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The Inter-American Court of Human Rights (IACHR) has issued a landmark decision regarding the right to a healthy environment. In the judgment published late March 2024, the Court found that Peru had breached its obligation to protect the right to a healthy environment (among other human rights) of the community of La Oroya, when failing to protect the community from pollution emitted from a metallurgical smelter (Plant).

In this note we discuss the decision and key takeaways for businesses navigating the emerging regulatory landscape designed to protect human rights and nature.

Snapshot

  • The Court found that the State of Peru had a duty to prevent human rights violations by private companies.
  • The decision builds upon a body of case law and the IACHR advisory opinion OC-23/17, which have held that a healthy environment is a fundamental right under the Inter-American Convention of Human Rights (Convention).
  • The majority concurrent opinion of the Court went so far as to consider that the obligation to protect the environment is a peremptory norm of international law, i.e., a norm accepted and recognized by the international community of States as a whole from which an individual State cannot derogate.  
  • Notably, the IACHR ordered Peru to adopt and implement measures to ensure that the Plant complies with the UN Guiding Principles on Business and Human Rights (UNGP) and implement policies for human rights due diligence and human rights’ protection and remediation measures. The decision emphasizes the State obligation to prevent human rights’ violations by private companies, through the adoption of “legislative measures,” but also makes clear that companies should have regard to the interactions and interdependencies between environment protection, biodiversity, human rights and sustainable development (and in particular to consider environment-related human rights impacts) as part of their human rights due diligence.
  • The decision was published in the same month the European Union Council voted to adopt the Corporate Sustainability Due Diligence Directive (CS3D). CS3D will make it mandatory for large companies to carry out due diligence to identify, avoid, and remediate adverse environmental and human rights impacts. We step through some of the key features of the CS3D in our article below.

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Herbert Smith Freehills has released a toolkit for corporate actors on navigating the emerging regulatory landscape designed to protect nature and biodiversity. Explore at the link below.

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Habitantes de La Oroya Vs. Perú

The Plant was established by a US company in the town of La Oroya in 1922. A combination of public and state-owned companies have since operated the Plant, including periods of suspended operations. Due to pollution from the Plant, La Oroya was ultimately catalogued as one of the most polluted cities in the world.

Members of the La Oroya community originally brought proceedings in 2002 seeking remedies to address the extensive air, water and oil pollution emitted from the Plant. In 2006, the Constitutional Court of Peru ordered the Government of Peru to adopt appropriate measures to remedy the harm. However, the orders were never fully implemented. The matter was eventually brought before the IACHR.

The IACHR found that the State of Peru had breached its obligation under Article 26 of the Convention, which includes the State’s obligation to protect the right to a healthy environment.  In relation to alleged pollution from the Plant, the IACHR’s main findings were the following:

  • Pollution: by 2006, 99% of atmospheric pollution in La Oroya was attributable to the Plant’s operations (¶ 76).
  • Lead contamination: Lead concentration in the air was more than 17.5 times US EPA standards, and lead concentration in water was 70 times higher than the local legal standard. Lead detected in the blood of La Oroya’s inhabitants exceeded by three times the limit established by the WHO (¶ 77), and at least 2,300 square kilometers of land in the town was contaminated with lead. (¶ 84)
  • Sacrifice Zone: La Oroya was so heavily polluted that it was considered a “Sacrifice Zone,” that is “a place where environmental contamination is so severe that it constitutes a systematic violation of the human rights of their residents.” (¶ 180)
  • State’s knowledge: The State was aware the pollution and the significant risks that it caused to the environment and people’s health. [¶ 159].
  • Health issues: Inhabitants of La Oroya, including children, suffered from bone, renal, cardiovascular, respiratory, and neuropsychiatric diseases, and even developed tumors and cancer. (¶ 206)

The IACHR disagreed with the State’s defence that a liability finding required demonstration of direct causation between the existence of contaminants in La Oroya and the health issues suffered by its inhabitants. Instead, following previous decisions by the European Court of Human Rights, the IACHR found for the first time that “it is not necessary to show direct causation between [them] . . . [as] it is sufficient to establish that the State allowed the existence of pollution levels that put the people’s health at significant risk and that people were effectively exposed to environmental pollution, in such a way that their health was at risk.” (¶ 204)

Thus, after finding that Peru breached its obligations to regulate, supervise, and monitor the Plant’s operations to prevent La Oroya’s heavy pollution, the IACHR ordered Peru to make reparations, including requiring Peru to: implement measures to monitor and improve the state of air, water and soil at La Oroya; rehabilitate damaged ecosystems; provide free medical care and compensation to the claimants; and prosecute those responsible for the environmental damage.

Considerations for business – UNGP, human rights due diligence and CS3D

By expressly referring to the UN Guiding Principles on Business and Human Rights (UNGP), the IACHR also addressed States’ roles in adopting measures requiring businesses to conduct human rights due diligence in order to “prevent their activities from causing or contributing to human rights violations, and adopt measures aimed at remedying such violations.” (¶¶ 110-111).

The IACHR emphasized that States’ measures should also require businesses to adopt “policies allowing the company to redress human rights violations that occur as a result of the activities . . .” (¶ 112).

The IACHR also ordered Peru to guarantee that the Plant and mining companies should conduct their operations in observance of the UNGP – which encompass the adoption of human rights due diligence (UNGP, art. 4). (see ¶ 352)

The European Union Corporate Sustainability Due Diligence Directive (the CS3D) is a prime example of States requiring companies to carry out due diligence to avoid adverse environmental and human rights impacts. On 24 April 2024, the European Parliament passed a plenary vote to adopt the CS3D.

Under CS3D, large companies domiciled in the EU and foreign companies generating significant revenues in the EU will be obliged to comply with the new sustainability due diligence obligations.

We are observing that market dynamics and stakeholder risk are further increasing the focus on biodiversity impacts of business, making it a business-critical consideration.

What does the right to a healthy environment protect?

There is no universally agreed definition of the right to a healthy environment. However, it has been suggested that it includes the below elements.[1] The IACHR’s findings build upon the IACHR’s discussion of the right in its 2017 non-binding advisory opinion (OC-23/17). (see ¶ 118)

Substantive elements Procedural elements
  • Clean air
  • A safe climate
  • Access to safe water and adequate sanitisation
  • Healthy and sustainably produced food
  • Non-toxic environments in which to live, work, study and play
  • Healthy biodiversity and ecosystems
  • Access to environmental information
  • Public participation in environmental decision-making
  • Access to justice and effective remedies

State obligations for fulfilling the right to a healthy environment

  • The IACHR reaffirmed that the scope of States’ responsibility in respect of protecting the right to a healthy environment differs depending on whether the violating actions are undertaken by a state-owned company (such as the pollution from metallurgical plant during periods it was state-owned) or by a private company within its jurisdiction (such as the pollution from the plant when it was privately owned). In this note, we focus on the latter.
  • The IACHR found that, in order to respect and guarantee the right to a healthy environment in the context of pollution and toxic substances, State obligations include duties of prevention, precaution, cooperation and procedural protections.
  • Looking at the duty of prevention more closely, the IACHR emphasized that States “have the obligation to take the necessary measures and use all available means to prevent activities carried out under their jurisdiction from causing significant damage to the environment.” (¶ 156). This is an obligation of “due diligence” (being based on an obligation to act, rather than achieving a result), the level of which must be proportionate to the risk of environmental damage (¶ 126)..  The due diligence level will be stricter if the environmental damage constitutes a significant risk to children, as “the right to a healthy environment is a universal interest that is owed to both present and future generations” (also known as principle of intergenerational equity). (¶ 142)
  • The duty of prevention requires means of regulating, supervising, inspecting, monitoring and enforcing laws against businesses (see ¶ 126). In terms of regulation, the IACHR found that States should “establish laws, regulations and policies that regulate air quality standards that do not constitute health risk” and “design rules and policies that define water quality standards, especially regarding recycled and wastewater so they are health-compatible and ecosystem-compatible.” (¶¶ 120-121).
  • Moreover, The IACHR considered that the intensity level of States’ supervision and monitoring activities depends on the “level of risk involved in the activity or conduct.” (¶ 167). Thus, in cases such a La Oroya, where highly polluting substances were used, the due diligence obligation has a higher threshold (¶ 126).
  • The IACHR noted that, although the duty of prevention was “conditioned to the [State’s] knowledge of a situation of real and immediate risk to a particular individual or group of individuals and the reasonable possibilities of preventing or avoiding that risk,” (¶ 157), based on the duty of precaution, such knowledge does not require scientific certainty, but only “plausible indicators that an activity could cause serious and irreversible damage to the environment.” (¶¶ 127, 207).
  • Further, as to the procedural protections, the IACHR held that States have the obligation to guarantee access to justice and ensure “that individuals have access to remedies . . . to challenge any rule, decision, act or omission of public authorities that contravenes or may contravene environmental law obligations” and provide “provide complete and comprehensible information regarding the environmental contamination . . .” (¶¶ 265, 273).
  • The IACHR found Peru violated these duties by, inter alia, failing to implement a “specific regulatory legislation . . . on environmental protection with respect to mining and metallurgy prior to 1993,” failing to supervise and take adequate measures “aimed at mitigating the environmental damage caused by the polluting activities,” and failing to provide any information on environmental contamination prior to 2003, and sufficient information after that (see ¶¶162-163, 176, 265).

It is not yet known whether Peru will file a request for interpretation or an appeal of the judgement.

Comment

Peru’s official response to the judgment remains to be seen.  Under Article 67 of the Convention, Peru can file a request for interpretation, and even an appeal for review if “a fact . . . has come to light after the judgment has been delivered [that] affects the contents of the decision, or reveals a substantial defect in it.”  (See , ¶ 15)

The judgment was published only a few weeks before the IACHR decided to hold two in-person public hearings in April and May 2024 in connection to Chile and Colombia’s request for an advisory opinion on “the scope of the States’ obligations… to respond to the climate emergency within the framework of international human rights law.”

As discussed in our note here, one of the issues to be addressed in the advisory opinion requested from the IACHR is to identify the particular measures States may take to reduce the damage caused by the climate emergency, in view of the States’ duties in connection to environmental rights.  This will give the IACHR a further opportunity to continue developing the content of the right to a healthy environment under the Convention.

Obligation to protect the environment as a jus cogens norm

Jus cogens are peremptory norms of customary international law, which cannot be derogated from (even in cases where a State is not party to any relevant treaty).

The majority concurring opinion of the IACHR went so far as to state its opinion that the obligation to protect the environment had acquired the characteristics of a jus cogens norm, commenting that therefore states will not be able to avoid compliance with the norm. The majority opinion stated [¶ 129]:

"It is difficult to imagine international obligations with greater transcendence than those that protect the environment against unlawful or arbitrary conduct that causes serious, extensive, lasting and irreversible damage to the environment in a scenario of climate crisis that threatens the survival of species. In view of the above, the international protection of the environment requires the progressive recognition of the prohibition of this type of conduct as a peremptory norm (jus cogens) that will gain the recognition of the international community as a whole as a norm that does not admit derogation."

The majority view will be relevant in future consideration as to whether and to what extent the obligation of environmental protection is now a peremptory norm of customary international law.

Written by Heidi Asten, Antony Crockett, Paige Mortimer, Daniela Paez, Carlos Hafemann

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[1]     See also: Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Right to a healthy environment: good practices, HRC 43rd session, 3 A/HRC/43/53 (30 December 2019); See also Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, HRC 37th session, 3 A/HRC/37/59 (24 January 2018); see also UNDP, OHCHR and UNEP, What is the Right to a Healthy Environment (5 January 2023), https://www.undp.org/publications/what-right-healthy-environment.

 

 

 

 

 

 

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Heidi Asten

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Heidi Asten
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Antony Crockett

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Daniela Paez

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Paige Mortimer

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Heidi Asten photo

Heidi Asten

Partner, Melbourne

Heidi Asten
Antony Crockett photo

Antony Crockett

Partner, Hong Kong

Antony Crockett
Daniela Paez photo

Daniela Paez

Senior Associate, New York

Daniela Paez
Paige Mortimer photo

Paige Mortimer

Solicitor, Melbourne

Paige Mortimer
Carlos Hafemann photo

Carlos Hafemann

Associate, New York

Carlos Hafemann
Heidi Asten Antony Crockett Daniela Paez Paige Mortimer Carlos Hafemann