Opposition to a trans-oceanic canal in Nicaragua has prompted an international court to rule environmental protection is a human right.Opposition to a trans-oceanic canal in Nicaragua has resulted in an international court ruling that environmental protection is a human right. Photo credit: Jorge Mejia Peralta via Flickr

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By Ucilia Wang

The Inter-American Court of Human Rights has issued a landmark opinion that equates environmental protection with human rights, a conclusion that could force countries in Latin American and beyond to tackle climate change more aggressively.

The advisory opinion represents the first time the Inter-American Court has recognized a fundamental right to a healthy environment, a concept that may seem abstract but could impact interpretations of existing laws and improve environmental protection.

That concept isn’t new, but it hasn’t been widely applied by courts. The opinion comes at a time when a number of climate lawsuits have been filed around the world to try to establish the same or similar legal principles and pressure fossil fuel companies and governments to cut emissions.

“We think this decision will be used as a tool to strengthen ongoing litigation on human rights and the impact of climate change nationally and internationally,” said Astrid Puentes, co-director of AIDA, an advocacy group that filed an amicus curiae brief in this case.

The court was created in 1979 to enforce the American Convention on Human Rights, which has been ratified by most of the countries in Central and South America. The court hears cases brought by those governments or the Inter-American Commission on Human Rights.

Its decision has immediate implications for a recent case in Colombia. A lower court on Monday ruled against a group of 25 youths who petitioned last month to require the government to stop deforestation. The plaintiffs cited their constitutional rights to life and a healthy environment in their filing.

The youths planned to appeal, said Camila Bustos, a researcher with Dejusticia, the nonprofit advocacy group that filed the petition.

“We were glad that the (Inter-American) Court has set such an important precedent on environmental rights. It strengthens our arguments, and we will definitely cite it in the next step of the lawsuit,” Bustos said.

While the court’s opinions have legal impact, they can also influence decisions made elsewhere, especially given that human rights protection is considered a global issue that’s addressed through a number of international agreements and legal systems, such as the International Court of Justice in the Hague, said Carroll Muffett, president of the Center for International Environmental Law, a public interest law firm in Washington, D.C. that also filed an amicus curiae brief.

The seven judges of the Inter-American court took particular care to mention climate change in their opinion. They cited the Paris Climate Agreement, in which nearly 200 countries committed to cutting emissions and capping global warming to within 2 degrees Celsius above the pre-industrial levels.

The opinion is considered advisory because it isn’t a ruling about a legal dispute. It’s an answer to a question from Colombia, which wanted to know how human rights law applies to large-scale infrastructure projects in the Caribbean. The court reached its conclusion last November but didn’t publish it until last week.

Colombia posed the question after it was upset with decisions by the International Court of Justice over an ongoing territorial dispute with Nicaragua. Nicaragua plans to boost oil drilling off its coast and build a $50 billion canal that aims to rival the Panama Canal to increase maritime trade and generate revenue for the country.   

Colombia did not mention Nicaragua in their petition and asked instead that the review cover the Caribbean. But the judges went far beyond that and came up with a list of do’s and dont’s about the role of the governments in protecting the environment and human rights.

One of the findings in particular surprised and delighted environmental advocates: it says a government is responsible for addressing the impact of an environmental disaster even if it stretches beyond the borders. The court also said governments need to be transparent and share information with each other and the public.

“The court recognizes that the obligations to protect human rights don’t stop at a country’s borders,” Muffett said. “This opinion demonstrates the deep integration between environmental protection and the responsibility of the government to protect human rights.”

Courts in a handful of countries, such as Ireland,  the Netherlands and Pakistan, have acknowledged that connection. More climate lawsuits are underway in other countries, including Norway and the United States, to try to push for that recognition as a human or constitutional right.

The 9th Circuit Court of Appeals in San Francisco is set to decide whether to allow  Juliana v. United States to proceed to trial. The case, filed by 21 people in their teens and early 20s, contends that the U.S. government is failing to protect their constitutional rights to life, liberty and property because it continues to champion energy policies that subsidize and promote fossil fuels.

Colombia’s Constitutional Court gave its take in 2016 when it struck down provisions of federal laws that allowed exemptions for mining and oil and gas drilling in high-altitude areas with fragile ecosystems. The court ruled that the provisions violated the public’s right to clean water because these areas provided as much as 70 percent of the country’s drinking water and were capable of capturing more carbon dioxide emissions from the atmosphere than a rainforest of comparable size.