Recently, the Human Rights Committee published its views in the case Portillo Cáceres v. Paraguay (currently available only in Spanish). In this landmark decision, the Committee dealt, for the first time, with the question of the States’ duty to protect individuals from environmental degradation under articles 6 (right to life) and 17 (protection of the family) of the International Covenant on Civil and Political Rights (ICCPR). In doing so, the Committee followed the lead of several regional human rights institutions. The decision might help in strengthening the recognition of environmental protection as an element of human rights protection.
A brief summary of the case: The Communication was brought to the Committee against Paraguay by two peasant families who had been poisoned by high amounts of pesticide and insecticides used by neighbouring industrial farms. Whereas legal regulations existed that prohibited this conduct, no significant steps had been taken by the State to enforce the existing laws. As a result of the poisoning, one family member died, the others were hospitalized. Furthermore, the families suffered a loss of fruit trees, the death of various farm animals and severe crop damage. The families claimed that the State had failed in its duty to provide protection inasmuch as it has not exercised due diligence.
Protection of the Environment as a Human Right
Questions regarding the role of environmental protection in the context of human rights protection have recently been brought before several human rights mechanisms. Recently, the Inter-American Court of Human Rights (IACHR) has had the chance to define the role of environmental protection in its system (see this advisory opinion). It has not only found that there is an autonomous right to a healthy environment, but also stated that any right can be affected by environmental harm (paras. 63, 64).
Whereas the approach of the IACHR has been rather broad, the European Court of Human Rights (ECtHR) has been more restrictive (e.g. López Ostra v. Spain, Dubetska and others v. Ukraine and recently Cordella and others v. Italy). It has continuously stated that under the European Convention on Human Rights there is no general right to nature preservation (Fadeyeva v. Russia, para. 68; Dubetska and others v. Ukraine, para. 105), and granted the States a wide margin of appreciation.
By taking up elements of the existing regional jurisdiction and referring to it, the Human Rights Committee has now taken a first step towards finding an international standard for the scope of the States’ duty to protect the environment in order to comply with their human rights obligations.
Protection of Life
In October 2018, the Human Rights Committee adopted General Comment No. 36 on the Right to Life. The purpose of a General Comment is not only to summarise existing jurisprudence of the Committee; it further tries to give a complex interpretation guide even for such cases that have yet to be brought to the Committee. Of course, this then can open up new legal discussions (see on other interesting elements of General Comment No. 36 here).
Concerning the States’ obligations under article 6 ICCPR to protect people from environmental harm, General Comment No. 36 states:
26. The duty to protect life also implies that States parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity. These general conditions may include […] degradation of the environment […]
62. Environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life. Obligations of States parties under international environmental law should thus inform the contents of article 6 of the Covenant, and the obligation of States parties to respect and ensure the right to life should also inform their relevant obligations under international environmental law. Implementation of the obligation to respect and ensure the right to life, and in particular life with dignity, depends, inter alia, on measures taken by States parties to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors. States parties should therefore ensure sustainable use of natural resources, develop and implement substantive environmental standards, conduct environmental impact assessments and consult with relevant States about activities likely to have a significant impact on the environment, provide notification to other States concerned about natural disasters and emergencies and cooperate with them, provide appropriate access to information on environmental hazards and pay due regard to the precautionary approach.
While the Committee referenced the African Court of Human and People’s Rights, as well as various UN Documents here, it did not make reference to any previous findings by the Committee itself. This is due to the fact that until now, there had been no explicit jurisprudence by the Committee concerning the States’ duty to protect the environment, and thus defining the scope of such a duty.
In Portillo Cáceres v. Paraguay, the Committee took up the guidelines of General Comment No. 36, and made reference to the recent developments of regional human rights institutions. The Committee used strong language, stating that international tribunals have found an “undeniable link” between environmental protection and human rights, thus following the approach of the IACHR, and called their practice “established” (paras. 7.3, 7.4).
Having alluded to these international legal documents, the Committee concluded with its own understanding of the State’s duty to protect. Recalling that States are required to take positive action to fulfil their obligation to protect the rights recognized in the Covenant (para. 7.3), the Committee concludes that the State has to take all appropriate measures to protect its people from any threat that is “reasonably foreseeable” (para. 7.5).
In conclusion, the Committee has made use of the existing activities of regional human rights institutions as a basis of this decision. Although the Human Rights Committee primarily refers to the practice of the European Court of Human Rights in the footnotes of this case, its approach seems to be significantly broader. While the ECtHR has continuously emphasised that there is no general right to nature preservation, and has given weight to the States’ margin of appreciation concerning competing interests, the Human Rights Committee does not consider relevant whether the State of Paraguay had a legitimate interest in not intervening, nor has it suggested that environmental harm may only exceptionally trigger a State’s duty to protect.
It has further not only found a violation of the right to life for the case of the deceased Mr. Rubén Portillo Cáceres, but also for the surviving authors of the communication (para. 7.5), thus strengthening its statements in General Comment No. 36 and putting an emphasis on article 6 ICCPR as the right to life with dignity (GC 36, paras. 3, 26).
Protection of the Home and Private and Family Life
In the present case the Committee also found a violation of article 17 ICCPR, referencing explicitly the practice of the ECtHR. This is especially interesting as it seems that in the past, the Committee had not been willing to take up existing regional practice and had avoided answering the question of the role of environmental harm within the scope of article 17 ICCPR (see Poma Poma v. Peru).
However, although in Portillo Cáceres the Committee referenced the ECtHR’s jurisprudence, it did not seem to follow the Court’s view that environmental pollution can only exceptionally trigger a State’s duty to protect. The Committee found a breach of Paraguay’s duty to protect the authors’ private and family life based on only two criteria: That the pollution has a direct impact on an individual’s private and family life, and that the impact is serious (para. 7.8).
Whereas concerning the right to life, the Committee had had some basis for its decision having adopted General Comment No. 36, this part of the decision could not be based on the Committee’s own practice. But also the linkage to the jurisprudence of regional human rights institutions is less clear.
Different from its considerations under the right to life, the Committee did not refer to the Advisory Opinion by the IACHR which found that any right can be affected by environmental harm. It thus seems that the Committee did not want to go this far. At the same time, it did not stress the exceptional nature of a human rights violation in the context of a State’s duty to protect from environmental harm as does the ECtHR.
Given the Committee’s earlier reference to the IACHR, stating that there is generally an undeniable link between the protection of the environment and the realization of human rights (thus not limiting this link to a certain right or group of rights), it will be interesting to see how the Committee will deal with alleged violations of other rights in the context of environmental harm.
The Committee’s Contribution
By building its decision on the practice of several regional human rights institutions, the Committee’s decision in this case has the potential to help strengthen the recognition of environmental protection as an element of human rights protection.
It is striking, however, that the Concluding Observations on Paraguay which were adopted during the same session as this individual communication do not contain any reference either to pollution or to the State’s failure to implement existing protection laws in general, although, as the authors of the communication indicate, the present case is not an isolated one.
Even though the link between environmental protection and human rights is “undeniable”, the scope of the States’ duty is not yet sufficiently clear. As is true for many other human rights issues, the Human Rights Committee should use its global coverage to contribute to a coherent and transparent practice that helps establish clear guidelines for States.