Courts advance progressive environmental rights jurisprudence

Today we are witnessing a deepening ecological crisis, including toxic pollution, climate change, deforestation and biodiversity loss.  On climate change specifically, CESCR issued a statement in 2018 cautioning how it “constitutes a massive threat to the enjoyment of economic, social and cultural rights,” and highlighting the essential role of courts and other human rights mechanisms in combating it. As affected communities, human rights advocates and other activists across the world, fight for environmental and climate justice, this issue of ESCR-Justice explores four cases that advance progressive environmental rights jurisprudence. While the cases concern Latin American countries, given the global scale of the issues at stake, the decisions are of relevance across jurisdictions.

The Inter-American Court of Human Rights (IACtHR) issued a landmark advisory opinion (OC 23/17) in 2017 wherein it held that the right to a healthy environment is a fundamental human right and detailed the obligations of states when they have caused or may cause significant environmental harm, including cross-border harm. The IACtHR explicitly mentioned climate change in the opinion, asserting that the right to a healthy environment is both an individual and collective right that includes current and future generations. Notably, the IACtHR also referenced extraterritorial obligations (ETOs), emphasizing that states’ human rights obligations extend to all people, even those outside of a states’ borders. ESCR-Net members, the Interamerican Association for Environmental Defense (AIDA), Center for International Environmental Law (CIEL), and Centro Mexicano de Derecho Ambiental (CEMDA) were among the organizations that provided input on the legal questions under consideration by the Court.

With regard to cross-border environmental harm, a significant case was decided in 2018 by the International Court of Justice (ICJ).  For the first time, it determined the level of compensation for cross-border environmental damages. In doing so, the Court also articulated its methodology for arriving at an appropriate level of compensation, recognizing the value of conservation interests and ecosystem services. The Court awarded Costa Rica USD$ 378,890.59 in damages and pre-judgment interest, and Nicaragua has already paid the compensation.

In another case concerning remedy for environmental damage, this time regarding pollution of the Matanza/Riachuelo basin, the Supreme Court of Argentina took note of implementation gaps relating to its 2008 decision in this matter, and in 2016 issued a detailed order to ensure compliance with its earlier judgment.  This decision and the original judgment provide a roadmap of measures States may take to remedy environmental damage and prevent future damage. They also elevate the importance of enforcement. ESCR-Net members Centro de Estudios Legales y Sociales (CELS), and Asociación Civil por la Igualdad y la Justicia (ACIJ) were involved in the case.

In another related development, ESCR-Net member Dejusticia litigated a climate change case on behalf of 25 children and youth, arguing that the Colombian government has been ineffective in its commitment to reduce deforestation in the Amazon in accordance with its national and international obligations, thus increasing greenhouse gas emissions, and threatening the plaintiffs’ rights to a healthy environment, health, food and water. The Supreme Court decided in favor of the youth and children, holding that “the fundamental right to life, health, basic necessities, liberty and human dignity are significantly linked and determined by the environment and ecosystem.” It found that not only can future generations bring a case for the protection of their rights to a clean environment, life and health, but that the Colombian Amazon is an entity subject of rights as well. Dejusticia drew on the reasoning of the aforementioned IACtHR judgment while litigating this case. This case is the first lawsuit in Latin America on climate change and future generations.

These landmark decisions collectively demonstrate the devastating impact of environmental harm and climate change on the enjoyment of a range of human rights and the importance of strong environmental protections. Between them the four judgments provide clarity in relation to the normative elements of environmental rights, the subject of those rights, related state obligations (including states’ extraterritorial obligations), and appropriate remedies in such cases, including in relation to cross-border environmental harm. In doing so, whether or not from an explicitly human rights perspective, the cases strengthen progressive environmental rights jurisprudence, and offer concrete tools for human rights advocates to advance litigation and advocacy to secure environmental and climate justice. These developments also illustrate the power of collective action by affected communities and civil society.

For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University, Dejusticia and Due Process of Law Foundation (DPLF)

Visit the caselaw database for more information on the case summary, the judgment and other related documents.