Environmental Human Rights Jurisprudence at the Inter-American & European Systems of Human Rights.

Environmental human rights jurisprudence of the Inter-American & European Systems of Human Rights. In this globalize world, another era is starting, the era of the governance of the commons1 and environmental protection as a common concern of humanity. People belonged to the earth and not vice versa. People have been using and affecting its natural resources and people are also being harm as a consequence of that. Every day the consequences are more obvious and many think, especially scientists, that our future is really uncertain. Peoples have the inherent right to live in an adequate environment2 and the obligation to act3 to change positively the conditions and habits of destruction we have developed. Citizens of all nations are becoming more informed and acting more assertively every day. Laws and institutions cannot be the exception to contribute to this effort. We have the obligation to adequately conform our legal systems and norms to contribute to this new trend of sustainability and protection of the Earth’s conditions for our wellbeing. In the international law, despite the existence of several environmental treaties, none of them give the possibility for individual complains. Paradoxically, some regional human rights systems, though they do not consider the right to a clean or adequate environment 1 Elian Ostrom, the Nobel winner in “Governing the Commons: The evolution for institutions for collective actions.” Through a thorough study of different local environmental activities, like fishing, forestry, etc, argued that the local people have been almost always able to find solutions to environmental dilemmas, therefore the solution is empower the communities. 2 Principle 1 of the Stockholm Declaration: Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and wellbeing. 3 “1. Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights the right to life itself”. Preamble of Stockolm Declaration if the United Nations Conference on the Human Environment. 1 as a human right or as an enforceable right through the complaint systems, the allegation of procedural rights (information, participation or access to justice) has opened the door to international complaints. Disregarding the discussion and various interpretations about whether the environment is a human right or not, it is evident that all of the environment affects the people in some of its rights and therefore the institutions available to act against negative affects have to respond in a consistent manner. The present paper analyzes the role of the Inter-American Human Rights System and the European Human Rights System in responding to this human challenge, through a revision of its case law and jurisprudence. In the conclusion, the paper tries to examine what are some of the inherent values protected by each system, its similarities and differences. Inter-American Human Rights System Mostly all of the jurisprudence of this regional system was made through the protection of indigenous communal land, under Article 21 of the Convention (Right to Private Property) laying on the importance for the indigenous communities to protect its environment and natural resources as a pivotal part of its millenarian tradition. In the case Jakye Axa Indogenous Community vs Paraguay, the Court expressed it in this way: “To guarantee the rights of indigenous peoples to communal property, it is necessary to take into account that the land is closely linked to their oral expressions and traditions, 2 their customs and languages, their arts and rituals, their knowledge and practices in connection with nature, culinary art, customary law, dress, philosophy, and values”4 As it shows, despite the complete lack of mention in the American Convention on Human Rights of indigenous rights, environment or access to natural resources5, the Inter-American System has made a pro homine interpretation to secure the rights, traditions and resources needed by the indigenous populations around the Americas. The Commission and the Court have relied on fundamental rights to interpret its cases; the right to life, liberty and security (Article I of the American Declaration of the Rights and Duties of Man)6, the right of health (Article XI of the American Declaration), right to life (Article 1 of the American Convention of Human Rights), right to private property (Article 21 of the American Convention of Human Rights) and the right of Self Determination (169 International Labor Organization –ILO Convention-), and more recently the rights under the United Nations Declaration on the Rights of Indigenous Peoples7 . In conjunction with these rights, the Court have considered in its legal reasoning, the obligation of the States to respect rights (Article 1 of the American Convention of Human Rights). 4 Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgement of June 17, 2005. Series C No. 125, par. 154. 5 “None of the provisions addressing rights that might include religious peoples’ interest in historical territories and natural resources contemplate their potential applicability to such environment interests”. Svitlana Kravchenko. et al., Human Rights and the Environment. Cases, Law and Policy in Regional Human rights Instruments and Institutions. p. 172. Carolina Academic Press. (2008). 6 American Declaration of the Rights and Duties of Man. OAS. Res. XXX. Adopted by the Ninth International Conference of American State (1948). OEA/Ser.LV/II.82 doc.6 rev.1 at 17 (1992). 7 United Nations Declaration. Adopted by the UN General Assembly by Resolution A/61/295, 61st period of sessions (September 13, 2007) 3 It is important to mention, that eventhough the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights8 (also knowing it as San Salvador Protocol), especially consider through its Article 119, the Right to a Healthy Environment. This is still consider a programmatic right, not enforceable through the complaints system, exception made for trade union and education complaints. Despite the fact that the majority of the American States have declared their ownership over their natural resources, subsoil and minerals, the Inter-American Jurisprudence has interpreted in favor of indigenous communities the protection of its access through an extensive interpretation of the right of property, health, life, consultation, benefit of the project and access to justice and reparations, especially in extractive activities.10 The great majority of cases resolved by the ICoHR have behind either an activity or infrastructure project run by a non state actor (generally transnational companies) or run by the same State, affecting indigenous land or the provision of natural resources connected with it. Therefore, the primary function in the case law concerning with environmental human rights law is “[t]o allow individual self-actualization by protecting each person from abuse of power by State agents, and by ensuring that basic 8 OEA/Ser.L.V/II.82 doc.6 rev.1 (1992) Article 11. Right to a Healthy Environment “1. Everyone shall have the right to live in a healthy environment and to have access to basic public services. 2. The State Parties shall promote the protection, preservation, and improvement of the environment”. 10 “The Inter-American human rights system does not preclude this type of measure; it is legitimate, in principle, for State to formally reserve for themselves the resources of the subsoil and water. This does not imply, however, that indigenous or tribal peoples do not have rights that must be respected in relation to the process of mineral exploration and extraction, nor does it imply that State authorities have freedom to dispose of said resources at their discretion” in Indigenous and Tribal People Rights over Their Ancestral Lands and Natural Resources. Norms and Jurisprudence of the Inter-American Human Rights System. IACHR. 2010. pag. 75. 9 4 needs can be fulfilled [and that] States also must exercise due diligence to prevent human rights violations by non-state actors”11. Regardless of legal standing, the Commission has accepted collective complaints, though the victims have to be identified12, and the burden of proof is fairly low and, before the Court, unlike domestic courts, the burden of proof is on the State.13 Besides the vast indigenous jurisprudence, there are other environmental cases, analyzed by the Inter-American Commission on Human Rights but either they were dismissed or have not been presented yet to the Court. Awas Tingni Mayagna (Sumo) Indigenous Community v. Nicaragua. This is the first relevant case where an environmental issue was brought by the InterAmerican Commission on Human Rights to the Court on June 4 of 1998. The allegations were against the State of Nicaragua for granting a concession to timber to a SOLCARSA, a subsidiary Korean company, in the territory of the indigenous community and without consultation. The community members complained about the violations of their rights of cultural integrity, religion, equal protection and participation in the government. 11 Romina Picoletti, et al., Linking Human Rights and the Environment. In The Environment Jurisprudence of International Human Rights Tribunals. (Dina Shelton) P. 1. The University of Arizona Press. (2003). 12 See. Op cit. In Environmental Advocacy and the Inter-American Human Rights System. (Jorge Daniel Taillant) p. 131. 13 Ibidem 5 On 31 august, 2001, the Courts judgment was issued, condemning the State for violating the rights to judicial protection (Article 25 of the ACHR), and the right to property (Article 21 ACHR) ordering the State “to adopt domestic laws, administrative regulations, and other necessary means, to create effective surveying demarcating and title mechanisms for the properties indigenous communities, in accordance with customary law and indigenous values, uses and customs”14. For reparation of non material injury the Court awarded $50,000 US dollars for public work and service for the community and 30,000 US dollars for legal fees and expenses. The final judgment of this case was based on the main violation by the State of failure to make the demarcation of communal land of the community. Yanomami v. Brazil. This case is different because raised the issue of harming the health and wellbeing of the community by a government activity which connected non-indigenous with the indigenous Yanomamy, and caused them contagions of different diseases with no access to treatment. The Yanomami community alleged violations of the American Declaration of the Rights and duties of Man, argued also violations of their right to life, liberty and personal security cause by the construction of a highway over their territory. The Commission in its holding articulated the relationship between the person’s right to environment within the exercise of the procedural rights in this terms: “[c]onditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be 14 Dina Shelton. Human Rights and the Environment: Jurisprudence of Human Rights Bodies. Environmental Policy and Law 32/3-4 IOS Press. (2002) p. 161 6 respected as a human being [...]The quest to guard against environmental conditions which threaten human health requires that individuals have access to: information, participation in relevant decision-making process, and judicial recourse”15 Claude Reyes v. Chile This case represents a relevant and different approach, because shows the importance and link between the exercise of procedural rights with the defense of the environmental rights, through the asses of the costs and benefits an environmental related project have. It is also relevant because connected the procedural right of information (Article 13 of the ACHR), Right to a Judicial Protection (Article 25 of the ACHR) with the Obligation of the State to Respect the rights (Article 1), caused by a refusal from the State to provide to the plaintiff the information of the suitability and soundness of the Foreign Investment Committee (FIC) about a forestry project. During the proceeding the court evaluated the defendants argument lied on “privacy right of the company” to not disclose the information required by the Claude Reyes and others about transparency standards already established in the Chilean Constitution. Among the allegation of Plaintiff Claude Reyes was the link between the exercise of the right to information with the possible relevant participation from the public in order to “make a technical, financial and social evaluation of the project, and [to asses] the 15 Dina Shelton. Human Rights, Health & Environmental Protection: Linkages in Law & Practice in Yearbook of Human Rights and Environment. Volume 6-2006. p. 247. 7 potential[...] development of the region [and] of the country [as a result] of the project.”16. In its judgment, the Court found that the State of Chile violated the rights of freedom of thought and expression and the right to judicial guarantees and judicial protection of the plaintiffs, therefore the State has to provide the required information within six months or “adopt a justified decision in this regard”.17 Oscar González Anchurayco and members of the Community of San Mateo de Huanchor. (Precautionary Measures) In 2004, the Inter-American Commission granted Precautionary Measures to protect the life and integrity of Oscar Gonzales and the members of his community for possible acts of pollutions emanating from a open-air mine located near to the communities. The people have been showed health problems probably related with the toxicity emitted by the mine activities, and children had higher concentrations of heavy metals. In light of that, the Commission requested the Peruvian State “to implement a health assistance and care program for the population, particularly for children, to identify the persons who might have been affected by the consequences of pollution and provide the relevant medical care; and to begin transferring the deposits in accordance with the best technical conditions as determined by the relevant environmental impact study.”18 16 Svitlana Kravchenko, et al. Human Rights and the Environment. Cases, Law and Policy. Chapter 6 Right to Information. Carolina Academic Express. 2008. P. 241. 17 Ibidem p. 244 18 http://www.cidh.org/medidas/2004.eng.htm (Last view June 4th, 2012). 8 Though this decision does not constitute formal jurisprudence, it constitute very relevant because opened the road to similar measures in favor of other country’s cases.19 Mercedes Julia Huenteao Beroiza et al. V. Chile (Precautionary Measures) The Mapuche indigenous community filed a case before the IACHR against the construction of an hydroelectric dam (Ralco) that would have negative impacts on its territory and culture. The Commission granted Precautionary Measures in favor of the community requested the State to stop the construction until it issue the decision in this case. During the proceding, the community and the State of Chile signed an friendly settlement, the community gave its land to the State to finish the project and in exchange the government gave the community land in the same quality, established a scholarship for every family in the amount of $300,000 and adopt domestic legislation to protect in the future the information and consultation of the indigenous peoples. It is very remarkable the end of this case, considering that with the agreement the community set a favorable precedent for the respect of the indigenous right in the future, which already have showed a positive impact domestically with some resolutions in favor of the consultation and environmental rights. For instance the recent Supreme Court’s decision against a mine run by Goldcorp in Chile which environmental authorization was suspended for lack of consultation of the indigenous people20. 19 20 See Precautionary Measures in favor of members of Sipacapa in Guatemala http://www.jornada.unam.mx/2012/05/01/mundo/031n3mun 9 European Human Rights System This system have based the development of its jurisprudence in the list of rights contained in The European Convention for the Protection of Human Rights and Fundamental Freedoms (knowing as European Convention on Human Rights –ECHR-), signed in 1950 and entered into forced in 1953, before any of the international instruments of environmental law were created, this is the reason there is no reference to environment on this Convention. In 1976 with X and Y v. Federal Republic of Germany the former Commission knew the first case under an environmental allegation, this case was dismissed for being “manifestly ill-founded”, but in 1990 the Court started to have a more embracing approach with environmental matters. The Court has found violation in cases of environmental harm, through a broader interpretation of the conventional rights such as the right to life (Article 1 of ECHR), of private and family life (Article 8 of ECHR), the right to information (Article 10 of ECHR), right to an effective remedy (Article 13 of ECHR). In a couple of cases, the Court had held the interpretation by states that within the lists of human rights recognized by the ECHR, there is no right to a clean environment, but under article 8 (Right to respect for private and family life) of ECHR the Court based its attributions of revisions to the State’s decision to conclude whether the decision making process was fair and whether the State lawfully balanced the individual and the “public” or communal rights at stake. 10 The courts jurisprudence is based on a wider margin of appreciation for the States under ECHR and the doctrine of proportionality, balancing the interest of the individual with the community as a whole, but always within its supervisory function. The analysis of the cases includes jurisprudence before 1998 and after that, where the Human Rights Act was approved. The case of Fadeyeva v. Russia was decided in 2005, 5 years after UK signed HRA. This is an important to mention considering the HRA and its possible “horizontal effect”, or in other words if “the rights provided operative between individuals or against non-public authorities or other individuals for which the State may be found liable”21 The required legal standing before the European Court is establish in Article 34 of the ECHR and is open for individuals, nongovernmental organizations and or groups of individuals. X and Y v. Federal Republic of Germany In 1976 was the first submission of a case under the allegation of environmental rights. The plaintiffs, an environmental nonprofit organization argued violation of article 2 Right to Life, article 3 (Prohibition of torture) and 5 (Right to Liberty and Security), for the use in the adjacent land for military purposes. The Commission dismissed the case, for incompatibility rationae materiae with the ECHR, considering that the Convention did not include such a right. 21 Fitzmaurice and Marshall, pag. 133. 11 Raynor and Powell v. United Kingdom In the 90’s this case was submitted by people being affected by noise from day flights to and from Heathrow Airport, alleging the violations of Articles 8 and 13 (Right to an effective remedy) of the Convention. The Court judged in favor of the State considering that even though the quality of life of the applicants have been disturbed, the economic necessity of the airport is necessary for the wellbeing of the society. “The Court finally decided that in areas such as the regulation of noise pollution, the Court can only fulfil a subsidiary role and that the State authorities are best equipped to deal with such a complicated and difficult social and technical problem. Therefore “this is an area Contracting States are to be recognized as enjoying a wide margin of appreciation.” 22 This argument path was followed in the next cases the Court reviewed when the interest of a person under article 8 is alleged and confronted with activities with a social function. The two Hatton Cases. These cases were submitted in 2001 and 2003, respectively, concerning night flights over Heathrow Airport, disturbing the sleep of the applicants, who argued violations of Article 8 and 13 of the ECHR. The Government responded saying that already imposes more restrictive measures to solve the problem. The Chamber analyzed whether the State took apropiate measures to secure the rights of the applicants, explaining that “in striking the required balance, States must consider the whole range 22 Fitzmaurice adn Marshall. Op cit. Pag. 116. 12 of material considerations. Furthermore, in the particularly sensitive field of environemental protection, mere reference to the economic well-being of the country was not sufficient to outweigh the rights of others”.23 In this case, the Court established “it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights”24 Fadeyeva v. Russia Air pollution/ Non-States Actors/ State duty to take reasonable measures to secure the rights/ balancing rights of the individual and the community as a whole/ doctrine of proportionality/ margin of appreciation. In 2005, the case of Fadeyeva v. Russia, from a steel plant owned by a private company, the plaintiff resident in the neighbor asked and obtained a resettlement because the level of exposure of pollution was to high. It was already prove that at least 95% of the pollution in Cherepovets (the neighbor) was because of this factory and, moreover, that the level of the morbidity of the residents in this town was extremely high because of the air pollution. Though the Plaintiff got a resettlement measure from the government numbered his case 6,820 on the waiting list to be attended to, so he try to get some remedy within the local authorities but his case was dismissed. 23 24 Ibidem p. 120. Ibidem 13 The plaintiff based her complain on article 8 of ECHR. The government argued the degree of harm was too high to be considered as a violation of article 8. The court said that two components have to be fulfilled to consider the violation, in its words: “in order to fall under Article 8, complaints relating to environmental nuisances have to shows, first, that there was an actual interference with the Applicant’s private sphere, and, second, that a level of severity was attained”25. The Court, further, also noted that the State already accepted that the degree of pollution was extremely high and that is the reason for the State to grant a relocation measure. In terms of the State’s responsibility, the Court also noted that the Steel company was not owned by the Russian Government, therefore there was not direct responsibility of the State, though there was a State duty to protect applicants right under article 8(1) of the Convention, in this case, through regulating the industry activities. At the end, the Court used the same reasoning process used already in the second Hatton case, considering its function as a subsidiary body and leaving a broad margin of appreciation to the State, because environmental policy and conflicts, in its opinion, are best handled by domestic tribunals. For this reason, the Court just review the fairness in the decision making process under which the State did not give primary attention to the plaintiff’s resettlement and also the reasons for the State to continue with the Steel plant, in other words, the court review if the exception accepted by Article 8(2) of ECHR to deprive the right of private and 25 Case of Fadeyeva v. Russia, 9 June 2005, Application No. 55723/00. 14 family life, was met. The Court concluded that there was a violation against the plaintiff of article 8 of ECHR. Especially relevant is that the Court continued using the same “formula” of a wider margin of appreciation in environmental cases in favor of the State and keeps its obligation to review the domestic process and decide whether or not the exception argue for the State was lawful. Also interesting was the emphasis made by the court stating that ECHR does not include a right to a clean environment “and environmental issues, in so far as they relate to human rights, are relevant only in the context of their effect on home, private and family life, i.e. within the legal framework of Article 8, and not as an independent human right to a clean environment”. 26 Gomez v. Spain The plaintiff is disturbed by the noise from night clubs around his residence. His complaint is based on the State’s failure to provide reasonable and appropriate measures to avoid harm produced by the noise from the commercial stores permitted by the State. Like in the Fadeyeva case, Gomez relies on the violation of Article 8 of the ECHR. In its allegations, the State of Spain argued that plaintiff did not show evidence of the level of noise in his apartment. The Court rejected that allegation under the basis that the State already designated this area as “acoustically saturated zone”27, so this is the 26 Fitzmaurice and Marshall. The Human Right to a Clean Environment-Phantom or reality? The European Court of Human Rights and English Courts Presective on Balancing Rights in Environmental Cases, in Nordic Journal of International Law (2007), pag. 131. 27 “Defined in terms of the relevant Valecia byelaw of June 28 1986 as an area in which a large number of establishments, activity of the people frequenting them and passing traffic expose residents to high levels 15 evidence. The State had therefore failed to discharge its positive obligation to guarantee the applicant’s right to respect for her home and private life in breach of Article 8 of the Convention.28 Though very similar in argumentation with Fadeyeva, this case shows the difference of obligations of the State. In Fadeyeva, the Court analyzed if the State during the decision making process evaluated and balanced in fairness the rights of the plaintiff and the rights of the community as a whole, because in Fadeyeva the activity was related or linked with a public interest, while in Gomez the Court did not consider the public interest feature. Conclusions 1. Though the right of the environment is not yet among the lists of enforceable rights in both the European and the Inter-American systems, the respective Courts have being responding, showing sensitivity and openness to the environmental cases. 2. Despite its vagueness and lack of precise recognition as an enforceable right itself, both systems are the only possibility nowadays for the victims of environmental pollution to file a complaint against State’s actions in an international forum. of noise and cause them serious disturbances” in Case Note of Environmental Law Review 8 (2006). P. 226. 28 Ibidem 16 3. The European and the Inter-American approaches to interpret the environmental human rights, is completely different. While the European Court’s jurisprudence has been based mainly on article 8, the right of private and family life, in the Inter-American System the most extensive jurisprudence has been developed through an extensive interpretation of article 21 of the ACHR, the right of private property, using it as secondary source of interpretation the ILO 169. Hence, the two interpretations contain different values. 4. The Inter-American Court considers the right to live in an adequate environment for indigenous populations as part of the collective right of communal property. The European Court based its interpretations of environmental rights from a particular right to a private and family live. Though seems that in some cases, the outcome of this interpretation had a social protection, by protecting the family instead of private life, mostly the EcoHR reviews the balancing of the rights between the individuals rights and the community as a whole. As M. Wilde’s idea was considered by Fitzmaurice: “the rights of other family members are assessed as vague and in the realm of environmental interests assigned to the human rights field (public law area). In order to strengthen relevant human rights, they could be elevated to “something akin to property rights”, for example, by widening the notion of standing in environmental matters””.29 5. Among the similarities between the two systems are in some cases the Courts holdings considering the respect and implementation of procedural rights, like 29 M. Wilde, “Locus Standi in Environmental Torts and the Potential Influece of Human Rights Jurisprudence” 12 RECIEL (2003), P. 294 quoted in Fitzmaurice and Marshall, Op cit., pag. 151. 17 the right of access to information, participation in the decision making process, and access to remedy and fair trial as an integral part to exercise the right to environment. Procedurally, they both protect people’s intervention in the decission making process as a fundamental value to protect. 6. Two contrary values have been protected by the Systems. While the InterAmerican System mostly protects the communal land, and its inherent and not pecuniary value for the indigenous people for the use of natural resources, the European System accepts the breach of Article 1, Protocol 1, when it is proved that as a consequence of pollution, a substantial reduction of the value of property has been done and the State did not compensate it. Both systems share in a way the starting point in the interpretation, the land or property, but the two regions have completely different values behind them, for the indigenous nature is irreplaceable, and for the Europeans it is something that can be economically compensated for. 7. The jurisprudence of the Americas higlight sensitive issues, around the conflicts over ownership of land and natural resources, whether it is the resident community or the government which has actual control over it and access to them. Related to this, there is a third party, the trasnationals. In many cases, the government has been supporting the transnationals interest without considering the indigenous rights, for example, in the Awas Tingi Case with the sponsorship of the State. These cases are confronting the rights of economic development with participation, sustainability and access to resources. One issue that has yet to be addresed is the hierarchy of rights between the transnational, the 18 government and the communities over the natural resources. The jurisprudence had shown that this cases complete a vicious circle where the imparments like discrimination, land conflicts and poverty, where the government has responsibility, are also fertile grounds which invite the abuse of transnationals with State complicity. 8. In the case of Europe, the jurisprudence is more individualistic, had considered the effects of the violations on an individual or a family, though it is possible to present collective complaints, the issues raised being about air pollution and noise and not related with communal resources. 9. In both systems procedural rights have being consistently used to exercise the environmental rights, such as access to information, participation, consultation and access to justice. 10. In both systems the Court imposes on the State the duty to guarantee and protect the rights of the persons (Inter-American System) and the positive duty of the State to take reasonable measures to protect the right of the persons. (European System). 11. In both Regional Systems the jurisprudence is still been written, specially the Inter-American Court has some relevant and different cases to solve, these cases probably will change the understanding of the Court to handle the violations of environmental human rights. 19 20