Justiciability of ‘implicit’ rights: Developments on the right to a healthy environment at the Inter-American Court of Human Rights

On 6 February 2020, the Inter-American Court of Human Rights (IACtHR) issued a landmark judgment on the protection of environmental rights as directly justiciable (original in Spanish). For the first time, the IACtHR found state responsibility for violations of the right to a healthy environment, adequate food, water and cultural identity. Such responsibility was based on article 26 of the American Convention on Human Rights (American Convention) concerning the duties of states to carry out progressive developments towards the “full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards” recognized in the Charter of the Organization of American States.

The following subsections refer to previous developments of the IACtHR, summarize the judgment Lhaka Honat v. Argentina, and addresses the Court’s internal discussion concerning the interpretation of the American Convention. Finally, it concludes with a comment on the Court’s approach in previous cases involving environmental damage.

Previous developments on the justiciability of Economic Social and Cultural Rights (ESCR) at the IACtHR

During the past three years the case law of the IACtHR had set the ground for the justiciability of ESCR in a direct form via article 26 of the American Convention. In 2017, Lagos del Campo v. Peru was the first case where the IACtHR held a state responsible for violating ESCR pursuant to article 26. The Court declared as autonomous (and justiciable) the right to work, in particular, to a reinforced stability as part of the evolutive interpretation of the American Convention. Since then, the IACtHR analyzed violations of ESCR via article 26 in connection with the violation of civil and political rights such as analyzing the right to health in Poblete Vilches v. Chile and Cuscul Piraval et. al. v. Guatemala.

Concerning the protection of environmental rights, in 2018 the IACtHR issued Advisory Opinion 23 referring to the relevance of the right to a healthy environment. In such decision (discussed in previous entries, here and here) the Court had set the basis for an autonomous right for the protection of the environment.

The Advisory Opinion referred to the importance of environmental protection as part of the duties to protect and guarantee the rights to life and personal integrity, in the context of the marine environment in the Greater Caribbean region. The Court indicated that the right to a healthy environment had a basis in the Protocol of San Salvador on ESCR and in article 26 of the American Convention. Such protocol, subsequent to the American Convention, expressly recognizes several ESCR in separate articles and contains the consent of the states parties to the jurisdiction of the IACtHR only in relation to autonomous claims concerning the violation of the rights to education and the right to organize trade unions (article 19.6).

The Lhaka Honat judgment

The Lhaka Honat association of indigenous communities claimed the alleged violation of their rights to cultural identity, adequate food and a healthy environment, derived from the state’s knowledge and inaction upon illegal deforestation, cattle raising and installation of wiring around the community’s area by private parties (para. 186).

Without prejudice of the general obligation to progressively adopt measures to achieve full effectivity of ESCR, the Court determined that some aspects merit immediate justiciability in relation to the duties to respect and guarantee the ESCR pursuant to the American Convention (para. 272). In particular, the analysis referred to the state obligations under the precautionary principle, to exercise due diligence before the occurrence of environmental damage which may preclude de restoration of the previous conditions. Among such measures the Court pointed out to the duties to (i) regulate, (ii) supervise, (iii) require and approve environmental impact assessments, (iv) establish contingency plans, and (v) mitigate when environmental damage has taken place (para. 208).

The Court noted that Argentina knew of the activities impacting the life of the indigenous communities and adopted actions. However, such state action had not been effective to stop the harmful activities, and prevented the communities from deciding over the activities carried out in their ancestral territory and from maintaining their way of life (para. 287). Accordingly, it declared that Argentina was internationally responsible for the violation of the rights of the indigenous communities to participate in cultural life, to a healthy environment, adequate food and included iura novit curia, the right to water, under article 26 of the American Convention.

As reparation, the Court ordered Argentina to present a study within six months, identifying the members of the communities and critical situations which could endanger the rights to access water, food, health or even life. Argentina shall formulate an action plan with the corresponding steps and time-frames for its performance (para. 332). Additionally, as compensation for the damage to the cultural identity of the communities in relation to natural resources and food, the Court ordered the creation of a USD$2 million fund for actions directed to the recovery of indigenous culture, including programs concerning food safety, teaching or sharing of the history of the affected communities (para. 339).

The internal debate on the justiciability of ESCR

The issue of direct enforceability of ESCR remained contested inside the Court, with separate opinions covering all ranges of the spectrum. From fully supporting the decision to declare state responsibility for violations of ESCR (Judge Ferrer Mac Gregor), some of the dissenting judges (Vio Grossi and Sierra Porto) argued that the innovation of the direct justiciability of ESCR derives in legal uncertainty, as states could not anticipate or defend from possible violations to article 26 for which they might be found responsible by the IACtHR. An intermediate approach (Judge Pérez Manrique) suggested that the Court should have found a simultaneous violation of civil and political rights and article 26 related to the implicit ESCR, based on the interrelation and indivisibility of human rights.

Part of the criticism by Judge Vio Grossi to the majority opinion argued that evolutive interpretation contravened the rules of interpretation of the Vienna Convention on the Law of Treaties. While recognizing the relevance of ESCR, he insisted that under the text of the American Convention, the Court’s jurisdiction is limited to declare the violation of civil and political rights. Similarly, Judge Sierra recalled that in Hernández v. Argentina on 2019, the Court referred to ESCR (the right to health) as part of the analysis of the violations of the rights to life and personal integrity of Hernández, a prisoner who contracted meningitis did not receive timely medical service while detained. The Court found Argentina responsible for the violation of article 26 in conjunction with the right to personal integrity (article 5.1 of the American Convention), and not on an independent basis as it did on Lhaka Honat v. Argentina.

Contrast with previous cases involving environmental damage at the IACtHR

 The debate reflected on the separate opinions highlights the practical impact of the Court’s approach in this judgment. The IACtHR had been analyzing claims concerning environmental damage as violations of civil and political rights expressly recognized in the American Convention such as life and personal integrity. In Sarayaku v. Ecuador on 2012, the Court found Ecuador responsible for the violation of the rights to life and personal integrity (articles 4.1 and 5.1 of the American Convention) in relation to the creation of pathways and placement of explosives by an oil concessionaire carrying out seismic exploration in the territory of the Sarayaku community in the Amazon.

The Court considered that given a clear and proven risk, the state had the obligation to deactivate such devices, which resulted in a risk endangering the life and personal integrity of the members of the community (para. 248). Similarly to Lhaka Honat, the reparations for non-pecuniary damage, including the impact of the lack of previous consultation and of the presence of explosives which altered the living conditions and way of life of the indigenous community, resulted in an order for compensation of USD$1.25 million.

Conclusion

The Court’s discussion concerning its power to decide over violations of ‘implicit’ ESCR under the American Convention continues paving the way for the development of the relation between the protection of the environment and human rights, and their direct justiciability. In Lhaka Honat the Court incorporated environmental law elements such as the precautionary principle and due diligence while assessing state conduct in the performance of the duty to guarantee the protection of human rights from the conduct of third parties.

However, despite the findings of responsibility based on the evolutive interpretation of the American Convention, the reparations ordered resemble cases where the violation of the right to a healthy environment had not merited a separate finding of state responsibility. The IACtHR has room to contribute to pressing issues on the reparations for environmental damages, such as analyzing the methods to calculate pecuniary compensation, assessing when the harm to the environment may impact the enjoyment of rights by future generations and formulate other forms of reparation such as guarantees of non-repetition.