effective usage of the legal framework did not begin until 2018, when Colombia submitted a groundbreaking request to the Court asking for an Advisory Opinion regarding the degradation of the environment that might arise by a state’s open sea activities in the Caribbean Sea. Article 11 of the San Salvador Protocol to the American Conventionexpressly acknowledges the right to live in a healthy environment, and imposes a duty on states to protect, preserve and improve the environment. Article 26 of the American Convention provides a jurisdictional path for individuals to legally enforce the full realisation of this socio-economic right. In its Advisory Opinion, the Commission considered a healthy environment as key to the effective enjoyment of other human rights, including the right to life and the right to not be forcibly displaced (at [38], [47], [55], [59], [66]). Consequently, the Court recognised this as a ‘fundamental right for the existence of humankind’ which gives rise to an obligation of states to protect, even extraterritorially where the state exercises ‘effective control’ (at [59], [104]).
In its latest judgment, Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina, the Court analysed the human right to a healthy environment and found Argentina responsible for violating Indigenous peoples’ human rights (including the right to a healthy environment, to cultural identity, and to adequate food and water) through its failure to recognise and guarantee their collective rights to the land, and to protect the land from illegal logging and other detrimental activities (at [289]). While the earlier Advisory Opinion following Colombia’s request was non-binding, the later judgement against Argentina is binding.
Regarding the right to a healthy environment, the Court stated that:
- States have obligations to respect the right to a healthy environment and prevent violations of that right;
- States’ obligations extend to the private domain to prevent and protect individuals from third parties infringing upon their right to a healthy environment;
- To fulfill these obligations, States must build adequate systems to check and control the activities of private individuals and public entities; and
- Overall, States must take into account vulnerabilities in light of the principles of equality and non-discrimination (at [207-209]).
Although the right to a healthy environment is starting to take shape in both regional and international dialogues, the process is still slow compared to the imposed danger on the sustainability of life. On the other hand, the progressive and victim-centered standing of the Inter-American Human Rights System provides various legal tools and paths that can be used by victims or NGOs to pressure and urge states to respect the right to a healthy environment and take necessary measures. Overall, it provides lessons that can also be taken into consideration at the international level.
Merve Kilic holds an LLM degree in Human Rights and an MA degree in European Law. She is also a registered lawyer at Istanbul Bar Association.