The right to a healthy environment in the IACtHR’s Rama and Kriol decision

Dr Lisa Mardikian

Lisa is a Senior Lecturer in Law at Brunel University London (UK). Her research focuses on the intersection of global economic governance, human rights and international law. She holds a PhD from the University of Bristol (UK) and an LLM from the University of Nottingham (UK). Lisa has also served as a visiting research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg (Germany) and as a visiting lecturer at the Universidad Autónoma de Madrid (Spain).

Introduction

Rama and Kriol Peoples et al. v. Nicaragua is the third contentious case before the Inter-American Court of Human Rights (IACtHR) regarding the right to a healthy environment. On its merits, the decision is not unprecedented. The Court had already found violations of the right to a healthy environment under Article 26 of the American Convention of Human Rights in two previous cases –Lhaka Honhat (Our Land) Association v Argentina (concerning the encroachment of indigenous peoples’ land by third parties) and La Oroya Population v Peru (concerning large-scale pollution of an industrial complex). The decision in Rama and Kriol, nevertheless, is important for two reasons. First, it provides a clear interpretation and application of the right when the victims are indigenous peoples, building on key elements of Advisory Opinion OC-23/17 The Environment and Human Rights and La Oroya to do so. Second, it links the right to self-determination with a new legal basis (Article 26) and interprets it in line with international legal standards.

This post starts with a brief overview of the main facts of the case. It then examines the Court’s reasoning regarding the right to a healthy environment and discusses some of its implications. Finally, it explains the normative developments in relation to the rights to self-determination and prior, free, and informed consultation.

Facts of the case

The case concerns conflicts over territory belonging to the Rama and Kriol peoples, comprising nine indigenous and Afro-descendant communities, as well as the Black Creole Indigenous Community of Bluefields. Nicaragua had issued formal land titles to these communities between 2006 and 2015. However, there were significant irregularities with one of the legal titles, which covered only 8% of the initially identified territory. Furthermore, the presence of settlers and their agricultural activities in indigenous territory had caused deforestation and biodiversity loss and had restricted the access of indigenous peoples to their natural resources.

At the same time, this situation was compounded by the planned construction of an interoceanic canal to connect the Caribbean Sea with the Pacific Ocean. The proposed route of the canal would cross indigenous land, splitting it in two. The project also included the construction of an artificial lake and a deep-sea port, which would impact the harvesting, fishing, and transportation areas of some of these communities, potentially leading to their displacement.

Moreover, issues were raised regarding the consultation processes required for such a project. Nicaragua granted the concession for the canal in 2013. Nevertheless, consultations with the affected communities started only the following year. Additionally, an environmental and social impact assessment was conducted in 2015, which affected the information available about the project during the consultations. Meanwhile, the communities reported difficulties with electing individuals who represent their interests in the consultation and land titling processes.

In light of the above, the Court found a violation of, among others, the right to a healthy environment (Article 26), the right to communal property (Article 21), the right to participate in cultural life (Article 26) and the right to prior, free and informed consultation (Articles 13, 23 and 26).

IACtHR’s reasoning on the right to a healthy environment

The judgment focused on two main issues: first, the negative environmental impact that the presence of third parties had on indigenous peoples and their land and second, the State’s failure to ensure that an environmental and social impact assessment was obtained early on, before the concession was granted. With regard to both, the Court found a violation of the duty to prevent significant environmental damage.

In line with its previous case law, the Court set out the state’s obligations under the prevention principle. Nicaragua had the duty to regulate, supervise and oversee activities that could cause environmental damage, taking into account the level of risk associated with these activities. Following La Oroya, the Court referred to the principle of preventing environmental harm as part of customary international law. It also reiterated its call for the international protection of the environment to necessitate the recognition of a jus cogens norm prohibiting activities that cause grave and irreversible harm (for discussion, see here).

In the specific context of indigenous peoples and afro-descendent communities, the Court stressed that due to the close relationship between their culture, way of life and environment, they are exposed ‘with greater intensity’ to the impact of environmental degradation (para 430). Therefore, states have reinforced obligations to adopt measures for the protection of the environment in which they live.

In assessing the State’s compliance with these obligations, the Court considered that the settlers’ presence and their agricultural activities had a significant impact on the subsistence of the indigenous communities, who had to compete with them for access to their natural resources. These activities also contributed to deforestation and the degradation of ecosystems and biodiversity across extensive areas of indigenous territory, thereby affecting the way of life and traditions of these communities. The Court noted that, given the magnitude of this situation, Nicaragua had knowledge of these circumstances. However, it failed to adopt any measures to control or stop the settlers’ harmful activities. Therefore, this led to a violation of the right to a healthy environment.

Regarding the interoceanic canal, Nicaragua was obligated to conduct a socio-environmental impact study to assess the scope and nature of the project's potential effects. This study should have been completed before granting authorisation for a project of such ‘great magnitude’ to allow for an objective evaluation of environmental risks and the informed participation of the affected communities. On the facts, there was an ‘excessive delay’ (para 456), as the impact assessment was obtained two years after the State had granted the concession. This was further compounded by the fact that the conclusions of the study demonstrated that the project could have ‘significant adverse effects’ which could be irreversible (para 75). On this basis, the State’s omission resulted in a violation of the duty to prevent significant environmental damage. According to the Court, it was not necessary to evaluate other arguments raised by the Commission and the petitioners. Therefore, the judgment is silent on the application of the precautionary principle and the obligation to mitigate environmental harm.

In her Partially Dissenting Opinion, Judge Perez Goldberg agreed that there was a violation of the right to a healthy environment. In line with her long-standing objections, nonetheless, she argued that this right was not directly justiciable under the general clause of Article 26. Judge Perez Goldberg noted that the right to a healthy environment should be protected as an integral part of other rights under the American Convention, such as the rights to life and personal integrity.

Implications of the Court’s approach to the right to a healthy environment

The obligations of states to prevent the encroachment of third parties and to conduct impact studies are not new under the American Convention. The Court had already recognised them within the scope of the right to property (e.g., Punta de Piedra Garifuna Community v Honduras and Kichwa Indigenous People of Sarayaku v Ecuador). In several instances, failure to fulfil these obligations had depleted natural resources and impacted the subsistence of communities and their environment, thereby leading to a violation of the rights to life and property. Therefore, the content of these state obligations is largely not new.

Irrespective of this, the way the IACtHR dealt with the right to a healthy environment when the victims are indigenous peoples demonstrates greater clarity and precision in comparison to the earlier Lhaka Honhat decision. In both cases, the impact of settlers’ presence on indigenous land was at issue. In Lhaka Honhat, however, the Court had not fully elaborated on the application of state obligations deriving specifically from the right to a healthy environment. Here, it had analysed this right together with the rights to food, water and cultural identity due to their interdependence for indigenous peoples. Yet, there was some uncertainty regarding the application of this right following the first contentious case on it.

In Rama and Kriol, the Court explicitly applied the obligations stemming from the right to a healthy environment in a detailed manner, illustrating the relevance of the prevention principle in this case. In this sense, by focusing on the analysis and application of this new right, the Court developed its scope and practical significance with greater clarity during these formative stages. The decision follows La Oroya as the next case in line dealing with this right. Unlike in La Oroya, however, the factual context in Rama and Kriol did not relate to large-scale pollution. Nor did it concern environmental damage that had materialised due to the construction of an infrastructure project because the project in question had not been executed by the time of the judgment. Nevertheless, the more detailed and differentiated application of the right to a healthy environment strengthens its parameters and clarifies the Court’s reasoning on these matters.

Regarding reparations, the judgment serves as an illustration of the wide range and integrated measures regularly provided by the Court. Nicaragua was ordered to delimit and demarcate the relevant indigenous land and protect it from encroachment by third parties. In addition, the State was required to implement consultation procedures in relation to the canal that could further impact indigenous peoples and Afro-descendant communities, and to organise capacity-building programmes for national authorities on indigenous peoples’ rights.

Furthermore, the decision included reparations for improving the living conditions of the affected communities. First, the IACtHR ordered the State to adopt legal or administrative measures aimed at improving the ‘enjoyment of their rights to water, health, education, and housing’ (para 499). Second, the Court required Nicaragua to create a fund to finance projects for education, food security, potable water supply, sanitation and ‘environmental remediation’ (para 512).

The Court has, in nearly all its previous cases concerning the rights of indigenous peoples, awarded reparations similar to the two above-mentioned measures. These reparations, therefore, are a continuation of older case law, such as Saramaka People v Suriname and Kaliña and Lokono Peoples v Suriname. The key difference from its older case law is that the Court now encompasses these elements within the scope of the right to a healthy environment and draws a link between the reparation measures characteristic of its case law and a violation of this right.

Normative developments regarding the right to self-determination and the right to consultation

The case contributes to normative developments in relation to two rights. First, it highlighted that the right to self-determination is encompassed under Article 26, the general clause on economic, social, cultural and environmental rights under the Convention. The Court had previously interpreted this right as part of the political participation rights under Article 23. Accordingly, indigenous peoples have the right to elect their own representatives and participate in decisions that may affect them, in accordance with their culture and traditions. Going a step further in Rama and Kriol, the Court declared that the right to self-determination is linked to the right of indigenous peoples to participate in cultural life and thus, guarantees the expression and exercise of their culture under Article 26. This formed the basis for the Court to interpret the internal and external elements of the right to self-determination and apply relevant principles in later cases, such as Huilcamán Paillama et al v Chile (para 255); U’wa Indigenous People v Colombia (paras 231-3) and Tagaeri and Taromenane Indigenous Peoples v Ecuador (para 185) (see here and here).

Taken together, these cases expand the content of the right in line with international standards. According to the Court, states have the duty not to interfere with i) the internal self-governance of indigenous peoples and their economic, social and cultural development (the internal dimension); and ii) the election of their representatives and the forms in which they decide to express their opinions and relate with their exterior, including in cases of voluntary isolation (the external dimension).

Second, the Court construed the right to prior, free and informed consultation as deriving from the right to cultural life under Article 26. This constitutes an extension of the previous legal bases under which it had interpreted this right, i.e., Article 21 (property), Article 23 (participation) and Article 13 (access to information). A violation was found in this case because the State granted the concession before consultations had taken place. Nevertheless, even once the consultations started in 2014, the State had not ensured the completion of a socio-economic impact study. This prevented the informed participation of the affected communities in the already delayed consultation process. As Judge Hernandez Lopez stated in her Partially Dissenting Opinion in U’wa Indigenous Peoples, the interpretation of the right to consultation under Article 26 opens the possibility of considering a possible violation in cases of projects that are implemented outside indigenous peoples’ land but involve indirect effects on it (para. 16).

Conclusion

In Rama and Kriol, the IACtHR relied on state obligations regarding environmental matters that it had previously established under the scope of other rights. In doctrinal terms, this has the effect of shifting the content of obligations from other Convention rights to the right of a healthy environment. Overall, however, the judgment is a welcome development. It has a consolidating effect in relation to this right due to its focus on a more detailed and precise application, as opposed to its earlier Lhaka Honhat decision. As the Court builds its environmental jurisprudence and its influence on environmental governance standards in the region, Rama and Kriol brings to the fore some of the normative elements of the right to a healthy environment. At least in these formative stages of the case law regarding this right, it is crucial that the Court further elaborate on its normative content and clearly demonstrate the parameters of its application, which will be helpful in future cases.

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