Part IX International Environmental Law in National/Regional Courts, Ch.67 South America

Subject(s):

International environmental law — Relationship between international and domestic law

This chapter explores international environmental law in the courts of South America. Courts in South America have applied international environmental law on a limited scale. Multilateral environmental agreements (MEAs) are usually cited in higher courts to reinforce environmental principles or general norms already been incorporated in national law. Whenever applicable, national law is preferred, reducing reliance on international law. Treaties are more likely to be used as an additional argument to advance theories with lower acceptance at the national level. For example, MEAs are often cited when decisions apply the precautionary principle and favour environmental protection in the absence of scientific certainty about environmental damage. More recently, international law has also been cited in pushing forward innovative theories without national legal support, such as the rights of nature. The recent decisions in Colombia have shifted the paradigm, as these directly use international law to justify environmental protection on a broader level. In light of the growth of climate cases filed in national courts, it is likely that international law is directly applied in other national courts as well, as has happened in Colombia.