Edoardo Chiti, Alberto di Martino, Gianluigi Palombella (a cura di)
L'era dell'interlegalità
DOI: 10.1401/9788815370334/c17
The influence of the Aarhus Convention has been significant in the development of the above-mentioned procedural rights in the case law of the ECtHR, the African Commission and the Inter-American Court [80]
. In particular, in several cases, the said human rights courts adopted a particularly broad understanding of their own treaty provisions with regard to environmental matters by incorporating the elements of the Aarhus Convention rights [81]
. At the Inter-American Court, the influence of Aarhus Convention can be illustrated by Claude Reyes and others v. Chile case [82]
. The case arose out of refusal of the Chilean Foreign Investment Committee to disclose, upon request of several interested citizens, information regarding the “Rio Condor” project. The said project aimed at large-scale exploitation of forests in the southern region of Chile and sparked considerable public debate regarding its potential environmental impact [83]
. Thus, several Chilean citizens decided to inquire about the suitability of the chosen investor, as well as the potential environmental impact of the project and after their request had been denied, filed for the violation of their right to seek and receive
{p. 485}information under article 13(1) of the Convention [84]
. Unlike in the “human rights greening” cases, the Court accepted the claim, despite the fact that the petitioners in question were not directly affected by the Rio Condor project. In doing so, it explicitly referred to the Aarhus Convention [85]
and stressed that the right to obtain information of public interest, including those pertaining to environmental matters, belong to all citizens in a democratic society:
Article 13 of the Convention protects the right of all individuals to request access to State-held information, with the exceptions permitted by the restrictions established in the Convention (…). The information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied. The delivery of information to an individual can, in turn, permit it to circulate in society, so that the latter can become acquainted with it, have access to it, and assess it. In this way, the right to freedom of thought and expression includes the protection of the right of access to State-held information, which also clearly includes the two dimensions, individual and social, of the right to freedom of thought and expression that must be guaranteed simultaneously by the State [86]
.
Thus, the Claude Reyes case demonstrates the readiness of the IACtHR to strengthen the participatory aspect of environmental justice through broad reading of article 13 of the Convention under the influence of an external environmental agreement, the Aarhus Convention. By extending the standing to receive environmental information to all individuals in the society, the “environmental democracy” approach transcends the traditional victim-based human rights paradigm that was clear in the “human rights greening approach”. Instead, the adoption of the Aarhus Convention model by the IACtHR in the case allows to underscore {p. 486}the intrinsic value of environment, perceived as a matter of wider public interest, at least at the level of rhetoric. However, being purely procedural in nature, such approach falls short of consolidating the status of environmental protection as the substantive legal limit to the discretion of the decision-makers, to be balanced against other legitimate policy objectives [87]
. Thus, the third approach to environmental protection consisting in the development of an autonomous right to healthy environment, as illustrated by the IACtHR’s groundbreaking Advisory Opinion OC-23/17, will be discussed in the next section.

3.3. “Genesis Theory”: Proclaiming The Right to a Healthy Environment in the Inter-American System

Finally, the third human rights approach to environmental protection, also known as the “genesis theory”, supports the emergence of an independent right to a healthy environment, either as a part of economic, social and cultural rights or as a third generation solidary right [88]
. While this right is already acknowledged in many constitutions across the world, at the global level its existence remains contested [89]
. The proponents of recognizing the right to a healthy environment point to the deficiencies of the existing human rights framework to address environmental issues, in particular the necessity to show a causal link between environmental degradation and {p. 487}the violation of an individual right discussed above [90]
. While there are still disagreements regarding the formulation and the scope of the autonomous right to a healthy environment, the main claim is that acknowledging the said right would allow the individuals and others civil society actors to take up environmental problems in a more direct manner, without having to squeeze them into the existing instrumental human rights logic [91]
. Thus, formulating a right to environmental quality will go beyond compensating victims of specific environmental harm and will focus more broadly on preservation of natural processes and ecosystems for present and future generations, thereby highlighting environment’s intrinsic value as a public good [92]
.
Most recently, in 2018, the former UN Special Rapporteur to human rights and environment John Knox called upon the UN Human Rights Council to recognize the right to a healthy environment in a global instrument [93]
. However, as mentioned above, as of now, only the African Charter on Human and People’s Rights in its article 24 explicitly recognizes the right of all people to “a satisfactory environment”, which is directly justiciable before the African Court [94]
. In this regard, the Advisory Opinion OC-23/17, in which the IACtHR proclaimed for the first time that the autonomous right to a healthy environment is justiciable also in the Inter-American system on the basis of article 26 of the Convention may strengthen the case for further {p. 488}recognition of this right in other regional human rights systems.
The Advisory Opinion OC-23/17 arose out of Columbia’s request regarding States’ obligations in the field of environmental protection in the context of construction and operation of large-scale infrastructure projects in the Wider Caribbean Region. Colombia’s concern was that, due to their dimensions and permanence, such projects could cause significant environmental damage beyond national territory and as a result, negatively affect human rights of individuals in the whole region [95]
. In particular, Columbia asked the Court to clarify the link between the American Convention and the Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region (the Cartagena Convention), in particular inquiring whether the provisions of the Convention relating to the rights to life and personal integrity give rise to obligations in the field of environmental protection, including duties of prevention, precaution, mitigation of damage, and cooperation [96]
.
The Court, essentially, answered in the affirmative, at the same time broadening the scope of its request beyond the Cartagena Convention and the Caribbean region [97]
. Instead, the Court extensively relied upon various international environmental law instruments, including the UN Convention on the Law of the Sea, Stockholm Declaration on the Human Environment, the Rio Declaration on Environment and Development, Agenda 2030 for Sustainable Development, as well as the relevant case law of the ICJ and other international courts. In adopting, essentially, a fully-fledged inter-legality approach, the IACtHR not only affirmed the existence of the right to a healthy environment {p. 489}but also provided a comprehensive and systematic account of States’ obligations in the field of environmental protection [98]
.
To elaborate, the Court achieved the incorporation of environmental law rules and principles into the Convention by adopting the systematic interpretation of the American Convention by stressing the necessity to read the instrument as a part of the whole international legal system, including “extensive corpus iuris of environmental law” that has evolved in the recent years [99]
. In its own words:
The Court finds that (…) it must take international law on environmental protection into consideration when defining the meaning and scope of the obligations assumed by the States under the American Convention, in particular, when specifying the measures that the States must take. In this Advisory Opinion, the Court wishes to underline that, although it is not for the Court to issue a direct interpretation of the different instruments on environmental law, it is evident that the principles, rights and obligations contained therein make a decisive contribution to establishing the scope of the American Convention [100]
.
Moving specifically to the question of environmental protection, the Court started by underlying the close connection between environmental protection, sustainable development and human rights, as proclaimed in a number of soft law instruments, including the Stockholm Declaration on the Human Environment, the Rio Declaration on Environment and Development and Johannesburg Declaration on Sustainable Development [101]
. It is on the basis of the close relationships
{p. 490}between these three concepts, that the Court declared the existence of an autonomous right to a healthy environment, in its view, recognized by “numerous human rights protection systems” [102]
. While the Court acknowledged that the right to a healthy environment is affirmed in the Protocol of San Salvador, in light of its non-justiciability, it boldly grounded the existence of the right in article 26 of the Convention. Interestingly, originally article 26 of the Convention was interpreted as simply requiring the States parties to adopt necessary measures to progressively achieve the realization of the rights “implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States” (“OAS Charter”) [103]
. However, since its recent Case of Lagos del Campo v. Peru from 2017, the Court established its competence to declare direct violations of economic, social, cultural and environmental rights recognized in the OAS Charter on the basis of article 26 [104]
. Although the environmental protection per se is not mentioned anywhere in the OAS Charter, in the Court’s view, it can nevertheless be derived from the document by virtue of its articles 30, 31, 33 and 34 that refer to States’ obligations to achieve “integral development” [105]
. Indeed, the implications of including the right to healthy environment under the scope of article 26 are consequential as it makes this right directly justiciable in the Inter-American system, potentially opening the door to new categories of environmental claims [106]
. {p. 491}
Note
[80] See Boyle, Human Rights and the Environment: Where Next?, cit., pp. 623-626.
[81] See ibidem, p.624.
[82] See Pavoni, Environmental Jurisprudence of the European and Inter-American Courts of Human Rights, cit., p. 72. For an overview of the Court’s jurisprudence on procedural environmental rights, see ibidem, pp. 72-76; Shelton, Human Rights, Environmental Rights, and the Right to Environment, cit., pp. 768-774; Thériault, Environmental Justice and the Inter-American Court of Human Rights, cit., pp. 318-321.
[83] Claude Reyes and others v. Chile (Merits, Reparations and Costs), IACtHR, Case No. 161 (19 September 2006). For discussion, see Pavoni, Environmental Jurisprudence of the European and Inter-American Courts of Human Rights, cit., pp. 75-76; Thériault, Environmental Justice and the Inter-American Court of Human Rights, cit., pp. 318-320.
[84] Claude Reyes and others v. Chile, cit., par. 57(13).
[85] Ibidem, par. 81.
[86] Ibidem, par. 77, emphasis added, as cited in Pavoni, Environmental Jurisprudence of the European and Inter-American Courts of Human Rights, cit., pp. 75-76.
[87] See Shelton, Human Rights, Environmental Rights, and the Right to Environment, cit., pp. 119-120.
[88] For an overview of the genesis theory, see Leib, Human Rights and the Environment, cit., pp. 88-107. See also Shelton, Human Rights, Environmental Rights, and the Right to Environment, cit., pp. 121-137; A. Boyle, Human Rights and the Environment: Where Next?, cit., p. 626-633.
[89] Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment to the Human Rights Council, cit., par. 11. For an overview of the right to a healthy environment in national law, see Kotzé and Daly, A Cartography of Environmental Human Rights, cit., pp. 1050-1051; 1057-1059.
[90] See Leib, Human Rights and the Environment, cit., pp. 88-89.
[91] See ibidem. For challenges raised by the recognition of an autonomous right to healthy environment, see ibidem, pp. 91-98; Shelton, Human Rights, Environmental Rights, and the Right to Environment, cit., pp. 133-137.
[92] See Leib, Human Rights and the Environment, cit., p. 94. See also Boyle, Human Rights and the Environment: Where Next?, cit., pp. 628-629.
[93] Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment to the Human Rights Council, cit., par. 14.
[94] Ibidem, par. 11. In addition to the African Charter on Human and People’s Rights, the right to a healthy environment is recognized in many constitutions across the world, see Kotzé and Daly, A Cartography of Environmental Human Rights, cit., pp. 1050-1051; 1057-1059.
[95] The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity – interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), IACtHR, Advisory Opinion OC-23/17 Series A No. 23 (15 November 2017), parr. 1-2.
[96] Ibidem, par. 3.
[97] Ibidem, par. 35.
[98] Ibidem, par. 23.
[99] Ibidem, par. 44.
[100] Ibidem.
[101] Ibidem, parr. 47-49, 52-54. It also previously affirmed a global consensus on ‘undeniable’ interrelationships between environment and human rights, as evidenced by the positions adopted by the Inter-American Commission, the OAS General Assembly, the European Court of Human Rights, the African Commission on Human and Peoples’ Rights, as well as the UN Independent Expert on human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (see parr. 47-51).
[102] Ibidem, par. 55.
[103] American Convention on Human Rights, adopted on 22 November 1969, article 26, emphasis added.
[104] The Environment and Human Rights Advisory Opinion, cit., par. 57, footnote 86, referring to Lagos del Campo v. Peru (Preliminary Objections, Merits, Reparations and Costs), Case No. 340 (31 August 2017), parr. 142-144.
[105] Ibidem, parr. 57, footnote 85.
[106] Indeed, this remained the most controversial aspect of the Advisory Opinion, with Judges Sierra Porto and Vio Grossi dissenting on the direct justiciability of the right to a healthy environment before the Court. The IACtHR additionally noted that the right to a healthy environment is recognized in domestic systems of several American States, as well as the American Declaration on the Right of Indigenous Peoples, the African Charter on Human and People’s Rights, the ASEAN Human Rights Declaration and the Arab Charter on Human Rights; see ibidem, par. 58.