Edoardo Chiti, Alberto di Martino, Gianluigi Palombella (a cura di)
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.
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