Environmental Rights and the Legal Personality of the Amazon Region

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There are two recent, noteworthy developments on environmental rights in Latin America. First, an Advisory Opinion of the Inter-American Court of Human Rights (IACtHR), requested by Colombia. Second, a judgment rendered by Colombia’s Supreme Court, interpreting its international obligations.

The IACtHR’s Advisory Opinion

On 15 November 2017, the IACtHR issued Advisory Opinion OC-23/17, responding to Colombia’s request to clarify the meaning of “jurisdiction” in article 1.1 of the American Convention on Human Rights (ACHR). Colombia suggested that a State has “functional jurisdiction” in areas that are environmentally protected by a treaty to which that State is a party (e.g. the Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region, the “Cartagena Convention”). Colombia also asked if State actions that seriously damage the marine environment – constituting the livelihood of island and coastal inhabitants of another State – are compatible with rights to life and human integrity.

The IACtHR did not limit its Opinion to the marine environment or the Cartagena Convention. It confirmed the relation between environmental protection and the realisation of “other human rights” (paras. 35, 47). It held that the right to a healthy environment is established in Article 11 of the San Salvador Protocol and, as such, is included in the economic, social and cultural rights protected by Article 26 ACHR (paras. 56- 57; in the recent Case of Lagos del Campo v. Peru, the IACtHR established a violation of article 26 ACHR for the first time in relation to the right to freedom of association). Apart from references to the environment in indigenous cases, throughthe right to life and the concept of “dignified life” (vida digna)(Case Comunidad Indígena Yakye Axa Vs. Paraguay), the IACtHR never before addressed environmental rights directly.

I will not discuss the IACtHR’s considerations on States’ environmental obligations, elaborated with reference to regional environmental protection treaties, UN Convention on the Law of the Sea, and case-law of the International Court of Justice (ICJ). More interesting is its interpretation of “jurisdiction” for the purposes of State actions that affect the environment. In para. 102 of the Advisory Opinion, the IACtHR establishes that “it is the State in whose territory or under whose jurisdiction activities are realised, that has effective control over these and is in a position to prevent cross-boundary damage from occurring that affects the enjoyment of human rights of individuals outside its territory” (translations from Spanish are mine). This is a significant expansion of jurisdiction under the ACHR, although supposedly reserved for cross-boundary environmental damage.

The circumstances in which Colombia requested the Opinion are also noteworthy. In the request, it referred to effects of big infrastructure projects that could affect inhabitants of the Colombian islands San Andrés, Providencia, and Santa Catalina. The ICJ ruled in 2012, in a territorial and maritime dispute brought by Nicaragua against Colombia, that a great part of marine environment in the Caribbean belonged to Nicaragua. On 16 September 2013, Nicaragua instituted proceedingsagainst Colombia before the ICJ regarding territorial rights to the continental shelf and, on 26 November 2013, Nicaragua filed another applicationagainst Colombia at the ICJ regarding a “dispute [which] concerns the violations of Nicaragua’s sovereign rights and maritime zones declared by the Court’s Judgment of 19 November 2012 … and the threat of use of force by Colombia in order to implement these violations”. The two latter cases are pending.

Prior to Colombia’s request, a big infrastructure project was being developed just off the Caribbean coast of Colombia to expand Cartagena’s port. However, the request doesn’t seek to clarify Colombia’s environmental obligations, but those of other States bordering on the Caribbean. Although no particular State is identified, it seems as if the Santos Government, realising it could not “appeal” the ICJ judgment, sought a different route to curb Nicaragua’s activities in the region.

The Colombian Supreme Court Judgment

Neruda, in Canto General, described the Amazon river thus: “rivers flock to you like birds…big dead tree trunks populate you with perfume, the moon cannot guard or measure you. You move slowly like a planet’s orbit”. García Márquez said, in his essay“[a] reality that doesn’t fit into language”, that reality poses a serious problem for literature because of an “insufficiency of words”. If one describes a river, a European reader can only fathom something the size of the Danube (2,790 km), not the reality of the Amazonas (5,500 km). He concluded that “it would be necessary to create a whole system of new words to encompass the size of our reality”. 

Almost twenty years later, the Supreme Court of García Márquez’ native Colombia heeded this suggestion, at least in legal terms, by attributing legal personality to the Colombian Amazon region (not just the river). In judgment STC4360-2018of 5 April 2018, the Court addressed a claim against State authorities by 25 young people (between 7 and 25 years old), living in cities in the Amazon that would allegedly be worst affected by climate change through deforestation. They argued that their right to “enjoy a healthy environment”, as well as rights to life and health had been violated. A 44% increase in deforestation between 2015 and 2016 (70.074 hectares of the Colombian Amazon) meant that Colombia had violated domestic legislation (Law 1753 of 2015, Development Plan 2014-2018), as well as international obligations assumed by it under the Paris Agreementto reduce the “net rate of deforestation to zero in the Colombian Amazon region by 2020”.

The judgment uses strident language, e.g. in para. 4: “[h]umanity is primarily responsible for [climate change and] its hegemonic planetary position has led to the adoption of an anthropocentric and egoistic model”. In para. 6, it refers to international instruments of “hard and soft law” that have created a “world ecological public order”, specifically mentioning article 12 of the International Covenant on Economic, Social and Cultural Rights, articles 1.1 and 2 of the 1976 Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques, articles 35.3 and 55 of Additional Protocol I to the Geneva Conventions, the Paris Agreement, and the Treaty for Amazonian Cooperation. The Court concludes that Colombian authorities violated their obligations and orders the elaboration of action plans, as well as an “intergenerational agreement” to reduce deforestation and the emission of greenhouse gases, as requested by claimants (paras. 13-14). It adds that authorities have to “fill the void left by the FARC and paramilitaries to assert an active State presence for the conservation of Amazonian territories, reconquered by insurgent groups in the context of the armed conflict” (claimants suggested this as a cause of deforestation; para. 11.3).

The Court establishes that “in order to protect the vital ecosystem for the global future, just as the Constitutional Court declared the Atrato river, the Colombian Amazon region is recognised as an entity, [a] ‘subject of rights’” (para. 14). The Constitutional Court, in judgment T-622 of 2016, para. 9.27, had referred to the necessity to protect the environment “because it regards a living entity made up of other multiple life forms and cultural representations, [that] are subjects of individualizable rights”. It also mentioned, in para. 9.28, the emergence at the international level of a “new socio-legal understanding in which nature and its environment have to be taken seriously, with complete rights. That is, as legal subjects [sujetos de derechos]”. It announced that “the Chamber considers it necessary to take a step forward in the case-law towards the constitutional protection of one of our most important sources of biodiversity: the Atrato river” (para. 9.31).

Both the IACtHR’s Advisory Opinion and the Colombian judgment expand the possibility for environmental legal actions to be brought. The former opens the door for e.g. Colombian nationals to bring cases before the IACtHR against Nicaragua for a violation of their human rights, if such rights are affected by environmental damage caused by actions over which Nicaragua exercises control. Moreover, the Advisory Opinion and the Case of Lagos del Campo v. Peru indicate that the IACtHR, in a future case, can find a violation of the right to a healthy environment under article 26 ACHR, probably in relation to e.g. the right to life or human integrity. The Colombian judgment makes it possible for anyone to claim on behalf of the Colombian Amazon and the Atrato river that its respective rights have been violated (see Rodríguez). Perhaps the “personification of non-humans” is a means to deal with uncertainty, a potential “exploitation” of nature by law (Teubner, Journal of Law and Society, 33(4) (2006), p. 515), or it regards a creative and contingent decision that does not necessarily correspond with any ontological reality (Pottage, Fabricating Persons and Things (2004), p. 3, 10). In any case, as predicted by Georges Canguilhem, the environment seems to have become a “category of contemporary thought” (see my article).

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Luis Viveros says

May 2, 2018

Thanks for you informative post Marina,

So, this more or less shows that there is a certain trend pushed by certain actors in Latin-America, and that many of those actors are based in Bogota. That is not important. What I do think is important is thinking about the potential implications of these "progressive" judicial attitudes down the road. For it all sounds pretty well—who could be against such laudable ends?—but the implications are so vast that I haven’t had the courage or drive to sit and write about them. But let me try and do so briefly.
In 2016 I argued that the IACtHR should reject Colombia’s request as it had been filed. The San Jose court did something of sorts, as you rightly point out. But then it went on to establish an environmental framework which legal foundation is nowhere to be found: it copy-pasted Pulp Mills’ procedural obligations as if these existed as a matter of customary law; most worryingly, it established the most expansive extraterritorial treaty-based regime one could think of.
The IACtHR conflates the jurisdictional test for the purposes of triggering the extraterritorial applicability of the ACHR with state responsibility itself. The Court’s starting point is that if there is extraterritorial damage, then international law must surely provide for the intellectual framework to ascribe responsibility to the territorial state.

Emailing on this with a prominent scholar who regularly publishes in Ejil:Talk!, —and knows a thing or two on extraterritoriality—his assumption was that the IACtHR was merely speaking about negative state obligations of the “thou shall not” type. That assumption of course was not based on a first hand reading of the judgment, which is not available in English. I countered that assumption by noting that the Court expressly referred to the general obligation “to ensure”, which is what it does when setting down a positive obligation under the ACHR. What the Court established is nothing less than an absolute obligation to prevent in relation to any and all activity in its territory (including activity by non-state entities) which causes harm on an extraterritorial basis.

Moreover, the IACtHR said nothing about reparation in those cases, it remained silent on causality between injury and breach, it did not utter a single word on exhaustion of domestic remedies.

But why only extraterritorial cases? While extraterritorial environmental harm should be relatively exceptional, it is not so on a territorial basis. In other words, does this mean that the state is ultimately responsible as a matter of international law for every environmental harm caused by illicit and illicit activity (that is the language used by the Court) in its territory? From a reading of the judgment I don’t see why not, and the implications are frightening.

The Court has stopped the Cancado trend of attributing jus cogens status to every rule. Instead, it has amplified the scope of state obligations both generally as well as the ones falling under its contentious mandate. Anyone else worry about the potential pushback by states and the consequences of this attitude on victims of “classic” gross human rights violations?

Thinking about the pushback in Europe for the ECtHR case law on extraterritorial application of the ECHR(Bankovic, Jaloud, etc.), I wonder about what is happening in San Jose.

On the Amazon region’s matter, I will say nothing, except that that same tribunal recently found in favour of a habeas corpus writ filed in representation of a bear. That was cute, it was also nonsensical.