The Centre for Law and Environment submits brief to the Inter-American Court of Human Rights (IACtHR)

11 Jan 2024

The Centre for Law and the Environment (CLE) at the School of Law, UCC has recently submitted an amicus curiae brief to the ongoing Advisory Opinion proceedings on climate change (SOC 1/2023) before the Inter-American Court of Human Rights (IACtHR)

On 18 December 2023, a team of CLE researchers and Law School students submitted a brief to the IACtHR within the rubric of the Advisory Opinion proceedings on the climate emergency and human rights initiated by the Republics of Chile and Colombia. The project was endorsed by Prof. Owen McIntyre, CLE Co-Director, and coordinated by PhD candidate, Mr. Julián Suárez, with the active participation of LLM and LLB students Ms. Lydia Mugisa and Mr. Cole Greer.

The goal of the submission is to invite the Court to expand on the scope of its Advisory Opinion (OC-23/17) to include protection of nature’s own legal interests as part of the right to a healthy environment recognised in Article 11 of the San Salvador Protocol to the American Convention on Human Rights (ACHR). The submission contends that, besides considering the duties to the individual arising from the climate emergency and collective dimensions of the right, State duties to prevent and mitigate the effects of climate change also include, under a differentiated approach, recognising proprietary rights to nature having regard to nature’s beneficial contributions to people. It was teased out that these rights would have to be interpreted harmoniously by the Court as proportional limitations to traditional property rights in the interest of society, as recognised and provided for by the Convention itself.

To the non-legal mind, these might seem to be largely semantic considerations, but they run to the heart of environmental law’s response to climate change impacts, biodiversity loss, and environmental degradation. Human rights-based approaches to environmental protection have been gaining traction in international law as an alternative to dominant conservationist and weak anthropocentric approaches. In the context of the ACHR, human rights-based approaches include recognition of environmental aspects of infringement of other human rights, and the general State duty to assure a legal and institutional framework for nature conservation to the extent necessary for enjoyment of rights guaranteed by the Convention. Furthermore, as the IACtHR had acknowledged in its advisory opinion and in its landmark Lhaka Honhat judgement, they include recognition of nature’s own legal interests, which go beyond any utilitarian consideration or any consideration of the impact upon human rights of the effects of climate change, given that nature has intrinsic value.

However, justifying protection of nature’s own legal interest as one dimension of the human right to a healthy environment on the basis of nature’s own intrinsic value is problematic. Recognition of nature’s intrinsic value cannot assure the supremacy of nature’s legal interests over any economic or State ownership considerations regarding their use that determine realisation of other human rights. Moreover, nature’s intrinsic value overlooks the lack of predictability in the effects of anthropogenic agency on the climate and its influence in terms of Earth systems’ proneness to critical thresholds and abrupt changes. More legally problematic, nature’s intrinsic value does not define nature nor the environment to which self-worth is ascribed. Are they a cultural representation of nature to be protected from human interference, or a set of self-producing resources whose good functioning must be assured by human intervention? Without reconciling these different notions of nature and the environment, it is very difficult for a Court to ascertain if nature’s legal interests, as part of the right of nature, and as affected by CO₂ emissions, are to be merely conserved, restored or both, and to what extent. Consequently, the intrinsic value of nature lacks a normative basis for protecting nature within a human rights-based approach to environmental protection against climate change, as offered by the ACHR.

The CLE sought to advise the Court that these hurdles can be overcome. The ecocentric objective component of the right to a healthy environment under the ACHR can be acknowledged as contributions of nature to people to which nature itself has ownership entitlements. Those ownership entitlements can be protected as proportional limitations to the human right to property and part of property’s ecological function, and their supremacy could be ensured by enshrining the non-regression, in dubio pro natura, and ‘ecological resilience’ principles in the Court’s case-law. This recognition can also be achieved without explicitly recognising the legal personality of any particular ecosystem or creating any distinct substantive rights of nature, all of which would fall outside of the Court’s material and personal remit, as set out in the ACHR and the IACtHR Rules of Procedure.

Nature and the components of the environment have ownership entitlements to their own contributions to people or ecosystem services. The idea is not new and is grounded on a consistent body of legal and philosophical doctrine. Nature is capable of spontaneous value creation that allows for it regularly to provide itself with living and non-living elements relevant to its continuity. As nature can freely materially self-determinate, the ownership of the proceeds of her own labour should be also protected by law. Since nature is a source of value creation that cannot be offset against human labour, humans have the duty of sustainable use of ecosystem services that they co-own with nature. When nature’s legal interests are protected as ownership entitlements of nature to its own contributions to people, as experience in certain national jurisdictions has shown, both environmental human rights and nature and components of the environment can be better protected from acts of the State or private parties that can lead to ecosystem destruction.

According to the CLE’s amicus curiae brief, an effective way to protect those ownership entitlements of nature itself from the effects of the climate emergency, as part of the human right to a healthy environment as guaranteed by the ACHR, might involve interpreting that right harmoniously with the human right to property. In the light of such interpretation, property would take on a socio-ecological function, and its enjoyment could be proportionally limited in the interests of society in curbing the devastating effects of climate change. Under this consideration, property is broadly construed to include land rights, water rights, agriculture and livestock, fisheries, natural resource licensing, and planning and environmental permissions. Therefore, in observing solidarity, equity and sustainable development, positive and negative obligations could be imposed upon property holders - to refrain from causing societal harm though property use and to engage in socially beneficial use - and upon States to impose greater restrictions on natural resources appropriation or on the use that property holders can make of such resources.

Within this particular framing, the CLE advised that the Court could establish, on the basis of the Convention, particular and differentiated duties of State Parties to prevent and mitigate the effects of climate change so as to protect nature’s legal interests as part of the right to a healthy environment. In that respect, the State Parties to the ACHR have, according to the CLE, two essential obligations: (i) A duty of cooperation in good faith with other State Parties to reduce greenhouse gas (GHG) emissions in order to ensure a safe climate that enables the protection of nature’s legal interests; and (ii) A duty to take appropriate measures to prevent GHG emissions that can potentially cause significant harm to nature’s legal interests within each State Party’s jurisdiction, in accordance with international law considering likely transboundary effects, and to mitigate such harm if it occurs.

In order to avoid State Parties from adopting a balance that weighs against the right to a healthy environment when discharging these duties, it is necessary to assure the supremacy of nature’s legal interests over competing economic interests or considerations of State ownership of natural resources, and to address related deficiencies in environmental impact assessment (EIA). This could be achieved by the Court by creating a duty of State Parties to ensure respect for the non-regression, in dubio pro natura and ‘ecological resilience’ principles within their institutional arrangements for climate change prevention and mitigation. These principles would assure three things: (i) That the level of protection already afforded by laws, regulations and standards could not be reduced, (ii) That in case of doubt, authorities are bound to interpret applicable rules in the way that most favours environmental protection, and (iii) That a systemic perspective is used to assess the ability of an ecosystem to return to the condition preceding an external disturbance in a case of significant environmental harm as a result of GHG-emitting activities also affecting human rights.