A game-changer on environmental compliance (among other environmental matters): The Inter-American Court’s Advisory Opinion regarding the Environment.

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.