Stockholm Conference on Environmental
Law and Justice,  6-9 September 2006

Diego Garcia Sayan (Inter-Am HRCrt):
Access to Human Rights Courts; a Means for Environmental Justice? 

1.- The protection of the environment and of human being should be two of the biggest priorities of international law and of the international agenda. The bridge between human rights and the environment is found in the fundamental rights to life and to health in their wide dimensions, which require negative and positive measures on the part of the States. Some global human rights treaties include an explicit mentioning of the value of the environment (Convention on the Rights of the Child and ILO Convention 169). At the regional level this is the case with the Protocol of San Salvador to the American Convention on Human Rights and the African Charter on Human and Peoples’ Rights.

2.- The social dimension of human rights increases the possibility of environmental protection considering that it emphasizes the right of the individual to be informed, to participate and to the role of courts (access to justice and an outcome favourable to the protection of environment). The protection of vulnerable groups appears as a specific confluence of international human rights law and international environment law. In the last decade several cases have been dealt by international treaty bodies recognizing the violation of fundamental human rights in connection with environmental degradation and, specifically related to indigenous peoples.

3.- Access to justice (national and international) seems to be one of the key international human rights law components that can strengthen environmental protection. At the national level this means that individuals should have access to a “competent, independent, and impartial tribunal” and “the right to simple and prompt recourse, or any other effective recourse”. According to the jurisprudence of the Inter American Court of Human Rights, “generally recognized principles of international law” refer not only to the formal existence of such remedies, but also to their adequacy and effectiveness,[1] and “adequate remedies are those which are suitable to address an infringement of a legal right”. But it is not only – nor mainly – a matter of “access”. A remedy must also be effective; that is, capable of producing the result for which it was designed. The main components of “access to justice” such as independence of the tribunals, “reasonable time” and “due guarantees” will be part of the analysis based on the jurisprudence of the Inter American Court of Human Rights. While so far there are not so many cases where environment protection has been explicitly dealt with, this paper will comment on the substantial outcome of the Court also in this respect.

4.- At the international level, there is a positive evolution in which individuals are becoming subjects of international human rights law, with full legal capacity to act. This may lead to actions oriented to environmental protection so as to prevent damages or to repair damages that have already been produced. In the jurisprudence of the Inter American Court of Human Rights related to the protection of environment, the rights of indigenous peoples and the right to property have been considered with utmost priority[2] and very closely interconnected. The same goes for the obligation of the State not only to respect but to guarantee, with positive measures, the right of the indigenous individuals.

[1]Velasquez Rodriguez Case, Judgement of July 29, 1988. Par. 63-66.

[2] Provisional Measures on Mayagna Awas Tingni, Judgement of September 6, 2002, and Yakye Axa Case, Judgement of June 17, 2005.




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