Inter-American Court of Human Rights Recognizes the Right to a Healthy Environment
On February 6, 2020, the Inter-American Court of Human Rights published a landmark decision in Indigenous Communities Members of the Lhaka Honhat Association v. Argentina. For the first time in a contentious case, the Court analyzed the rights to a healthy environment, indigenous community property, cultural identity, food, and water based on Article 26 of the American Convention on Human Rights (progressive development of economic, social, and cultural rights). The Court held that Argentina violated these rights of the Lhaka Honhat indigenous groups and ordered measures of reparation toward their restitution, including actions for access to adequate food and water, for the recovery of forest resources, and to maintain indigenous culture.
The ruling marks a significant milestone for the protection of indigenous peoples' rights. It is also particularly timely, as this recognition is vital for preventing pandemics like COVID-19, given the zoonotic roots of the virus, which was in all likelihood dislodged from a disruption of natural habitats.
The case relates to the claim for recognition of land ownership by indigenous communities comprising the Association of Aboriginal Communities Lhaka Honhat in Argentina. Despite their verified continuous presence in the region since at least 1629, other communities and the state itself have promoted illegal logging activities in the area without prior consultation with the indigenous groups. These activities have reduced forest resources and biodiversity and have affected indigenous communities' ability to pursue traditional methods of seeking access to food and water.
Since 1984, the indigenous communities have claimed recognition and a unique property title to their ancestral lands through the national judicial system. In 1998, the Llaka Honhat Association filed a petition with the Inter-American Commission on Human Rights (IACHR) regarding the violation of the obligations to respect, protect, and adopt necessary measures to ensure the effective enjoyment of the right to communal property. After its 2006 Admissibility Report, the IACHR issued a Merits Report in 2012, determining that various rights enshrined in the American Convention on Human Rights had been violated to the detriment of the communities and made recommendations for Argentina to guarantee the ancestral lands in question. However, six years later, the required measures had not been completed. In 2019, the Commission ultimately decided to submit the case to the Inter-American Court.
The Court acknowledged that the activities carried out in the territory by the other communities had affected the environment and the traditional ways of accessing food and water for indigenous communities. Argentina had violated their rights regarding community property, cultural identity, a healthy environment, and adequate food and water, due to the lack of effective measures to stop activities harmful to them. Argentina did not create mechanisms to guarantee the right to community property or give indigenous peoples a real and effective title to the entirety of their property. Neither did it consult the communities when it made modifications to their territories.
An Expanded Interpretation of Article 26
Inter-American institutions had previously addressed the intersection of human rights and the environment in terms of the impact of environmental degradation on other human rights, since the Convention does not refer expressly to the environment. The right to live in a healthy environment is recognized in Article 11 of the Protocol of San Salvador (which currently has sixteen parties). Still, that article was not enforceable through individual petitions until the 2018 Advisory Opinion 23/17, in which the Court found that the right to a healthy environment is encompassed by Article 26 of the American Convention on progressive development and is further reflected in member states' constitutions and international instruments.
Following its interpretation in the Advisory Opinion, in Lhaka Honhat the Court adopted a progressive interpretation of international human rights instruments and found a concrete violation of a right to a healthy environment of indigenous peoples, along with the rights to adequate food and water, and to participate in cultural life. Based on this rationale, the Court adopted an expanded understanding of the scope of the rights discussed in Article 26 of the American Convention, which requires states to actively adopt measures to achieve their full realization.
Right to a Healthy Environment as "Rights of Nature"
The Court found that the right to a healthy environment protects components of the environment, such as forests, seas, rivers, and other natural features, as interests in themselves, even in the absence of certainty or evidence about how it affects individual people. As in the advisory opinion, the Court indicated an openness to recognizing the "rights of nature." It explicitly acknowledged the protection of nature because of its importance for other living organisms, rather than for its "usefulness" to or "effects" on human beings. But it also recognized that environmental damage can cause a violation of additional human rights.
Duty to Prevent
Again, following the reasoning provided in the 2018 advisory opinion, the Court reiterated positive and negative obligations of states related to the right to a healthy environment. In addition to a duty to respect the rights and freedoms set out in the Convention, addressed in Article 1.1, states must ensure compliance with their human rights obligations generally, including with reference to the right to a healthy environment, by preventing violations, including those committed by private actors within their territory. The Court had previously indicated that, on certain occasions, states must establish adequate mechanisms to supervise and control certain activities to guarantee human rights, protecting them from public entities and private individuals.
The duty to prevent is an affirmative obligation to take action, but non-compliance is not proved by the mere fact that a right has been violated. As such, the mere existence of environmental damage does not necessarily lead to the conclusion that a state has failed its obligation to prevent. States are required to meet a minimum standard of due diligence under the duty to prevent, which must be appropriate and proportional to the degree of risk of environmental damage. Since it is often impossible to restore the environment after damage, measures should be carried out ex-ante. This duty of prevention includes all those measures of a legal, political, administrative, and cultural nature that promote the safeguard of human rights and ensure that eventual violations of those rights are examined and dealt with as wrongful acts that, as such, may result in punishment for those who commit them, together with the obligation to compensate the victims for the negative consequences. Examples of how to fulfill due diligence include to (i) regulate; (ii) supervise and oversee; (iii) require and approve environmental impact assessments; (iv) establish contingency plans; and (v) mitigate in cases of environmental damage. The duty to prevent also applies to the rights to adequate food, water, and to participate in cultural life.
While considering the human rights affected by environmental damage, the Court noted that these can occur with greater intensity in certain groups in vulnerable situations, including indigenous peoples. Indigenous groups are particularly vulnerable to poverty, hunger, and malnutrition. States are legally bound to address these vulnerabilities, following the principle of equality and non-discrimination.
Remedies for Violations of the Rights to a Healthy Environment, Food, Water, and Cultural Identity
The Court ordered a series of specific reparative measures to ensure the right to ancestral property of indigenous peoples. Additionally, the Court required Argentina to submit to the Court a study regarding the lack of access to drinking water and food, and a plan to provide access going forward, with a particular focus on the conservation of waters, protection and recovery of forests, and access to food. The actions identified shall be immediately implemented once the plan is submitted.
The judgment sets an important precedent. For the first time in a contentious case, following the path it identified in the 2018 advisory opinion, the Court analyzed and set standards on the rights to a healthy environment, adequate food, water, and cultural identity, ordering specific reparative measures regarding the right to ancestral property. The ruling marks a significant milestone for the struggle of indigenous peoples for the recognition of their rights.
The recognition of a justiciable independent right to a healthy environment opens the door to new categories of claims in the Inter-American system, including the protection of the environment per se. This means that harm to the environment could potentially be justiciable—even absent evidence of damage to individuals. This is especially important during the current global pandemic, in which several countries, including Brazil and the United States, are relaxing environmental protection rules and allowing for increased environmental damage. At a minimum, the decision ensures that indigenous peoples have proper access to a healthy environment and clean water, which are essential to ensuring human health.
About the Author: Maria Antonia Tigre is Regional Director for Latin America at the Global Network for the Study of Human Rights and the Environment (GNHRE).
 Comunidades Indígenas Miembros de la Asociación Lhaka Honhat (Nuestra Tierra) v. Argentina, Inter-Am. Ct. H.R. (Feb 6, 2020) [hereinafter IACtHR].
 The American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123.
 For an overview of the protection of indigenous peoples in the Inter-American system, see Maria Antonia Tigre & Sarah Slinger, A Voice in Development: The Right to Participation of Indigenous Groups in Amazon Countries, in Indigenous Amazonia, Regional Development and Territorial Dynamics: Contentious Issues 460 (Walter Leal Filho et al. eds., forthcoming 2020).
 For a more in-depth background, see Maria Antonia Tigre, Lhaka Honhat Association vs. Argentina: The Human Right to Environment in the Inter-American Court (GNHRE, Apr. 13, 2020), https://gnhre.org/2020/04/10/lhaka-honhat-association-vs-argentina-the-human-right-to-environment-in-the-inter-american-court/.
 Inter-Am. Comm'n H.R., Report No. 78/06, Case No. 12.094 (Oct. 21, 2006), http://www.cidh.oas.org/annualrep/2006eng/ARGENTINA.12094eng.htm.
 Inter-Am. Comm'n H.R., Report No. 2/12, Case No. 12.094 (Jan. 26, 2012), http://www.oas.org/en/iachr/decisions/court/2018/12094FondoEn.pdf.
 Inter-Am. Comm'n H.R., Case No. 12.094, Letter of submission (Feb. 1, 2018), http://www.oas.org/es/cidh/decisiones/corte/2018/12094NdeREs.pdf. See http://www.oas.org/en/iachr/media_center/PReleases/2018/035.asp.
 IACtHR, supra note 1, ¶ 289.
 See Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights art. 11, Nov. 17, 1988, O.A.S.T.S. No. 69.
 See Maria L. Banda, Inter-American Court of Human Rights' Advisory Opinion on the Environment and Human Rights. ASIL Insights, 22(6) (2018), https://www.asil.org/insights/volume/22/issue/6/inter-american-court-human-rights-advisory-opinion-environment-and-human.
 The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity), interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17, Inter-Am. Ct. H.R. (ser. A) No. 23, ¶ 57 (Nov. 15, 2017) [hereinafter Advisory Opinion].
 IACtHR, supra note 1, ¶¶ 201, 203. See Advisory Opinion, id., ¶¶ 56-68.
 IACtHR, supra note 1, ¶¶ 197-200, 202.
 For more information regarding the concept of "the rights of nature," see http://www.harmonywithnatureun.org/; see also David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the (ECW Press, 2017).
 IACtHR, supra note 1, ¶ 203. Advisory Opinion, supra note 12, ¶¶ 59, 62, 64.
 IACtHR, supra note 1, ¶ 207. Advisory Opinion, supra note 12, ¶ 117.
 See Ximenes Lopes v. Brasil, inter-Am. Ct. H.R., ¶¶ 86, 89, 99 (Jul. 4, 2006); I.V. v. Bolivia, Inter-Am. Ct. H.R., ¶¶ 154, 208 (Nov. 30, 2016);Ramírez Escobar y otros v. Guatemala, Inter-Am. Ct. H.R., ¶ 355 (Mar. 9, 2018).
 IACtHR, supra note 1, ¶ 207. See Advisory Opinion, supra note 12, ¶ 118. The Court has expressed the same notion, although not directly linked to the right to a healthy environment, in other decisions. See Velásquez Rodríguez v. Honduras, Inter-Am. Ct. H.R., ¶¶ 165-166 (Jul. 29, 1988), Caso López Soto y otros v. Venezuela, Inter-Am. Ct. H.R., ¶ 130 (Sep. 26, 2018).
 IACtHR, supra note 1, ¶ 208. Advisory Opinion, supra note 12, at footnote 142.
 IACtHR, supra note 1, ¶ 208.
 Advisory Opinion, supra note 12, ¶ 118.
 IACtHR, supra note 1, ¶ 208. Advisory Opinion, supra note 12, at footnote 145.
 IACtHR, supra note 1, ¶ 207.
 Advisory Opinion, supra note 12, ¶ 142.
 See United Nations, Office of the High Commissioner for Human Rights, The Right to Adequate Food, Fact Sheet No. 34, at 12-13.
 IACtHR, supra note 1, ¶ 209. Advisory Opinion, supra note 12, ¶¶ 66, 67. Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, U.N. Doc. A/HRC/10/61 (Jan. 15, 2009), ¶ 42, and Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, U.N. Doc. A/HRC/31/52, at 81 (Feb. 1, 2016).
 IACtHR, supra note 1, at ¶¶ 332, 333.
 Banda, supra note 11.