“damage to the environment can impair and undermine
all human rights spoken of in the Universal Declaration
and other human rights instruments”

- opinion of Judge Christopher Weeramantry
International Court of Justice

 

Litigation in the
Inter-American Human Rights System

 

Inter-American Commission on Human Rights

 

While litigation in human rights courts may not be among the first responses in a situation, it may be an action to consider in the long term.

A case presented to the Inter-American Human Rights (IAHR) court would need to claim against a government or government agency since human rights instruments, strictly speaking, claim rights individuals and communities have vis a vis their governments, i.e., obligations states have to their citizens. An IAHR petition would thus focus primarily on an agency’s actions or non-actions, perhaps on a failure to regulate sufficiently to prevent human rights violations or threats to human health.

Throughout most of history, those persons wanting to inform others about abuses had no organization to which they could turn, or found themselves denied recognition or standing and thus ignored, or were silenced by their own governments seeking to avoid any criticism by hiding behind claims of national sovereignty.(Lauren, Paul Gordon, The Evolution of International Human Rights, University of Pennsylvania Press, Philadelphia, 2d ed, 2003, p 250)

With the creation of the international human rights system this is now less true.

Claims in international human rights courts have so far focused largely on violations of civil and political rights rather than on environmental rights, but interest in litigating environmental rights is growing.

In his 1974 Hague Academy lecture, Nobel Prize winner René Cassin advocated that existing concepts of human rights protection should be extended in order to include the right to a healthful and decent environment. (JD Taillant in Picolotti and Taillant, Linking Human Rights and the Environment, University of Arizona Press, 2003, p 121)

The most likely court system in which a case involving a situation in the US would be heard is the Inter-American Human Rights System. In this system individual persons or groups of persons do have standing and can bring claims. Courts can issue advisory opinions that would apply even to states that are not party to Inter-American human rights treaties (the US has not ratified most of them), standards of proof are less stringent in these courts than in domestic US courts, and the precautionary principle can be used as a guiding principle in claimants’ arguments. The precautionary principle argument would effectively put the burden of proof on the defendant who wishes to continue the polluting or harmful activity.

Individuals have standing

One of the most important successes of international human rights law is that it has given victims direct access to international human rights fora. Thus in international human rights law, individuals are subjects of law and can legally claim against human rights abuses perpetrated by states. (JD Taillant in Picolotti and Taillant, Linking Human Rights and the Environment, University of Arizona Press, 2003, p 120; emphasis in original.)

Any person or group of persons or nongovernmental entities legally recognized in one or more of the Member States of the OAS [if CASS is not currently formally incorporated as a legal entity, it may wish to take that simple step] may submit petitions to the Commission, on their own behalf or on behalf of third persons, with regard to alleged violations of a human right. This is an important point, since NGOs may actually identify and present a case before the System without having to convince a potentially unwilling party to confront the violator. (JD Taillant in Picolotti and Taillant, Linking Human Rights and the Environment, University of Arizona Press, 2003, p 135-6.)

The statute authorizing the Inter-American Court of Human Rights provides for both advisory and contentious jurisdiction. Contentious jurisdiction applies only to American states that have signed the human rights treaties, and the US has not signed many of them. “Advisory opinions, on the other hand, can involve Member States not party to the Convention,” (Ibid. p128) which does include the US. While advisory cases would result in judgments that are advisory rather than compulsory, they still carry great weight.

Standards of Proof

“Unlike most national courts, the Inter-American Commission and Court have low standards of proof” (Ibid. p 133), sometimes admitting circumstantial evidence. This can benefit plaintiffs who often have less than perfect evidence to support claims of causality and health effects.

In addition, in cases brought before the Court the burden of proof is on the State, despite their position as defendant.

That is... the facts reported in the petition shall be presumed to be true if, during the maximum period set by the Commission, the government of the State in question has not provided pertinent information to the contrary.... If the State denies the evidence, it must specifically prove that the evidence is not valid. (Ibid. p133)

All these provisions favor the petitioner rather than the state.

These courts hear cases brought against states and their agencies, but not against non-state actors such as corporations. “One alternative way around this limitation, however, is to litigate against the State for not taking the necessary preventive measures to avoid corporate abuse.” (Ibid. p132) Thus, a case might be brought against a state Department of Health, for example, for failing to regulate pesticide applications, or industrial pollutants, sufficiently to avoid human rights violations and to protect human health.

The Precautionary Principle

The Precautionary Principle is an emerging principle of international environmental law that requires anticipating and avoiding environmental damage before it occurs, especially where failure to do so would result not only in environmental degradation, but in human rights violations as well.... In essence, the Precautionary Principle shifts the burden of proof from those threatened by an environmentally destructive project, such as the petitioners, to those who want to proceed with the activity and who are more fairly required to make a showing that the project will not result in the threatened harm. This principle especially applies when the proponent of the project has not performed environmental impact assessment.... (Ibid. p134)

Thus the Precautionary Principle, while still emerging as an accepted standard in law, clearly favors the petitioner rather than the defendant since it requires polluters to provide evidence sufficient to show that their polluting activity will not cause serious or irreversible harm.

In order for a petition to be brought to the IAHR system, “the accused State must have violated one of the rights established in the American Convention or the American Declaration” (Ibid. p 136) and “the claimant must have exhausted the possibilities of legal redress in the State in which the violation occurred.” (Ibid. p 136)

Further information about the Inter-American Human Rights System, the Inter-American Court on Human Rights (in Costa Rica), and the Inter-American Commission on Human Rights (in Washington DC), as well as information about how to navigate the Inter-American Human Rights System can be found in Jorge Daniel Taillant, “Environmental Advocacy and the Inter-American Human Rights System,” in Romina Picolotti and Jorge Daniel Taillant, Linking Human Rights and the Environment, University of Arizona Press, 2003.