Edoardo Chiti, Alberto di Martino, Gianluigi Palombella (a cura di)
L'era dell'interlegalità
DOI: 10.1401/9788815370334/c17
However, this narrow reading of environmental law as merely instrumental to human needs has been challenged by a number of environmental scholars and policy-makers, who sustain that it “ultimately reduces all non-human aspects of
{p. 475}the ecosystem to consideration of their short-term economic value to humanity, exacerbating resource over-exploitation and environmental deterioration” [42]
. Instead, the proponents of the opposing “intrinsic” approach to environmental protection argue that the ultimate goal of environmental law is the protection of the nature as a whole, understood as an end-goal in itself [43]
. This approach is explicit in several environmental law instruments, including the 1982 Word Charter of Nature, which in its preamble declares that “every form of life is unique, warranting respect regardless of its worth to a man” [44]
. Another illustration of this approach is the 1979 Bern Convention on the Conservation of European Wildlife and Natural Habitats, which proclaims that “wild flora and fauna constitute a natural heritage of (…) intrinsic value that needs to be preserved and handed on to future generations” [45]
. On this line of thought, humans are viewed as an interdependent part of a composite global ecosystem, vested with the duties to protect its other components, irrespective of the their utility or economic benefits to the human race [46]
. In other words, although this intrinsic approach to environmental protection – currently dominating the scholarship – also acknowledges that the protection of the global ecosystem is the primary interest of the humankind being linked to its survival, it stresses the higher purpose of preserving the environment for the sake of present and future generations, in contrast to the utilitarian approach outlined above [47]
. {p. 476}
Seen from this second perspective, human rights and environmental law emerge as regimes with two overlapping but distinct social goals and values, with the former being focused on the protection of existing individuals and the latter aiming at protection of the global ecosystem as a whole by balancing the needs of present and future generations [48]
. Acknowledging the different objectives of the two regimes, in turn, helps to recognize the potential overlap and potential conflicts in their respective agendas [49]
. In the former case, this outlook also helps to more adequately assess the contribution of human rights in advancing environmental agenda, together with its limitations in doing so. This point will be further elaborated through the examination of three different human rights approaches to environmental protection before the Inter-American Court of Human Rights, which strike different balances between the objectives of the two regimes [50]
. In particular, it will be demonstrated that while all the three approaches advance the environmental agenda in one way or another, they rate differently from the perspective of highlighting the cause of environmental protection as an end goal in itself.{p. 477}

3. Three Approaches to the Environmental Protection By the Inter-American Court of Human Rights

3.1. “Greening” the Inter-American Convention on Human Rights: A Self-Referential Human Rights Approach

Both the 1948 American Declaration of the Rights and Duties of Man and the 1969 American Convention on Human Rights do not mention the right to a healthy environment, being traditionally focused on the protection of civil and political rights. However, this right is explicitly acknowledged in the Additional Protocol to the Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), adopted in 1988 after environmental issues had gained a global momentum in the 1970s [51]
. In particular, article 11 of the Protocol of San Salvador provides that “everyone shall have the right to live in a healthy environment”, while requiring the State parties to “promote the protection, preservation and improvement of the environment” [52]
.
However, for a long time, the right to a healthy environment under the San Salvador Protocol has not been considered justiciable, because the obligations of the States parties under the Protocol are limited to adopting necessary measures to progressively achieve the observance of economic, social and cultural rights contained therein [53]
. In fact, the predominant reading of the plain text of the Protocol of San Salvador, at least until recently, was that it allowed for individual petitions procedure only in relation to trade union rights and the right to education [54]
. In this light, the prevailing approach by the IACtHR, at least until the landmark {p. 478}Advisory Opinion OC-23/17 that will be discussed below, has been the so-called “greening” the existing Convention rights to address environmental issues.
The “human rights greening” – also known as “the “expansion theory” – essentially amounts to expanding or reinterpreting the existing substantive human rights to advance environmental protection [55]
. Such rights traditionally comprise the right to life, right to private life, the right to property, as well as the right to health, all of which are recognized in the majority of international and regional human rights instruments, including the IACHR [56]
. Indeed, in light of the commonplace justiciability of the above-mentioned rights, the “human rights greening” became the most popular approach in environmental litigation not only at the IACtHR but also in other regional human rights Courts [57]
.
At the Inter-American Court, the biggest category of environmental disputes concerned illegal or unsustainable exploitation of natural resources located on indigenous peoples’ lands, which the Court approached by “greening” their collective right to property [58]
. To illustrate, in {p. 479}one of these landmark cases, Kichwa Indigenous People of Sarayaku v. Ecuador, the Court declared that the oil exploration activities in the territory belonging to indigenous people violated their right to property under article 21 of the Convention [59]
. To clarify, the Court reached this finding by providing a broad interpretation of the right to property, which, besides the Western individualistic notion, also came to incorporate indigenous collective title over ancestral land [60]
. In particular, in doing so, the Court emphasized the strong connection between the quality of life of indigenous people and the natural resources located on their land:
Article 21 of the American Convention protects the close relationship between indigenous peoples and their lands, and with the natural resources on their ancestral territories and the intangible elements arising from these. The indigenous peoples have a community-based tradition related to a form of communal collective land ownership; thus, land is not owned by individuals but by the group and their community. These notions of land ownership and possession do not necessarily conform to the classic concept of property, but deserve equal protection under Article 21 of the American Convention [61]
.
In similar vein, such expansive interpretation of the right to property in article 21 of the Convention allowed
{p. 480}the Court to promote environmental protection in indigenous lands in several other cases [62]
. However, at the same time, this method of greening indigenous property rights to foster environmental justice is not without limitations. First of all, as the IACtHR clarified in that same Sarayaku v. Ecuador case, natural resources on indigenous people’s lands enjoy protection under article 21 in so far as they are “traditionally used and (…) necessary for their physical and cultural survival and the development and continuation of their worldview” [63]
. In other words, the promotion of environmental protection under the umbrella of article 21 is limited to situations where it can be demonstrated that environmental degradation prevents indigenous people from enjoying their traditional ways of living and using natural resources [64]
. Secondly, in the Court’s view, article 21 does not per se prohibit the state from allowing third parties to exploit natural resources in indigenous land, even when such exploitation may cause environmental degradation and negatively affect indigenous ways of living [65]
. Indeed, according to the Court’s jurisprudence, limitations to the communal right to property of indigenous peoples are allowed, providing that “they are aimed at achieving a legitimate objective (…) without denying their right to exist as people” [66]
. {p. 481}
Note
[42] Shelton, Human Rights, Environmental Rights, and the Right to Environment, cit., p. 109.
[43] See ibidem, p. 104.
[44] World Charter for Nature (28 October 1982), UN General Assembly Resolution, A/Res/37/7. On this, see also Petersmann, Narcissus’ Reflection in the Lake, p. 244; cit., D. Shelton, Human Rights, Environmental Rights, and the Right to Environment, cit., p. 109.
[45] Convention on the Conservation of European Wildlife and Natural Habitats (19 September 1979), Europ. T.S. No. 104, preamble. See also Shelton, Human Rights, Environmental Rights, and the Right to Environment, cit., p. 109.
[46] See ibidem, p. 110.
[47] See ibidem. Indeed, as explained by Shelton, the intrinsic approach is also anthropocentric in nature as it ultimately acknowledges that the protection of ecosystem is necessary for the survival of mankind. This type of anthropocentrism, however, should be distinguished from utilitarianism, which only protects non-human aspects of ecosystem for their economic utility or other short-term benefits to the mankind.
[48] See ibidem, p. 111.
[49] See ibidem.
[50] On different categorizations of the human rights approaches to environmental protection, see A. Boyle, Human Rights or Environmental Rights? A Reassessment, in «Fordham Environmental Law Review», 18, 2007, n. 3, pp. 471 ff.; Kotzé and Daly, A Cartography of Environmental Human Rights, cit., pp. 1056-1068; Shelton, Human Rights, Environmental Rights, and the Right to Environment, cit., pp. 111-133.
[51] V. De Oliveira Mazzuoli and G. De Faria Moreira Teixeira, “Greening” the Inter-American Human Rights System, in «L’Observateur des Nations Unies», 33(2), 2012, pp. 299 ff., 301-302.
[52] Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, Adopted on 17 November, 1988.
[53] Ibidem, article 1.
[54] Ibidem, article 19(6).
[55] See Kotzé and Daly, A Cartography of Environmental Human Rights, cit., pp. 1064-1068; Leib, Human Rights and the Environment, cit., pp. 71-80.
[56] For an overview of the rights, see ibidem, pp. 71-80.
[57] For an overview of the relevant case law of regional human rights courts, see Shelton, Human Rights, Environmental Rights, and the Right to Environment, cit., pp. 113-116; Boyle, Human Rights or Environmental Rights? A Reassessment, cit., pp. 484-504.
[58] See R. Pavoni, Environmental Jurisprudence of the European and Inter-American Courts of Human Rights: Comparative Insights, in B. Boer (ed.), Environmental Law Dimensions of Human Rights, Oxford, Oxford University Press, 2015, pp. 69, 98. Other cases in this category include Maya Indigenous Community of Toledo District v. Belize, IACommHR, Case No. 12.053, Report No. 40/04; Mayagna (Sumo) Awas Tingni Community v. Nicaragua, IACtHR, Case No. 79 (31 August 2001), Sawhoyamaxa Indigenous Community v. Paraguay (Merits, Reparations and Costs), IACtHR, Case No. 146 (29 March 2006); Case of the Saramaka People v. Suriname, IACtHR, Case No.172 (28 November 2007). For an overview of the Court’s jurisprudence on indigenous peoples and environment, see D. Shelton, Environmental Rights and Brazil’s Obligations In the Inter-American Human Rights System, in «George Washington International Law Review», 40, 2009, pp. 733 ff., 756-768; A.D. Fisher and M. Lundberg, Human Rights Legitimacy in the Face of Global Ecological Crisis – Indigenous Peoples, Ecological Rights Claims and the Inter-American Human Rights System, in «Journal of Human Rights and the Environment», 6, 2015, n. 2, pp. 177 ff.
[59] Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reprarations), IACtHR, Case No. 245 (27 june 2012).
[60] On this point, see S. Thériault, Environmental Justice and the Inter-American Court of Human Rights, in A. Grear, and L.J. Kotzé (eds.), Research Handbook on Human Rights and the Environment, Cheltenham, Edward Elgar, 2015, pp. 309 ff., 321-323.
[61] Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, cit., par. 145. See also Thériault, Environmental Justice and the Inter-American Court of Human Rights, cit., p. 323.
[62] On this point, see cases cited supra at note 58; Thériault, Environmental Justice and the Inter-American Court of Human Rights, cit., pp. 322-324; Pavoni, Environmental Jurisprudence of the European and Inter-American Courts of Human Rights, cit., pp. 97-98.
[63] Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, cit., par. 146, as cited in Thériault, Environmental Justice and the Inter-American Court of Human Rights, cit., p. 324.
[64] See ibidem.
[65] See ibidem.
[66] Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, cit., par. 156. See also Thériault, Environmental Justice and the Inter-American Court of Human Rights, cit., p. 324. In addition, prior to allowing the exploitation of natural resources that are essential to indigenous peoples’ existence, the State must consult the affected communities, conduct an environmental impact assessment and subsequently ensure that the latter receive reasonable benefits from these activities, see ibidem, par. 157; Thériault, Environmental Justice and the Inter-American Court of Human Rights, cit., pp. 324-325, for discussion.