The Inter-American Court of Human Rights has issued a landmark advisory opinion recognising the right to a healthy environment as fundamental to the existence of humanity.
The Court was created in 1979 to enforce the American Convention on Human Rights, which has been ratified by most of the countries in Central and South America. The Court hears cases brought by those governments or the Inter-American Commission on Human Rights.
The opinion is considered advisory because it is not a ruling on a legal dispute. It was in answer to questions posed by the Colombian Government in 2016 after rising concern over the human rights implications of a trans-oceanic canal in Nicaragua, along with the implications for people residing on the Colombian Island of San Andreas. Colombia sought clarification on whether one country can be held responsible for a human rights violation caused by ecological damage in another country, and what are countries legally obliged to do in order to reduce such harms.
In its opinion, the Court explicitly mentioned climate change in asserting the right to a healthy environment as both a collective and individual right, including the right of future generations. The Court then went further in addressing extraterritorial obligations, finding that these human rights obligations extend to all peoples, including those outside State borders. For trans-boundary damage, it considered that “the exercise of jurisdiction arises when the State of origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights”. The Court also stated that governments need to be transparent and share information with each other and the public.
The decision may prove influential elsewhere, particularly in light of human rights protection as a global issue that is addressed through a number of international agreements and legal systems, such as the International Court of Justice in The Hague. The opinion maybe found persuasive when, one day, the European Court of Human Rights is confronted with a similar question as to ‘jurisdiction’ for trans-boundary environmental damage.
Click here for the advisory in Spanish.
Click here to read written observations by a number of environmental NGOs in the case.
Click here for a PILA Bulletin article on a recent Irish High Court decision on the constitutional right to an environment.