THE RIGHT TO A HEALTHY ENVIRONMENT BEFORE THE INTER-AMERICAN COURT OF HUMAN RIGHTS

Abstract The article explores the interpretation of the right to a healthy environment by the Inter-American Court of Human Rights as an autonomous right under the American Convention on Human Rights. It places this development in the context of transformative constitutionalism in Latin America and examines it against the background of the Court's broader case law. The article argues that, even though this is an important judicial innovation, there are three challenges with the approach of the Court. The first relates to the individual and collective dimensions of the right; the second to the link between this development and the Court's previous jurisprudence; and the third to the corresponding reparations. The last part of the article seeks to explore ways in which the Court could offer further guidance on the contours of the right and its relationship with civil and political rights.


I. INTRODUCTION
One of the most important developments in the recent jurisprudence of the Inter-American Court of Human Rights (IACtHR or the Court) has been the establishment of the right to a healthy environment as an autonomous right under the American Convention on Human Rights (ACHR or the Convention).This judicial innovation has placed the IACtHR at the vanguard of human rights institutions regarding the protection of the environment. 1It has transformed the engagement of the Court with environmental issues and could, more broadly, have a catalyst effect on the evolving body of climate change litigation. 2 By explicitly recognizing the right to a healthy environment the IACtHR has set the ground for a more ambitious approach in future environmental and climate cases in the Inter-American human rights system.
The Court achieved this in two steps.In 2017, it issued its landmark Advisory Opinion OC-23/17 3 (Advisory Opinion), where it declared the autonomous status of the right and addressed its main contours.Three years later, it handed down the Lhaka Honhat judgment, 4 the first contentious case where the Court applied the right and found that it had been violated.Jointly, the Advisory Opinion and Lhaka Honhat form a turning point in the jurisprudence of the IACtHR and the right has now been established as being directly justiciable under the ACHR.Some authors have explored the methodological devices used by the Court in its Advisory Opinion or in Lhaka Honhat. 5Others have discussed the relevance of the IACtHR's approach in the broader context of environmental law and in relation to the justiciability of economic, social, cultural and environmental rights (ESCER). 6Yet, the doctrinal implications of this emerging jurisprudence have not yet been comprehensively examined.
Addressing this gap is important because the right is likely to have a significant role in future decisions of the Court.To this end, this article provides an in-depth evaluation of the Court's approach regarding the right to a healthy environment and highlights three challenges.The first relates to the core tenets of the right and, in particular, its individual and collective dimensions.The Court makes some broad statements in this regard but has not so far articulated the tenets of the right in a coherent manner.The second challenge concerns the link between the right to a healthy environment and the Court's progressive approach to the right to property.In Lhaka Honhat, the Court developed the new right at the expense of the right to property by dissociating socio-economic, cultural and environmental elements from the scope of the latter.This represents a fundamental shift away from the earlier case law of the Court on the right to property and restricts the content of this right.The third challenge concerns the reparations ordered in Lhaka Honhat for the violation of the right to a healthy environment.It is shown here that the measures of redress were not substantively different from those ordered in earlier cases where the environmental obligations of States had been determined under the scope of civil and political rights.This puts a question mark on the practical relevance of this new right, at least at the current stage of the Court's jurisprudence.
The article proceeds as follows.First, it provides a brief overview of the place of ESCER in the jurisprudence of the IACtHR.It illustrates how the Court has rendered them directly justiciable and how it has gone about establishing the right to a healthy environment as an autonomous right under the ACHR.The judicial developments in the area of ESCER are analysed from the perspective of transformative constitutionalism, which provides a useful framework for explaining the interpretative techniques followed by the IACtHR.Next, the article examines the three above-mentioned issues arising from the Court's approach.The final part reflects on the key questions that the Court should seek to answer in order to address these challenges and assesses the relationship of the right to a healthy environment with the wellestablished civil and political rights under the Convention.

A. The Shift regarding the Direct Justiciability of ESCER under the ACHR
In recent years the IACtHR has developed a comprehensive jurisprudence on socio-economic, cultural and environmental rights.For instance, it has extended the list of labour rights under the Convention 7 to include the right 7 For an overview of the jurisprudence, see FC Ebert, 'A Regional Revitalization of Labour Rights?The Emerging Approach of the Inter-American Court of Human Rights' in B Langille indigenous and tribal peoples from their ancestral lands may cause them grave difficulties in terms of accessing clean water and obtaining adequate food and sanitation.This could, in turn, affect their possibility of having a decent life and thereby violate Article 4 of the ACHR. 16Similarly, the right to property was expanded to encompass the protection of collective property and natural resources of indigenous and tribal peoples in a way that guarantees their social, economic and cultural identity. 17n Lagos del Campo, however, the IACtHR developed a new interpretative approach to ESCER.Rather than being examined within the scope of rights that are expressly justiciable under Articles 3-25 of the ACHR, the Court determined that violations of ESCER can be established autonomously under Article 26.Article 26 does not contain a list of rights, but provides a general obligation for States Parties to: … undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States [OAS] as amended by the Protocol of Buenos Aires.
Under this approach, the Court examines the standards contained in the OAS Charter to find a violation of ESCER derived from Article 26. 18In order to clarify the scope of specific rights, it routinely refers to the American Declaration of the Rights and Duties of Man 19 and relevant instruments of international law (corpus iuris), such as the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and United Nations (UN) General Assembly resolutions. 18eg, Lagos del Campo (n 8) para 143.See further, FC Ebert and C Fabricius, 'Strengthening Labor Rights in the Inter-American Human Rights System' (2019) 4 IntlLabRtsCasL 179.For some of the main criticisms of this approach, see Section III. 19The Court has explained that the American Declaration 'contains and defines the fundamental human rights referred to in the [OAS] Charter' and constitutes 'a source of international obligations related to the Charter'.The Right to a Healthy Environment before the IACtHR 949 The IACtHR's outlook on ESCER is formed against the backdrop of, and is another manifestation of, a long-standing jurisprudence that addresses highly complex socio-economic issues through the prism of human rights, in an approach that has been termed 'transformative constitutionalism'.As von Bogdandy and Urueña have put it, transformative constitutionalism describes an 'approach to constitutional texts, a set of empirical assumptions, argumentative tools, and normative goals that coalesce around the notion that legal interpretation should strive toward being responsive to society's problems', 21 such as widespread exclusion, violence and weak institutions, which are prevalent in Latin America. 22Such deep structural problems are perpetuated through endemic conditions of extreme poverty and inequality and through informal networks that operate on the basis of reciprocity, corruption and coercion. 23All these factors hinder the inclusion of large parts of the population in the formal operation of social systems such as education, health, economy and law, and impede access to their corresponding outputs. 24n this context, the Court participates in transformative constitutionalism and seeks to address core structural deficiencies and State failures in the region through its case law. 25his explanatory framework of the Court's jurisprudence stands alongside other rich strands of legal scholarship which also focus on the interplay between constitutionalism, human rights interpretation and judicial decisionmaking in Latin America. 26Transformative constitutionalism, however, 21 A von Bogdandy and R Urueña, 'International Transformative Constitutionalism in Latin America' (2020) 114 AJIL 403, 407. 22A von Bogdandy, 'Ius Constitutionale Commune en América Latina: Observations on Transformative Constitutionalism' (2015) 109 AJIL Unbound 109, 110. 23In general, A Mascareño, Diferenciación y contingencia en América Latina (Ediciones Universidad Alberto Hurtado 2010) ch III. 24In general, A Mascareño and F Carvajal, 'The Different Faces of Inclusion and Exclusion' (2015) 116 CEPAL Rev 127.On sub-integration in Latin America and the lack of conditions that are conducive to the exercise of fundamental rights, see M Neves, 'From Legal Pluralism to Social Miscellany: The Problem of the Lack of Identity of the Legal Sphere(s) in Peripheral Modernity and its Implications for Latin America' in CA Rodríguez (ed), Law and Society in Latin America -Beyond Law: New Work on Law and Social Change from Latin America and Around the World (ILSA Publications 2003) 125, 141-4. 25A von Bogdandy, 'El mandato transformador del sistema interamericano de derechos humanos.Legalidad y legitimidad de un proceso jurisgenerativo extraordinario' (2019) 9 RevCentEstudConst 113.In the words of the Court for example, 'the progressive dimension of the protection of ESCER, although acknowledging the gradual nature of their realization, also includes a sense of progress, which calls for an effective improvement of the enjoyment and exercise of these rights, so that social inequalities are corrected and the inclusion of vulnerable groups is facilitated' (emphasis added).International and Comparative Law Quarterly offers a useful analytical reading of the Court's legal interpretative techniques, its expansive reasoning and its influence on other human rights actors in the region.It sheds light on the institutional approach that is adopted by the Court and informs its practices. 27In particular, the transformative elements of the IACtHR's jurisprudence can be observed both in the methods of interpretation that it uses and in its substantive conceptualization of the rights under the Convention. 28his reflects the inclination of the Court to apply the law in a way that expands the scope of civil and political rights and renders new socioeconomic rights justiciable.In this way, many of the political and socioeconomic problems in the region are reframed as legal issues within the prism of human rights that can, at least partly, be addressed by the legal system. 29The interpretation of Article 26 as a source of autonomous and directly justiciable ESCER, therefore, is one of the latest moves of the Court that can be viewed within the framework of transformative constitutionalism. 30In effect, the IACtHR expands the catalogue of rights that provide alleged victims with access to the legal system in order to assert basic needs, such as food, water and sanitary living conditions, and essential services, such as medical care.
At the same time, a jurisprudence with a transformative potential can have significant impact beyond the parties to a case and can become an important element of the discourse and practice within the 'Latin American human rights community'. 31This community closely interacts with the IACtHR and there is a mutually beneficial relationship between the two.Civil society actors, for example, bring cases before the Court concerning mass violations of human rights and provide vital information about the situation on the ground, while actors in national institutions implement its case law in the domestic context and interpret national law in line with regional human rights law. 32In turn, the judgments of the Court constitute a crucial tool for those in the human rights community when pushing 'for state compliance on the international plane following a judgment' and challenging 'laws and practices before the domestic judiciary'. 33In this regard, the Court's decisions are important for the effects that they can have on the legal and institutional setting at the national level, for playing a salient role in domestic policies and for empowering domestic actors to advocate legal or policy changes in order to improve the living conditions for people in the region. 34he development of the right to a healthy environment by the Court highlights the environmental component of transformative constitutionalism within the context of increasing debate about the relationship between human rights and environmental protection. 35In this light, the next two sections briefly explain the Court's evolving conceptualization of the link between human rights and the environment and introduce Advisory Opinion OC-23/17 and the Lhaka Honhat case.They show how the IACtHR went about establishing the right to a healthy environment and how it defined its main contours.The discussion is not exhaustive but lays the foundations for the evaluation of the Court's approach that follows.

B. The Protection of the Environment in the Earlier Case Law of the IACtHR
The link between human rights and the environment is not new in the Inter-American system.Even before the Advisory Opinion and Lhaka Honhat, the Court had recognized that there is a direct relationship between the physical environment in which persons live and the effective enjoyment of human rights under the Convention. 36

952
International and Comparative Law Quarterly protection, conservation and improvement of the environment contained in Article 11 of the [Protocol of San Salvador] as an essential human right related to the right to a dignified life'. 37he interconnection between environmental issues and the Inter-American system had been especially pronounced in cases concerning indigenous peoples.The Inter-American Commission on Human Rights (IACmHR or Commission) had recognized that environmental pollution, deforestation and contamination of waters directly affect the resources that sustain life and the livelihoods of indigenous peoples, as well as their cultural identity. 38In this context, the protection of the environmental integrity of indigenous peoples' territories and their natural resources had been deemed necessary to secure their rights to life, personal integrity and property. 39Given that ancestral territories and the resources therein play a significant role for the material and cultural survival of the indigenous peoples, the protection of the environment had been inherently tied to these rights.
Based on this approach, the Commission and the Court had identified the environmental elements of civil and political rights and allowed victims of environmental harm to seek justice under the Inter-American system.Indicatively, the Court had clarified that access to, and the quality of, water, adequate food and health constitute essential elements of a decent existence. 40Environmental pollution may thus have a significant impact on the right to life and the basic conditions of physical, social and economic well-being of an individual or a community.
It had also been recognized that effective protection of the environment involves the obligation of States to provide special protection to forests, crops and waters because of their importance to indigenous peoples 41 and requires State authorities to prevent the risk of environmental harm or to respond with appropriate measures when persons have suffered injury. 42This also gives rise to obligations of a procedural nature.These include access to information on possible environmental risks and on activities and projects that could have an impact on the environment as a matter of public interest, 43 effective participation in decision-making 44 and access to judicial recourse. 45 The Establishment of the Autonomous Right to a Healthy Environment It is against this backdrop that the Advisory Opinion and the Lhaka Honhat judgment mark a fundamental shift in the approach of the IACtHR by establishing the right to a healthy environment as being directly justiciable, and enforceable independent of other rights in the Convention.The Advisory Opinion was delivered at the request of Colombia, which had asked the Court to interpret State obligations under Articles 4 (right to life) and 5 (right to personal integrity) of the ACHR in the context of the development of major infrastructure projects in the Caribbean Sea.Colombia argued that such projects, owing to their dimensions and permanence, can cause significant harm to the marine environment in the wider Caribbean region and thus to the inhabitants of the coastal areas and islands in the region who depend on this environment for their subsistence and development.46 In this context, the Court explained that the right to a healthy environment: protects the components of the environment, such as forests, rivers and seas, as legal interests in themselves, even in the absence of the certainty or evidence of a risk to individuals.This means that it protects nature and the environment, not only because of the benefits they provide to humanity or the effects that their degradation may have on other human rights, such as health, life or personal integrity, but because of their importance to the other living organisms with which we share the planet that also merit protection in their own right.In this regard, the Court notes a tendency, not only in court judgments, but also in Constitutions, to recognize legal personality and, consequently, rights to nature. 47 terms of the State obligations that derive from the right, the Court referred to the Working Group on the Protocol of San Salvador which identified five such obligations: (1) to guarantee everyone a healthy environment to live in and (2) basic public services, (3) to promote environmental protection, (4) environmental conservation and (5) the improvement of the environment. 45IACmHR, 'Report on the Situation of Human Rights in Ecuador' (n 42) ch VIII: 'The quest to guard against environmental conditions which threaten human health requires that individuals have access to: information, participation in relevant decision-making processes, and judicial recourse.'See, also, Kaliña and Lokono Peoples (n 37) paras 258, 267.
46 AO (n 3) para 2. 47 ibid, para 62 (emphasis added and fns in the original omitted).See also paras 56-58: the Court relied on art 11 of the Protocol of San Salvador that includes the right to a healthy environment, domestic law in the region and provisions of the international corpus juris, such as the American Declaration on the Rights of Indigenous Peoples, the African Charter on Human and Peoples' Rights, the Association of Southeast Asian Nations (ASEAN) Human Rights Declaration and the Arab Charter on Human Rights. 48 Furthermore, to comply with their duties to ensure the full enjoyment of human rights in the context of environmental protection, States must fulfil a variety of other obligations.According to the Court, these stem from the principle of due diligence and include: '(1) the obligation of prevention; (2) the precautionary principle; (3) the obligation of cooperation, and (4) the procedural obligations relating to environmental protection'. 49The Court further reiterated that in specific situations concerning indigenous and tribal peoples the special vulnerability of those affected should be taken into account.States have the obligation to take positive measures to ensure indigenous peoples have access to a dignified life which includes their close relationship with their land. 50ased on the above definition, the Court signalled the possibility of the right being invoked before the IACmHR or the IACtHR without proof of risk to individuals. 51In this light, the Advisory Opinion has been praised for advancing an eco-centric approach in relation to the right to a healthy environment. 52Along these lines, Tigre and Urzola have argued that the Court has opened the door to climate change litigation, given that 'recognizing the environment as a rights-bearing entity could help address the climate crisis by giving the environment, as victim, a "face"and thus some form of legal standing now, in the present, rather than waiting for harms to occur in a distant future'. 53he relevance of the Advisory Opinion became evident in the Lhaka Honhat decision delivered in 2020.In this case, Lhaka Honhat, an association of aboriginal communities, claimed that Argentina had failed to grant an effective property title to indigenous peoples over their ancestral territory and to prevent non-indigenous peasant farmers from settling there.It further contended that the State had failed to take appropriate measures to prevent the environmental degradation of the territory concerned and to protect the access of indigenous peoples to their natural resources by allowing activities, such as grazing, illegal logging of the forests and fencing, to be undertaken by the non-indigenous settlers. 54he Court found a violation of the right to communal property under Article 21 of the ACHR and the rights to a healthy environment, to adequate food, to water and to take part in cultural life derived from Article 26 of the ACHR. 55To demonstrate the interconnectedness of the right to a healthy environment with indigenous peoples' rights more broadly, the IACtHR cited, among others, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), International Labour Organization (ILO) Convention 169, General Comments 12 and 21 of the Committee of Economic, Social and Cultural Rights and Principle 22 of the Rio Declaration as relevant sources. 56aving examined the evolution of the justiciability of ESCER under the ACHR and the establishment of the right to a healthy environment, the next section will evaluate the conceptual clarity of the Court's approach in this regard.The discussion starts with a brief outline of the general criticisms faced by the IACtHR regarding its interpretation of Article 26.It then centres around three aspects: first, the core tenets of the right, ie its individual and collective dimensions identified in the Advisory Opinion, as well as the possibility for the right to be invoked even in the absence of risk to individuals; secondly, the dissociation of environmental protection elements from the right to property in the Lhaka Honhat case; and thirdly, the scope of reparations ordered in Lhaka Honhat.The section demonstrates the conceptual shortcomings of the current formulation of the right to a healthy environment in relation to these three matters.Additional elements of the jurisprudence will be expanded upon in the next section to support the analysis.

ENVIRONMENT
The methodological merits of the IACtHR's interpretation of Article 26 of the ACHR have been subject to intense debates within and outside the Court. 57hile a detailed analysis is beyond the scope of this article, three of the main criticisms are mentioned because of their relevance for the IACtHR's jurisprudence on the right to a healthy environment.
The first contends that the Court's interpretation of Article 26 is not supported by the actual wording of the provision.Article 26 merely establishes an 'obligation of conduct, but not of results'. 58As the Convention stipulates, 56 ibid, paras 245-250. 57Objections to the IACtHR's interpretation of art 26 have consistently been raised by Judges of the Court.See the Partially Dissenting Opinions of Judge Vio Grossi and Judge Sierra Porto in Lagos del Campo (n 8) but also in subsequent cases.See also Contesse, 'Autoridad y disenso en la Corte Interamericana de Derechos Humanos' (n 13); Contesse, 'Judicial Interactions and Human Rights Contestations in Latin America' (n 13); J Contesse, 'Human Rights as Transnational Law' (2022) 116 AJIL Unbound 113; Mejía-Lemos (n 5); D Cerqueira, 'The Justiciability of Economic, Social, and Cultural Rights under the American Convention' (Blog de la Fundación para el Debido Proceso, 29 May 2018) <https://dplfblog.com/2018/05/29/the-justiciability-of-economic-socialand-cultural-rights-under-the-american-convention/>;E Benz and V Kahl, 'El caso Lhaka Honhat: la extensión de la justiciabilidad directa de los DESCA y la esperanza incumplida de la concreción del derecho a un medioambiente sano' in Ferrer Mac-Gregor Poisot, Morales Antoniazzi and Flores Pantoja (n 5) 237. 58 States Parties 'undertake to adopt measures' to 'achiev[e] progressively … the full realization of rights implicit in the economic, social, educational, scientific, and cultural standards' under the OAS Charter.Critics argue, therefore, that the provision permits the Court to monitor 'compliance with the obligation of progressive development' of rights that may be derived from the Charter, but it is not clear how it can give rise to new justiciable rights. 59Furthermore, it is contended that the way the Court derives rights from some parts of the Charter is also problematic.This becomes clear when considering cases such as Lhaka Honhat where the Court relied on Articles 30, 31, 33 and 34 of the Charter to find support for the right to a healthy environment.These Articles merely provide a list of principles, goals and aspirations to 'ensure international social justice' in the relations of the States Parties and 'the integral development of their peoples'. 60They do not include, however, any specific rights that the Court can enforce. 61he second criticism is that the IACtHR's interpretation of Article 26 is not in line with the intention of the States Parties.As mentioned above, the Court relies on the Protocol of San Salvador, read together with the ACHR, in order to establish new rights and clarify their scope.The Protocol contains a list of social, economic and cultural rights, including the right to a healthy environment under Article 11.However, it explicitly excludes the contentious jurisdiction of the IACtHR over these rights, except for trade union rights and the right to education as specified in Article 19(6) of the Protocol.It is not clear, therefore, why the States Parties would have negotiated an additional protocol on ESCER and restricted the competence of the Court in this way if they had understood Article 26 to recognize directly justiciable ESCER.The Protocol of San Salvador, it is argued, demonstrates the intention of States to limit the direct enforcement of ESCER 62 and further 59 Partially Dissenting Opinion of Judge Sierra Porto in Lagos del Campo (n 8) para 8. 60  The Right to a Healthy Environment before the IACtHR 957 undermines the persuasive strength of the IACtHR's interpretation of Article 26 in conjunction with this instrument.The third criticism is that the Court's approach opens the door to a constant evolution of new rights. 63If not carefully crafted, this strategy may come at the expense of legal certainty as far as the obligations of States Parties to the ACHR are concerned.Moreover, this pitfall may be compounded in the context of socio-economic rights.Judicial decisions inevitably become part of a wider discourse on socio-economic policies, which presuppose a degree of redistribution involving hard policy choices. 64In a region with States that are characterized by weak institutions and unstable public resources, the task of the IACtHR in establishing directly justiciable ESCER is delicate.This is especially so as it has given rise to strong reactions from States Parties, which can have an impact on the Court's effectiveness and legitimacy. 65he stakes, therefore, are high.The establishment of a new right is, in principle, a task that requires a high degree of justification. 66It requires close examination of the legal basis used and conceptual and doctrinal clarity concerning the contours of the right.More importantly perhaps, it requires an assessment of whether it is the best option when compared with other viable alternatives.It is precisely for this reason that when the IACtHR introduces and applies new rights, the need for clear explanation is greater than if it had 63 JJ Faundes Peñafiel, C Carmona Caldera and PP Silva Sánchez, 'Hermenéutica del derecho al medio ambiente sano, a la identidad cultural y a la consulta, a la luz de la sentencia "Lhaka Honhat (nuestra tierra) vs. Argentina" (2020)' (2020) 10 RevBrasPolítPúblicas 644, 653.See specifically, Judge Sierra Porto in Lagos del Campo (n 8) paras 13-14 and in Poblete Vilches (n 11) para 17. 64 The need for balancing the rights of different parts of the population in scenarios involving redistribution of resources is exemplified in Lhaka Honhat (n 4).In this case, there was an underlying conflict between the rights of indigenous peoples and the rights of third parties, such as peasant farmers, who had to relocate under circumstances of vulnerability.As Judge Sierra Porto pointed out, the latter lived in the contested territory 'in similar conditions of poverty and precarity' as the indigenous communities and their rights were also affected by the actions and public policies of the Argentinian government.See Partially Dissenting Opinion of Judge Sierra Porto para 13 and paras 12-14 and the Lhaka Honhat judgment (n 4) paras 51-52.When ordering the restitution of land to the indigenous communities, the Court provided some guidelines on the relocation of the criollo population.See paras 329-330. 65For an elaboration on the Court's legitimacy, see Section III.C.2 below.In 2019, the governments of Argentina, Brazil, Chile, Colombia and Paraguay adopted a statement emphasizing potential legal restrictions on the Inter-American system of human rights including the principle of subsidiarity and the doctrine of margin of appreciation.They urged the Commission and the Court to adopt a 'strict application' of the sources of international law and stressed the importance of considering 'the political, economic, and social realities of the States by the organs of the Inter-American human rights system'.In addition, they highlighted the need to respect the principle of proportionality and 'the constitutional and legal systems of the States, as well as the requirements of the rule of law' when ordering reparations (author's translation).For the statement, see 'Gobiernos de Argentina, Brasil, Chile, Colombia y Paraguay se manifiestan sobre el Sistema Interamericano de Derechos Humanos' <https://www.mre.gov.py/index.php/noticias-de-embajadas-y-consulados/gobiernos-de-argentina-brasil-chile-colombia-yparaguay-se-manifiestan-sobre-el-sistema-interamericano-de-derechos-humanos>. 66

958
International and Comparative Law Quarterly followed another, well-established route relying on the environmental elements of the civil and political rights under the ACHR. 67Ultimately, conceptual or doctrinal weaknesses may limit the long-term persuasiveness of transformative jurisprudence and its practical effectiveness.
A. The Core Tenets of the Right

The individual and collective dimensions
According to the IACtHR, the right to a healthy environment has two dimensions.In its collective dimension, it 'constitutes a universal value that is owed to both present and future generations'. 68It also has an individual dimension 'insofar as its violation may have a direct and indirect impact on the individual owing to its connectivity to other rights'. 69he individual dimension of the right seems to be based on the impact that its violation may have on the individual because the right to a healthy environment is connected to other rights.Nevertheless, the Court did not clarify its autonomous meaning in relation to individuals. 70While it referred to a healthy environment as a 'fundamental right for the existence of humankind', 71 it did not flesh out the extent to which the right offers additional layers of protection for alleged victims.Indeed, invoking the right seems to depend on whether the individual can show that other rights have also been violated, such as the rights to personal integrity and life.
If the individual dimension of the right is manifested in its interconnection with other rights under the Convention, it may be argued that this approach does not significantly differ from the already settled case law of the Court.As illustrated above, the Court had recognized that environmental harm can have an adverse impact on civil and political rights and is therefore a relevant consideration under Articles 3-25 of the ACHR. 72In this context, it would be necessary to demonstrate how establishing the right to a healthy environment adds independent legal content to what individuals can claim from the State beyond what is already offered by existing rights.
This becomes more evident by looking at the application of the right to a healthy environment in Lhaka Honhat.The Court briefly discussed this right and reiterated the State obligations in broad terms. 73However, when it came to determining State responsibility, the IACtHR bundled the right to a healthy environment with the rights to food, water and cultural identity. 74ence, the application of specific State obligations relating to the effective realization of the right to a healthy environment was not clearly distinguished from those arising from the other, interrelated, yet separate, rights.Elaborating on the measures that public authorities should undertake to avoid violations of this new right could therefore help to improve legal certainty.As Judge Sierra Porto pointed out in his dissenting opinion, '[p]roviding content to and establishing the scope of the rights is extremely important so that everyone can understand them and the States can respect them, but it is even more relevant in these cases in which … new rights are being generated …'. 75he formulation of the collective dimension of the right as a 'universal value' 76 also raises some challenges.Universal values, as such, are characterized by indeterminacy and thus do not offer meaningful distinctions between legal and illegal conduct in real cases.The Advisory Opinion did not offer any concrete guidance with regard to the collective dimension of the right to a healthy environment.It stated that the right 'differs from the environmental content that arises from the protection of other rights' under the ACHR. 77However, it did not provide an explanation as to how it creates new State obligations toward present and future generations, nor did it demonstrate what role the collective dimension of the right could play in a contentious case and whether it could it be invoked by applicants.

A right invoked 'in the absence of the certainty or evidence of a risk to individuals'
As the Court stated in its Advisory Opinion, the right to a healthy environment can be invoked 'even in the absence of the certainty or evidence of a risk to individuals'. 78It has been pointed out that this could potentially mark a paradigm shift from an anthropocentric to an eco-centric approach. 79In its current formulation, however, this part of the definition is conceptually unclear.First, it appears from the Court's statement that proof of harm or risk of harm would not be necessary.This potentially means that any individual or group would be able to rely on the right to a healthy environment.Evidently, such claims would amount to public interest litigation which is not currently permitted in the Inter-American system according to the Commission. 80econdly, if the intention of the IACtHR was to include situations that involve damage to the environment per se within the remit of the right and 75 Partially Dissenting Opinion of Judge Sierra Porto in Lhaka Honhat (n 4) para 11. 76 AO (n 3) para 59. 77  place the protection of nature at the centre of it, then further issues arise.Did the IACtHR intend to establish nature as the holder of rights under the Convention, given that the right to a healthy environment 'protects the components of the environment, such as forests, rivers and seas, as legal interests in themselves' in the absence of risks to humans?81If so, the IACtHR did not identify who would have standing to enforce the relevant rights.The Lhaka Honhat decision does not appear to offer any clarification on these issues either.The Court's analysis on the merits of the case focused on the effects of environmental harm on the indigenous communities.The conceptual and practical problems, therefore, subsist and this uncertainty on the core tenets of the right render its scope of application ambiguous for potential victims and the States Parties.

B. The Interplay between the Right to a Healthy Environment and the Right to Property 1. Dissociating elements of environmental protection from the right to property
The Lhaka Honhat decision has significant implications for the right to property under Article 21 of the ACHR.As briefly mentioned above, the Court had previously developed a line of case law in which it had dealt with the protection of natural resources, access to water, food security and cultural identity under the right to property.In fact, broad interpretations of the right to property have been one of the most innovative contributions of the IACtHR. 82The case law has involved issues of land titling and delimitation of boundaries but also integrated socio-economic, cultural and environmental aspects that were especially pertinent in the context of indigenous and tribal peoples. 83n Lhaka Honhat, however, the Court seems to have deviated from this approach.In a nutshell, it excluded the environmental, as well as the socioeconomic and cultural, elements of the case from the scope of Article 21.On the facts of the case, it relied on Article 21 only to assess the recognition and determination of the communal ownership of the land in question and the participation of indigenous peoples in processes concerning projects or works that affect their land. 84Instead, the environmental issues of the case were addressed under Article 26.In this sense, the Court developed the right to a healthy environment under Article 26 at the expense of the well-established right to property and diminished the latter to a right that primarily deals with the determination of land ownership and demarcation of boundaries.
Dissociating property from its environmental and cultural elements represents a step back from the expansive and progressive meaning of the right to property that the IACtHR had developed in its earlier jurisprudence.
Judge Ferrer Mac-Gregor Poisot rightly noted in his Separate Opinion that not all violations of cultural life necessarily involve land issues and a violation of the right to property. 85In the same vein, not every instance of environmental harm will necessarily be linked to the right to property.Therefore, there may be situations where the right to a healthy environment is violated without triggering the responsibility of the State under Article 21.In Lhaka Honhat, however, there was a clear link between the interference with the property of indigenous communities and the deterioration of food resources, the loss of flora and fauna and the lack of access to drinking water.This, in turn, affected the cultural identity of the indigenous peoples.For this reason, the Court could have achieved the same level of protection of the victims' rights by integrating the socio-economic, cultural and environmental aspects of the case into Article 21. 86 Admittedly, the legal institution of property has been perceived with scepticism in international legal scholarship.It has been criticized for entrenching colonial and racial domination 87 and for reproducing economic inequality, 88 while the desirability of conceptualizing property rights as human rights has been contested. 89In this light, a line of reasoning that supports the exclusion of non-economic considerations from an understanding of land under Article 21 inadvertently confirms this scepticism.It appears to revert to the idea that the right to property is confined to a narrow conceptualization that does not appropriately accommodate social concerns.By shifting away from previous jurisprudence and reducing the core tenets of Article 21, the Court decreases the potential of the right to property to be used for the realization of basic needs that directly depend on land, its natural produce and water.International and Comparative Law Quarterly The separation of environmental elements from the right to property was not explained in the judgment.The IACtHR did not say whether it was advancing a new definition of the right, moving away from its previous jurisprudence.Instead, this dissociation can be inferred from the factual application of Articles 21 and 26 and from the Separate Opinion of Judge Ferrer Mac-Gregor Poisot.Judge Ferrer Mac-Gregor Poisot has been one of the proponents of the direct justiciability of ESCER under Article 26 and, reportedly, has played a key role in shaping the approach of the IACtHR in this regard. 90For this reason, his Separate Opinion in Lhaka Honhat arguably has some explanatory potential for the interpretation of the right to property.The sub-section that follows focuses on the relevant parts of his Separate Opinion in order to examine the rationale of this shift.

The conceptual basis of this dissociation
Judge Ferrer Mac-Gregor Poisot argued that the Lhaka Honhat decision separated socio-economic, cultural and environmental elements from the right to property by utilizing the distinction between the terms 'land' and 'territory'. 91He claimed that legal developments at the international level and the evolution of case law reveal important normative differences between the two terms and, hence, justify this distinction. 92More specifically, according to Judge Ferrer Mac-Gregor Poisot, the term 'land' is used to denote an economic resource and relates to the 'notion of a material possession that may be occupied, possessed or owned'. 93It is confined to the physical space owned and utilized by the alleged victims. 94The term 'territory', on the other hand, denotes 'the exercise of autonomy or jurisdiction' and encompasses a cultural and spiritual dimension. 95It is thus understood to include elements such as water, products on which the traditional diet of indigenous peoples is based and the natural environment as an expression of cultural life broadly related to that physical space. 96These characteristics are distinct from the limited concept of land and should be protected separately under the new rights derived from Article 26. 9790 O Parra Vera, 'La justiciabilidad de los derechos económicos, sociales y culturales en el Sistema Interamericano a la luz del artículo 26 de la Convención Americana.El sentido y la promesa del caso Lagos del Campo' in Ferrer Mac-Gregor, Morales Antoniazzi and Flores Pantoja (n 13) 181, 182-4. 91Separate Opinion of Judge Ferrer Mac-Gregor Poisot in Lhaka Honhat (n 4) paras 11-12.See also E Ferrer Mac-Gregor, 'Lhaka Honhat y los derechos sociales de los pueblos indígenas' (2020) 39 RevElectronEstudIntl 1, 2-4.See, in general, FV Mora Navarro, 'Los derechos a un ambiente sano, a la alimentación adecuada, al agua y a la identidad cultural.Caso comunidades indígenas miembros de la asociación Lhaka Honhat (Nuestra Tierra) vs. Argentina ante la CIDH' (2020) 5 e-RevIntlProtSoc 330. 92Separate Opinion of Judge Ferrer Mac-Gregor Poisot in Lhaka Honhat (n 4) paras 10-41. 93ibid, para 20. 94ibid, para 24. 95ibid, para 20. 96ibid, paras 12, 24. 97Ferrer Mac-Gregor, 'Lhaka Honhat y los derechos sociales de los pueblos indígenas' (n 91) 5.For an opposite view, see Partially Dissenting Opinion of Judge Sierra Porto in Lhaka Honhat (n 4) paras 18-19.
The Right to a Healthy Environment before the IACtHR 963 On closer analysis, however, some doubts can be raised as to whether the differentiation between 'land' and 'territory' is clearly evidenced in earlier cases of the Court and international instruments on indigenous peoples' rights.In the previous case law of the IACtHR, in most instances the two terms seem to be conflated and their respective scopes are not distinguished.In one of its key judgments on communal property rights, Awas Tingni Community v Nicaragua, the Court analysed the relationship of indigenous peoples with their land in a multi-dimensional way.Acting on the basis of Article 21, it established a link between culture and both land and territory based on the indigenous peoples' anthropological characteristics. 98Similarly, in Saramaka People v Suriname, it referred to territory, land and natural resources under the right to property.It appears, though, as if the Court did not make a clear conceptual distinction between these terms: it stated that territory encompasses both land and natural resources and has an inextricable relationship with the economic, social and cultural survival of indigenous and tribal peoples 99 and at the same time, it stressed that there is a strong link between culture and land itself. 100n the same vein, in Xákmok Kásek Indigenous Community v Paraguay, the Court made references to the relationship of indigenous and tribal peoples with their land and their relationship with their territory under Article 21.The IACtHR explained that land involves 'traditional presence or use, by means of spiritual or ceremonial ties … and any other element characteristic of their culture'.101 It also observed 'that the relationship of the members of the Community with their traditional territory is manifested, inter alia, by the implementation of their traditional activities on those lands'.102 Read 98 Awas Tingni (n 17) para 149: 'Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival.For indigenous communities, their relationship to the land is not merely a matter of possession and production, but a physical and spiritual element that they must enjoy fully, even to preserve their cultural legacy and transmit this to future generations' (emphasis added).See also Case of the Sawhoyamaxa Indigenous Community v Paraguay, IACtHR Series C No 146 (29 March 2006) para 118.99 Saramaka (n 17) para 120. 100 The Court explained that 'Land is more than merely a source of subsistence for them; it is also a necessary source for the continuation of the life and cultural identity of the Saramaka people.The lands and resources of the Saramaka people are part of their social, ancestral, and spiritual essence.In this territory, the Saramaka people hunt, fish, and farm, and they gather water, plants for medicinal purposes, oils, minerals, and wood.' ibid, para 82 (citations in the original omitted).It also stated that 'while territory collectively belongs to the Saramaka people concerned, specific plots of land were divided among the clans' (fn 66 of the judgment).Given the meaning of land recognized in para 82, the use of the two terms seems rather indistinguishable.Similarly, in some parts of the judgment the Court refers, in a tautological manner, to natural resources found in the territory and in others, to natural resources found in the land.

964
International and Comparative Law Quarterly contextually, then, these terms appear to be conflated, without a clear conceptual distinction.
As far as international instruments on indigenous peoples' rights are concerned, ILO Convention 169 and UNDRIP group together references to land and territory.For example, Article 13(2) of the ILO Convention explains that the term 'lands' in Articles 15 and 16 of the Convention 'shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use'.In a similar way, UNDRIP identifies the right of indigenous peoples to 'maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources'. 103While the drafters intended to distinguish territory from private ownership,104 the text of UNDRIP does not untangle the conceptual or doctrinal implications of using the terms 'territory' and 'land' in the specific context of collective ownership of indigenous peoples. 105Therefore, the differentiation of the two terms could be perceived as tenuous under these international instruments.
It therefore seems that the IACtHR watered down the scope of Article 21 in order to provide an expansive interpretation of the ESCER under Article 26.Diminishing the right to property to issues of occupation, possession and ownership has the effect of reintroducing a limited understanding of property and the modes of its use and its disposal.This is exactly what the Court had warned against in Kichwa Indigenous People of Sarayaku v Ecuador, as it would render the protection under Article 21 'illusory'. 106. The Scope of Reparations regarding the Right to a Healthy Environment

The Court's approach to reparations
The approach of the IACtHR to reparations is a distinctive feature of its jurisprudence and one of its most celebrated doctrinal innovations. 107In the context of indigenous peoples, it is common for the Court to order compensation and a wide range of non-pecuniary remedies.The latter include land restitution 108 and legal and administrative reforms to implement an effective system of land delimitation, demarcation and titling. 109In addition, the IACtHR often requires the creation of funds, to be allocated for the development of the community. 110These reparations have collective effects, in that they aim to transform the structural causes that triggered the violations and to avoid their recurrence. 111They are broad enough to allow the State a degree of experimentation in order to determine the proper measures of redress. 112At the same time, their inherent flexibility enables the Court to tailor them to the different categories of victims and the complexities of their situations. 113n this light, the scepticism regarding the conceptual and doctrinal contours of the right to a healthy environment could, at least partly, be dispelled if the reparations granted to the victims in Lhaka Honhat were novel.This would be especially important if measures of redress substantially differed from those that the Court had ordered in the past or if some of them could not have been otherwise granted.It would demonstrate that the right has a discernible added value for victims.However, this does not seem to be the case.
The reparations corresponding to the violation of the rights to a healthy environment, adequate food, access to water, and cultural identity under Article 26 were all discussed together in the judgment.The measures focused on ensuring the conservation and improvement of environmental resources in the territory of indigenous communities, as well as the provision of basic goods and services. 114This included the obligation of the State to take actions 'to conserve the surface and groundwater in the indigenous territory', 'to guarantee permanent access to drinking water', 'to avoid a continuation of the loss of, or decrease in, forestry resources' and 'to endeavor to ensure its gradual recovery'. 115The State was also ordered to create a community development fund to address the recovery of the indigenous culture and to implement measures improving food security and the documentation and dissemination of the history of community traditions. 116In this light, it has been pointed out that a key characteristic of these reparations is their specificity with regard to the violations of the ESCER in this case. 117This includes, for example, the guidance that the IACtHR provided on the purposes of the community development fund, focusing on repairing the damage caused to the cultural identity of the indigenous peoples. 118owever, the novel character of the reparations is not evident given that both the substance and the flexibility of the measures remain similar to those found in earlier cases that the Court had decided under Articles 3-25. 119ndeed, the Court had in the past also ordered measures relating to the improvement of food security and resource management in order to ensure the conservation and protective capacities of indigenous lands and resources, 120 the supply of drinking water, as well as the implementation of agriculture and cultural development programmes. 121In Saramaka v Suriname, for example, the Court had found that the Saramaka people were 'left with a legacy of environmental destruction, despoiled subsistence resources, and spiritual and social problems'. 122Environmental damage had impacted their subsistence resources and their spiritual connection with their territory. 123In this regard, redress for the 'denigration of their basic cultural and spiritual values' and the alterations 'to the very fabric of their society' was considered necessary by the Court. 124The State was required to create a community fund to 'finance educational, housing, agricultural, and health projects, as well as provide electricity and drinking water, if necessary, for the benefit of the Saramaka people'. 125Similarly, in Kichwa Indigenous People of Sarayaku v Ecuador, the State was ordered to ensure reforestation 126 and to pay non-pecuniary damages for the 'implementation of educational, cultural, food security, health care and eco-tourism development projects'. 127As a result, it seems that even though States may find themselves liable for violations of new rights, the core of what they will be required to do in the form of reparations may not be strikingly different.

Diverging legitimacy demands
It is worth considering why the direct justiciability of the right to a healthy environment has not yet had any significant effects on reparations.One might have expected that the IACtHR's approach to reparations would in fact be more far-reaching than in previous cases where it had relied on the environmental aspects of civil and political rights.It is possible to explain the Court's approach to reparations in Lhaka Honhat by drawing on insights from sociological institutionalism and focusing on the diverging legitimacy demands that the IACtHR faces.
According to Tallberg and Zürn, the legitimacy of an institution depends on the beliefs and perceptions within a given constituency or relevant audience that its exercise of authority is appropriate. 128Institutions that command a high level of legitimacy enjoy more support from relevant actors, be it in the form of 'investing resources and energies in the project that lies behind' the institutions, behaving in accordance with their rules or decisions, or voicing lower levels of opposition. 129Under these conditions, institutions have more power and tools at their disposal to achieve their objectives or fulfil their mandate. 130Therefore, they have strong incentives to satisfy the demands of their audiences in order to retain their legitimacy.Given that these demands are diverse and may often be conflicting, institutions develop various strategies to address them. 131As Stephen demonstrates, these strategies may vary from institutional reform and operational adaptation to 'coping mechanisms'. 132n the context of the IACtHR, civil society actors and the States Parties to the ACHR are the key audiences whose perceptions about how the Court should develop its jurisprudence can be of consequence for its legitimacy.Civil society actors, including transnational networks of lawyers, practitioners and non-governmental organizations, typically seek the effective enforcement of rights through recourse to the Court.They demand a progressive interpretation of the Convention that allows them to 'fulfil their respective human rights agendas' and enables them to promote concrete changes on the ground. 133Even though their legitimacy demands are far from being uniform across the region, 134 judicial interpretations that 'give credence to their claims' 135 will enjoy greater support and legitimacy from them.It is important for the IACtHR that it is viewed as legitimate by these actors because they can have a crucial role in defending its work.As Soley and Steininger have demonstrated, civil society actors have been the most vocal allies of the Court and have had an important role in defusing criticism of it.They lobby political parties, set up discussion fora and raise public awareness of the Inter-American human rights system. 136owever, the legitimacy demands of civil society may often be in tension with those of the States Parties that fund the IACtHR's operations. 137the power to reduce its authority in a number of ways, including by withdrawing or threatening to withdraw from the Convention, cutting back on funding or refusing to comply with specific judgments. 140These are serious challenges to the legitimacy of the Court and put at risk its position as a key transnational actor engaged in the human rights governance of the region. 141he effectiveness of the IACtHR, therefore, depends, at least to some extent, on the engagement of both audiences with it and on their perceptions concerning the legitimacy of what the Court does and how it does it.As the Court finds itself in between these often colliding legitimacy demands and tries to accommodate them, it may not be too far a stretch to expect that the Court will seek compromise.In this sense, it may 'tolerate' a degree of incongruence between its expansive interpretation of new rights and the scope of reparations, at least in the current stage of its post-Lagos de Campo jurisprudence, so that it can signal to both audiences that their demands are heard and acted upon.The Court seems to do this by relabelling the environmental aspects of civil and political rights under the umbrella of a new, autonomous right to a healthy environment.This triggers a move to address environmental issues under the Convention and puts a new tool in the hands of litigants and civil society actors, thus satisfying the demands of civil society.In this way, the IACtHR positions itself in the vanguard of developing progressive jurisprudence on environmental protection.At the same time, if the establishment of the right to a healthy environment has few additional consequences when it comes to reparations, the legitimacy concerns of States may also be satisfied.

IV. CONSIDERING OLD AND NEW RIGHTS
Given that the right now forms a part of the inter-American jurisprudence, it is pertinent to reflect on how the Court could offer further guidance concerning the contours of the right and its relationship with well-established civil and political rights.When considering the potential contribution that the Court could make to refining the right to a healthy environment, two situations need to be distinguished.
The first relates to situations where environmental damage affects rights under Articles 3-25 of the ACHR and reaches the threshold required to  International and Comparative Law Quarterly exert some influence on the balance between environmental, social and economic interests.It could also strengthen State obligations to comply with due diligence requirements.This could involve a variety of obligations such as the adoption of clear regulatory measures on environmental monitoring and the prevention of environmental harm; the supervision of public and private actors regarding their compliance with environmental standards; the implementation of public participation procedures and the provision of sufficient and timely information on activities that may affect the environment in which communities live. 145he second category involves situations where the right to a heathy environment is invoked independently from civil and political rights.An example could relate to climate change, where applicants allege that their human rights have been violated by the State's failure to take sufficient action on climate change and to prevent human rights violations caused by environmental degradation.Admittedly, this type of case would bring the IACtHR into uncharted waters and raise complex issues. 146The Court could further develop State obligations in light of evolving environmental standards under the international corpus iuris.It could also clarify the level of harm that needs to be shown by the alleged victims in order to demonstrate a violation of the right to a healthy environment, as well as the criteria for establishing causality between the State's act or omission and the harm caused.
At the same time, it seems important to improve conceptual clarity by explaining how considerations of 'humanity' and the nature of the right to a healthy environment as a 'universal value' relate to legal requirements that derive from it.It would be useful to detail the specific rules that emerge from such a 'universal value' and to flesh out the legal contours of the right further.This would allow potential applicants to know what can be invoked before the Court and would also strengthen legal certainty regarding the collective dimension of the right.Moreover, given that the Advisory Opinion refers to the value being owed to future generations, the Court could shed some light on the balance between the freedoms and obligations of the current and future generations that derive from it.
In addition, the Court could rely on the principle of progressivity encompassed in Article 26 to develop the collective aspects of the right.As the IACtHR has pointed out, Article 26 gives rise not only to immediate obligations but also to progressive ones.The latter concern 'the adoption of provisions, especially of an economic and technical natureto the extent of available resources and by either legislative or other appropriate meansto achieve progressively the full realization of certain [ESCER]'. 147They include 'a sense of progress, which calls for an effective improvement of the enjoyment and exercise of these rights, so that social inequalities are corrected and the inclusion of vulnerable groups is facilitated'. 148Applying the principle of progressivism would be a complex task that could, nevertheless, allow the Court to assess the domestic legal framework, public policies and specific measures related to environmental protection.Finally, if, as suggested in the Advisory Opinion, the Court decides to consider cases where 'evidence of risk to individuals' is not required, it would be important to explain how this would be possible under the current procedural rules relating to the competences of the Commission and the Court, and who would have standing in such cases.Even though Article 44 of the ACHR provides a broad basis for jurisdiction rationae personae, the Commission has interpreted this in a way that requires victims who have been 'individualized and identified', 149 or in certain circumstances potential victims who are 'at imminent risk of being directly affected by a legislative provision'. 150Furthermore, the Court has stated that petitions in abstract cannot be processed in contentious cases. 151Therefore, it seems that some core aspects of the right would not be justiciable unless these rules are revisited. 152Having said this, petitions in abstract can fall within the Court's advisory jurisdiction. 153This could provide an opportunity for the IACtHR to assess whether the domestic regulatory frameworks in place contribute to the exacerbation of environmental risks and whether they are effective in mitigating the human rights impact of known or foreseeable risks.Moreover, it would allow the Court to provide guidance on adaptation measures to enable States to reduce the impact of environmental degradation on their population.

the
Human Rights Judiciary: Elements and Implications of a Normative Theory' (2013) 14 TheoInqL 339. 140eg, Venezuela denounced the Convention in 2012.Venezuela also submitted its withdrawal from the OAS Charter in 2017 and Nicaragua in 2021.The Dominican Republic challenged the jurisdiction of the IACtHR in 2014.It stopped appearing before it and reporting on compliance to the Inter-American institutions.IACmHR, 'Annual Report 2019.Follow-up Recommendations Issued by the IACHR in its Country and Thematic Reports' 775 <https://www.oas.org/en/iachr/docs/annual/2019/docs/IA2019cap5RD-en.pdf>; and Soley and Steininger (n 135) 250. 141In general, R Urueña, 'Double or Nothing?The Inter-American Court of Human Rights in an Increasingly Adverse Context' (2018) 35 WisIntlLJ 398. 970 145  ibid.146Climate change litigation raises similar questions and debates in the context of the European Court of Human Rights.See C Heri, 'Climate Change before the European Court of Human Rights: Capturing Risk, Ill-Treatment and Vulnerability' (2022) 33 EJIL 925; A Zahar, 'The Limits of Human Rights Law: A Reply to Corina Heri' (2022) 33 EJIL 953.972 International and Comparative Law Quarterly https://doi.org/10.1017/S0020589323000416Published online by Cambridge University Press 20 16 Case of the Yakye Axa Indigenous Community v Paraguay, IACtHR Series C No 125 (17 June 2005) paras 161-168, 176. 17Case of the Saramaka People v Suriname, IACtHR Series C No 172 (28 November 2007) paras 120-122; Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, IACtHR Series C No 79 (31 August 2001) paras 148-149.
See Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, IACtHR Series A No 10 (14 July 1989) paras 43, 45.
20For rules of interpretation of the ACHR, see ACHR (n 1) art 29.The Court also refers to art 31(3) of the Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, as a basis for relying on international corpus iuris.
Case of Cuscul Piraval et al v Guatemala, IACtHR Series C No 359 (23 August 2018) para 146. 26For a detailed exposition of different schools of constitutional thought in Latin America, namely neo-constitutionalism, new constitutionalism and egalitarian-dialogic constitutionalism, see A Coddou Mc Manus, 'A Critical Account of Ius Constitutionale Commune in Latin America: An Intellectual Map of Contemporary Latin American Constitutionalism' (2022) 11 GlobCon 110.For critical approaches to transformative constitutionalism, see A Rodiles, 'The Great Promise of Comparative Public Law for Latin America: Towards Ius Commune
See Charter of The Organization of American States (signed 30 April 1948, entered into force 13 December 1951) ch VII <http://www.oas.org/dil/1948%20charter%20of%20the%20organization%20of%20american%20states.pdf>. 61 extended criticism on this point see, Partially Dissenting Opinions of Judge Vio Grossi paras 62-68 and Judge Sierra Porto paras 9-10 in Lhaka Honhat (n 4).Similarly, see Partially Dissenting Opinions of Judge Vio Grossi pages 10-13 and Judge Sierra Porto paras 7-14 in Lagos del Campo (n 8), where the Court cited arts 34, 45 and 46 of the OAS Charter.More recently, see Partially Dissenting Opinion of Judge Patricia Perez Goldberg in Case of Brítez Arce et al v Argentina, IACtHR Series C No 474 (16 November 2022) paras 8-12.In addition, for a critical view on the use of sources of international law and the rules of treaty interpretation by the Court, see Judge Sierra Porto in Poblete Vilches (n 11) paras 16-22 and in Lagos del Campo (n 8) paras 40-43.Along similar lines, Judge Vio Grossi criticizes the Court for its use of non-binding sources that are not 'designed to interpret' the ACHR, in Lhaka Honhat (n 4) para 34, but see also more broadly paras 9-61.Also see GL Neuman, 'Import, Export, and Regional Consent in the Inter-American Court of Human Rights' (2008) 19 EJIL 101.62Indicatively, see Partially Dissenting Opinion of Judge Vio Grossi in Lhaka Honhat (n 4) paras 69-87.Also see Partially Dissenting Opinions of Judge Vio Grossi pages 7-8 and Judge Sierra Porto paras 15-20 in Lagos del Campo (n 8).