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PERMANENT COUNCIL OF THEOEA/Ser.G
ORGANIZATION OF AMERICAN STATESCP/CAJP-1920/02
17 April 2002
COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRSOriginal: English
REMARKS BY AMBASSADOR SANTIAGO A. CANTON, EXECUTIVE SECRETARY OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, ON THE TOPIC
“HUMAN RIGHTS AND THE ENVIRONMENT”
(Meeting of the Committee on Juridical and Political Affairs held on April 11, 2002)
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REMARKS BY AMBASSADOR SANTIAGO A. CANTON, EXECUTIVE SECRETARY OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, ON THE TOPIC
“HUMAN RIGHTS AND THE ENVIRONMENT”
(Meeting of the Committee on Juridical and Political Affairs held on April 11, 2002)
The Emerging Link 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: Through Resolution 1819, the General Assembly of the OAS recognizes the need to promote the effective enjoyment of all human rights and environmental protection, and to study the emerging linkages between these issues. In this regard, the Inter-American Commission is increasingly observing through its work the extent to which these issues overlap when it comes to the protection of certain basic rights.
The inter-American human rights system serves to protect human dignity. Without necessarily identifying them as “environmental issues” per se, the system has been called upon to deal with environmental conditions affecting, first and foremost, the rights to life and personal integrity. The Commission has also examined situations concerning 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 where environmental conditions were at issue.
This link between human rights and the environment is an emerging issue in the work of the Commission. 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. As the Inter-American Court of Human Rights stated in its sentence 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 matter of possession and production but a material and spiritual element which they must fully enjoy, even 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 emerging link between human rights and the environment, principally with respect to the individual case system, and on-site visits and related country reports.
The Linkage between Human Rights and the Environment from a Normative Perspective
At the outset, it might be useful to note the extent to which the normative framework of the regional human rights system provides a basis for addressing these emerging issues of law and practice.
First, it bears mentioning that the principal 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 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, for example those concerning the right to life and personal integrity, the Commission has been called upon to examine situations concerning the relationship of individuals to their habitat.
Second, 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 restrictively 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 which, from the vantage point of our system, necessarily have the ultimate objective of protecting the human dignity of the individual.
Consequently, it is essential to take into account the growing corpus of international instruments that relate to the protection of the environment. 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, it may be necessary to take them into account in construing that state’s obligations within the inter-American system.
Further, 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 the number of member states of the OAS that have adopted specific constitutional provisions concerning the environment or, more specifically, the right to a safe environment. [As indicated in the report of the Secretary General provided on this topic, these include Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Honduras, Nicaragua, Paraguay and Venezuela.[3]] Further, most if not all of the member states have adopted other kinds of legal and policy dispositions to deal with public and private conduct that has a significant impact on that environment.
Turning back to the norms of the inter-American human rights system, while the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man 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 the right to participate in the design and implementation of actions and policies that may affect it.
I will now turn to how the linkage between human rights and the environment has been reflected in the Commission’s practice, principally with respect to the individual petition system and on-site visits and related country reports.
The Case System
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. At least 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 their traditional means of subsistence and culture. These are some of the kinds of issues being brought before the Commission. It should be noted that at least three of these petitions are currently the subject of negotiations between the respective petitioners and states aimed at 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.[4] The petition was brought by communities that had been displaced from their traditional homelands through the incursion 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 the provision of certain essential social services, measures fully recognized and valued by the Commission.
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 claims concerned activities to exploit natural resources in the Amazon region, including the cutting of a highway through lands traditionally held by the Yanomami people. With the highway came the invasion of workers, miners and settlers, the displacement of communities and the introduction of diseases to which the Yanomami had no resistance, with devastating consequences. While national law provided for the demarcation of indigenous ancestral lands, that measure had not been effectuated in the case of the Yanomami. The Commission recommended the demarcation of their territory as one of the measures essential to remedy the violations. The Commission also recommended that programs designed to assist the communities be carried out in due consultation with the those affected. 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 stand as two key principles articulated in that report.
The more recent case that is especially illustrative is that concerning the Awas Tingni Community in Nicaragua, which the Commission decided 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 the lands traditionally occupied by the community absent their consent. While the community tried to defend their right to use and enjoy their property, they were unable to do so because their lands were not demarcated, and because judicial remedies proved ineffective. The Court established that, while Nicaraguan law recognized and protected indigenous communal property in principle, it did not provide adequate legal measures ensure that right through the definition, demarcation and titling of those lands in communal form. The Court’s sentence is especially important for recognizing – on the basis of the norms of the regional system, the Constitution of Nicaragua, and customary indigenous law – the right of indigenous peoples to hold land communally, and to have that right respected and protected. It was in this regard that the Court emphasized that the close ties of indigenous peoples with the land serve as the fundamental basis of their cultures, and their moral and physical sustenance. In relation to this case, we wish to recognize the measures adopted by the Government of Nicaragua to initiate its compliance with the sentence of the Court.
Brief reference might also be made to several situations giving rise to precautionary measures where themes relating to environmental protection were at issue. 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 subject to attack. During the processing of the Awas Tingni case, and more recently in a petition now being processed, the Commission requested that measures be adopted to protect the rights of indigenous communities whose sustenance cultural survival was reportedly under imminent threat.
On-Site Visits and Special Country Reports
In recent years, the link between the protection of human rights and the environment has also been manifested in the work of the Commission during on-site visits and related 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] The Commission found that while the inhabitants of the region and the Government disagreed as to the full extent, they agreed that these activities had caused extensive contamination of the environment. The inhabitants of the affected areas had been exposed to the toxic by-products of these activities in their drinking and bathing water, in the air, and in the soil they cultivate for food. The report indicates that these types of contaminants have been documented to adversely affect human health, and that local health professionals had reported on illnesses associated with this contamination. In its analysis and recommendations, the Commission highlighted the right of the affected inhabitants to participate in the design and implementation of policies affecting their environment, and their right to have access to effective judicial remedies, as well as to have access to the information necessary to exercise the foregoing rights.
The Third Report on the Situation of Human Rights in Colombia of 1999 addresses, among other themes concerning the rights of the indigenous population, the issue of natural resources and indigenous territorial rights, and 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, or the obtaining of consent of the affected communities, in many cases leading to environmental degradation and the endangering of 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 their habitat and resolution of outstanding land claims.[10] Among the threats to the basic rights of these peoples, the Commission drew attention to deforestation and agrarian colonization, the consequent displacement of communities that depended on the forest for their spiritual and physical sustenance, 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 the community property rights of these peoples as a means of enabling them 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 addresses the question of access to such basic services as potable water and sewage treatment. Here too, the link between health and environmental conditions is manifested.
Conclusions
In conclusion, the experience of the Commission in this area indicates that the instruments of the inter-American 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 threats to human dignity arising in relation to the environment. While this remains very much an emerging 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 our experience in this area, and wish to express that the Commission recognizes and values the special attention the member states are giving to this important subject.