The Ground-Breaking Advisory Opinion OC-23/17 of the Inter-American Court of Human Rights: Healthy Environment and Human Rights

–Domenico Giannino, Lecturer in International Law, INSEEC University (London).

Contemporary processes of environmental degradation require the creation of innovative legal tools with the objective of preserving those resources that are intrinsically essential for the life of human beings.

The Inter-American Court of Human Rights Advisory Opinion OC-23/17 – issued in November 2017 at the request of the Republic of Colombia – adopts an innovative jurisdictional approach, recognising the right to a healthy environment as a fundamental right to the existence of humankind. Once more the Court has been the forerunner of an original interpretation of the American Convention of Human Rights, with the aim of guaranteeing the strongest protection possible to the conventional rights.

Leaving aside the consequences this opinion may have for the requesting State, it is worthwhile to analyse not only the relationship between environmental protection and human rights but also the substantial and procedural guidelines, concerning environmental responsibilities, for (potentially) all the member States.

The Inter-American conventional grounds of the decision are Article 11^[1] of the additional protocol concerning economic, social and cultural rights to the American Convention of Human Rights (San Salvador Protocol); and Article 26^[2] of the American Convention. As clarified by the Court, the right to a healthy environment is expressly recognised by article 11 of the San Salvador Protocol; furthermore, such right is included in the economic, social and cultural rights, protected by article 26 of the Convention.

Moreover, the Declaration of the United Nations Conference on the Human Environment (Stockholm,1972), the Rio Declaration on Environment and Development (1992) and the Johannesburg Declaration on Sustainable Development (2002) are used by the Court as ‘persuasive precedents’ to highlight the wide international recognition of the interdependence between environmental protection, sustainable development and human rights.

According to the Court, the right to a healthy environment has both individual and collective nature. As an individual right, it is inextricably connected with other fundamental rights such as the right to health, the right to life and personal integrity. As a collective right, it is a universal interest of the generality of humankind as well as of the future generations.

In the light of Member States’ obligation to respect the right to a healthy environment as a prerequisite for the protection of the rights to health, life and personal integrity, the Court creates a substantial and procedural framework of rights and responsibilities.

The States in the cases of environmental damages – within and outside their territories – must inspire their action to a well-structured system of principles.

Firstly, the obligation to prevent any significant environmental damage that may affect the rights to health, life and personal integrity.

Secondly, the precautionary principle must be applied every time there is a risk of harm to human health.

Thirdly, States must cooperate in good faith in order to avoid environmental damages.

Lastly, the public must have access to the information regarding possible damages to the environment and its participation must guarantee in all the stages of the decision-making process. The same access rights inspire a new binding regional agreement – the Latin American and Caribbean Declaration on Principle 10 – which compels states to investigate and punish killings and attacks on people defending their land or environment.

The right to a healthy environment is recognised and protected not only due to its strict connection with other fundamental rights, but also because it is an autonomous right – having the environment its own legal personality – which protects the natural resources of our planet (oceans, glaciers, forests, the air we breathe) regardless from the presence/threat of an environmental damage. This is, perhaps, the most revolutionary passage of the advisory opinion.

The judicial perspective of recognising that the environment has its own legal personality is the main element of the creation of a Latin-American environmental ius commune. In fact, the Court highlights the regional trend to acknowledge legal personality to the environment not only in recent Latin-American High Courts rulings, but also in the majority of the constitutions of the region.

The globalized nature of the consequences of environmental damages urges the creation of innovative legal and constitutional tools. A form of “bottom-up constitutionalism” or “social constitutionalism” seems to be developing in the Latin-American continent with the two-fold aim to respond to “the highly fragmented nature of the globalized social and legal landscape in which politics has lost its leadership”, and to affirm the constituent power representative of the fundamental needs of the communities.

The major challenge of the next decades will be to find innovative political and legal tools for managing the ecological and social issues of the post-natural world, the Anthropocene. The awareness of being, as mankind, way beyond the environmental non-return point has brought the Latin-American lawmakers to the constitutional protection of original ideas like “living well”, rights of nature, and collective goods. The particular importance of these formulations is that they point towards a rethinking of contemporary models of economic development, proposing a holistic conception of life where the symbiosis between humanity and nature challenges the hegemonic paradigm of the market.

Suggested Citation: Domenico Giannino, The Ground-Breaking Advisory Opinion OC-23/17 of the Inter-American Court of Human Rights: Healthy Environment and Human Rights, Int’l J. Const. L. Blog, Dec. 1, 2018, at: http://www.iconnectblog.com/2018/11/the-ground-breaking-advisory-opinion-oc-23-17-of-the-inter-american-court-of-human-rights-healthy-environment-and-human-rights

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^[1] The article establishes that “1. Everyone shall have the right to live in a healthy environment and to have access to basic public services.  2. The States Parties shall promote the protection, preservation, and improvement of the Environment”.

^[2] The article establishes that “The States Parties 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 as amended by the Protocol of Buenos Aires”.