INTER-AMERICAN COURT OF HUMAN RIGHTSADVISORY OPINION OC-23/17
OF NOVEMBER 15, 2017
REQUESTED BY THE REPUBLIC OF COLOMBIATHE 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 PERSONALINTEGRITY: INTERPRETATION AND SCOPE OF ARTICLES 4(1) AND 5(1) IN
RELATION TO ARTICLES 1(1) AND 2 OF THE AMERICAN CONVENTIONON HUMAN RIGHTS)

the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “theCourt”), composed of the following judges:
Roberto F. Caldas, President
Eduardo Ferrer Mac-Gregor Poisot, Vice President
Eduardo Vio Grossi, Judge
Humberto Antonio Sierra Porto Judge
Elizabeth Odio Benito, Judge
Eugenio Raúl Zaffaroni, Judge, and
L. Patricio Pazmiño Freire, Judgealso present,
Pablo Saavedra Alessandri, Secretary, andEmilia Segares Rodríguez, Deputy Secretary,
pursuant to Article 64(1) of the American Convention on Human Rights (hereinafter “theAmerican Convention” or “the Convention”) and Articles 70 to 75 of the Rules of Procedureof the Court (hereinafter “the Rules of Procedure”), issues the following advisory opinion,
structured as follows:

-2TABLE OF CONTENTSI.

PRESENTATION OF THE REQUEST ........................................................................................ 4

II.

PROCEEDING BEFORE THE COURT ...................................................................................... 6III.

JURISDICTION AND ADMISSIBILITY .............................................................................. 10A.

The Court’s advisory jurisdiction in relation to this request .........................................................11

B.

Requirements for the admissibility of the request ......................................................................12

IV.

GENERAL CONSIDERATIONS ............................................................................................ 15

A. The purpose and scope of this Advisory Opinion and the terms of the questions raised by therequesting State .........................................................................................................................15
B.

The structure of this Advisory Opinion ......................................................................................17V.

INTERPRETATION CRITERIA ............................................................................................. 18

VI. ENVIRONMENTAL PROTECTION AND THE HUMAN RIGHTS RECOGNIZED IN THE
AMERICAN CONVENTION ........................................................................................................ 20
A.

The interrelationship between human rights and the environment ...............................................20

B.

Human rights affected by environmental degradation, including the right to a healthy environment..........................................................................................................................................24

VII. THE WORD “JURISDICTION” IN ARTICLE 1(1) OF THE AMERICAN CONVENTION IN
ORDER TO DETERMINE STATE OBLIGATIONS IN RELATION TO ENVIRONMENTAL
PROTECTION .......................................................................................................................... 32
A. Scope of the word “jurisdiction” in Article 1(1) of the American Convention in order to determineState obligations .........................................................................................................................32
B.

State obligations under special environmental protection regimes................................................35

C.

Obligations regarding transboundary damage ...........................................................................40

D. Conclusion ............................................................................................................................43
VIII. DUTIES DERIVED FROM THE OBLIGATIONS TO RESPECT AND TO ENSURE THE RIGHTSTO LIFE AND TO PERSONAL INTEGRITY, IN THE CONTEXT OF ENVIRONMENTAL PROTECTION44
A.

The rights to life and to personal integrity in relation to environmental protection .......... 44
A.1 Meaning and scope of the rights to life and to personal integrity in the face of potential
environmental damage ..........................................................................................................44
A.2. Obligations to respect and to ensure the rights to life and to personal integrity in the face ofpotential environmental damage ............................................................................................47

B. State obligations in the face of potential environmental damage in order to respect andto ensure the rights to life and to personal integrity ............................................................... 49
B.1

Obligation of prevention ........................................................................................ 51

B.1.a Sphere of application of the obligation of prevention ....................................................53
B.1.b Type of damage to be prevented ...............................................................................53
B.1.c Measures States must take to comply with the obligation of prevention ..........................55i)

Duty to regulate.................................................................................................56

ii)

Duty to supervise and monitor .............................................................................59

iii)

Duty to require and approve environmental impact assessments..............................60

iv)

Duty to prepare a contingency plan ......................................................................66

-3v)
B.1.d

Duty to mitigate if environmental damage occurs ...................................................67
Conclusion regarding the obligation of prevention .....................................................68

B.2

The precautionary principle....................................................................................... 68

B.3

Obligation of cooperation .......................................................................................... 71
B.3.a Duty to notify ........................................................................................................72i)

Moment of notification .......................................................................................74

ii)

Content of the notification .................................................................................75iii) Conclusion with regard to the duty of notification..................................................76
B.3.b Duty to consult and negotiate with potentially affected States......................................76i)

Moment and form of the consultation ..................................................................77

ii)

Duty to consult and negotiate in good faith ..........................................................78iii) Conclusion regarding the duty to consult and negotiate .........................................79
B.3.c Exchange of information ...........................................................................................79
B.3.d Conclusion with regard to the obligation of cooperation ................................................80
B.4 Procedural obligations to ensure the rights to life and to personal integrity in thecontext of environmental protection ................................................................................ 81
B.4.a Access to information ............................................................................................81i) Meaning and scope of this obligation in relation to the environment .........................84ii) Restrictions to access to information.....................................................................85iii) Conclusion regarding access to information ...........................................................86
B.4.b Public participation ..............................................................................................86
B.4.c Access to justice ..................................................................................................88i) Access to justice in cases of transboundary harm ...................................................89
B.4.d

Conclusion regarding procedural obligations ..........................................................90

B.5 Conclusions with regard to State obligations ............................................................ 90
IX. OPINION ........................................................................................................................... 91

-4I
PRESENTATION OF THE REQUEST
1.
On March 14, 2016, the Republic of Colombia (hereinafter “Colombia” or “therequesting State”) presented a request for an advisory opinion based on Article 64(1) 1 of
the American Convention and Article 70(1) and 70(2)2 of the Rules of Procedure concerning
State obligations in relation to the environment in the context of the protection andguarantee of the rights to life and to personal integrity (hereinafter “the request”). The
Court was asked to determine “how the Pact of San José should be interpreted when there
is a danger that the construction and operation of major new infrastructure projects may
have severe effects on the marine environment in the Wider Caribbean Region and,
consequently, on the human habitat that is essential for the full enjoyment and exercise of
the rights of the inhabitants of the coasts and/or islands of a State Party to the Pact, in lightof the environmental standards recognized in international customary law and the treaties
applicable among the respective States.” In addition, the requesting State asked the Court
to determine “how the Pact of San José should be interpreted in relation to other treaties
concerning the environment that seek to protect specific areas, such as the Convention for
the Protection and Development of the Marine Environment in the Wider Caribbean Region,in the context of the construction of major infrastructure projects in States that are party tosuch treaties, as well as the respective international obligations concerning prevention,
precaution, mitigation of damage, and cooperation between the States potentiallyaffected.”3
2.

Colombia explained the considerations that led to the request and indicated that:[According to Colombia, t]he situation that led to the presentation of this request for anadvisory opinion relates to the severe degradation of the marine and humanenvironment in the Wider Caribbean Region that may result from the acts and/or
omissions of States that border the Caribbean Sea in the context of the construction ofmajor new infrastructure projects.
In particular, this request for an advisory opinion is the result of the development ofmajor new infrastructure projects in the Wider Caribbean Region that, owing to theirdimensions and permanence, may cause significant harm to the marine environment
and, consequently, to the inhabitants of the coastal areas and islands located in thisregion who depend on this environment for their subsistence and development. […][The requesting State indicated that] this problem is of interest not only to the States ofthe Wider Caribbean Region – whose coastal and island population may be directly
affected by any environmental damage suffered by this region – but also to theinternational community. This is because, nowadays, major infrastructure projects are
frequently constructed and operated in maritime areas that have effects which may go

Article 64 of the American Convention: “1. The member states of the Organization may consult the Court
regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in theAmerican states. Within their spheres of competence, the organs listed in Chapter X of the Charter of the Organizationof American States, as amended by the Protocol of Buenos Aires, may in like manner consult the Court. 2. The Court, at
the request of a member state of the Organization, may provide that state with opinions regarding the compatibility of
any of its domestic laws with the aforesaid international instruments.”
1

The relevant parts of Article 70 of the Court’s Rules of Procedure establish that: “1. Requests for an advisory
opinion under Article 64(1) of the Convention shall state with precision the specific questions on which the opinionof the Court is being sought. 2. Requests for an advisory opinion submitted by a Member State or by theCommission shall, in addition, identify the provisions to be interpreted, the considerations giving rise to therequest, and the names and addresses of the Agent or the Delegates.”
2

The complete text of the request [in Spanish only] can be consulted on the Court’s website at the following
link: http://www.corteidh.or.cr/solicitudoc/solicitud_14_03_16_esp.pdf.
3-5beyond state borders and ultimately have negative repercussions on the quality of lifeand personal integrity of those who depend on the marine environment for theirsubsistence and development. […]The protection of the human rights of the inhabitants of the islands of the Wider
Caribbean Region and, consequently, the prevention and mitigation of environmental
damage in this area, is an issue of particular interest to Colombia, because part of its
population lives on the islands that form part of the Archipelago of San Andrés,Providencia and Santa Catalina and they therefore depend on the marine environment
for their survival, and economic, social and cultural development. […]Owing to the ecological and oceanographic interconnectedness of the Wider Caribbean
Region – a well-documented situation – it is vitally important that the problems of themarine environment be dealt with taking into consideration the effects on relevant areas
and the ecosystem as a whole, with the cooperation of the other States that could be
affected. […]The construction, maintenance and operation of major infrastructure projects may havea severe impact on the environment and, therefore, on the populations that inhabit theareas that may be directly or indirectly affected as a result of such projects. […]The increased levels of sediment in the Wider Caribbean Region, and specifically in the
Caribbean Sea, could cause a wide range of irreparable harm to the marine ecosystem[…]. In addition, the maritime traffic generated or increased by the development ofmajor new infrastructure projects in the Caribbean would also increase the risk ofpollution of the marine environment on which the habitat of the inhabitants of theColombian islands and the populations of other coastal States depends. […]The pollution of the marine environment of the Wider Caribbean Region that may result
from […] the above-mentioned causes may have long-lasting and, at times, irreparable
effects on the marine flora and fauna and, consequently, on the (already fragile)
capacity of the ecosystem to provide an income from tourism and fishing for the
inhabitants of the Region’s coasts and islands. Furthermore, it should be underlined that
this type of damage to the marine environment not only subsists over time, but tends toworsen, affecting both present and future generations. […]Based on the foregoing, there can be no doubt that the construction and operation ofmajor new infrastructure projects in the Wider Caribbean Region may have a negativeand irreparable effect on a decent life, and also on the quality of life, of the inhabitantsof the coasts and, particularly, of the islands located in this region, and also on their
possibilities of economic, social and cultural development and on their physical, mental
and moral integrity. These factual circumstances and, therefore, the need to implement
appropriate and effective projects to prevent and mitigate environmental damage whendeveloping major new infrastructure projects in the Wider Caribbean Region – with thecooperation of the States potentially affected – comprise the factual context that forms
the basis for this request for an advisory opinion.

3.

Accordingly, Colombia submitted the following specific questions to the Court:
I.
Based on the provisions of Article 1(1) of the Pact of San José, should it beconsidered that a person, even if he or she is not in the territory of a State Party, issubject to the jurisdiction of that State in the specific case in which, the four conditions
described below are met cumulatively?
1.
2.

that the person resides in, or is inside, an area delimited and protected by theenvironmental protection regime of a treaty to which that State is a party;
that the said treaty-based regime establishes an area of functional jurisdiction,such as the one established in the Convention for the Protection andDevelopment of the Marine Environment in the Wider Caribbean Region;

-63.
4.

that, in this area of functional jurisdiction, the States parties have the obligation
to prevent, reduce and control pollution as the result of a series of general
and/or specific obligations, andthat, as a result of damage to the environment or the risk of environmental
damage in the area protected by the respective convention that can be
attributed to the State party – to that convention and to the Pact of San José –the human rights of the person in question have been violated or are
threatened.

II. Are the measures and conducts that, owing to an act and/or omission of one of theStates parties, have effects which may cause serious damage to the marine environment– which constitutes the living environment and an essential source of the livelihood of the
inhabitants of the coast and/or islands of another State party – compatible with the
obligations set out in Articles 4(1) and 5(1), read in relation to Article 1(1) of the Pact of
San José? Or any other permanent provision?
III. Should we interpret, and to what extent, the provisions establishing the obligation
to respect and to ensure the rights and freedoms set out in Articles 4(1) and 5(1) of thePact, in the sense that these provisions give rise to the obligation of the States Parties to
the Pact to respect the provisions of international environmental law which seek toprevent environmental damage that could limit the effective enjoyment of the rights tolife and to personal integrity, or make this impossible, and that one of the ways tocomply with this obligation is by making environmental impact assessments in areas
protected by international law, and by cooperation among the States that are affected? Ifapplicable, what general parameters should be considered when making environmental
impact assessments in the Wider Caribbean Region, and what should their minimum
content be?

4.

Colombia appointed Ricardo Abello Galvis as its Agent.
II
PROCEEDING BEFORE THE COURT

5.
In notes of May 18, 2016, the Secretariat of the Court (hereinafter “theSecretariat”), pursuant to the provisions of Article 73(1)4 of the Rules of Procedure,
forwarded the request to the other Member States of the Organization of American States(hereinafter “the OAS”), the OAS Secretary General, the President of the OAS Permanent
Council, the President of the Inter-American Juridical Committee, and the Inter-American
Commission on Human Rights (hereinafter “the Inter-American Commission” or “theCommission”). In these notes, the Secretariat advised that the President of the Court, in
consultation with the other judges, had established September 19, 2016, as the time limit
for presenting written observations on the said request. Also, on the instructions of the
President and as established in Article 73(3) 5 of the said Rules of Procedure, in notes of May
18, 2016, the Secretariat invited various civil society and international organizations as wellas academic establishments in the region to forward their written opinion on the questions
submitted to the Court within the aforementioned time frame. Lastly, an open invitation was
issued on the Inter-American Court’s website to all those interested in presenting their
Article 73(1) of the Court’s Rules of Procedure establishes that: “Upon receipt of a request for an advisory
opinion, the Secretary shall transmit copies thereof to all of the Member States, the Commission, the Permanent
Council through its Presidency, the Secretary General, and, if applicable, to the OAS organs whose sphere ofcompetence is referred to in the request.”
4

Article 73(3) of the Court’s Rules of Procedure stipulates that: “The Presidency may invite or authorize any
interested party to submit a written opinion on the issues covered by the request. If the request is governed by
Article 64(2) of the Convention, the Presidency may do so after prior consultation with the Agent.”5

-7written opinion on the questions submitted to the Court. The original time limit was
extended until January 19, 2017; those interested had around eight months to forward theirsubmissions.
6.
At the expiry of the time frame, the Secretariat had received additional observations
from the requesting State and also the following briefs with observations:6
Written observations presented by OAS Member States:
1.
2.
3.
4.

Argentine Republic (hereinafter “Argentina”)
Plurinational State of Bolivia (hereinafter “Bolivia”)
Republic of Honduras (hereinafter “Honduras”)
Republic of Panama (hereinafter “Panama);

Written observations presented by OAS organs:
5.
6.

Inter-American Commission on Human Rights
The representative of the OAS General Secretariat and the World Commission
on Environmental Law of the International Union for Conservation of Nature; 7

Written observations presented by international organizations:
7.

International Maritime Organization;

Written observations presented by State agencies, national and international
associations, non-governmental organizations and academic establishments:
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.

Interamerican Association for Environmental Defense
Center for International Environmental Law and Vermont Law School Center for
Applied Human Rights
Human Rights Center of the Law School at the Universidad de Buenos Aires
Center for Human Rights Studies of the Universidad Autónoma de YucatánInternational Center for Comparative Environmental Law
Centro Mexicano de Derecho Ambiental A.C.
Human Rights Legal Clinic at the Pontificia Universidad Javeriana, Cali campus
Human Rights Commission of the Federal District of Mexico
National Human Rights Commission of Mexico
Conservation Clinic & Costa Rica Program on Sustainable Development, Law,
Policy & Professional Practice at the University of Florida Levin College of Law
Environmental Law Alliance Worldwide
Law School at the Universidad EAFIT
Law School at the Universidad Sergio Arboleda, Colombia
European Center for Constitutional and Human Rights
Law School at the Universidad Católica del Uruguay
Biosphere Foundation
Public Action Group of the Jurisprudence Faculty at the Universidad del Rosario

The observations on the request for an advisory opinion presented by Colombia can be consulted on the
Court’s website at the following link: http://www.corteidh.or.cr/cf/jurisprudencia2/observaciones_oc.cfm?nId_
oc=1650.
6

The brief was presented on behalf of the World Commission on Environmental Law of the International Union
for Conservation of Nature. During the public hearing, the representative of the OAS General Secretariat, Claudia
S. De Windt, explained that the OAS General Secretariat made this presentation “jointly” with the World
Commission on Environmental Law “of which the General Secretariat is a member, in addition to being on the
Board of the World Commission on Environmental Law.”7

-825.
26.
27.
28.
29.
30.
31.

Group of students from the Escuela Libre de Derecho;
Environmental Law and Policy Research Group at the Universidad Nacional de
Colombia
Public Interest and Litigation Group at the Universidad del Norte
Democracy and Human Rights Institute at the Pontificia Universidad Católica delPeru
Office for Raizal Ethnic Affairs of the Archipelago of San Andrés, Providencia
and Santa Catalina
Rede Amazônica de Clínicas de Direitos Humanos
Universidad Centroamericana José Simeón Cañas

Written observations presented by members of civil society:
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.

42.
43.
44.
45.
46.
47.
48.
49.
50.
51.

Ana María Mondragón Duque and Karina G. Carpintero
Alberto Madero Rincón, Sebastián Rubiano-Groot, Daniela María Rojas García,
Nicolás Ramos Calderón and Nicolás Caballero Hernández
Alejandra Gonza, Adam Hayne and Michelle Sue
Alejandra Gutiérrez Vélez and Laura Castellanos
Alfredo Ortega Franco
Antonio José Rengifo Lozano
Belén Olmos Giupponi, Cristián Delpiano Lira and Christian Rojas Calderón
Benjamín Benítez Jerezano, Gina Larissa Reyes Vásquez, Luis Ovidio Chinchilla
Fuentes and Nadia Stefania Mejía Amaya
Christoph Schwarte
Eduardo Biacchi Gomes, Danielle Anne Pamplona, Adrian Mohamed Nunes
Amaral, Ane Elise Brandalise Gonçalves, Amanda Carolina Buttendorff, Aníbal
Alejandro Rojas Hernandez, Bruna Werlang Paim, Juliane Tedesco Andretta,
Mariana Kaipper de Azevedo, Lincoln Machado Domingues, Henrique Alef
Burkinsky Pereira, Luis Alexandre Carta Winter, João Paulo Josbiak Dresch andSimone dos Reis Bieleski Marques
Hermilo de Jesús Lares Contreras
Jorge Alberto Pérez Tolentino
Jorge E. Viñuales
José Manuel Pérez Guerra
Judith Ponce Ruelas, José Benjamín González Mauricio and Rafael Ríos Nuño
Matías Nicolás Kuret, Rodrigo Carlos Méndez Martino, Nicolás Mariano Toumand María Agostina Biritos
Noemí Sanín Posada and Miguel Ceballos Arévalo
Pedro Gonsalves de Alcântara Formiga
Santiago Díaz-Cediel, Ignacio F. Grazioso and Simon C. Milnes
Silvana Insignares Cera, Meylin Ortiz Torres, Juan Miguel Cortés and Orlando De
la Hoz Orozco.

7.
Following the conclusion of the written procedure, and pursuant to Article 73(4) of
the Rules of Procedure,8 on February 10, 2017, the President of the Court issued an ordercalling for a public hearing,9 and invited the OAS Member States, the OAS Secretary
General, the President of the OAS Permanent Council, the President of the Inter-American
Article 73(4) of the Court’s Rules of Procedure: “[a]t the conclusion of the written proceedings, the Court
shall decide whether oral proceedings should take place and shall establish the date for a hearing, unless it
delegates the latter task to the Presidency. Prior consultation with the Agent is required in cases governed by
Article 64(2) of the Convention.”
89

Available at: http://www.corteidh.or.cr/docs/asuntos/solicitud_10_02_17_esp.pdf.

-9Juridical Committee, the Inter-American Commission, and members of variousorganizations, civil society and academic establishments, as well as individuals who had
submitted written observations, to present their oral comments on the request made to the
Court.
8.
The public hearing was held on March 22, 2017, during the fifty-seventh special
session of the Inter-American Court of Human Rights held in Guatemala City, Guatemala.
9.

The following persons appeared before the Court: 10
1.

For the Republic of Colombia: Ricardo Abello Galvis, Colombia’s Agent before the InterAmerican Court of Human Rights and Head of Delegation; Carlos Manuel Pulido Collazos,
Ambassador of Colombia to Guatemala and Alternate Head of Delegation; AndrésVillegas Jaramillo, Adviser to the Colombian Ministry of Foreign Affairs; César Felipe
González Hernández, Minister Plenipotentiary of the Colombian Embassy in Guatemala;Juan Manuel Morales Caicedo, Adviser to the Colombian Ministry of Foreign Affairs;
Jenny Sharyne Bowie Wilches, Third Secretary of the Colombian Ministry of Foreign
Affairs, and Juan-Marc Thouvenin, International consultant;

2.

For the Republic of Guatemala: Wendy Cuellar Arrecis, Director, Unit to Monitor
International Human Rights Cases; Andrés Uban, Nidia Juárez, Lesbia Contreras,
Steffany Rebeca Vásquez and Francisca Marroquín, members of the Presidential
Commission to Coordinate the Executive’s Human Rights Policy (COPREDEH); Carlos
Hugo Ávila, Director for Human Rights of the Ministry of Foreign Affairs;

3.

For the Argentine Republic: Javier Salgado;

4.

Por the Republic of Honduras: Ricardo Lara Watson, Assistant Attorney General of the
Republic, Deputy Agent for the State of Honduras and Head of the Delegation; Olbín
Mejía Cambar, Human Rights Office of the Office of the Attorney General, and Luis
Ovidio Chinchilla Fuentes, Officer responsible for Human Rights Conventions andMonitoring of the Secretary of State for Human Rights, Justice, Governance andDecentralization;

5.

For the Plurinational State of Bolivia: Ernesto Rosell Arteaga from the Office of the
Attorney General;6.

For the Inter-American Commission on Human Rights: Jorge H. Meza Flores, consultant;

7.

For the OAS General Secretariat: Claudia S. de Windt, and for the World Commission on
Environmental Law of the International Union for Conservation of Nature: María L.
Banda;

8.

For the Law School of the Universidad Sergio Arboleda: Andrés Sarmiento;

9.

For the Mexican Center for Environmental Law: Anaid Velasco;

10.

Nadia Stefanía Mejía Amaya;

11.

Silvana Insignares Cera;

12.

Simon Milnes, Santiago Díaz-Cediel and Ignacio Grazioso;

13.

For the Office for Raizal Ethnic Affairs of the Archipelago of San Andrés, Providencia and

The video of the hearing and the interventions of participating delegations and individuals is available at:https://vimeo.com/album/4520997.
10

- 10 Santa Catalina: Walt Hayes Bryan, Endis Livingston Bernard and Ofelia Livingston de
Barker;14.

For the Human Rights Legal Clinic at the Pontificia Universidad Javeriana, Cali campus:
Raúl Fernando Núñez Marín, Santiago Botero Giraldo and Estuardo Rivera;

15.

For the Public Interest and Litigation Group at the Universidad del Norte: Shirley Llain
Arenilla;

16.

Nicolás Eduardo Ramos Calderón;17.

For the group of students from the Escuela Libre de Derecho: Luis M. Díaz Mirón, Elí
Rodríguez Martínez, Juan Pablo Vásquez Calvo, Manuel Mansilla Moya, Carmen Andrea
Guerrero Rincón, Adriana Méndez Martínez, José Emiliano González Aranda and Agustín
Roberto Guerrero Rodríguez;

18.

For the Human Rights Research Center at the Universidad Autónoma de Yucatán: Maríade los Ángeles Cruz Rosel and Arturo Carballo Madrigal;

19.

For the Mexican National Human Rights Commission: Jorge Ulises Carmona Tinoco and
Edmundo Estefan Fuentes;

20.

For the Rede Amazônica de Clínicas de Direitos Humanos: Sílvia Maria da Silveira
Loureiro, Caio Henrique Faustino da Silva and Victoria Braga Brasil;

21.

For the Interamerican Association for Environmental Defense (AIDA): Astrid Puentes
Riaño;

22.

For the Law School at the Universidad EAFIT: Catalina Becerra Trujillo, Ana Carolina
Arias Arcila and José Alberto Toro Valencia;

23.

For the Environmental Law and Policy Research Group at the Universidad Nacional de
Colombia: Catalina Toro Pérez;24.

Alfredo Ortega Franco;

25.

Alejandra Gonza and Adam Hayne, and26.

For the Biosphere Foundation: Jorge Casal and Horacio P. de Beláustegui.

10.
Following the hearing, supplementary briefs were received from: (1) the Office for
Raizal Ethnic Affairs of the Archipelago of San Andrés, Providencia and Santa Catalina, and(2) the Republic of Colombia.
11.
When answering this request for an advisory opinion, the Court examined and took
into account the fifty-two briefs and interventions by States, OAS organs, internationalorganizations, State agencies, non-governmental organizations, academic establishments,and members of civil society (supra paras. 6 and 10). The Court expresses its appreciation
for these valuable contributions that, when issuing this Advisory Opinion, provided it withinsight on the different questions raised.
12.

The Court began deliberation of this Advisory Opinion on November 14, 2017.

III
JURISDICTION AND ADMISSIBILITY

- 11 -

13.
In this chapter, the Court will examine the scope of its competence to issue advisory
opinions, as well as its jurisdiction, and the admissibility and validity of ruling on the request
for an advisory opinion presented By Colombia.

A. The Court’s advisory jurisdiction in relation to this request
14.
The request was submitted to the Court by Colombia on the basis of Article 64(1) of
the American Convention. Colombia is a Member State of the OAS and, therefore, has theright to request the Inter-American Court to issue advisory opinions on the interpretation ofthis treaty or of other treaties concerning the protection of human rights in the American
States.
15.
In this regard, the Court considers that, as an organ with jurisdictional and advisory
functions, it has the inherent authority to determine the scope of its own competence(compétence de la compétence/Kompetenz-Kompetenz) when exercising its advisory
function pursuant to Article 64(1) of the Convention.11 And this is so, in particular, because
the mere fact of having recourse to the Court supposes that the State or States who present
a request recognize the Court’s right to determine the scope of its competence in thatregard.
16.
The Court’s advisory function allows it to interpret any article of the American
Convention, and no part or aspect of this instrument is excluded from such interpretation.
Thus, it is evident that, since the Court is the “ultimate interpreter of the American
Convention,”12 it has full authority and competence to interpret all the provisions of theConvention, even those of a procedural nature. 13
17.
In addition, the Court has considered that, when referring to its authority to provide
an opinion on “other treaties concerning the protection of human rights in the States of theAmericas,” Article 64(1) of the Convention is broad and non-restrictive. In general, theadvisory jurisdiction of the Court can be exercised with regard to any provision dealing withthe protection of human rights set forth in any international treaty applicable in theAmerican States, whether it be bilateral or multilateral, whatever the principal purpose ofsuch a treaty, and whether or not non-Member States of the inter-American system are or
have the right to become parties thereto. 14 Consequently, when interpreting the Convention
Cf. Case of the Constitutional Court v. Peru. Jurisdiction. Judgment of September 24, 1999. Series C No. 55,
para. 33; Reports of the Inter-American Commission on Human Rights (Art. 51 American Convention on Human
Rights). Advisory Opinion OC-15/97 of November 14, 1997. Series A No. 15, para. 5, and Entitlement of Legal
Entities to hold Rights under the Inter-American System of Human Rights (Interpretation and scope of Article 1(2),in relation to Articles 1(1), 8, 11(2), 13, 16, 21, 24, 25, 29, 30, 44, 46, and 62(3) of the American Convention on
Human Rights, as well as Article 8(1) A and B of the Protocol of San Salvador). Advisory Opinion OC-22/16 of
February 26, 2016. Series A No. 22, para. 14.
11

Case of Almonacid Arellano et al. v. Chile. Preliminary objections, merits, reparations and costs. Judgment of
September 26, 2006. Series C No. 154, para. 124; Advisory Opinion OC-22/16, supra, para. 16, and Case ofChinchilla Sandoval et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of February
29, 2016. Series C No. 312, para. 242.
12

Cf. Article 55 of the American Convention on Human Rights. Advisory Opinion OC-20/09 of September 29,
2009. Series A No. 20, para. 18; Advisory Opinion OC-22/16, supra, para. 16.
13

Cf. “Other Treaties” Subject to the Advisory Function of the Court (Art. 64 American Convention on Human
Rights). Advisory Opinion OC-1/82 of September 24, 1982. Series A No. 1, first operative paragraph; Advisory
Opinion OC-22/16, supra, para. 17.
14

- 12 within the framework of its advisory function and in the terms of Article 29(d) of theConvention, the Court may invoke the Convention or other treaties concerning theprotection of human rights in the American States. 15
B. Requirements for the admissibility of the request
18.
The Court must now determine whether the request for an advisory opinion
presented by Colombia meets the formal and substantive requirements for admissibility, sothat it may issue an opinion in this case.
19.
First, the Court finds that the request presented by Colombia complies formally withthe requirements described in Articles 70 16 and 7117 of the Rules of Procedure, according towhich, for the Court to consider a request, the questions must be formulated precisely,
specifying the provisions to be interpreted, indicating the considerations that gave rise to
the request, and providing the name and address of the agent.
20.
Regarding the substantive requirements, the Court recalls that, on numerous
occasions, it has indicated that compliance with the regulatory requirements to submit arequest does not mean that the Court is obliged to respond to it. 18 To determine the validityof the request, the Court must bear in mind considerations that exceed matters of mere
form and that relate to the characteristics it has recognized for the exercise of its advisory
function.19 It must go beyond the formalism that might prevent it from considering
questions that have a legal interest for the protection and promotion of human rights.20
Also, the Court’s advisory jurisdiction should not, in principle, be used for abstract
speculations with no foreseeable application to specific situations that would justify the issueof an advisory opinion.21
21.
In its request, Colombia stated that “[t]he Court’s opinion will have great relevancefor effective compliance with international human rights obligations by the agents andorgans of the States of the Wider Caribbean Region, as well as for reinforcing global
awareness, by clarifying the scope of the environmental protection obligations under the
Pact and, in particular, the importance that should be accorded to social and environmental
Cf. Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of
Article 64 of the American Convention on Human Rights. Advisory Opinion OC-10/89 of July 14, 1989. Series A No.
10, sole operative paragraph, and Advisory Opinion OC-22/16, supra, para. 18.
15

Article 70 of the Court’s Rules of Procedure: “Interpretation of the Convention: 1. Requests for an advisory
opinion under Article 64(1) of the Convention shall state with precision the specific questions on which the opinionof the Court is being sought. 2. Requests for an advisory opinion submitted by a Member State or by theCommission shall, in addition, identify the provisions to be interpreted, the considerations giving rise to therequest, and the names and addresses of the Agent or the Delegates. […]”
16

Article 71 of the Court’s Rules of Procedure: “Interpretation of Other Treaties: 1. If, as provided for in Article
64(1) of the Convention, the interpretation requested refers to other treaties concerning the protection of humanrights in the American States, the request shall indicate the name of the treaty and parties thereto, the specificquestions on which the opinion of the Court is being sought, and the considerations giving rise to the request. […]”
17

18

Cf. Advisory Opinion OC-15/97, supra, para. 31, and Advisory Opinion OC-22/16, supra, para. 21.

Cf. Advisory Opinion OC-1/82, para. 31; Advisory Opinion OC-15/97, para. 31, and Advisory Opinion OC20/09, supra, para. 14.
19

Cf. Advisory Opinion OC-1/82, para. 25, and Control of Due Process in the Exercise of the Powers of theInter-American Commission on Human Rights (Arts. 41 and 44 to 51 American Convention on Human Rights).
Advisory Opinion OC-19/05 of November 28, 2005, Series A No. 19, para. 17.
20

Cf. Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8 American Convention on Human
Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 16, and Advisory Opinion OC-22/16,
para. 21.
21

- 13 impact assessments, projects to prevent and mitigate environmental harm, and cooperation
between States that could be affected by damage to the environment – in the context of theconstruction and operation of mega-projects that, once initiated, may have an irreversible
negative impact on the marine environment.”
22.
The OAS General Assembly has “underscore[d] the importance of studying the linkthat may exist between the environment and human rights, recognizing the need topromote environmental protection and the effective enjoyment of all human rights.”22 Also,
the OAS Member States indicated in the Inter-American Democratic Charter that it wasessential that “the States of the hemisphere implement policies and strategies to protect theenvironment, including application of various treaties and conventions, to achievesustainable development for the benefit of future generations.” 23 Furthermore, they haveadopted the Inter-American Program for Sustainable Development 2016-2021, which
recognizes the three dimensions of sustainable development: “the economic, social andenvironmental,” which are “integrated and indivisible” “to support development, eradicate
poverty, and promote equality, fairness and social inclusion.” 24
23.
When recalling that the advisory function represents “a service that the Court is able
to provide to all the members of the inter-American system in order to help them comply
with their international commitments [concerning human rights],” 25 the Court considers
that, based on the interpretation of the relevant provisions, its response to the request will
be of real value for the countries of the region because it will identify, clearly andsystematically, the State obligations in relation to the protection of the environment within
the framework of their obligation to respect and to ensure the human rights of every
persons subject to their jurisdiction. This will lead the Court to determine the principles andthe specific obligations that States must comply with in relation to environmental protectionin order to respect and to ensure the human rights of the persons subject to theirjurisdiction, and so that they may take appropriate and pertinent measures.
24.
The Court reiterates, as it has on other occasions,26 that the task of interpretation it
performs in the exercise of its advisory function not only clarifies the meaning, purpose andOAS, General Assembly Resolution entitled: “Human Rights and the Environment,” adopted at the third
plenary session held on June 5, 2001, OEA/Ser.P AG/ RES. 1819 (XXXI-O/01), first operative paragraph. Also, in
the Resolution entitled “Human Rights and the Environment in the Americas,” the OAS General Assembly
acknowledged “a growing awareness of the need to manage the environment in a sustainable manner to promote
human dignity and well-being,” and decided “[t]o continue to encourage institutional cooperation in the area of
human rights and the environment in the framework of the Organization, in particular between the Inter-American
Commission on Human Rights (IACHR) and the Unit for Sustainable Development and Environment.” OAS, General
Assembly Resolution entitled “Human Rights and the Environment in the Americas,” adopted at the fourth plenary
session held on June 10, 2003, AG/RES. 1926 (XXXIII-O/03), preamble and second operative paragraph.
22

Inter-American Democratic Charter, adopted at the first plenary session of the OAS General Assembly held
on September 11, 2001, during the twenty-eighth period of sessions, art. 15.
23

The Inter-American Program for Sustainable Development 2016-2021 was adopted on June 14, 2016, andsets out strategic actions to ensure that the work of the OAS General Secretariat in the area of sustainable
development is aligned with the implementation of Agenda 2030 for Sustainable Development (Resolution
A/RES/70/1 of the United Nations General Assembly, October 21, 2015) and the Paris Agreement on Climate
Change in the hemisphere, and that its objectives and results are guided by the new global Sustainable
Development Goals (SDG) adopted by the Members States and that will contribute to achieving them. Cf. OAS,
General Assembly Resolution entitled “Inter-American Program for Sustainable Development,” AG/RES. 2882
(XLVI-O/16), June 14, 2016.
24

25

Cf. Advisory Opinion OC-1/82, supra, para. 39, and Advisory Opinion OC-22/16, supra, para. 23.

Cf. Advisory Opinion OC-1/82, supra, para. 25, and Rights and Guarantees of Children in the Context ofMigration and/or in need of International Protection Advisory Opinion OC-21/14 of August 19, 2014. Series A No.
21, para 29.
26

- 14 reasons for international human rights norms, but also, above all, assists OAS Member
States and organs to comply fully and effectively with their relevant international
obligations, and to define and implement public policies to protect human rights. Thus, its
interpretations help strengthen the system for the protection of human rights.
25.
That said, the Court notes that, in its request for an advisory opinion, Colombia
refers “to the construction, maintenance and expansions of canals for maritime traffic,”among other activities that represent threats to the Wider Caribbean Region. In this regard,
Guatemala, in its intervention during the public hearing, noted that “a comprehensive
analysis of the context and specific situation [of the Wider Caribbean Region and therequest for interpretation] also involves citing the case of Nicaragua versus Colombia before
the International Court of Justice in The Hague, [although] the State of Colombia has not
mentioned those proceedings, or even the State of Nicaragua in its request.” According to
Guatemala, it was necessary “to consider, within this request, the possible implication of theState of Nicaragua even though this is not expressly indicated in any part of the document,”
and also that “the interpretation provided in answer to the request should accord with what
has been indicated in the course of these proceedings between Colombia and Nicaragua;
always respecting the human rights and the sovereignty of the States that may beconcerned.” The Court also notes that the Inter-American Commission advised that it iscurrently examining petition 912/14 with regard to the State of Nicaragua at theadmissibility stage, which “relates to alleged violations of the American Convention in thecontext of the project for the construction of the Grand Interoceanic Canal of Nicaragua.”
26.
The Court recalls, as it has in the context of other advisory procedures, that themere fact that petitions exist before the Commission related to the subject matter of therequest is not sufficient reason for the Court to abstain from responding to the questions
submitted to it.27 Moreover, it notes that the Commission has not yet admitted the petition
mentioned. In addition, it reiterates that, given that the Court is an autonomous judicialorgan, the exercise of its advisory function “cannot be restricted by contentious cases filed
before the International Court of Justice.”28 The task of interpretation that the Court must
perform in the exercise of its advisory function differs from its contentious competence
because there is no litigation to be decided. 29 The central purpose of the advisory function is
to obtain a judicial interpretation of one or several provisions of the Convention or of othertreaties concerning the protection of human rights in the American States. 30
27.
Furthermore, the Court considers that it is not necessarily restricted to the literal
terms of the requests submitted to it. The citing of examples in the request for an advisory
opinion serves the purpose of referring to a specific context and illustrating the different
situations that may arise in relation to the legal issue that is the purpose of the advisory
opinion, without this meaning that the Court is issuing a legal ruling on the situations
described in such examples.31 In the following section, the Court will include the pertinentconsiderations with regard to the scope of this request and the terms of the questions (infra
paras. 32 to 38).
Cf. The Right to Information on Consular Assistance within the Framework of the Guarantees of Due Processof Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, paras. 45 to 65, and Juridical Status andRights of Undocumented Migrants, Advisory Opinion OC-18/03 of September 17, 2003. Series A No. 18, paras. 62
to 66.
27

28

Cf. Advisory Opinion OC-16/99, supra, para. 61.

29

Cf. Advisory Opinion OC-15/97, supra, paras. 25 and 26, and Advisory Opinion OC-22/16, supra, para. 26.

Cf. Restrictions to the Death Penalty (Arts. 4.2 and 4.4 American Convention on Human Rights). Advisory
Opinion OC-3/83 of September 8, 1983. Series A No. 3, para. 22, and Advisory Opinion OC-22/16, supra, para. 26.
30

31

Cf. Advisory Opinion OC-16/99, supra, para. 49, and Advisory Opinion OC-18/03, supra, para. 65.

- 15 -

28.
The Court also finds it necessary to recall that, under international law, when a Stateis a party to an international treaty, such as the American Convention, this treaty is binding
for all its organs, including the Judiciary and the Legislature, 32 so that a violation by any ofthese organs gives rise to the international responsibility of the State. 33 Accordingly, theCourt considers that the different organs of the State must carry out the corresponding
control of conformity with the Convention to ensure the protection of all human rights.34
This is also based on the Court’s considerations in exercise of its non-contentious oradvisory jurisdiction, which undeniably shares with its contentious jurisdiction the purposeof the inter-American human rights system, which is “the protection of the fundamental
rights of the human being.”35
29.
In addition, the interpretation given to a provision of the Convention 36 through theissue of an advisory opinion provides all the organs of the OAS Member States, including
those that are not parties to the Convention but have undertaken to respect human rights
under the Charter of the OAS (Article 3(l)) and the Inter-American Democratic Charter(Articles 3, 7, 8 and 9), with a source that, by its very nature, also contributes, especially ina preventive manner, to achieving the effective respect and guarantee of human rights. In
particular, it can provide guidance when deciding matters relating to the respect andguarantee of human rights in the context of the protection of the environment and thus
avoid possible human rights violations. 37
30.
Given the broad scope of the Court’s advisory function, which, as previously
indicated, encompasses not only the States Parties to the American Convention, everything
indicated in this Advisory Opinion also has legal relevance for all OAS Member States, 38 as
well as for the OAS organs whose sphere of competence relates to the matter that is the
subject of the request.
31.
Based on the foregoing considerations, the Court finds that it has jurisdiction to ruleon the questions raised by Colombia, even though they may be reformulated (infra para.
36). Moreover, the Court does not find in this request any reason to abstain from answering
it; it therefore admits the request and proceeds to respond to it, notwithstanding theclarifications made below concerning the object and scope of the request.
IV
GENERAL CONSIDERATIONS
A. The purpose and scope of this Advisory Opinion and the terms of the
Cf. Case of Fontevecchia and D`Amico v. Argentina. Merits, reparations and costs. Judgment of November
29, 2011. Series C No. 238, para. 93, and Advisory Opinion OC-21/14, supra, para. 31.
32

Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 164,and Advisory Opinion OC-21/14, para. 31.
33

34

Cf. Case of Almonacid Arellano et al. v. Chile, para. 124, and OC-21/14, para. 31.

The Effect of Reservations on the Entry into Force of the American Convention on Human Rights. Advisory
Opinion OC-2/82 of September 24, 1982. Series A No. 2, para. 29, and Advisory Opinion OC-21/14, para. 31.
35

Cf. Case of Cabrera García and Montiel Flores v. Mexico. Preliminary objection, merits, reparations andcosts. Judgment of November 26, 2010. Series C No. 220, para.79; Case of Gelman v. Uruguay. Monitoring
compliance with judgment. Order of the Inter-American Court of Human Rights of March 20, 2013, consideranda
65 to 90, and Advisory Opinion OC-21/14, para. 31.
36

37

Cf. Advisory Opinion OC-21/14, para. 31.

38

Cf. Advisory Opinion OC-18/03, supra, para. 60, and OC-22/16, para. 25.

- 16 questions raised by the requesting State32.
The Court notes that, in its request for an advisory opinion, Colombia referred to
the “marine environment in the Wider Caribbean Region,” and asked the Court tointerpret “how the Pact of San José should be interpreted in relation to otherenvironmental treaties that seek to protect specific areas, as is the case of theConvention for the Protection and Development of the Marine Environment in the Wider
Caribbean Region” (hereinafter “the Cartagena Convention”) 39 (supra para. 1). Thus, thefirst question posed by Colombia was worded as follows:I.

Based on the provisions of Article 1(1) of the Pact of San José, should it beconsidered that a person, even if he or she is not in the territory of a State Party, issubject to the jurisdiction of that State in the specific case in which, the four
conditions described below are met cumulatively?
1. that the person resides in, or is inside, an area delimited and protected by
the environmental protection regime of a treaty to which that State is aparty;
2. that the said treaty-based regime establishes an area of functional
jurisdiction, such as the one established in the Convention for the Protection
and Development of the Marine Environment in the Wider Caribbean Region;
3. that, in this area of functional jurisdiction, the States parties have theobligation to prevent, reduce and control pollution as the result of a series ofgeneral and/or specific obligations, and4. that, as a result of damage to the environment or the risk of environmental
damage in the area protected by the respective convention that can be
attributed to the State party – to the convention and to the Pact of San José
– the human rights of the person in question have been violated or are
threatened.

33.
Accordingly, the requesting State’s first question was subject to four conditions that,it asserted, could be present in a specific geographical region owing to a specific treaty. Thiswas reaffirmed by Colombia when, in answer to a request for clarification of this firstquestion made by Judge Eduardo Ferrer Mac-Gregor Poisot during the hearing, it indicatedthat “[t]he Republic of Colombia circumscribes the object of its request for an advisory
opinion to the “functional jurisdiction” created by the Cartagena Convention, owing to theparticular human, environmental and legal characteristics of the Wider Caribbean Region.”
34.
In this regard, the Court reiterates that it is not limited by the literal wording of thequestions posed when exercising its advisory function (supra para. 27). Thus, it understands
that the purpose of the first question raised by the requesting State is for the Court tointerpret the scope of Article 1(1) of the American Convention in relation to the area of
application of the Cartagena Convention. 40 Currently, there are 25 States parties to thatconvention;41 22 of these are members of the OAS and 10 are parties to the American
Convention.
Cf. Convention for the Protection and Development of the Marine Environment in the Wider Caribbean
Region (Cartagena Convention), entered into force on October 11, 1986.
39

The text of this treaty can be consulted at the following link: http://www.cep.unep.org/cartagenaconvention/text-of-the-cartagena-convention.
40(1) Antigua and Barbuda, (2) Bahamas, (3) Barbados, (4) Belize, (5) Colombia, (6) Costa Rica, (7) Cuba,(8) Dominica, (9) Dominican Republic, (10) France, (11) Grenada, (12) Guatemala, (13) Guyana, (14) Jamaica,(15) Mexico, (16) Nicaragua, (17) The Netherlands on behalf of the Netherlands Antilles and Aruba, (18) Panama,(19) Saint Kitts and Nevis, (20) Saint Vincent and the Grenadines, (21) Saint Lucia, (22) Trinidad and Tobago, (23)
United Kingdom of Great Britain and Northern Ireland, (24) United States of America and (25) Venezuela.
41

- 17 -

35.
This Court has indicated that, owing to the general interest of its advisory opinions,
their scope should not be restricted to specific States.42 The questions raised in the request
go beyond the interests of the States parties to the Cartagena Convention and areimportant for all the States of the planet. Therefore, the Court considers that it should not
limit is response to the scope of application of the Cartagena Convention. Also, taking into
account the relevance of the environment as a whole for the protection of human rights, itdoes not find it pertinent to restrict its response to the marine environment. In this Opinion,
the Court will rule on the State obligations with regard to the environment that are mostclosely related to the protection of human rights, which is the main function of this Court.
Consequently, it will refer to the environmental obligations arising from the obligations torespect and to ensure human rights.
36.
The Court has established that, in exercise of its powers inherent in the jurisdiction
granted by Article 64 of the Convention, it is able to define or clarify and, in certain cases,
reformulate the questions posed to it; particularly, when, as in this case, the Court’s opinion
is sought on a matter that, it considers, falls within its competence.43 Based on theconsiderations in the preceding paragraph, the Court does not find it necessary or pertinent
to examine the four conditions that Colombia has included in its first question in order to
respond to the question posed by Colombia on the exercise of jurisdiction by a State outside
its territory. Therefore, the Court decides to reformulate the first question posed by
Colombia as follows:
Based on the provisions of Article 1(1) of the Pact of San José, should it be consideredthat a person, even if he or she is not in the territory of a State Party, may be subject tothe jurisdiction of that State in the context of compliance with obligations relating to theenvironment?

37.
In addition, regarding the second and third questions, the Court understands thatthey both refer, concurrently, to the State obligations concerning the duty to respect and toensure the rights to life and to personal integrity in relation to damage to the environment.
In the second question, Colombia is asking whether State “measures and conducts” that
could cause “serious damage to the […] environment [are] compatible with the obligations[of the States arising from] Articles 4(1) and 5(1)” of the Convention (supra para. 3). While,in the third question, Colombia is asking the Court to define the obligations derived from“the obligations to respect and to ensure the rights and freedoms set out in Articles 4(1)and 5(1)” of the Convention, in relation to “the provisions of international environmental law
which seek to prevent environmental damage that could limit the effective enjoyment of therights to life and to personal integrity” (supra para. 3). In this regard, Colombia indicatedthat it sought definition of “the scope of the obligations under the Pact, particularly thosecontained in Articles 4(1) and 5(1), in relation to the protection of the environment,” as well
as clarification of “international obligations concerning prevention, precaution, mitigation ofdamage, and cooperation between the States that could be affected.”
38.
Therefore, the Court understands that, with its second and third questions, Colombia
is consulting the Court about the obligations of the States Parties to the Convention in
relation to environmental protection in order to respect and to ensure the rights to life andto personal integrity in the case of damage that occurs within their territory and also in the
42

Similarly, see, Advisory Opinion OC-16/99, supra, para. 41.

Cf. Enforceability of the Right of Reply or Rectification (Arts. 14.1, 1.1 and 2 American Convention on Human
Rights). Advisory Opinion OC-7/86 of August 29, 1986. Series A No. 7, para. 12, and Advisory Opinion OC-16/99,
supra, para. 42.
43

- 18 case of damage that goes beyond their borders. Consequently, the Court decides tocombine its considerations on these questions in order to define, jointly, the Stateobligations derived from the obligations to respect and to ensure the rights to life and to
personal integrity in relation to damage to the environment. It should be understood thatthe environmental obligations that the Court notes in Chapter VIII in response to bothquestions are applicable to both internal and international environmental protection. The
Court will structure its Opinion based on these considerations as described below.
B. The structure of this Advisory Opinion
39.
Based on the above, to provide an appropriate response to the questions raised, theCourt has decided to structure this Opinion as follows: (1) Chapter V will set out theinterpretation criteria to be used by the Court to issue this Opinion; (2) Chapter VI willcontain introductory considerations on the interrelationship between human rights and theenvironment, and the human rights that are affected by environmental degradation, inorder to offer a general legal framework for the State obligations established in this Opinion
in response to the requesting State’s questions; (3) Chapter VII responds to Colombia’s firstquestion, interpreting the scope of the term “jurisdiction” in Article 1(1) of the American
Convention, particularly in relation to environmental obligations, and (4) Chapter VIII
responds to the second and third questions posed by Colombia, interpreting andestablishing the environmental obligations of States with regard to prevention, precaution,
cooperation and procedure derived from the obligations to respect and to ensure the rights
to life and to personal integrity under the American Convention.
V
INTERPRETATION CRITERIA40.
To issue its opinion on the interpretation of the legal provisions cited in the request,
the Court will have recourse to the Vienna Convention on the Law of Treaties, whichcontains the general and customary rules for the interpretation of international treaties. 44
This involves the simultaneous and joint application of the criteria of good faith, and theanalysis of the ordinary meaning to be given to the terms of the treaty in question “in theircontext and in the light of its object and purpose.” Accordingly, the Court will use themethods set out in Articles 3145 and 3246 of the Vienna Convention to make thisCf. Advisory Opinion OC-21/14, para. 52, and Advisory Opinion OC-22/16, para. 35. See also, International
Court of Justice (hereinafter ÏCJ”), Case concerning the sovereignty over Pulau Ligitan and Pulau Sipadan(Indonesia v. Malaysia), Judgment of December 17, 2002, para. 37, and ICJ, Avena and Other Mexican Nationals(Mexico v. the United States of America), Judgment of March 31, 2004, para. 83.
44

Cf. Article 31 (General rule of interpretation) of the Vienna Convention on the Law of Treaties stipulates
that: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to theterms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of theinterpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any
agreement relating to the treaty which was made between all the parties in connection with the conclusion of thetreaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty
and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account,
together with the context: (a) any subsequent agreement between the parties regarding the interpretation of thetreaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law
applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established thatthe parties so intended.” Vienna Convention on the Law of Treaties, U.N. Doc A/CONF.39/27 (1969), 1155 U.N.T.S.
331, signed at Vienna on May 23, 1969, entered into force January 27, 1980.
45

Article 32 (Supplementary means of interpretation) of the Vienna Convention on the Law of Treaties
establishes that: “Recourse may be had to supplementary means of interpretation, including the preparatory workof the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application46

- 19 interpretation.
41.
In the specific case of the American Convention, the object and purpose of thistreaty is “the protection of the fundamental rights of the human being” 47 and, to this end, it
was designed to protect the human rights of individuals, regardless of their nationality,
before their own State or any other State.48 In this regard, it is essential to recall the
specificity of human rights treaties which create a legal system under which States assume
obligations towards the persons subject to their jurisdiction, 49 and complaints may be filed
for the violation of such treaties by those persons and by all the States Parties to theConvention by the lodging of a petition before the Commission,50 and even before the
Court,51 all of which signifies that the provisions must also be interpreted using a model
based on the values that the inter-American system seeks to safeguard, from the “bestperspective” for the protection of the individual.52
42.
Hence, the American Convention expressly contains specific interpretation standards
in its Article 29,53 including the pro persona principle, which means that no provision of theConvention shall be interpreted as restricting the enjoyment or exercise of any right or
freedom recognized by virtue of the laws of any State Party or by virtue of another convention
to which one of the said States is a party, or excluding or limiting the effects that the American
Declaration of the Rights and Duties of Man and other international acts of the same nature
may have.
43.
In addition, the Court has repeatedly indicated that human rights treaties are living
instruments, the interpretation of which must evolve with the times and contemporary
conditions.54 This evolutive interpretation is consequent with the general rules ofinterpretation set out in Article 29 of the American Convention, as well as those establishedby the Vienna Convention on the Law of Treaties.55

of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning
ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”
47

Advisory Opinion OC-2/82, supra, para. 29, and Advisory Opinion OC-21/14, supra, para. 53.

48

Cf. Advisory Opinion OC-2/82, supra, para. 33, and Advisory Opinion OC-21/14, supra, para. 53.

49

Cf. Advisory Opinion OC-2/82, supra, para. 29, and Advisory Opinion OC-21/14, supra, para. 53.

50

Cf. Articles 43 and 44 of the American Convention.

51

Cf. Article 61 of the American Convention

Cf. Case of González et al. (“Cotton Field”) v. Mexico. Preliminary objection, merits, reparations and costs.
Judgment of November 16, 2009. Series C No. 205, para. 33, and Advisory Opinion OC-21/14, supra, para. 53.
52

Article 29 of the American Convention establishes that: “Restrictions regarding Interpretation: No provisionof this Convention shall be interpreted as: (a) permitting any State Party, group, or person to suppress the enjoyment
or exercise of the rights and freedoms recognized in this Convention o to restrict them to a greater extent than isprovided for herein; (b) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the lawsof any State Party or by virtue of another convention to which one of the said states is a party; (c) precluding otherrights or guarantees that are inherent in the human personality or derived from representative democracy as a form ofgovernment; or (d) excluding or limiting the effect that the American Declaration of the Rights and Duties of Man andother international acts of the same nature may have.”
53

See, inter alia, Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment ofNovember 19, 1999. Series C No. 63, para. 193; Advisory Opinion OC-16/99, supra, para. 114; Case of Artavia
Murillo et al. (“In vitro fertilization”) v. Costa Rica. Preliminary objections, merits, reparations and costs. Judgmentof November 28, 2012. Series C No. 257, para. 245; Advisory Opinion OC-22/16, supra, para. 49, and Case of theHacienda Brasil Verde Workers v. Brazil. Preliminary objections, merits, reparations and costs. Judgment of
October 20, 2016. Series C No. 318, para. 245.
54

55

Cf. Advisory Opinion OC-16/99, supra, para. 114, and Advisory Opinion OC-22/16, supra, para. 49.

- 20 44.
Furthermore, it is necessary to consider that the purpose of this advisory opinion is
to interpret the effect of the obligations derived from environmental law on the obligations
to respect and to ensure the human rights established in the American Convention. An
extensive corpus iuris of environmental law exists. According to the systematicinterpretation established in the Vienna Convention on the Law of Treaties, “the provisions
must be interpreted as part of a whole, the significance and scope of which must be
established based on the legal system to which it belongs.” 56 The Court finds that, inapplication of these rules, it must take international law on environmental protection into
consideration when defining the meaning and scope of the obligations assumed by theStates under the American Convention, in particular, when specifying the measures that theStates must take.57 In this Advisory Opinion, the Court wishes to underline that, although it
is not for the Court to issue a direct interpretation of the different instruments onenvironmental law, it is evident that the principles, rights and obligations contained thereinmake a decisive contribution to establishing the scope of the American Convention. Owing
to the matter submitted to its consideration, the Court will take into account, as additionalsources of international law, other relevant conventions in order to make a harmonious
interpretation of the international obligations in the terms of the provision cited. Also, theCourt will consider the applicable obligations and the relevant jurisprudence and decisions,as well as the resolutions, rulings and declarations on the issue that have been adopted at
the international level.
45.
In short, when responding to the present request, the Court acts as a human rights
court, guided by the norms that regulate its advisory jurisdiction, and proceeds to make astrictly legal analysis of the questions raised, pursuant to international human rights law,
taking into account the relevant sources of international law.58 In this regard, it should beclarified that the corpus juris of international human rights law consists of a series of rules
expressly established in international treaties, or to be found in international customary law
as evidence of a practice generally accepted as law, as well as of the general principles oflaw and a series of norms of a general nature or soft law, which provide guidance on theinterpretation of the former, because they give greater precision to the basic content
established in the treaties.59 The Court will also base its opinion on its own jurisprudence.
VI
ENVIRONMENTAL PROTECTION AND THE HUMAN RIGHTS RECOGNIZED IN
THE AMERICAN CONVENTION
46.
This Opinion constitutes one of the first opportunities that the Court has had to referextensively to the State obligations arising from the need to protect the environment underthe American Convention (supra para. 23). Even though the object of the request made by
Colombia, as previously defined (supra paras. 32 to 38), refers specifically to the Stateobligations derived from the rights to life and to personal integrity, the Court finds it
56

56.

Case of González et al. (“Cotton Field”) v. Mexico, para. 43, and Advisory Opinion OC-22/16, supra, para.

In this regard, in the Kaliña and Lokono Peoples case, the Court had already referred to the Rio Declaration
and Convention on Biological Diversity when ruling on the compatibility of the rights of indigenous peoples with theprotection of the environment. Cf. Case of the Kaliña and Lokono Peoples v. Suriname. Merits, reparations andcosts. Judgment of November 25, 2015. Series C No. 309, paras. 177 to 179.
57

Cf. International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention(Arts. 1 and 2 American Convention on Human Rights). Advisory Opinion OC-14/94 of December 9, 1994. Series A
No. 14, para. 60, and Advisory Opinion OC-22/16, para. 29.
58

59

Cf. Advisory Opinion OC-14/94, supra, para. 60, and Advisory Opinion OC-22/16, supra, para. 29.

- 21 pertinent to include some initial and introductory considerations on: (A) the interrelationshipbetween human rights and the environment, and (b) the human rights affected byenvironmental degradation, including the right to a healthy environment. The purpose of theconsiderations in this chapter is to provide a context and a general background to theanswers to the specific questions posed by Colombia that follow.
A. The interrelationship between human rights and the environment
47.
This Court has recognized the existence of an undeniable relationship between theprotection of the environment and the realization of other human rights, in thatenvironmental degradation and the adverse effects of climate change affect the realenjoyment of human rights.60 In addition, the preamble to the Additional Protocol to theAmerican Convention on Human Rights in the Area of Economic, Social and Cultural Rights(hereinafter “Protocol of San Salvador”), emphasizes the close relationship between theexercise of economic, social and cultural rights – which include the right to a healthy
environment – and of civil and political rights, and indicates that the different categories ofrights constitute an indivisible whole based on the recognition of the dignity of the humanbeing. They therefore require permanent promotion and protection in order to ensure theirfull applicability; moreover, the violation of some rights in order to ensure the exercise ofothers can never be justified.61
48.
Specifically, in cases concerning the territorial rights of indigenous and tribal peoples,
the Court has referred to the relationship between a healthy environment and the protectionof human rights, considering that these peoples’ right to collective ownership is linked to theprotection of, and access to, the resources to be found in their territories, because thosenatural resources are necessary for the very survival, development and continuity of their
way of life.62 The Court has also recognized the close links that exist between the right to adignified life and the protection of ancestral territory and natural resources. In this regard,
the Court has determined that, because indigenous and tribal peoples are in a situation of
special vulnerability, States must take positive measures to ensure that the members ofthese peoples have access to a dignified life – which includes the protection of their close
relationship with the land – and to their life project, in both its individual and collective
dimension.63 The Court has also emphasized that the lack of access to the corresponding
territories and natural resources may expose indigenous communities to precarious andsubhuman living conditions and increased vulnerability to disease and epidemics, andsubject them to situations of extreme neglect that may result in various violations of their
human rights in addition to causing them suffering and undermining the preservation of

Cf. Case of Kawas Fernández v. Honduras. Merits, reparations and costs. Judgment of April 3, 2009. Series C
No. 196. para. 148.
60

Cf. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social andCultural Rights (“Protocol of San Salvador”), entered into force November 16, 1999, Preamble. The following OAS
Member States have ratified the Protocol of San Salvador to date: (1) Argentina, (2) Bolivia, (3) Brazil, (4)Colombia, (5) Costa Rica, (6) Ecuador, (7) El Salvador, (8) Guatemala, (9) Honduras, (10) Mexico, (11)
Nicaragua, (12) Panama, (13) Paraguay, (14) Peru, (15) Suriname and (16) Uruguay.
61

See, inter alia, Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, reparations and costs.
Judgment of June 17, 2005. Series C No. 125, para. 137; Case of the Sawhoyamaxa Indigenous Community v.
Paraguay. Merits, reparations and costs. Judgment of March 29, 2006. Series C No. 146, para. 118; Case of theSaramaka People v. Suriname. Preliminary objections, merits, reparations and costs. Judgment of November 28,
2007. Series C No. 172, paras. 121 and 122, and Case of the Kaliña and Lokono Peoples v. Suriname, supra, para.
173.
62

Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, supra, para. 163, and Case of the Kaliña and
Lokono Peoples v. Suriname, supra, para. 181.
63

- 22 their way of life, customs and language.64
49.
Meanwhile, the Inter-American Commission has stressed that “several fundamental
rights require, as a necessary precondition for their enjoyment, a minimum environmental
quality, and are profoundly affected by the degradation of natural resources.” 65 Likewise,
the OAS General Assembly has recognized the close relationship between the protection of
the environment and human rights (supra para. 22) and emphasized that “the adverse
effects of climate change have a negative impact on the enjoyment of human rights.” 66
50.
In the European sphere, the European Court of Human Rights has recognized thatsevere environmental degradation may affect the well-being of the individual and,
consequently, give rise to violations of human rights, such as the rights to life, 67 to respect
for private and family life,68 and to property.69 Similarly, the African Commission on Humanand Peoples’ Rights has indicated that the right to “satisfactory living conditions anddevelopment” is “closely linked to economic and social rights insofar as the environment
affects the quality of life and the safety of the individual.”70
51.
Furthermore, the United Nations Independent Expert on human rights obligations
relating to the enjoyment of a safe, clean, healthy and sustainable environment (nowSpecial Rapporteur71) has stated that “[h]uman rights and environmental protection are
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, supra, para. 164; Case of the Kichwa
Indigenous People of Sarayaku v. Ecuador. Merits, reparations and costs. Judgment of June 27, 2012. Series C No.
245, para. 147 and Case of the Afrodescendant Communities displaced from the Rio Cacarica Basin (Operation
Genesis) v. Colombia. Preliminary objections, merits, reparations and costs. Judgment of November 20, 2013.
Series C No. 270, para. 354.
64

Cf. IACHR, Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources – Norms
and jurisprudence of the inter-American human rights system, December 30, 2009, OEA/Ser.L/V/II. Doc. 56/09,
para. 190.
65

Cf. OAS General Assembly, Resolution entitled “Human Rights and Climate Change in the Americas,”
adopted at the fourth plenary session held on June 3, 2008, AG/RES. 2429 (XXXVIIIO/08).
66

See, inter alia, ECHR, Case of Öneryildiz v. Turkey [GS], No. 48939/99. Judgment of November 30, 2004,
paras. 71, 89, 90 and 118; ECHR, Case of Budayeva and Others v. Russia, No. 15339/02, 21166/02, 20058/02,
11673/02 and 15343/02. Judgment of March 20, 2008, paras. 128 to 130, 133 and 159, and ECHR, Case of M.
Özel and Others v. Turkey, No. 14350/05, 15245/05 and 16051/05. Judgment of November 17, 2015, paras. 170,
171 and 200.
67

See, inter alia, ECHR, Case of López Ostra v. Spain, No. 16798/90. Judgment of December 6, 1994, paras.
51, 55 and 58; ECHR, Case of Guerra and Others v. Italy [GS], No. 14967/89. Judgment of February 19, 1998,
paras. 57, 58 and 60; ECHR, Case of Hatton and Others v. The United Kingdom [GS], No. 36022/97. Judgment ofJuly 8, 2003, paras. 96, 98, 104, 118 and 129; ECHR, Case of Taşkin and Others v. Turkey, No. 46117/99.
Judgment of November 10, 2004, paras. 113, 116, 117, 119 and 126; ECHR, Case of Fadeyeva v. Russia, No.
55723/00. Judgment of June 9, 2005, paras. 68 to 70. 89, 92 and 134; ECHR, Case of Roche v. The United
Kingdom [GS], No. 32555/96. Judgment of October 19, 2005, paras. 159, 160 and 169; ECHR, Case of Giacomelliv. Italy, No. 59909/00. Judgment of November 2, 2006, paras. 76 to 82, 97 and 98; ECHR, Case of Tătar v.
Romania, No. 67021/01. Judgment of January 27, 2009, paras. 85 to 88, 97, 107, 113 and 125, and ECHR, Case of
Di Sarno and Others v. Italy, No. 30765/08. Judgment of January 10, 2012, paras. 104 to 110 and 113.
68

See, inter alia, ECHR, Case of Papastavrou and Others v. Greece, No. 46372/99. Judgment of April 10, 2003,
paras. 33 and 36 to 39; ECHR, Case of Öneryildiz v. Turkey [GS], No. 48939/99. Judgment of November 30, 2004,
paras. 124 to 129, 134 to 136 and 138, and ECHR, Case of Turgut and Others v. Turkey, No. 1411/03. Judgmentof July 8, 2008, paras. 86 and 90 to 93.
69

Cf. African Commission on Human and Peoples’ Rights, Social and Economic Rights Center (SERAC) andCenter for Economic and Social Rights (CESR) v. Nigeria. Communication 155/96. Decision of October 27, 2001,
para. 51.
70

In March 2012, the Human Rights Council appointed an independent expert on the issue of human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment to a three-year term.
His mandate was extended in 2015 for another three years as a Special Rapporteur on human rights obligations
relating to the enjoyment of a safe, clean, healthy and sustainable environment. Cf. Human Rights Council,
71

- 23 inherently interdependent,” because:
Human rights are grounded in respect for fundamental human attributes such as dignity,
equality and liberty. The realization of these attributes depends on an environment thatallows them to flourish. At the same time, effective environmental protection often
depends on the exercise of human rights that are vital to informed, transparent andresponsive policymaking.72

52.
In addition, there is extensive recognition of the interdependent relationship between
protection of the environment, sustainable development, and human rights in internationallaw. This interrelationship has been asserted since the Stockholm Declaration on the Human
Environment (hereinafter “Stockholm Declaration”) which established that “[e]conomic andsocial development is essential for ensuring a favourable living and working environment for
man and for creating conditions on earth that are necessary for the improvement of thequality of life,”73 and asserting the need to balance development with protection of thehuman environment.74 Subsequently, in the Rio Declaration on Environment andDevelopment (hereinafter “the Rio Declaration”), the States recognized that “[h]uman
beings are at the centre of concerns for sustainable development, “and also underlined that“[i]n order to achieve sustainable development, environmental protection shall constitute an
integral part of the development process.” 75 Following this, the Johannesburg Declaration on
Sustainable Development established three pillars of sustainable development: economic
development, social development and environmental protection. 76 Also, in the corresponding
Plan of Implementation of the World Summit on Sustainable Development, the States“acknowledge[d] the consideration being given to the possible relationship between
environment and human rights, including the right to development.” 77
53.
In addition, when adopting the Agenda 2030 for Sustainable Development, theGeneral Assembly of the United Nations recognized that the scope of the human rights ofeveryone depends on achieving the three dimensions of sustainable development: theeconomic, the social and the environmental.78 Similarly, several inter-American instruments
have referred to the protection of the environment and sustainable development, including
Resolution 19/10 entitled “Human rights and the environment,” adopted on March 22, 2012. UN Doc.
A/HRC/RES/19/10, and Human Rights Council, Resolution 28/11 entitled “Human rights and the environment,”
adopted on March 26, 2015. UN Doc. A/HRC/RES/28/11.
Human Rights Council, Preliminary report of the Independent Expert on the issue of human rights obligations
relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, December 24,
2012, UN Doc. A/HRC/22/43, para. 10. Similarly, some instruments that regulate the protection of theenvironment refer to human rights law. See: the Rio Declaration on Environment and Development. United Nations
Conference on Environment and Development, Río de Janeiro, June 3 to 14, 1992, UN Doc. A/CONF.151/26/Rev.1(Vol. 1), and Stockholm Declaration on the Human Environment, United Nations Conference on the Human
Environment, Stockholm, June 5 to 16, 1972, UN Doc. A/CONF.48/14/Rev.1.
72

Stockholm Declaration on the Human Environment, United Nations Conference on the Human Environment,
Stockholm, June 5 to 16, 1972, UN Doc. A/CONF.48/14/Rev.1, Principle 8.
73

Cf. Stockholm Declaration on the Human Environment, United Nations Conference on the Human
Environment, Stockholm, June 5 to 16, 1972, UN Doc. A/CONF.48/14/Rev.1, Principle 13.
74

Rio Declaration on Environment and Development. United Nations Conference on Environment andDevelopment, Río de Janeiro, June 3 to 14, 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Principles 1 and 4.
75

Cf. Johannesburg Declaration on Sustainable Development adopted at the United Nations World Summit on
Sustainable Development, Johannesburg, September 4, 2002, UN Doc. A/CONF. 199/20, para. 5.
76

Cf. Plan of Implementation of the World Summit on Sustainable Development, adopted at the World Summit
on Sustainable Development, Johannesburg, September 4, 2002, UN Doc. A/CONF.199/20, para. 5.
77

Cf. United Nations General Assembly, Resolution 70/1 entitled “Transforming our world: the 2030 Agenda for
Sustainable Development,” September 25, 2015, UN Doc. A/RES/70/1, preamble and paras. 3, 8, 9, 10, 33, 35
and 67.
78

- 24 the Inter-American Democratic Charter which stipulates that “[t]he exercise of democracy
promotes the preservation and good stewardship of the environment. It is essential that theStates of the hemisphere implement policies and strategies to protect the environment,
including application of various treaties and conventions, to achieve sustainable
development for the benefit of future generations.” 79
54.
Numerous points of interconnection arise from this relationship of interdependence
and indivisibility between human rights, the environment, and sustainable development
owing to which, as indicated by the Independent Expert, “all human rights are vulnerable toenvironmental degradation, in that the full enjoyment of all human rights depends on a
supportive environment.”80 In this regard, the Human Rights Council has identified
environmental threats that may affect, directly or indirectly, the effective enjoyment ofspecific human rights, affirming that: (i) illicit traffic in, and improper management anddisposal of, hazardous substances and wastes constitute a serious threat to a range ofrights, including the rights to life and health;81 (ii) climate change has a wide range of
implications for the effective enjoyment of human rights, including the rights to life, health,food, water, housing and self-determination,82 and (iii) “environmental degradation,desertification and global climate change are exacerbating destitution and desperation,
causing a negative impact on the realization of the right to food, in particular in developing
countries.”83
55.
Owing to the close connection between environmental protection, sustainable
development and human rights (supra paras. 47 to 55), currently (i) numerous humanInter-American Democratic Charter, adopted at the first plenary session of the OAS General Assembly on
September 11, 2001, during the twenty-eighth period of sessions, Art. 15.
79

Human Rights Council, Preliminary report of the Independent Expert on the issue of human rights obligations
relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, December 24,
2012, UN Doc. A/HRC/22/43, para. 19. Similarly, the International Court of Justice has emphasized that “theenvironment is not an abstraction but represents the living space, the quality of life and the very health of humanbeings, including generations unborn.” Cf. ICJ, Legality of the threat or use of nuclear weapons. Advisory Opinionof July 8, 1996, para. 29, and ICJ, Case concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia).
Judgment of September 25, 1997, para. 112.
80

Cf. Commission on Human Rights, Resolution 2005/15, entitled “Adverse effects of the illicit movement anddumping of toxic and dangerous products and wastes on the enjoyment of human rights,” adopted on April 14,
2005, UN Doc. E/CN.4/RES/2005/15; Human Rights Council, Resolution 9/1 “Mandate of the Special Rapporteur on
the adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on theenjoyment of human rights,” September 24, 2008, UN Doc. A/HRC/RES/9/1; Human Rights Council, Resolution
18/11 “Mandate of the Special Rapporteur on the human rights obligations related to environmentally soundmanagement and disposal of hazardous substances and wastes,” adopted on September 27, 2011, A/HRC/18/L.6.
See also, the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights on
June 25, 1993, para. 11.
81

Cf. Human Rights Council, Resolution 35, entitled “Human rights and climate change,” adopted on June 19,
2017, UN Doc. A/HRC/35/L.32; Human Rights Council, Report of the Special Rapporteur on the issue of humanrights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, February 1,
2016, UN Doc. A/HRC/31/52, paras. 9 and 23; Human Rights Council, Report of the Office of the United Nations
High Commissioner for Human Rights on the relationship between climate change and human rights, January 15,
2009, UN Doc. A/HRC/10/61, paras. 18 and 24, and Human Rights Council, Analytical study of the relationshipbetween human rights and the environment, Report of the United Nations High Commissioner for Human Rights
Report of the United Nations High Commissioner for Human Rights, December 16, 2001, UN Doc. A/HRC/19/34,
para. 7.
82

Cf. Human Rights Council, Resolution 7/14, “The right to food”, adopted on March 27, 2008, A/HRC/7/L.6;
Human Rights Council, Resolution 10/12, entitled “The right to food”, adopted on March 26, 2009,
A/HRC/RES/10/12, and Human Rights Council, Resolution 13/4, entitled “The right to food”, adopted on March 24,
2010, A/HRC/RES/13/4. Human Rights Council, Analytical study of the relationship between human rights and theenvironment, Report of the United Nations High Commissioner for Human Rights, adopted on December 16, 2001,
UN Doc. A/HRC/19/34, para. 49.
83

- 25 rights protection systems recognize the right to a healthy environment as a right in itself,
particularly the Inter-American human rights system, while it is evident that (ii) numerous
other human rights are vulnerable to environmental degradation, all of which results in aseries of environmental obligations for States to comply with their duty to respect and toensure those rights. Specifically, another consequence of the interdependence andindivisibility of human rights and environmental protection is that, when determining theseState obligations, the Court may avail itself of the principles, rights and obligations ofinternational environmental law, which, as part of the international corpus iuris make adecisive contribution to establishing the scope of the obligations under the American
Convention in this regard (supra paras. 43 to 45).
B. Human rights affected by environmental degradation, including theright to a healthy environment
56.
Under the inter-American human rights system, the right to a healthy environment isestablished expressly in Article 11 of the Protocol of San Salvador:
1. Everyone shall have the right to live in a healthy environment and to have access tobasic public services.
2. The States Parties shall promote the protection, preservation, and improvement of
the environment.

57.
It should also be considered that this right is included among the economic, socialand cultural rights protected by Article 2684 of the American Convention, because this norm
protects the rights derived from the economic, social, educational, scientific and culturalprovisions of the OAS Charter,85 the American Declaration of the Rights and Duties of Man(to the extent that the latter “contains and defines the essential human rights referred to in
the Charter”) and those resulting from an interpretation of the Convention that accords withthe criteria established in its Article 29 86 (supra para. 42). The Court reiterates theinterdependence and indivisibility of the civil and political rights, and the economic, socialand cultural rights, because they should be understood integrally and comprehensively as
human rights, with no order of precedence, that are enforceable in all cases before thecompetent authorities. 87
This article establishes that: “The States Parties undertake to adopt measures, both internally and throughinternational cooperation, especially those of an economic and technical nature, with a view to achieving progressively,by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational,
scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by theProtocol of Buenos Aires.”84

In this regard, Articles 30, 31, 33 and 34 of the Charter establish an obligation for the States to achieve the“integral development” of their peoples. “Integral development” has been defined by the OAS Executive Secretariat
for Integral Development (SEDI) as “the general name given to a series of policies that work together to promotesustainable development.” As mentioned previously, one of the dimensions of sustainable development is theenvironmental sphere (supra paras. 52 and 53). Cf. Charter of the Organization of American States entered into
force on December 13, 1951, Arts. 30, 31, 33 and 34.
85

In the Case of Lagos del Campo v. Peru, the Court established that, as in the case of the other rights
established in the American Convention, Article 26 is subject to the general obligations contained in Articles 1(1)and 2 of Chapter I (General Obligations) of the Convention, as are Articles 3 to 25 included in Chapter II (Civil andPolitical Rights), and protects the rights derived from the OAS Charter, the American Declaration of the Rights andDuties of Man and those resulting from “other international instruments of the same nature,” based on Article
29(d) of the Convention. Cf. Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations andcosts. Judgment of August 31, 2017. Series C No. 340, paras. 142 to 144. See also, Case of Acevedo Buendía et al.
(“Discharged and Retired Employees of the Office of the Comptroller”) v. Peru. Preliminary objection, merits,
reparations and costs. Judgment of July 1, 2009. Series C No. 198, para. 100.
86

87

Cf. Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the Comptroller”) v.

- 26 -

58.
The Court underscores that the right to a healthy environment is recognized
explicitly in the domestic laws of several States of the region, 88 as well as in someprovisions of the international corpus iuris, in addition to the aforementioned Protocol of San
Salvador (supra para. 56), such as the American Declaration on the Rights of Indigenous
Peoples;89 the African Charter on Human and Peoples’ Rights;90 the ASEAN Human Rights
Declaration,91 and the Arab Charter on Human Rights.92
59.
The human right to a healthy environment has been understood as a right that has
both individual and also collective connotations. In its collective dimension, the right to ahealthy environment constitutes a universal value that is owed to both present and future
generations. That said, the right to a healthy environment also has an individual dimension
insofar as its violation may have a direct and an indirect impact on the individual owing to
its connectivity to other rights, such as the rights to health, personal integrity, and life.
Environmental degradation may cause irreparable harm to human beings; thus, a healthy
environment is a fundamental right for the existence of humankind.

Peru, supra, para. 101, and Case of Lagos del Campo v. Peru, supra, para. 141.
The Constitutions of the following States establish the right to a healthy environment: (1) Constitution of theArgentine Nation, art. 41; (2) Constitution of the State of Bolivia, art. 33; (3) Constitution of the Federative
Republic of Brazil, art. 225; (4) Constitution of the Republic of Chile, art. 19; (5) Constitution of Colombia, art. 79;(6) Constitution of Costa Rica, art. 50; (7) Constitution of the Republic of Ecuador, art. 14; (8) Constitution of
the Republic of El Salvador, art. 117; (9) Constitution of the Republic of Guatemala, art. 97; (10) Constitution of
the United Mexican States, art. 4; (11) Constitution of Nicaragua, art. 60; (12) Constitution of the Republic ofPanama, arts. 118 and 119; (13) Constitution of the Republic of Paraguay, art. 7; (14) Constitution of Peru, art. 2;(15) Constitution of the Dominican Republic, arts. 66 and 67, and (16) Constitution of the Bolivarian Republic ofVenezuela, art. 127.
88

Article 19 of this Declaration provides for the protection of a healthy environment establishing thatindigenous peoples “have the right to live in harmony with nature and to a healthy, safe, and sustainable
environment, essential conditions for the full enjoyment of the right to life, to their spirituality, worldview and tocollective well-being.” American Declaration on the Rights of Indigenous Peoples, adopted at the third plenary
session of the OAS General Assembly held on June 15, 2016, AG/RES. 2888 (XLVI-O/16). Also, the preamble to theSocial Charter of the Americas “recognize[s] that a safe environment is essential to integral development.” Also,
the relevant part of its article 18 establishes that: “[…] Member states affirm their commitment to promote healthy
lifestyles and to strengthen their capacity to prevent, detect, and respond to chronic non-communicable diseases,
current and emerging infectious diseases, and environmental health concerns.” Article 22 establishes that: “Naturaland man-made disasters affect populations, economies, and the environment. Reducing the vulnerabilities ofcountries to these disasters, with particular attention to the most vulnerable regions and communities, including
the poorest segments of society, is essential to ensuring nations’ progress and the pursuit of a better quality of life.
Member states commit to improving regional cooperation and to strengthening their national, technical, andinstitutional capacity for disaster prevention, preparedness and response, rehabilitation, resilience, risk reduction,
impact mitigation, and evaluation. Member states also commit to face the impact of climate variability, including
the El Niño and La Niña phenomena, and the adverse effects of climate change that represent a risk increase in all
countries of the Hemisphere, particularly for developing countries.” Social Charter of the Americas, adopted by the
OAS General Assembly on June 4, 2012, OAS Doc. AG/doc.5242/12 rev. 2, preamble and arts. 17 and 22.
8990

Article 24 of the Charter establishes that “[a]ll peoples shall have the right to a general satisfactory
environment favourable to their development.” African Charter on Human and Peoples’ Rights, entered into force
on October 21, 1986, OAU Doc. O/LEG/67/3 rev.
Article 28(f) of this Declaration establishes that: “Every person has the right to an adequate standard ofliving for himself or herself and his or her family including: [...] f. The right to a safe, clean and sustainable
environment.” Cf. ASEAN Human Rights Declaration, adopted on November 18, 2012.
91

Article 38 of this Charter stipulates that: “Every person has the right to an adequate standard of living for
himself and his family, which ensures their well-being and a decent life, including food, clothing, housing, services
and the right to a healthy environment. The States parties shall take the necessary measures commensurate with
their resources to guarantee these rights.” Cf. Arab Charter of Human Rights, League of Arab States, entered into
force on March 15, 2008.
92

- 27 60.
The Working Group on the Protocol of San Salvador 93 indicated that the right to ahealthy environment, as established in this instrument, involved the following five Stateobligations: (a) guaranteeing everyone, without any discrimination, a healthy environment
in which to live; (b) guaranteeing everyone, without any discrimination, basic public
services; (c) promoting environmental protection; (d) promoting environmental
conservation, and (e) promoting improvement of the environment. 94 It also established thatthe exercise of the right to a healthy environment must be governed by the criteria ofavailability, accessibility, sustainability, acceptability and adaptability, 95 as in the case ofother economic, social and cultural rights. 96 In order to examine the State reports under theProtocol of San Salvador, in 2014, the OAS General Assembly adopted specific progress
indicators to evaluate the status of the environment based on: (a) atmospheric conditions;(b) quality and sufficiency of water sources; (c) air quality; (d) soil quality; (e) biodiversity;(f) production of pollutant waste and its management; (g) energy resources, and (h) statusof forestry resources.97
61.
In this regard, the African Commission on Human and Peoples’ Rights underscoredthat the right to a healthy environment imposed on States the obligation to take reasonablemeasures to prevent pollution and ecological degradation, to promote conservation, and tosecure an ecologically sustainable development and use of natural resources, as well as tomonitor projects that could affect the environment. 98
The Working Group to examine the periodic reports of the States Parties established in the Protocol of San
Salvador (hereinafter “the Working Group” or “the “GTPSS”) was installed in May 2010 to examine the reports
presented by the States Parties and to forward its recommendations and comments on the situation in the States
as regards compliance with the provisions of the Protocol of San Salvador. On June 8, 2010, the OAS General
Assembly, in Resolution AG/RES. 2582 (XL-O/10) entrusted the Working Group with preparing progress indicatorson the rights included in the Protocol of San Salvador; (previously, the Inter-American Commission, also at therequest of the OAS General Assembly, had prepared a first document on “Guidelines for Preparation of Progress
Indicators in the Area of Economic, Social and Cultural Rights,” CP/doc.4250 corr. 1). To this end, the Working
Group divided the rights established in the Protocol of San Salvador into two groups, and the right to a healthy
environment was included in the second group. The progress indicators for this second group were finalized in
November 2013 and adopted by the OAS General Assembly in June 2014. Cf. OAS General Assembly, Resolution
AG/RES. 2823 (XLIV-O/14) “Adoption of the monitoring mechanism for implementation of the Protocol of San
Salvador,” adopted on June 4, 2014, and GTPSS, “Progress Indicators: Second Group of Rights,” November 5,
2013, OEA/Ser.L/XXV.2.1, GT/PSS/doc.9/13
93

Cf. GTPSS, “Progress Indicators: Second Group of Rights,” November 5, 2013, OEA/Ser.L/XXV.2.1,
GT/PSS/doc.9/13, para. 26.
94

Regarding this specific characteristic, the Working Group emphasized that, the right to a healthy
environment refers to the quality of the environment, “because the qualifier ‘healthy’ requires that the constituent
elements of the environment (such as water, air or soil) have technical conditions of quality that make them
acceptable, in line with international standards. This means that the quality of the elements of the environment
must not become an obstacle to persons to live their lives in their vital spaces.” GTPSS, “Progress Indicators:
Second Group of Rights,” November 5, 2013, OEA/Ser.L/XXV.2.1, GT/PSS/doc.9/13, para. 33.
95

Cf. GTPSS, “Progress Indicators: Second Group of Rights,” November 5, 2013, OEA/Ser.L/XXV.2.1,
GT/PSS/doc.9/13, para. 29. See, similarly, but in relation to other rights, Case of Gonzales Lluy et al. v. Ecuador.
Preliminary objections, merits, reparations and costs. Judgment of September 1, 2015. Series C No. 298, para.
235, and Case of I.V. v. Bolivia. Preliminary objections, merits, reparations and costs. Judgment of November 30,
2016. Series C No. 329, para. 164.
96

Cf. GTPSS, “Progress Indicators: Second Group of Rights,” November 5, 2013, OEA/Ser.L/XXV.2.1,
GT/PSS/doc.9/13, para. 38. In its resolution approving this document, the OAS General Assembly indicated thatthese progress indicators “were standards and criteria for the States Parties, which will be able to adapt them totheir available sources of information to comply with the provisions of the Protocol [of San Salvador].” OAS General
Assembly, Resolution AG/RES. 2823 (XLIV-O/14) “Monitoring Mechanism for implementation of the Protocol of San
Salvador,” adopted on June 4, 2014.
97

Cf. African Commission on Human and Peoples’ Rights, Case of the Social and Economic Rights Center(SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria. Communication 155/96. Decision of October27, 2001, paras. 52 and 53.
98

- 28 62.
The Court considers it important to stress that, as an autonomous right, the right toa healthy environment, unlike other rights, protects the components of the environment,such as forests, rivers and seas, as legal interests in themselves, even in the absence of thecertainty or evidence of a risk to individuals. This means that it protects nature and theenvironment, not only because of the benefits they provide to humanity or the effects that
their degradation may have on other human rights, such as health, life or personal integrity,
but because of their importance to the other living organisms with which we share theplanet that also merit protection in their own right.99 In this regard, the Court notes atendency, not only in court judgments,100 but also in Constitutions101, to recognize legal
personality and, consequently, rights to nature.
63.
Thus, the right to a healthy environment as an autonomous right differs from theenvironmental content that arises from the protection of other rights, such as the right tolife or the right to personal integrity.
64.
That said and as previously mentioned, in addition to the right to a healthy
environment, damage to the environment may affect all human rights, in the sense that thefull enjoyment of all human rights depends on a suitable environment. Nevertheless, somehuman rights are more susceptible than others to certain types of environmental damage102(supra paras. 47 to 55). The rights especially linked to the environment have been classified
into two groups: (i) rights whose enjoyment is particularly vulnerable to environmental
degradation, also identified as substantive rights (for example, the rights to life, personal
integrity, health or property), and (ii) rights whose exercise supports better environmental
policymaking, also identified as procedural rights (such as the rights to freedom of
expression and association, to information, to participation in decision-making, and to aneffective remedy).103
In this regard, see, inter alia, International Union for Conservation of Nature (IUCN), the World Declarationon the Environmental Rule of Law of the International Union for Conservation of Nature adopted at the IUCN World
Environmental Law Congress, held in Rio de Janeiro from April 26 to 29, 2016, Principles 1 and 2.
99

See, for example, Constitutional Court of Colombia, Judgment T-622-16 of November 10, 2016, paras. 9.27
to 9.31; Constitutional Court of Ecuador, Judgment No. 218-15-SEP-CC of July 9, 2015, pp. 9 and 10, and High
Court of Uttarakhand At Naintal of India, Decision of March 30, 2017. Petition (PIL) No. 140 of 2015, pp. 61 to 63.
100

The preamble to the Constitution of the State of Bolivia stipulates that: “In ancient times, mountains arose,rivers were displaced, and lakes were formed. Our Amazon, our Chaco, our highlands and our lowlands and valleys
were covered in greenery and flowers. We populated the sacred earth with a variety of faces, and since then we
have understood the plurality that exist in all things and our diversity as human beings and cultures.” Article 33 of
the Constitution establishes that: “People have a right to a healthy, protected and balanced environment. The
exercise of this right should allow individuals and collectivities of present and future generations, and also otherliving beings, to develop normally and permanently.” In addition, article 71 of the Constitution of the Republic ofEcuador establishes that: “Nature or Pacha Mama, in which life is reproduced and realized, has the right tocomprehensive respect for its existence, and the continuity and regeneration of its vital cycles, structure, functions
and evolutionary processes. Every person, community, people or nationality may require public authorities torespect the rights of nature. The relevant principles established in the Constitution shall be observed to apply andinterpret these rights. The State shall encourage natural and legal persons, and collectivities, to protect nature andshall promote respect for all the elements that form an ecosystem.”
101

Cf. Human Rights Council, Preliminary report of the Independent Expert on the issue of human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox,
December 24, 2012, UN Doc. A/HRC/22/43, para. 19, and Human Rights Council, Mapping report of the
Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy andsustainable environment, John H. Knox, of December 30, 2013, UN Doc. A/HRC/25/53, para. 17.
102

Cf. Human Rights Council, Preliminary report of the Independent Expert on the issue of human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox,
December 24, 2012, UN Doc. A/HRC/22/43, para. 17. Regarding the substantive rights, this Court has referred toboth the right to life, in particular with regard to the definition of a decent life, and also to the rights to personal
integrity, property, and health. See, inter alia, Case of the Yakye Axa Indigenous Community v. Paraguay, supra,
para. 163; Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, supra, paras. 145, 232 and 249; Case of103

- 29 -

65.
Several human rights bodies have examined issues relating to the environment withregard to various particularly vulnerable rights. For example, the European Court of Human
Rights has introduced environmental protection through the guarantee of other rights, 104such as the rights to life, to respect for private and family life, and to property (supra para.
50). Thus, for example, the European Court has indicated that States have the obligation toevaluate the risks associated with activities that involve danger to the environment, such as
mining, and to take adequate measures to protect the right to respect for private and family
life, and to allow the enjoyment of a healthy and protected environment. 105
66.
The Court considers that the rights that are particularly vulnerable to environmental
impact include the rights to life,106 personal integrity,107 private life,108 health,109 water,110
food,111 housing,112 participation in cultural life,113 property,114 and the right to not be
the Kuna Indigenous People of Madungandí and Emberá Indigenous People of Bayano and their members v.
Panama. Preliminary objections, merits, reparations and costs. Judgment of October 14, 2014. Series C No. 284,
para. 111, and Case of the Kaliña and Lokono Peoples v. Suriname, supra, para. 172. The Court has also ruled onprocedural rights in relation to the environmental impact of a forestry industrialization project, referring both toaccess to information and to public participation. Cf. Case of Claude Reyes et al. v. Chile. Merits, reparations andcosts. Judgment of September 19, 2006. Series C No. 151, para. 86.
The European human rights system does not establish the right to a healthy environment as an autonomousright in the European Convention on Human Rights and its Protocols. Under the European Union system, article 37of the Charter of Fundamental Rights of the European Union establishes that “[a] high level of environmental
protection and the improvement of the quality of the environment must be integrated into the policies of the Unionand ensured in accordance with the principle of sustainable development.” Charter of Fundamental Rights of theEuropean Union proclaimed on December 7, 2000, amended by the Treaty of Lisbon of December 1, 2009, 2012/C
326/02
104

Cf. ECHR, Case of Tătar v. Romania, No. 67021/01. Judgment of January 27, 2009, para. 107. Also,
regarding the economic well-being of a State, it has underlined that it is necessary “to strike a fair balance between
the interest of the State or a town’s economic well-being and the effective enjoyment by individuals of their right torespect for their home and their private and family life.” Cf. ECHR, Case of Hatton and Others v. The United
Kingdom [GS], No. 36022/97. Judgment of July 8, 2003, paras. 121 to 123, 126 and 129, and ECHR, Case of
López Ostra v. Spain, No. 16798/90. Judgment of December 9, 1994, para. 58.
105

106

90.

Cf. ECHR, Case of Öneryldiz v. Turkey [GS], No. 48939/99. Judgment of November 30, 2004, paras. 89 andSee, for example, African Commission on Human and Peoples’ Rights, Resolution 153 on climate change andhuman rights and the need to study its impact in Africa. November 25, 2009.
107

See, for example, ECHR, Case of Moreno Gomez v. Spain, No. 4143/02. Judgment of November 16, 2004,
paras. 53 to 55; ECHR, Case of Borysiewicz v. Poland, No. 71146/01. Judgment of July 1, 2008, para. 48; ECHR,
Case of Giacomelli v. Italy, No. 59909/00. Judgment of November 2, 2006, para. 76; ECHR, Case of Hatton andOthers v. The United Kingdom [GS], No. 360022/97. Judgment of July 8. 2003, para. 96; ECHR, Case of Lopez
Ostra v. Spain, No. 16798/90. Judgment of December 9, 1994, para. 51, and ECHR, Case of Taşkin and Others v.
Turkey, No. 46117/99. Judgment of November 10, 2004, para. 113.
108

On this point, the Committee on Economic, Social and Cultural Rights has indicated that the obligation torespect the right to health means that “States should […] refrain from unlawfully polluting air, water and soil, e.g.
through industrial waste from State-owned facilities, from using or testing nuclear, biological or chemical weapons
if such testing results in the release of substances harmful to human health.” Committee on Economic, Social andCultural Rights (hereinafter “ESCR Committee”), General Comment No. 14: The right to the highest attainable
standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights). UN Doc.
E/C.12/2000/4, August 11, 2000, para. 34. See, also, African Commission on Human and Peoples’ Rights, Socialand Economic Rights Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria. Communication
155/96. Decision of October 27, 2001, paras. 51 and 52.
109

See, for example, ESCR Committee, General Comment No. 15: The right to water (articles 11 and 12 of theInternational Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/2002/11, January 20, 2003,
paras. 8 and 10.
110

See, for example, ESCR Committee, Concluding observations: Russian Federation, May 20, 1997, UN Doc.
E/C.12/Add.13, paras. 24 and 38.
111

112

See, for example, ESCR Committee, General Comment No. 4: The right to adequate housing (article 11(1)- 30 forcibly displaced.115 Without prejudice to the foregoing, according to Article 29 of theConvention,116 other rights are also vulnerable and their violation may affect the rights tolife, liberty and security of the individual,117 and infringe on the obligation of all persons to
conduct themselves fraternally,118 such as the right to peace, because displacements causedby environmental deterioration frequently unleash violent conflicts between the displaced
population and the population settled on the territory to which it is displaced. Some of theseconflicts are massive and thus extremely grave.
67.
The Court also bears in mind that the effects on these rights may be felt with greater
intensity by certain groups in vulnerable situations. It has been recognized thatenvironmental damage “will be experienced with greater force in the sectors of the
population that are already in a vulnerable situation”;119 hence, based on “international
human rights law, States are legally obliged to confront these vulnerabilities based on theprinciple of equality and non-discrimination.”120 Various human rights bodies haverecognized that indigenous peoples,121 children,122 people living in extreme poverty,of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/1992/23, December 13, 1991,
para. 8.f.
See, for example, ESCR Committee, Concluding observations: Madagascar, December 16, 2009, UN Doc.
E/C.12/MDG/CO/2, para. 33, and ESCR Committee, General Comment No. 21: Right of everyone to take part incultural life (article 15(1)(a), of the International Covenant on Economic, Social and Cultural Rights) May 17, 2010,
UN Doc. E/C.12/GC/21/Rev.1, para. 36.
113

See, for example, Human Rights Council, Report of the Special Rapporteur on the rights of indigenous
peoples, James Anaya: Extractive industries and indigenous peoples, UN Doc. A/HRC/24/41, July 1, 2013, para.
16; African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and
Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya. Communication No. 276/03, November 25,
2009, para. 186, and African Commission on Human and Peoples’ Rights, Social and Economic Rights Center(SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria. Communication 155/96. Decision of October27, 2001, paras. 54 and 55.
114

See, for example, Commission on Human Rights, Report of the Representative of the Secretary-General, Mr.
Francis M. Deng, submitted pursuant to Commission resolution 1997/39. Addendum: Guiding Principles on Internal
Displacement, Principle 6. UN Doc. E/CN.4/1998/53/Add.2, February 11, 1998, and with regard to climate change,
Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on therelationship between climate change and human rights, January 15, 2009, UN Doc. A/HRC/10/61, para. 56.
115

See Article 29(b), (c) and (d) of the American Convention, which establish that: “No provision of thisConvention shall be interpreted as: […] (b) restricting the enjoyment or exercise of any right or freedom recognized byvirtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party; (c)precluding other rights or guarantees that are inherent in the human personality or derived from representative
democracy as a form of government, or (d) excluding or limiting the effect that the American Declaration of the Rights
and Duties of Man and other international acts of the same nature may have.”
116

In this regard, Article I of the American Declaration of the Rights and Duties of Man stipulates that: “Every
human being has the right to life, liberty and the security of his person.”117

In this regard, see the Preamble to the American Declaration of the Rights and Duties of Man, whichindicates that: “All men are born free and equal, in dignity and in rights, and, being endowed by nature with reason
and conscience, they should conduct themselves as brothers one to another.”118

Human Rights Council, Resolution 16/11, “Human rights and the environment,” 12 April 2011, UN Doc.
A/HRC/RES/16/11, preamble, and Human Rights Council, Report of the Special Rapporteur on the issue of humanrights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, February 1,
2016, UN Doc. A/HRC/31/52, para. 81.
119

Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on
the relationship between climate change and human rights, January 15, 2009, UN Doc. A/HRC/10/61, para. 42,
and Human Rights Council, Report of the Special Rapporteur on the issue of human rights obligations relating to
the enjoyment of a safe, clean, healthy and sustainable environment, February 1, 2016, UN Doc. A/HRC/31/52,
para. 81.
120

Indigenous peoples are particularly vulnerable to environmental degradation, not only due to their special
spiritual and cultural relationship with their ancestral territories, but also due to their economic dependence on
environmental resources and because they “often live in marginal lands and fragile ecosystems which are121

- 31 minorities, and people with disabilities, among others,123 are groups that are especiallyvulnerable to environmental damage, and have also recognized the differentiated impactthat it has on women.124 In addition, the groups that are especially vulnerable toenvironmental degradation include communities that, essentially, depend economically or
for their survival on environmental resources from the marine environment, forested areas
and river basins,125 or run a special risk of being affected owing to their geographicallocation, such as coastal and small island communities.126 In many cases, the special
particularly sensitive to alterations in the physical environment.” Human Rights Council, Report of the Office of theUnited Nations High Commissioner for Human Rights on the relationship between climate change and humanrights, January 15, 2009, UN Doc. A/HRC/10/61, para. 51. See also: Human Rights Council, Preliminary report of
the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthyand sustainable environment, John H. Knox, December 24, 2012, UN Doc. A/HRC/22/43, para. 45, and Human
Rights Council, Mapping report of the Independent Expert on the issue of human rights obligations relating to theenjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, of December 30, 2013, UN Doc.
A/HRC/25/53, paras. 76 to 78.
122

Environmental degradation exacerbates health risks and undermines support structures that protect children
from harm. This is particularly evident in the case of children in the developing world. “For example, extreme
weather events and increased water stress already constitute leading causes of malnutrition and infant and childmortality and morbidity. Likewise, increased stress on livelihoods will make it more difficult for children to attend
school. Girls will be particularly affected as traditional household chores, such as collecting firewood and water,
require more time and energy when supplies are scarce. Moreover, like women, children have a higher mortality
rate as a result of weather-related disasters.” Human Rights Council, Report of the Office of the United Nations
High Commissioner for Human Rights on the relationship between climate change and human rights, January 15,
2009, UN Doc. A/HRC/10/61, para. 48. See also: Human Rights Council, Mapping report of the Independent Expert
on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable
environment, John H. Knox, of December 30, 2013, UN Doc. A/HRC/25/53, paras. 73 to 75.
Cf. Human Rights Council, Human Rights Council, Preliminary report of the Independent Expert on the issue ofhuman rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H.
Knox, December 24, 2012, UN Doc. A/HRC/22/43, para. 44; Human Rights Council, Mapping report of the
Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy andsustainable environment, John H. Knox, of December 30, 2013, UN Doc. A/HRC/25/53, paras. 69 to 78. See also,
Report of the Independent Expert on the question of human rights and extreme poverty, UN Doc. A/65/259,
August 9, 2010, paras. 17 and 37 to 42; Human Rights Council, Report of the Office of the United Nations HighCommissioner for Human Rights on the relationship between climate change and human rights, January 15, 2009,
UN Doc. A/HRC/10/61, paras. 42 to 45, and Report of the Representative of the Secretary-General on the humanrights of internally displaced persons, Walter Kälin, February 9, 2009, UN Doc. A/HRC/10/13, para. 22.
123

According to the United Nations High Commissioner for Human Rights, “[w]omen are especially exposed toclimate change-related risks due to existing gender discrimination, inequality and inhibiting gender roles. It isestablished that women, particularly elderly women and girls, are affected more severely and are more at risk
during all phases of weather-related disasters […]. The death rate of women is markedly higher than that of men
during natural disasters (often linked to reasons such as: women are more likely to be looking after children, to bewearing clothes which inhibit movement and are less likely to be able to swim). […] Vulnerability is exacerbated byfactors such as unequal rights to property, exclusion from decision-making and difficulties in accessing informationand financial services.” Human Rights Council, Report of the Office of the United Nations High Commissioner for
Human Rights on the relationship between climate change and human rights, January 15, 2009, UN Doc.
A/HRC/10/61, para. 45. See also: Human Rights Council, Mapping report of the Independent Expert on the issue ofhuman rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H.
Knox, of December 30, 2013, UN Doc. A/HRC/25/53, paras. 70 to 72.
124See, inter alia, United Nations General Assembly, Resolution 66/288, “The future we want,” July 27, 2012,
UN Doc. A/RES/66/288, para. 30; United Nations General Assembly, Resolution 64/255, Report of the Special
Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right tonon-discrimination in this context, August 6, 2009, UN Doc. A/64/255, paras. 26, 27 and 30 to 34, and Convention
on Biological Diversity, entered into force on December 29, 1993, preamble.
125

In particular, the effects of climate change may result in saltwater flooding, desertification, hurricanes,
erosion and landslides, leading to scarcity of water supplies and affecting food production from agriculture andfishing, as well as destroying land and housing. See, inter alia, United Nations General Assembly, Development andInternational Cooperation: Environment, Report of the World Commission on Environment and Development,
August 4, 1987, UN Doc. A/42/427, p. 47, 148 and 204; United Nations General Assembly, Resolution 44/206,“Possible adverse effects of sea-level rise on islands and coastal areas, particularly low-lying coastal areas,”
December 22, 1989, UN Doc. A/RES/44/206; United Nations General Assembly, Resolution 64/255, Report of theSpecial Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the126

- 32 vulnerability of these groups has led to their relocation or internal displacement.127
68.
The Court will rule below on the specific environmental obligations in relation to
indigenous communities (infra paras. 113, 138, 152, 156, 164, 166 and 169). However, ingeneral, the Court stresses the permanent need for States to evaluate and execute theobligations described in Chapter VIII of this Opinion taking into account the differentiatedimpact that such obligations could have on certain sectors of the population in order torespect and to ensure the enjoyment and exercise of the rights established in theConvention without any discrimination.
69.
In Chapter VIII of this Advisory Opinion, the Court will rule on the substantive andprocedural obligations of States with regard to environmental protection that are derived
from the obligations to respect and to ensure the rights to life and to personal integrity,
since these are the rights regarding which Colombia consulted the Court. However, as canbe inferred from the foregoing considerations, many other rights may be affected by failure
to comply with these obligations, including the economic, social, cultural and environmental
rights protected by the Protocol of San Salvador, the American Convention, and othertreaties and instruments; specifically, the right to a healthy environment.
70.
Following this introductory framework, the Court will now respond to the questions
raised by Colombia in its request for an advisory opinion.
VII
THE WORD “JURISDICTION” IN ARTICLE 1(1) OF THE AMERICAN CONVENTION IN
ORDER TO DETERMINE STATE OBLIGATIONS IN RELATION TO ENVIRONMENTAL
PROTECTION
71.
In this chapter, the Court will respond to the first question raised by Colombia in its
request for an advisory opinion. To this end, it will rule on (A) the scope of the word
“jurisdiction” in the American Convention; (B) State obligations within the framework of
special environmental protection regimes, and (C) State obligations in the face oftransboundary damage.
A. Scope of the word “jurisdiction” in Article 1(1) of the American
Convention in order to determine State obligations
72.
Article 1(1) of the America Convention establishes that the States Parties “undertaketo respect the rights and freedoms recognized herein and to ensure to all persons subject totheir jurisdiction the free and full exercise of those rights and freedoms.” Thus, violations ofright to non-discrimination in this context, August 6, 2009, UN Doc. A/64/255, paras. 30 to 34; United Nations
General Assembly, Resolution 66/288, “The future we want,” July 27, 2012, UN Doc. A/RES/66/288, paras. 158,
165, 166, 175, 178 and 190, and United Nations Framework Convention on Climate Change, entered into force on
March 21, 1994, preamble and art. 4.8.
The Representative of the Secretary-General on the human rights of internally displaced persons underlined
five situations related to climate change and environmental degradation that triggered displacement: (a) increasedhydro-meteorological disasters such as hurricanes, flooding or mudslides; (b) gradual environmental degradationand slow onset disasters, such as desertification, sinking of coastal zones, or increased salinization of groundwaterand soil; (c) the “sinking” of small island States; (d) forced relocation of people from high-risk zones; and (e)violence and armed conflict triggered by the increasing scarcity of necessary resources such as water or inhabitableland. Cf. Human Rights Council, Report of the Representative of the Secretary-General on the human rights ofinternally displaced persons, Walter Kälin, February 9, 2009, UN Doc. A/HRC/10/13, para. 22, and Human Rights
Council, Report of the Office of the United Nations High Commissioner for Human Rights on the relationshipbetween climate change and human rights, January 15, 2009, UN Doc. A/HRC/10/61, paras. 51 and 56.
127

- 33 the human rights recognized in the American Convention may entail the responsibility of theState, provided that the person concerned is subject to their jurisdiction. Therefore, theexercise of this jurisdiction is a necessary precondition for a State to incur responsibility for any
conduct that may be attributed to it that allegedly violates any of the rights under theConvention.128 In other words, for the State to be considered responsible for a violation of theAmerican Convention, it is first necessary to establish that it was exercising its “jurisdiction” inrelation to the person or persons who allege that they have been victims of the State’s
conduct.
73.
In this regard, the Inter-American Court has indicated that the use of the word
“jurisdiction” in Article 1(1) of the American Convention signifies that the State obligation torespect and to ensure human rights applies to every person who is within the State’s
territory or who is in any way subject to its authority, responsibility or control. 129
74.
The Court recalls that the fact that a person in subject to the jurisdiction of a State
does not mean that he or she is in its territory.130 According to the rules for theinterpretation of treaties, as well as the specific rules of the American Convention (supraparas. 40 to 42), the ordinary meaning of the word “jurisdiction,” interpreted in good faithand taking into account the context, object and purpose of the American Convention,
signifies that it is not limited to the concept of national territory, but covers a broader
concept that includes certain ways of exercising jurisdiction beyond the territory of the Statein question.
75.
This interpretation coincides with the sense that the Inter-American Commission has
given to the word “jurisdiction in Article 1(1) of the Convention in its decisions. 131 In thisregard, the Commission has stated that:
In international law, the bases of jurisdiction are not exclusively territorial, but may be
exercised on several other bases as well. In this sense, […] "under certain circumstances,the exercise of its jurisdiction over acts with an extraterritorial locus will not only beconsistent with but required by the norms which pertain." Thus, although jurisdiction
usually refers to authority over persons who are within the territory of a State, humanrights are inherent in all human beings and are not based on their citizenship or location.
Under inter-American human rights law, each American State is obligated therefore torespect the rights of all persons within its territory and of those present in the territoryof another State but subject to the control of its agents.132

76.
In keeping with the rule of interpretation under Article 31 of the Vienna Convention,
unless the parties have had the intention of giving it a special meaning, the word
Similarly, see, inter alia, ECHR, Ilaşcu and Others v. Moldavia and Russia [GS], No. 48787/99. Judgment ofJuly 8, 2004, para. 311; ECHR, Al-Skeini and Others v. The United Kingdom [GS], No. 55721/07. Judgment of July
7, 2011, para. 130, and ECHR, Chiragov and Others v. Armenia [GS], No. 13216/05, Judgment of June 16, 2015,
para. 168.
128

129

Cf. Advisory Opinion OC-21/14, supra, para. 61.

130

Cf. Advisory Opinion OC-21/14, supra, para. 219.

Cf. IACHR, Franklin Guillermo Aisalla Molina (Ecuador v. Colombia), Admissibility Report No. 112/10 of
October 21 2011, para. 91; IACHR, Saldaño v. Argentina, Inadmissibility Report No. 38/99 of May 11, 1999, paras.
15 to 20; IACHR, Case of Armando Alejandre Jr. et al. v. Cuba, Merits Report No. 86/99 of September 29, 1999,
paras. 23 to 25, and IACHR, Case of Coard et al. v. United States, Merits Report No. 109/99 of September 29,
1999, para. 37.
131

IACHR, Franklin Guillermo Aisalla Molina (Ecuador v. Colombia), Admissibility Report No. 112/10 of October
21, 2011, para. 91, and IACHR, Case of Coard et al. v. United States, Merits Report No. 109/99 of September 29,
1999, para. 37.
132

- 34 “jurisdiction” should be given its ordinary meaning, interpreted in good faith and taking into
account the context, object and purpose of the American Convention.
77.
The Court notes that the travaux préparatoires of the American Convention revealthat the initial text of Article 1(1) established that: “[t]he States Parties undertake torespect the rights and freedoms recognized in this Convention and to ensure their free andfull exercise to all persons who are in their territory and subject to their jurisdiction”133(underlining added). When adopting the American Convention, the Inter-American
Specialized Conference on Human Rights eliminated the reference to “territory” andestablished the obligation of the States Parties to the Convention, embodied in Article 1(1)of this treaty, to respect and to ensure the rights recognized therein “to all persons subject
to their jurisdiction” (supra para. 72). Accordingly, the margin of protection for the rights
recognized in the American Convention was expanded insofar as the States Parties’
obligations are not restricted to the geographical space corresponding to their territory, but
encompass those situations where, even outside a State’s territory, a person is subject to its
jurisdiction. In other words, States may not only be found internationally responsible foracts or omissions attributed to them within their territory, but also for those acts oromissions committed outside their territory, but under their jurisdiction. 134
78.
Therefore, the “jurisdiction” referred to in Article 1(1) of the American Convention is
not limited to the national territory of a State but contemplates circumstances in which theextraterritorial conduct of a State constitutes an exercise of its jurisdiction.
79.
International human rights law has recognized different situations in which theextraterritorial conduct of a State entails the exercise of its jurisdiction. The European Courtof Human Rights has indicated that, under the European Convention on Human Rights, theexercise of jurisdiction outside the territory of a State requires that a State Party to that
Convention exercise effective control over an area outside its territory, or over persons whoare either lawfully or unlawfully in the territory of another State,135 or that, based on theconsent, invitation or acquiescence of the Government of the other territory, it exercises allor some of the public powers that it would normally exercise. 136 Thus, the European Court
has recognized situations of effective control and, consequently, of extraterritorial exerciseof jurisdiction in cases of military occupation or military interventions,137 based on the
Draft Inter-American Convention for the Protection of Human Rights, adopted by the Council of theOrganization of American States in the session held on October 2, 1968, in Actas y Documentos of the InterAmerican Specialized Conference on Human Rights, 1966, OAS, Washington D.C., p. 14.
133

Cf. Minutes of the first session of Committee I on November 10, 1969, in Actas y Documentos of the InterAmerican Specialized Conference on Human Rights, 1966, OAS, Washington D.C., pp. 145 and 147, and Minutes ofthe second session of Committee I on November 10, 1969, in Actas y Documentos of the Inter-American
Specialized Conference on Human Rights, 1966, OAS, Washington D.C., pp. 156 and 157. The Inter-American
Commission on Human Rights has also consistently given this interpretation to the travaux préparatoires of theConvention as regards the use of the word “jurisdiction” in the American Convention.
134

Cf. ECHR, Case of Loizidou v. Turkey (Preliminary objections), No. 15318/89. Judgment of March 23, 1995,
para. 62; ECHR, Case of Al-Skeini and Others v. The United Kingdom [GS], No. 55721/07. Judgment of July 7,
2011, para. 138, and ECHR, Case of Catan and Others v. Moldova and Russia [GS], Nos. 43370/04, 8252/05 and
18454/06. Judgment of October 19, 2012, para. 311.
135

See, for example, ECHR, Case of Chiragov and Others v. Armenia [GS], No. 13216/05. Judgment of June 16,
2015, para. 168, and ECHR, Case of Banković and Others v. Belgium [GS], No. 52207/99. Decision on admissibilityof December 12, 2001, para. 71.
136

See, for example, ECHR, Case of Loizidou v. Turkey (Preliminary objections), No. 15318/89. Judgment ofMarch 23, 1995, para. 62; ECHR, Case of Cyprus v. Turkey [GS], No. 25781/94. Judgment of May 10, 2001, para.
77; ECHR, Case of Manitaras and Others v. Turkey, No. 54591/00. Decision of June 3, 2008, paras. 25 to 29, andECHR, Case of Pisari v. Republic of Moldova and Russia, No. 42139/12. Judgment of April 21, 2015, paras. 33 to
36.
137

- 35 actions abroad of a State’s security forces,138 or military, political and economic influence. 139
Similarly, the United Nations Human Rights Committee has recognized the existence of
extraterritorial conducts of States that entail the exercise of their jurisdiction over another
territory or over persons outside their territory. 140 Meanwhile, the Inter-American
Commission has indicated that, in certain instances, the exercise of jurisdiction may refer toextraterritorial actions, “when the person is present in the territory of a State but is subject
to the control of another State, generally through the actions of that State’s agentsabroad,”141 and has therefore recognized the exercise of extraterritorial jurisdiction, also, incases relating to military interventions, 142 military operations in international air space 143
and in the territory of another State, 144 as well as in military facilities outside a State’s
territory.145
80.
Most of these situations involve military actions or actions by State security forcesthat indicate “control”, “power” or “authority” in the execution of the extraterritorialconduct. However, these are not the situations described by the requesting State and do notcorrespond to the specific context of environmental obligations referred to in this request foran advisory opinion.
81.
The Court notes that the situations in which the extraterritorial conduct of a State
constitutes the exercise of its jurisdiction are exceptional and, as such, should beinterpreted restrictively.146 To examine the possibility of extraterritorial exercise ofjurisdiction in the context of compliance with environmental obligations, the obligations
derived from the American Convention must be analyzed in light of the State obligations inthat regard. In addition, the possible grounds for jurisdiction that arise from this systematic
138

91.

See, for example, ECHR, Case of Öcalan v. Turkey [GS], No. 46221/99. Judgment of May 12, 2005, para.

See, for example, ECHR, Case of Ilaşcu and Others v. Republic of Moldova and Russia, No. 48787/99.
Judgment of July 8, 2004, paras. 314 to 316; ECHR, Case of Ivanţoc and Others v. Republic of Moldova and Russia,
No. 23687/05. Judgment of November 15, 2011, paras. 105 and 106; ECHR, Case of Catan and Others v. Republicof Moldova and Russia [GS], Nos. 43370/04, 8252/05 and 18454/06. Judgment of October 19, 2012, paras. 103 to
106, and ECHR, Case of Mozer v. Republic of Moldova and Russia [GS], No. 11138/10. Judgment of February 23,
2016, paras. 97 and 98.
139

Cf. Human Rights Committee, Communication No. 56/1979, Lilian Celiberti de Casariego v. Uruguay,
CCPR/C/13/D/56/1979, 29 July 1981, para. 10.3, and Human Rights Committee, Communication No. 106/1981,
Mabel Pereira Montero v. Uruguay, CCPR/C/18/D/106/1981, March 31, 1983, para. 5.
140

141

23.

IACHR, Case of Armando Alejandre Jr. et al. v. Cuba. Merits Report No. 86/99 of September 29, 1999, para.

Cf. IACHR, Case of Salas et al. v. United States. Admissibility Report No. 31/93 of October 14, 1993, paras.
14, 15 and 17, and IACHR, Case of Coard et al. v. United States. Merits Report No. 109/99 of September 29, 1999,
para. 37.
142

Cf. IACHR, Case of Armando Alejandre Jr. et al. v. Cuba. Merits Report No. 86/99 of September 29, 1999,
para. 23.
143

Cf. IACHR, Franklin Guillermo Aisalla Molina (Ecuador v. Colombia), Admissibility Report No. 112/10 of
October 21, 2010, para. 98.
144

145

Cf. IACHR, Djamel Ameziane v. United States. Admissibility Report No. 17/12 of March 20, 2012, para. 35.

In this regard, the European Court of Human Rights has interpreted that, although a State’s jurisdiction isabove all territorial, there are “a number of exceptional circumstances that may give rise to the exercise ofjurisdiction by a contracting State outside its own territorial limits.” See, inter alia, ECHR, Case of Al-Skeini andOthers v. The United Kingdom [GS], No. 55721/07. Judgment of July 7, 2011, paras. 131 and 133 to 139; ECHR,
Case of Ilaşcu and Others v. Republic of Moldova and Russia [GS], No. 48787/99. Judgment of July 8, 2004, paras.
311 to 319; ECHR, Case of Catan and Others v. Republic of Moldova and Russia [GS], Nos. 43370/04, 8252/05 and
18454/06. Judgment of October 19, 2012, para. 105; ECHR, Case of Chiragov and Others v. Armenia, [GS], No.
13216/05. Judgment of June 16, 2015, para. 168, and ECHR, Case of Banković and Others v. Belgium [GS],Decision on admissibility of December 12, 2001, para. 66.
146

- 36 interpretation must be justified based on the particular circumstances of the specific case. 147
The Inter-American Court finds that a person is subject to the “jurisdiction” of a State inrelation to an act committed outside the territory of that State (extraterritorial action) orwith effects beyond this territory, when the said State is exercising authority over that
person or when that person is under its effective control, either within or outside its
territory.148
82.
Having established that the exercise of jurisdiction by a State under Article 1(1) of
the Convention may encompass extraterritorial conduct and that such circumstances must
be examined in each specific case in order to verify the existence of an effective control
over the persons concerned, the Court must now examine the situations of extraterritorialconduct that have been presented to it in the context of this advisory proceeding in order todetermine whether they could entail the exercise of jurisdiction by a State. On this basis,
the Court will now examine: (1) whether compliance by the States with extraterritorial
obligations, in the context of special environmental protection regimes, could constitute an
exercise of jurisdiction under the American Convention, and (2) whether State obligations in
the case of transboundary damage may entail the exercise of a State’s jurisdiction beyond
its territory.
B. State obligations under special environmental protection regimes
83.
In 1974, the United Nations Environmental Programme (hereinafter “UNEP”)
launched the Regional Seas Programme in order to tackle the accelerated degradation of theworld’s oceans and coastal areas using a shared seas approach and, in particular, involving
neighboring countries in the adoption of specific comprehensive measures to protect theircommon marine environment.149 At the present time, the program covers 18 regions of theworld and involves more than 143 States, 150 through regional seas conventions and actionplans for the management and sustainable use of the marine and coastal environment. 151
84.
In the context of this program, and in relation to the Caribbean Sea, the States of
the region adopted the Cartagena Convention referred to by Colombia in its request for anadvisory opinion, the purpose of which is to cover all the different aspects of environmental
degradation and to meet the special needs of the region (supra paras. 32 to 34). To thisend, the Cartagena Convention establishes that:The European Court of Human Rights has ruled similarly. See, for example, ECHR, Case of Banković andOthers v. Belgium [GS], No. 52207/99. Decision on admissibility of December 12, 2001, para. 61; ECHR, Case of
Al-Skeini and Others v. The United Kingdom [GS], No. 55721/07. Judgment of July 7, 2011, paras. 133 to 139, andECHR, Case of Chiragov and Others v. Armenia, [GS], No. 13216/05. Judgment of June 16, 2015, para. 168.
147

148

Regarding the principle of non-refoulement, see Advisory Opinion OC-21/14, supra, para. 219.

The information on the Regional Seas Programme of the United Nations Environmental Programme can befound at the following link: https://www.unenvironment.org/explore-topics/oceans-seas/what-we-do/workingregional-seas/why-does-working-regional-seas-matter.
149

Specifically, it covers the following regions: (1) the Antarctic Ocean; (2) the Arctic Ocean; (3) the Baltic Sea;
(4) the Black Sea; (5) the Caspian Sea; (6) East Africa; (7) the East Asian Seas; (8) the Mediterranean; (9) the
North-East Atlantic; (10) the North-East Pacific; (11) the North-West Pacific; (12) the Pacific West; (13) the Red
Sea and the Gulf of Aden; (14) the Regional Organization for the Protection of the Marine Environment (ROPME)
Sea Area (Bahrein, Iran, Irak, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates); (15) the South
Asian Seas; (16) the South-East Pacific; (17) West, Central and South Africa, and (18) the Wider Caribbean. Cf.
UNEP, Realizing Integrated Regional Oceans Governance – Summary of case studies on regional cross-sectoral
institutional cooperation and policy coherence, Regional Seas Reports and Studies No. 199, 2017, p. 8.
150The program is implemented by conventions and action plans aimed at protecting a specific marine area inwhich several States converge. Cf. United Nations Environmental Programme, Why does working regional seas
matter? Available at: https://www.unenvironment.org/explore-topics/oceans-seas/what-we-do/working-regionalseas/why-does-working-regional-seas-matter.
151

- 37 -

Article 4 General Obligations:
1. The Contracting Parties shall, individually or jointly, take all appropriate measures inconformity with international law and in accordance with this Convention and those of its
protocols in force to which they are parties to prevent, reduce and control pollution of theConvention area152 and to ensure sound environmental management, using for thispurpose the best practicable means at their disposal and in accordance with theircapabilities.
2. The Contracting Parties shall, in taking the measures referred to in paragraph 1,
ensure that the implementation of those measures does not cause pollution of the marine
environment outside the Convention area.
3. The Contracting Parties shall co-operate in the formulation and adoption of protocols
or other agreements to facilitate the effective implementation of this Convention.
4.
The Contracting Parties shall take appropriate measures, in conformity withinternational law, for the effective discharge of the obligations prescribed in thisConvention and its protocols and shall endeavour to harmonize their policies in thisregard.
5. The Contracting Parties shall co-operate with the competent international, regionaland subregional organizations for the effective implementation of this Convention and its
protocols. They shall assist each other in fulfilling their obligations under this Convention
and its protocols.153 (Underlining added)

85.
Based on these and other obligations, particularly those established in article 4(1) of
the Cartagena Convention, Colombia proposed that “an area of functional jurisdiction beestablished [in the Convention area], located outside the borders of the States parties,
within which they are obliged to comply with certain obligations to protect the marine
environment of the whole region.”
86.
That said, the Court notes that this type of provision can also be found in othertreaties, particularly those that form part of the Regional Seas Programme mentioned above(para. 83), such as: (i) the Nairobi Convention for the Protection, Management andDevelopment of the Marine and Coastal Environment of the Western Indian Ocean (Nairobi
Convention);154 (ii) the Barcelona Convention for the Protection of the Marine Environment
and the Coastal Region of the Mediterranean (Barcelona Convention); 155 (iii) the Convention
for Cooperation in the Protection and Development of the Marine and Coastal Environmentof the West and Central African Region (Abidjan Convention); 156 (iv) the Framework
Convention for the Protection of the Marine Environment of the Caspian Sea (Tehran
Convention);157 (v) the Convention on the Protection of the Black Sea against Pollution; 158
The Convention area is “the marine environment of the Gulf of Mexico, the Caribbean Sea and the areas of
the Atlantic Ocean adjacent thereto, south of 300 north latitude and within 200 nautical miles of the Atlantic coastsof the States referred to in article 25 of the Convention.” Convention for the Protection and Development of the
Marine Environment in the Wider Caribbean Region (Cartagena Convention), entered into force on October 11,
1986, art. 2.1.
152

153

Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region(Cartagena Convention), entered into force on October 11, 1986, art. 4.
Cf. Convention for the Protection, Management and Development of the Marine and Coastal Environment of
the Western Indian Ocean (Nairobi Convention, entered into force on May 30, 1996, art. 4(1).
154

Cf. Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean(Barcelona Convention), entered into force on February 12, 1978, art. 4(1).
155

Cf. Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of
the West and Central African Region (Abidjan Convention), entered into force on August 5, 1984, art. 4.
156

Cf. Framework Convention for the Protection of the Marine Environment of the Caspian Sea (Tehran
Convention), entered into force on August 12, 2006, art. 4.a.
157

- 38 (vi) the Convention for the Protection of the Marine Environment and Coastal Area of theSouth-East Pacific (Lima Convention;159 (vii) the Convention for the Protection of Natural
Resources and Environment of the South Pacific Region (Noumea Convention);160 (viii) the
Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment(Jeddah Convention);161 (ix) the Kuwait Regional Convention for Co-operation on theProtection of the Marine Environment from Pollution; 162 (x) the Convention for theProtection of the Marine Environment of the Baltic Sea Area (Helsinki Convention), 163 and(xi) the Convention for the Protection of the Marine Environment of the North-East Atlantic(OSPAR).164
87.
All these treaties establish special regimes to prevent, reduce and control pollution ineach treaty’s area of application (supra paras. 84 and 86). Consequently, they ascribe
particular functions and attributes to their States parties in specific geographical spaces. As
in the case of other jurisdictions under the law of the sea, these regimes depend on thespecific functions for which they were designed and agreed.165 The areas of application ofthese environmental protection treaties cover jurisdictional areas of the States, including
their exclusive economic zones where the bordering States exercise jurisdiction, rights andobligations in accordance with their “economic” purpose and taking into account thecorresponding rights and obligations of the other States in the same area. 166
Cf. Convention on the Protection of the Black Sea against Pollution entered into force on January 15, 1994,
art. V.2.
158

Cf. Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific (Lima
Convention), entered into force on May 19, 1986, art. 3.1. The Permanent Commission for the South Pacific(CPPS), an inter-governmental body created in 1952, in Santiago de Chile, by the Governments of Chile, Ecuador
and Peru, acts as the Executive Secretariat for this Convention and its Protocols, and for the Action Plan for theProtection of the Marine Environment and the Coastal Areas of the South-East Pacific. Cf. History and work of thePermanent Commission for the South Pacific. Available at: http://cpps-int.org/index.php/home/cpps-historia
159

Cf. Convention for the Protection of Natural Resources and Environment of the South Pacific Region(Noumea Convention), entered into force on August 22, 1990, art. 5(1).
160

Cf. Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment (Jeddah
Convention), entered into force on August 19, 1985, art. III.1
161

Cf. Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution,entered into force on June 30, 1979, art. III.a.
162

Cf. Convention for the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention),entered into force on January 17, 2000, art. 3(1).
163

Cf. Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), entered into
force on March 25, 1998, art. 2.1(a).
164Functional jurisdiction is the expression used in the law of the sea to refer to the limited jurisdiction ofcoastal States over the activities in “their” maritime zones (the territorial sea, the contiguous zone, the exclusive
economic zone, and the continental shelf). See, for example, the different regimes in the United Nations
Convention on the Law of the Sea. The jurisdiction is functional because it is exercised based on the purpose of theactivity. For example, in an exclusive economic zone, the jurisdiction, rights and obligations attributed to both thecoastal States and to the other States is exercised in keeping with its “economic” objective and taking into accountthe corresponding rights and obligations of the other States in the same zone. Cf. United Nations Convention on
the Law of the Sea (hereinafter “UNCLOS”), entered into force on November 16, 1994, arts. 55 to 75.
165

In this regard, Articles 55 and 56 of the Convention on the Law of the Sea establish that: “Article 55:
Specific legal regime of the exclusive economic zone. The exclusive economic zone is an area beyond and adjacentto the territorial sea, subject to the specific legal regime established in this Part, under which the rights andjurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant
provisions of this Convention. Article 56. Rights, jurisdiction and duties of the coastal State in the exclusive zone.
1. In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring andexploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacentto the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitationand exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction
as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of
artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of166

- 39 -

88.
The request presented by Colombia suggests the possibility of equating theenvironmental obligations imposed under these regimes to human rights obligations so that
the State’s conduct in the area of application of these regimes is considered an exercise of
the State’s jurisdiction under the American Convention. However, first, the Court notes thatthe exercise of jurisdiction by a State under the American Convention does not depend on
the State’s conduct taking place in a specific geographical area. As previously established,
the exercise of jurisdiction by a State under the American Convention depends on a State
exercising authority over a person or when a person is subject to the effective control ofthat State (supra para. 81). Second, the Court underlines that the geographical areas that
constitute the areas of application of this type of treaty were delimited with the specificpurpose of compliance with the obligations established in those treaties to prevent, reduceand control pollution. Even though compliance with environmental obligations may
contribute to the protection of human rights, this does not equate to the establishment of a
special jurisdiction common to the States parties to those treaties in which it is understoodthat any action of a State in compliance with the treaty obligations constitutes an exerciseof the jurisdiction of that State under the American Convention.
89.
In addition, the Court understands that Colombia’s request also suggests thepossibility that these treaties extend the jurisdiction of a State beyond the borders of its
territory. The Court notes that a State’s jurisdiction can certainly extend over the territorial
limits of another State when the latter expresses, through an agreement, its consent to
restrict its own sovereignty.167 The issue that must be decided by this Court, in relation to
the question posed by Colombia, is whether these treaty-based regimes designed to protect
the environment may involve this relinquishment of sovereignty.
90.
In this regard, the Court notes that compliance with human rights or environmental
obligations does not justify failing to comply with other norms of international law, including
the principle of non-intervention. The American Convention must be interpreted in keepingwith other principles of international law,168 because the obligations to respect and to ensure
human rights does not authorize States to act in violation of the Charter of the United
Nations or international law in general. While international law does not exclude a State’s
exercise of jurisdiction extraterritorially, the suggested bases for such jurisdiction are, as a
general rule, defined and limited by the sovereign territorial rights of the other relevant
States.169 Consequently, territorial sovereignty imposes limits on the scope of the States’
obligation to contribute to the global realization of human rights.170 In the same manner,
the marine environment; (c) other rights and duties provided for in this Convention. 2. In exercising its rights andperforming its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard
to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part
VI.” Cf. UNCLOS, arts. 55 and 56.
Cf. European Commission on Human Rights. Case of X.Y. v. Switzerland. Nos. 7289/75 and 7349/76.
Decision of July 14, 1977, pp. 71 to 73.
167

Similarly, see, ECHR, Al-Adsani v. The United Kingdom [GS], No. 35763/97, Judgment of November 21,
2001, paras. 60 to 67, and ECHR, Case of Banković and Others v. Belgium [GS], No. 52207/99. Decision on
admissibility of December 12, 2001, para. 57
168

Cf. ECHR, Case of Banković and Others v. Belgium [GS], No. 52207/99. Decision on admissibility ofDecember 12, 2001, para. 59, and Case of Markovic and Others v. Italy, [GS], No. 1398/03. Judgment ofDecember 14, 2006, para. 49.
169

Similarly, the European Court of Human Rights has indicated that “a State’s competence to exercise its
jurisdiction over its own nationals abroad is subordinate to that State’s and other States’ territorial competence.”
ECHR, Case of Banković and Others v. Belgium [GS], No. 52207/99. Decision on admissibility of December 12,
2001, para. 60.
170

- 40 States’ rights and duties in relation to maritime areas must always be executed with due
respect for the rights and duties of the other States concerned.171
91.
In this regard, the Court emphasizes that the Cartagena Convention itself limits thescope of the provisions of this instrument, so that they should not be interpreted in a sensethat “prejudice[s] the present or future claims or the legal views of any Contracting Party
concerning the nature and extent of maritime jurisdiction.”172 This type of limitation can also
be found in similar treaties such as: (i) the Nairobi Convention; 173 (ii) the Barcelona
Convention;174 (iii) the Abidjan Convention;175 (iv) the Tehran Convention;176 (v) theConvention on the Protection of the Black Sea against Pollution;177 (vi) the Lima
Convention;178 (vii) the Noumea Convention; 179 (viii) the Jeddah Convention;180 (ix) the
Kuwait Regional Convention for Cooperation on the Protection of the Marine against
Pollution,181 and (x) the Helsinki Convention.182
92.
Consequently, it cannot be concluded that special environmental protection regimes,
such as the one established in the Cartagena Convention, extend by themselves thejurisdiction of the States Parties for the purposes of their obligations under the American
Convention.
93.
The Court reiterates that, to determine whether a person is subject to the jurisdictionof a State under the American Convention, it is not sufficient that this person be located in a
specific geographical area, such as the area of application of an environmental protection
treaty. A determination must be made, based on the factual and legal circumstances of eachspecific case, that exceptional circumstances exist which reveal a situation of effective
control or that a person was subject to the authority of a State (supra para. 81). In eachcase, it will be necessary to determine whether, owing to a State’s extraterritorial conduct,
See, for example, UNCLOS, arts. 56.2 (Rights, jurisdiction and duties of the coastal State in the exclusive
economic zone), and 78 (Legal status of the superjacent waters and air space and the rights and freedoms of otherStates). See also, International Tribunal for the Law of the Sea (ITLOS), Request for an advisory opinion submitted
by the Subregional Fisheries Commission (SRFC). Advisory Opinion of April 2, 2015, para. 216.
171

Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region(Cartagena Convention), entered into force on October 11, 1986, art. 3.3.
172

Cf. Convention for the Protection, Management and Development of the Marine and Coastal Environment of
the Western Indian Ocean (Nairobi Convention), entered into force on May 30, 1996, art. 3.3.
173

Cf. Barcelona Convention for the Protection of the Marine Environment and the Coastal Region of theMediterranean (Barcelona Convention), entered into force on February 12, 1978, art. 3.
174

Cf. Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of
the West and Central African Region (Abidjan Convention), entered into force on August 5, 1984, art. 3.
175

Cf. Framework Convention for the Protection of the Marine Environment of the Caspian Sea (Tehran
Convention), entered into force on August 12, 2006, art. 37.
176

Cf. Convention on the Protection of the Black Sea against Pollution, entered into force on January 15, 1994,
art. V. 1
177

178

Cf. Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific (Lima
Convention), entered into force on May 19, 1986, art. 3.4.
Cf. Convention for the Protection of Natural Resources and Environment of the South Pacific Region(Noumea Convention), entered into force on August 22, 1990, art. 4.4.
179

Cf. Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment (Jeddah
Convention), entered into force on August 19, 1985, art. XV.
180

Cf. Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution
entered into force on June 30, 1979, art. XV.
181

Cf. Convention for the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention),entered into force on January 17, 2000, art. 4.
182

- 41 a person can be considered under its jurisdiction for the purposes of the American
Convention.
94.
Notwithstanding the above, the Court recalls that the pacta sunt servanda principle
requires the parties to a treaty to apply it “in a reasonable way and in such a manner thatits purpose can be realized.”183 Consequently, the States Parties to the American Convention
should not act in a way that hinders other States Parties from complying with their
obligations under this treaty. This is important not only with regard to acts and omissions
outside its territory, but also with regard to those acts and omissions within its territory that
could have effects on the territory or inhabitants of another State, as will be examined
below.
C. Obligations regarding transboundary damage95.
As previously established, the jurisdiction of a State is not limited to its territorial
space (para. 74). The word “jurisdiction,” for the purposes of the human rights obligations
under the American Convention as well as extraterritorial conducts may encompass aState’s activities that cause effects outside its territory 184 (supra para 81).
96.
Many environmental problems involve transboundary damage or harm. “Onecountry’s pollution can become another country’s human and environmental rights problem,
particularly where the polluting media, like air and water, are capable of easily crossing
boundaries.”185 The prevention and regulation of transboundary environmental pollution has
resulted in much of international environmental law, through bilateral, regional or
multilateral agreements that deal with global environmental problems such as ozone
depletion and climate change.186
97.
International law requires States to meet a series of obligations relating to thepossibility of environmental damage crossing the borders of a specific State. The
International Court of Justice has repeatedly established that States have the obligation not

ICJ, Case concerning the Gabčikovo-Nagymaros Project (Hungary c. Slovakia). Judgment of September 25,
1997, para. 142.
183

The European Court has established that a State’s responsibility may be generated by acts of its authorities
that produce effects outside its territory. In this regard, it has indicated that “acts of the Contracting Parties
performed or producing effects outside their territories can constitute an exercise of jurisdiction within the meaningof Article 1, only in exceptional cases.” Cf. ECHR. Case of Al-Skeini and Others v. The United Kingdom, judgment ofJuly 7, 2011, para. 131; Case of Banković and Others v. Belgium [GS], No. 52207/99, Decision on admissibility ofDecember 12, 2001, para. 67; Case of Drozd and Janousek vs. France and Spain, Judgment of June 26, 1992,
para. 91; Case of Soering v. The United Kingdom, No. 14038/88, Judgment of July 7, 1989, para. 86 to 88; Case of
Issa and Others v. Turkey, No. 31821/96. Judgment of November 16, 2004, paras. 68 and 71. See also, IACHR,
Franklin Guillermo Aisalla Molina (Ecuador v. Colombia), Admissibility Report No. 112/10 of October 21, 2010,
para. 98.
184

Cf. Human Rights Council, Preliminary report of the Independent Expert on the issue of human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox,
December 24, 2012, UN Doc. A/HRC/22/43, para. 47 and 48, and ESCR Committee, General Comment No. 15: The
right to water (articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc.
E/C.12/2002/11, January 20, 2003, para. 31, and Human Rights Council, Analytical study of the relationshipbetween human rights and the environment, Report of the United Nations High Commissioner for Human Rights,
adopted on December 16, 2011, UN Doc. A/HRC/19/34, paras. 65, 70 and 72.
185

Cf. Human Rights Council, Preliminary report of the Independent Expert on the issue of human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox,
December 24, 2012, UN Doc. A/HRC/22/43, para. 47 and 48, and Commission on Human Rights, Analytical studyof the relationship between human rights and the environment, Report of the United Nations High Commissioner
for Human Rights, adopted on December 16, 2001, UN Doc. A/HRC/19/34, paras. 65, 70 and 72.
186

- 42 to allow their territory to be used for acts contrary to the rights of other States. 187 In
application of this principle, that court has also indicated that States must ensure that
activities within their jurisdiction or control do not cause damage to the environment ofother States or of areas beyond the limits of their jurisdiction,188 and that States are obliged
to use all available means to avoid activities in their territory, or in any area under theirjurisdiction, causing significant damage to the environment of another State. 189
98.
This obligation was included in the Stockholm Declaration, 190 and in the Rio
Declaration. The latter establishes that:
States have, in accordance with the Charter of the United Nations and the principles ofinternational law, the sovereign right to exploit their own resources pursuant to theirown environmental and developmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the environmentof other States or of areas beyond the limits of national jurisdiction.191 (Underlining
added.)

99.
In addition, it was codified in the United Nations Convention on the Law of the Sea,
which establishes that:
States shall take all measures necessary to ensure that activities under theirjurisdiction or control are so conducted as not to cause damage by pollution to otherStates and their environment, and that pollution arising from incidents or activities
under their jurisdiction or control does not spread beyond the areas where they
exercise sovereign rights in accordance with this Convention.192

100. Most treaties, agreements or other international instruments on environmental law
refer to transboundary environmental damage and require or demand international
cooperation to deal with this matter.193
187

Cf. ICJ, Corfu Channel case (The United Kingdom v. Albania). Judgment of April 9, 1949, p. 22. See also,
Trail Smelter Case in which that Court indicated that, “under the principles of international law, no State has theright to use or permit the use of its territory in such a manner as to cause injury in or to the territory of anotherState.” Cf. Court of Arbitration, Trail Smelter Case (United States v. Canada). Decision of April 16, 1938, and March
11, 1941, p. 1965.
188

Cf. ICJ, Legality of the threat or use of nuclear weapons. Advisory Opinion of July 8, 1996, para. 29.

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, paras.
101 and 204; also, ICJ, Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) andConstruction of a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Judgment of December
16, 2015, paras. 104 and 118.
189

Cf. Stockholm Declaration on the Human Environment, United Nations Conference on the Human
Environment, Stockholm, June 5 to 16, 1972, UN Doc. A /CONF.48/14/Rev.1, Principle 21. This Principle
establishes that: “States have, in accordance with the Charter of the United Nations and the principles ofinternational law, the sovereign right to exploit their own resources pursuant to their own environmental policies
and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to theenvironment of other States or of areas beyond the limits of national jurisdiction.”190

Rio Declaration on Environment and Development. United Nations Conference on Environment andDevelopment, Río de Janeiro, June 3 to 14, 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Principle 2. This
principle was also recognized in the preamble to the United Nations Framework Convention on Climate Change:“Recalling also that States have, in accordance with the Charter of the United Nations and the principles ofinternational law, the sovereign right to exploit their own resources pursuant to their own environmental anddevelopmental policies, and the responsibility to ensure that activities within their jurisdiction or control do notcause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” United
Nations Framework Convention on Climate Change, entered into force on March 21, 1994
191

192

UNCLOS, art. 194.2.

Cf. Office of the United Nations High Commissioner for Human Rights, Compilation report of the Independent
Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable193

- 43 -

101. The obligations to respect and to ensure human rights require that States abstain
from preventing or hindering other States Parties from complying with the obligations
derived from the Convention194 (supra para. 94). Activities undertaken within thejurisdiction of a State Party should not deprive another State of the ability to ensure thatthe persons within its jurisdiction may enjoy and exercise their rights under the Convention.
The Court considers that States have the obligation to avoid transboundary environmental
damage that can affect the human rights of individuals outside their territory. For the
purposes of the American Convention, when transboundary damage occurs that effects
treaty-based rights, it is understood that the persons whose rights have been violated areunder the jurisdiction of the State of origin,195 if there is a causal link between the act thatoriginated in its territory and the infringement of the human rights of persons outside its
territory.
102. In cases of transboundary damage, the exercise of jurisdiction by a State of origin isbased on the understanding that it is the State in whose territory or under whose
jurisdiction the activities were carried out that has the effective control over them and is ina position to prevent them from causing transboundary harm that impacts the enjoyment of
human rights of persons outside its territory. The potential victims of the negative
consequences of such activities are under the jurisdiction of the State of origin for the
purposes of the possible responsibility of that State for failing to comply with its obligation
to prevent transboundary damage. That said, not every negative impact gives rise to this
responsibility. The limits and characteristics of this obligation are explained in greater detailin Chapter VIII of this Opinion.
103. Accordingly, it can be concluded that the obligation to prevent transboundary
environmental damage or harm is an obligation recognized by international environmental
law, under which States may be held responsible for any significant damage caused topersons outside their borders by activities originating in their territory or under theireffective control or authority. It is important to stress that this obligation does not dependon the lawful or unlawful nature of the conduct that generates the damage, because States
must provide prompt, adequate and effective redress to the persons and States that are
victims of transboundary harm resulting from activities carried out in their territory or under
their jurisdiction, even if the action which caused this damage is not prohibited byinternational law.196 That said, there must always be a causal link between the damage
caused and the act or omission of the State of origin in relation to activities in its territory or
under its jurisdiction or control.197 Chapter VIII of this Opinion will describe the content,
environment, John H. Knox, of December 2013. Individual report No. 9 on global and regional environmental
agreements. December 2013, paras. 147 and 149.
See, similarly, regarding economic, social and cultural rights: ESCR Committee, General Comment No. 15:
The right to water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), UN
Doc. E/C.12/2002/11, January 20, 2003, para. 31. The ESCR Committee has also indicated that: “[t]o comply with
their international obligations […], States parties have to respect the enjoyment of the [economic, social andcultural rights] in other countries.” ESCR Committee, General Comment No. 14: The right to the highest attainable
standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights). UN Doc.
E/C.12/2000/4, August 11, 2000, para. 39.
194

For the purposes of this Advisory Opinion “State of origin” refers to the State under whose jurisdiction orcontrol the activity that caused environmental damage originated, could originate, or was implemented.
195

Cf. Articles on Prevention of transboundary harm from hazardous activities, adopted by the International
Law Commission in 2001 and annexed to UN General Assembly Resolution 62/68 of December 6, 2007, UN Doc.
A/RES/62/68.
196

Similarly, see: International Tribunal for the Law of the Sea (ITLS), Responsibilities and obligations of States
sponsoring persons and entities with respect to activities in the area. Advisory Opinion of February 1, 2011, paras.
181 to 184, and IACHR, Franklin Guillermo Aisalla Molina (Ecuador v. Colombia), Admissibility Report No. 112/10 of197

- 44 scope, terms and characteristics of these obligations (infra paras. 123 to 242).
D. Conclusion
104. Based on the above considerations, in conformity with paragraphs 72 to 103, and in
response to the requesting State’s first question, the Court is of the opinion that:a. The States Parties to the American Convention have the obligations to respect andto ensure the rights recognized in this instrument to all persons subject to theirjurisdiction.
b. A State’s exercise of jurisdiction entails its responsibility for the actions that may be
attributed to it and that are alleged to violate the rights recognized in the American
Convention.
c. The jurisdiction of the States, in relation to the protection of human rights under theAmerican Convention, is not limited to their territorial space. The word “jurisdiction”
in the American Convention is more extensive than the territory of a State andincludes situations beyond its territorial limits. States are obliged to respect and toensure the human rights of all persons subject to their jurisdiction, even thoughsuch persons are not within their territory.
d. The exercise of jurisdiction under Article 1(1) of the American Convention outside
the territory of a State is an exceptional situation that must be examined in eachspecific case and restrictively.
e. The concept of jurisdiction under Article 1(1) of the American Convention
encompasses any situation in which a State exercises effective control or authority
over a person or persons, either within or outside its territory.
f.

States must ensure that their territory is not used in such a way as to causesignificant damage to the environment of other States or of areas beyond the limitsof their territory. Consequently, States have the obligation to avoid causingtransboundary damage or harm.

g. States are obliged to take all necessary measures to avoid activities implemented intheir territory or under their control affecting the rights of persons within or outside
their territory.
h. When transboundary harm or damage occurs, a person is under the jurisdiction of
the State of origin if there is a causal link between the action that occurred within
its territory and the negative impact on the human rights of persons outside its
territory. The exercise of jurisdiction arises when the State of origin exercises
effective control over the activities that caused the damage and the consequent
human rights violation.
VIII
DUTIES DERIVED FROM THE OBLIGATIONS TO RESPECT AND TO ENSURE THE
RIGHTS TO LIFE AND TO PERSONAL INTEGRITY IN THE CONTEXT OFENVIRONMENTAL PROTECTION
October 21, 2011, para. 99.

- 45 -

105. As explained previously, the purpose of Colombia’s second and third questions is for
the Court to determine State duties related to the obligations to respect and to ensure therights to life and to personal integrity in relation to environmental damage (supra paras. 37
and 38). To answer these questions, the Court will rule, first, on the rights to life and to
personal integrity and the relationship of these rights to environmental protection. It willthen define the specific duties of the State that arise in this context.
106. The Court notes that, in its request, Colombia consulted the Court specifically withregard to the environmental obligations of prevention, precaution, mitigation of thedamage, and cooperation (supra paras. 1 and 37). It also notes that, to ensure compliancewith these obligations, international human rights law imposes certain procedural
obligations on States in relation to environmental protection, 198 such as access to
information, public participation, and access to justice. To define the environmental
obligations derived from the obligations to respect and to ensure the rights to life and to
personal integrity in response to the questions raised by Colombia, the Court will examine
and rule on all these State obligations and duties.
107. Accordingly, the Court’s response to the issues raised by Colombia in its second andthird questions will be structured as follows: in section A, the Court will rule on the meaningand scope of the rights to life and to personal integrity, and the corresponding obligations torespect and to ensure these rights in the face of potential environmental damage, and insection B, the Court will rule on the specific environmental obligations of prevention,
precaution, cooperation and procedure derived from the general obligations to respect andto ensure the rights to life and to personal integrity under the American Convention.
A. The rights to life and to personal integrity in relation to environmental
protection
A.1 Meaning and scope of the rights to life and to personal integrity inthe face of potential environmental damage
108. The Court has affirmed repeatedly that the right to life in the American Convention isessential because the realization of the other rights depends on its protection.199
Accordingly, States are obliged to ensure the creation of the necessary conditions for the fullenjoyment and exercise of this right.200 In its consistent case law, the Court has indicatedthat compliance with the obligations imposed by Article 4 of the American Convention,
related to Article 1(1) of this instrument, not only presupposes that no person may be
deprived of his or her life arbitrarily (negative obligation) but also, in light of the obligation
to ensure the free and full exercise of human rights, it requires States to take allappropriate measures to protect and preserve the right to life (positive obligation) 201 of all
See, inter alia, Human Rights Council, Mapping report of the Independent Expert on the issue of humanrights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, ofDecember 30, 2013, UN Doc. A/HRC/25/53, para. 29, and Human Rights Council, Report of the Special Rapporteuron the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable
environment, February 1, 2016, UN Doc. A/HRC/31/52, para. 50.
198

Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits, supra, para. 144, and Caseof Ortiz Hernández et al. v. Venezuela. Merits, reparations and costs. Judgment of August 22, 2017. Series C No.
338, para. 100.
199

Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits, supra, para. 144, and Caseof Chinchilla Sandoval et al. v. Guatemala, supra, para. 166.
200

Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits, supra, para. 144, and Caseof Ortiz Hernández et al. v. Venezuela, supra, para. 100
201

- 46 persons subject to their jurisdiction.202
109. In addition, States must take the necessary measures to create an appropriate legal
framework to deter any threat to the right to life; establish an effective system of justicecapable of investigating, punishing and providing redress for any deprivation of life by Stateagents or private individuals,203 and safeguard the right of access to the conditions that
ensure a decent life,204 which includes adopting positive measure to prevent the violation ofthis right.205 Based on the foregoing, exceptional circumstances have arisen that allowed the
Court to establish and examine the violation of Article 4 of the Convention in relation toindividuals who did not die as a result of the actions that violated this instrument.206 Amongthe conditions required for a decent life, the Court has referred to access to, and the qualityof, water, food and health, and the content has been defined in the Court’s case law, 207
indicating that these conditions have a significant impact on the right to a decent existence
and the basic conditions for the exercise of other human rights. 208 The Court has also
included environmental protection as a condition for a decent life. 209
110. Among these conditions, it should be underlined that health requires certain essential
elements to ensure a healthy life;210 hence, it is directly related to access to food and
Cf. Case of Juan Humberto Sánchez v. Honduras. Preliminary objection, merits, reparations and costs.
Judgment of June 7, 2003. Series C No. 99, para. 110, and Case of Ortiz Hernández et al. v. Venezuela, supra,
para. 100.
202

Cf. Case of the Pueblo Bello Massacre. Judgment of January 31, 2006. Series C No. 140, para. 120, andCase of Cruz Sánchez et al. v. Peru. Preliminary objections, merits, reparations and costs. Judgment of April 17,
2015. Series C No. 292, para. 260.
203

Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits, supra, para. 144, and Caseof Artavia Murillo et al. (“In vitro fertilization”) v. Costa Rica, supra, para. 172.
204

Cf. Case of the Sawhoyamaxa Indigenous Community v. Paraguay, supra, para. 153, and Case of Ortiz
Hernández et al. v. Venezuela, supra, para. 110.
205

Thus, for example, in the case of the Yakye Axa Indigenous Community v. Paraguay, the Court declared that
the State was responsible for violating the right to life considering that, by failing to ensure the right to communal
property, the State had deprived the victims of the possibility of acceding to their traditional means of subsistence,as well as of the use and enjoyment of the natural resources needed to obtain clean water and for the practice oftraditional medicine to prevent and cure illnesses, in addition to failing to take the necessary positive measures toguarantee them living conditions compatible with their dignity. Cf. Case of the Yakye Axa Indigenous Community v.
Paraguay, supra, para. 158(d) and 158(e). See also, Case of the “Juvenile Re-education Institute” v. Paraguay.
Preliminary objections, merits, reparations and costs. Judgment of September 2, 2004. Series C No. 112, para.
176; Case of the La Rochela Massacre v. Colombia. Merits, reparations and costs. Judgment of May 11, 2007.
Series C No. 163, paras. 124, 125, 127 and 128; Case of the Kichwa Indigenous People of Sarayaku v. Ecuador,
supra, para. 244, and Case of Gonzales Lluy et al. v. Ecuador, supra, para. 191. Likewise, it is worth mentioningthat the European Court of Human Rights has declared the violation of the right to life with regard to individuals
who did not die as a result of the acts that violated the respective convention. In this regard, see, ECHR, Case ofAcar and Others v. Turkey, Nos. 36088/97 and 38417/97. Judgment of May 24, 2005, paras. 77 and 110, andECHR, Case of Makaratzis v. Greece [GS], No. 50385/99. Judgment of December 20, 2004, paras. 51 and 55.
206

Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, supra, para. 167, Case of the Sawhoyamaxa
Indigenous Community v. Paraguay, supra, paras. 156 to 178, and Case of the Xákmok Kásek Indigenous
Community v. Paraguay. Merits, reparations and costs. Judgment August 24, 2010. Series C No. 214, paras. 195 to
213.
207

Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, supra, para. 163, and Case of Chinchilla
Sandoval et al. v. Guatemala, supra, para. 168.
208

Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, supra, para. 163, Case of the Xákmok Kásek
Indigenous Community v. Paraguay, supra, para. 187, and Case of the Kaliña and Lokono Peoples v. Suriname,supra, para. 172.
209

These essentials include food and nutrition, housing, access to clean potable water and adequate sanitation,safe and healthy working conditions, and a healthy environment. Cf. ESCR Committee, General Comment No. 14:
The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social
and Cultural Rights). UN Doc. E/C.12/2000/4, August 11, 2000, para. 4. See also, European Committee of Social210

- 47 water.211 In this regard, the Court has indicated that health is a state of complete physical,
mental and social well-being and not merely the absence of disease or infirmity.212 Thus,
environmental pollution may affect an individual’s health.213
111. In addition, access to food and water may be affected if pollution limits theiravailability in sufficient amounts or affects their quality.214 It should be stressed that accessto water includes access “for personal and domestic use,” and this includes “consumption,
sanitation, laundry, food preparation, and personal and domestic hygiene,” and for someindividuals and groups it will also include “additional water resources based on health,climate and working conditions.”215 Access to water, food and health are obligations to berealized progressively; however, States have immediate obligations, such as ensuring theserights without discrimination and taking measures to achieve their full realization. 216
112. Regarding the right to personal integrity, the Court reiterate that the violation of anindividual’s right to physical and mental integrity has various connotations of degree andranges from torture to other types of ill-treatment or cruel, inhuman or degrading
treatment, the physical and mental effects of which vary in intensity according toendogenous and exogenous factors (such as duration of the treatment, age, sex, health,context and vulnerability) that must be examined in each specific situation. 217
113. Furthermore, in the specific case of indigenous and tribal communities, the Court has
ruled on the obligation to protect their ancestral territories owing to the relationship thatsuch lands have with their cultural identity, a fundamental human right of a collective
nature that must be respected in a multicultural, pluralist and democratic society.218
Rights, Collective complaint No. 30/2005, Marangopoulos Foundation for Human Rights v. Greece (Merits). Decisionof December 6, 2006, para. 195.
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, supra, para. 167, Case of the Sawhoyamaxa
Indigenous Community v. Paraguay, supra, paras. 156 to 178, and Case of the Xákmok Kásek Indigenous
Community v. Paraguay, supra, paras. 195 to 213.
211

Cf. Case of Artavia Murillo et al. (“In vitro fertilization”) v. Costa Rica, supra, para. 148, citing theConstitution of the World Health Organization, adopted by the International Health Conference held in New York
from June 19 to July 22, 1946, signed on July 22, 1946 by the representatives of 61 States and entered into force
on April 7, 1948.
212

In this regard, for example, the ESCR Committee has indicated that the obligation to respect the right tohealth means that States should “refrain from unlawfully polluting air, water and soil, e.g. through industrial wastefrom State-owned facilities, from using or testing nuclear, biological or chemical weapons if such testing results in
the release of substances harmful to human health.” ESCR Committee, General Comment No. 14: The right to thehighest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural
Rights). UN Doc. E/C.12/2000/4, August 11, 2000, para. 34.
213

Cf. Case of the Saramaka People v. Suriname. Preliminary objections, merits, reparations and costs, supra,
para. 126; Case of the Xákmok Kásek Indigenous Community v. Paraguay, supra, paras. 195 and 198; ESCR
Committee, General Comment No. 12: The right to adequate food (art. 11 of the International Covenant on
Economic, Social and Cultural Rights), May 12, 1999, UN Doc. E/C.12/1999/5, paras. 7 and 8, and ESCR
Committee, General Comment No. 15: The right to water (articles 11 and 12 of the International Covenant on
Economic, Social and Cultural Rights), UN Doc. E/C.12/2002/11, January 20, 2003, paras. 10 and 12.
214

ESCR Committee, General Comment No. 15: The right to water (articles 11 and 12 of the International
Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/2002/11, January 20, 2003, para. 12. Seealso, Case of the Xákmok Kásek Indigenous Community v. Paraguay, supra, para. 195.
215

Cf. ESCR Committee, General Comment No. 15: The right to water (articles 11 and 12 of the International
Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/2002/11, January 20, 2003, para. 21.
216

Cf. Case of Loayza Tamayo v. Peru. Merits. Judgment of September 17, 1997. Series C No. 33, paras. 57
and 58, and Case of Ortiz Hernández et al. v. Venezuela, supra, para. 102.
217

Mutatis mutandi, Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, supra, para. 217, and Caseof the Río Negro Massacres v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of
September 4, 2012. Series C No. 250, para. 160.
218

- 48 -

114. The Court notes that although each right contained in the Convention has its own
sphere, meaning and scope,219 there is a close relationship between the right to life and theright to personal integrity. Thus, there are times when the lack of access to conditions that
ensure a dignified life may also constitute a violation of the right to personal integrity; 220 for
example, in cases involving human health.221 Moreover, the Court has recognized thatcertain projects and interventions in the environment in which people live can constitute arisk to their life and personal integrity. 222 Therefore, the Court considers it pertinent toexamine jointly the State obligations in relation to the rights to life and to personal integritythat may be affected by environmental damage. Consequently, the Court will now establish
and reaffirm the meaning and scope of the general obligations to respect and to ensure therights to life and to personal integrity (infra paras. 115 to 121) and will then establish thespecific environmental obligations derived from this general obligation (infra paras. 123 to242), as solicited by Colombia in its request for an advisory opinion.
A.2. Obligations to respect and to ensure the rights to life and to
personal integrity in the face of potential environmental damage
115. This Court has maintained that, in application of Article 1(1) of the American
Convention, States have the obligation erga omnes to respect and guarantee protection
standards and to ensure the effectiveness of human rights. 223 In this regard, the Court
recalls that the general obligations to respect and to ensure rights established in Article 1(1)of the Convention give rise to special duties that can be determined based on the particularneeds for protection of the subject of law, due to either their personal conditions or specificsituation.224
116. The Court will now set out the general meaning and scope of the obligations torespect and to ensure the rights to life and to personal integrity in relation to the negative
impact of environmental damage. These obligations must be interpreted taking into accountthe environmental obligations and principles set out in section B below (infra paras. 123 to
242).
117. The Court has asserted that the first obligation assumed by States Parties under
Article 1(1) of the Convention is to “respect the rights and freedoms” recognized in thistreaty. Thus, when protecting human rights, this obligation of respect necessarily includes
the notion of a restriction on the exercise of the State’s powers.225 Therefore States must
Cf. Case of Manuel Cepeda Vargas v. Colombia. Preliminary objections, merits, reparations and costs.
Judgment of May 26, 2010. Series C No. 213, para. 171, and Case of Mohamed v. Argentina. Preliminary objection,
merits, reparations and costs. Judgment of November 23, 2012. Series C No. 255, para. 119.
219

Mutatis mutandi, Case of the "Juvenile Re-education Institute" v. Paraguay, supra, para. 170, and Case ofChinchilla Sandoval v. Guatemala, supra, paras. 168 and 169.
220

Cf. Case of Albán Cornejo et al. v. Ecuador. Merits, reparations and costs. Judgment of November 22, 2007.
Series C No. 171, para. 117, and Case of Chinchilla Sandoval v. Guatemala, supra, para. 170.
221

Cf. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, supra, para. 249, and Case of the Kaliña
and Lokono Peoples v. Suriname, supra, para. 222.
222

Cf. Case of the “Mapiripán Massacre” v. Colombia. Judgment of September 15, 2005. Series C No. 134,
para. 111, and Case of Gonzales Lluy et al. v. Ecuador, supra, para. 168.
223

224

206

Cf. Case of the Pueblo Bello Massacre v. Colombia, supra, para. 111, and Case of I.V. v. Bolivia, supra, para.

Cf. The Word “Laws” in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86
of May 9, 1986. Series A No. 6, para. 21, and Case of the Massacres of El Mozote and neighboring places v. El
Salvador. Merits, reparations and costs. Judgment of October 25, 2012. Series C No. 252, para. 143.
225

- 49 refrain from: (i) any practice or activity that denies or restricts access, in equal conditions,to the requisites of a dignified life, such as adequate food and water, and (ii) unlawfully
polluting the environment in a way that has a negative impact on the conditions that permit
a dignified life for the individual; for example, by dumping waste from State-owned facilities
in ways that affect access to or the quality of potable water and/or sources of food. 226
118. The second obligation, the obligation to ensure rights, means that States must takeall appropriate steps to protect and preserve the rights to life and to integrity.227 In thisregard, the obligation to ensure rights is projected beyond the relationship between Stateagents and the persons subject to the State’s jurisdiction, and encompasses the duty toprevent third parties from violating the protected rights in the private sphere. 228 This duty of
prevention includes all those measures of a legal, political, administrative and cultural
nature that promote the safeguard of human rights and ensure that eventual violations of
those rights are examined and dealt with as wrongful acts that, as such, are susceptible toresult in punishment for those who commit them, together with the obligation tocompensate the victims for the negative consequences.229 Furthermore, it is plain that the
obligation to prevent is an obligation of means or behavior and non-compliance is notproved by the mere fact that a right has been violated. 230
119. The Court has indicated that a State cannot be held responsible for every humanrights violation committed by individuals within its jurisdiction. The erga omnes nature of
the treaty-based obligation for States to ensure rights does not entail unlimited State
responsibility in the case of every act or deed of a private individual because, even thoughan act, omission or deed of a private individual has the legal consequence of violating
certain human rights of another private individual, this cannot automatically be attributed to
the State; rather, the particular circumstances of the case must be examined and whether
the obligation to ensure those rights has been met.231 In the context of environmental
protection, the State’s international responsibility derived from the conduct of third parties
may result from a failure to regulate, supervise or monitor the activities of those third
parties that caused environmental damage. These obligations are explained in detail in thefollowing section (infra paras. 146 to 170).
120. In addition, bearing in mind the difficulties involved in the planning and adoption of
public policies, and the operational choices that must be made based on priorities andresources, the State’s positive obligations must be interpreted in a way that does not
impose an impossible or disproportionate burden on the authorities. For this positive
Cf. ESCR Committee, General Comment No. 15: The right to water (articles 11 and 12 of the International
Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/2002/11, January 20, 2003, paras. 17 to 19,
and ESCR Committee, General Comment No. 14: The right to the highest attainable standard of health (article 12of the International Covenant on Economic, Social and Cultural Rights). UN Doc. E/C.12/2000/4, August 11, 2000,
para. 34.
226

Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits, supra, para. 144, and Caseof Luna López v. Honduras. Merits, reparations and costs. Judgment of October 10, 2013. Series C No. 269, para.
118.
227

Cf. Case of the “Mapiripán Massacre” v. Colombia, supra, para. 111, and Case of Gonzales Lluy et al. v.
Ecuador, supra, para. 170.
228

Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra, para. 175; Case of González et al. (“Cotton
Field”) v. Mexico, supra, para. 252, and Case of the Kaliña and Lokono Peoples v. Suriname, supra, paras. 221 and
222.
229

Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra, para. 166, and Case of I.V. v. Bolivia, supra,
para. 208.
230

Cf. Case of the “Mapiripán Massacre” v. Colombia, supra, para. 123, and Case of Gonzales Lluy et al. v.
Ecuador, supra, para. 170.
231

- 50 obligation to arise, it must be established that: (i) at the time of the facts the authorities
knew or should have known of the existence of a situation of real and imminent danger forthe life of a specific individual or group of individuals and failed to take the necessary
measures within their area of responsibility that could reasonably be expected to prevent or
to avoid that danger, and (ii) that there was a causal link between the impact on life andintegrity and the significant damage caused to the environment.
121. In addition, the obligation to ensure rights also means that States must take positive
measures to permit as well as to help private individuals exercise their rights. Thus, States
must take steps to disseminate information on the use and protection of water and sourcesof adequate food (infra paras. 213 to 225).232 Also, in specific cases of individuals or groups
of individuals who are unable to access water and adequate food by themselves for reasons
beyond their control, States must guarantee the essential minimum of food and water.233 If
a State does not have the resources to comply with this obligation, it must “demonstratethat every effort has been made to use all resources at its disposal in an effort to satisfy, asa matter of priority, those minimum obligations.”234
122. Having established the meaning and scope of the rights to life and to personal
integrity in relation to environmental protection, the Court will now examine and determine
the specific environmental obligations of States derived from the general obligations torespect and to ensure those rights.
B. State obligations in the face of potential environmental damage in orderto respect and to ensure the rights to life and to personal integrity
123. States are bound to comply with their obligations under the American Convention
with due diligence. The general concept of due diligence in international law is typicallyassociated with the possible responsibility of a State in relation to obligations with respect toits conduct or behavior, as opposed to obligations requiring results that entail theachievement of a specific objective. 235 The duty of a State to act with due diligence is aconcept whose meaning has been determined by international law and has been used indiverse fields, including international humanitarian law,236 the law of the sea,237 andinternational environmental law.238 In international human rights law, the duty to act with
Cf. ESCR Committee, General Comment No. 15: The right to water (articles 11 and 12 of the International
Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/2002/11, January 20, 2003, para. 25, and
ESCR Committee, General Comment No. 12: The right to adequate food (art. 11 of the International Covenant on
Economic, Social and Cultural Rights), May 12, 1999, UN Doc. E/C.12/1999/5, para. 6.
232

Cf. ESCR Committee, General Comment No. 12: The right to adequate food (art. 11 of the International
Covenant on Economic, Social and Cultural Rights), May 12, 1999, UN Doc. E/C.12/1999/5, para. 17.
233

ESCR Committee, General Comment No. 12: The right to adequate food (art. 11 of the International
Covenant on Economic, Social and Cultural Rights), May 12, 1999, UN Doc. E/C.12/1999/5, para. 17.
234

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.
197. See also, International Law Commission, Commentaries on the draft Articles on prevention of transboundary
harm from hazardous activities, Yearbook of the International Law Commission 2001, vol. II, Part Two (A/56/10),
art. 3, para. 8.
235

Cf. Article 1 common to the 1949 Geneva Conventions, and ICJ, Application of the Convention on thePrevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment of February 26, 2007, para. 430.
236

Cf. ITLOS, Request for an advisory opinion submitted by the Subregional Fisheries Commission (SRFC).
Advisory Opinion of April 22015, paras. 128 and 129, and ITLOS, Responsibilities and obligations of States
sponsoring persons and entities with respect to activities in the Area. Advisory Opinion of February 1, 2011, paras.
110 to 120.
237

See, inter alia, Stockholm Declaration, adopted on June 16, 1972, Principle 7; ICJ, Certain activities carriedout by Nicaragua in the border area (Costa Rica v. Nicaragua) and Construction of a road in Costa Rica along the238

- 51 due diligence has been examined in relation to economic, social and cultural rights,
regarding which States commit to take “all appropriate measures” to achieve, progressively,
the full effectiveness of the corresponding rights. 239 In addition, as this Court hasemphasized, the duty to act with due diligence also corresponds, in general, to the Stateobligation to ensure the free and full exercise of the rights recognized in the American
Convention to all persons subject to their jurisdiction, according to which States must takeall appropriate measures to protect and preserve the rights recognized in the Convention,and to organize all the structures through which public authority is exercised so that they
are able to ensure, legally, the free and full exercise of human rights240 (supra para. 118).
124. Most environmental obligations are based on this duty of due diligence. The Court
reiterates that an adequate protection of the environment is essential for human well-being,
and also for the enjoyment of numerous human rights, particularly the rights to life,
personal integrity and health, as well as the right to a healthy environment itself (supraparas. 47 to 69).
125. To comply with the obligations to respect and ensure the rights to life and personal
integrity, in the context of environmental protection, States must fulfill a series ofobligations with regard to both damage that has occurred within their territory andtransboundary damage. In this section, the Court will examine: (1) the obligation of
prevention; (2) the precautionary principle; (3) the obligation of cooperation, and (4) theprocedural obligations relating to environmental protection in order to establish anddetermine the State obligations derived from the systematic interpretation of theseprovisions together with the obligations to respect and to ensure the rights to life andpersonal integrity established in the American Convention. The purpose of this analysis is to
respond to Colombia’s second and third questions concerning the specific environmental
obligations that arise from respecting and ensuring the rights to life and to personal
integrity under the American Convention. Even though compliance with these obligations
may also be necessary to ensure other rights in cases of the possible negative impact ofenvironmental harm, in this section the Court will refer, in particular, to these obligations inrelation to protection of the rights to life and to personal integrity, since these are the rightsthat Colombia indicated in its request for an advisory opinion (supra paras. 37, 38 and 64 to
69).
126. The Court notes that international environmental law contains numerous specificobligations, for example, those that refer to the type of damage, such as conventions,agreements and protocols on oil spills, on the management of toxic substances, on climatechange, and on greenhouse gases;241 on the activity being regulated, such as conventions
and agreements on inland waterway and maritime transportation;242 or on the aspect or
San Juan River (Nicaragua v. Costa Rica). Judgment of December 16, 2015, para. 104. See also, ICJ, Case of Pulp
Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para. 101.
Cf. ESCR Committee, General Comment No. 3: The nature of States Parties’ obligations (art. 2, para. 1, of
the Covenant) UN Doc. E/1991/23, December 14, 1990, paras. 2 and 3, and ESCR Committee, General Comment
No. 15: The right to water (articles 11 and 12 of the International Covenant on Economic, Social and Cultural
Rights), UN Doc. E/C.12/2002/11, January 20, 2003, paras. 40 to 44.
239

See, inter alia, Case of Velásquez Rodríguez v. Honduras. Merits, supra, para. 166; Case of Gonzales Lluy et
al. v. Ecuador, supra, para. 168, and Case of Ortiz Hernández et al. v. Venezuela, supra, paras. 100 and 101.
240

See, inter alia, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes andTheir Disposal, entered into force on May 5, 1992, article 4; International Convention relating to Intervention on
the High Seas in cases of Oil Pollution Casualties, entered into force on May 6, 1975, article 1; United Nations
Framework Convention on Climate Change, entered into force on March 21, 1994, article 3, and Vienna Convention
for Protection of the Ozone Layer, entered into force on September 22, 1988, article 2.
241

242

See, inter alia, International Convention for the Prevention of Pollution from Ships (MARPOL), entered into

- 52 element of the environment being protected, such as treaties and conventions on maritime
law, biodiversity, and the protection of ecosystems or conservation of certain species. 243
There are also treaties that seek to ensure a reinforced protection in specific geographicalareas,244 such as the Cartagena Convention referred to by Colombia in its request, owing towhich the obligations established in this Opinion must be complied with more rigorously.
However, it is not the intention of this Advisory Opinion to describe exhaustively or in great
detail all the specific obligations that States have under said provisions. The Court will now
describe the general environmental obligations that States must fulfill in order to respectand ensure human rights under the American Convention. These are general obligations
because States must comply with them whatever the activity, geographical area orcomponent of the environment that is affected. Nevertheless, nothing in this Opinion should
be understood to prejudice the more specific obligations that States may have assumed forthe protection of the environment.
B.1 Obligation of prevention
127. The obligation to ensure the rights recognized in the American Convention entails theduty of States to prevent violations of these rights (supra para. 118). As previously
mentioned, this obligation of prevention encompasses all the diverse measures that
promote the safeguard of human rights and ensure that eventual violations of these rights
are taken into account and may result in sanctions as well as compensation for their
negative consequences (supra para. 118).
128. Under environmental law, the principle of prevention has meant that States have the“responsibility to ensure that activities within their jurisdiction or control do not cause
damage to the environment of other States or of areas beyond the limits of national
jurisdiction.”245 This principle was explicitly established in the Stockholm and Rio
Declarations on the environment and is linked to the international obligation to exercise due
diligence so as not to cause or permit damage to other States 246 (supra paras. 95 to 103).
129. The principle of prevention of environmental damage forms part of internationalcustomary law.247 This protection encompasses not only the land, water and atmosphere,
force on October 2, 1983, article 1.
See, inter alia, UNCLOS, article 194; Convention on Biodiversity, entered into force on December 29, 1993,
article 1; Convention on Wetlands of International Importance especially as Waterfowl Habitat (RAMSAR
Convention), entered into force on December 21, 1975, article 3; Agreement for the Implementation of theProvisions of the United Nations Convention on the Law of the Sea of December 10, 1982, relating to theConservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, entered into force on
December 11, 2001, article 2.
243

See, inter alia, Convention for the Protection and Development of the Marine Environment in the Wider
Caribbean Region (Cartagena Convention), entered into force on October 11, 1986, art. 4, and Convention for theProtection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention), enteredinto force on February 12, 1978, article 4.
244

Rio Declaration on Environment and Development, United Nations Conference on Environment andDevelopment, Río de Janeiro, June 3 to 14 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Principle 2, andStockholm Declaration on the Human Environment, United Nations Conference on the Human Environment,
Stockholm, June 5 to 16, 1972, UN Doc. A/CONF.48/14/Rev.1, Principle 21.
245

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.
101. See also, Court of Arbitration, Trail Smelter Case (United States v. Canada). Decision of April 16, 1938, andMarch 11, 1941, p. 1965, and ICJ, Corfu Channel case (The United Kingdom v. Albania). Judgment of April 9, 1949,
p. 22.
246

The customary nature of the principle of prevention has been recognized by the International Court ofJustice. Cf. ICJ, Legality of the threat or use of nuclear weapons, Advisory opinion, July 8, 1996, para. 29; ICJ,
Case concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia). Judgment of September 25, 1997, para.
247

- 53 but also includes flora and fauna.248 Specifically, in relation to State obligations with regard
to the sea, the United Nations Convention on the Law of the Sea establishes that “States
have the obligation to protect and preserve the marine environment,” 249 and imposes a
specific obligation “to prevent, reduce and control pollution of the marine environment.”250
The Cartagena Convention that Colombia mentions in its request also establishes thisobligation.251
130. Bearing in mind that, frequently, it is not possible to restore the situation thatexisted before environmental damage occurred, prevention should be the main policy as

140; ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of April 20, 2010, para. 101;and ICJ, Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) and Constructionof a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Judgment of December 16, 2015, para.
104. The International Tribunal for the Law of the Sea (ITLOS) and the Permanent Court of Arbitration (PCA) havealso indicated this. Cf. ITLOS, Dispute concerning delimitation of the maritime boundary between Ghana and Coted’Ivoire in the Atlantic Ocean (Ghana v. Cote d’Ivoire). Case No. 23, Order for provisional measures of April 25,
2015, para. 71; PCA, Iron Rhine Arbitration (Belgium v. The Netherlands). Award of May 24, 2005, para. 222; PCA,
Kishanganga River Hydroelectric Power Plant Arbitration (Pakistan v. India). Partial award of February 18, 2013,
paras. 448 to 450 and Final award of December 20, 2013, para. 112, and PCA, South China Sea Arbitration)(Philippines v. China). Award of July 12, 2016, para. 941.
248

262.

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.

UNCLOS, art. 192. The following OAS Member States have ratified the United Nations Convention on the Lawof the Sea: Ecuador (September 24, 2012), Dominican Republic (July 10, 2009), Canada (November 7, 2003),
Nicaragua (May 3, 2000), Suriname (July 9, 1998), Chile (August 25, 1997), Guatemala (February 11, 1997), Haiti(July 31, 1996), Panama (July 1, 1996), Argentina (December 1, 1995), Bolivia (April 28, 1995), Guyana(November 16, 1993), Barbados (October 12, 1993), Honduras (October 5, 1993), Saint Vincent and the
Grenadines (October 1, 1993), Saint Kitts and Nevis (January 7, 1993), Uruguay (December 10, 1992), Costa Rica
(September 21, 1992), Dominica (October 24, 1991), Grenada (April 25, 1991), Antigua and Barbuda (February 2,1989), Brazil (December 22, 1988), Paraguay (September 26, 1986), Trinidad and Tobago (April 25, 1986), Saint
Lucia (March 27, 1985), Cuba (August 15, 1984), Belize (August 25, 1983), Bahamas (July 29, 1983), Jamaica(March 21, 1983) and Mexico (March 18, 1983). The following OAS Member States have not ratified the United
Nations Convention on the Law of the Sea: Colombia, El Salvador, Peru, United States of America and Venezuela.
249

In particular, article 194 of the Convention establishes that: “1. States shall take, individually or jointly as
appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control
pollution of the marine environment from any source, using for this purpose the best practicable means at theirdisposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in thisconnection. 2. States shall take all measures necessary to ensure that activities under their jurisdiction or control
are so conducted as not to cause damage by pollution to other States and their environment, and that pollution
arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they
exercise sovereign rights in accordance with this Convention. 3. The measures taken pursuant to this Part shalldeal with all sources of pollution of the marine environment. These measures shall include, inter alia, those
designed to minimize to the fullest possible extent: (a) the release of toxic, harmful or noxious substances,
especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping;(b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring
the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design,
construction, equipment, operation and manning of vessels; (c) pollution from installations and devices used in
exploration or exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing
accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design,
construction, equipment, operation and manning of such installations or devices; (d) pollution from otherinstallations and devices operating in the marine environment, in particular measures for preventing accidents anddealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction,equipment, operation and manning of such installations or devices. 4. In taking measures to prevent, reduce orcontrol pollution of the marine environment, States shall refrain from unjustifiable interference with activities
carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with thisConvention. 5. The measures taken in accordance with this Part shall include those necessary to protect andpreserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and otherforms of marine life.” UNCLOS, art. 194.
250

Cf. Convention for the Protection and Development of the Marine Environment in the Wider Caribbean
Region (Cartagena Convention), entered into force on October 11, 1986, arts. 4 to 9.
251

- 54 regards environmental protection.252 The Court will now examine: (1) the sphere ofapplication of the principle of prevention; (2) the type of damage that must be prevented,
and (3) the measures States must take to comply with this obligation.
B.1.a Sphere of application of the obligation of prevention
131. Under environmental law, the principle of prevention is applicable with regard toactivities which take place in a State’s territory, or in any area under its jurisdiction, thatcause damage to the environment of another State, 253 or in relation to damage that may
occur in areas that are not part of the territory of any specific State, 254 such as on the highseas.255132. Regarding maritime waters, the United Nations Convention on the Law of the Sea
establishes a general obligation “to protect and preserve the marine environment,” without
limiting its sphere of application.256 In this regard, the Permanent Court of Arbitration has
indicated that this provision should be interpreted as a duty to protect and preserve themarine environment applicable both within and outside national jurisdictions.257
133. The American Convention obliges States to take actions to prevent eventual humanrights violations (supra para. 118). In this regard, although the principle of prevention in
relation to the environment was established within the framework of inter-State relations,the obligations that it imposes are similar to the general duty to prevent human rights
violations. Therefore, the Court reiterates that the obligation of prevention applies todamage that may occur within or outside the territory of the State of origin (supra para.
103).
B.1.b Type of damage to be prevented
134. The wording of the obligation of prevention established in the Stockholm and Rio
Declarations does not describe the type of environmental damage that should be prevented.
However, many treaties that include an obligation to prevent environmental damage do
condition this obligation to a certain degree of severity of the harm that could be caused.
Thus, for example, the Convention on the Law of the Non-Navigational Uses of International
Watercourses,258 the Vienna Convention for Protection of the Ozone Layer, 259 the United

Cf. ICJ, Case concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia). Judgment of September
25, 1997, para. 140, and International Law Commission, Commentaries on the draft Articles on prevention oftransboundary harm from hazardous activities, Yearbook of the International Law Commission 2001, vol. II, Part
Two (A/56/10), General Commentaries, paras. 1 to 5.
252

253

101.

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.

254

Cf. ICJ, Legality of the threat or use of nuclear weapons. Advisory Opinion of July 8, 1996, para. 29.

255

Cf. UNCLOS, arts. 116 to 118 and 192.

256

Cf. UNCLOS, art. 192.

257

Cf. PCA, South China Sea Arbitration (Philippines v. China), Award of July 12, 2016, para. 940.

Cf. Convention on the Law of the Non-Navigational Uses of International Watercourses entered into force on
August 17, 2014, art. 7.
258This Convention refers to the obligation to prevent “adverse effects.” In this regard, it indicates that“‘adverse effects’ means changes in the physical environment or biota, including changes in climate, which havesignificant deleterious effects on human health or on the composition, resilience and productivity of nature andmanaged ecosystems, or on material useful to mankind. Vienna Convention for Protection of the Ozone Layer
entered into force on September 22, 1988, arts. 1.2 and 2 (underlining added).
259

- 55 Nations Framework Convention on Climate Change,260 and the Protocol to the Antarctic
Treaty on Environmental Protection 261 establish the obligation to prevent significant
damage. Similarly, the Convention on Biological Diversity indicates an obligation to prevent“significant adverse effects on biological diversity.”262 In Europe, the Convention on
Environmental Impact Assessment in a Transboundary Context establishes as a standard
the prevention of “significant adverse transboundary environmental impact,” 263 and theConvention on the Protection and Use of Transboundary Watercourses and International
Lakes establishes the obligation to prevent “any significant adverse effect.”264
135. The International Court of Justice has indicated that the obligation of prevention
arises when there is risk of “significant damage.”265 According to this Court, the significant
nature of a risk may be determined based on the nature and size of the project and thecontext in which it is implemented.266
136. Similarly, the International Law Commission’s draft articles on prevention oftransboundary harm from hazardous activities only refer to those activities that may involve
significant transboundary harm.267 Thus, the ILC indicated that “the term
‘significant’ was not without ambiguity and a determination ha[d] to be made in eachspecific case. […] It [should] be understood that ‘significant’ is something more than‘detectable’ but need not be at the level of ‘serious’ or ‘substantial.’ The harm must lead to areal detrimental effect on matters such as, for example, human health, industry, property,
environment or agriculture in other States. Such detrimental effects must be susceptible ofbeing measured by factual and objective standards” [italics in original]. 268 In addition, theInternational Law Commission indicated that a State of origin is not responsible forpreventing risks that are not foreseeable. However, it also noted that States have thecontinuing obligation to identify activities which involve significant risk. 269
This Convention establishes the obligation “to anticipate, prevent or minimize the causes of climate change
and to mitigate its adverse effects.” To this end, it defines “adverse effects” as “changes in the physicalenvironment or biota resulting from climate change which have significant deleterious effects on the composition,
resilience or productivity of natural and managed ecosystems or on the operation of socio-economic systems or onhuman health and welfare. United Nations Framework Convention on Climate Change entered into force on March
21, 1994, arts. 1 and 3 (underlining added)
260

Cf. Protocol to the Antarctic Treaty on Environmental Protection (Madrid Protocol), entered into force on
January 14, 1998, art. 3.2.b.
261

262

Convention on Biological Diversity entered into force on December 29, 1993, art. 14(1)(a).

Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention), enteredinto force on September 10, 1997, art. 2.1.
263

Convention on the Protection and Use of Transboundary Watercourses and International Lakes of the
Economic Commission for Europe (ECE), entered into force on October 6, 1996, arts. 1.2 and 2.1.
264

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.
101, and ICJ, Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) andConstruction of a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Judgment of December
16, 2015, para. 153. See also, PCA, Kishanganga River Hydroelectric Power Plant Arbitration (Pakistan v. India).
Partial award of February 18, 2013, para. 451 and Final award of December 20, 2013, para. 112.
265

Cf. ICJ, Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) andConstruction of a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Judgment of December
16, 2015, para. 155.
266

Cf. Articles on prevention of transboundary harm from hazardous activities, prepared by the International
Law Commission and annexed to United Nations General Assembly Resolution 62/68 of December 6, 2007, UN Doc.
A/RES/62/68, art. 1.
267

Cf. International Law Commission, Commentaries on the draft articles on prevention of transboundary harmfrom hazardous activities, Yearbook of the International Law Commission 2001, vol. II, Part II (A/56/10), art. 2,
para. 4.
268

269

Cf. International Law Commission, Commentaries on the draft articles on prevention of transboundary harm- 56 -

137. Accordingly, there is consensus in international environmental provisions that the
obligation of prevention requires that the harm or damage attain a certain level.
138. At the same time, in the context of human rights, the Inter-American Court has
indicated that the American Convention cannot be interpreted in a way that prevents a
State from issuing any type of concession for the exploration for natural resources or their
extraction.270 In this regard, it has indicated that the acceptable level of impact, revealed byenvironmental impact assessments, that would allow a State to grant a concession in
indigenous territory may differ in each case, without it ever being permissible to negate theability of members of indigenous and tribal peoples to ensure their own survival.271
139. The European Court of Human Rights, when examining cases of alleged interferencein private life caused by pollution, has indicated that the European Convention is not
violated every time that environmental degradation occurs, insofar as the European
Convention does not include a right to a healthy environment 272 (supra para. 65).
Consequently, the adverse effects of the environmental pollution must attain a certain
minimum level if they are to be considered a violation of the European Convention. 273 “Theassessment of that minimum level is relative and depends on the circumstances of the case,such as the intensity and duration of the nuisance and its physical and mental effects. The
general context of the environment must also be taken into account.” In other words, “if the
detriment complained of was negligible in comparison to the environmental hazards
inherent to life in every modern city,” the effects would be insignificant.274 Thus, theEuropean Court has examined the impact of the environmental harm on the individual,
rather than the risk that exists for the environment or the level of environmental
degradation.
140. Based on the above, the Court concludes that States must take measures to prevent
significant harm or damage to the environment, within or outside their territory. In the
Court’s opinion, any harm to the environment that may involve a violation of the rights tolife and to personal integrity, in accordance with the meaning and scope of those rights aspreviously defined (supra paras. 108 to 114) must be considered significant harm. The
existence of significant harm in these terms is something that must be determined in eachspecific case, based on the particular circumstances.
B.1.c Measures States must take to comply with the obligation of prevention
141.

The Court has indicated that there are certain activities that involve significant risks

from hazardous activities, Yearbook of the International Law Commission 2001, vol. II, Part II (A/56/10), art. 3,
para. 5.
Cf. Case of the Saramaka People v. Suriname. Preliminary objections, merits, reparations and costs, supra,
para. 126
270

Cf. Case of the Saramaka People v. Suriname. Interpretation of the judgment on preliminary objections,merits, reparations and costs. Judgment of August 12, 2008. Series C No. 185, para. 42, and Case of the Kaliña
and Lokono Peoples v. Suriname, supra, para. 214.
271

Cf. ECHR, Case of Fadeyeva v. Russia, No. 55723/00. Judgment of June 9, 2005, para. 68, and ECHR, Caseof Dubetska and Others v. Ukraine, No. 30499/03. Judgment of February 10, 2011, para. 105.
272

Cf. ECHR, Case of Fadeyeva v. Russia, No. 55723/00. Judgment of June 9, 2005, para. 69; ECHR, Case ofLeon and Agnieszka Kania v. Poland, No. 12605/03. Judgment of July 21, 2009, para. 100, and, mutatis mutandi,
ECHR, Case of Hatton and Others v. The United Kingdom, No. 36022/97. Judgment of July 8, 2003, para. 118.
273

Cf. ECHR, Case of Fadeyeva v. Russia, No. 55723/00. Judgment of June 9, 2005, para. 69, and ECHR, Caseof Dubetska and Others v. Ukraine, No. 30499/03. Judgment of February 10, 2011, para. 105.
274

- 57 to the health of the individual and, therefore, States have the specific obligation to regulatethem, including the introduction of monitoring and oversight mechanisms.275 The African
Commission has indicated this also in relation to threats to the environment. 276
142. Likewise, based on the obligation of prevention in environmental law, States arebound to use all the means at their disposal to avoid activities under their jurisdiction
causing significant harm to the environment 277 (supra paras. 127 to 140). This obligationmust be fulfilled in keeping with the standard of due diligence, which must be appropriate
and proportionate to the level of risk of environmental harm. 278 In this way, the measuresthat a State must take to conserve fragile ecosystems will be greater and different fromthose it must take to deal with the risk of environmental damage to other components ofthe environment.279 Moreover, the measures to meet this standard may change over time,for example, in light of new scientific or technological knowledge. 280 However, the existenceof this obligation does not depend on the level of development; in other words, theobligation of prevention applies equally to both developed and developing States.281
143. The Court has stressed that the general obligation to prevent human rights violations
is an obligation of means or behavior rather than of results, so that non-compliance is notproved by the mere fact that a right may have been violated (supra paras. 118 to 121).
Similarly, the obligation of prevention established in environmental law is an obligation ofmeans and not of results.282
144. It is not possible to enumerate all the measures that could be adopted to comply
with the obligation of prevention, because they will vary according to the right in question
and according to conditions in each State party.283 However, certain minimum measures
can be defined that States must take within their general obligation to take appropriate
measures to prevent human rights violations as a result of damage to the environment.
See, inter alia, Case of Ximenes Lopes v. Brazil. Merits, reparations and costs. Judgment of July 4, 2006.
Series C No. 149, paras. 89 and 90; Case of Gonzales Lluy et al. v. Ecuador, supra, paras. 178 and 183, and Caseof I.V. v. Bolivia, supra, paras. 154 and 208.
275

Cf. African Commission on Human and Peoples’ Rights, Social and Economic Rights Center (SERAC) andCenter for Economic and Social Rights (CESR) v. Nigeria. Communication 155/96. Decision of October 27, 2001,
para. 53.
276

277

101

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.

Cf. ITLOS, Responsibilities and obligations of States sponsoring persons and entities with respect to activities
in the Area. Advisory Opinion of February 1, 2011, para. 117, and International Law Commission, Commentaries on
the draft articles on prevention of transboundary harm from hazardous activities, Yearbook of the International Law
Commission 2001, vol. II, Part Two (A/56/10), art. 3, para. 11.
278

Fragile ecosystems are important systems, with unique features and resources that generally extend beyond
national borders. They include deserts, semi-arid lands, mountains, wetlands, small islands and certain coastal
areas. Cf. Chapters 12 and 13 of Agenda 21 on managing fragile ecosystems: combating desertification anddrought, and sustainable mountain development. Agenda 21 adopted at the United Nations Conference on
Environment and Development, Río de Janeiro, June 14, 1992, UN Doc. A/Conf.151/26 (Vol. II), para. 12.1.
279

Cf. ITLOS, Responsibilities and obligations of States sponsoring persons and entities with respect to activities
in the Area. Advisory Opinion of February 1, 2011, para. 117.
280

Cf. ITLOS, Responsibilities and obligations of States sponsoring persons and entities with respect to activities
in the Area. Advisory Opinion of February 1, 2011, para. 158.
281

Cf. ITLOS, Responsibilities and obligations of States sponsoring persons and entities with respect to activities
in the Area. Advisory Opinion of February 1, 2011, para. 110, and ITLOS, Request for an advisory opinion
submitted by the Subregional Fisheries Commission (SRFC). Advisory Opinion of April 2, 2015, para. 129.
282

Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra, para. 175, and Case of the "Five Pensioners" v.
Peru. Merits, reparations and costs. Judgment of February 28, 2003. Series C No. 98, para. 126283

- 58 -

145. The specific measures States must take include the obligations to: (i) regulate; (ii)supervise and monitor; (iii) require and approve environmental impact assessments; (iv)establish contingency plans, and (v) mitigate, when environmental damage has occurred.
i)Duty to regulate

146. Article 2 of the American Convention obliges States Parties to adopt, in accordancewith their constitutional processes and the provisions of this instrument, such legislative orother measures as may be necessary to give effect to the rights or freedoms protected
therein.284 In this regard, the State obligation to adapt domestic laws to the provisions of theConvention is not limited to the constitutional or legislative text, but must extend to all legal
provisions of a regulatory nature and result in effective practical implementation.285
147. Given the relationship between protection of the environment and human rights(supra paras. 47 to 55), all States must regulate this matter and take other similar
measures to prevent significant damage to the environment. This obligation has been
expressly included in international instruments on environmental protection, without making
a distinction between damage caused within or outside the territory of the State of origin. 286
The Convention on the Law of the Sea establishes the obligation to adopt laws andregulations to prevent, reduce and control pollution of the marine environment from landbased sources,287 from seabed activities subject to national jurisdiction, 288 from dumping289
and from or through the atmosphere, 290 among other matters.291 Likewise, the Cartagena
Convention, referred to by Colombia in its request, establishes that “the Contracting Parties
undertake to develop technical and other guidelines to assist in the planning of their major
development projects in such a way as to prevent or minimize harmful impacts on theConvention area.”292 Other treaties of this nature contain similar provisions.293
Cf. Case of Albán Cornejo et al. v. Ecuador, supra, para. 118, and Case of Valencia Hinojosa et al. v. Ecuador.
Preliminary objections, merits, reparations and costs. Judgment of November 29, 2016. Series C No. 327, para. 118.
284

Cf. Case of Vélez Loor v. Panama. Preliminary objections, merits, reparations and costs. Judgment ofNovember 23, 2010. Series C No. 218, para. 286, and Advisory Opinion OC-21/14, supra, para. 65
285

In this regard, Principle 11 of the Rio Declaration on Environment and Development establishes that: “Statesshall enact effective environmental legislation. Environmental standards, management objectives and priorities
should reflect the environmental and developmental context to which they apply. Standards applied by somecountries may be inappropriate and of unwarranted economic and social cost to other countries, in particulardeveloping countries.” Rio Declaration on Environment and Development, United Nations Conference on
Environment and Development, Río de Janeiro, June 3 to 14 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1),
Principle 11. See also, Stockholm Declaration on the Human Environment, United Nations Conference on the
Human Environment, Stockholm, June 5 to 16, 1972, UN Doc. A/CONF.48/14/Rev.1, paras. 5 and 7 of the preamble
and Principle 23.
286

287

Cf. UNCLOS, art. 207.

288

Cf. UNCLOS, art. 208.

289

Cf. UNCLOS, art. 210.

290

Cf. UNCLOS, art. 212.

291

Cf. UNCLOS, art. 209 (Pollution from activities in the Area), and art. 211 (Pollution from vessels).

Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region(Cartagena Convention), entered into force on October 11, 1986, art. 12.1.
292

See, inter alia, Convention for the Protection, Management and Development of the Marine and Coastal
Environment of the Western Indian Ocean (Nairobi Convention, entered into force on May 30, 1996, art. 14(1);Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West
and Central African Region (Abidjan Convention), entered into force on August 5, 1984, art. 4; Framework
Convention for the Protection of the Marine Environment of the Caspian Sea (Tehran Convention), entered into
force on August 12, 2006, arts. 15, 18 and 19.4; Agreement on the Conservation of Cetaceans of the Black Sea,
Mediterranean Sea and contiguous Atlantic area (ACCOBAMS), entered into force on June 1, 2001, art. II.3;
293

- 59 -

148. The European Court of Human Rights has indicated that States must regulate
dangerous activities taking into account “the level of the potential risk to human lives.”294 In
this regard, States “must govern the licensing, setting up, operation, security andsupervision of the activity in question, and must make it obligatory for all those concerned
to take practical measures to ensure the effective protection of citizens whose lives might
be endangered by the inherent risks.”295 Furthermore, “the relevant regulations must also
provide for appropriate procedures, taking into account the technical aspects of the activity
in question, for identifying shortcomings in the processes concerned and any errors
committed by those responsible at different levels.” 296
149. Therefore, this Court considers that States, taking into account the existing level ofrisk, must regulate activities that could cause significant environmental damage in a waythat reduces any threat to the rights to life and to personal integrity.
150. Specifically, with regard to environmental impact assessments, which will be
examined in greater detail below (paras. 156 to 170), this regulation must be clear, at least
as regards: (i) the proposed activities and the impact that must be assessed (areas andaspects to be covered); (ii) the process for making an environmental impact assessment(requirements and procedures); (iii) the responsibilities and duties of project proponents,
competent authorities and decision-making bodies (responsibilities and duties); (iv) how theenvironmental impact assessment process will be used in approval of the proposed actions(relationship to decision-making), and (v) the steps and measures that are to be taken in
the event that due procedure is not followed in carrying out the environmental impact
assessment or implementing the terms and conditions of approval (compliance andimplementation).297
151. In addition, in the case of companies registered in one State that develop activities
outside that State’s territory, the Court notes that a tendency exists towards the regulationof such activities by the State where such companies are registered. Thus, the Committee
on Economic, Social and Cultural Rights has indicated that “the States Parties must […]prevent third parties from violating [economic, social and cultural rights] in other countries,
provided they can influence such third parties by legal or political means, pursuant to theCharter of the United Nations and the applicable international law.” 298 Also, the Committee
Convention for the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention), entered into
force on January 17, 2000, arts. 3.1, 6.2 and 16.1.a, and Convention for the Protection of the Marine Environmentof the North-East Atlantic (OSPAR), entered into force on March 25, 1998, art. 22(a).
294

Cf. ECHR, Case of Öneryildiz v. Turkey [GS], No. 48939/99. Judgment of November 30, 2004, para. 90.

Cf. ECHR, Case of Öneryildiz v. Turkey [GS], No. 48939/99. Judgment of November 30, 2004, para. 90, andECHR, Case of Budayeva and Others v. Russia, Nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02.
Judgment of March 20, 2008, para. 132.
295

Cf. ECHR, Case of Öneryildiz v. Turkey [GS], No. 48939/99. Judgment of November 30, 2004, para. 90, andECHR, Case of Budayeva and Others v. Russia, Nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02.
Judgment of March 20, 2008, para. 132.
296

Cf. UNEP, Environmental Impact Assessment and Strategic Environmental Assessment: Towards an
Integrated Approach, 2004, p. 18. Available at: https://unep.ch/etu/publications/textONUBr.pdf. See also, UNEP,
Resolution 14/25 of June 17, 1987, adopting the Goals and Principles of Environmental Impact Assessment, UN
Doc. UNEP/WG.152/4 Annex, Principle 2. Regarding these principles, the International Court of Justice has
indicated that although they are not binding, States should take them into account as guidelines issued by aninternational organ. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20,
2010, para. 205.
297

ESCR Committee, General Comment No. 14: The right to the highest attainable standard of health (article
12 of the International Covenant on Economic, Social and Cultural Rights). UN Doc. E/C.12/2000/4, August 11,
2000, para. 39. See also, similarly, ESCR Committee, General Comment No. 15: The right to water (articles 11 and298

- 60 on the Elimination of Racial Discrimination has encouraged States to take appropriate
legislative or administrative measures to prevent acts of transnational corporations
registered in a State which negatively impact the human rights of individuals outside its
territory.299 The Court takes note of these developments, and considers them to be apositive trend that would allow States to ensure the human rights of persons outside theirterritory.
ii)

Duty to supervise and monitor

152. The Court has indicated that, at times, States have the duty to establish appropriate
mechanisms to supervise and monitor certain activities in order to guarantee human rights,
protecting them from the actions of public entities and private individuals.300 Also,
specifically in relation to the environment, in the case of the Kaliña and Lokono Peoples, theCourt indicated that the obligation to protect the nature reserve areas and the territories of
the indigenous communities entailed a duty of monitoring and oversight.301
153. Furthermore, in the context of inter-State relations, the International Court of Justicehas indicated that, as part of the obligation of prevention, States must ensure complianceand implementation of their environmental protection laws and regulations, as well as
exercise some form of administrative control over public and private agents, for example,
by monitoring their activities.302 That Court has also indicated that the control that a State
must exercise does not end with the environmental impact assessment; rather, States must
continuously monitor the environmental impact of a project or activity. 303
154. In this regard, the Inter-American Court considers that States have an obligation tosupervise and monitor activities within their jurisdiction that may cause significant damage
to the environment. Accordingly, States must develop and implement adequate independent
monitoring and accountability mechanisms.304 These mechanisms must not only include
preventive measures, but also appropriate measures to investigate, punish and redresspossible abuse through effective policies, regulations and adjudication.305 The level of
12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/2002/11, January 20,
2003, para. 33.
Cf. Committee on the Elimination of Racial Discrimination. Concluding observations of the Committee withregard to the United States of America, CERD/C/USA/CO/6, May 8, 2008, para. 30.
299

See, inter alia, Case of Ximenes Lopes v. Brazil, supra, paras. 89 and 90; Case of the Kichwa Indigenous
People of Sarayaku v. Ecuador, supra, para. 167; Case of I.V. v. Bolivia, supra, paras. 154 and 208.
300

301

Cf. Case of the Kaliña and Lokono Peoples v. Suriname, supra, paras. 221 and 222.

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.
197. See also, UNCLOS, arts. 204 and 213
302

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.
205, and ICJ, Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) andConstruction of a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Judgment of December
16, 2015, para. 161.
303

Cf. UN, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect,
Respect and Remedy” Framework. Report of the Special Representative of the Secretary-General on the issue ofhuman rights and transnational corporations and other business enterprises, John Ruggie, UN Doc. A/HRC/17/31,
March 21, 2011, Principle 5. The United Nations Human Rights Council adopted these principles and set up a
working group to promote their dissemination and effective application, among other matters. Cf. Human Rights
Council, Resolution 17/4, UN Doc. A/HRC/RES/17/4, July 6, 2011. Similarly, the OAS General Assembly resolved topromote the application of the said principles among OAS Member States. Cf. OAS General Assembly, Resolution
AG/RES. 2840 (XLIV-O/14), “Promotion and protection of human rights in business,” adopted at the second plenary
session held on June 4, 2014.
304

305

Cf. Case of the Kaliña and Lokono Peoples v. Suriname, supra, para. 224, citing, UN, Guiding Principles on

- 61 monitoring and oversight necessary will depend on the level of risk that the activities or
conduct involves.
155. Notwithstanding the State obligation to supervise and monitor activities that could
cause significant harm to the environment, the Court takes note that, according to the“Guiding Principles on Business and Human Rights,” business enterprises should respect andprotect human rights, and prevent, mitigate and assume responsibility for the adverse
human rights impacts of their activities.306
iii)

Duty to require and approve environmental impact assessments

156. To date, the Inter-American Court has only ruled on the obligation to carry out
environmental impact assessments in relation to activities implemented in the territory ofindigenous communities. In this regard, it has established that an environmental impact
assessment constitutes a safeguard to ensure that the restrictions imposed on indigenous ortribal peoples in relation to the right to ownership of their lands, owing to the issue ofconcessions within their territory, does not entail a denial of their survival as a people. 307
The purpose of such assessments is not merely to have an objective measurement of thepossible impact on the land and peoples, but also to ensure that the members of thesepeoples are aware of the possible risks, including the environmental and health risks, sothat they can evaluate, in full knowledge and voluntarily, whether or not to accept the
proposed development or investment plan.308
157. However, the Court notes that the obligation to make an environmental impact
assessment also exists in relation to any activity that may cause significant environmental
damage. In this regard, the Rio Declaration established that “[e]nvironmental impact
assessment, as a national instrument, shall be undertaken for proposed activities that arelikely to have a significant adverse impact on the environment and are subject to a decisionof a competent national authority.”309 This obligation has also been recognized by the laws
Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework. Reportof the Special Representative of the Secretary-General on the issue of human rights and transnational corporations
and other business enterprises, John Ruggie, UN Doc. A/HRC/17/31, March 21, 2011, Principle 1.
Cf. Case of the Kaliña and Lokono Peoples v. Suriname, supra, para. 224, citing, UN, Guiding Principles on
Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework. Reportof the Special Representative of the Secretary-General on the issue of human rights and transnational corporations
and other business enterprises, John Ruggie, UN Doc. A/HRC/17/31, March 21, 2011, Principles 11 to 15, 17, 18,
22 and 25.
306

See, inter alia, Case of the Saramaka People v. Suriname. Preliminary objections, merits, reparations andcosts, supra, para. 129; Case of the Saramaka People v. Suriname. Interpretation of the judgment on preliminary
objections, merits, reparations and costs, supra, paras. 31 to 39; Case of the Kichwa Indigenous People ofSarayaku v. Ecuador, supra, para. 205; Case of the Triunfo de la Cruz Garifuna Community and its members v.
Honduras. Merits, reparations and costs. Judgment of October 8, 2015. Series C No. 305, para. 156, and Case of
the Kaliña and Lokono Peoples v. Suriname, supra, paras. 214 and 215.
307

Cf. Case of the Saramaka People v. Suriname. Interpretation of the judgment on preliminary objections.
Merits, reparations and costs, supra, para. 40, and Case of the Kaliña and Lokono Peoples v. Suriname, supra,
para. 214.
308

Rio Declaration on Environment and Development, United Nations Conference on Environment andDevelopment, Río de Janeiro, June 3 to 14 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Principle 17. Similarly,see, inter alia, UNCLOS, art. 204; Convention on Biodiversity entered into force on December 29, 1993, art. 14;
United Nations Framework Convention on Climate Change, entered into force on March 21, 1994, art. 4(1)(f);Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region(Cartagena Convention), entered into force on October 11, 1986, art. 12.2; Convention for the Protection,
Management and Development of the Marine and Coastal Environment of the Western Indian Ocean (Nairobi
Convention), entered into force on May 30, 1996, art. 14.2; Protocol to the Antarctic Treaty on Environmental
Protection309 (Madrid Protocol), entered into force on January 14, 1998, art. 8; Convention for Cooperation in theProtection and Development of the Marine and Coastal Environment of the West and Central African Region309

- 62 of numerous OAS Member States, including, Antigua and Barbuda, 310 Argentina,311 Belize,312
Bolivia,313 Brazil,314 Canada,315 Chile,316 Colombia,317 Costa Rica,318 Cuba,319 Ecuador,320
United States of America,321 El Salvador,322 Guatemala,323 Guyana,324 Honduras,325
Jamaica,326 Mexico,327 Panama,328 Paraguay,329 Peru,330 Dominican Republic,331 Trinidad andTobago,332 Uruguay333 and Venezuela.334
158.

Similarly, the International Court of Justice has indicated that the obligation of due(Abidjan Convention), entered into force on August 5, 1984, art. 13.2; Convention for the Protection of the Marine
Environment of the Baltic Sea Area (Helsinki Convention), entered into force on January 17, 2000, art. 7, andFramework Convention for the Protection of the Marine Environment of the Caspian Sea (Tehran Convention),entered into force on August 12, 2006, art. 17.
Cf. Environmental Protection and Management Act of Antigua and Barbuda, September 24, 2015, Part VI,
section 38.
310

311

Cf. General Environment Act of Argentina, Law No. 25,675 of November 27, 2002, art. 11.

312

Cf. Environmental Protection Act of Belize, December 31, 2000, Chapter 328, Part V, section 20.1.

Cf. Constitution of the State of Bolivia, art. 345.2, and Environment Act of Bolivia, Law No. 1333 of April
27, 1992, art. 25.
313

314

Cf. Federal Constitution of Brazil, art. 225(1) (IV).

Cf. Canadian Environmental Assessment Act, S.C. 1999, c. 33, September 24, 1999, with subsequent
amendments, art. 13.
315

316

Cf. General Environmental Standards Act of Chile, No. 19,300 of March 1, 1994, art. 10.

Cf. Law No. 1753 of Colombia, National Development Plan 2014-2018 “All together for a new country,” ofJune 9, 2015, art. 178, and Law No. 99 of Colombia, creating the Ministry of the Environment among othermatters, of December 22, 1993, art. 57.
317

318

Cf. General Environment Law of Costa Rica, Law No. 7554 of September 28, 1995, art. 17.

319

Cf. Environment Act of Cuba, Law No. 81 of July 11, 1997, art. 28.

320

Cf. General Environmental Code of Ecuador of April 12, 2017, art. 179.

321

Cf. 1969 National Environmental Policy Act (NEPA) of the United States of America, Sec. 102 [42 USC §4332].
322

Cf. Environment Act of El Salvador of May 4, 1998, with amendments at 2012, art. 19

323

Cf. Environmental Protection and Improvement Act of Guatemala, Decree No. 68-86 of November 28, 1986,

art. 8.
324

Cf. Environmental Protection Act of Guyana of June 5, 1996, Part IV, sections 11 to 15.

325

Cf. General Environment Act of Honduras, Decree No. 104-93 of June 8, 1993, arts. 5 and 78

326

Cf. The Natural Resources Conservation Authority Act of Jamaica of July 5, 1991, section 10.

Cf. General Law on Ecological Balance and Environmental Protection of the United Mexican States of January
28, 1988, art. 28.
327

Cf. General Environment Act of the Republic of Panama, Law No. 41 of July 1, 1998, art. 21, and Executive
Decree No. 59 of March 16, 2000, adopting the Regulations for the Environmental Impact Assessment Procedure,art. 3.
328

329

Cf. Environmental Impact Assessment Act of Paraguay, Law No. 294/93 of December 31, 1993, art. 1.

Cf. Law on the Environmental Impact Assessment System of Peru, Law No. 27,446 of April 20, 2001, and its
amendments under Legislative Decree No. 1078, arts. 2 and 3.
330

Cf. General Environmental and Natural Resources Act of the Dominican Republic, Law No. 64-00 of August
18, 2000, art. 38.
331

332

Cf. Environmental Management Act of Trinidad and Tobago of March 13, 2000, Part V, sections 35 to 40.

Cf. Environment Act of Uruguay, Law No. 16,466 of January 19, 1994, arts. 6 and 7, and Decree No
349/2005 of September 21, 2005, adopting the Regulations for Environmental Impact Assessment andEnvironmental Authorizations, art. 25.
333

334

Cf. Constitution of the Bolivarian Republic of Venezuela, art. 129.

- 63 diligence involves making an environmental impact assessment when there is a risk that a
proposed activity may have a significant adverse transboundary impact and, particularly,
when it involves shared resources.335 This obligation rests with the State that plans to
implement the activity or under whose jurisdiction it will be implemented. 336 Thus, theInternational Court of Justice has explained that, before initiating any activity with thepotential to affect the environment, States must determine whether there is a risk ofsignificant transboundary harm and, if so, make an environmental impact assessment.337
159. The European Court of Human Rights has indicated that when States must determine
complex issues of environmental and economic policy, the decision-making process mustfirstly involve appropriate investigations and studies in order to allow them to predict andevaluate in advance the effects of those activities which might damage the environment andinfringe individuals’ rights and to enable the rights of private individuals and allow them tostrike a fair balance between the various conflicting interests at stake. 338 However,specifically with regard to environmental impact assessments, the European Court has only
analyzed their obligatory nature and requirements when such assessments are establishedin the domestic law of a defendant State.339
160. Without prejudice to other obligations arising under international law,340 this Court
considers that, when it is determined that an activity involves a risk of significant damage,an environmental impact assessment must be carried out. The initial determination may bemade by an initial environmental impact assessment,341 for example, or because domestic
law or any other regulation defines activities for which it is compulsory to require an
environmental impact assessment.342 In any case, the obligation to carry out an
Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.
204, and ICJ, Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) andConstruction of a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Judgment of December
16, 2015, para. 104. Similarly, ITLOS, Responsibilities and obligations of States sponsoring persons and entities
with respect to activities in the Area. Advisory Opinion of February 1, 2011, para. 145.
335

Cf. ICJ, Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) andConstruction of a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Judgment of December
16, 2015, para. 153.
336

Cf. ICJ, Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) andConstruction of a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Judgment of December
16, 2015, para. 104.
337

Cf. ECHR, Case of Hatton and Others v. The United Kingdom [GS], No. 36022/97. Judgment of July 8, 2003,
para. 128, and ECHR, Case of Taşkin and Others v. Turkey, No. 46117/99. Judgment of November 10, 2004, para.
119.
338

See, for example, ECHR, Case of Giacomelli v. Italy, No. 59909/00. Judgment of November 2, 2006, paras.
86 to 96.
339

In this regard, see, for example, the obligation to make an environmental impact assessment for activities
on territories of indigenous peoples or communities, which do not depend on the existence of a risk of significant
damage (supra para. 156).
340

341

The Protocol to the Antarctic Treaty on Environmental Protection establishes the obligation to prepare an“Initial Environmental Evaluation,” to determine whether a proposed activity may have more than a minor ortransitory impact, in which case a “Comprehensive Environmental Evaluation” should be prepared. Cf. Annex 1 to
the Protocol to the Antarctic Treaty on Environmental Protection341 (Madrid Protocol), entered into force on January
14, 1998, arts. 2 and 3.
This type of regulation exists, for example, in Brazil, Chile, Cuba, Dominican Republic, El Salvador, Mexico,
Panama, Paraguay and Uruguay. Cf. (Brazil) Resolution 001/86 of the Environmental Council (CONAMA) of January
23, 1986, establishing the basic criteria and general guidelines for environmental impact assessments, art. 2;(Chile) General Environmental Standards Act, No. 19,300 of March 1, 1994, art. 10; (Cuba) Environment Act, Law
No. 81 of July 11, 1997, art. 28; (El Salvador) Environment Act, of May 4, 1998, with amendments at 2012, art.
21; (Mexico) General Law on Ecological Balance and Environmental Protection of January 28, 1988, art. 29;(Paraguay) Environmental Impact Assessment Act, Law No. 294/93 of December 31, 1993, art. 7; (Panama)342

- 64 environmental impact assessment when there is a risk of significant harm is independent of
whether a project is being implemented directly by the State or by private individuals.
161. The Court has already indicated that environmental impact assessments must be
made pursuant to the relevant international standards and best practice and has indicatedcertain conditions that environmental impact assessments must meet. 343 Despite that theforegoing related to activities implemented in territories of indigenous communities, theCourt considers that such conditions are also applicable to any environmental impact
assessment; they are as follows:a. The assessment must be made before the activity is carried out
162. The environmental impact assessment must be concluded before the activity is
carried out or before the permits required for its implementation have been granted. 344 The
State must ensure that no activity related to project execution is undertaken until theenvironmental impact assessment has been approved by the competent State authority.345
Making the environmental impact assessment during the initial stages of project discussion
allows alternatives to the proposal to be explored and that such alternatives can be taken
into account.346 Preferably, environmental impact assessments should be made before theproject location and design have been decided in order to avoid financial losses shouldchanges be required.347 When the concession, license or authorization to execute an activity
has been granted without an environmental impact assessment, this should be made before
the project is executed.348b.

It must be carried out by independent entities under the State’s
supervision

163. The Court considers that the environmental impact assessment must be carried out
by an independent entity with the relevant technical capacity, under the State’s
supervision.349 Environmental impact assessments can be carried out by the State itself or
Executive Decree No. 59 of March 16, 2000, adopting the Regulations for the Environmental Impact Assessment
Procedure, art. 3; (Dominican Republic) General Environmental and Natural Resources Act, Law No. 64-00 ofAugust 18, 2000, art. 41, and (Uruguay) Decree No 349/2005 of September 21, 2005, adopting the Regulations forEnvironmental Impact Assessment and Environmental Authorizations, art. 2.
Cf. Case of the Saramaka People v. Suriname. Interpretation of the judgment on preliminary objections,merits, reparations and costs, supra, para. 41; Case of the Triunfo de la Cruz Garifuna Community and its
members v. Honduras, supra, para. 180, and Case of the Kaliña and Lokono Peoples v. Suriname, supra, para. 216.
343

Cf. Case of the Saramaka People v. Suriname. Interpretation of the judgment on preliminary objections,merits, reparations and costs, supra, para. 41, and Case of the Triunfo de la Cruz Garifuna Community and its
members v. Honduras, supra, para. 180. In this regard, the ESCR Committee has indicated that comprehensive
environmental impact assessments should be carried out prior to the execution of projects or to the granting oflicenses to companies. Cf. ESCR Committee, Concluding observations: Peru, UN Doc. E/C.12/PER/CO/2-4, May 30,
2012, para. 22.
344

345

Cf. Case of the Saramaka People v. Suriname. Preliminary objections, merits, reparations and costs, supra,
para. 129, and Case of the Kaliña and Lokono Peoples v. Suriname, supra, para. 201.
Cf. UNEP, Environmental Impact Assessment and Strategic Environmental Assessment: Towards an
Integrated Approach, 2004, p. 40. Available at: https://unep.ch/etu/publications/textONUBr.pdf.
346

Cf. UNEP, Environmental Impact Assessment and Strategic Environmental Assessment: Towards an
Integrated Approach, 2004, p. 41. Available at: https://unep.ch/etu/publications/textONUBr.pdf.
347

348

Cf. Case of the Kaliña and Lokono Peoples v. Suriname, supra, paras. 207 and 215.

Cf. Case of the Saramaka People v. Suriname. Interpretation of the judgment on preliminary objections,merits, reparations and costs, supra, para. 41, and Case of the Kaliña and Lokono Peoples v. Suriname, supra,
para. 201.
349

- 65 by a private entity. However, in both cases, it is the State, in the context of its monitoringand oversight duty, that must ensure that the assessment is carried out correctly.350 If
assessments are made by private entities, the State must take steps to ensure their
independence.351
164. During the process for approval of an environmental impact assessment, the State
must analyze whether execution of the project is compatible with its international
obligations. In this regard, it must take into account the impact that the project may haveon its human rights obligations. In cases involving indigenous communities, the Court has
indicated that the environmental impact assessment should include an evaluation of thepotential social impact of the project. 352 The Court notes that if the environmental impact
assessment does not include a social analysis,353 the State must make this analysis while
supervising the assessment.
c.

It must include the cumulative impact

165. The Court has indicated that the environmental impact assessment must examine
the cumulative impact of existing projects and proposed projects.354 In this regard, if a
proposed project is linked to another project, as in the case of the construction of an accessroad, for example, the environmental impact assessment should take into account the
impact of both the main project and the associated projects. 355 In addition, the impact ofother existing projects should be taken into account.356 This analysis will allow a moreaccurate conclusion to be reached on whether the individual and cumulative effects ofexisting and future activities involve a risk of significant harm. 357
d.

Participation of interested parties

166. The Court has not ruled on the participation in environmental impact assessments ofinterested parties when this is not related to the protection of the rights of indigenous
communities. In the case of projects that may affect indigenous and tribal territories, theCourt has indicated that the community should be allowed to take part in the environmental
Cf. Case of the Kaliña and Lokono Peoples v. Suriname, supra, paras. 216 and 221. See also, Rio Declaration
on Environment and Development, United Nations Conference on Environment and Development, Río de Janeiro,
June 3 to 14 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Principle 17.
350

Mutatis mutandi, Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, supra, para. 207, and Caseof the Kaliña and Lokono Peoples v. Suriname, supra, para. 216.
351

Cf. Case of the Saramaka People. v. Suriname. Preliminary objections, merits, reparations and costs, supra,
para. 129, and Case of the Kaliña and Lokono Peoples v. Suriname, supra, paras. 213 to 226.
352

In this regard, the ESCR Committee has indicated that, in addition to the environmental impact, Statesshould also assess the impact on human rights of the projects or activities submitted for their approval. Cf. ESCR
Committee, Statement in the context of the Rio+20 Conference on “the green economy in the context ofsustainable development and poverty eradication,” June 4, 2012, UN Doc. E/C.12/2012/1, para. 7. See also, Cf.
UNEP, Environmental Impact Assessment and Strategic Environmental Assessment: Towards an Integrated
Approach, 2004, p. 52. Available at: https://unep.ch/etu/publications/textONUBr.pdf.
353

Cf. Case of the Saramaka People v. Suriname. Interpretation of the judgment on preliminary objections,merits, reparations and costs, supra, para. 41, and Case of the Kichwa Indigenous People of Sarayaku v. Ecuador,
supra, para. 206.
354

Cf. UNEP, Environmental Impact Assessment and Strategic Environmental Assessment: Towards an
Integrated Approach, 2004, p. 52. Available at: https://unep.ch/etu/publications/textONUBr.pdf.
355

Cf. UNEP, Environmental Impact Assessment and Strategic Environmental Assessment: Towards an
Integrated Approach, 2004, p. 52. Available at: https://unep.ch/etu/publications/textONUBr.pdf.
356

Cf. Case of the Saramaka People v. Suriname. Interpretation of the judgment on preliminary objections,merits, reparations and costs, supra, para. 41.
357

- 66 impact assessment process through consultation.358 The right to participate in matters that
could affect the environment is dealt with, in general, in the section on procedural
obligations below (paras. 226 to 232).
167. However, regarding the participation of interested parties in environmental impact
assessments, the Court notes that in 1987, the United Nations Environmental Programme
adopted the Goals and Principles of Environmental Impact Assessments, which establishedthat States should permit experts and interested groups to comment on environmental
impact assessments.359 Even though the principles are not binding, they arerecommendations by an international technical body that States should take into account. 360
The Court also notes that the domestic laws of Argentina, 361 Belize,362 Brazil,363 Canada,364
Chile,365 Colombia,366 Ecuador,367 El Salvador,368 Guatemala,369 Peru,370 Dominican
Republic,371 Trinidad and Tobago372 and Venezuela373 include provisions that establish public
participation in environmental impact assessments while, in general, Bolivia, 374 Costa
Rica,375 Cuba,376 Honduras377 and Mexico378 promote public participation in decisions relating
to the environment.
See, inter alia, Case of the Saramaka People v. Suriname. Preliminary objections, merits, reparations andcosts, supra, para. 129 and 130; Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, supra, para. 206,
and Case of the Kaliña and Lokono Peoples v. Suriname, supra, para. 215.
358

Cf. UNEP, Resolution 14/25 of June 17 1987, adopting the Goals and Principles of Environmental Impact
Assessment. UN Doc. UNEP/WG.152/4 Annex, Principles 7 and 8.
359

Regarding these Principles, see supra footnote 297 and ICJ, Case of Pulp Mills on the River Uruguay(Argentina v. Uruguay). Judgment of April 20, 2010, para. 205.
360

361

Cf. General Environment Act of Argentina, Law No. 25,675 of November 27, 2002, art. 21.

362

Cf. Environmental Protection Act of Belize, December 31, 2000, Chapter 328, Part V, section 20.5

Cf. Resolution 001/86 of the Environmental Council (CONAMA) of January 23, 1986, establishing the basic
criteria and general guidelines for environmental impact assessments, art. 11.2.
363

Cf. Canadian Environmental Assessment Act, S.C. 1999, c. 33, September 24, 1999, with subsequent
amendments, art. 19.1,
364

365

Cf. General Environmental Standards Act of Chile, No. 19,300 of March 1, 1994, art. 10. art. 30 (bis)366

Cf. Constitutional Court of Colombia, Judgment T-348/12, of May 15, 2012, section. 2.3.2.3.

Cf. General Environmental Code of Ecuador of April 12, 2017, art. 179, and Regulations for implementationof the social participation mechanisms established in the Environmental Management Act of Ecuador, Decree No.
1040 of April 22, 2008, art. 6.
367

368

Cf. Environment Act of El Salvador of May 4, 1998, with amendments to 2012, arts. 24 and 25.

Cf. Regulation of Environmental Assessment, Control and Monitoring of Guatemala, Decision No. 137-2016
of July 11, 2016, art. 43.d.
369

Cf. Law on the Environmental Impact Assessment System of Peru, Law No. 27,446 of April 20, 2001, and its
amendments under Legislative Decree No. 1078, art. 14.c.
370

Cf. General Environmental and Natural Resources Act of the Dominican Republic, Law No. 64-00 of August
18, 2000, art. 43.
371

372

Cf. Environmental Management Act of Trinidad and Tobago of March 13, 2000, Part V, section 35.5.

Cf. General Environment Law of Venezuela of December 22, 2006, arts. 39 and 40, and 90, and Rules forenvironmental assessment of activities susceptible of degrading the environment, Decree No. 1257 of March 13,
1996, art. 26.
373

374

Cf. Constitution of the State of Bolivia, art. 352.

375

Cf. General Environment Law of Costa Rica, Law No. 7554 of September 28, 1995, art. 6.

376

Cf. Environment Act of Cuba, Law No. 81 of July 11, 1997, art. 4(i) and 4(m).

377

Cf. General Environment Act of Honduras, Decree No. 104-93 of June 8, 1993, art. 9.e.

Cf. General Law on Ecological Balance and Environmental Protection of the United Mexican States of January
28, 1988, art. 9, paragraph C.V.
378

- 67 -

168. The Court considers that, in general, the participation of the interested public allows
a more complete assessment of the possible impact of a project or activity and whether itwill affect human rights. Thus, it is recommendable that States allow those who could be
affected or, in general, any interested person, to have the opportunity to present theiropinions or comments on a project or activity before it is approved, while it is being
implemented, and after the environmental impact assessment has been issued.
e.

Respect for the traditions and culture of indigenous peoples

169. In the case of projects that may affect the territory of indigenous communities, socialand environmental impact assessments must respect the traditions and culture of theindigenous peoples.379 In this regard, the intrinsic connection between indigenous and tribal
peoples and their territory must be taken into account. The connection between the territory
and the natural resources that have been used traditionally and that are necessary for thephysical and cultural survival of these peoples and for the development and continuity of
their world view must be protected to ensure that they can continue their traditional way oflife and that their cultural identity, social structure, economic system, and distinctive
customs, beliefs and traditions are respected, guaranteed and protected by States. 380
f.

Content of environmental impact assessments

170. The content of the environmental impact assessment will depend on the specificcircumstances of each case and the level of risk of the proposed activity. 381 Both theInternational Court of Justice and the International Law Commission have indicated thateach State should determine in its laws the content of the environmental impact assessment
required in each case.382 The Inter-American Court finds that States should determine anddefine, by law or by the project authorization process, the specific content required of anenvironmental impact assessment, taking into account the nature and size of the projectand its potential impact on the environment.
iv) Duty to prepare a contingency plan
171. The United Nations Convention on the Law of the Sea establishes that States shall
together prepare and promote emergency plans to deal with incidents of pollution of themarine environment.383 The same obligation is included in the Convention on the Law of the
Cf. Case of the Saramaka People v. Suriname. Interpretation of the judgment on preliminary objections,merits, reparations and costs, supra, para. 41, and Case of the Kaliña and Lokono Peoples v. Suriname, supra,
para. 164.
379

See, inter alia, Case of the Yakye Axa Indigenous Community v. Paraguay, supra, paras. 124, 135 and 137;
Case of the Kuna Indigenous Peoples of Madungandí and the Emberá Indigenous Peoples of Bayano and theirmembers v. Panama, supra, para. 112; Case of the Punta Piedra Garifuna Community and its members v.
Honduras. Preliminary objections, merits, reparations and costs. Judgment of October 8, 2015. Series C No. 304,
para. 167, and Case of the Kaliña and Lokono Peoples v. Suriname, supra, para. 164.
380

Cf. UNEP, Environmental Impact Assessment and Strategic Environmental Assessment: Towards an
Integrated Approach, 2004, p. 44. Available at: https://unep.ch/etu/publications/textONUBr.pdf, and UNEP,
Resolution 14/25 of June 17 1987, adopting the Goals and Principles of environmental impact assessment. UN Doc.
UNEP/WG.152/4 Annex, Principle 5.
381

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.
205; ICJ, Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) and Constructionof a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Judgment of December 16, 2015, para.
104, and International Law Commission, Commentaries on the draft articles on prevention of transboundary harmfrom hazardous activities. UN Doc. A/RES/56/82, art. 7 para. 9.
382

383

Cf. UNCLOS, art. 199.

- 68 Non-Navigational Uses of International Watercourses. 384 In this regard, the Court considers
that the State of origin should have a contingency plan to respond to environmental
emergencies or disasters385 that includes safety measures and procedures to minimize theconsequences of such disasters. Even though the State of origin is the main entity
responsible for the contingency plan, when appropriate, the plan should be implemented incooperation with other States that are potentially affected, and also competent internationalorganizations386 (infra para. 189).
v) Duty to mitigate if environmental damage occurs
172. The State must mitigate significant environmental damage if it occurs.387 Even if theincident occurs despite all the required preventive measures having been taken, the State oforigin must ensure that appropriate measures are adopted to mitigate the damage and, tothis end, should rely upon the best available scientific data and technology. 388 Suchmeasures should be taken immediately, even if the origin of the pollution is unknown. 389
Some of the measures that States should take are: (i) clean-up and restoration within thejurisdiction of the State of origin; (ii) containment of the geographical range of the damage
to prevent it from affecting other States; (iii) collection of all necessary information about
the incident and the existing risk of damage; 390 (iv) in cases of emergency in relation to an
activity that could produce significant damage to the environment of another State, theState of origin should, immediately and as rapidly as possible, notify the States that arelikely to be affected by the damage391 (infra para. 190); (v) once notified, the affected or
Cf. Convention on the Law of the Non-Navigational Uses of International Watercourses entered into force on
August 17, 2014, art. 28.
384

Cf. Articles on prevention of transboundary harm from hazardous activities, adopted by the International
Law Commission in 2001 and annexed to United Nations General Assembly Resolution 62/68 of December 6, 2007,
UN Doc. A/RES/62/68, art. 16, and International Law Commission, Commentaries on the draft articles on
prevention of transboundary harm from hazardous activities. Yearbook of the International Law Commission 2001,
vol. II, Part Two (A/56/10), art. 16, paras. 1 to 3.
385

Cf. International Law Commission, Commentaries on the draft Articles on prevention of transboundary harmfrom hazardous activities, Yearbook of the International Law Commission 2001, vol. II, Part Two (A/56/10), art.
16, para. 2.
386

Cf. PCA, Iron Rhine Arbitration (Belgium v. The Netherlands). Award of May 24, 2005, para. 59; PCA,
Kishanganga River Hydroelectric Power Plant Arbitration (Pakistan v. India). Partial award of February 18, 2013,
para. 451 and Final Award of December 20, 2013, para. 112.
387

Cf. International Law Commission, Draft Principles on the allocation of loss in the case of transboundary
harm arising out of hazardous activities, Yearbook of the International Law Commission 2006, vol. II, Part Two(A/61/10), Principle 5.b.
388

Cf. International Law Commission, Commentaries on the draft principles on the allocation of loss in the caseof transboundary harm arising out of hazardous activities, Yearbook of the International Law Commission 2006,
vol. II, Part Two (A/61/10), Principle 5, para. 6.
389

Cf. International Law Commission, Commentaries on the draft principles on the allocation of loss in the caseof transboundary harm arising out of hazardous activities, Yearbook of the International Law Commission 2006,
vol. II, Part Two (A/61/10), Principle 5, paras. 1, 2 and 5.
390

Cf. UNCLOS, art. 198; Convention on Biodiversity entered into force on December 29, 1993, art. 14(1).d);
Convention on the Law of the Non-Navigational Uses of International Watercourses entered into force on August17, 2014, art. 28.2; Convention on Early Notification of a Nuclear Accident, entered into force on October 27, 1986,
art. 2; Rio Declaration on Environment and Development, United Nations Conference on Environment andDevelopment, Río de Janeiro, June 3 to 14 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Principle 18, and Articles
on Prevention of transboundary harm from hazardous activities, adopted by the International Law Commission in2001 and annexed to UN General Assembly Resolution 62/68 of December 6, 2007, UN Doc. A/RES/62/68, art. 17.
This notification should be made, even if the incident occurs despite all preventive measures having been taken. Cf.
International Law Commission, Commentaries on the Draft principles on the allocation of loss in the case oftransboundary harm arising out of hazardous activities, Yearbook of the International Law Commission 2006, vol.
II, Part Two (A/61/10), preamble and Principle 1, para. 7.
391

- 69 potentially affected States should take all possible steps to mitigate and, if possible,
eliminate the consequences of the damage,392 and (vi) in case of emergency, any persons
who could be affected should also be informed.393
173. In addition, as explained below, the State of origin and the States potentiallyaffected have the obligation to cooperate in order to take all possible measures to mitigate
the effects of the damage394 (infra paras. 181 to 210).
B.1.d

Conclusion regarding the obligation of prevention

174. In order to ensure the rights to life and integrity, States have the obligation toprevent significant environmental damage within and outside their territory, as establishedin paragraphs 127 to 173 of this Opinion. In order to comply with this obligation, States
must: (i) regulate activities that could cause significant harm to the environment in order toreduce the risk to human rights, as indicated in paragraphs 146 to 151 of this Opinion; (ii)supervise and monitor activities under their jurisdiction that could produce significant
environmental damage and, to this end, implement adequate and independent monitoring
and accountability mechanisms that include measures of prevention and also of sanction
and redress, as indicated in paragraphs 152 to 155 of this Opinion; (iii) require an
environmental impact assessment when there is a risk of significant environmental harm,regardless of whether the activity or project will be carried out by a State or by private
persons. These assessments must be made by independent entities with State oversightprior to implementation of the activity or project, include the cumulative impact, respect thetraditions and culture of any indigenous peoples who could be affected, and the content ofsuch assessments must be determined and defined by law or within the framework of the
project authorization process, taking into account the nature and size of the project and its
potential impact on the environment, as indicated in paragraphs 156 to 170 of this Opinion;(iv) institute a contingency plan in order to establish safety measures and procedures tominimize the possibility of major environmental accidents in keeping with paragraph 171 of
this Opinion, and (v) mitigate significant environmental damage, even when it has occurred
despite the State’s preventive actions, using the best scientific knowledge and technology
available, in accordance with paragraph 172 of this Opinion.
B.2 The precautionary principle
175. In environmental matters, the precautionary principle refers to the measures thatmust be taken in cases where there is no scientific certainty about the impact that an
activity could have on the environment. 395 In this regard, the Rio Declaration establishes
that:
In order to protect the environment, the precautionary approach shall be widely appliedby States according to their capabilities. Where there are threats of serious or irreversible

Cf. International Law Commission, Draft principles on the allocation of loss in the case of transboundary
harm arising out of hazardous activities, Yearbook of the International Law Commission 2006, vol. II, Part Two(A/61/10), Principle 5.d.
392

Cf. ECHR, Case of Budayeva and Others v. Russia, No. 15339/02, 21166/02, 20058/02, 11673/02 and
15343/02. Judgment of March 20, 2008, para. 131.
393

Cf. International Law Commission, Draft principles on the allocation of loss in the case of transboundary
harm arising out of hazardous activities, Yearbook of the International Law Commission 2006, vol. II, Part Two(A/61/10), Principle 5.c and 5.d.
394

The Court notes that some of these instruments refer to the “precautionary principle” and others to theprecautionary “approach” or “criterion”. The Court will use the terms in keeping with the source cited.
395

- 70 damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.396

176. In addition, the precautionary principle or approach has been included in various
international treaties on environmental protection in different spheres.397 Among these, thefollowing should be underscored: the United Nations Framework Convention on Climate
Change, which has been ratified by all OAS Member States, 398 the Stockholm Convention on
Persistent Organic Pollutants ratified by 32 OAS Member States,399 and the Biological
Diversity Convention ratified by 45 OAS Member States. 400 It has also been included inregional treaties or instruments of Europe, 401 Africa,402 the North East Atlantic Ocean, 403 theBaltic Sea,404 the Caspian Sea,405 the North Sea,406 the Mediterranean Sea,407 the River
Danube,408 and the Rhine.409
Rio Declaration on Environment and Development, United Nations Conference on Environment andDevelopment, Río de Janeiro, June 3 to 14 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Principle 15.
396

397

Cf. United Nations Framework Convention on Climate Change, entered into force on March 21, 1994, art.
3.3; Stockholm Convention on Persistent Organic Pollutants, amended in 2009, entered into force on May 17,
2004, art. 1; Convention on Biodiversity entered into force on December 29, 1993, preamble; Protocol to theConvention on the Prevention of Marine Pollution from Dumping of Wastes and Other Matter (with its 2006
amendments), entered into force on March 24, 2006, preamble and art. 3.1; International Convention on Control ofHarmful Anti-fouling Systems on Ships, entered into force on September 17, 2008, preamble; Cartagena Protocol
on Biosafety to the Convention on Biodiversity entered into force on September 11, 2003, preamble and arts. 1,
10.6 and 11.8; Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of
the Sea of December 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks, entered into force on December 11, 2001, art. 6, and Vienna Convention for Protection of
the Ozone Layer, entered into force on September 22, 1988, preamble.
Ratified by Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile,
Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana,
Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Vincent and the
Grenadines, Saint Lucia, Suriname, Trinidad and Tobago, United States of America, Uruguay and Venezuela.
398

Ratified by Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile,
Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Honduras,
Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Vincent and the Grenadines,
Saint Lucia, Suriname, Trinidad and Tobago, Uruguay and Venezuela.
399

Ratified by Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile,
Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana,
Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Vincent and the
Grenadines, Saint Lucia, Suriname, Trinidad and Tobago, Uruguay and Venezuela.
400

Cf. Convention on the Protection and Use of Transboundary Watercourses and International Lakes of the
Economic Commission for Europe (ECE), entered into force on October 6, 1996, article 2.5.a), and Treaty of
Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities andcertain related acts, entered into force on May 1, 1999, article 174.2. See also, ECHR, Tătar v. Romania, No.
6702/01. Judgment of January 27, 2009, paras. 109 and 120.
401

Cf. Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement
and Management of Hazardous Wastes within Africa, entered into force on April 22, 1998, art. 4.3.f.
402

Cf. Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), entered into
force on March 25, 1998, art. 2.2.a)
403

404

Cf. Convention for the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention),entered into force on January 17, 2000, art. 3.2.
Cf. Framework Convention for the Protection of the Marine Environment of the Caspian Sea (Tehran
Convention), entered into force on August 12, 2006, art. 5.
405

Cf. Ministerial Declaration of the International Conference on the Protection of the North Sea, November 1,
1984, conclusion A.7.
406

Cf. Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources enteredinto force on June 17, 1983, preamble.
407

Cf. Convention on Cooperation for the Protection and Sustainable Use of the Danube River (Danube River
Protection Convention), entered into force on October 22, 1998, art. 2.4.
408

- 71 -

177. In the Case of Pulp Mills on the River Uruguay, the International Court of Justiceindicated that “a precautionary approach may be relevant in the interpretation andapplication of the provisions of the Statute” being interpreted in that case. 410 However, theInternational Court of Justice did not refer expressly to the application of the precautionary
principle beyond indicating that it would not reverse the burden of proof. Meanwhile, theInternational Court on the Law of Sea has indicated that a trend has been initiated towards
making the precautionary approach part of customary international law. 411 It has also
indicated that the precautionary approach is an integral part of the general obligation of due
diligence which obliges States of origin to take all appropriate measures to prevent any
damage that might result from their activities. “This obligation applies in situations wherescientific evidence concerning the scope and potential negative impact of the activity inquestion is insufficient, but where there are plausible indications of potential risks.” 412
178. The precautionary principle has been incorporated into the domestic law and thecase law of the highest courts of several OAS Member States. Thus, it has been explicitly
incorporated into the laws of States such as Antigua and Barbuda,413 Argentina,414
Canada,415 Colombia,416 Cuba,417 Ecuador,418 Mexico,419 Peru,420 Dominican Republic421 andUruguay.422 Likewise, the high courts of Chile 423 and Panama424 have recognized theapplicability and obligatory nature of the precautionary principle.
179. The Court notes that several international treaties contain the precautionary principle
in relation to different matters (supra para. 176). Also, some States of this region haveincluded the precautionary principle in their laws or it has been recognized in case law
409

Cf. Convention on the Protection of the Rhine, entered into force on January 1, 2003, art. 4.a.

410

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.

164.
411

Cf. ITLOS, Responsibilities and obligations of States sponsoring persons and entities with respect to activities
in the Area. Advisory Opinion of February 1, 2011, para. 135. See also, ITLOS, Southern Bluefin Tuna cases (New
Zealand v. Japan; Australia v. Japan). Order on provisional measures of August 27, 1999, paras. 73 to 80.
Cf. ITLOS, Responsibilities and obligations of States sponsoring persons and entities with respect toactivities in the Area. Advisory Opinion of February 1, 2011, para. 131.
412

Cf. Environmental Protection and Management Act of Antigua and Barbuda, September 24, 2015, Part II,
section 7.5.b.
413

414

Cf. General Environment Act of Argentina, Law No. 25,675 of November 27, 2002, art. 4.

Cf. Canadian Environmental Assessment Act, S.C. 1999, c. 33, September 24, 1999, with subsequent
amendments, art. 2.1.a.
415

Cf. Act No. 1523 of Colombia, adopting the national policy for disaster risk management, establishing thenational system of disaster risk management, and ordering other provisions, of April 24, 2012, art. 3.8
416

417

Cf. Environment Act of Cuba, Law No. 81 of July 11, 1997, art. 4.b.

418

Cf. Constitution of the Republic of Ecuador, art. 73, 313, 396 and 397.5.

419

Cf. General Law on Climate Change of the United Mexican States of June 6, 2012, art. 26.III.

Cf. Framework Law of the National Environmental Management System of Peru, Law No. 28245 of June 10,2004, art. 5.k.
420

Cf. General Environmental and Natural Resources Act of the Dominican Republic, Law No. 64-00 of August
18, 2000, arts. 8 and 12.
421

422

Cf. Environmental Protection Act of Uruguay, Law No. 17,283 of December 12, 2000, art. 6.b.

Cf.
Supreme Court of Chile, Third Chamber, Case No. 14.209-2013. Judgment of June 2, 2014,
considerandum 10.
423

424

Cf. Supreme Court of Justice of Panama, Plenary. File 910-08. Judgment of February 24, 2010.

- 72 (supra para. 178). The content of the precautionary principle varies depending on the
instrument that establishes it.
180. Notwithstanding the above, the general obligation to ensure the rights to life and to
personal integrity means that States must act diligently to prevent harm to these rights(supra para. 118). Also, when interpreting the Convention, as requested in this case, theCourt must always seek the “best perspective” for the protection of the individual (suprapara. 41). Therefore, the Court understands that States must act in keeping with the
precautionary principle in order to protect the rights to life and to personal integrity in cases
where there are plausible indications that an activity could result in severe and irreversible
damage to the environment, even in the absence of scientific certainty. Consequently,
States must act with due caution to prevent possible damage. Thus, in the context of theprotection of the rights to life and to personal integrity, the Court considers that States
must act in keeping with the precautionary principle. Therefore, even in the absence of
scientific certainty, they must take “effective” 425 measures to prevent severe or irreversible
damage.426
B.3 Obligation of cooperation
181. Article 26 of the American Convention establishes the obligation of international
cooperation with a view to the development and protection of economic, social and culturalrights.427 Several articles of the Protocol of San Salvador also refer to cooperation between
States.428
182. In the specific case of activities, projects or incidents that could cause significant
transboundary environmental harm, the potentially affected State or States require thecooperation of the State of origin and vice versa in order to take the measures of prevention
and mitigation needed to ensure the human rights of the persons subject to theirjurisdiction (supra paras. 127 to 174). In addition, compliance by the State of origin with its
duty to cooperate is an important element in the evaluation of its obligation to respect andto ensure the human rights of the persons outside its territory who may be affected by
activities executed within its territory (supra paras. 95 to 103).

According to the most usual wording in the most relevant international instruments and the domestic laws of
the region, the precautionary approach usually makes the necessary measures dependent on being “costeffective,” so that the level of measures required may be stricter for developed countries or depend on thetechnical and scientific capabilities available in the State. Cf. ITLOS, Responsibilities and obligations of States
sponsoring persons and entities with respect to activities in the Area. Advisory Opinion of February 1, 2011, para.
128. See also, United Nations Framework Convention on Climate Change, entered into force on March 21, 1994,
article 3.3, and Peruvian legislation (supra para. 178).
425

The content of the precautionary principle varies depending on the source. However, according to the mostusual wording in the most relevant international instruments and the domestic laws of the region, theprecautionary principle is applicable when there is a danger of severe or irreversible damage, but where no
absolute scientific certainty exists. Thus, it requires a higher level of damage than the standard applicable to the
obligation of prevention, which requires a risk of significant damage (supra paras. 134 to 140). Cf. Rio Declaration
on Environment and Development, United Nations Conference on Environment and Development, Río de Janeiro,
June 3 to 14 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Principle 15, and United Nations Framework
Convention on Climate Change, entered into force on March 21, 1994, article 3.3. See also, the laws of Antigua andBarbuda, Canada, Colombia, Ecuador, Mexico and Peru (supra para. 178).
426

The relevant part of Article 26 of the Convention stipulates that: “The States Parties undertake to adopt
measures, both internally and through international cooperation, especially those of an economic and technical nature,with a view to achieving progressively […] the full realization of [economic, social and cultural] rights” (underlining
added).
427

428

See, the preamble to the Protocol of San Salvador, and Articles 1, 12 and 14 of this treaty.

- 73 183. Under international environmental law, the duty to cooperate has been reflected in
the Declaration of Stockholm,429 and the Declaration of Rio which establishes that “Statesshall cooperate in a spirit of global partnership to conserve, protect and restore the healthand integrity of the Earth’s ecosystem,”430 as well as in numerous international treaties.431
184. This duty to cooperate in environmental matters and its customary nature have beenrecognized by arbitral tribunals,432 the International Tribunal for the Law of the Sea and theInternational Court of Justice. According to the latter, the duty to cooperate is derived fromthe principle of good faith in international relations, 433 is essential for protection of theenvironment,434 and allows States jointly to manage and prevent risks of environmental
damage that could result from projects undertaken by one of the parties.435 Meanwhile, theInternational Tribunal for the Law of the Sea has determined that “the duty to cooperate isa fundamental principle in the prevention of pollution of the marine environment under […]general international law.”436
185. Consequently, this Court considers that States have a duty to cooperate in good faith
to ensure protection against environmental damage. This duty to cooperate is especially
important in the case of shared resources, the development and use of which should be
carried out in an equitable and reasonable manner in keeping with the rights of the otherStates that have jurisdiction over such resources. 437
Principle 24 of the Stockholm Declaration stipulates that “[i]nternational matters concerning the protection
and improvement of the environment should be handled in a cooperative spirit by all countries, big and small, on
an equal footing. Cooperation through multilateral or bilateral arrangements or other appropriate means isessential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from
activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all
States.” Stockholm Declaration on the Human Environment, United Nations Conference on the Human
Environment, Stockholm, June 5 to 16, 1972, UN Doc. A /CONF.48/14/Rev.1.
429

Rio Declaration on Environment and Development, adopted at the United Nations Conference on
Environment and Development, Río de Janeiro, June 14, 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Principles 7
and 19.
430

See, inter alia, United Nations Framework Convention on Climate Change, entered into force on March 21,
1994, preamble and arts. 3.3 and 5, 4(1).c) a i), 5.c) and 6.b); International Plant Protection Convention, revised
text, entered into force on October 2, 2005, art. VIII; Framework Convention for the Protection of the Environmentof the Caspian Sea, entered into force on August 12, 2006, articles 4.d) and 6, and Convention on the Prohibitionof Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), entered into force on
October 5, 1978, art. V.1. In Europe, the duty of cooperation is established in Article 8 of the Convention on
Environmental Impact Assessment in a Transboundary Context (Espoo Convention), entered into force on
September 10, 1997.
431

432

Cf. Arbitral Tribunal, Lake Lanoux Arbitration (France v. Spain). Decision of November 16, 1957, p. 308.

Cf. ICJ, Nuclear Tests cases (Australia v. France) (New Zealand v. France). Judgments of December 20,
1974, paras. 46 and 49 respectively; Legality of the threat or use of nuclear weapons. Advisory Opinion of July 8,
1996, para. 102, and Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010,
para. 145.
433

Cf. ICJ, Case concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia). Judgment of September
25, 1997, paras. 17 and 140.
434

435

77.

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.

Cf. ITLOS, The MOX Plant case (Ireland v. The United Kingdom). Order on provisional measures ofDecember 3, 2001, para. 82.
436

Regarding shared resources, the Charter of Economic Rights and Duties of States establishes that: “[i]n the
exploitation of natural resources shared by two or more countries, each State must co-operate on the basis of asystem of information and prior consultations in order to achieve optimum use of such resources without causing
damage to the legitimate interest of others.” Charter of Economic Rights and Duties of States adopted by theUnited Nations General Assembly on December 12, 1974, in Resolution 3281 (XXIX), UN Doc. A/RES/29/3281, art.
3. See also, Convention on the Law of the Non-Navigational Uses of International Watercourses, entered into force
on August 17, 2014, arts. 5 and 8, and Draft articles on the law of transboundary aquifers, article 7, prepared by437

- 74 -

186. Contrary to the environmental obligations described to date, the duty to cooperate isan obligation between States. International law has defined the following specific duties thatare required of States in relation to environmental matters in order to comply with thisobligation: (1) the duty to notify, and (2) the duty to consult and negotiate with potentiallyaffected States. The Court will now examine these duties, as well as (3) the possibility ofsharing information established in numerous international environmental instruments.
B.3.a Duty to notify
187. The duty of notification involves the obligation to notify States that may potentiallybe affected by possible significant environmental damage as a result of activities carried out
within a State’s jurisdiction. This duty requires official and public knowledge to be provided“relating to work to be carried out by States within their national jurisdiction, with a view to
avoiding significant harm that may occur in the environment of the adjacent area.”438 The
duty of notification was established in the Rio Declaration as follows:
States shall provide prior and timely notification and relevant information to potentiallyaffected States on activities that may have a significant adverse transboundary
environmental effect and shall consult with those States at an early stage and in goodfaith.439

188. This obligation has been reflected in numerous multilateral 440 and bilateral441 treaties
and has been recognized in international jurisprudence as an obligation of customaryinternational law in cases involving the joint use and protection of international waters. 442
189.

This Court understands that the duty of notifying States potentially affected by

the International Law Commission and annexed to United Nations General Assembly Resolution 68/118 ofDecember 19, 2013, UN Doc. A/RES/68/118.
Cf. United Nations General Assembly Resolution 2995 (XXVII) on Cooperation between States in the Field ofEnvironment, December 15, 1972, See also, Report of the World Commission on Environment and Development“Our Common Future” (Brundtland Report), adopted in Nairobi on June 16, 1987, Annex to UN Doc. A/42/427,
Principle 16.
438

Rio Declaration on Environment and Development, adopted at the United Nations Conference on
Environment and Development, Rio de Janeiro, June 14, 1992, UN Doc. A/CONF.151/26 (Vol. I), Principle 19439

See, for example, UNCLOS, arts. 197 and 200; Convention on Biodiversity entered into force on December
29, 1993, arts. 14(1).c and 17; Convention on Wetlands of International Importance especially as Waterfowl
Habitat (RAMSAR Convention), entered into force on December 21, 1975, arts. 3.2 and 5; Convention for thePrevention of Marine Pollution from Land-based Sources, entered into force on 6 May 1978, arts. 9 and 10; Basel
Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, entered into
force on May 5, 1992, arts. 6 and 13; Vienna Convention for Protection of the Ozone Layer, entered into force on
September 22, 1988, art. 4; Convention on the Law of the Non-Navigational Uses of International Watercourses,
entered into force on August 17, 2014, preamble and articles 8, 9, 11 and 12 to 18, and Protocol to the Antarctic
Treaty on Environmental Protection, entered into force on January 14, 1998, art. 6.
440

See, for example, Act of Santiago concerning Hydrologic Basins, signed on June 26, 1971, by Argentina andChile, art. 5; Statute of the River Uruguay, signed on February 26, 1975, by Argentina and Uruguay, arts. 7 to 12;
Treaty between Uruguay and Argentina concerning the Rio de la Plata and the Corresponding Maritime Boundary,signed on November 19, 1973, by Argentina and Uruguay, art. 17, and Treaty between the United States andGreat Britain relating to Boundary Waters, and Questions arising between the United States and Canada, signed on
May 5, 1910, arts. III and IV.
441

ICJ, Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) and Constructionof a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Judgment of December 16, 2015, para.
104. See also, inter alia, Tribunal Arbitral, Case of Lac Lanoux (France v. Spain). Decision of November 16, 1957;
ICJ, Case concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia). Judgment of September 25, 1997;
Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, and Corfu Channelcase (The United Kingdom v. Albania). Judgment of April 9, 1949, p. 22.
442

- 75 activities implemented within the jurisdiction of another State is a duty that extends toevery case in which there is a possibility of significant transboundary environmental harm(supra paras. 95 to 103), as a result of activities planned by a State or by private
individuals with State authorization. 443 In such cases, notification is usually the first step
towards facilitating cooperation and also permits compliance with the duty of prevention. 444
190. Additionally, the duty of notification exists in the case of environmental emergencies,
also known as natural disasters.445 Environmental emergencies are those situations which
produce or entail a sudden and imminent risk of negative or adverse environmental
effects,446 due either to natural causes or human conduct.447 In cases of environmental
emergencies, notification must be given promptly,448 which means that the State of origin
must notify potentially affected States as soon as it becomes aware of the situation.449i) Moment of notification
191. The purpose of the duty to notify is to create the conditions for successful
cooperation between the parties, which is necessary to avoid the potential harm that a
project may cause and, thus, comply with the duty of prevention. 450 Consequently, it is
Cf. International Law Commission, Commentaries on the draft Articles on prevention of transboundary harmfrom hazardous activities, Yearbook of the International Law Commission 2001, vol. II, Part Two (A/56/10), art. 8,
para. 2.
443

Cf. ICJ, Corfu Channel case (The United Kingdom v. Albania). Judgment of April 9, 1949, p.
Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para. 102.
444

22, and Case of

Cf. Rio Declaration on Environment and Development, adopted at the United Nations Conference on
Environment and Development, Rio de Janeiro, June 14, 1992, UN Doc. A/CONF.151/26 (Vol. I), Principle 18.
445

See, for example, Cartagena Protocol on Biosafety to the Convention on Biodiversity entered into force on
September 11, 2003, art. 17; Rio Declaration on Environment and Development, adopted at the United Nations
Conference on Environment and Development, Rio de Janeiro, June 14, 1992, UN Doc. A/CONF.151/26 (Vol. I),
Principle 18; Convention on the Protection and Use of Transboundary Watercourses and International Lakes of the
Economic Commission for Europe (ECE), entered into force on October 6, 1996, arts. 1 and 14, and Framework
Convention for the Protection of the Marine Environment of the Caspian Sea (Tehran Convention), entered into
force on August 12, 2006, art. 1.
446

See, for example, International Law Commission, Commentaries on the draft articles on prevention oftransboundary harm from hazardous activities, Yearbook of the International Law Commission 2001, vol. II, Part
Two, (A/56/10), art. 17, para. 3; Convention on the Law of the Non-Navigational Uses of International
Watercourses, entered into force on August 17, 2014, art. 28.1, and Framework Convention for the Protection of
the Marine Environment of the Caspian Sea (Tehran Convention), entered into force on August 12, 2006, arts. 1
and 13.1
447

See, for example, Convention on the Law of the Non-Navigational Uses of International Watercourses,
entered into force on August 17, 2014, art. 28.1; Convention on the Protection and Use of Transboundary
Watercourses and International Lakes of the Economic Commission for Europe (ECE), entered into force on October
6, 1996, art. 14, and Articles on prevention of transboundary harm from hazardous activities, adopted by theInternational Law Commission in 2001 and annexed to the United Nations General Assembly Resolution 62/68 of
December 6, 2007, UN Doc. A/RES/62/68, art. 17. Some international treaties use the term “immediately” or“forthwith” when referring the moment of notification. The Court understands this within the broader term of“promptly” or “as rapidly as possible” mentioned above. See, for example, UNCLOS, art. 198; Rio Declaration on
Environment and Development, adopted at the United Nations Conference on Environment and Development, Riode Janeiro, June 14, 1992, UN Doc. A/CONF.151/26 (Vol. I), Principle 18; Protocol concerning Cooperation in
Combatting Oil Spills in the Wider Caribbean Region, entered into force on 11 October 1986, art. 5, and Convention
on the Early Notification of a Nuclear Accident, entered into force on October 27, 1986, art. 2.
448

Cf. Cartagena Protocol on Biosafety to the Convention on Biodiversity entered into force on September 11,
2003, art. 17, and International Law Commission, Commentaries on the draft Articles on prevention oftransboundary harm from hazardous activities, Yearbook of the International Law Commission 2001, vol. II, Part
Two (A/56/10), art. 17, para. 2.
449

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, paras.
102 and 113.
450

- 76 understood that States must provide “prior and timely notification.” 451
192. The proper moment arises when the State of origin becomes aware or determinesthat an activity implemented within its jurisdiction entails or could entail a potential risk ofsignificant transboundary environmental harm. In this regard, the International Court ofJustice has emphasized that the State within whose jurisdiction the activities are planned
must notify the other State “as soon as it is in possession of a plan which is sufficiently
developed to […] make the preliminary assessment […] of whether the proposed works
might cause significant damage to the other party.” 452 This preliminary evaluation could bemade before the environmental impact assessment has been completed, because this would
allow potentially affected States to take part in the environmental impact assessment
process or to make their own assessment. 453 In any case, the duty of notification clearlyarises as soon as an environmental impact assessment concludes or indicates that there is arisk of significant transboundary harm,454 and must be complied with before the State oforigin takes a decision on the environmental viability of the project, 455 and prior to
execution of the planned activities. 456
193. Consequently, this Court considers that a State must notify States potentiallyaffected by possible significant transboundary environmental harm as soon as it becomesaware of the possibility of that risk. In some cases, this will be before an environmental
impact assessment has been made; for example, as the result of a preliminary study orowing to the type of activity (supra para. 160) and, in other cases, it will only occur
following a determination made by an environmental impact assessment.
ii) Content of the notification
194. Numerous international instruments require the notification to be accompanied by“pertinent information.”457 Although this frequently refers to technical data, 458 the Court
451

Cf. Rio Declaration on Environment and Development, adopted at the United Nations Conference on
Environment and Development, Rio de Janeiro, June 14, 1992, UN Doc. A/CONF.151/26 (Vol. I), Principle 19.
452

105.

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.

See, in this regard, Convention on Environmental Impact Assessment in a Transboundary Context (Espoo
Convention), entered into force on September 10, 1997, art. 3; Framework Convention for the Protection of the
Marine Environment of the Caspian Sea (Tehran Convention), entered into force on August 12, 2006, art. 13.2, andProtocol on Integrated Coastal Management in the Mediterranean, entered into force on March 24, 2011, art. 29.1.
453

Cf. ICJ, Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) andConstruction of a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Judgment of December
16, 2015, para. 104. Similarly, see also, PCA, South China Sea Arbitration (Philippines v. China). Award of July 12,
2016, para. 988. Articles on prevention of transboundary harm from hazardous activities, adopted by theInternational Law Commission in 2001 and annexed to the United Nations General Assembly Resolution 62/68 of
December 6, 2007, UN Doc. A/RES/62/68, art. 8, and UNEP, Resolution 14/25 of June 17 1987, adopting the Goals
and Principles of environmental impact assessment. UN Doc. UNEP/WG.152/4 Annex, Principle 12; International
Law Commission, Commentaries on the draft articles on the law of transboundary aquifers, Yearbook of theInternational Law Commission, 2008, vol. II, Part Two (A/63/10), art. 15.2, para. 5.
454

455

120.

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.

See, for example, Convention on the Law of the Non-Navigational Uses of International Watercourses,
entered into force on August 17, 2014, art. 12, and Draft articles on the law of transboundary aquifers, article
15.2, prepared by the International Law Commission and annexed to United Nations General Assembly Resolution
68/118 of December 19, 2013, UN Doc. A/RES/68/118.
456

See, for example, United Nations General Assembly Resolution 2995 (XXVII) on Cooperation between Statesin the field of the environment, December 15, 1972, UN Doc. A/RES/2995(XXVII); Convention on the Law of the
Non-Navigational Uses of International Watercourses, entered into force on August 17, 2014, art. 12; Draft articles
on the law of transboundary aquifers, article 15.2, prepared by the International Law Commission and annexed to457

- 77 understands that it refers to sufficient and adequate information for the potentially affectedStates to study and evaluate the possible effect of the planned activities; thus, the purposeof the notification is met. In other words, the notification should be accompanied byelements that facilitate an informed determination of the effects of the planned activities.
195. This does not signify that there is an obligation to attach the documentation relating
to the environmental impact assessment in cases of notification prior to the assessment(supra paras. 191 to 193). In this regard, the International Court of Justice has indicatedthat, prior to the environmental impact assessment, the information provided with thenotification “will not necessarily consist of a full assessment of the environmental impact ofthe project, which will often require further time and resources.”459 Nevertheless, indifferent international instruments, there is a growing practice of expressly incorporating therequirement to include the environmental impact assessment as one of the elements of thenotification.460 However, it should be stressed that the foregoing should not be understoodto undermine the obligation to make an environmental impact assessment in cases where
there is a significant risk of transboundary harm (supra paras. 156 to 170) and to inform
potentially affected States of the results.461
iii) Conclusion with regard to the duty of notification
196. Consequently, the Court concludes that States have the obligation to notify otherpotentially affected States when they become aware that an activity planned within theirjurisdiction could result in a risk of significant transboundary harm. This notice must be
timely, before the planned activity is carried out, and must include all relevant information.
This duty arises when the State of origin becomes aware of the potential risk, either before
or as a result of the environmental impact assessment. Carrying out environmental impact
assessments requires time and resources, so in order to ensure that potentially affected
the United Nations General Assembly Resolution 68/118 of December 19, 2013, UN Doc. A/RES/68/118. In theEuropean sphere, see, Convention on Environmental Impact Assessment in a Transboundary Context (Espoo
Convention), entered into force on September 10, 1997, article 2.4 and Appendix III. In 2014, this Convention was
opened to accession by all United Nations Member States; however, under the treaty rules, 13 more ratifications
are required in order for the Meeting of the Parties to consider or approve the accession of a State that is not partof the Economic Commission for Europe.
In this regard, the International Law Commission has indicated that, in general, the technical data and otherrelevant information is revealed during the environmental impact assessment and that this information “includes
not only what might be called raw data, namely fact sheets, statistics, etc., but also the analysis of the information
which was used by the State of origin itself to make the determination regarding the risk of transboundary harm.”
Cf. International Law Commission, Commentaries on the draft articles on prevention of transboundary harm fromhazardous activities, Yearbook of the International Law Commission 2001, vol. II, Part Two (A/56/10), art. 8, para.
6.
458

459

105.

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.

See, for example, Convention on the Law of the Non-Navigational Uses of International Watercourses,
entered into force on August 17, 2014, art. 12; Charter of Waters of the Senegal River, signed on May 28, 2002,
by the Republic of Mali, the Islamic Republic of Mauritania, and he Republic of Senegal, art. 24; Articles on
prevention of transboundary harm from hazardous activities, adopted by the International Law Commission in 2001
and annexed to the United Nations General Assembly Resolution 62/68 of December 6, 2007, UN Doc.
A/RES/62/68, art. 8; UNEP, Resolution 14/25 of June 17 1987, adopting the Goals and Principles of environmental
impact assessment. UN Doc. UNEP/WG.152/4 Annex, Principle 12, and International Law Commission,
Commentaries on the draft articles on the law of transboundary aquifers, Yearbook of the International Law
Commission, 2008, vol. II, Part Two (A/63/10), art. 15.2, para. 5.
460

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, paras.
204 and 119, and ICJ, Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) andConstruction of a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Judgment of December
16, 2015, para. 104. See also, Convention on Environmental Impact Assessment in a Transboundary Context(Espoo Convention), entered into force on September 10, 1997, arts. 3.2, 3.5 and 4.2.
461

- 78 States are able to take the appropriate steps, States of origin are required to give thisnotification as soon as possible, without prejudice to the information transmitted being
completed with the results of the environmental impact assessment when this has beenconcluded. In addition, there is a duty of notification in cases of environmental emergencies,in which case States must notify potentially affected States, without delay, of theenvironmental disasters originated within their jurisdiction.
B.3.b Duty to consult and negotiate with potentially affected States
197. The duty to consult and negotiate with potentially affected States is a form ofcooperation to prevent or to mitigate transboundary harm. Various international
instruments and treaties establish that the duty of notification incorporates the duty toconsult and, when appropriate, to negotiate with States potentially affected by activities
that could entail significant transboundary harm.462 In this regard, the International Court ofJustice has emphasized that the obligation to notify is an essential part of the process
leading the parties to consult and negotiate possible changes in the project to eliminate orminimize the risks.463 This inter-State duty to consult and negotiate with potentially affectedStates differs from the State duty to consult indigenous and tribal communities during
environmental impact assessment processes (supra para. 166).
i) Moment and form of the consultation
198. The consultation of the potentially affected State or States should be carried out in atimely manner and in good faith. In this regard, the Rio Declaration establishes that “States[…] shall consult with [potentially affected] States at an early stage and in good faith.” 464
199. Regarding the meaning of good faith consultations, in the Case of Lake Lanoux, theArbitral Tribunal determined that this meant that the consultation mechanism could not “beconfined to purely formal requirements, such as taking note of complaints, protests or
representations” made by the potentially affected State. According to the Arbitral Tribunal,in this case the rules of good faith obliged the State of origin “to take into consideration thevarious interests involved, to seek to give them every satisfaction compatible with the
pursuit of its own interests, and to show that in this regard it is genuinely concerned toreconcile the interests of the other […] States with its own.” 465 Similarly, the InternationalSee, for example, Convention on the Law of the Non-Navigational Uses of International Watercourses,
entered into force on August 17, 2014, arts. 11 and 17; Convention on the Transboundary Effects of Industrial
Accidents, entered into force on April 19, 2000, art. 4.2; Convention on the Physical Protection of Nuclear Material,
entered into force on February 8, 1987, art. 5.3; Convention on the Prohibition of Military or Any Other Hostile Useof Environmental Modification Techniques (ENMOD), entered into force on October 5, 1978, art. III.2, andCommentaries on the draft articles on the law of transboundary aquifers, article 15.3, prepared by theInternational Law Commission and annexed to United Nations General Assembly Resolution 68/118 of December
19, 2013, UN Doc. A/RES/68/118.
462

463

115.

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, para.

Rio Declaration on Environment and Development, adopted at the United Nations Conference on
Environment and Development, Rio de Janeiro, June 14, 1992, UN Doc. A/CONF.151/26 (Vol. I), Principle 19. Seealso, Convention on the Law of the Non-Navigational Uses of International Watercourses, entered into force on
August 17, 2014, art. 17.2. Regarding shared resources, the Charter of Economic Rights and Duties of States
establishes that: “In the exploitation of natural resources shared by two or more countries, each State must cooperate on the basis of a system of information and prior consultations in order to achieve optimum use of such
resources without causing damage to the legitimate interest of others.”. Cf. Charter of Economic Rights and Dutiesof States, art. 3, adopted by the United Nations General Assembly on December 12, 1974 in Resolution 3281
(XXIX), UN Doc. A/RES/29/3281.
464

Cf. Arbitral Tribunal, Lake Lanoux Arbitration (France v. Spain). Decision of November 16, 1957, p. 32.
Similarly, see Convention on the Law of the Non-Navigational Uses of International Watercourses, entered into465

- 79 Court of Justice has indicated that the consultation and negotiation process calls for themutual willingness of the States to discuss in good faith actual and potential environmental
risks.466 It has also stressed that States are under the obligation to conduct meaningfulnegotiations, which will not be the case when either party insists upon its own position
without contemplating any modification of this.467
200. The International Court of Justice has also indicated that States must find an agreed
solution that takes into account the norms of international environmental law, as well asother provisions, in a joint and integrated way. 468 Similarly, the Articles on prevention oftransboundary harm from hazardous activities establish that States must “enter into
consultations with a view to achieving acceptable solutions regarding measures to be
adopted to prevent significant transboundary harm or, at any event, to minimize the risk
thereof.”469ii) Duty to consult and negotiate in good faith201. That said, the fact that the consultation must be carried out in good faith does notmean that this process “enable[s] each State to delay or impede the programmes andprojects of exploration, exploitation and development of the natural resources of the Statesin whose territories such programmes and projects are carried out.” 470 However, theprinciple of good faith in consultations and negotiations does establish restrictions regarding
the implementation of such activities. In particular, it is understood that States must notauthorize or execute the activities in question while the parties are in the process of
consultation and negotiation.471
202. The International Court of Justice recognized this duty in the Case of Pulp Mills on
the River Uruguay, when it indicated that “as long as the procedural mechanism forcooperation between the parties to prevent significant damage to one of them is taking its
course, the State initiating the planned activity is obliged not to authorize such work and, afortiori, not to carry it out”; to the contrary, “there would be no point in the cooperation
mechanism [… and] the negotiations between the parties would no longer have any
purpose.”472
force on August 17, 2014, art. 17.2.
Cf. ICJ, Case concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia). Judgment of September
25, 1997, para. 112.
466

Cf. ICJ, Case of the North Sea Continental Shelf (Germany v. Denmark). Judgment of February 20, 1969,
para. 85, and Case concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia). Judgment of September
25, 1997, para. 141.
467

Cf. ICJ, Case concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia). Judgment of September
25, 1997, para. 141.
468

These Articles also establish that these consultations shall be carried out “on a reasonable time frame”
agreed by the States concerned. Cf. Articles on prevention of transboundary harm from hazardous activities,
adopted by the International Law Commission in 2001 and annexed to the United Nations General Assembly
Resolution 62/68 of December 6, 2007, UN Doc. A/RES/62/68, art. 9.
469

United Nations General Assembly Resolution 2995 (XXVII) on Cooperation between States in the Field ofEnvironment, December 15, 1972, UN Doc. A/RES/2995(XXVII), para. 3. See also, Convention on Biodiversity
entered into force on December 29, 1993, art. 3.
470

See, for example, Convention on the Law of the Non-Navigational Uses of International Watercourses,
entered into force on August 17, 2014, art. 14; Articles on prevention of transboundary harm from hazardous
activities, adopted by the International Law Commission in 2001 and annexed to the United Nations General
Assembly Resolution 62/68 of December 6, 2007, UN Doc. A/RES/62/68, art. 8.2, and Statute of the River
Uruguay, signed by Argentina and Uruguay on February 26, 1975, art. 9.
471

472

Cf. ICJ, Case of Pulp Mills on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, paras.

- 80 -

203. Nevertheless, the Court notes that this prohibition does not mean that the activities
can only be implemented with the prior consent of the potentially affected States. 473 In theCase of Lake Lanoux, the Arbitral Tribunal determined that the prior consent of thepotentially affected States could not be “established as a custom, even less as a generalprinciple of law”; rather it could only be understood as a requirement that could be claimed
if it were established in a treaty. 474 The International Court of Justice, also, has underscoredthat the obligation to negotiate does not entail the obligation to reach an agreement and,once the negotiating period has ended, the State can go forward with the construction at its
own risk.475 Therefore, this Court considers that, although States have a duty to conduct
consultation and negotiation procedures as forms of cooperation in the face of possible
transboundary harm, they do not necessarily have to reach an agreement, nor is the priorconsent of the potentially affected States required in order to initiate the execution of a
project, unless this obligation is explicitly established in a treaty applicable to the matter inquestion.
204. When States fail to reach an agreement on the activities in question throughconsultation and negotiation, several treaties establish that the parties may have recourse
to diplomatic dispute settlement mechanisms such as negotiation, or judicial mechanisms
such as submitting the dispute to the consideration of the International Court of Justice oran arbitral tribunal.476 Under the American Convention, they would also be able to submit
the dispute to the inter-American human rights system if a State Party alleges that anotherState Party has violated the rights established in the Convention, 477 bearing in mind, among
other matters, the standards and obligations established in this Opinion. In this context, it
should be recalled that the Rio Declaration stipulates that “States shall resolve all theirenvironmental disputes peacefully and by appropriate means in accordance with the Charterof the United Nations.”478

144 and 147
See, for example, Convention on the Law of the Non-Navigational Uses of International Watercourses,
entered into force on August 17, 2014, art. 16.
473

474

Cf. Arbitral Tribunal, Lake Lanoux Arbitration (France v. Spain). Decision of November 16, 1957, para. 13.

Cf. ICJ, Case of Pulp Mill on the River Uruguay (Argentina v. Uruguay). Judgment of April 20, 2010, paras.
150 and 154. It should be mentioned that this decision referred to the interpretation of a specific treaty in force
between the parties – in particular article 7 of the 1975 Statute of the River Uruguay cited above – withoutestablishing whether the said obligations already formed part of customary international law.
475

See, for example, Convention on the Law of the Non-Navigational Uses of International Watercourses,
entered into force on August 17, 2014, arts. 33.2 and 33.10; Statute of the River Uruguay, signed on February 26,
1975, by Argentina and Uruguay, art. 60; Treaty between Uruguay and Argentina concerning the Rio de la Plata
and the Corresponding Maritime Boundary, signed on November 19, 1973, by Argentina and Uruguay, art. 87;
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, enteredinto force on May 5, 1992, art. 20.2; Convention on Cooperation for the Protection and Sustainable Use of the
Danube River (Danube River Protection Convention), entered into force on October 22, 1998, art. 24.2.a; Vienna
Convention for Protection of the Ozone Layer, entered into force on September 22, 1988, art. 11.1 to 11.3, andConvention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention), entered into
force on September 10, 1997, art. 15.
476

Article 45(1) of the American Convention establishes: “Any State Party may, when it deposits its instrument of
ratification of or adherence to this Convention, or at any later time, declare that it recognizes the competence of theCommission to receive and examine communications in which a State Party alleges that another State Party has
committed a violation of a human right set forth in this Convention.”477

Rio Declaration on Environment and Development, adopted at the United Nations Conference on
Environment and Development, Rio de Janeiro, June 14, 1992, UN Doc. A/CONF.151/26 (Vol. I), Principle 26. Seealso, Agenda 21, adopted at the United Nations Conference on Environment and Development, Rio de Janeiro, June
14, 1992, UN Doc. A/CONF.151/26 (Vol. I), para. 39.10.
478

- 81 iii) Conclusion regarding the duty to consult and negotiate
205. Accordingly, this Court concludes that States have the duty to consult and negotiatewith States potentially affected by significant transboundary damage. Such consultations
must be conducted in a timely manner and in good faith. Consequently, this is not merely aformal procedure, but involves the mutual willingness of the States concerned to enter intoa genuine discussion on actual and potential environmental risks, because the purpose ofsuch consultations is the prevention or mitigation of transboundary harm. Also, by virtue ofthe principle of good faith, during the consultation and negotiation process, States mustrefrain from authorizing or executing the activities in question. However, this does not meanthat the activities require the prior consent of other potentially affected States, unless thishas been established in a specific treaty between the parties concerned. The obligation tonegotiate does not entail the obligation to reach an agreement. If the parties fail to reachagreement, they should resort to peaceful diplomatic or judicial dispute settlement
mechanisms.
B.3.c. Exchange of information
206. In addition to the duties of notification, consultation and negotiation in relation toprojects that could entail the risk of transboundary damage, the Court notes that, as part ofthe duty of cooperation, several international instruments contain provisions aimed at“facilitating,” “promoting” or ensuring the exchange of information between States 479
concerning “scientific and technological knowledge,” 480 among other matters. In this way,
numerous international instruments have established an inter-State exchange of
information that differs from the information that should be provided as part of the duty of
notification (supra paras. 187 to 196).
207. The exchange of information could be of particular importance in situations ofpotential significant transboundary harm in order to comply with the obligation of
prevention. In this regard, the International Tribunal for the Law of the Sea has indicatedthat prudence and caution require cooperation in exchanging information concerning risks oreffects of industrial projects.481
208. The Court notes, however, that the incorporation of this type of cooperation intosome international instruments does not constitute sufficient evidence of a customary
obligation in this regard that would go beyond the specific treaties and instruments
establishing it. Nevertheless, the Court considers that it constitutes a positive trend and aSee, for example, United Nations Framework Convention on Climate Change, entered into force on March
21, 1994, art. 4(1).h); Convention on Biodiversity entered into force on December 29, 1993, art. 17.1; Convention
on the Physical Protection of Nuclear Material, entered into force on February 8, 1987, art. 5.2.b), and Convention
on the Law of the Non-Navigational Uses of International Watercourses, entered into force on August 17, 2014, art.
11.
479

In this regard, the Rio Declaration establishes that “States should co-operate to strengthen endogenous
capacity-building for sustainable development by improving scientific understanding through exchanges of scientificand technological knowledge, and by enhancing the development, adaptation, diffusion and transfer oftechnologies, including new and innovative technologies.” Also, the Stockholm Declaration stipulates that “the freeflow of up-to-date scientific information and transfer of experience must be supported and assisted to facilitate thesolution of environmental problems.” Cf. Rio Declaration on Environment and Development, adopted at the United
Nations Conference on Environment and Development, Rio de Janeiro, June 14, 1992, UN Doc. A/CONF.151/26(Vol. I), Principle 9, and Stockholm Declaration on the Human Environment, adopted at the United Nations
Conference on the Human Environment, Stockholm, June 5 to 16, 1972, UN Doc. A /CONF.48/14/Rev.1, Principle
20
480

Cf. ITLOS, The MOX Plant case (Ireland v. The United Kingdom). Case No. 10. Order on provisional
measures of December 3, 2001, paras. 84 and 89.
481

- 82 concrete form of achieving compliance with the duty of cooperation (supra para. 185).
B.3.d. Conclusion with regard to the obligation of cooperation
209. The obligation of cooperation involves a series of inter-State duties. Although theseare duties between States, as mentioned previously, the obligations to respect and toensure human rights require that States abstain from impeding or obstructing other Statesfrom complying with the obligations derived from the Convention (supra para. 94). The
object and purpose of the Convention requires ensuring that States are in the best position
to comply with these obligations, in particular when compliance depends, inter alia, on thecooperation of other States.
210. Consequently, in order to ensure the rights to life and to personal integrity, States
have the obligation to cooperate in good faith to ensure protection against environmental
damage, as established in paragraphs 181 to 205 of this Opinion. In order to comply withthis obligation, States must: (i) notify the other potentially affected States in a timely andprior manner when they become aware that a planned activity within their jurisdiction could
result in a risk of significant transboundary harm, accompanied by the relevant information
as indicated in paragraphs 187 to 196 of this Opinion and, in cases of environmental
emergencies, as indicated in paragraphs 190 and 196 of this Opinion, and (ii) consult andnegotiate with States potentially affected by significant transboundary harm, in a timely
manner and in good faith, as indicated in paragraphs 197 to 205 of this Opinion. These
specific duties are established without detriment to others that may be agreed between theparties or that arise from obligations that the States have previously assumed.
B.4 Procedural obligations to ensure the rights to life and to personal
integrity in the context of environmental protection
211. As mentioned previously, a series of procedural obligations exist with regard toenvironmental matters; so-called because they support the elaboration of improved
environmental policies (supra para. 64). In this regard, inter-American jurisprudence has
recognized the instrumental nature of certain rights established in the American Convention,such as the right of access to information, insofar as they allow for the realization of othertreaty-based rights, including the rights to health, life and personal integrity.482 The Court
will now describe the State obligations of an instrumental or procedural nature that arise
from certain rights under the American Convention in order to ensure the rights to life andto personal integrity in the context of possible environmental damage, as part of the
response to
Colombia’s second and third questions concerning the environmental
obbligatos derived from those rights.
212. In particular, the Court will refer to obligations related to: (1) access to information;(2) public participation, and (3) access to justice, all in relation to the States’ environmental
protection obligations.
B.4.a Access to information
213. This Court has indicated that Article 13 of the Convention, which expressly stipulates
the right to seek and receive information, protects the right of the individual to request
access to information held by the State, with the exceptions permitted under the

Cf. Case of Furlan and family members v. Argentina. Preliminary objections, merits, reparations and costs.
Judgment of August 31, 2012. Series C No. 246, para. 294, and Case of I.V. v. Bolivia, supra, paras. 156 and 163.
482

- 83 Convention’s regime of restrictions.483 State’s actions should be governed by the principles
of disclosure and transparency in public administration that enable all persons subject to theState’s jurisdiction to exercise the democratic control of those actions, and question,
investigate and consider whether public functions are being performed adequately.484 Accessto State-held information of public interest can permit participation in public administration
by means of the social control that can be exercised through such access.485 It also fosterstransparency in the State’s activities and promotes the accountability of its officials in theperformance of their duties.486
214. Regarding activities that could affect the environment, the Court has emphasizedthat access to information on activities and projects that could have an impact on theenvironment is a matter of evident public interest. The Court has considered that
information on activities relating to exploration and exploitation of natural resources in the
territory of indigenous communities, 487 and implementation of a forestry industrialization
project488 is of public interest.
215. Furthermore, the European Court of Human Rights has indicated that authorities who
engage in hazardous activities that could involve consequences to the health of theindividual have the positive obligation to establish an effective and accessible procedure sothat members of the public can access all relevant and appropriate information and areenabled to assess the danger to which they are exposed.489 The African Commission on
Human and Peoples’ Rights has also recognized the obligation to provide access to
information on activities that are hazardous to health and the environment, in theunderstanding that this gives communities exposed to a specific risk the opportunity to takepart in the decision-making that affects them.490
216. Under international environmental law, the specific obligation to provide access to
information on matters relating to the environment is established in Principle 10 of the Rio

Cf. Case of Claude Reyes et al. v. Chile, supra, para. 77; Case of the Kaliña and Lokono Peoples v.
Suriname, supra, para. 261, and Case of I.V. v. Bolivia, supra, para. 156.
483

484

Cf. Case of Claude Reyes et al. v. Chile, supra, para. 86.

485

Cf. Case of Claude Reyes et al. v. Chile, supra, para. 86.

Cf. Case of Palamara Iribarne v. Chile. Merits, reparations and costs. Judgment of November 22, 2005.
Series C No. 135, para. 83, and Case of Claude Reyes et al. v. Chile, supra, para. 87.
486

487

Cf. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, supra, para. 230.

488

Cf. Case of Claude Reyes et al. v. Chile, supra, para. 73.

Cf. ECHR, Case of Guerra and Others v. Italy [GS], No. 14967/89. Judgment of February 19, 1998, para. 60;
ECHR, Case of McGinley and Egan v. The United Kingdom, No. 21825/93 and 23414/94. Judgment of July 9, 1998,
para. 101; ECHR, Case of Taşkin and Others v. Turkey, No. 46117/99. Judgment of November 10, 2004, para. 119,and ECHR, Case of Roche v. The United Kingdom, No. 32555/96. Judgment of October 19, 2005, para. 162. In
addition, applying the Aarhus Convention (Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters), the European Court has established that States mustensure that “in the event of any imminent threat to human health or the environment, whether caused by humanactivities or due to natural causes, all information which could enable the public to take measures to prevent or to
mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without
delay to members of the public who may be affected.” Cf. ECHR, Case of Di Sarno and Others v. Italy, No.
30765/08. Judgment of January 10, 2012, para. 107, and Convention on Access to Information, Public Participationin Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), entered into force on
October 30, 2001, art. 5.
489

Cf. African Commission on Human and Peoples’ Rights, Social and Economic Rights Center (SERAC) andCenter for Economic and Social Rights (CESR) v. Nigeria. Communication 155/96. Decision of October 27, 2001,
para. 53 and operative paragraphs.
490

- 84 Declaration.491 In addition, numerous universal 492 and regional493 treaties exist that include
the obligation to provide access to information on environmental matters.
217. In addition, the Court observes that access to information also forms the basis forthe exercise of other rights. In particular, access to information has an intrinsic relationshipto public participation with regard to sustainable development and environmental
protection. The right of access to information has been incorporated into numerous
sustainable development projects and agendas, such as Agenda 21 adopted by the United
Nations Conference on Environment and Development. 494 In the inter-American sphere, it
has been incorporated into the 2000 Inter-American Strategy for the Promotion of Public
Participation in Decision-making on Sustainable Development, 495 and the Declaration on the
Application of Principle 10 of the Rio Declaration on Environment and Development adopted
during the 2012 United Nations Conference on Sustainable Development,496 and its Plan of491

In this regard, the Rio Declaration established that “[a]t the national level, each individual shall haveappropriate access to information concerning the environment that is held by public authorities, including
information on hazardous materials and activities in their communities, and the opportunity to participate indecision-making processes.” Rio Declaration on Environment and Development, United Nations Conference on
Environment and Development, Río de Janeiro, June 3 to 14 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1),
Principle 10. See also, International Law Commission, Commentaries on the draft Articles on prevention oftransboundary harm from hazardous activities, Yearbook of the International Law Commission 2001, vol. II, Part
Two (A/56/10), art. 13, para. 3 to 5.
See, inter alia, United Nations Framework Convention on Climate Change, entered into force on March 21,
1994, art. 6.a.ii; Convention on Biodiversity entered into force on December 29, 1993, art. 14(1).a; Kyoto Protocol
to the United Nations Framework Convention on Climate Change, entered into force on February 16, 2005, art.
10.e; United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or
Desertification, Particularly in Africa, entered into force on December 26, 1996, arts. 16.f and 19.3.b; Convention
on Nuclear Safety, entered into force on 24 October 1996, art. 16.2; Minamata Convention on Mercury, enteredinto force on August 16, 2017, art. 18.1, and Rotterdam Convention on the Prior Informed Consent Procedure for
Certain Hazardous Chemicals and Pesticides in International Trade, entered into force on February 24 2004, art.
15.2.
492

See, inter alia, North American Agreement on Environmental Cooperation, adopted on September 14, 1993,
by the Governments of Canada, the United Mexican States and the United States of America, entered into force on
January 1, 1994, art. 4; Convention on Environmental Impact Assessment in a Transboundary Context (Espoo
Convention), entered into force on September 10, 1997, arts. 2.6 and 4.2; Protocol on Strategic Environmental
Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context, entered into
force on July 11, 2010, art. 8; Framework Convention for the Protection of the Marine Environment of the CaspianSea (Tehran Convention), entered into force on August 12, 2006, art. 21.2; Convention on Access to Information,
Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) of the
Economic Commission for Europe, entered into force on October 30, 2001, art. 1; Convention on the Protection and
Use of Transboundary Watercourses and International Lakes of the Economic Commission for Europe (ECE),
entered into force on October 6, 1996, art. 16, and African Convention on the Conservation of Nature and Natural
Resources (revised in 1968), entered into force in July 2016, art. XVI.
493

Cf. Agenda 21, adopted at the United Nations Conference on Environment and Development, Rio de Janeiro,
June 14, 1992, UN Doc. A/CONF.151/26 (Vol. I), para. 23.2. See also, for example, Guidelines for Development of
National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters(Bali Guidelines) adopted in Bali on February 26, 2010, by the UNEP Governing Council, Decision SS.XI/5, part A,
Guideline 10, and Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR),entered into force on March 25, 1998, art. 9.2.
494

Cf. Inter-American Strategy for the Promotion of Public Participation in Decision-making on Sustainable
Development, adopted in Washington in April 2000 by the Inter-American Committee on Sustainable Development,
OEA/Ser.W/II.5, CIDI/doc. 25/00 (April 20, 2000), pp. 19, 20, 24 and 25.
495

Cf. Declaration on the application of Principle 10 of the Rio Declaration on Environment and Development,
submitted in annex to the note verbale dated June 27, 2012, from the Permanent Mission of Chile to the United
Nations addressed to the Secretary-General of the United Nations Conference on Sustainable Development, UN
Doc. A/CONF.216/13. This Declaration was issued with the support of the Economic Commission for Latin America
and the Caribbean (ECLAC) as Technical Secretariat. Currently it has been signed by 23 countries and is open toaccession by all the countries of Latin America and the Caribbean, information available at:
http://negociacionp10.cepal.org/6/es/antecedentes.
496

- 85 Action to 2014.497
218. The Court takes note that, within the framework of these plans and declarations, theStates of Latin America and the Caribbean have commenced a process towards the adoptionof a regional instrument on access to information, public participation, and access to justicein environmental matters.498 According to information publicly available, this process iscurrently at the stage of negotiation and review.499 The Court welcomes this initiative as apositive measure to ensure the right of access to information in this matter.
i)

Meaning and scope of this obligation in relation to the environment

219. This Court has indicated that, under this obligation, information must be handed overwithout the need to prove direct interest or personal involvement in order to obtain it,
except in cases in which a legitimate restriction is applied.500
220. Regarding the characteristics of this obligation, the Bali Guidelines 501 and otherinternational instruments502 establish that access to environmental information should beaffordable, effective and timely.
221.

In addition, as the Court has recognized, the right of the individual to obtain

Cf. Plan of Action to 2014 for the implementation of the declaration on the application of Principle 10 of the
Rio Declaration on Environment and Development in Latin America and the Caribbean and its road map, adopted in
Guadalajara (Mexico) on April 17, 2013, by the Economic Commission for Latin America and the Caribbean(ECLAC).
497

Cf. Lima Vision for a regional instrument on access rights relating to the environment, adopted in Lima on
October 31, 2013, by ECLAC during the Third Meeting of the Focal Points appointed by the Governments of thesignatory countries of the Declaration on the application of Principle 10 in Latin America and the Caribbean, andTraining
WorkshoponapplicationofPrinciple
10,
LC/L.3780,
Availableat:
http://repositorio.cepal.org/bitstream/handle/ 11362/38733/1/S2013913_es.pdf; San José content for the regional
instrument, adopted in Santiago on November 6, 2014, by ECLAC, during the Fourth Meeting of the Focal Points
appointed by the Governments of the signatory countries of the Declaration on the application of Principle 10 of the
Rio Declaration on Environment and Development in Latin America and the Caribbean, LC/L.3970, available at:
http://repositorio.cepal.org/bitstream/handle/11362/38988/S1500157_es.pdf?sequence=1&isAllowed=y,andSantiago decision, adopted in Santiago on November 6, 2014, by ECLAC, during the Fourth Meeting of the Focal
Points appointed by the Governments of the signatory countries of the Declaration on the application of Principle 10of the Rio Declaration on Environment and Development in Latin America and the Caribbean, available at:
http://repositorio.cepal.org/bitstream/handle/11362/37213/S1420708_es.pdf? sequence=1&isAllowed=y.
498

Between 2012 and 2017, Governments of the signatory countries of the Declaration on the application of
Principle 10 of the Rio Declaration on Environment and Development in Latin America and the Caribbean held eight
meetings to negotiate and revise the text of the regional instrument on access to information, public participationand justice in environmental matters. The seventh version of the text compiled by the committee includes the text
proposed by the countries for the preliminary document of the regional agreement on access to information, public
participation and access to justice in environmental matters in Latin America and the Caribbean, published on
September 6, 2017, LC/L.4059/Rev.6, available at: http://repositorio.cepal.org/bitstream/handle/11362/39050/
S1700797_ es.pdf?sequence=34&isAllowed=y.
499

Cf. Case of Claude Reyes et al. v. Chile, supra, para. 77, and Case of the Kaliña and Lokono Peoples v.
Suriname, supra, para. 261.
500

Cf. Guidelines for Development of National Legislation on Access to Information, Public Participation andAccess to Justice in Environmental Matters (Bali Guidelines) adopted in Bali on February 26, 2010, by the UNEP
Governing Council, Decision SS.XI/5, part A, Guideline 1.
501

See, for example, Convention on the Protection and Use of Transboundary Watercourses and International
Lakes of the Economic Commission for Europe (ECE), entered into force on October 6, 1996, art. 16.2; Convention
for the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention), entered into force on
January 17, 2000, art. 17.2, and Inter-American Strategy for the Promotion of Public Participation in Decisionmaking on Sustainable Development, adopted in Washington in April 2000 by the Inter-American Committee on
Sustainable Development, OEA/Ser.W/II.5, CIDI/doc. 25/00 (April 20, 2000), pp. 19 and 20, Available at:https://www.oas.org/dsd/PDF_files/ispspanish.pdf.
502

- 86 information is complemented by a correlative positive obligation of the State to provide theinformation requested, so that the individual may have access to it in order to examine andassess it.503 In this regard, the State obligation to provide information, ex officio, the socalled “obligation of active transparency,” imposes on States the obligation to provide thenecessary information for individuals to be able to exercise other rights, and this isparticularly relevant in relation to the rights to life, personal integrity and health. 504
Moreover, this Court has indicated that the obligation of active transparency imposes onStates the obligation to provide the public with as much information as possible on an
informal basis.505 This information should be complete, understandable, in an accessible
language, and current, and be provided in a way that is helpful to the different sectors of
the population.506
222. In the specific sphere of environmental law, numerous international instruments
establish the duty of the State to prepare and disseminate, distribute or publish, 507 in somecases periodically, updated information on the situation of the environment in general or on
the specific area covered by the instrument in question.
223. The Court understands that in the case of activities that could affect other rights(supra para. 221), the obligation of active transparency encompasses the duty of States topublish, ex officio, relevant and necessary information on the environment in order toensure the human rights under the Convention. This includes information on environmental
quality, environmental impact on health and the factors that influence this, and also
information on legislation and policies, as well as assistance on how to obtain suchinformation. The Court also notes that this obligation is particularly important in cases ofenvironmental emergencies that require relevant and necessary information to bedisseminated immediately and without delay to comply with the duty of prevention.

503

Cf. Case of Claude Reyes et al. v. Chile, supra, para. 77, and Case of I.V. v. Bolivia, supra, para. 156.

Cf. Case of Furlan and family members v. Argentina, supra, para. 294, and Case of I.V. v. Bolivia, supra,
paras. 156 and 163.
504

Cf. Case of Furlan and family members v. Argentina, supra, para. 294. In compliance with this obligation,
States must act in good faith so that their actions ensure the satisfaction of the general interest and do not betray
the individual’s confidence in the State’s administration. Therefore, it should deliver information that is clear,complete, timely, true and up-to-date.
505

Cf. Case of Furlan and family members v. Argentina, supra, para. 294. Also, the scope of this obligation has
been defined in the resolution of the Inter-American Juridical Committee on the “Principles on the Right of Accessto Information,” which establish that “[p]ublic bodies should disseminate information about their functions andactivities – including, but not limited to, their policies, opportunities for consultation, activities which affectmembers of the public, their budget, and subsidies, benefits and contracts – on a routine and proactive basis, evenin the absence of a specific request, and in a manner which ensures that the information is accessible andunderstandable.” Inter-American Juridical Committee, Principles on the Right of Access to Information, 73rd regularsession, August 7, 2008, OEA/Ser.Q CJI/RES.147 (LXXIII-O/08), fourth operative paragraph
506

See, for example, UNCLOS, art. 244(1); Guidelines for Development of National Legislation on Access toInformation, Public Participation and Access to Justice in Environmental Matters (Bali Guidelines) adopted in Bali on
February 26, 2010, by the UNEP Governing Council, Decision SS.XI/5, part A, Guideline 5; Inter-American Strategy
for the Promotion of Public Participation in Decision-making on Sustainable Development, adopted in Washington in
April 2000 by the Inter-American Committee on Sustainable Development, OEA/Ser.W/II.5, CIDI/doc. 25/00 (April
20, 2000), pp. 19 and 20; Convention on Access to Information, Public Participation in Decision-Making and Accessto Justice in Environmental Matters (Aarhus Convention), entered into force on October 30, 2001, art. 5;
Convention for the strengthening of the Inter-American Tropical Tuna Commission established by the 1949
Convention between the United States of America and the Republic of Costa Rica (Antigua Convention), enteredinto force on August 27, 2010, art. XVI.1.a); North American Agreement on Environmental Cooperation, enteredinto force on January 1, 1994, art. 4, and Articles on prevention of transboundary harm from hazardous activities,
adopted by the International Law Commission in 2001 and annexed to the United Nations General Assembly
Resolution 62/68 of December 6, 2007, UN Doc. A/RES/62/68Doc. A/RES/62/68, art. 13.
507

- 87 ii) Restrictions to access to information
224. The Court reiterates that the right of access to information held by the State admits
restrictions, provided these have been established previously by law, respond to a purpose
permitted by the American Convention (“respect for the rights or reputation of others” or“the protection of national security, public order, or public health or morals”), and arenecessary and proportionate in a democratic society, which will depend on whether such
restrictions are designed to meet an essential public interest. 508 Consequently, the principleof maximum disclosure is applicable, based on the presumption that all information isaccessible, subject to a limited system of exceptions.509 Accordingly, the burden of proof tojustify any denial of access to information must be borne by the entity from whom theinformation was requested.510 If it is necessary to refuse to provide the requested
information, the State must justify this refusal in a way that allows the reasons and rules on
which it has based the decision not to deliver the information to be known.511 In theabsence of a reasoned response from the State, the decision is arbitrary. 512iii) Conclusion regarding access to information
225. Consequently, this Court considers that States have the obligation to respect andensure access to information concerning possible environmental impacts. This obligationmust be ensured to every person subject to their jurisdiction, in an accessible, effective andtimely manner, without the person requesting the information having to prove a specificinterest. Furthermore, in the context of environmental protection, this obligation involves
both providing mechanisms and procedures for individuals to request information, and also
the active compilation and dissemination of information by the State. This right is not
absolute, and therefore admits restrictions, provided these have been established previously
by law, respond to a purpose permitted by the American Convention, and are necessary andproportionate to respond to objectives of general interest in a democratic society.
B.4.b Public participation
226. Public participation is one of the fundamental pillars of instrumental or proceduralrights, because it is through participation that the individual exercises democratic control of
the State’s activities and is able to question, investigate and assess compliance with public
functions. In this regard, public participation allows the individual to become part of thedecision-making process and have his or her opinion heard. In particular, public
participation enables communities to require accountability from public authorities when
Cf. Case of Claude Reyes et al. v. Chile, supra, paras. 88 to 91, and Case of the Kaliña and Lokono Peoples
v. Suriname, supra, paras. 261 and 262. In relation to international environmental law, it has frequently been
understood that the protection of the rights of others includes the rights to privacy and to intellectual property, theprotection of business confidentiality and of criminal investigations, among other matters. See, inter alia,
Convention for the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention), entered into
force on January 17, 2000, arts. 17 and 18; Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters (Aarhus Convention), entered into force on October 30,
2001, art. 4, and International Law Commission, Commentaries on the draft Articles on prevention oftransboundary harm from hazardous activities, Yearbook of the International Law Commission 2001, vol. II, Part
Two (A/56/10), art. 14, para. 1 to 3.
508

509

Cf. Case of Claude Reyes et al. v. Chile, supra, para. 92.

510

Cf. Case of the Kaliña and Lokono Peoples v. Suriname, supra, para. 262.

Cf. Case of Claude Reyes et al. v. Chile, supra, para. 77, and Case of the Kaliña and Lokono Peoples v.
Suriname, supra, para. 262
511

Cf. Case of Claude Reyes et al. v. Chile, supra, paras. 98 and 120, and Case of the Kaliña and Lokono
Peoples v. Suriname, supra, para. 262.
512

- 88 taking decisions and, also, improves the efficiency and credibility of government processes.
As mentioned on previous occasions, public participation requires implementation of theprinciples of disclosure and transparency and, above all, should be supported by access to
information that permits social control through effective and responsible participation.513
227. The right of the public to take part in the management of public affairs is establishedin Article 23(1)(a) of the American Convention. 514 In the context of indigenous communities,
this Court has determined that the State must ensure the rights to consultation and toparticipation at all stages of the planning and implementation of a project or measure that
could have an impact on the territory of an indigenous or tribal community, or on otherrights that are essential for their survival as a people515 in keeping with their customs andtraditions.516 This means that, in addition to receiving and providing information, the State
must make sure that members of the community are aware of the possible risks, including
health and environmental risks, so that they can provide a voluntary and informed opinion
about any project that could have an impact on their territory within the consultation
process.517 The State must, therefore, create sustained, effective and trustworthy channels
for dialogue with the indigenous peoples, through their representative institutions, in the
consultation and participation procedures.518
228. In the case of environmental matters, participation is a mechanism for integrating
public concerns and knowledge into public policy decisions affecting the environment. 519
Moreover, participation in decision-making makes Governments better able to respondpromptly to public concerns and demands, build consensus, and secure increased
acceptance of and compliance with environmental decisions. 520
229. The European Court of Human Rights has underlined the importance of public
participation in environmental decision-making as a procedural guarantee of the right toprivate and family life.521 It has also stressed that an essential element of this procedural
guarantee is the ability of individuals to challenge official acts or omissions that affect their
Cf. Case of Claude Reyes et al. v. Chile, supra, para. 86. See also, Inter-American Strategy for the
Promotion of Public Participation in Decision-making on Sustainable Development, adopted in Washington in April
2000 by the Inter-American Committee on Sustainable Development, OEA/Ser.W/II.5, CIDI/doc. 25/00 (April 20,
2000), p. 19.
513

Article 23(1)(a) of the American Convention establishes that “[e]very citizen shall enjoy the following rights
and opportunities: (a) to take part in the conduct of public affairs, directly or through freely chosen representatives.”
514

Cf. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, supra, para. 167, and Case of the Triunfode la Cruz Garifuna Community and its members v. Honduras, supra, para. 215.
515

Cf. Case of the Saramaka People v. Suriname. Preliminary objections, merits, reparations and costs, supra,
para. 133, and Case of the Kaliña and Lokono Peoples v. Suriname, supra, para. 214.
516

Cf. Case of the Saramaka People v. Suriname. Interpretation of the judgment on preliminary objections,merits, reparations and costs, supra, para. 40, and Case of the Kaliña and Lokono Peoples v. Suriname, supra,
para. 214.
517

Cf. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, supra, para. 166, and Case of the Triunfode la Cruz Garifuna Community and its members v. Honduras, supra, para. 159.
518

Cf. Economic Commission for Latin America and the Caribbean (ECLAC), Access to information, participationand justice in environmental matters in Latin America and the Caribbean: towards achievement of the 2030
Agenda for Sustainable Development (LC/TS.2017/83), Santiago de Chile, October 2018, p.13, Available at:https://repositorio.cepal.org/bitstream/handle/11362/43302/1/S1701020_en.pdf.
519

Cf. Economic Commission for Latin America and the Caribbean (ECLAC), Access to information, participationand justice in environmental matters in Latin America and the Caribbean: towards achievement of the 2030
Agenda for Sustainable Development (LC/TS.2017/83), Santiago de Chile, October 2018, p.13, Available at:https://repositorio.cepal.org/bitstream/handle/11362/43302/1/S1701020_en.pdf.
520

521

Cf. ECHR, Case of Grimkovskaya v. Ukraine, No. 38182/03. Judgment of July 21, 2011, para. 69.

- 89 rights before an independent authority, 522 and to play an active role in the planning
procedures for activities and projects by expressing their opinions.523
230. The right of public participation is also reflected in various regional and international
instruments relating to the environment and sustainable development, 524 the Declarations ofStockholm525 and Rio,526 and the World Charter for Nature which establishes:
All persons, in accordance with their national legislation, shall have the opportunity toparticipate, individually or with others, in the formulation of decisions of direct concern totheir environment, and shall have access to means of redress when their environment
has suffered damage or degradation.527

231. Therefore, this Court considers that the State obligation to ensure the participation of
persons subject to their jurisdiction in decision-making and policies that could affect theenvironment, without discrimination and in a fair, significant and transparent manner, isderived from the right to participate in public affairs and, to this end, States must havepreviously ensured access to the necessary information.528
232. As regards the moment of the public participation, the State must ensure that there
are opportunities for effective participation from the initial stages of the decision-making
process, and inform the public about these opportunities for participation. 529 Lastly, different
Cf. ECHR, Case of Dubetska and Others v. Ukraine, No. 30499/03. Judgment of February 10, 2011, para.
143; ECHR, Case of Grimkovskaya v. Ukraine, No. 38182/03. Judgment of July 21, 2011, para. 69, and ECHR,
Case of Taşkin and Others v. Turkey, No. 46117/99. Judgment of November 10, 2004, para. 119.
522

523

Cf. ECHR, Case of Eckenbrecht v. Germany, No. 25330/10. Decision of June 10, 2014, para. 42.

See, for example, United Nations Framework Convention on Climate Change, entered into force on March
21, 1994, art. 6.a.iii; Inter-American Strategy for the Promotion of Public Participation in Decision-making on
Sustainable Development, adopted in Washington in April 2000 by the Inter-American Committee on Sustainable
Development, OEA/Ser.W/II.5, CIDI/doc. 25/00 (April 20, 2000), pp. 46 and 47; Report of the World Commission
on Environment and Development “Our Common Future” (Brundtland Report), adopted in Nairobi on June 16,
1987, Annex to UN Doc. A/42/427, Principle 20, and Agenda 21, adopted at the United Nations Conference on
Environment and Development, Rio de Janeiro, June 14, 1992, UN Doc. A/CONF.151/26 (Vol. I), paras. 8.3.c,
8.4.f, 8.21.f and 23.2.
524

Cf. Stockholm Declaration on the Human Environment, United Nations Conference on the Human
Environment, Stockholm, June 5 to 16, 1972, UN Doc. A/CONF.48/14/Rev.1, preamble.
525

Cf. Rio Declaration on Environment and Development, United Nations Conference on Environment andDevelopment, Río de Janeiro, June 3 to 14 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Principle 10, andGuidelines for Development of National Legislation on Access to Information, Public Participation and Access toJustice in Environmental Matters (Bali Guidelines) adopted in Bali on February 26, 2010, by the UNEP Governing
Council, Decision SS.XI/5, part A.
526

World Charter for Nature, adopted by the General Assembly of the United Nations in Resolution 37/7 ofOctober 28, 1982, UN Doc. A/RES/37/7, para. 23.
527

See, for example, in the European sphere, article 1 of the Aarhus Convention explicitly establishes “therights of access to information, public participation in decision-making, and access to justice in environmental
matters.” Regarding public participation, article 7 establishes: “[e]ach Party shall make appropriate practical and/or
other provisions for the public to participate during the preparation of plans and programmes relating to theenvironment within a transparent and fair framework, having provided the necessary information to the public.” Cf.
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice inEnvironmental Matters (Aarhus Convention), entered into force on October 30, 2001, arts. 1 and 7.
528

See, for example, Guidelines for Development of National Legislation on Access to Information, Public
Participation and Access to Justice in Environmental Matters (Bali Guidelines) adopted in Bali on February 26, 2010,by the UNEP Governing Council, Decision SS.XI/5, Part A, Guideline 8; Convention on Access to Information, Public
Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), entered into
force on October 30, 2001, art. 6, and International Law Commission, Commentaries on the draft Articles on
prevention of transboundary harm from hazardous activities, Yearbook of the International Law Commission 2001,
vol. II, Part Two (A/56/10), art. 13, paras. 1 and 3.
529

- 90 mechanisms exist for public participation in environmental matters including public
hearings, notification and consultations, as well as participation in the elaboration andenforcement of laws; there are also mechanisms for judicial review.530
B.4.c Access to justice233. The Court has indicated that access to justice is a peremptory norm of international
law.531 In general, the Court has maintained that States Parties to the American Convention
are obliged to provide effective judicial remedies to the victims of human rights violations(Article 25), remedies that must be substantiated in accordance with the rules of due
process of law (Article 8(1)), all within the general obligation of these States to ensure thefree and full exercise of the rights recognized in the Convention to all persons subject totheir jurisdiction (Article 1(1)).532
234. In the context of environmental protection, access to justice permits the individual toensure that environmental standards are enforced and provides a means of redressing any
human rights violations that may result from failure to comply with environmental
standards, and includes remedies and reparation. This also implies that access to justiceguarantees the full realization of the rights to public participation and access to information,
through the corresponding judicial mechanisms.
235. The European Court of Human Rights has also referred to protection of the rights ofaccess to information and public participation through access to justice. In particular, as
previously mentioned, the European Court has emphasized the positive obligation toestablish an effective and accessible procedure for individuals to have access to all relevant
and appropriate information to evaluate the risks from hazardous activities (supra para.
215). Also, with regard to public participation, it has stressed that “the individuals
concerned must be able to appeal to the courts against any decision, act or omission where
they consider that their interests or their comments have not been given sufficient weight in
the decision-making process.”533
236. Under international environmental law, several international instruments expressly
establish the obligation to guarantee access to justice in environmental contexts, even in
the case of transboundary harm.534 Principle 10 of the Rio Declaration stipulates that
Several such mechanisms have been established in the domestic legal systems of various OAS Member
States. See, for example: (Argentina) General Environment Act of Argentina, Law No. 25,675 of November 27,
2002, arts. 19 and 20); (Bolivia) Constitution of the State of Bolivia, art. 343; (Ecuador) General Environmental
Code of Ecuador of April 12, 2017, art. 184; (Guatemala) Regulations on Environmental Assessment, Control andMonitoring of Guatemala, Decision No. 137-2016 of July 11, 2016, art. 43; (Mexico) General Law on Ecological
Balance and Environmental Protection of the United Mexican States of January 28, 1988, art. 20 bis 5, and(Uruguay) Environmental Protection Act No. 17,283 of December 12, 2000, arts. 6 and 7 and Environment Act No.
16.466 of January 19, 1994, arts. 14.
530

Cf. Case of Goiburú et al. v. Paraguay. Merits, reparations and costs. Judgment of September 11, 2006.
Series C No. 153, para. 131, and Case of La Cantuta v. Peru. Merits, reparations and costs. Judgment of November
29, 2006. Series C No. 162, para. 160
531

Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C
No. 1, para. 91, and Case of Favela Nova Brasília v. Brazil. Preliminary objections, merits, reparations and costs.
Judgment of February 16, 2017. Series C No. 333, para. 174.
532

533

Cf. ECHR, Case of Taşkin and Others v. Turkey, No. 46117/99. Judgment of November 10, 2004, para. 119.

See, for example, Report of the World Commission on Environment and Development “Our Common Future”(Brundtland Report), adopted in Nairobi on June 16, 1987, Annex to UN Doc. A/42/427, Principle 20, and Agenda
21, adopted at the United Nations Conference on Environment and Development, Rio de Janeiro, June 14, 1992,
UN Doc. A/CONF.151/26 (Vol. I), para. 20; Code of Conduct on Accidental Pollution of Transboundary Inland
Waters, adopted in 1990 by the Economic Commission for Europe, arts. VI.1, VI.4 and VII.3; Convention on the534

- 91 “access to judicial and administrative proceedings, including redress and remedy, shall be
provided.”535 Also, legal redress to obtain compensation for environmental damage isestablished in article 23 of the World Charter for Nature 536 and in Agenda 21.537
237. Based on the above, the Court establishes that States have the obligation toguarantee access to justice in relation to the State environmental protection obligations
described in this Opinion. Accordingly, States must guarantee that the public have access toremedies conducted in accordance with due process of law to contest any provision,decision, act or omission of the public authorities that violates or could violate obligations
under environmental law; to ensure the full realization of the other procedural rights (thatis, the right of access to information and to public participation), and to redress any
violation of their rights as a result of failure to comply with obligations under environmentallaw.
i) Access to justice in cases of transboundary harm
238. The Court has established that, in the case of transboundary harm, it is understoodthat a person is under the jurisdiction of the State of origin when there is a causal link
between the project or activity that has been or will be executed in its territory and theeffects on the human rights of persons outside its territory (supra paras. 95 to 103).
Therefore, States have the obligation to guarantee access to justice to anyone potentiallyaffected by transboundary harm originated in their territory.
239. Additionally, owing to the general obligation of non-discrimination, States mustensure access to justice to persons affected by transboundary harm originated in theirterritory without any discrimination on the basis of nationality or residence or place where
the harm occurred. In this regard, several international treaties and instruments establish
the non-discriminatory application of access to judicial and administrative procedures for
persons potentially affected who are not in the territory of the State of origin. 538
240. Consequently, the Court clarifies that States must ensure access to justice, without
discrimination, to persons affected by environmental damage originating in their territory,
even when such persons live or are outside this territory.
B.4.d. Conclusion regarding procedural obligations
241.

Based on all the above, the Court concludes that in order to ensure the rights to life

Transboundary Effects of Industrial Accidents, entered into force on April 19, 2000, art. 9.3, and Convention on
Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters(Aarhus Convention), entered into force on October 30, 2001.
Cf. Rio Declaration on Environment and Development, United Nations Conference on Environment andDevelopment, Río de Janeiro, June 3 to 14 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Principle 10
535

536

Cf. World Charter for Nature, adopted by the General Assembly of the United Nations in Resolution 37/7 ofOctober 28, 1982, UN Doc. A/RES/37/7, para. 23.
Cf. Agenda 21, adopted at the United Nations Conference on Environment and Development, Rio de Janeiro,
June 14, 1992, UN Doc. A/CONF.151/26 (Vol. I), para. 8.18.
537

See, for example, Convention on the Law of the Non-Navigational Uses of International Watercourses,
entered into force on August 17, 2014, art. 32; Convention on the Transboundary Effects of Industrial Accidents,
entered into force on April 19, 2000, art. 9.3, and Report of the World Commission on Environment andDevelopment “Our Common Future” (Brundtland Report), adopted in Nairobi on June 16, 1987, Annex to UN Doc.
A/42/427, Principles 6, 13 and 20. See also, Human Rights Council, Mapping report of the Independent Expert on
the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable
environment, John H. Knox, of December 30, 2013, UN Doc. A/HRC/25/53, paras. 69 and 81.
538

- 92 and to personal integrity, as well as any other right affected, States have the obligation toguarantee: (i) the right of access to information related to potential environmental harm,
established in Article 13 of the American Convention, in accordance with paragraphs 213 to225 of this Opinion; (ii) the right to public participation of the persons subject to theirjurisdiction, established in Article 23(1)(a) of the American Convention, in policies anddecision-making that may affect the environment, in accordance with paragraphs 226 to
232 of this Opinion, and (iii) access to justice, established in Articles 8 and 25 of theAmerican Convention, in relation to the State obligations with regard to protection of theenvironment described previously, in accordance with paragraphs 233 to 240 of thisOpinion.
B.5 Conclusions with regard to State obligations
242. Based on the above, in response to the second and third questions of the requesting
State, it is the Court’s opinion that, in order to respect and to ensure the rights to life and to
personal integrity:
a. States have the obligation to prevent significant environmental damage within or
outside their territory, in accordance with paragraphs 127 to 174 of this Opinion.
b. To comply with the obligation of prevention, States must regulate, supervise andmonitor the activities within their jurisdiction that could produce significant
environmental damage; conduct environmental impact assessments when there is arisk of significant environmental damage; prepare a contingency plan to establish
safety measures and procedures to minimize the possibility of major environmental
accidents, and mitigate any significant environmental damage that may haveoccurred, even when it has happened despite the State’s preventive actions, inaccordance with paragraph 141 to 174 of this Opinion.
c. States must act in keeping with the precautionary principle in order to protect therights to life and to personal integrity in the case of potential serious or irreversible
damage to the environment, even in the absence of scientific certainty, in
accordance with paragraph 180 of this Opinion.
d. States have the obligation to cooperate, in good faith, to protect against
environmental damage, in accordance with paragraphs 181 to 210 of this Opinion.
e. To comply with the obligation of cooperation, States must notify other potentiallyaffected States when they become aware that an activity planned under theirjurisdiction could result in a risk of significant transboundary harm and also in casesof environmental emergencies, and consult and negotiate in good faith with States
potentially affected by significant transboundary harm, in accordance withparagraphs 187 to 210 of this Opinion.
f.

States have the obligation to ensure the right of access to information, establishedin Article 13 of the American Convention, concerning potential environmental
impacts, in accordance with paragraphs 213 to 225 of this Opinion;g. States have the obligation to ensure the right to public participation of the persons
subject to their jurisdiction established in Article 23(1)(a) of the American
Convention, in policies and decision-making that could affect the environment, in
accordance with paragraphs 226 to 232 of this Opinion, and- 93 h. States have the obligation to ensure access to justice in relation to the Stateobligations with regard to protection of the environment set out in this Opinion, in
accordance with paragraphs 233 to 240 of this Opinion.
243. The obligations described above have been developed in relation to the generalobligations to respect and to ensure the rights to life and to personal integrity, because
these were the rights that the State referred to in its request (supra paras. 37, 38, 46 and69). However, this does not mean that the said obligations do not exist with regard to theother rights mentioned in this Opinion as being particularly vulnerable in the case ofenvironmental degradation (supra paras. 56 to 69).
IX
OPINION
244. For the above reasons, in interpretation of Articles 1(1), 2, 4 and 5 of the American
Convention on Human Rights,
THE COURTDECIDES
unanimously, that:1.

It is competent to issue this Advisory Opinion.

AND IS OF THE OPINION,
unanimously that:2.
The concept of jurisdiction under Article 1(1) of the American Convention
encompasses any situation in which a State exercises authority or effective control over anindividual, either within or outside its territory, in accordance with paragraphs 72 to 81 of
this Opinion.
3.
To determine the circumstances that reveal a State’s exercise of jurisdiction, thespecific factual and legal circumstances of each particular case must be examined, and it is
not sufficient that a person be located in a specific geographical area, such as the area of
application of an environmental protection treaty, in accordance with paragraphs 83 to 94 of
this Opinion.
4.
For the purposes of Article 1(1) of the American Convention, it is understood that
individuals whose rights under the Convention have been violated owing to transboundary
harm are subject to the jurisdiction of the State of origin of the harm, because that State
exercises effective control over the activities carried out in its territory or under its
jurisdiction, in accordance with paragraphs 95 to 103 of this Opinion.
5.
To respect and to ensure the rights to life and to personal integrity of the persons
subject to their jurisdiction, States have the obligation to prevent significant environmental
damage within or outside their territory and, to this end, must regulate, supervise andmonitor activities within their jurisdiction that could produce significant environmental
damage; conduct environmental impact assessments when there is a risk of significant
environmental damage; prepare a contingency plan to establish safety measures and- 94 procedures to minimize the possibility of major environmental accidents, and mitigate any
significant environmental damage that may have occurred, in accordance with paragraphs
127 and 174 of this Opinion.
6.
States must act in accordance with the precautionary principle to protect the rights
to life and to personal integrity in cases where there are plausible indications that an activity
could result in serious or irreversible environmental damage, even in the absence of
scientific certainty, in accordance with paragraph 180 of this Opinion.
7.
To respect and to ensure the rights to life and to integrity of the persons subject totheir jurisdiction, States have the obligation to cooperate, in good faith, to ensure protection
against significant transboundary harm to the environment. To comply with this obligation,
States must notify other potentially affected States when they become aware that an
activity planned under their jurisdiction could cause significant transboundary harm and also
in cases of environmental emergencies, and must consult and negotiate in good faith with
States potentially affected by significant transboundary harm, in accordance withparagraphs 181 to 210 of this Opinion.
8.
To ensure the rights to life and to integrity of the persons subject to their jurisdiction
in relation to environmental protection, States have the obligation to ensure the right ofaccess to information concerning potential environmental damage, the right to public
participation of persons subject to their jurisdiction in policies and decision-making that
could affect the environment, and also the right of access to justice in relation to the Stateenvironmental obligations set out in this Opinion, in accordance with paragraphs 211 to 241of this Opinion.

Done at San José, Costa Rica, in the Spanish language, on November 15, 2017.
Judges Eduardo Vio Grossi and Humberto Antonio Sierra Porto informed the Court of theirconcurring opinions, which are attached to this Advisory Opinion.
Inter-American Court of Human Rights. Advisory Opinion OC-23/17 of November 15, 2017.
Requested by the Republic of Colombia.

Roberto F. Caldas
President

Eduardo Ferrer Mac-Gregor Poisot

Eduardo Vio Grossi- 95 Humberto Antonio Sierra Porto

Elizabeth Odio Benito

Eugenio Raúl Zaffaroni

L. Patricio Pazmiño Freire

Pablo Saavedra Alessandri
Secretary

So ordered,

Roberto F. Caldas
President

Pablo Saavedra Alessandri
Secretary

CONCURRING OPINION OF JUDGE EDUARDO VIO GROSSIINTER-AMERICAN COURT OF HUMAN RIGHTSADVISORY OPINION OC-23/17
OF NOVEMBER 15, 2017
REQUESTED BY THE REPUBLIC OF COLOMBIATHE 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 PERSONALINTEGRITY: INTERPRETATION AND SCOPE OF ARTICLES 4(1) AND 5(1) IN
RELATION TO ARTICLES 1(1) AND 2 OF THE AMERICAN CONVENTION ON HUMAN
RIGHTS)INTRODUCTION
1.
This separate opinion is issued with regard to the reference made by the InterAmerican Court of Human Rights1 in the above Advisory Opinion 2 to Article 26 of theAmerican Convention on Human Rights.3
2.
And it is a concurring opinion,4 because the undersigned does not dissent from what
was decided in the Advisory Opinion, but merely disagrees with the said reference as oneof the grounds cited for the decisions, which he considers is not essential for this purpose.
DISCREPANCY
Paragraph 57 of the Advisory Opinion5 alludes to Article 26 of the Convention 6 because it
refers to the economic, social and cultural rights as if they were protected by the latter
1

Hereinafter, “the Court.”

2

Hereinafter, “the Advisory Opinion.”

3

Hereinafter, “the Convention.”

Art. 24(3) of the Court’s Statute: “The decisions, judgments and opinions of the Court shall be delivered inpublic session, and the parties shall be given written notification thereof. In addition, the decisions, judgments
and opinions shall be published, along with judges’ individual votes and opinions and with such other data or
background information that the Court may deem appropriate.”
4Art. 75(3) of the Rules of Procedure of the Inter-American Court of Human Rights: “Any judge who has taken partin the delivery of an advisory opinion is entitled to append a separate reasoned opinion, concurring or dissenting,to that of the Court. These opinions shall be submitted within a time limit to be fixed by the Presidency, so thatthe other Judges can take cognizance thereof before the advisory opinion is served. Advisory opinions shall be
published in accordance with Article 32(1)(a) of these Rules.”Paragraph 57 indicates that: “It should also be considered that this right is included among the economic,
social and cultural rights protected by Article 26 of the American Convention, because this norm protects therights derived from the economic, social, educational, scientific and cultural provisions of the OAS Charter, theAmerican Declaration of the Rights and Duties of Man (to the extent that the latter “contains and defines theessential human rights referred to in the Charter”) and those resulting from an interpretation of the Convention
that accords with the criteria established in its Article 29 (supra para. 42). The Court reiterates theinterdependence and indivisibility of the civil and political rights, and the economic, social and cultural rights,
because they should be understood integrally and comprehensively as human rights, with no order of precedence,that are enforceable in all cases before the competent authorities.”
5Art. 26 of the American Convention establishes: “Progressive Development. The States Parties undertake toadopt measures, both internally and through international cooperation, especially those of an economic and technical6and, consequently, susceptible to adjudication by the Court. Accordingly, and bearing in
mind that, in the case of Lagos del Campo v. Peru, the undersigned issued a separate
opinion on the matter,7 which he reiterated in another opinion in relation to the judgmentin the case of the Dismissed Employees of Petroperu et al. v. Peru,8 it should be consideredthat these opinions are reproduced in this document.
3.
Among other considerations, these separate opinions assert that the only rights
susceptible of being subject to the system of protection established in the Convention arethose “recognized” in it; that Article 26 of the Convention does not refer to such rights, but
to the rights implicit in the economic, social, educational, scientific, and cultural standards set
forth in the Charter of the Organization of American States”; that what the said Article 26
establishes is the obligation of States to adopt measures with a view to achieving
progressively the full realization of such rights, and to do this taking into account available
resources and, finally, and in consequence, that although these rights exist, they cannot be
adjudicated before the Court unless this is established in a treaty as, for example, in the caseof the Protocol of San Salvador, but only with regard to the right to organize and join unions,and the right to education.
4.
Incidentally, to all this it should be added that, on the one hand, the rights inquestion may be adjudicated before the domestic courts of the States Parties to theConvention if this is established in their respective domestic laws and, on the other, wheninterpreting the Convention an effort should be made not to leave any margin for the
possible perception that the principle that no State can be taken before an international
court without its consent would be altered.
CONCLUSION
5.
Therefore, the undersigned reiterates that, based on the reasons set out in theabove-mentioned separate opinions and, in particular, that the rights mentioned are notincluded or contained in the Convention and, consequently, cannot be the object of theprotection system that it establishes, he is unable to agree with paragraph 57 of theAdvisory Opinion.

Eduardo Vio Grossi
Judge
Pablo Saavedra Alessandri
Secretary

nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of therights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of theOrganization of American States as amended by the Protocol of Buenos Aires.”
Partially dissenting opinion of Judge Eduardo Vio Grossi. Case of Lagos del Campo v. Peru. Preliminary
objections, merits, reparations and costs. Judgment of August 31, 2017. Series C No. 340.
7

Separate opinion of Judge Eduardo Vio Grossi. Case of the Dismissed Employees of Petroperu et al. v. Peru.
Preliminary objections, merits, reparations and costs. Judgment of November 23, 2017. Series C No. 344.
8

CONCURRING OPINION OFJUDGE HUMBERTO ANTONIO SIERRA PORTO
INTER-AMERICAN COURT OF HUMAN RIGHTSADVISORY OPINION OC-23/17
OF NOVEMBER 15, 2017
REQUESTED BY THE REPUBLIC OF COLOMBIATHE ENVIRONMENT AND HUMAN RIGHTS

1.
With my usual respect for the decisions of the Court, I present the following
concurring opinion to the Advisory Opinion in reference.
2.
The purpose of this concurring opinion is to set out the arguments based on which,even though in general I agree with the majority decision in the said Advisory Opinion, I
differ with regard to certain considerations included in the text by the majority,
particularly with regard to the justiciability before the Inter-American Court of the right toa healthy environment based on Article 26 of the American Convention.
3.
First, this Advisory Opinion was not the occasion to issue a ruling on the possibilityof claiming eventual violations of economic, social and cultural rights directly under Article
26 of the American Convention.
4.
In the Advisory Opinion that is the subject of this opinion, when referring to thelegal provisions that protect the right to a healthy environment under the inter-Americansystem, the majority indicated that:[…] this right is included among the economic, social and cultural rights protected by Article
26 of the American Convention, because this norm protects the rights derived from theeconomic, social, educational, scientific and cultural provisions of the OAS Charter, theAmerican Declaration of the Rights and Duties of Man (to the extent that the latter “contains
and defines the essential human rights referred to in the Charter”) and those resulting froman interpretation of the Convention that accords with the criteria established in its Article 29(supra para. 42). The Court reiterates the interdependence and indivisibility of the civil andpolitical rights, and the economic, social and cultural rights, because they should beunderstood integrally and comprehensively as human rights, with no order of precedence,
thatareenforceable
in
all
cases
beforethecompetent
authorities.1

1

Advisory Opinion No. 23, para. 57.

5.
Thus, it can be seen that, in the paragraph cited, the majority seek to conclude
that the right to a healthy environment, autonomously, is directly justiciable incontentious cases before the organs of the inter-American human rights system under
Article 26 of the Convention.
6.
Despite this, the questions raised by the State of Colombia were limited to theinterpretation of the provisions concerning the State obligations to respect and to ensure
the rights to life (Article 4) and to personal integrity (Article 5) of the American
Convention, in environmental matters.
7.
By incorporating considerations on the direct justiciability of the right to a healthy
environment, in particular, and of economic, social and cultural rights, in general, themajority exceed the purpose of the Advisory Opinion, without granting those intervening
in the processing of the Advisory Opinion any opportunity to present arguments for oragainst this position.
8.
Consequently, I dissent from the above-mentioned position on the directjusticiability before the inter-American system of the right to a healthy environment
because it exceeds the Court’s competence in this specific case.
9.
I also wish to reiterate my arguments on the non-existence of the directjusticiability of the economic, social and cultural rights under Article 26 of the American
Convention.
10.
The considerations included in the said paragraph of the Advisory Opinion werebased on the considerations in paragraphs 141 to 144 of the judgment in the case of
Lagos del Campo v. Peru, where the Court understood as incorporated within Article 26 of
the Convention, and therefore directly justiciable, those rights derived from the OAS
Charter, the American Declaration of the Rights and Duties of Man, and “otherinternational acts of the same nature” based on Article 29(d) of the American Convention.
11.
In this regard, I reiterate all aspects of the considerations set out in my concurring
opinion in the case of Gonzales Lluy et al. v. Ecuador and in my partially dissenting
opinion in the case of Lagos del Campo v. Peru, in which I gave the reasons why I
consider that the very broad interpretation given to Article 26 of the American Convention
exceeds the scope of this article. Added to this, I insist on the shortcomings in thearguments, which I identified in my opinion in the case of Lagos del Campo, because on
subsequent occasions when the Court has ruled on or referred to Article 26 of theConvention, it has done so reiterating the groundless precedent of the above case.

Humberto Antonio Sierra Porto
Judge

Pablo Saavedra Alessandri
Secretary