PERMANENT COUNCIL OF THE
ORGANIZATION OF AMERICAN STATES
COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS
OEA/Ser.G
CP/CAJP-1996/02
13 November 2002
Original: English
PRESENTATION BY THE IACHR PURSUANT
TO RESOLUTION AG/RES. 1896 (XXXII-O/02)
“HUMAN RIGHTS AND THE ENVIRONMENT IN THE AMERICAS”
PRESENTATION OF THE EXECUTIVE SECRETARIAT OF THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
COMMITTEE ON JURIDICAL AND POLITICAL
AFFAIRS OF THE ORGANIZATION OF AMERICAN STATES
Washington, D.C., November 21, 2002
Linkages Between Human Rights and the Environment in the
Work of the Inter-American Commission on Human Rights
Introduction
Mr. President of the Committee of Juridical and Political Affairs of the Organization of American
States, distinguished Ambassadors and Permanent Representatives, ladies and gentlemen: Within the
OAS, we have become increasingly aware of the different linkages between the effective enjoyment of
human rights and environmental protection. The General Assembly expressed a special interest in
studying these linkages in resolution 1819 (XXXI-O/01), and reaffirmed the importance of collaboration
(in particular between the Inter-American Commission on Human Rights and the Unit for Sustainable
Development and Environment) and continuing to study the work being done in this area in its resolution
1896 (XXXII-O/02).
During the recent World Summit on Sustainable Development, the international community
reaffirmed sustainable development as a central element of the international agenda, and placed renewed
emphasis on global action to fight poverty and protect the environment. Key commitments include those
focusing on poverty eradication, water and sanitation, sustainable production and consumption, energy
services and resources, chemicals management, management of the natural resource base, health, and
strengthening the institutional framework for working toward truly sustainable development.
For its part, the Commission’s work increasingly demonstrates the extent to which the issues of
human rights and the environment can overlap. For example, the Commission has been called upon to
examine situations of environmental degradation alleged to be affecting human life and physical integrity,
both through its individual petition system and its other mechanisms of protection. The Commission has
also examined other rights in connection with environmental conditions affecting individuals – most
particularly the right of individuals to have access to information, the right to participate in public affairs,
the right to judicial protection and guarantees, and the right to use and enjoy property.
To date, the Commission’s work in this area has been very closely related to its work concerning
the rights of indigenous peoples, and their special connection with the land. This special connection, in
turn, has served to highlight the way in which environmental degradation may affect a whole range of
basic rights. As the Inter-American Court of Human Rights stated in its judgment on the Awas Tingni
case:
[T]he close ties of indigenous people with the land must be recognized and understood as
the fundamental basis for their cultures, their spiritual life, their integrity and their
economic survival. For indigenous communities, relations to the land are not merely a
2
matter of possession and production but a material and spiritual element they must fully
enjoy, to preserve their cultural legacy and transmit it to future generations.1
This presentation will briefly review the Commission’s experience with respect to the link
between human rights and the environment, both in terms of how the norms of the system recognize these
linkages, and how they have been applied in the different areas of its competence. As the distinguished
representatives will recall, the Executive Secretary of the Commission, Santiago Canton, provided a more
detailed overview of the Commission’s work in this area in April of this year, so I will just touch on these
points – looking first to the normative framework, and second the application in practice -- and provide an
update on recent developments.
The Linkage between Human Rights and the Environment from a Normative Perspective
With respect to the normative framework, there is necessarily a crucial relationship between the
protection of human rights at the international level and that at the national level. In this sense, it is
important to note that a significant number of OAS member states have adopted specific constitutional
provisions concerning the environment or, more specifically, the right to a safe environment. Further,
member states have adopted a range of legal and policy measures to deal with public and private conduct
that has an impact on that environment.
Turning to the norms of the inter-American human rights system, a number of provisions of the
American Convention on Human Rights and the American Declaration of the Rights and Duties of Man
are of special relevance. Moreover, while these instruments don’t expressly refer to the environment, the
system has been in the forefront of international law in recognizing this linkage in the Additional Protocol
to the American Convention in the Area of Economic, Social and Cultural Rights. Article 11 of this
Protocol protects the “right to a healthy environment” by establishing that: “Everyone shall have the right
to live in a healthy environment and to have access to basic public services” and setting forth the
commitment that “[t]he States Parties shall promote the protection, preservation and improvement of the
environment.”
Also of special relevance is Article XIII of the proposed American Declaration on the Rights of
Indigenous Peoples currently under study by the OAS. This draft Article encapsulates the fundamental
connection between the rights to life and personal integrity and the environment in setting forth that: “1.
Indigenous peoples have the right to a safe and healthy environment, which is an essential condition for
the enjoyment of the right to life and collective well-being.” Accordingly the draft article sets forth a
series of rights to ensure the ability of indigenous peoples to protect that environment, including the right
to information about measures that might affect it, and to participate in the design and implementation of
actions and policies that may affect it.
It should also be noted that the norms of the regional human rights system must, in accordance
with their object and purpose, be interpreted and applied in connection with the reality of people’s lives
and the issues that affect their rights. As the Inter-American Court of Human Rights has repeatedly
indicated, international human rights treaties “are live instruments whose interpretation must adapt to the
1
149.
IACtHR, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, para.
3
evolution of the times and, specifically, to current living conditions.”2 It is consequently not surprising
that, in interpreting and applying the norms of the system, the Commission has been called upon to
examine situations concerning the relationship of individuals to the environment in which they live.
Further, human rights instruments, in accordance with their object and purpose, must be
interpreted and applied so as to ensure the highest level of protection for the individual. The American
Convention, for example, stipulates in Article 29 that it cannot be interpreted so as to limit the enjoyment
of a right guaranteed under national law or another applicable convention. Accordingly, the human rights
obligations of a state, both internationally and nationally, form an interrelated set of protections that have
the ultimate objective of protecting the human dignity of the individual. Consequently, the growing body
of environmental norms at the international level is also relevant. To the extent these constitute
international obligations for a state and have a bearing on the protection of the rights of the individuals
within its jurisdiction, they must be considered in construing that state’s obligations within the interAmerican system.
I will now turn to how the linkage between human rights and the environment has been reflected
in the Commission’s practice.
The Petition System
As the Executive Secretary mentioned in his April presentation, the Commission is currently
processing a number of petitions that allege the violation of rights protected under the American
Convention or Declaration with respect to issues directly or indirectly concerning the environment. Some
half a dozen such petitions concern the rights of members of indigenous communities specifically.
These petitions cover a range of issues. Several concern the effects of the exploitation of natural
resources on the members of the affected communities, for example, the cutting of timber in one case and
the extraction of oil in another. In one of these petitions, the principal allegations concern contamination
of the water and soil from oil exploitation activities in detriment to the physical integrity of the affected
individuals. In others, the principal claims relate to the effects of activities such as the building of roads
and other installations, with the consequent incursion of workers and settlers into lands alleged to be
traditional indigenous territory, thereby threatening traditional means of subsistence and culture. At least
three of these petitions are currently the subject of negotiations between the petitioners and the states
concerned for the purpose of seeking a possible friendly settlement.
In relation to the procedure of friendly settlement, reference should be made to the agreement
reached between the petitioners and the Paraguayan State, with the facilitation of the Commission, to
settle certain land claims of the Exnet-Lamenxay communities.3 The petition was brought by
communities that had been displaced from their traditional homelands through the incursion and activities
of settlers, in detriment to their traditional means of subsistence and ability to preserve their culture. The
agreement reached involved the State’s purchase of territory titled in the name of those communities, and
2
See, e.g., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua Awas, supra, para. 146, citing related
precedents.
3
See Report Nº 90/99, Case 11.713, Enxet-Lamenxay and Kayleyphapopyet (Riachito) Indigenous Communities,
Paraguay, Sept. 29, 1999, in Annual Report of the IACHR 1999, OEA/Ser.L/V/II.106, Doc. 3 rev., April 13, 2000, ch. III. Please
note that additional information about the Commission and its mechanisms, including all published reports and search
mechanism, may be found at www.cidh.org.
4
the provision of certain social services, measures fully recognized and valued by the Commission. In
February of this year, the Commission admitted a case with certain similar characteristics concerning the
Yakye Axa Indigenous Community.4
With respect to cases already decided, there are two that are especially illustrative. The
Yanomami case, decided in 1985, established some initial benchmarks in the Commission’s jurisprudence
concerning the interrelation between the protection of human rights and the environment.5 The
Commission’s Executive Secretary outlined some of the central aspects in April, so I won’t repeat those.
I would only note that two of the key principles articulated in that report are the duty to take reasonable
preventive measures in the case of threats to life and physical integrity, and to consult with those affected
in the design and implementation of public policy.
The more recent case of special interest, concerning the Awas Tingni Community in Nicaragua,
was decided by the Commission and submitted to the Inter-American Court of Human Rights in 1998.6
The claims raised concerned the granting of concessions to cut timber in lands traditionally occupied by
the community absent their consent. The Court established that, while Nicaraguan law recognized and
protected indigenous communal property in principle, it did not provide adequate legal measures to
ensure that right through the demarcation and titling of those lands in communal form. The InterAmerican Court’s sentence is especially important for recognizing the right of indigenous peoples to hold
land communally, and to have that right respected and protected. The Commission is closely following
the measures taken to comply with this judgment.
Brief reference should also be made to the application of precautionary measures in situations
where environmental issues were concerned. In several instances the Commission has addressed states to
request that precautionary measures be adopted to protect the lives and physical integrity of human rights
defenders working on issues of environmental protection who had received threats or been attacked.
During the processing of the Awas Tingni case, and more recently in a petition being processed, the
Commission requested that measures be adopted to protect the rights of indigenous communities whose
subsistence and cultural survival were reportedly at imminent risk.
On-Site Visits and Special Country Reports
In recent years, the link between the protection of human rights and the environment has also
been demonstrated in the work of the Commission during on-site visits and in its country reports.
For example, during its on-site visit to Ecuador, and in its related country report published in
1997, the Commission dedicated special attention to the situation of the inhabitants of the interior of the
country affected by oil exploitation activities.7 With respect to the resulting contamination of the
environment and the consequent effects on human health, the Commission highlighted the right of the
4
See Report Nº 2/02, Case 12.313, Yakye Axa Indigenous Community of the Enxet-Lengua People, Paraguay, Feb.
27, 2002.
5 Resolution Nº 12/85, Case Nº 7615, Brazil, March 5, 1985, in Annual Report of the IACHR 1984-85,
OEA/Ser.L/V/II.66, doc. 10 rev. 1, 1 Oct. 1985, ch. III.
VIII.
6
See Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra.
7
See Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, Doc. 10 rev. 1, April 24, 1997, ch.
5
affected inhabitants to participate in the design and implementation of policies affecting their
environment, and to have access to effective judicial remedies, as well as to have access to the
information necessary to exercise the foregoing rights.
Among the issues addressed in the Commission’s Third Report on the Situation of Human Rights
in Colombia of 1999 is the impact of large scale development projects on indigenous lands and cultures.8
The Commission touches on similar issues in its Second Report on the Situation of Human Rights in Peru
of 2000, indicating that large scale exploitation of natural resources was being carried out in indigenous
territories absent due consultation with the affected communities, in many cases leading to environmental
degradation and endangering the survival of those communities.9
In examining the situation of the rights of indigenous peoples in its Third Report on the Situation
of Human Rights in Paraguay, published in 2001, the Commission looks at the related questions of
preservation of habitat and resolution of outstanding land claims.10 The Commission drew attention,
among other points, to deforestation and agrarian colonization, the consequent displacement of
communities, the pollution of community water sources and other forms of ecological degradation.
Among its recommendations, the Commission indicates the need to fully implement the constitutional
provisions concerning respect for and restoration of community property rights as a means of enabling
these peoples to conserve and develop their ways of life.
It should also be noted that, in recent years, the Commission has developed the practice of
including a chapter on the economic, social and cultural context of the country concerned, which includes
an analysis of access to such basic services as potable water and sanitation measures. Here too, the link
between health and environmental conditions is manifested.
General Hearing on Environmental Degradation in the Region before the 116º Session of
the Commission
Most recently, during its session last month, the Commission held a general hearing on the
“effects of environmental degradation on the exercise and enjoyment of human rights in the hemisphere.”
The hearing was requested by the Center for Human Rights and Environment. The participants were:
Romina Picolotti and Sofia Bordenave, Directors of that Center; Fatma Vessely, the UN Special
Rapporteur on the Transboundary Movement of Toxic Waste and Human Rights; Richard Meganck,
Director of the Unit for Sustainable Development and Environment of the OAS; and Dinah Shelton, an
academic expert in the field. The hearing was requested for the purpose of presenting information on the
state of the environment in the region, the growing problem of environmental degradation and the
resulting consequences for human rights. This was one of the first instances in which the Commission
was able to benefit from information presented by the Unit for Sustainable Development and
Environment, and it took due note of the Director’s emphasis on the importance of promoting dialogue
among all sectors of society concerning economic and social development in the region.
8
See OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 Feb. 1999, ch. X.
9
See OEA/Ser.L/V/ii.106, Dec. 59 rev., 2 June 2000, ch. X.
10
See OEA/Ser.L/V/II.110, Doc. 52, 9 March 2001, ch. IX.
6
Conclusions
In conclusion, the experience of the Commission in this area indicates that the norms of the interAmerican human rights system were designed to be living instruments and to apply to current living
conditions. As such, the Commission has in recent years been called upon to apply such basic rights as
the rights to life and personal integrity, and the related rights to information, participation and effective
judicial remedies, in situations involving the relation of individuals to their environment. While this
remains a developing area of law and practice, the experience of the Commission demonstrates the
sometimes very close link between the protection of human rights and the protection of the environment.
I thank you for this opportunity to speak on the Commission’s experience in this area, and wish to express
that the Commission values the attention the member states are giving to this important subject.
CP10480E01