I/A Court H.R., The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity – interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights). Advisory Opinion OC-23/17 of November 15, 2017. Series A No. 23.

Non official brief

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.]

 

The request - The Republic of Colombia presented a request for an advisory opinion for the Inter-American Court of Human Rights (hereafter "the Court") to rule on the status of the environment in the context of the protection and guarantee of the rights to life and to personal integrity, recognized in Articles 4 and 5 of the American Convention on Human Rights (ACHR) and Articles 1 (1) and 2 of the said treaty. Colombia submitted three specific questions, which the Court interpreted and summarized in two basic issues:

 

1. What is the content and scope of the term "jurisdiction" in Article 1 (1) of the ACHR, in the context of compliance with environmental law, particularly in relation to extraterritorial conduct of a State, or with effects beyond its national territory ?

 

2. What is the status of the general state, in relation to environmental damages?

 

Law - As a general introduction to the issue of human rights and the environment, in its Advisory Opinion, the Court recognized the existence of an irrefutable relationship between the protection of the environment and the realization of other human rights, due to the fact that environmental degradation affects the effective enjoyment of other human rights. In making this declaration, the Court made reference to the European Court of Human Rights (ECHR) case-law regarding the effects that severe environmental degradation can have on rights such as the rights to life, to privacy and to private property (the Court referenced, among others: Öneryildiz v. TurkeyBudayeva and Others v. RussiaLópez Ostra v. Spain ,Guerra and Others v. Italy , T? Tar v. Romania and Di Sarno and Others v. Italy).

 

Additionally, the Court emphasized the interdependence and indivisibility between human rights, the environment and sustainable development. Based on said connection, the Court said that: (i) numerous human rights systems recognize the right to healthy environment as an independent right, and, simultaneously, (ii) numerous other human rights are particularly vulnerable to environmental degradation, all of which results in a series of environmental conditions to ensure that they comply with their duty to respect and ensure those rights.

 

In answering Colombia's first question, the Court ruled that (i) States Parties to the ACHR have the obligation to respect and ensure the rights recognized in this instrument for all persons subject to their jurisdiction; (ii) the term "jurisdiction" in the ACHR is broader than the territory of a State and includes situations beyond its territorial limits, and thus, States must respect and ensure the human rights of all persons subject to their jurisdiction, even if they are not within its territory; (iii) the exercise of jurisdiction under Article 1 (1) of the ACHR encompasses any situation in which a State exercises effective authority or control over an individual or individuals, either within or outside its territory. Although, it emphasized that the exercise of jurisdiction outside the territory of a State is an exceptional situation that must be examined restrictively in each specific case. In reaching this conclusion, the Court referenced the ECHR's case-law concerning extraterritorial application of the European Convention on Human Rights, such as the cases ofLoizidou v. TurkeyIla? Cu and Others v. Moldova and Russia ; Al-Skeini and Others v. the United Kingdom , Chiragov and Others v. Armenia , Catan and Others v. the Republic of Moldova and Russia , Bankovi? and Others v. Belgium and others, among many more. The Court also gave the opinion that States have the obligation to prevent causing transboundary damage and that, in this respect, to a person can be considered within the jurisdiction of the State of origin, if there is a causal connection between the incident that took place on its territory and the violation of the human rights of persons outside its territory. According to the Inter-American Court, the exercise of jurisdiction arises when the State of origin exercises effective control of the activities that caused the damage and consequent violation of human rights.

 

In order to answer Colombia’s second question, the Court ruled on the States’ substantive and pro­cedural obligations regarding environmental pro­tection, which arise from the obligation to respect and ensure the rights to life and personal integrity. Regarding substantive obligations, the Court made an extensive analysis of the preventive and precautionary principles, as well as the duty of cooperation in relation to transboundary environmental harm.

 

The Court found that States must prevent signif­icant environmental damage. In order to comply with this obligation of prevention, the Court ruled that States must regulate, supervise and monitor the activities under their jurisdiction that could cause significant damage to the environment; carry out environmental impact assessments (EIA) when there is a risk of significant damage to the environment; prepare contingency plans in order to establish safety measures and procedures to minimise the possibility of major environmental disasters and mitigate any significant environmen­tal damage that could have occurred, even when this happened despite preventive actions by the State. Concerning EIAs, the Court adopted a similar criteria to that of the ECHR in cases such as Dubet­ska and Others v. Ukraine, where it was stated that for adverse effects of environmental pollution to be considered as human-rights violations, they must attain a certain minimum level relative to each case, and that elements such as the context, the inten­sity and the duration of the nuisance must be taken into account for its determination.

 

The Court also found that States must act in keeping with the precautionary principle to protect the right to life and to personal integrity in the event of possible serious and irreversible damage to the environment, even in the absence of scientific cer­tainty. Lastly, regarding substantive obligations, the Court found that States must cooperate, in good faith, when they become aware that an activity planned under their jurisdiction could generate a risk of significant transboundary damage and in cases of environmental emergencies.

 

Finally, with respect to procedural obligations, the Court found that States have several concrete obli­gations derived from the right of access to informa­tion, public participation, and access to justice, in both domestic and transboundary contexts. When addressing obligations that stemmed from the right of access to information, the Court took note of ECHR cases, such as Guerra and Others v. ItalyTackin and Others v. TurkeyMcGinley and Egan v. the United Kingdom, among others, to highlight "positive obligation to provide an effective and accessible process for individuals to access all relevant information, regarding dangerous activities that may cause environmental damage, in order for people to assess the risks to which they may be exposed. Additionally, after taking the note of the ECHR's case-law in cases such as Grimkovskaya v. Ukraine , the Court concluded that States have an obligation to guarantee public participation in environment-related policies, without discrimination, in an equitable, significant and transparent manner, for which they must have been guaranteed access to the relevant information.