Victor Hugo Petersen
Translation: Ligia Chizolini
As recently explored in our productions, the Inter-American Human Rights System has been evolving toward more effective protection of the environment and related human rights. This is, however, a relatively recent phenomenon: the provision protecting the right to a healthy environment was incorporated almost 20 years after the original drafting of the American Convention on Human Rights. Because it is not among the enforceable rights (those that can be directly brought before the Inter-American Commission and Court of Human Rights), jurisprudence has developed cautiously, with environmental rights protected indirectly and only as they relate to other rights under effective protection.[1]
Within this context, in 2020, the Inter-American Court finally took a more expansive and effective stance on protecting the right to a healthy environment in the case of the Indigenous Community of the Lhaka Honhat Association (Our Land) v. Argentina.
This case involves a lawsuit filed against the Argentine State by more than 130 traditional Indigenous communities in the province of Salta for violations of rights to property, a healthy environment, ancestral territory, food, water, and access to justice. Although these communities have been established in this area since before the formation of the Argentine State, they formally sought the protection of their ancestral lands in 1991, arguing that the State failed to take necessary actions to safeguard these rights and protect them from private actors.[2]
Based on these claims, the Inter-American Court analyzed not only the right to property of these Indigenous communities, a right traditionally protected by the Inter-American System, but also conducted a special analysis of rights such as the environment, water, and food.
Regarding these rights, the Court shifts its jurisprudential approach: previously, the protection of social, economic, and cultural rights was derived from the protection of rights under Articles 3 to 25 of the ACHR[3]. In this ruling, the Court advocates for the direct protection of rights under Article 26 of the Convention. This is due to an expansion of the rights protected by the ACHR, based on interpretative criteria set out in the Convention itself and the application of an “evolutionary interpretation”[4], establishing four specific rights in this case: a healthy environment, adequate food, water, and participation in cultural life.
Although some of these rights are expressly included in the Additional Protocol of San Salvador, such as the rights to the environment and adequate food, the Court innovates by recognizing the right to water as an enforceable right. Beyond this, it expressly states that these rights are closely interconnected, so that fulfilling one can directly impact the proper satisfaction of others.
In this context, the right to a healthy environment is given special importance, highlighting that “environmental threats may affect food security, while the rights to participate in cultural life and to water are particularly vulnerable to environmental impacts.”[5] Furthermore, this interrelation is even more significant when considering Indigenous peoples, who have unique relationships between their community, the environment, their customs, and traditions.
This serves as the legal foundation for the case's most significant conclusion: that these rights have content that is immediately enforceable by virtue of Articles 26 and 1.1 of the American Convention. Thus, by recognizing Argentina's direct responsibility for violating these articles in the case brought by the Lhaka Honhat Association Indigenous communities (Our Land), the Court solidifies an important shift in its stance on the justiciability of economic, social, and cultural rights.
This decision is especially relevant in establishing jurisprudence that supports enforceable environmental protection before the Inter-American Court of Human Rights. By explicitly recognizing the interconnectedness of the rights to a healthy environment, water, food, and cultural identity, the Court goes beyond mere territorial protection and promotes an integrated and systemic view of human rights, aligning with contemporary needs to protect natural resources and traditional communities.
With this precedent, a path is opened for the direct judicialization of economic, social, cultural, and environmental rights (ESCR) within the Inter-American System, establishing a stronger foundation for civil society and Indigenous peoples to demand the protection of their rights against environmental threats and state inaction. This expanded perspective reinforces the role of the Inter-American Court as a guardian not only of individual rights but also of collective and diffuse rights, which are fundamental to preserving human dignity in vulnerable contexts.
This jurisprudential advancement signals a global trend of expanding environmental rights as an integral part of human rights, which could influence other courts and regional human rights systems. Thus, the decision in the Lhaka Honhat case not only protects Argentine Indigenous communities but also establishes a paradigm for the future of environmental and cultural rights protection across Latin America, fostering greater state accountability and legal enforceability of these rights internationally.
REFERENCES
[1] SAMPAIO, José Adércio Leite. Environmental Protection in the Inter-American Human Rights System. Revista de Direito Público, v. 14, n. 77, pp. 27-46, 2017.
[2] INTER-AMERICAN COURT OF HUMAN RIGHTS. Case of the Indigenous Community of the Lhaka Honhat Association (Our Land) vs. Argentina. Judgment of February 6, 2020. Available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_400_esp.pdf. Accessed on: Oct. 10, 2024. Paragraphs 46-88.
[3] Case of the “Street Children” (Villagrán Morales et al.) vs. Guatemala. Judgment of November 19, 1999; Case of Xákmok Kásek vs. Paraguay. Judgment of August 24, 2010; Case of Suárez Peralta vs. Ecuador. Judgment of May 21, 2013.
[4] Cf.: MAGALHÃES, Breno Baía. The Evolutive Interpretation of the American Convention on Human Rights: A Quantitative and Qualitative Analysis of the 1988-2018 Period. Revista de Direito Internacional, v. 17, n. 3, 2020.
[5] INTER-AMERICAN COURT OF HUMAN RIGHTS. Case of the Indigenous Community of the Lhaka Honhat Association (Our Land) vs. Argentina. Judgment of February 6, 2020. Available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_400_esp.pdf. Accessed on: Oct. 10, 2024, paragraph 245.
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