A Nascent Agenda for the Americas

Human Rights Dialogue: "Environmental Rights" (Spring 2004)

April 27, 2004

In 1998 a North American indigenous leader and attorney of the Indian Law Resource Center, James Anaya, was representing the Awas Tingni people of Nicaragua, seeking international support for a case going before the Inter-American Commission on Human Rights. The Commission was poised to reject admissibility of the case, which sought to halt publicly sponsored illegal lumbering in indigenous territories of Nicaragua, on the grounds that a human rights tribunal was not the appropriate forum to resolve what was seen as an “environmental” case. Undaunted, Anaya found an experienced human rights attorney and a seasoned environmentalist -- Romina Picolotti and Durwood Zaelke -- to write an amicus brief that has helped revolutionize environmental litigation in the Americas.

Based on the evidence brought by Anaya, and influenced by the innovative legal reasoning argued in the brief, the Commission ordered an injunction against the illegal lumbering, bringing it to a halt. Awas Tingni, which eventually went on to the Inter-American Court and won, has become a landmark in the relatively new field of human rights and environment litigation. The case firmly established human rights and environmental linkages in Inter-American jurisprudence, and it has opened up a new “environmental” rubric of human rights tribunal competency. It has also spawned interest in legal advocacy from indigenous communities across the hemisphere that have come to see the human rights tribunals of the Inter-American Human Rights System as fertile ground for defending their environment.

Although Awas Tingni was not the first case to recognize the linkage between human rights and the environment (several years earlier Yanomami and Huarani established precedents regarding claims of environmental harms), Awas Tingni is novel for two reasons. First, it occurred at a juncture when human rights issues were gaining important ground in the sustainable development debate, and at a time when human rights and environmental linkages were being formally recognized throughout the world -- specifically and most importantly, through the San Salvador Protocol, in hemispheric legislation. Second, for the first time the Inter-American Human Rights Commission and the Inter-American Court on Human Rights based their decisions in favor of the indigenous community largely on legal argumentation linking the enjoyment of human rights to the state of the environment.

Following the collapse of dictatorships during the 1970s and 1980s, Latin American nations found themselves amidst a broad body of international human rights law and new concepts of sustainable development. The 1972 Stockholm Conference on the Human Environment and subsequent international conferences had placed people at the center of discussion of environmental sustainability. The Earth Summit of 1992 further strengthened the emphasis on the economic and social factors of sustainability and brought to an apex an era of global environmental conferences where human rights and environment were implicitly and explicitly center stage. This was the beginning of the construction of a human rights/environment normative framework. During this period many Latin American nations rewrote their constitutions and incorporated environmental provisions, such as the explicit “right to a healthy environment.” The San Salvador Protocol to the American Convention established the right to a healthy environment at a hemispheric level.

Harnessing a disjointed but fortuitous local, national, and hemispheric rapprochement during the 1990s of human rights and environmental agendas, the Argentina-based Center for Human Rights and Environment (CEDHA) approached the Organization of American States (OAS) in 2001 with a “draft resolution on human rights and environment,” placing before governments the opportunity to show political support for the further harmonization of these complimentary development agendas. Several member states were uniformly resistant to the idea that human rights had anything to do with the environment, suggesting that a union of the two, in practical and operative terms, was not feasible considering the already meager budgets of the OAS and its human rights and environmental agencies. Some, although from a less vociferous platform, went as far as to suggest that the human rights and environmental agendas were entirely unrelated. Yet it is more likely that the true reason these governments resisted the draft was that member states, fearful of losing sovereignty, were reluctant to be brought before the Inter-American Commission on Human Rights for poor environmental records. Nevertheless, with strong lobbying by CEDHA and support from a handful of committed states, the resolution passed.

Since that time, governments have moved from a position of cautious resistance to acceptance of three consecutive annual OAS resolutions -- in 2001, 2002, and 2003. This success might be due in part to the growing global awareness and social awakening to the effects of environmental degradation on human populations, but more likely it has more to do with (1) the continued advocacy of civil society before the OAS, (2) the alignment with this advocacy of a handful of states, and particularly Caribbean states, which represent a strong voting block at the OAS and which have a particular interest in the human rights and environment linkage (largely due to the impact of global warming on coastal communities), and (3) perhaps also because cases concerning human rights and the environment did not flood the Inter-American Commission on Human Rights as was once feared. Despite ongoing resistance from a few individual states, the resolutions leave no question within those OAS agencies that must carry out this new mandate that the linkage of human rights and the environment is of utmost importance to the Americas. Today, the governments of Latin America are fostering institutional cooperation, particularly between the Inter-American Commission on Human Rights and the OAS Unit for Sustainable Development. Such promotion has even been extended to include inter-agency collaboration with the global environmental agencies, U.N. agencies, and civil society organizations.

In terms of the Inter-American Commission on Human Rights, today -- less than five years following its near rejection of the Awas Tingni case -- the Commission has not only embraced the concept and linkage, but has unofficially assigned an attorney to oversee human rights and environment cases. In addition, it has officially participated in advocacy of the human rights and environment linkage agenda, publishing articles on issues such as the right to water; and it has participated in educational training on human rights and environment in NGO capacity building workshops.

The developments in the Americas stemming from Awas Tingni have rekindled advocacy efforts among NGOs to promote a greater linkage between human rights and environmental protection. However, it is important to note that in the Americas the human rights and environment advocacy agenda is not defined in terms of “environmental rights.” While it may seem logical, when linking human rights and environmental issues, to speak of “environmental rights,” many advocates have avoided doing so. The term itself carries much ambiguity: Are we speaking of rights of individuals or communities to “environmental quality”? Or are we speaking of human rights more generally, affected by the quality of the environment? The distinction may seem trivial, but in the courtroom it may decide the outcome of a case. “Environmental rights” and, more specifically, the “right to a healthy environment” -- which suggest the right to a specified environmental quality -- while existing in legislation are still new to the courtrooms, which have little to show in terms of jurisprudence. Such rights have remained largely unaddressed by legal actors, and are not a high priority for judges, who often shy away from handing down verdicts in a legal realm in which they have little or no past experience. Sadly, much of the environmental degradation caused by corporate interests, for example, is still viewed as generating much needed employment, investment, and economic development; making verdicts against corporations for environmental harm politically unpopular.

It is far more effective to approach environmental protection (and “environmental rights”) through the defense of more traditionally accepted “human rights” affected by environment quality, such as the right to health, the right to life, and the right to property. Increasing poverty and environmental collapse offer fertile ground for human rights advocacy, if we are able to identify the many human rights affected by such conditions. What we are really talking about is applying the human rights lens not to environmental problems per se, but more generally to development problems, what some call the “rights based approach to development.” This approach places the protection of people and communities -- a stronger priority for judges -- at the heart of the legal debate. Through this approach, human rights and environmental protection have the best chance of being advanced at a quicker pace and, hopefully, with more victories in the courtroom.