L'era dell'interlegalità
DOI: 10.1401/9788815370334/c17
Instead, the two remaining
approaches rate better both from the perspective of inter-legality and in light of their
potential value in advancing environmental justice. In particular, the “environmental
democracy” approach by the
¶{p. 495}IACtHR, with focus on procedural
environmental rights, comes close to acknowledging the environment as a matter of a
wider public interest. In fact, due to the incorporation of the Aarhus Convention’s
public interest model into the interpretation of the Convention rights, this second
approach of the Court can be characterized as at partially inter-legal, going beyond the
traditional victim-based logic of the human rights regime. However, while procedural and
participatory rights are important in environmental field, they fall short of
consolidating the status of environmental protection as a substantive legal limit on the
discretion of decision-makers. From this perspective, the third approach by the
Inter-American Court consisting of recognizing the autonomous right to a healthy
environment in the Advisory Opinion OC-23/17 can be characterized
as the most efficient way for advancing environmental justice. Relatedly, it also
represents as a fully-fledged inter-legal approach, due to
extensive incorporation of environmental law norms and standards into the Court’s
reasoning. As discussed, it is precisely this systematic reading of the Convention in
light of the entire corpus iuris of environmental law that lead the
Court to update the catalogue of the Convention rights with the autonomous right to a
healthy environment. Of equal importance is the fact that the IACtHR proclaimed this
right to be directly enforceable before the Court in both individual and collective
dimensions or, in other words, both in cases where its violation has a direct impact on
individuals but also in absence of such impact. Thus, the adoption of inter-legality
stance by the Court opened new exciting possibilities for fostering environmental
justice, while at the same time strengthening the status of environment as a universal
and fundamental value in its own right.
Note