Importantly, in its reasoning, the Court characterized the right to a healthy environment as a “fundamental right for the existence of humankind” that

It further stressed that in its collective dimension, the right grants the protection to the nature itself, thereby moving away from traditional instrumental human rights approach to environment:

At the same time, the Court noted that, in addition to the autonomous content of the right to a healthy environment, there are also several substantive and procedural Convention rights that are most likely to be affected by environmental degradation, including the rights to life, personal integrity, private life, health, water, food, housing, participation in cultural life and property, as well as the rights to informa¶{p. 492}tion, to participation in decision-making and to an effective remedy [109] . It then turned to specifying States’ obligations in the field of environmental protection that are linked to rights to life and to personal integrity that formed the center of Colombia’s request. On the basis of extensive thirty-pages analysis of rules and principles of international environmental law, the Court first affirmed that the State parties are under the obligation to prevent environmental harm within and outside their territory [110] . In this regard, as the central tenet of States’ environmental obligations, the Court put forward the concept of due diligence, understood as a category of obligations of conduct, as opposed to obligations of result [111] . On the basis of the principle of due diligence applied to the situations of transboundary harm, the Court identified a series of further specific obligations, namely that of prevention, precaution, cooperation, as well as procedural duties relating to environmental protection, including the right of access to information, the right to public participation in environmental decision-making and access to justice to persons affected by environmental harm [112] . It further noted that for the purposes of establishing responsibility of the State party under the Convention, there should be a causal link between the harmful act that originated in the respondent state territory and the violation of the Convention right of individual, located on its territory or abroad [113] .

To sum up, the Court’s inter-legal reasoning in the Advisory Opinion, represented by strong integration of international environmental law within the Inter-American human rights system, paved the way to a historical recognition of the autonomous right to a healthy environment that is directly enforceable before the Court. Moreover, recognition of both individual and collective dimensions ¶{p. 493}of the right potentially opens new avenues for advancing environmental claims for the protection of the environment per se, even in absence of direct harm to individuals. Indeed, at the time when the Advisory Opinion was issued, it yet remained to be seen how exactly the right to a healthy environment was to be adjudicated in contentious cases before the Court. However, three years later, the Court delivered its judgment on the Indigenous Communities Members of the Lhaka Honhat (Our Land) Association v. Argentina, in which the Court, reiterating its Advisory Opinion, found the violation of the right to a healthy environment for the first time in a contentious case [114] . In particular, in this case, the IACtHR ruled that although Argentina was aware of illegal deforesting and fencing occurring on indigenous territories belonging to Lhaka Honhat communities, it fell short of preventing these harmful activities [115] . On this basis, the Court requested the State to submit a report within one year outlining the actions that it intend to take with regard to conservation and recovery of the groundwater and forestry resources in the indigenous territories [116] . In addition, the IACtHR ordered Argentina to establish the Community Development Fund for promoting the indigenous culture, including the implementation of the programs related to recovery of natural food resources [117] .

To summarize, the current chapter aimed at demonstrating the value of inter-legality approach in advancing environmental justice in the Inter-American human rights system. In doing so, it first discussed the two competing ¶{p. 494}understandings of the goals of environmental law regime vis-à-vis the human rights law: the “instrumental” approach, in which the objectives of both regimes are corresponding and consist of enhancing the quality of individuals’ lives; and the “intrinsic” approach, which aims at the protection of global ecosystem as a whole by balancing the needs of present and future generations. The second approach – being dominant in the scholarly and policy debates – underscores the overlapping but different rationales of the two regimes, thereby highlighting both contributions and limitations of the human rights framework in advancing environmental agenda. To advance this claim, the paper evaluated three approaches employed by the Inter-American Court in adjudicating environmental claims from the perspective of inter-legality, namely the human rights “greening”, the “environmental democracy” approach and the “genesis theory”.

The three approaches presented herein highlight the margin of discretion that human rights Courts have in applying environmental law norms together with their own regimes, resulting in varying outcomes in terms of balancing the objectives of individual human rights protection and environmental protection conceived as a value in its own right. In particular, the first approach of the Inter-American Court focused on “greening” the existing Convention rights can be described as parochial, operating exclusively within the logic of its own human rights regime. As demonstrated, although “the human rights greening” has had some success in cases involving the rights of indigenous population, its role in advancing fully-fledged environmental agenda remains limited as it only addresses environmental claims with proven harm to the well-being of specific individual or a group of individuals. In other words, the underlying rationale of such approach is the protection of the environment not for its own sake but as a precondition for the enjoyment of human rights.