The Rise of Environmental Law in International Dispute Resolution: Inter-American Court of Human Rights issues Landmark Advisory Opinion on Environment and Human Rights

The Inter-American Court’s Advisory Opinion on Environment and Human Rights, released on 7 February 2018 (in Spanish only) (for brevity “AO”), is the latest and potentially most significant decision in a series of high profile international judicial rulings which acknowledge legal consequences for environmental harm. As recently as 2 February 2018, the International Court of Justice in the conjoined Costa Rica v. Nicaragua / Nicaragua v. Costa Rica cases ordered Nicaragua to pay compensation to Costa Rica for environmental damage, its first ever order for such compensation. Earlier, the ITLOS issued a landmark provisional measures order in Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) (Case 23), prescribing provisional measures protecting the marine environment, inter alia suspending all ongoing oil exploration and exploitation operations in a disputed area. To that list one could add the 2017 decision of an ICSID tribunal in Burlington Resources, Inc. v. Republic of Ecuador to award some US$39 million in damages in favour of Ecuador for environmental remediation costs.

The AO (summarized in EJIL: Talk! here) focuses on State obligations under international environmental law and human rights law in the transboundary context, in particular as concerns the construction and operation of infrastructure mega-projects, petroleum exploration and exploitation, maritime transportation of hydrocarbons, construction and enlargement of ports and shipping canals, and so on.

The AO is ground-breaking in several respects. It is the IACtHR’s first pronouncement on State obligations concerning environmental protection under the ACHR (§ 46). Indeed, it is the first ruling ever by an international human rights court that truly examines environmental law as a systemic whole, as distinct from isolated examples of environmental harm analogous to private law nuisance claims (e.g. Lopez-Ostra v. Spain in the ECtHR). Perhaps most importantly, it is a landmark in the evolving jurisprudence on ‘diagonal’ human rights obligations, i.e. obligations capable of being invoked by individual or groups against States other than their own. The AO opens a door – albeit in a cautious and pragmatic way – to cross-border human rights claims arising from transboundary environmental impacts.

This post examines the wider significance of the AO for international law. It assesses its significance from three main angles, namely: (i) the nascent area of diagonal claims; (ii) climate change; and (iii) business and human rights.

The Advisory Opinion in its context

In March 2016, Colombia requested the IACtHR to opine on three related questions on the interpretation of the ACHR, namely (as a précis):

I. Should the term “jurisdiction” in Article 1(1), ACHR be interpreted so as to allow a State party (“State X”) to the ACHR be made the respondent to a claim by an individual living in another State (“State Y”) for violations of human rights recognized in the ACHR where those violations are caused by environmental harms emanating from State X, and in particular where the two states are parties to a treaty-based system of environmental protection, such as the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (“Cartagena Convention”)?

II. If so, would it be a breach of the ACHR for State X, by act or omission, to cause serious transboundary environmental damage that undermined the rights to life and personal integrity protected by Articles 4 and 5, ACHR?

III. In order to protect human rights in State Y, does the ACHR require State X to comply with the norms of international environmental law, and what does that entail?

The IACtHR’s response was broadly in the affirmative on all three questions, except that on (I) the IACtHR declined Colombia’s invitation to base the scope or extent of ACHR obligations on the presence or absence of an environmental treaty regime.

Colombia’s Request was directed at a pressing international issue. In today’s world of intensified economic development, we are indeed “living at a time when major infrastructure projects are frequently being built and brought into operation … with effects that may exceed State boundaries” (Request §9). Damage to the marine environment would be one example; others would include climate change, toxic air pollution, persistent organic pollutants and endocrine disruptors, mercury, and many more. Given the magnitude of transboundary effects and their consequences, it is clear that some human rights recognized in the major conventions will be de facto inoperable and meaningless unless the States that are the sources of these harms bear an international responsibility capable of being invoked under those conventions’ accountability mechanisms, such as Article 63, ACHR. This is the context for the evolving field of ‘diagonal’ human rights obligations. State practice to date has been limited and cautious, but scholarship and ‘soft’ law have sought to develop balanced and workable principles: key examples include the detailed reports by the U.N. independent expert and special rapporteur, Prof. John Knox (available here), and, in the context of the ICESCR, the 2011 Maastricht Principles (here).

At the same time, there was an inescapable political ‘edge’ to Colombia’s Request. It was made in a context where Nicaragua’s plans for major development projects (including a possible Chinese-funded trans-isthmus canal) had aroused widespread concerns about the likely effect on the vulnerable island-dwelling and coastal communities in the Caribbean region, and where Colombia – after withdrawing its consent to the ICJ’s compulsory jurisdiction following the ICJ’s 2012 judgment in Nicaragua v. Colombia – no longer has a right of recourse to the ICJ should its maritime provinces be harmed by the side-effects of such projects. The Request could be seen as Colombia opening up a new front in that political dispute. The IACtHR has deftly defused that aspect by concentrating on the issues of principle.

An indication that the Request transcended any particular bilateral dispute is the fact that a number of other States parties to the ACHR (Guatemala, Honduras, Bolivia) submitted observations to the IACtHR in support of affirmative answers to questions (I) – (III), and Argentina’s submissions, though more cautious and context-driven, still accepted the principle that ‘diagonal’ jurisdiction could be possible on concrete facts – not unlike the IACtHR’s eventual ruling.

The wider significance of the Advisory Opinion for international law

The door is open to diagonal environmental claims

The main significance of the AO is that it signals the possibility of ‘diagonal’ human rights claims in circumstances far broader than those which have been held admissible under the Inter-American system, or indeed any other system, to date.

Questions of extraterritorial human rights obligations and (concomitantly) ‘diagonal’ claims under human rights accountability mechanisms have become an increasingly acute problem in the international human rights system.

The problematique of ‘diagonal’ human rights obligations can be encapsulated in the clash between two propositions, each widely accepted. One is that a State should not be able to use national boundaries to escape responsibility for human rights violations which it actually committed: e.g., the U.N. Human Rights Committee has said, with reference to the ICCPR, that:

“[i]t would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory”.

On that principle, a direct causal relationship between State conduct and violations of human rights should be sufficient of itself to give rise to responsibility, and “jurisdiction”. The second, countervailing, proposition is that all the major international human rights treaties were conceived as applicable primarily between a State and its own citizens: each State is responsible to establish the conditions for a dignified human life to the individuals within its boundaries. This principle, or at least a strong version of it, would hold that States can only be responsible for ensuring the human rights of individuals who are within its borders or, at the outermost, within territory that State is administering for the time being.

Both propositions have some validity, but in real cases they quickly come into mutual conflict and one must give way to the other. The much-debated ECtHR case of Banković v. Belgium and others, Application no. 52207/9, is an example of the second proposition completely ousting the first. The ECtHR held that “jurisdiction” in Article 1 of the ECHR was to be given its “ordinary meaning”, said to be “primarily territorial” with limited exceptions recognized, such as flag state jurisdiction over ships (§§ 56-61). The Court noted that it had recognized another exception, viz. where a state had “effective control” over foreign territory, such as Turkey exercised in northern Cyprus (§§ 68-71, citing Loizidou v. Turkey). It rejected the applicants’ argument that “effective control” (and hence jurisdiction) could be founded simply on the basis that the State had caused the impugned act itself (§ 75). It also held that jurisdiction could not be “divided and tailored in accordance with the particular circumstances of the extra-territorial act in question” (§ 75), i.e. a State is either internationally responsible for fulfilling all of the ECHR rights in a particular territory, or it is not responsible at all.

In practice, however, neither the requirement for “effective control” over territory nor the indivisibility principle has been adhered to in subsequent ECtHR case law. In Pad v. Turkey, Application No. 60167/00, the ECtHR held that Turkey had had “jurisdiction” over the applicants’ relatives when they were killed by a Turkish helicopter inside Iran. In Al-Skeini v. United Kingdom, Application No. 55721/07, the ECtHR held that Iraqi men killed by UK armed forces in southeast Iraq, some in UK detention facilities and others killed by UK soldiers on street patrol, were all within the UK’s “jurisdiction” under Article 1, ECHR, notwithstanding that the UK was clearly not obliged to ensure all human rights to all people in Iraq. The ECtHR thus quietly and incrementally moved towards accepting the concept of jurisdiction based on the State’s assertion of authority, or “effective control”, over the individual victims rather than control of territory (without attempting to reconcile that with its holding in Banković).

In the Inter-American system, the Inter-American Commission (“IAComHR”) had already accepted a similar notion. The relatively few extraterritorial cases found to be admissible have involved direct exercises of violence by State agents outside a State’s borders – what might be termed the exercise of authority or “effective control” over specific individuals, but not over an entire territory – e.g. Coard v. United States, Report No. 109/99, Case 10.95, Alejandre and others v. Cuba, Report No. 86/99, Case 11.589 and Molina (Ecuador v. Colombia), Report No. 112/10, Inter-State Petition IP-02. In all those cases, applying the Banković reasoning would have required dismissal of the petition. In Molina, the IAComHR overtly distanced itself from the logic in Banković by holding that what was required was only “the exercise of authority over persons by agents of a State”, and that a “formal, structured and prolonged legal relation in terms of time” was not needed in order for a State to be responsible for the acts of its agents abroad.

In this context, one of the most interesting features of the AO is the Court’s handling of the concept of “effective control”. In summing up its answer to Colombia’s question (I), the IACtHR held (§ 104(h)) that:

“As regards transboundary harms, a person is under the jurisdiction of the State of origin if there is a causal relationship between the event that occurred in its territory and the affectation of the human rights of persons outside its territory. The exercise of jurisdiction arises when the State of origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights.”

It will be seen that, as compared to the ECtHR case law (Loizidou, Banković, Al-Skeini), and even compared to the IAComHR in Molina, a subtle but important shift has occurred: in the AO, as concerns transboundary environmental harms, “effective control” is no longer something which has to be exercised over the territory where the victim was, nor even over the individual victim herself. Rather, what matters is whether the source state has effective control over the activities that caused the transboundary harm. This is significant, because the types of transboundary harm at which Colombia’s Request was directed, and which it can be foreseen are sadly likely to occur with severe impacts on vulnerable people, are types of activity over which States do exercise effective control. It is hard to see how any State which decided, for example, to build a trans-isthmus canal, or license drilling in an offshore oil field, or indeed authorize any infrastructure mega-project with environmental impacts, could credibly claim that such activities were outside its effective control. It follows that the IACtHR’s ruling permits cross-border human rights claims in respect of transboundary ecological damage to be pursued before the IAComHR and (subject to the procedural requirements in the ACHR) before the Court itself.

The IACtHR was nonetheless careful to emphasize in the AO that extraterritorial obligations are exceptional and should be restrictively construed (§§ 81, 104(d)).

Climate change

The AO does not address climate change, but some of the Court’s observations on States’ duties (see especially § 242) are clearly pertinent to this ultimate example of transboundary pollution. Moreover, the Court’s reasoning on the “jurisdiction” issue could be used to support an argument that a State’s contribution to the accumulation of greenhouse gases in the atmosphere should result in State responsibility and accountability under the ACHR to victims living in other States, e.g. persons whose lands have become submerged or uncultivable due to rising sea levels. Any such claim would of course be politically controversial, and would also face formidable obstacles regarding proof of causation. Arguably, it might also be preempted by the access to national remedies, especially if tort lawsuits based on climate change prove to be viable (the world is of course watching Lluiya v. RWE in the German courts for a signal), or by the existence of alternative mechanisms for compensating the victims’ State, such as the Warsaw International Mechanism under the UNFCCC. Nonetheless, it is striking that the IACtHR’s ruling is that States can (depending on the precise circumstances and a sufficient causal link) be accountable for the emission of pollutants from activities in their territory which cause transboundary ecological harm. Whereas in 2005, the IAComHR decided against accepting a petition by Inuit peoples that climate change was violating their ACHR rights, in the light of the AO, the arguments of the Inuit (and other vulnerable groups for whom climate change has become an existential threat to their lands, livelihoods and cultures) benefit from an enhanced weight of principle and authority.

The Business and Human Rights debate

The AO also helps to draw attention to an under-emphasized aspect of current debates about regulating multinational corporations to protect human rights. These debates have tended to focus on (1) the responsibility of States to protect persons within their own territory (Principle 1 of the 2011 UN Guiding Principles on Business and Human Rights), and (2) the question whether States can, should, or must regulate extraterritorially to control what corporations domiciled in their territory do overseas. The latter issue is referred to in Principle 2, with the current lex lata apparently being that States can but need not so regulate: moves in the U.N. Human Rights Council since 2014 to elaborate a binding treaty has so far only won support in the global South, which portends continuing statemate. In this situation, we should not lose sight of a third dimension, which does not feature prominently in the UN Guiding Principles: whether under existing international legal instruments such as human rights treaties, States may already be obliged to regulate domestically with a view to controlling overseas impacts? This is likely to be especially necessary in cases where the impacted State is not realistically able to block the adverse transboundary effects of the activity, either through lack of capacity or because the inherent nature of the consequences flowing from the activities makes it impracticable. In the latter category could be included cases of environmental harm, such as cross-border pollution, accidents involving hazardous substances, and unsustainable fishing; but also non-environmental harms such as (potentially) deaths in one State that are traceable to another State’s toleration of the activities of extremist groups or of terrorist financing.

The AO draws attention to this third dimension, and hopefully may help to give it the emphasis which it deserves in Business and Human Rights debates. Under existing international law, it is at least arguable that a State may be obliged to regulate domestically in order to require multinationals domiciled in its territory to adopt, at the headquarters level, policies and frameworks aimed at ensuring that subsidiaries, subcontractors or supply chain partners in the global South do not infringe human rights in their places of operation. The reasoning in the AO would be supportive of such arguments, at a general level – with the caveat that the IACtHR has succeeded in drawing a careful balance between recognizing the fundamental nature of the right to a healthy environment as a necessary condition for enjoyment of human rights generally, and continuing to treat extraterritorial obligations and claims as “exceptional” (whatever exactly that may mean). The door to new scenarios for human rights claims is open but – one could say – ‘diagonally’.