The Inter-American
Court of Human Rights recently (last February 7) made public its AdvisoryOpinion OC-23/17: The Environment and
Human Rights. State obligations in relation to the environment in the context
of the protection and guarantee of the rights to life and to personal integrity
– interpretation and scope of Articles 4(1) and 5(1) of the American Convention
on Human Rights). (1)
The Inter-American
Court recognized the obligations derived from respecting and guarantee the
rights to life and personal integrity in the context of the environmental protection
-as human rights. In particular, it determined that States must (2):
· prevent
environmental damage, inside or outside its territory, which implies that they
must regulate and supervise activities under its jurisdiction (in some cases
beyond), carry out environmental impact studies, establish contingency plans and
mitigate occurred damages;
·
act
according to the precautionary principle against possible significant damages or
irreversible to the environment, affecting the rights to life and to the personal
integrity, even in the absence of scientific certainty;
·
cooperate
in good faith with other States for protection against substantial environmental
damage (transboundary);
·
guarantee
access to information on probable environmental harms;
·
guarantee
the right to public participation of the people, in the taking of decisions and
policies that may affect the environment, and
·
guarantee
access to justice, in relation to States obligations for environmental protection.
The
Advisory Opinions of the Inter-American Court are of inordinate weight in
Mexico (a game changer), because although they are not necessarily binding for
the decisions issued by the jurisdictional bodies, if not being taken into
account, the reasons why it is not done should be explained. (3)
Furthermore,
in the case in question, the Advisory Opinion - to mention some relevant points:
o
it
“expands” the jurisdiction of the States in the case of transboundary damage to
the environment and in relation to the causative agents thereof;
o
establishes
specific, substantive and adjective contents in the environmental impact
assessment procedure, including specific aspects of access to information and
public participation;
o
expands
access to justice (standing) in environmental matters and transboundary
environmental damage.
Agustín
Bravo-Gaxiola.
Mexico City. February 23, 2018.
(1) Until
February 22, the Advisory Opinion is only available in
Spanish. Soon it will be in English.
(2) The following points are a translation-summary of the Inter-American Court’s communiqué on its Advisory Opinion.
(3) Tesis: (I Región)8o.1 CS (10a.) 2017.
