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May 3, 2018

International Law

How international law could help victims of environmental degradation

May 3, 2018

Something moved in the machineries of international law earlier this month. A turn in the lock, a small latch releasing a door. How big, how wide, remains to be seen. But nonetheless a landmark in progress towards meaningful protection of the environment.

On 7 February 2018, an international court in Costa Rica – the Inter-American court of human rights – released an advisory opinion on environment and human rights. It not only recognises the right to a healthy environment as fundamental to the existence of humanity, but also has the potential to unlock real cross-border remedies for the victims of environmental degradation.

It is not an isolated development. Earlier this month, the international court of justice issued its first ever order on compensation for environmental damage in a dispute between two countries, while in 2017 an investor-state tribunal made history by ordering a mining company to pay $39m to Ecuador for environmental clean-ups. But the advisory opinion could prove the most significant ruling yet.

In 2016, Colombia posed three big questions to the Inter-American court, which has jurisdiction over much of the Americas, roughly equivalent to the European court of human rights (ECHR) to which the UK belongs. If, Colombia asked, an individual living in Country A suffers a human rights violation caused by ecological damage emanating from Country B, can she hold Country B responsible under the American convention? Would Country B have breached the convention? And what are countries legally obliged to do in order to reduce such harms?

These are pressing concerns, not least in Colombia. At the hearing, Colombian Raizales delegates – English/Creole-speaking descendents of white British and enslaved Africans – spoke compellingly about the threats to the reefs on which their island culture depends. One looming concern appeared to be Nicaragua’s plan to build a Chinese-funded rival to the Panama Canal: scientists fear it would literally muddy Caribbean waters, killing marine life, creating chemical pollution and introducing invasive species from shipping lane bottlenecks. Colombia (already quarrelling with Nicaragua over maritime boundaries) sought answers from the court that would discourage unrestrained development of infrastructure mega-projects. But a sign that the ecological crisis transcends any one bilateral dispute is that other Latin American countries (Guatemala, Honduras, Bolivia, Argentina) also supported cross-border obligations.

The conundrum of “extraterritorial” obligations bedevils human rights law. The crux of the problem is that the main conventions oblige states to ensure the human rights of people within their “jurisdiction”, without specifying what that means. Does “jurisdiction” mean the same as a state’s territory? If so, how should human rights law respond when states act abroad, or act so as to cause effects abroad?  The ECHR in Strasbourg, in a 2001 decision on Nato’s bombing of a broadcast station in Belgrade during the Kosovo conflict, decided that states’ “jurisdiction” goes no wider than territories over which they have “effective control”. In later cases, it quietly loosened the test and found jurisdiction based on a state’s assertion of authority over the individual victim. Similarly, the Inter-American system had already found claims admissible where one state’s military had killed or detained individuals outside its borders.

Even so, the advisory opinion represents a quantum leap in the breadth of “jurisdiction”. Here too, the concept of “effective control” is key. The court decided that, for transboundary damage, “the exercise of jurisdiction arises when the state of origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights”. This marks a subtle but important shift: “effective control” is no longer something that has to be exercised over territory, nor even over individual victims, but only over the activities responsible for harm. This is crucial, because states do exercise control over those activities likely to destroy fragile ecosystems in their near abroad: a country which decided to build a transnational canal, or license drilling in an offshore oil field, could not credibly claim that such activities were outside its effective control. Although the court cautioned that extraterritorial obligations are “exceptional”, its reshaping of “effective control” opens the door to cross-border human rights claims.

The implications of the court’s decision are likely to ripple well beyond the Americas. Cross-fertilisation among international judicial bodies is common: the opinion will stand as a marker when the Strasbourg court, sooner or later, has to do its own thinking on what “jurisdiction” means for transboundary environmental damage. Its core reasoning could be applied to air pollution, chemicals, even (doubtless controversially) climate change. It may also stimulate new thinking in arguments about international law’s (in)ability to regulate the activities of multinational corporations.

More immediately, it may first have to be applied to the very problems it was designed to discourage: mega-projects lacking any sincere environmental due diligence, dying reefs, the vulnerable Raizales people, and millions more like them. This ruling brings meaningful redress a major step closer.