Developmentalism and the right to a healthy environment: an introduction to the case of Lhaka Honhat v. Argentina
Ms Mayra Nuñez Pastor
Mayra Nuñez Pastor is a lawyer with a focus on public international law (University of Buenos Aires, Argentina). She holds a Master of Advanced Studies (MAS) in Transitional Justice, Human Rights and the Rule of Law from the Geneva Academy of International Humanitarian Law and Human Rights (Switzerland). She is currently a doctoral researcher at the University of Deusto (Spain) and Ghent University (Belgium). Her research area is transitional justice, focused on reparations and economic, social and cultural rights.
Introduction
With the current climate and energy crisis, the conservation and care of nature is a priority in order to maintain a liveable world. In this context, the right to a healthy environment comes into conflict with many agro-industrial and extractivist projects led by governments. Additionally, some ecosystems and social groups are particularly vulnerable to these initiatives, such as land inhabited by indigenous communities.
Source: Greenpeace, 2019.
Under some state narratives, social development and full employment policies are conditioned to revenues from extractivist projects and intensive land production. This statement that proposes a false dichotomy between development and human rights is increasingly relevant in the current context and has been addressed by international human rights jurisdictions. The case of Lhaka Honhat is an example of this issue before the Inter-American Court of Human Rights.
1. (Mal)development, welfare and nature
Since its first appearance in Latin America in the 1960s, the theory of developmentalism or structuralism — defined as the strategy of using agricultural and livestock production to reinvest the surplus generated in the industrial sector — has gained increasing support in the region.
In the last decades, a novel version of this theory, coined by some authors as new-developmentalism, advocates for the intensive exploitation of agricultural and livestock activities, as well as those related to the mineral and fossil fuel business, to promote industrialization and social welfare policies. New-developmentalism is accompanied by narratives that frame these activities as the inescapable solution to tackle inequality.
Some authors have defined this developmentalism as “an ideological orientation characterized by the fetishization of development” which people “can resist or question only at the risk of being condemned to stagnation and poverty”, while others have gone more categorical and have described it as “progress without people.”
There are many examples of developmentalism. For instance, in Brazil, the Lula administration (2003 –2010), had the chance to increase the minimum wage and reduce inequality as a result of a commodity boom. Since 2003, the Argentinian soybean exports allowed the government to obtain sufficient income to increase the Central Bank’s reserves, provide the necessary supplies to the industrial sector and expand social welfare measures, such as programs promoting domestic consumption, housing, education and the growth of small and medium-sized enterprises (PyMEs).
Currently, developmentalism is at the centre of discussions concerning the environmental crisis we are facing, as there is increasing tension between this logic of intensive production and the respect for nature and the right to a healthy environment.
In the case of mining, national developmentalist narratives shaped a vision of companies as key players in sustainable development by relativizing the non-renewable status of many mineral resources by means of technological progress. This approach was translated into buzzwords promoting the idea of mining being compatible with nature, which entails responsible mining (referring to the existence of protected areas), green mining (dealing with the extraction of other minerals in substitution of fossil fuels), sustainable mining (in terms of environmental and social care) and inclusive mining (focused on the use of revenues).
Another good example is soy cultivation. This product was promoted through a discourse linked to the concept of world food sovereignty: through the cultivation of this grain (resistant and of fast and efficient production), the whole world could be fed (although figures indicate that only 6% of its production is destined for consumption). However, this is in contrast with the effects soy cultivation produces, not only in terms of soil erosion and the destruction of entire ecosystems due to the extensive harvest but also with regard to the use of agrochemicals containing toxic components that affect both the environment and food products. This type of production is conducted on a large scale in the Amazon and in the Gran Chaco Americano, which crosses regions of Argentina, Paraguay, Bolivia and Brazil. Here, States rhetorically create the idea of “empty lands” that must be put at the service of productive activities to be used for social benefits and the flourishing of the economy, even though in reality these ecosystems are already inhabited by rural communities, native peoples and thousands of living beings.
This vision disregards other forms of production and economic and social relations. Vandana Shiva coined the term “maldevelopment” to describe a current trend aiming to delegitimize forms of production that are not mediated by capitalist mechanisms grounded on technology assets and automatization. Thus, “nature is unproductive and the organic agriculture based on natural cycles of renewability spells poverty”, not because these processes are understood as systems that produce fewer goods, but rather because the current understanding of production can only be conceived through technology and the manufacture of commodities (Shiva, Development, ecology and women, 1994, p. 292).
Developmental rhetoric is put to the test when local people strongly oppose such projects. Ultimately, it is in this kind of occurrence, where the tension between the rhetoric of development and the situation of local communities is mostly revealed.
2. The case of the Association of Indigenous Communities of the Lhaka Honhat (Our Land) v. Argentina
The Association of Indigenous Communities of Lhaka Honhat represents indigenous communities, including Wichís, Iyjwaja (Chorote), Komlek (Toba), Niwackle (Chulupí), and Tapy'y (Tapiete). This organization was formed in 1992, when they start to claim the collective ownership of their lands (plots 14 and 55), which at that time consisted of 643,000 hectares in the department of Rivadavia, Province of Salta, Argentina, in what is known as the Gran Chaco region.
Lhaka Honhat location. Source: CELS, 2006.
The communities’ request was focused also on numerous interventions in their territory, including the cohabitation with the non-indigenous population (“criollo” population), illegal logging, the construction of fences, intensive cattle ranching and the construction of several infrastructure projects such as the international bridge over the Pilcomayo River “Misión La Paz - Pozo Hondo” which connects Argentina with Paraguay.
After several commitments assumed through decrees and regulations by the Provincial and National State, it was agreed that the Communities would keep 400.000 hectares and 250.000 would be assigned to the criollo population, which would have relocated there.
However, instead of communal titling of the lands, co-divisions were implemented within the land, which is incompatible with the indigenous cosmovision. Many indigenous populations are nomadic and, because of internal land divisions, they would be prevented from moving freely through the territory. In particular, these communities follow a “fusion-fission” pattern, where communities change and rebuild themselves constantly over time as part of the social structure in which they live. For instance, at the beginning of the request for titling, the number of communities was 27, and by the time the case reached the Inter-American Court, there were already 132 (IACtHR, Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina, 2020, para. 27).
2.1. The advance of governmental development projects and the petition before the Commission
In the absence of responses from the provincial and state governments, the Association submitted a petition before the Inter-American Commission on Human Rights (hereinafter, the Commission or IACHR) in 1998. The petitioners argued that not only there was no effective mechanism for the titling and registration of native peoples’ lands, but that “they resorted to the domestic courts to demand that socio-environmental impact studies be carried out, by means of an amparo action, but their petition was rejected at all instances, including by the Supreme Court of Justice of the Nation” (IACtHR, Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina, 2020, para. 28).
Victims expressed before the Commission that the issue was not whether development projects should not be carried out at all, but that they should be conducted through free, prior and informed consultation with the communities (Inter-American Commission on Human Rights, Merits Report 12.094, 2012, para. 21). In this sense, the construction of the international bridge modified the ecosystem of the areas where the communities live, not only in terms of animal habitat, but also because several national roads were also built to connect the bridge with the main access roads between Argentina and Paraguay. This meant the modification of the land inhabited by the communities through the clearing and elevation of various parts of the land, the main consequence of which was the flooding of areas around these roads.
In sum, the Commission identified several projects within the same region that were planned without the participation of the affected communities. Specifically, it took under consideration:
the construction of the international bridge;
the renovation of the road linking Santa Victoria Este with La Paz in 2001;
the planning of the construction works of Route 86;
the maintenance and enlargement of Provincial Route No. 54 in 2005 and
the opening of a public tender and the granting of a concession for the exploration of hydrocarbons in the zone (Ibid., para. 207).
After several working meetings, the Merits Report was published in 2012. It concludes that “neither the construction of the international bridge over the Pilcomayo River, nor the tender for the construction of Route 86, nor the improvement works of Route 54, nor the improvement works of the provincial road Santa Victoria Este - La Paz, nor the granting of the hydrocarbon concession, complied with the minimum standards” (Ibid, para. 226).
Among its recommendations, the Commission included: the adequate titling of the communal land; providing reparations to victims and ensuring that development programs planned by the State have the free, prior and informed consent of the communities, and that they can participate in the benefits thereof (Ibid., para. 250).
The Argentine State requested the Commission for 22 extensions to provide the adequate title to the communities. In 2018, after a new extension request, the Inter-American Commission referred the case to the Inter-American Court of Human Rights (hereafter the Court or IACtHR), which published its judgment in February 2020.
2.2. Limits on the exploitation of natural resources: criteria adopted by the Court balancing human rights and development projects
In the contentious phase, the representatives requested the Court to declare the violation of the right to recognition as a person before the law (Art. 3), to freedom of association (Art. 16), to freedom of movement and residence (Art. 22) and to cultural identity, adequate food and a healthy environment, referring to Article 26 of the Convention.
Notoriously, while the Court did not analyse the concession to the private sector for the exploration of hydrocarbons in the lands inhabited by the indigenous communities, the Commission noticed and analysed this fact. The Court indicated that the parties did not present sufficient information on this subject, and consequently, discarded this analysis. Nor did it examine the floods denounced by the representatives in 2019 as supervening events, which they alleged, were a consequence of the construction of Route 54 and affected the normal drainage of water. In this case, the Court understood that although the work on Route 54 did fall within the factual framework established in the Merits Report, it does not cover subsequent circumstances that could eventually be related to the way in which the works would have been conducted, as this analysis would be “an excessive extension of the facts of the case” (IACtHR, Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina, 2020, para. 24).
Regarding the construction of the “Mission La Paz - Pozo Hondo” international bridge, the Court opens its analysis by first remarking:
“The Court underlines that the work in question was an international bridge and, therefore, it was an important undertaking for border transit and international trade. A civil work of this kind involves State policies and administration of territorial borders, as well as decisions with implications for the economy. Thus, the interests of the State and its sovereignty are involved, as well as the government’s management of the interests of the Argentine population in general (Ibid., para. 181).” (in bold: own emphasis added)
Significantly, this statement related to the State’s prerogatives and its economic development was not identified in other judgments relevant to the interplay between development activities and human rights, such as the Saramaka case. In the following paragraph, the IACtHR did recognize that the importance of the project of the bridge implicated a careful evaluation and that this did not authorise the State to disregard the communities’ right to be consulted.
Therefore, by failing to carry out a free, prior and informed consultation on the construction of the international bridge, the Argentine State violated the right to property (Art. 21) and political rights (Art. 23.1) in relation to the obligation of respect rights (Art. 1.1) of the American Convention.
In connection with the right to a healthy environment, the Court referred to its Advisory Opinion OC 23-07: the Environment and Human Rights, stating that “environmental protection should be understood as an “integral part” of development processes, being one of the “pillars”, together with “economic development” and “social development”, of sustainable development (IACtHR, Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina, 2020, para. 203). This shows how other rights can be affected by the intervention on natural resources, especially vulnerable groups, such as indigenous communities, who need forest areas or direct access to rivers to sustain their livelihoods (Ibid., para. 209). The Court, thus, highlights the State's ex ante responsibility to prevent environmental damage, where adequate and proportional measures must be taken in relation to the project under discussion. Interestingly, the Court here did not base this protection exclusively on the impact on the rights of individuals but rather emphasized that “[i]t is a matter of protecting nature”, not only because of its “usefulness” or “effects” with respect to human beings, “but also because of its importance for the other living organisms with which the planet is shared” (Ibid., para. 203).
The Court then analysed how the transformation of the territories, especially intensive cattle raising and fencing, affected the native communities in terms of access to food and water. The construction of fences did not allow them to freely move around the territory in search of food, and the communities even competed with the cattle themselves to obtain the herbs needed for consumption. The rivers, where the cattle also drank water, were contaminated with animal faeces. In addition, the criollo population’s fencing of parts of the territory prevented the communities from looking for clean water reservoirs elsewhere. Additionally, animal grazing has led to the destruction of flora species, given that, at least, fifty herbaceous species have been reduced (Ibid., para. 257-258). The composition of the local fauna was also negatively impacted.
The Court found that the State was responsible for the violation of the interrelated rights to take part in cultural life in relation to cultural identity, and to a healthy environment, adequate food, and water contained in Article 26 of the American Convention, in relation to the obligation to ensure these rights, established in Article 1.1.
Conclusion: A latent tension
These assessments made by the Court on the right to a healthy environment and the development projects conducted by the Argentine State constantly put these two parallel interests in conflict. Amid this tension, beyond the developmentalist discourse that refers to alleviating social inequalities, critical voices are raised, especially from ecologist movements, which is where this all-encompassing conception of development is being eroded.
Even if we adopt an anthropocentric view and consider nature in terms of natural resources for humans, it would be necessary to identify what part of this “natural capital” is untouchable. Given that healthy ecosystems are key to sustaining human existence, limits need to be established on the exploitation of nature in order to avoid irreversible processes. As seen in this case, international human rights law can play an important role in defining these parameters.
Overall, the work of the Inter-American Court in defining standards for the construction of these limits is essential. It is a complex task since it concerns not only aspects related to states’ decisions in matters of economic development. The impact on the environment (and other rights whose impact is extrapolated from it) is already a tangible reality that will be increasingly litigated before international human rights jurisdictions.
Remarkably, the Court has decided on the right of autonomous justiciability through Article 26 concerning the right to a healthy environment, adequate food, and access to water. It is also noteworthy that the vote was even (3-3, with a tie-breaker by the President), and that future cases of justiciability of ESCR with special attention to the healthy environment should be closely followed to see if the Court’s interpretation is consolidated in this sense.
Indeed, this case would have been a good opportunity to address the long-term effects of the intervention on entire ecosystems as a consequence of development projects, and it will be necessary to follow the Tribunal’s criteria on supervening facts arising from the factual framework established by the Commission when dealing with environmental degradation.
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