On 7 February 2018, the Inter-American Court of Human Rights (the Court, IACtHR) issued the much awaited advisory opinion (A/O) concerning the obligations of States Parties to the American Convention on Human Rights (American Convention, ACHR) in respect of infrastructural works creating a risk of significant environmental damage to the marine environment of the Wider Caribbean Region.
This entry sets out the main findings of the Court, including its approach to the extraterritorial application of the American Convention. With the text of the A/O currently available in Spanish only (here), this post seeks to provide an annotated summary of the A/O to EJIL:Talk!’s readership in the English speaking international law world.
The reformulated scope of the advisory opinion
Colombia, the requesting state, asked for the A/O to be limited to the jurisdictional area established by the 1984 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena Convention).
Colombia’s original, complex and prolix request originally read as follows:
“I. In accordance with Article 1.1 of the [American Convention], should it be considered that a person, although not located within the territory of a State party, is subject to its jurisdiction where the following four conditions are cumulatively met?
1) the person is present or resides in an area defined and protected by a conventional regime for the protection of the environment to which the relevant State is a party; 2) that the said regime establishes an area of functional jurisdiction, for example, as envisaged in the [Cartagena Convention]; 3) that in the said jurisdictional area the States parties have the obligation to prevent, reduce and control pollution through a series of general and/or specific obligations; 4) that as a result of the environmental damage or risk of environmental damage in the area protected by the relevant treaty, which is attributable to the State who is party to both that treaty and to the [American Convention], the human rights of the affected person had been breached or are in risk being breached.
II. Are measures and conduct that through action or omission by a State party have effects which are capable of causing grave damage to the marine environment, compatible with the obligations enshrined in articles 4.1 and 5.1, read in light of article 1.1 of the [American Convention], or any other provision therein in light of the fact that the environment is a framework and an indispensable source for the livelihood of the inhabitants of the coasts and/or islands of the other State party?
III. Should we interpret, and if yes to what extent, that the obligations to respect and ensure human rights and liberties set out in article 4.1 and 5.1 of the [American Convention], provide for an obligation on State parties to respect international environmental norms that seek to prevent environmental damage capable of limiting or impairing the effective enjoyment of the right to life and physical integrity, and that one of the ways to comply with the said obligation is through an environmental impact assessment in an area protected under international law, and through cooperation with the affected states? If applicable, which general parameters should be considered in carrying out environmental impact assessments in the Wider Caribbean Region?”
However, the Court exercised its discretion to reformulate the advisory requests and decided that the opinion would cover the “general environmental obligations arising out of the obligations to respect and ensure human rights” (para. 35), and in relation to the rights to life and personal integrity in particular (para. 38).
The protection of the environment and the American Convention
The Court reaffirmed (paras. 47, 54, 55, 57) the principle of human rights interdependence and indivisibility (see Lagos del Campo para. 141, where it used the principle to adjudicate on socio-economic rights). In this case the Court used interdependence to construe an inter-American environmental legal framework. The Court affirmed the existence of a “right to live in a healthy environment” as a guarantee with protracted individual and collective dimensions. As to the conventional legal basis of this right, the Court stated that it not only had a basis in the San Salvador Protocol on Economic, Social and Cultural Rights, but also in Article 26 of the American Convention (para. 57), entitled “Progressive development”. Accordingly, the right to a healthy environment was defined as an “autonomous right” under the American Convention, different from the environmental implications of other rights. Concretely, the Court stated this right to have connections and implications for the rights to life, personal integrity, privacy, health, water, housing, cultural participation, property, the prohibition not to be forcibly displaced, etc. (para. 66).
As underlined by judges Vio Grossi and Sierra Porto in their concurring opinions, what paragraph 57 entails is that the right to a healthy environment “shall also be considered as included within the economic, social and cultural rights protected by Article 26 of the American Convention”. The consequence of this, following the Court’s ground-breaking (and perhaps controversial) decision in Lagos del Campo v. Peru of August 2017, is that these rights are directly “justiciable” and fall under the American Convention-based contentious jurisdiction of the San Jose tribunal.
First question: the extraterritorial application of the American Convention (Article 1.1 ACHR)
The Court reformulated Colombia’s first question as follows:
“In accordance with article 1.1. of the [American Convention] and in assessing compliance with the State’s environmental obligations, should it be considered that an individual, although not within the territory of a State party, may be subject to the jurisdiction of that State?” (para. 37).
According to Article 1 (1) of the American Convention:
“The States Parties to this Convention undertake to respect the rights and freedoms recognised herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination [….].”
The Court held that a person may be subject to a State’s jurisdiction under article 1.1 ACHR even if not physically in that State’s territory. It proceeded to construe the term “jurisdiction” for the first time in its case law. The Court held that an individual may be under a State’s jurisdiction if that individual is in its territory or is in any way under its authority, responsibility or control (para. 73). It stated that an individual may be exceptionally under a State’s jurisdiction on an extraterritorial basis (para. 75-78, 81). It then proceeded to provide a fairly accurate account of the European Court of Human Rights, the Human Rights Committee on the subject, and the few cases decided by the Inter-American Commission on that basis (para. 79, 80). The Court noted however, that the cases cited did not correspond to events of a similar nature to those that would arise vis-à-vis environmental obligations under the ACHR.
In that sense, the Court seems to have adopted an enhanced personal model of jurisdiction, one where transboundary effects appear to be enough to put individuals under a State’s jurisdiction on an extraterritorial basis, at least when it comes to environmental obligations under the ACHR:
“The Inter-American Court considers that an individual is under a State’s jurisdiction, in respect of conduct undertaken outside the territory of the said State (extraterritorial conduct) or with effects outside its territory, if that State is exercising its authority over that person or when that person is under its effective control […]” (para. 81).
States’ obligations under special environmental regimes
Perhaps sensing the potentially overbroad consequences of its construction of ‘jurisdiction’ — or perhaps because of that — the Court went on to comment on States’ obligations under special environmental regimes.
The Court recalled that the Cartagena Convention, as part of UNEP’s initiative to tackle the accelerated degradation of the oceans through regional treaties, establishes a special regime for the prevention, reduction and control of marine pollution within its jurisdictional area.
The Court made clear that “the exercise of jurisdiction by a State under the American Convention does not depend on the relevant conduct being performed in a delimited geographic area.” What is relevant is that the “State is exercising authority over the person” or that “the person is within the effective control of that State”. Thus, the fact that the environmental obligations in those areas are conducive to the protection of human rights is not necessarily tantamount to the exercise of jurisdiction under the American Convention (paras. 89-94).
Here the Court correctly distinguishes between the relevant primary norms at stake and the question of the extraterritorial application of the American Convention as governed by Article 1.1. Its subsequent approach however raises room for concern.
States’ obligations to prevent transboundary environmental damage
By drawing from decisions of the ICJ, the Court recognised the obligation on American States not to allow their territory to be used against the rights of third States, as well as to use all available means to prevent activities taking place in their territory or in any area under their jurisdiction causing significant environmental damage against third States.
The following paragraphs detail the Court’s position on the extraterritorial application of the American Convention in cases of environmental damage:
“The obligation to respect and ensure human rights requires States to abstain from impeding or rendering more difficult the compliance of the obligations of the Convention by other State parties. The activities undertaken in the jurisdiction of one State party shall not deprive other States of their capacity to ensure that persons under their jurisdiction enjoy their rights under the Convention. The Court considers that States have an obligation to avoid transboundary environmental damage that may affect the human rights of persons outside their territory. For the purposes of the American Convention, it is understood that the person whose rights have been breached fall within the jurisdiction of the State of origin if there is a causal link between the facts occurring in its territory and the violation of the human rights of person outside its territory” (Emphasis added) (para. 101).
“The exercise of jurisdiction by a State of origin in relation to transboundary damage is based on the understanding that it is the State in whose territory or in whose jurisdiction these activities are undertaken, who has effective control over them and is in a position to prevent the causation of transboundary damage that may affect the enjoyment of human rights of individuals outside its territory. The potential victims of the negative consequences of these activities should be deemed to be within the jurisdiction of state of origin for the purposes of any potential state responsibilities for failure to prevent transboundary damage. In any case, not every injury activates this responsibility” (para 102).
There are two main propositions at play here:
First, that the obligations to respect and ensure human rights require States to abstain from impeding or rendering more difficult other States’ compliance with the obligations of the Convention. Notwithstanding the general scope of this proposition, its legal basis, as discerned from footnote 194, are the Committee on Economic, Social and Cultural Rights’ General Comments 14 and 15.
Second, that for the purposes of the American Convention, the person whose rights have been breached fall within the jurisdiction of the State of origin if there is a causal link between the facts occurring in its territory and the violation of the human rights of persons outside its territory.
This is confusing. Although the conditions for the extraterritorial application of the Convention were said to be exceptional, the Court effectively conflates the extraterritoriality threshold with the obligation to prevent transboundary damage. In other words, by relying solely on the obligation to prevent transboundary damage (now part of the Convention’s portfolio), the Court rendered the extraterritorial threshold nugatory in practice. Pursuant to paragraph 101 above, the question remains whether the same is applicable regarding the positive obligation to ensure.
Paragraph 103 adds to the existing complexities by declaring a sine delicto regime in the American Convention when human rights are affected by significant environmental transboundary damage. It reads:
“Therefore, it is possible to conclude that the obligation to prevent environmental transboundary damage is an obligation recognized by international environmental law, by virtue of which States can be held responsible for significant damage caused to persons located outside their territory as a result of activities originating in their territory or under their authority or effective control. It is important to highlight that this obligation does not depend on the lawful or unlawful character of the conduct causing the damage. This is because States are obliged to repair promptly, adequately and effectively, transboundary damage resulting from activities undertaken in their territory or under their jurisdiction. This obligation is independent from the question of whether the activity in question is prohibited or not under international law. In any case, there must always be a causal link between the damage caused and the act or omission of the State of origin in respect of activities within its territory or under its jurisdiction or control”.
The introduction of this new regime in the American Convention is done by reference to the ILC Articles on the prevention of transboundary damage resulting from hazardous activities, and paragraphs 181 to 184 of ITLOS’ A/O on the “Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area”. Strikingly, neither text provides legal authority for the Court’s invention. In particular, paragraph 181 in ITLOS’ A/O makes it clear that in:
“order for the sponsoring State’s liability to arise, it is necessary to establish that there is damage and that the damage was a result of the sponsoring State’s failure to carry out its responsibilities”.
Second and third questions: Obligations deriving from the duties to respect and ensure the rights to life and the personal integrity in the context of the protection of the environment
With reference to the negative obligation to respect human rights, the Court affirmed that States shall abstain from (i) any activity that denies or restricts access to a decent life; and (ii) the illegal pollution of the environment in a manner that affects the conditions allowing for a decent life. As to the positive obligations, they arise when (i) the State authorities knew or should have known that there is a real or imminent risk against the life of a determined group of people, and measures reasonably available were not undertaken to prevent or tackle the risk; and (ii) there is a causal link between the violation and the significant damage caused to the environment (para. 120).
Although a more detailed section, the mere reaffirmation of a causal link as the relevant criterion for the extraterritorial application of the American Convention comes without much needed clarification.
Specific obligations in relation to potential environmental damage in order to respect and ensure the rights to life and personal integrity
Vis-a-vis Colombia’s question on the specific obligations arising out of the respect and guarantee of the rights to life and personal integrity, the Court stated it would instead address the following general obligations (para. 126).
The obligation to prevent transboundary environmental damage
The Court declared the customary nature of the obligation to prevent transboundary environmental damage (para. 129). The Court then clarified that this principle imposes obligations that are similar to the general obligation to prevent violations of human rights and is not restricted to inter-State relations (para. 133). The Court did not however, provide any reasoning on a state practice and opinio juris basis.
The precautionary principle
With reference to the Rio Declaration, the Court defined the precautionary principle as one requiring measures to be adopted in cases where there is no scientific certainty as to the environmental impact of an activity (paras. 180-181).
Obligation to cooperate
The Court affirmed the customary character of the obligation to cooperate (para. 184) and recalled that as per the ICJ’s jurisprudence, this obligation is indispensable for the protection of the environment. The obligation includes the specific duties on previous and timely notification, together with consultation and negotiation in good faith with potentially affected States (paras. 186-205).
Procedural obligations to ensure the rights to life and personal integrity in the context of the protection of the environment
The Court characterised these procedural obligations as deriving from the human rights of: access to information (paras. 213-225); public participation (paras. 226-232); and access to justice (paras. 233-240), all in connection with the general obligation of States to protect the environment.
In conclusion, the Court’s first approach to “jurisdiction” in Article 1.1 of the American Convention, although timely, requires further elucidation. Currently, the question remains whether the exceptional criteria of extraterritorial application recognized at 73 to 81 of the A/O govern the application of the negative obligation to prevent transboundary damage, now part of Article 26 of the American Convention, or whether the extraterritoriality threshold has in fact been collated with the human rights obligation to prevent transboundary damage. Importantly, subsequent case-law, including the one concerning the requesting State, would offer further guidance on the concrete content and scope of this very pertinent A/O.