(a) The ACHR, its Protocols and its Interpretation by the IACtHR
21 The right to a clean and healthy environment is guaranteed as an independent human right by Art. 11 (1) Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (‘Protocol of San Salvador’). Art. 11 Protocol of San Salvador states: ‘Everyone shall have the right to live in a healthy environment and to have access to basic public services.’ However, the provision cannot be enforced by individual petitions (ibid Art. 19 (6)–(7)).
22 In addition, Art. 26 American Convention on Human Rights (‘ACHR’; American Convention on Human Rights ) deals with the progressive development of the ‘economic, social, educational, scientific and cultural standards set forth in the Charter of the Organization of American States’. This provision has been interpreted by the IACtHR to contain obligations of States party to the ACHR in the area of social and economic rights. The Court found that the provision covered obligations to fulfil the social and economic guarantees included in the Charter of the Organization of American States (‘OAS Charter’; Organization of American States [OAS]), referring to Arts 30, 31, 33, and 34 OAS Charter (Lagos del Campo v Peru para. 144; Hernández v Argentina para. 62).
23 In Advisory Opinion OC-23/17 on the obligations of States pertaining to the guarantee of the right to life and to personal integrity in the context of the environment, the Court established for the first time that Art. 26 included the legal basis for the right to a clean and healthy environment in the ACHR (Advisory Opinion OC-23/17 para. 57). Moreover, the Court recognized that the right to a clean and healthy environment must be considered an autonomous human right (ibid para. 62). In order to protect this right, the Court found States had to guarantee present and future generations: ‘(a)…without any discrimination, a healthy environment in which to live; (b)…basic public services; (c)…environmental protection; (d)…environmental conservation, and (e) [the] improvement of the environment’ (ibid paras 59–60). Whether this guarantee was met could be assessed using the criteria elaborated by the OAS on air, soil, and water quality, or biodiversity (ibid para. 60). Most notably, however, the Court considered that the right to a clean and healthy environment not only obliged States to protect the life and health of their citizens, it also obliged States, party to the ACHR, to protect the environment for the sake of all organisms living on the planet (ibid para. 62). Recognition of the right to a clean and healthy environment by States could therefore go as far as recognizing the rights of nature or natural objects as individual legal personalities with an individual claim to protection (ibid para. 62). Those final findings extend the scope of the right to a clean and healthy environment beyond the individual human being and aim to protect natural interests in their own right.
24 The interpretation, which regarded not only Art. 11 Protocol of San Salvador but also Art. 26 ACHR as a basis for an independent guarantee of the right to a clean and healthy environment in the Inter-American human rights system, was recently reaffirmed in the Lhaka Honhat decision (Case of the Indigenous Communities of the Lhaka Honhat [Our Land] Association v Argentina). Although the Court had already underlined the autonomous character of that right in Advisory Opinion OC-23/17, it had not specifically addressed the question whether the autonomous character of the right could be derived from Art. 26 ACHR. The Lhaka Honhat case affirmed that Art. 26 ACHR safeguarded individual and autonomous guarantees, among others, to a clean and healthy environment (para. 195).
25 Pertaining to the obligations of States to safeguard the right to a clean and healthy environment, the Lhaka Honhat decision concurred with the advisory opinion, in that States must not only respect but also protect this right (Lhaka Honhat para. 207). The obligation to protect included the pledge that all State authority, whether legislative, executive, or judicial, would work toward protection of this right and would prevent violations (ibid). States were also obligated to prevent harm to the environment before it occurred (ibid para. 208). That obligation entailed further duties, such as conducting environmental impact assessments, following up implementation, and mitigating damage to the environment once it occurred (ibid). The Lhaka Honhat decision therefore clarifies some important findings of Advisory Opinion OC-23/17.
26 Besides this recent jurisprudence, various decisions of the IACtHR have affirmed that the human rights guaranteed in the ACHR, in particular those of indigenous communities, apply in environmental contexts (for a summary of the case law see Advisory Opinion OC-23/17 para. 64, note 103; see also Indigenous Peoples; Environment and Indigenous Peoples). For example, the Court has affirmed that persons affected by environmental projects have a right to obtain State-held environmental information according to Art. 13 ACHR (see Claude Reyes et al v Chile para. 72 et seq). Moreover, the State has a duty under Art. 1 (1) ACHR to investigate the circumstances of the murder of an environmental human rights defender (Kawas-Fernández v Honduras para. 101 et seq) or to map and demarcate the territory of an indigenous community so that it can enjoy its collective property (Case of the Mayagna [Sumo] Awas Tingni Community v Nicaragua paras 148, 153).
(b) The Escazú Agreement
27 Mostly in parallel to the preparation of the advisory opinion on the right to a clean and healthy environment at the IACtHR, the States party to the UN Economic Commission on Latin America and the Caribbean (‘UNECLAC’) agreed on ensuring individual access to a clean and healthy environment in a separate international agreement. The Escazú Agreement was adopted in March 2018 (for the status of ratifications see <https://www.cepal.org/en/escazuagreement> [last accessed 2 November 2020]). The agreement establishes and acknowledges rights to information, participation, and access to justice in environmental affairs (Arts 6–8). It also contains special provisions for the recognition and protection of environmental human rights defenders (Art. 9). The agreement understands these rights as lending expression to the right to a healthy and sustainable environment that has been accepted in various Latin American constitutions (Art. 1; compare Olmos Giupponi 137 et seq). Accordingly, the agreement identifies its primary objective as guaranteeing that the access rights provided for in the agreement contribute to the ‘protection of the right of every person of present and future generations to live in a healthy environment and to sustainable development’ (Art. 1 Escazú Agreement). The agreement is not yet in force, but has been signed by a majority of Latin American States.