By Melina Lima, Marina Carvalho, and Catarina Baddini
Melina Lima has a bachelor degree in Law and a PhD in International Relations. She is currently an International Law Professor at IBMEC in Brazil and she leads a research group on International Law and the Amazon. Marina Carvalho and Catarina Baddini are Law undergraduate students and a researchers at International Law and the Amazon research group.
See also their previous post on the Jus Cogens Blog here.
There is no novelty in the fact that the Amazon rainforest coverage has long been decreasing, as this territory has been under attack since the beginning of the European colonization. Nevertheless, the complete lack of concern for the environment of the current Brazilian administration is taking the devastation to unprecedented levels and studies calculate that the forest could soon reach an irreversible tipping point of becoming a savannah. This tragic prospect provides quite reasonable grounds for developing the discussions on whether environmental rights are human rights. To this end, this text aims at analyzing the precedents of both European and Inter American Courts of Human Rights to understand if the current devastation of the Brazilian Amazon could alone – without considering indigenous rights – become a case before the Inter American Human Rights System.
Even though the ECtHR would not have jurisdiction over a case involving the Brazilian Amazon, international precedents can and should always be taken into consideration, since they function as an indicative of the development of the international law and its many subjects. As ruled by Article 38 (d) of the Statute of the International Court of Justice (ICJ) about the sources of international law, judicial decisions are a subsidiary means for the determination of rules of law. Moreover, environmental issues have been frequently assessed in the European Court’s decisions, which could serve as a guide and inspiration for the Inter-American Court of Human Rights (IACHR) if a case regarding the Amazon is filed.
Environmental rights as human rights in the European Court of Human Rights
Just like most – if not all – of the international human rights norms that constitute the foundation of the International Human Rights Regime, the European Convention on Human Rights (ECHR) does not enshrine any explicit right to a healthy and/or preserved environment. Notwithstanding this fact, the subject is not new to the European Court of Human Rights and the precedents on environmental issues amount to approximately 300, including topics such as pollution, dumping of toxic waste and natural disasters, amongst others. Since the environment is not mentioned in the ECHR, the Court’s judgments that addressed environmental issues were based on all sorts of provisions, such as the right to life, protection of property and the right to respect for private and family life.
Given that it is impossible to mention all the cases, we shall present two that might relate to situations occurring now in the Amazon. The case Dubetska and other v. Ukraine concerned the operation of a coal mine and the health impacts for those who lived nearby. In the Brazilian Amazon, legal and illegal mining has always been an issue and it has gotten much worse during the current administration, as the government is explicitly in favor of promoting mining even if it leads to increasing deforestation. Apart from a law project that allows mining activities in indigenous demarked lands, non-indigenous populations are at risk as well. In the Amazon region, artisanal and small-scale gold mining is ‘responsible for an estimated 71 per cent of all mercury emissions, totaling more than 200 metric tons of emissions each year’, which includes the contamination of air, water and soil. The World Health Organization has classified mercury as one of the ten most dangerous chemical substances to public health. Therefore, it is clear that the health of much of the Amazonian population is in jeopardy.
Another case that could be somehow related to the Amazon situation is Duarte Agostinho and others v. Portugal and 32 other states. Despite the fact that there is no ruling yet, it involves an environmental issue of utmost importance contemporarily, which is greenhouse gas emissions and global warming. The applicants read the ECHR’s articles in the light of the Paris Agreement (2015) and the case has brought innovations in many ways. Apart from being the first one to address climate change, the claimants presented an extraterritorial jurisdiction argument, as the environmental harm caused has a transboundary nature. Moreover, in addition from provisions commonly used, such as the right to life, the ECtHR also invoked the prohibition of torture and inhuman and degrading treatment (Article 3), which is unusual in climate change cases. Some elements of this groundbreaking case could serve as precedent to a hypothetical similar case concerning the Amazon.
The Brazilian Amazon is the largest rainforest in the world and it should play a vital role in curbing global warming. However, it has lost 34% more of its forest in 2019 than in the year before, according to INPE. The deforestation alone is one major element that causes greenhouse gas emissions, but the fact that industrial-scale cattle ranching is one of the main reasons for the deforestation of the Amazon aggravates the emissions even more, as cows release methane into the atmosphere, which is 84 times more potent than carbon dioxide. The damage that people from the Amazon region are suffering is evident, such as the increase in the number of respiratory diseases, but the harm is already probably affecting other regions of Brazil and possibly other countries too, as natural disasters such as droughts and desertification in places thousands of miles away from the Amazon, like São Paulo, have been happening. Therefore, the Duarte Agostinho case relates in some aspects to the current situation in the Amazon, as there is clearly a climate change issue to be solved and the American Convention on Human Rights could be read in accordance with the 2015 Paris Agreement as well. The extraterritorial jurisdiction may also apply, for potential victims are not necessarily located where greenhouse gas emissions originate, but elsewhere in Brazil or in other countries of the continent whose citizens might be entitled to press charges against Brazil in the American System.
Environmental rights as human rights in the Inter-American Court of Human Rights
The American Convention on Human Rights (1969), also known as Pact of San Jose, is another example of human rights law that ignored environmental issues. Nevertheless, in 1999 the Additional Protocol of San Salvador entered into force in the Inter-American System and it represented a step forward concerning environmental rights, as it’s Article 11 provides that (1) every person has the right to live in a healthy environment and that (2) the state parties will promote the protection, preservation and the improvement of the environment. In spite of this explicit provision that is legally binding for 16 ratifying states, including Brazil, its violation cannot be questioned through the Individual Petition System of the IACHR. According to Article 19 of the Protocol, only rights related to education and unions can be pleaded using the aforementioned system. The rest of the rights, including the environmental one, can only be demanded when they are connected to other rights in the Pact of San Jose.
Addressing the precedents of the IACHR on environmental issues, they are not as numerous or as diverse as those from the European Human Rights system, amounting to less than 10 cases. In addition from being less developed, the approach of the environment topic diverges considerably when we compare the Inter-American and European Human Rights Courts. Whilst the European system has had cases involving all types of violations of the ECHR, the Inter-American Court analyses environmental issues mostly in cases concerning indigenous rights violations, which many analysts consider to be an oblique or transversal path to address environmental issues.
Among the cases, two of them are especially worth mentioning for the innovations they have brought comparatively with the others. The case Comunidade La Oroya v. Peru, despite the fact it has not been ruled on by the IACHR, is considered a milestone. This is not only because it was the first case to be admitted by the Human Rights Commission that specifically mentioned an environmental degradation, but also because it was the first one that did not relate to indigenous communities. The case concerned the pollution caused by a metallurgical company in a Peruvian city and the petitioners claimed that the rights to life, humane treatment, right to health, among others were violated by the private company, but were attributable to state omissions, especially the noncompliance with environmental and health regulations. It is interesting to note that much of the current devastation in the Brazilian Amazon involves private businesses, air pollution and is largely due to state omission.
The other case is Comunidades Indígenas Miembros de La Asociación Lhaka Honhat (Nuestra Tierra) v. Argentina. Although it concerned an indigenous community, it is relevant because it was the first contentious case that the IACHR directly addressed the right to a healthy environment, condemning Argentina. The Court ruled that Article 26 of the Pact (progressive development) had been violated. Notwithstanding the fact that Article 26 does not mention the environment, the Court understood that the rights to a healthy environment, adequate feeding, water and cultural identity were implicitly comprised in it, which was an unprecedented interpretation. Since Article 26 can be applied indistinctly to any person whose country is under the jurisdiction of the IACHR, it could serve as precedent in a hypothetical case involving the Brazilian Amazon.
Apart from the decisions aforementioned, there is an Advisory Opinion (OC-23/17) of the IACHR from 2017 that is rather relevant for the development of the topic. Colombia required the Court to determine how the Pact of San Jose would be applied in relation to other environmental conventions that aim at protecting specific regions. In the Opinion, it was made clear that the right to a healthy environment is a fundamental right and that States have several obligations when it comes to ensuring that their actions do not put in jeopardy these rights. According to the IACHR, ‘This Opinion constitutes one of the first opportunities that the Court has had to refer extensively to the State obligations arising from the need to protect the environment under the American Convention’.
The contemporary attacks against the Amazon and the IACHR’s jurisdiction
Brazil has ratified the Pact of San Jose in 1992 and has recognized the compulsory jurisdiction of the IACHR in 1998. Therefore, individual petitions about the Amazon rainforest against Brazil have potential to be admitted by the Commission, which is the institution that ultimately takes the cases to the Court. The hypothetical cases would surely need to fulfill other formal requirements as well, such as proving an unjustifiable delay of the Brazilian judicial system or the exhaustion of domestic remedies, but the moot point to consider is the merits, especially the possibility of trying an environment case in spite of the lack of provisions in the Inter-American Human Rights laws. Although the environment topic is still quite underdeveloped in the Inter-American System, the international precedents as a whole clearly show that interpreting environmental rights as human rights is a growing trend. The Advisory Opinion (OC-23/17) also reveals this tendency. Therefore, considering the merits of a hypothetical complaint, one must notice that the Brazilian Amazon rainforest is in a dire situation and the world’s context of global warming makes the devastation an even more urgent matter. No one questions that environmental issues tend to affect more indigenous populations than non-native ones. Nonetheless, it is also unquestionable that a healthy environment is vital for every human being, regardless of ethnicity. It is, thus, about time that environmental rights are seen as human rights and that the IACHR addresses such cases directly, without having to take the oblique path it usually follows. And this new perspective should not mean that native populations would no longer be entitled to discuss environment matters in their cases; it simply means that the IACHR would be able to try environment cases that are not related to indigenous. We might be witnessing the first steps of a long journey in which environmental rights and human rights will merge into a single area of international law and, if nothing changes in the Brazilian Amazon, a case concerning this region could set a sad, yet historical, judicial precedent that will help consolidate this integration.