Contemporary environmental constitutionalism in Latin America is characterized as a movement operating on multiple levels and in dialogue with the international arena. In this context, beyond constitutional texts and global international environmental frameworks, an analysis of constitutionalism in Latin America should also consider the San Salvador Protocol, which is an additional protocol to the San Jose Pact of Costa Rica (Inter-American Convention on Human Rights), documents that are part of the Inter-American System for the protection of human rights.
The original 1969 text of the San Jose Pact of Costa Rica (Inter-American Convention on Human Rights) did not establish any right to the environment. It was only with the Additional Protocol of San Salvador in 1988 that the Inter-American system began to protect the human right to a healthy environment with the following provisions: "Everyone has the right to live in a healthy environment and to have access to basic public services" and "The States Parties shall promote the protection, preservation, and improvement of the environment."
The Inter-American System for the Protection of Human Rights includes, among other monitoring and implementation mechanisms, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
The Commission's main function is to promote the observance and protection of human rights (including the right to a healthy environment) in the Americas. It is also responsible for preparing studies, reports, and recommendations to States Parties regarding necessary measures for the protection of rights established by the Inter-American Convention on Human Rights, as well as requesting information from governments about the implementation of the Convention and submitting an annual report to the General Assembly of the Organization of American States. If a violation of a right established by the San Jose Pact is found and no friendly settlement is reached with the accused State, the Commission will produce a report that should include the facts, conclusions on the case, and recommendations to the State Party. If the issue is not resolved by the parties within three months, the case may be referred by the Commission to the Inter-American Court of Human Rights, a judicial body of the regional system with both advisory and contentious jurisdiction, composed of national judges from OAS member countries elected by the States Parties. In the event of a violation recognized by the Court, it will order the offending State to adopt measures necessary to restore the violated right, which may include compensation to the victim.
Despite recognizing the right to a healthy environment, the Optional Protocol of San Salvador also states that only violations of trade union rights, as provided in Article 8, and rights related to education, described in Article 13 of the Protocol, can be the subject of individual petitions to the Inter-American Commission. Thus, in environmental matters, both the Commission and the Inter-American Court have historically protected the environment indirectly or through “ricochet” or greening. This incidental or indirect protection means that environmental protection occurs through the recognition of other rights, such as the right to territory, the right to health and well-being, the right to life, freedom, and security, among others.
It is worth mentioning a passage from a Court decision that recognizes the interdependence between human rights and the environment and advances the protection of the environment due to its "importance for other living organisms with which the planet is shared":
The Court considers it important to highlight that the right to a healthy environment as an autonomous right, unlike other rights, protects environmental components such as forests, rivers, seas, and others as legal interests in themselves, even in the absence of certainty or evidence regarding the risk to individual persons. It is about protecting nature and the environment not only because of their connection to human utility or the effects their degradation might have on other human rights, such as health, life, or personal integrity, but because of their importance for other living organisms with whom the planet is shared, which also deserve protection in themselves. In this sense, the Court observes a trend towards recognizing legal personality and, therefore, rights to nature not only in judicial decisions but even in constitutional frameworks.
It can be observed that in terms of the Inter-American System, environmental protection has undergone significant evolution in recent decades. Whereas previously the environment was only protected indirectly, i.e., if damage to some other right recognized by the San Jose Pact or its additional protocols was verified, it is now considered an autonomous and interdependent good in relation to other human rights. In this sense, Advisory Opinion OC 23/2017 should be considered a major milestone for the regional system.
In 2020, the Inter-American Court issued a decision recognizing the protection of the rights of indigenous peoples in the case of the Indigenous Community of the Lhaka Honhat Association (Our Land) vs. Argentina, marking the Court's first case concerning rights to water, food, a healthy environment, and cultural identity.
According to the UN, in terms of international environmental protection in Latin America, the Inter-American Democratic Charter (2001) also deserves attention. This document recognizes that “a healthy environment is essential for the integral development of human beings, which contributes to democracy and political stability” and that “the exercise of democracy facilitates the preservation and proper management of the environment.” Therefore, according to the document, it is essential for American states to implement policies and strategies for environmental protection, "respecting various treaties and conventions, to achieve sustainable development for the benefit of future generations."
In summary, from Advisory Opinion (OC) 23/2017 (presented by Colombia in March 2016), the Inter-American Court recognized, for the first time, the protection of the environment as an autonomous right with "intrinsic value," meaning that the environment deserves protection even in the absence of certainty or evidence regarding risks to other human rights.
REFERENCES
[1] José Adércio Leite SAMPAIO. Environment Protection in Human Rights Inter-American Sistem. RDU, Porto Alegre, Volume 14, n. 77, 2017, 27-46, set-out 2017.
[2] United Nations. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights. San Salvador, El Salvador, November 17, 1988.
[3] The Commission is also responsible for examining communications submitted by individuals, groups of individuals, or non-governmental entities reporting violations of rights enshrined in the Convention by a State party, assessing admissibility based on the requirements set forth in Article 46 of the Convention. Based on this assessment, the Commission may request information from the accused States and, as appropriate, archive the communication or conduct an investigation. For further details, see Leura DALLA RIVA; Cátia Rejane Mainardi LICZBINSKI. The Legal Protection of Environmental Refugees: The Haitian Case and the Inter-American System for the Protection of Human Rights. Paradigma Journal, Ribeirão Preto/SP, Vol. XXIII, No. 1, pp. 161-189, Jan/Apr 2018.
[4] Regarding the Court's advisory functions, any OAS member—whether or not a party to the Convention—may request an advisory opinion from the Court on the interpretation of the Convention or any other treaty related to the protection of human rights applicable to American States. Additionally, the Court can provide opinions on the compatibility between national laws and international instruments, thus conducting what is called the control of conventionality of laws. Ibid.
[5] In terms of contentious matters, it is noteworthy that the Court's jurisdiction includes, as previously mentioned, examining cases involving violations of rights protected by the Convention by a State party. It is important to note that for the Court to render a judgment, it is essential that States have recognized the Court's jurisdiction through the 1969 Convention. Ibid.
[6] It is important to emphasize that the Inter-American Court of Human Rights can only review cases submitted by the Inter-American Commission or by a State party, with no provision for individual standing. Individuals may present their complaints to the Commission, as provided by Articles 46, 48, and 61 of the American Convention. Ibid.
[7] In this context, Valério Mazzuoli defines protection by "ricochet" as follows: "The technique of environmental protection through indirect means (or 'by ricochet') is based on the idea that within the current structure of international environmental law, the protection of the biosphere is effectively achieved through the indirect, yet necessary, protection of human beings." The phenomenon of greening refers to when "there is an attempt (and success) in protecting environmental rights within regional human rights systems, which are systems capable (in principle) of receiving complaints or petitions containing allegations of violations of civil and political rights." Valério de Oliveira MAZZUOLI; Gustavo de Faria Moreira TEIXEIRA. International Environmental Law and the Greening of the American Convention on Human Rights. Direito GV Journal, São Paulo, Jan-Jun 2013, pp. 208-210.
[8] Among the practical cases adjudicated involving this type of indirect protection, it is noteworthy that: "In the Inter-American Court's sphere, the first case addressing environmental issues, albeit indirectly, concerned the irregular granting of logging concessions on indigenous lands, in the Awas Tingni Mayagna (Sumo) vs. Nicaragua (Judgment of August 31, 2001. Series C, No. 79). Subsequently, the Court also considered human rights issues involving environmental matters, albeit incidentally, in the cases of N'djuka Maroon Community, Moiwana, in Moiwana vs. Suriname (Judgment of June 15, 2005. Series C, No. 124, para. 86); Indigenous Community Yakye Axa vs. Paraguay (Judgment of June 17, 2005. Series C, No. 125); Indigenous Community Sawhoyamaxa vs. Paraguay (Judgment of March 29, 2006. Series C, No. 146); Case Comunidad Saramaka vs. Suriname (Judgment of November 28, 2007. Series C, No. 172), among others." Leila BIJOS; Carmem Elisa HESSEL. Inter-American Human Rights System: Environmental Protection. Human Rights Perspectives Journal, Vol. 2, No. 2, pp. 78-98, 2016.
[9] Ibid.
[10] The Protocol states: "In the event that the rights established in paragraph (a) of Article 8 and in Article 13 are violated by an action directly attributable to a State Party to this Protocol, such a situation could lead, with the involvement of the Inter-American Commission on Human Rights, and when appropriate, the Inter-American Court of Human Rights, to the application of the individual petition system regulated by Articles 44 to 51 and 61 to 69 of the American Convention on Human Rights." United Nations. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, cited.
[11] Raquel Santos de ALMEIDA. Advisory Opinion OC-23/17 on Environment and Human Rights. Inter-American Human Rights Center. National Law School of UFRJ. 2019. Available at: https://nidh.com.br/oc23. Accessed on: April 10, 2022.
[12] Inter-American Court of Human Rights. Advisory Opinion OC-23/17. November 15, 2017. Available at: https://www.corteidh.or.cr/docs/opiniones/seriea_23_esp.pdf. Accessed September 29, 2023.
[13] United Nations. Harmony with Nature. Rights of Nature. 2023. Available at: http://www.harmonywithnatureun.org/rightsOfNature/. Accessed September 29, 2023.
[14] United Nations. Environmental Constitutionalism in Latin America. Cited.
[15] Organization of American States. Inter-American Democratic Charter. Available at: http://www.oas.org/OASpage/port/Documents/Democractic_Charter.htm. Accessed September 29, 2023.
[16] Regarding the case, it is worth noting: "The Advisory Opinion resulted from a request made by the State of Colombia on March 14, 2016. The Republic of Colombia, as the requesting party, based on Article 64.11 of the American Convention and in accordance with Articles 70.1 and 70.22 of the Rules of Procedure, requested an advisory opinion on the obligations of States concerning the environment within the framework of the protection and guarantee of the rights to life and personal integrity, so that the Court would determine how the San José Pact should be interpreted in light of the imminent risk that the construction and use of new large infrastructure projects could severely affect the marine environment in the Greater Caribbean Region and, consequently, the essential human habitat for the full enjoyment and exercise of the rights of the inhabitants of the coasts and/or islands of a State Party (which could even lead to the displacement of coastal populations) under the Pact, in light of environmental standards enshrined in treaties and customary international law applicable between respective States." Raquel Santos de ALMEIDA. Advisory Opinion OC-23/17 on Environment and Human Rights. Available at: https://nidh.com.br/oc23. Accessed April 10, 2022. For more details on the case decision, see: Inter-American Court of Human Rights. Advisory Opinion 23 on Environment and Human Rights. 2017. Available at: https://www.corteidh.or.cr/sitios/libros/todos/docs/infografia-por.pdf. Accessed September 29, 2023.
[17] For further reading on the topic, see Sophie THÉRIAULT. Environmental Justice and the Inter-American Court of Human Rights. In: Louis KOTZÉ; Anna GREAR (Ed.)
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