The Inter-American System of Human Rights: An Effective Means of Environmental Protection?
By Inara K. Scott
INTRODUCTION
Widespread environmental degradation is taking place at a rapid rate in many countries of Latin America. Transnational corporations from Malaysia, the Philippines and South Korea, after depleting their own resources, go to Central and South America to strip the land of its remaining oil and mineral deposits, mahogany, and other standing forests. They leave in their wake polluted rivers and water sources, toxic wastes, and a stunning loss of natural lands. Indigenous people, whose culture, livelihood, and health depend on the preservation of their natural lands, often pay the heaviest burden.
Human rights and environmental activists have proposed several methodologies for stopping this environmental destruction, including the use of international law (either through treaty or custom), adjudication in the United States under the Alien TortsStatute, and creation of a new International Court of the Environment. Unfortunately, most scholars have concluded that, under international law, the right to a healthy environment simply does not yet exist, although strong arguments have been made for an expansion of international norms to include this right. Even if such a right existed, however, international law can be difficult to apply and enforce. The lack of an efficient framework to redress and enforce international law has led some to conclude that a more effective forum for the adjudication of environmental disputes is a human rights tribunal. Many recent proposals seek to advance environmental protection through international human rights, in particular a human right to a healthy environment.
The Inter-American System of Human Rights, composed of the Inter-American Court of Human Rights (“Court”) and the Inter-American Commission on Human Rights (“Commission”), could adjudicate regional environmental disputes and force national governments in Latin America to regulate the development and exploitation of their lands by transnational corporations. Both the Commission and the Court adjudicate violations of human rights as defined in the American Convention on Human Rights (“Convention”). The primary difference between the two bodiesis that the Court has the authority to make judgments that are binding on member states, while the Commission can only publish recommendations. Like the European convention on human rights, the American Convention does not officially recognize the right to a healthy environment, and neither the Court nor the Commission has addressed environmental rights per se. However, either tribunal could address environmental degradation and its effect on local inhabitants in several ways.
First, the Court or Commission could determine that a particular case of environmental degradation, like the pollution of a village's water supply, violates the right to life, which is a non-derogable right guaranteed by the Convention. Alternatively, either tribunal could find on a theoretical basis that the right to life includes a right to a healthy environment. A theoretical holding would provide more protection for the environment and would allow more proactive policing of environmental harm. Growing recognition of the right to a healthy environment in Latin America supports a determination that the right to life has expanded in recent years to include the right to a healthy environment. In addition, the Court or Commission could rule that indigenous people have a distinct right to a protected environment because of their special relationship with native lands. The Commission has made findings and recommendations that directly support this argument. Finally, although a right to a healthy environment is not expressly recognized in international law, the Court or the Commission could find that this right exists under natural law, and that regional recognition of this natural right supports enforcement within the Inter-American system.
Part II of this article provides an overview of the jurisdiction and procedural framework of the Inter-American human rights system. Part III applies this jurisdictional framework to environmental disputes. This part examines the possibility of characterizing environmental rights as an extension of the right to life, and discusses recent developments in state constitutional law and international law that may prove influential to the Court in discussing a natural right to a healthy environment. Part III also describes the unique role indigenous people play in the Inter-American system and in general international law. Part IV assesses the effectiveness of the Court and the Commission, and discusses drawbacks to using the Inter-American system for the protection of the environment. Part V concludes by arguing that there are multiple ways the Inter-American system could address the environmental degradation problems facing Latin America.
Widespread environmental degradation is taking place at a rapid rate in many countries of Latin America. Transnational corporations from Malaysia, the Philippines and South Korea, after depleting their own resources, go to Central and South America to strip the land of its remaining oil and mineral deposits, mahogany, and other standing forests. They leave in their wake polluted rivers and water sources, toxic wastes, and a stunning loss of natural lands. Indigenous people, whose culture, livelihood, and health depend on the preservation of their natural lands, often pay the heaviest burden.
Human rights and environmental activists have proposed several methodologies for stopping this environmental destruction, including the use of international law (either through treaty or custom), adjudication in the United States under the Alien TortsStatute, and creation of a new International Court of the Environment. Unfortunately, most scholars have concluded that, under international law, the right to a healthy environment simply does not yet exist, although strong arguments have been made for an expansion of international norms to include this right. Even if such a right existed, however, international law can be difficult to apply and enforce. The lack of an efficient framework to redress and enforce international law has led some to conclude that a more effective forum for the adjudication of environmental disputes is a human rights tribunal. Many recent proposals seek to advance environmental protection through international human rights, in particular a human right to a healthy environment.
The Inter-American System of Human Rights, composed of the Inter-American Court of Human Rights (“Court”) and the Inter-American Commission on Human Rights (“Commission”), could adjudicate regional environmental disputes and force national governments in Latin America to regulate the development and exploitation of their lands by transnational corporations. Both the Commission and the Court adjudicate violations of human rights as defined in the American Convention on Human Rights (“Convention”). The primary difference between the two bodiesis that the Court has the authority to make judgments that are binding on member states, while the Commission can only publish recommendations. Like the European convention on human rights, the American Convention does not officially recognize the right to a healthy environment, and neither the Court nor the Commission has addressed environmental rights per se. However, either tribunal could address environmental degradation and its effect on local inhabitants in several ways.
First, the Court or Commission could determine that a particular case of environmental degradation, like the pollution of a village's water supply, violates the right to life, which is a non-derogable right guaranteed by the Convention. Alternatively, either tribunal could find on a theoretical basis that the right to life includes a right to a healthy environment. A theoretical holding would provide more protection for the environment and would allow more proactive policing of environmental harm. Growing recognition of the right to a healthy environment in Latin America supports a determination that the right to life has expanded in recent years to include the right to a healthy environment. In addition, the Court or Commission could rule that indigenous people have a distinct right to a protected environment because of their special relationship with native lands. The Commission has made findings and recommendations that directly support this argument. Finally, although a right to a healthy environment is not expressly recognized in international law, the Court or the Commission could find that this right exists under natural law, and that regional recognition of this natural right supports enforcement within the Inter-American system.
Part II of this article provides an overview of the jurisdiction and procedural framework of the Inter-American human rights system. Part III applies this jurisdictional framework to environmental disputes. This part examines the possibility of characterizing environmental rights as an extension of the right to life, and discusses recent developments in state constitutional law and international law that may prove influential to the Court in discussing a natural right to a healthy environment. Part III also describes the unique role indigenous people play in the Inter-American system and in general international law. Part IV assesses the effectiveness of the Court and the Commission, and discusses drawbacks to using the Inter-American system for the protection of the environment. Part V concludes by arguing that there are multiple ways the Inter-American system could address the environmental degradation problems facing Latin America.