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Advisory Opinion on the Environment and Human Rights

  • Angeliki Papantoniou (a1)
Extract

On November 15, 2017, the Inter-American Court of Human Rights (Court) rendered a historic advisory opinion (Advisory Opinion) on the relationship between human rights and the environment. The opinion was a response to a request from Colombia regarding extraterritorial jurisdiction of state parties to the American Convention, in particular their obligations under the rights to life and personal integrity, arising from the construction and operation of large-scale infrastructure projects in the Greater Caribbean region. Colombia's concern was that, due to their dimensions and permanence, such projects could cause significant environmental harm, that goes beyond national borders, and, as a consequence, adversely affect the inhabitants of the whole region and the enjoyment of their rights under the Convention (para. 2). One of the most important aspects of the Advisory Opinion is the Court's finding that in relation to large-scale transboundary infrastructure projects, state parties to the Convention can exercise extraterritorial jurisdiction under certain circumstances and thus be responsible for the human rights of the people in the affected area. Another significant finding of the Court is that Article 26 of the American Convention, which provides for the progressive realization of economic, social, and cultural rights, includes an autonomous right to a healthy environment—a right fundamental for the existence of humankind. Finally, the Court directly linked the rights to life and personal integrity with general principles of international environmental under a due diligence obligation. The Court's extensive use of international environmental law instruments, case law, and reasoning could pave the way for greater interconnection and integration between human rights and international environment law obligations.

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1 American Convention on Human Rights, Arts. 4–5, opened for signature Nov. 22, 1969, 1144 UNTS 123 [hereinafter Convention].

2 The right is already part of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, entered into force Nov. 16, 1999, OAS Treaty Series No. 69; 28 ILM 156 [hereinafter San Salvador Protocol].

3 Among others, the Court cited Loizidou v. Turkey, Preliminary Objections, App. No. 15318/89 (Eur. Ct. H.R. Mar. 23, 1995) and Al-Skeini v. United Kingdom, Judgment, App. No. 55721/07 (Eur. Ct. H.R. July 7, 2011).

4 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, Mar. 24, 1983, 1506 UNTS 157 [hereinafter Cartagena Convention].

5 Banković v. Belgium, Decision as to Admissibility, App. No 52207/99 (Eur. Ct. H.R. Dec. 12, 2001).

6 San Salvador Protocol, supra note 2.

7 On the concept of due diligence, the Court cited Case Concerning Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 ICJ Rep. 14 (Apr. 20) [hereinafter Pulp Mills], and the International Law Commission Draft Articles on Transboundary Harm, UN Doc. A/56/10 (2001).

8 Pulp Mills, supra note 7; Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicar.), Construction of a Road in Costa Rica Along the San Juan River (Nicar. v. Costa Rica), Judgment, 2015 ICJ Rep. 665 (Dec. 16); Indus Waters Kishenganga Arbitration (Pak. v. India), Final Award (Perm. Ct. Arb. Dec. 20, 2013); Indus Waters Kishenganga Arbitration (Pak. v. India), Partial Award (Perm. Ct. Arb. Feb. 18, 2013).

9 See, e.g., Fedeyeva v. Russian Federation, 2005-IV Eur. Ct. H.R. 376; Hatton v. United Kingdom, 2003-VIII Eur. Ct. H.R. 189.

10 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, entered into force Oct. 30, 2001, 2161 UNTS 447, 38 ILM 517.

11 See, e.g., Marko Milanović, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy 19–53 (2011).

12 See, e.g., Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 146 (Nov. 28, 2007).

13 The ECtHR has developed extensive case law under Articles 8 (private and family life) and 2 (right to life). For more on this, see ECHR Manual on Human Rights and the Environment (2012), available at https://www.echr.coe.int/LibraryDocs/DH_DEV_Manual_Environment_Eng.pdf, and Eur. Ct. H.R., Environment and the European Convention on Human Rights Factsheet (Feb. 2018), available at https://www.echr.coe.int/Documents/FS_Environment_ENG.pdf.

14 See, for example, the February 2, 2018 International Court of Justice Judgment in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica/Nicaragua) where the ICJ ordered compensation for environmental damage.

15 See, for example, the February 1, 2011 International Tribunal for the Law of the Sea (ITLOS) Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area where the Tribunal cited the ICJ ruling of Pulp Mills, supra note 7, and more recently the April 25, 2016 ITLOS Order for Provisional Measures in the Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire) case where the Tribunal cited the December 13, 2013 ICJ Order on Provisional Measures in Certain Activities Carried Out by Nicaragua in the Boarder Area (Costa Rica/Nicaragua, Nicaragua/Costa Rica).

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American Journal of International Law
  • ISSN: 0002-9300
  • EISSN: 2161-7953
  • URL: /core/journals/american-journal-of-international-law
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