How A Regional Court in the Americas is Shaping Environmental Law
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Climate change litigation in domestic courts has been on the rise in recent years, particularly in western European countries. The Urgenda case, successfully litigated by the Urgenda Foundation, in the Netherlands, is an example of this development. The basis of the arguments used by Urgenda was that of international human rights, stemming from the European Convention of Human Rights (ECHR). While the European Court of Human Rights (ECtHR), and in fact no regional human rights body, has developed case-law on climate change, the Inter-American Court of Human Rights (IACtHR) has held a leading role in shaping environmental law within a human rights framework.

The IACtHR stems from the Organisation of American States (OAS), which came into fruition in 1948 with the signing of the Charter of the OAS. Subsequently, the American Convention on Human Rights (ACHR) was adopted in 1969 and came into force in 1978. It was signed but not ratified by the United States or Canada. The ACHR has both a commission and a court; the Court being the subject of this article.

The first piece of evidence of the progressive nature of the Inter-American system in the realm of environmental human rights is the existence of a right to a healthy environment. Although other regional human rights bodies also possess such a right, it is the actions of the IACtHR that makes the Inter-American system’s efforts novel.

In the case of the ACHR, this right can be found in Article 11 of the Protocol of San Salvador. The protocol is attached to the ACHR and covers economic, social and cultural rights (ESCR), the right to education being an example. Be that as it may, the Court can only adjudicate on civil and political rights, such as the right to life, through individual petitions.

However, this limitation has not stopped the Court from affirming the existence of environmental human rights. It is the only regional body to do this via an advisory opinion (A/O) and by passing numerous judgements protecting the rights of indigenous communities, including their environment.

The Environment and Human Rights

In 2017, the IACtHR issued a landmark A/O on environmental human rights, being the first to examine environmental law as a whole. The Environment and Human Rights, the title of the A/O, is telling for its contents. An A/O is not a judgment and has less legal weight as it is not binding on the party which requested it. Regardless, it still often has value for the development of legal norms.

The A/O was requested by The Republic of Colombia, which asked for it to be limited to the subject of the 1983 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region. Instead, the Court formulated the opinion as covering the “general environmental obligations arising out of the obligations to respect and ensure human rights,” as Giovanny Vega-Barbosa and Lorrain Aboagye note.

In the A/O, the Court firstly affirmed the right to a healthy environment. It also found that this right could be protected by Article 26 of the ACHR. This meant that in subsequent cases, the right to a healthy environment could be enforced by the Court in individual petitions. This was previously not possible as explained earlier. However, this is not the most notable feature of the A/O.

The Court found that a person may be subject to a State’s jurisdiction even if they were not physically in that State’s authority. To translate into layman’s terms, states can be potentially held accountable for environmental damage that occurs beyond their borders. Extraterritorial jurisdiction, as this is called, is a difficult subject in international law. States are technically only held accountable for what occurs within their border. For the IACtHR to consider this topic in connection with environmental law is momentous.

As Monica Feria-Tinta and Simon Milnes point out, the A/O, unfortunately, did not directly cover climate change. Still, transboundary breaches by states are inherently connected to climate change. The Court’s finding could conceivably help in holding states accountable for their contributions to greenhouse gas emissions, for example.

Two years after the advisory opinion was issued, the IACtHR issued a landmark judgement on the protection of the environment. The Republic of Argentina was held responsible for breaching the rights of 132 indigenous communities. This case is considered a milestone, as the Court used Article 26 of the ACHR to protect the right to a healthy environment amongst other ESCR. Now, the Court could contribute to pressing issues on the reparations for environmental damages.

Nevertheless, as the case is the first of its kind, it was not made as a unanimous decision. Thus, it is possible that such a judgement will not be repeated in the future by the IACtHR, seeing as international courts do not need to follow their own precedent. It is also unclear whether such a judgement will be duplicated in other regional human rights bodies. In the case of the IACtHR, the legal culture in South America surrounding the environment is also of importance for explaining its progressive nature.

The Colombian Amazon

The case of Future Generations v. Ministry of the Environment and Others in 2018 is an example. In this case, a group of 25 claimants accused the Colombian government of not doing enough to mitigate climate change. The Court concurred and found that the government had breached fundamental guarantees to water, air, a dignified life, and health, amongst others in connection to the environment.

The most intriguing part of this ruling is the decision of The Supreme Court of Justice of Colombia to declare that the Colombian Amazon is recognised as a “subject of rights.” This goes far beyond the IACtHR’s case-law and it is currently unclear how this ruling will be enforced in practise. Regardless, it illustrates the legal culture in South America that makes such a ruling possible. Indeed, the IACtHR also recognised this in its judgement on Argentina where it noted that 16 states of the American continent include the right to a healthy environment in their constitutions.

A Climate Change Case in Europe

Notwithstanding the strides the IACtHR has made in the realm of environmental human rights, it would be important to underscore the absence of an A/O or judgement on climate change. It is possible that in the coming years the ECtHR may be further ahead in this area. Indeed, on Thursday 3 September, six Portuguese children and young adults applied to the ECtHR claiming that 33 Council of Europe member states had breached their human rights in regard to their contributions to climate change.

The ECHR is missing a right to a healthy environment, so the claimants are arguing their case using Article two, the right to life, and Article eight, the right to private and family life. If this case is successful it will have implications beyond Europe. It may aid the IACtHR in developing their own case-law on climate change. Nevertheless, the IACtHR is currently ahead in recognising environmental law as a whole system within human rights. This Court’s legal spirit should not be overlooked in the future.

Read more from the Americas section here.