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43
International Environmental Law for
the 21st Century: The Constitutionalization
of the Tight to a Healthy Environment
in the Inter-American Court of Human
Rights Advisory Opinion 23
Fecha de recepción: 5 de febrero de 2018
Fecha de aceptación: 6 de julio de 2018
Doi: dx.doi.org/10.12804/revistas.urosario.edu.co/acdi/a.7568
Monica Feria-Tinta
Simon C. Milnes*
Abstract: This article analyses the recent Advisory Opinion of the Inter-
American Court of Human Rights on Environment and Human Rights
and argues that it constitutes a milestone effectively reorientating interna-
tional environmental law. The article is divided as follows. First, it analyses
the most salient aspects of the Advisory Opinion inter alia (1) The right
to a healthy environment as binding law and; (2) The Advisory Opinion as a
landmark in the gradual development of international jurisprudence on
* The authors are barristers (advocates), members of the English Bar who practise
at 20 Essex Street Chambers, 20 Essex Street, London, WC2R 3AL, United Kingdom
(mferia-tinta@20essexst.com; smilnes@20essexst.com). Mr Milnes wishes to thank and
acknowledge Santiago Díaz-Cediel and Ignacio F. Grazioso for a long interchange of
ideas in the course of preparing an amicus curiae brief and oral submissions to the Inter-
American Court of Human Rights on its recent advisory opinion discussed below, under
the auspices of the Georgetown University Human Rights Institute.
Para citar este artículo: Feria-Tinta, M. & Milnes, S. C., “International environmental law for the 21st century:
the constitutionalization of the right to a healthy environment in the Inter-American Court of Human Rights
Advisory Opinion 23”, Anuario Colombiano de Derecho Internacional (a cdi), 2019, 12, pp. 43-84. Doi: dx.doi.
org/10.12804/revistas.urosario.edu.co/acdi/a.7568
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International Environmental Law for the 21st Century: The
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44
cross-border (or “diagonal”) human rights obligations (i.e. the possibil-
ity for human rights claims to be brought by individuals not under the
territorial jurisdiction of the State whose international responsibility for
environmental harm is invoked). Second, it contextualizes the Advisory
Opinion by discussing what we consider to be four key vectors currently
affecting the trajectory of the ongoing development of international en-
vironmental law and how the advances made in the Advisory Opinion t
with those developments. Third, it places the Advisory Opinion in the
wider context of developments moving towards a needed reorientation in
international environmental law, in particular: integration (or de-fragmentation)
of international law, the operationalization of environmental principles into
working-level legal norms, and a focus on practical remedies. It is argued that
as the world experiences the pressure for more effective environmental law
and accountability, some of the most sophisticated and innovative thinking
on international environmental law today, is emanating from countries in
the Southern hemisphere, as attested to by the Advisory Opinion.
Keywords: Environmental law, diagonal obligations, remedies, Right to a
healthy environment, Advisory Opinion 23, Inter-American Court of
Human Rights, International Dispute Resolution, investment law, de-
fragmentation of international law.
Derecho ambiental internacional para el siglo xxi:
la constitucionalización del derecho a un medio ambiente
sano en la Corte Interamericana de Derechos Humanos
Opinión Consultiva número 23
Resumen: este artículo analiza la reciente Opinión Consultiva de la Corte
Interamericana de Derechos Humanos sobre el Medio Ambiente y los
Derechos Humanos y sostiene que constituye un hito que reorienta efecti-
vamente el derecho ambiental internacional. El artículo está dividido como
sigue: En primer lugar, analiza los aspectos más destacados de la Opinión
Consultiva, entre otros (1) El derecho a un medio ambiente sano como
derecho vinculante; (2) La Opinión Consultiva como un hito en el desar-
rollo gradual de la jurisprudencia internacional sobre las obligaciones de
derechos humanos transfronterizas (o “diagonales”) (es decir, la posibili-
dad de que los individuos que no están bajo la jurisdicción territorial del
Estado presentendemandas de derechos humanos cuya responsabilidad
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Monica Feria-Tinta, Simon C. Milnes
45
internacional por daños ambientales se invoca). En segundo lugar, el artí-
culo contextualiza la Opinión Consultiva al analizar lo que consideramos
cuatro vectores claves que afectan actualmente la trayectoria del desarrollo
en curso del derecho ambiental internacional, y cómo los avances logrados
en la Opinión Consultiva encajan con esos desarrollos. En tercer lugar,
coloca la Opinión Consultiva en el contexto más amplio de los desarrollos
que se dirigen hacia una reorientación necesaria en el derecho ambiental
internacional, en particular: la integración (o des-fragmentación) del derecho
internacional, la operacionalización de los principios ambientales en las
normas legales a nivel práctico y un enfoque en remedios. Se argumenta
que en tanto que el mundo experimenta la presión por normas de derecho
medioambiental más efectivas y con consecuencias legales si son violadas,
ejemplos de pensamientos más sosticados e innovadores en materia de
derecho del medio ambiente actual, vienen emanando de los países del
hemisferio sur, como lo conrma la Opinión Consultiva.
Palabras clave: derecho del medioambiente, derecho a un ambiente sano,
obligaciones diagonales, Opinión Consultiva 23, Corte Inter-Americana
de Derechos Humanos, Resolución de Conictos Internacionales, derecho
de inversión, de-fragmentación del derecho internacional.
Direito ambiental internacional para o século xxi:
a constitucionalização do direito a um meio ambiente saudável
na Corte Interamericana de Direitos Humanos Opinião
Consultiva número 23
Resumo: este artigo analisa a recente Opinião Consultiva da Corte Inte-
ramericana de Direitos Humanos sobre o Meio Ambiente e os Direitos
Humanos e sustenta que constitui um marco que reorienta efetivamente
o direito ambiental internacional. O artigo está dividido como segue: em
primeiro lugar, analisa os aspectos mais destacados da Opinião Consul-
tiva, entre outros (1) O direito a um meio ambiente saudável como direito
vinculante; (2) A opinião Consultiva como um marco no desenvolvimento
gradual da jurisprudência internacional sobre as obrigações de direitos hu-
manos transnacionais (ou “diagonais”) (é dizer, a possibilidade de que os
indivíduos que não estejam sob a jurisdição territorial do Estado apresente
demandas de direitos humanos cuja responsabilidade internacional por
danos ambientais invoca-se). Em segundo lugar, o artigo contextualiza a
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Opinião Consultiva ao analisar o que consideramos quatro vetores chave
que afetam atualmente a trajetória do desenvolvimento em curso do direito
ambiental internacional, e como os avanços logrados na Opinião Con-
sultiva encaixam com esses desenvolvimentos. Em terceiro lugar, põe à
Opinião Consultiva no contexto mais amplo dos desenvolvimentos que se
dirigem à uma reorientação necessária no direito ambiental internacional,
em particular: a integração (ou desfragmentação) do direito internacional,
a operacionalização dos princípios ambientais nas normas legais no nível
prático e um foco em remédios. Se argumenta que enquanto o mundo
experimenta a pressão por normas de direito meio ambiental mais efetivas
e com consequências legais se são violadas, exemplos de pensamentos
mais sosticados e inovadores em matéria de direito do meio ambiente
atual, vêm emanando dos países do hemisfério sul, como o conrma a
Opinião Consultiva.
Palavras-chave: direito do meio ambiente, direito a um ambiente saudável,
obrigações diagonais, Opinião Consultiva 23, Corte Interamericana de
Direitos Humanos, Resolução de Conitos Internacionais, direito de in-
vestimento, desfragmentação do direito internacional.
In its collective dimension, the right to a healthy environment constitutes a universal
interest, which is owed both to present and future generations. […] The degradation
of the environment can cause irreparable damage to human beings, and therefore a
healthy environment is a fundamental right for the existence of humanity.1
1 Inter-Am. Ct. H. R., 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-23/18, (ser. A), Nº 23, 15 November 2017 (available in Spanish
only), § 59. M Feria-Tinta’s translation.
In the original Spanish: “En su dimensión colectiva, el derecho a un medio ambiente
sano constituye un interés universal, que se debe tanto a las generaciones presentes y
futuras. […] La degradación del medio ambiente puede causar daños irreparables en los
seres humanos, por lo cual un medio ambiente sano es un derecho fundamental para la
existencia de la humanidad”.
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Introduction
Ecological systems are severely degraded, to the point where some scien-
tists foresee a possible ‘planetary collapse’ within our lifetimes.2 That very
fact is a harsh verdict on the insufciency of international environmental
law as it has developed from its emergence in the 1970s to the present.
Do legal tools exist that could sufce to assure our survival?
Increasingly, international and domestic courts and tribunals are
confronting that question, and in some cases taking innovative steps to
forge such tools. The Republic of Colombia has been, in more ways than
one, a key actor in these global developments. The Supreme Court cases
concerning the Atrato River and the Amazon,3 in addition to their intrinsic
value in preserving ecological resources of inestimable worth, also offer
a model which may enrich and inuence judicial developments in other
countries. Moreover, it was Colombia which submitted a Request to the
Inter-American Court of Human Rights (IACtHR) which led to the publi-
cation on 7 February 2018 of this Court’s ground-breaking Advisory Opinion
on the Environment and Human Rights,4 perhaps the most signicant ruling
on environmental issues of any international tribunal to date.
This article aims to situate current developments within the wider
problematique of human and ecological survival, the quest for an interna-
tional law that possesses real utility in tackling the crisis which confronts
humankind. The article is divided into four parts. Part I analyses the most
salient aspects of the Advisory Opinion. Part II contextualizes the Advisory
Opinion by discussing what we consider to be four key vectors currently
affecting the trajectory of international environmental law’s ongoing de-
velopment, and how the advances made in the Advisory Opinion t with
those developments. Part III outlines a prescription for an urgently needed
reorientation in international environmental law, advocating in particular:
integration (or de-fragmentation) of international law, the operationalization of
environmental principles into working-level legal norms, and a focus on
practical remedies. In the effort to reorient international environmental law,
2 E. g., Barnosky, A. D. et al., “Approaching a State shift in Earth’s biosphere”, Nature,
January 2012; Ahmed, N., “Nasa-funded study: industrial civilisation headed for ‘irrevers-
ible collapse’?”, The Guardian, 14 March 2014.
3 These cases are discussed briey below: see the text accompanying n. 51-53, infra.
4 Inter-Am. Ct. H.R., The environment and human rights, op. cit., n. 2, supra.
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the Advisory Opinion is likely to prove a milestone: in particular, it has
illuminated the many powerful ways in which the environmental dimen-
sion of human rights has binding constitutional force under the American
Convention on Human Rights.5 Part IV concludes.
I. The Advisory Opinion of the Inter-American
Court of Human Rights on the Environment
and Human Rights
A. Colombia’s Request to the IACtHR for
an Advisory Opinion
In March 2016, Colombia, submitted a Request to the IACtHR,6 asking
three main questions, namely (as a précis):
(1) If an individual living in Country A suffers a human rights
violation caused by environmental damage emanating from
Country B, can that individual bring a claim to hold Country
B responsible under the American Convention on Human Rights7
(American Convention)?
(2) Would Country B breach the American Convention if —by act
or omission— it were to cause serious transboundary environ-
mental damage that undermined the rights to life and personal
integrity (protected by Articles 4 and 5 of the American Con-
vention) of people living in Country A?
(3) Does the American Convention require Country B to comply
with the norms of international environmental law, and does that
include, as one necessary mode of compliance, a requirement
to carry out an environmental impact assessment of proposed
5 oas Treaty Series, Nº 36, 1144 unts 123, entered into force 18 July 1978.
6 “Request for an advisory opinion, presented by the Republic of Colombia, concerning
the interpretation of article 1(1), 4(1) and 5(1) of the American Convention on Human
Rights”, 14 March 2016, in http://www.corteidh.or.cr/solicitudoc/solicitud_14_03_16_ing.
pdf, accessed on 10 April 2018.
7 American Convention on Human Rights (Pact of San José), adopted at San José, Costa
Rica, on 22 November 1969, entered into force 18 July 1978, oas Treaty Series, Nº 36.
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projects with potential transboundary impacts? And if so, what
does that obligation generally entail?8
Colombia’s Request elicited a detailed and carefully reasoned ruling.
The Advisory Opinion is the rst legal pronouncement ever made by an
international human rights court with a true focus on environmental law
as a systemic whole.9 It also unequivocally places environmental rights in
the sphere of basic rights that are justiciable under the American Conven-
tion. This matters because, as the un Special Rapporteur on human rights
and the environment, Professor John Knox, observed “[t]he drafters of
the seminal human rights instrument, the 1948 Universal Declaration of
Human Rights did not include environmental rights”.10 Yet, as the IAC-
tHR noted, without a healthy environment other human rights are often
nullied.11 The lack of an overt mention of environmental rights as basic
rights in the Universal Declaration —and indeed the American Conven-
tion— is remedied by the IACtHR’s conclusion.
Colombia’s Request represented an intricate intermingling of political
and environmental concerns. Its backdrop and impetus were the ongoing
disputes with Nicaragua over maritime boundaries,12 and the threat posed
by potentially unbridled infrastructure development in Nicaragua to the
vulnerable ecosystems and means of livelihood in Colombia’s maritime
8 Feria-Tinta, M. & Milnes, S. C., “The rise of environmental law in international dis-
pute resolution: the Inter-American Court of Human Rights issues a landmark advisory
opinion on environment and human rights”, Yearbook of International Environmental Law,
2018, 27 (forthcoming).
9 Feria-Tinta, M. & Milnes, S. C., “The rise of environmental law in international dispute
resolution: Inter-American Court of Human Rights issues a landmark advisory opinion
on environment and human rights”, ejil Talk!, Blog, 26 February 2018.
10 Human Rights Council, Preliminary report of the independent expert on the issue of human
rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John
H. Knox, 24 December 2012, un Doc. A/HRC/22/43, § 7.
11 Advisory Opinion, § 59.
12 The International Court of Justice had decided a dispute on maritime boundaries
between Colombia and Nicaragua adversely to Colombia. Territorial and maritime dispute
(Nicaragua v Colombia), Judgment, icj Reports, 2012, p. 624. Following this, Colombia had
withdrawn its optional clause declaration under Article 36(2) of the icj Statute. As a con-
sequence, Colombia would no longer have a right of recourse to the icj against Nicaragua,
for example in cases of environmental harm.
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provinces.13 In particular, plans by Nicaragua to build, with funding from
China, a 170-mile rival to the Panama Canal linking the Caribbean Sea
and the Pacic Ocean, dubbed “the biggest earth-moving operation in
history”,14 are considered by scientists to threaten irreversible harm to the
marine ecosystem in Caribbean waters. It is feared that this megaproject
would destroy the marine ecosystem in the area (killing reefs, seagrass
and sh), followed by chemical pollution and bringing invasive species
introduced by shipping lane bottlenecks.15 A case pending, at admissibility
level, before the Inter-American Commission on Human Rights brought
by indigenous populations against Nicaragua in relation to the construc-
tion of the canal, was likewise in the background.16 Colombia’s Request
thus brought under the Court’s purview a compelling contemporary issue:
the ability (or lack thereof) of international law to regulate unrestrained
development of infrastructure megaprojects, not least given the trans-
boundary harms they may cause. As Colombia’s Request noted, we are
indeed “living at a time when major infrastructure projects are frequently
being built and brought into operation […] with effects that may exceed
state boundaries”.17
Despite this specic context, the Request raised issues that tran-
scended any particular bilateral dispute. Colombia’s Request led to a fertile
debate before the IACtHR, with carefully deliberated interventions by states
13 This political ‘edge’ to the Request would doubtless have been apparent to the IACtHR,
and in any event, the Guatemalan representative at the hearing on Colombia’s Request
drew attention to the need to ensure that any Advisory Opinion did not undermine the
icj’s settlement of that territorial dispute. Feria-Tinta, M. & Milnes, S. C. n. 9, supra. The
IACtHR deftly defused that aspect by concentrating on the issues of principle and avoid-
ing expressing any concrete views on particular instances of pollution sources or their
victims. Id.
14 Gibbs, S. & Elliott, L., “China puts Nicaraguan canal plan on hold”, The Times, 19
June 2017.
15 Feria-Tinta, M. & Milnes, S. C., “How international law could help victims of envi-
ronmental degradation”, The Guardian, 21 February 2018.
16 Petition 912/14 led before the Inter-American Commission on Human Rights on
17 June 2014. See Advisory Opinion at para. 25. For further information on the petition
see fidh report “Concesión del canal interoceánico en Nicaragua: grave impacto en los
derechos humanos - Comunidades campesinas movilizadas resisten”, September 2016 Nº
680e, in https://www.dh.org/IMG/pdf/nicaragua680esp2016web-1gg.pdf, accessed on
31 July 2018.
17 Request at para. 9.
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Monica Feria-Tinta, Simon C. Milnes
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parties to the American Convention,18 intergovernmental organisations,19
and civil society organisations.20 A notable feature of the submissions by
regional states was the consistent support for recognition of environmental
rights, broadly in favour of an afrmative answer to the questions posed
in Colombia’s Request.21
In turn, the IACtHR’s response to Colombia’s three questions was
also broadly in the afrmative, in certain respects even more so than the
Request had envisaged.22 We have discussed some central aspects of the
IACtHR’s ruling elsewhere.23 Below we offer a brief account of the most
salient features of the Advisory Opinion, as a preliminary to situating the
18 Argentina, Bolivia, Honduras and Panama made written observations and intervened
orally before the Court. Guatemala intervened orally at the hearings. Advisory Opinion
op. cit., at para. 6 and 9.
19 The Inter-American Commission on Human Rights, the General Secretariat from the
Organisation of American States (oas) with the International Union for Conservation
of Nature’s World Commission on Environmental Law, and the International Maritime
Organisation. Id.
20 There were forty four interventions from civil society.
21 See Feria-Tinta, M. & Milnes, S. C., n. 9, supra. One State, Panamá, expressed more
restrictive views but nonetheless emphasized the importance of states adhering to inter-
national environmental norms). Guatemala and Honduras favoured Colombia’s position,
while Bolivia (which did not submit any written observations) made oral submissions
going even further, in line with the Bolivian government’s strongly environmentalist and
indigenous peoples-oriented stance. Argentina advocated for a more cautious and context-
driven approach, but one that was open to “diagonal” jurisdiction based on concrete facts
(similar to the IACtHR’s eventual ruling).
22 On the rst question, the IACtHR adopted a broader approach than Colombia had
proposed, in that it declined Colombia’s invitation to base either substantive state human
rights obligations or the scope of “jurisdiction” under Article 1(1) of the American Con-
vention on the existence or otherwise of any other treaty regime such as the Convention
for the Protection and Development of the Marine Environment of the Wider Caribbean
Region, adopted in Cartagena, Colombia, 24 March 1983, entered into force 11 October
1986 (Cartagena Convention).
23 Some key aspects of the decision have been briey discussed in Feria-Tinta, M. &
Milnes, S. C., “How international law could help victims of environmental degrada-
tion”, The Guardian, 21 February 2018; and Feria-Tinta, M. & Milnes, S. C., “The rise of
environmental law in international dispute resolution: Inter-American Court of Human
Rights issues a landmark advisory opinion on environment and human rights”, ejil Talk!,
Blog, 26 February 2018. For an in-depth analysis of aspects of the Advisory Opinion, see
Feria-Tinta, M. & Milnes, S. C., “The rise of environmental law in international dispute
resolution: the Inter-American Court of Human Rights issues a landmark advisory opinion
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Advisory Opinion within the broader arc of international environmental
law (Part II).
B. Salient Aspects of the Advisory Opinion
In our view, the most salient aspects of the Advisory Opinion can be
described as:
(1) The substantive aspect: The IACtHR recognised the basic right
to a healthy environment under the American Convention;
(2) The jurisdictional aspect: The Advisory Opinion opens the door
—albeit in a cautious and pragmatic way— to diagonal human
rights claims, and this has potential to unlock real remedies for
the victims of transboundary environmental pollution;24
(3) Due diligence and procedural obligations (and rights) are given a
central role as organizing principles for state conduct; and
(4) More adventurously yet, the Court recognizes the evolving trend
of assigning the status of a rights-bearer to the environment
itself, or components of it.
These aspects are discussed in a little more detail below.
(1) The Substantive Aspect - The Right to a Healthy Environment
While an emphasis on the importance of natural resources and the en-
vironment has already featured prominently in the jurisprudence arising
from claims brought by indigenous and tribal populations,25 the Advisory
on environment and human rights”, Yearbook of International Environmental Law, 2018, 27
(forthcoming).
24 Id.
25 A critical link between human beings’ subsistence and the environment has already been
noted by earlier Inter-American Commission’s reports, e. g., iachr, “Indigenous and tribal
people’s rights over their ancestral lands and natural resources, norms and jurisprudence of
the Inter-American Human Rights System”, 30 December 2009. oea/Ser.I/L/V/II. Doc.
56/09, § 192, in http://www.oas.org/en/iachr/indigenous/docs/pdf/ancestrallands.pdf,
accessed on 20 April 2018. The Inter-American Commission on Human Rights —aptly
quoted by the Advisory Opinion— has pointed out in the past that “several fundamental
rights require, as a necessary precondition for their enjoyment, a minimum environmental
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Opinion breaks new ground in analysing individual rights in relation to
the environment, in a central and systematic manner.26 The Court recog-
nized the right to a healthy environment, in its individual and collective
dimensions,27 as a fundamental right for the existence of humanity.28 While
the American Convention itself does not explicitly provide for such a right,
the Court interpreted the American Convention as a living instrument,
taking an evolutive and systemic interpretative approach.29 Article 11 of
the Protocol of San Salvador30 to the American Convention does provide
expressly for the right to a healthy environment, and the Preamble to the
Protocol of San Salvador acknowledges the close relationship that exists
between economic, social and cultural rights (which include the right to a
healthy environment) and civil and political rights, “in that the different
categories of rights constitute an indivisible whole based on the recognition
of the dignity of the human person”.31 The Commission has also held in
the context of its reporting functions that “where environmental contami-
nation and degradation pose a persistent threat to human life and health,
the foregoing rights are implicated”.32 The Advisory Opinion likewise held
quality, and are profoundly affected by the degradation of natural resources”. See Advisory
Opinion, para. 48 citing the iachr, “Indigenous and tribal people’s rights over their ancestral
lands and natural resources, norms and jurisprudence of the Inter-American Human Rights
System”, 30 December 2009. oea/Ser.I/L/V/II. Doc. 56/09, at para. 190, in http://www.
oas.org/en/iachr/indigenous/docs/pdf/ancestrallands.pdf, accessed on 20 April 2018.
26 Feria-Tinta, M. & Milnes, S. C., “The rise of environmental law in international dis-
pute resolution: the Inter-American Court of Human Rights issues a landmark advisory
opinion on environment and human rights”, Yearbook of International Environmental Law,
2018, 27 (forthcoming).
27 Advisory Opinion, para. 47.
28 Advisory Opinion, para. 59.
29 See Advisory Opinion, §43, §44.
30 Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights, Signed at San Salvador, El Salvador, on November
17, 1988, at the eighteenth regular session of the General Assembly of the oas. oas Treaty
Series, Nº 69. Basic documents pertaining to human rights in the Inter-American System,
oea/Ser. I./V.I.4 rev 8, 22 May 2001. Article 11 provides: “(Right to a Healthy Environ-
ment) 1. Everyone shall have the right to live in a healthy environment and to have access
to basic public services. 2. The State Parties shall promote the protection, preservation
and improvement of the environment”.
31 Protocol of San Salvador, Preamble, recital 3, cited in Advisory Opinion, §47.
32 iachr, Report on the situation of human rights in Ecuador. Doc oe/Ser.L/V/II.96, Doc.
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that “environmental degradation […] affects the effective enjoyment of
human rights”.33 It acknowledged the interdependence and indivisibility
between human rights and the protection of the environment, giving rise
to state obligations.34 The environmental obligations become stricter if,
in addition to a human rights treaty, there is also an environmental treaty
(such as the Cartagena Convention).35,36
(2) ‘Diagonal’ Human Rights Obligations
The Advisory Opinion is likely to prove a landmark in the gradual de-
velopment of international jurisprudence on cross-border (or ‘diagonal’)
human rights obligations, i. e., the possibility for human rights claims to
be brought by individuals not under the territorial jurisdiction of the state
whose international responsibility for environmental harm is invoked. So
far the approach taken both by the Inter-American system and the Eu-
ropean Court of Human Rights to extraterritorial obligations has been
cautious.37 The Advisory Opinion makes clear that (i) in principle, cross-
border human rights claims in respect of transboundary pollution and
ecological damage are permissible under the American Convention, and
(ii) such claims are not limited only to damages caused by a state’s agents
—rather, the IACtHR’s jurisdiction would extend to activities over which
a state exercises “effective control”—.38
The Advisory Opinion emphasises that extraterritorial obligations
are exceptional and should be restrictively construed.39 Even so, its prin-
cipled and pragmatic handling of the concept of “effective control” is
10 rev.1, April 24, 1997, at para 190.
33 Advisory Opinion, §47. (Our translation).
34 Advisory Opinion, §55.
35 Convention for the Protection and Development of the Marine Environment of the
Wider Caribbean Region, adopted Cartagena, Colombia, 24 March 1983, entered into force
11 October 1986.
36 Advisory Opinion, §126.
37 For a detailed discussion on this aspect of the Advisory Opinion, see Feria-Tinta, M. &
Milnes, S. C., “The rise of environmental law in international dispute resolution: the Inter-
American Court of Human Rights issues a landmark advisory opinion on environment
and human rights”, Yearbook of International Environmental Law, 2018, 27 (forthcoming).
38 Id. See Advisory Opinion, at §104(h).
39 Advisory Opinion, §81 and §104(d).
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an important development that should assist, in future, to avoid impunity
for severe cross-border harms. With infrastructure megaprojects and
other developments that have impacts on a similar scale, the magnitude
of transboundary effects and their consequences challenge the traditional
jurisdictional application of human rights treaties. In the context of trans-
boundary harm, human rights recognised in un and regional treaties would
be de facto inoperable and meaningless unless the states that are the sources
of these harms bear an international responsibility that is reasonably ca-
pable of being invoked under those treaties’ accountability mechanisms,
such as Article 63 of the American Convention.40
(3) Due Diligence, the Duty to Prevent Transboundary Harm
and Procedural Obligations
In the IACtHR’s analysis, the states’ obligation to use due diligence is
pivotal: the Court acknowledges that the majority of the environmental
obligations rest on a duty of due diligence on the part of the state,41 under-
stood as an obligation of conduct (i. e., focusing on what states do), and not
as an obligation of result (focusing on whether states succeed in achieving
a particular result or not).42
The Advisory Opinion draws heavily from the 1972 Stockholm Dec-
laration43 and the 1992 Rio Declaration,44 treating the principles enunciated
in those early non-binding legal instruments —including prevention of
environmental harm, the precautionary principle, procedural safeguards,
and the obligation of cooperation— as binding legal obligations under
the American Convention. It also elaborates on the scope of a number
of procedural rights such as access to information, public participation and
access to justice.
40 Feria-Tinta, M. & Milnes, S. C., “The rise of environmental law in international dis-
pute resolution: the Inter-American Court of Human Rights issues a landmark advisory
opinion on environment and human rights”, Yearbook of International Environmental Law,
2018, 27 (forthcoming).
41 Advisory Opinion, at §124.
42 Advisory Opinion, at §123.
43 Declaration of the United Nations Conference on the Human Environment, Stock-
holm, June 5-16, 1972, un Doc. A/Conf.48/14/Rev. 1(1973); 11 ilm 1416 (1972).
44 Rio Declaration on Environment and Development, Rio de Janeiro, 13 June 1992. un
Doc. A/CONF.151/26 (vol. I); 31 ilm 874 (1992).
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The Court held in particular, that, in order to respect and guarantee
rights to life and integrity, states are under a duty to:
i. Prevent signicant environmental damage, both inside and
outside their territory;
ii. Regulate, oversee and control the activities under their jurisdiction
which may give rise to signicant damage to the environment,
carry out studies on environmental impact when there exists
the risk of signicant damage to the environment, draw up a
contingency plan so as to have in place safety measures and pro-
cedures for minimising the possibility of major environmental
accidents, and mitigating any signicant environmental damage
that would have ensued, even when this may have occurred in
spite of preventive actions on the part of the state;
iii. Act in accordance with the precautionary principle, when faced
with possible severe or irreversible damage to the environment,
even in the absence of scientic certainty;
iv. Co-operate, in good faith, for the protection against damage to
the environment;
v. Pursuant to that duty of co-operation, notify other states that
may be potentially affected when they become aware that a
planned activity under their jurisdiction could give rise to a
risk of signicant cross-border damage, and in cases of envi-
ronmental emergencies, as well as consulting and negotiating,
in good faith, with the states potentially affected by signicant
cross-border damage;
vi. Guarantee the right of access to information relating to possible
negative impact upon the environment, enshrined in Article 13
of the American Convention;
vii. Guarantee the right to public participation of people under
their jurisdiction, which is enshrined in Article 23(1) of the
American Convention, in the making of decisions and policies
that may affect the environment; and
viii. Guarantee access to justice, with regard to State obligations for
the protection of the environment.45
45 Advisory Opinion, §242.
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(4) The Environment Itself as a Rights-Bearer
Whilst the Stockholm and Rio Declarations postulate a human-centric
approach, the Advisory Opinion pays attention to a recent phenomenon
of granting legal protection to components of the environment, such as
forests or rivers, as being in themselves the subjects of rights. Such an
approach values not only the utility of nature for human beings but also
its importance to the living organisms on the planet, having a claim in
themselves to exist and ourish.46 The IACtHR noted that the Constitutions
of some Latin American states, such as Bolivia and Ecuador, recognize
inherent rights of nature. It also noted important judicial developments
elsewhere that reected the same approach: recent examples of the protec-
tion of nature in its own right by judicial means have arisen in Ecuador,47
Colombia,48 and India,49 where rivers have been granted legal personality.
In Colombia, the Constitutional Court declared the Atrato river, whose
delta is one of the “most biodiverse wildlife ecosystems in the world”,50
as a “subject of rights” entitled to “protection, conservation, maintenance
and, in the concrete case, restoration”,51 and ordering the government to
clean its waters that are contaminated with mercury.52 In New Zealand a
similar protection has been conferred on the river Whanganui by law.53
The approach of recognizing the environment itself as a rights-
bearer is proving effective in the struggles of indigenous communities
across the American region to protect natural resources from extractive
industries. First used to protect rivers, the device has also been applied
46 See, e. g., Advisory Opinion, §62.
47 Constitutional Court of Ecuador, Judgment 218-15EP-CC, 9 July 2015.
48 Constitutional Court of Colombia, Judgment T-622-16, 10 November 2016.
49 Lalit Miglani v. State of Uttaarakhand and others, High Court of Uttarakhand at Naintal,
India, Judgment of 30 March 2017.
50 Villa, Laura, “The importance of the Atrato river in Colombia”, 17 May 2017, in
https://www.earthlawcenter.org/blog-entries/2017/5/the-importance-of-the-atrato-river-
in-colombia-gaining-legal-rights
51 “Corte asegura que el río Atrato tiene derechos y ordena recuperarlo”, El Tiempo, 2
May 2017.
52 https://justiciaambientalcolombia.org/2017/05/07/sentencia-rio-atrato/, accessed
on 27 April 2018.
53 https://www.parliament.nz/en/get-involved/features/innovative-bill-protects-whan-
ganui-river-with-legal-personhood/, accessed on 28 April 2018.
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to forests. The most recent example is the Supreme Court of Colombia’s
granting of legal personality to the Colombian Amazon region, a rainfor-
est which saw deforestation increase by 44 % from 2015 to 2016.54 The
Supreme Court ordered urgent measures to be taken by local government
and central government to protect the Amazon from deforestation.
A similar subjectivity can be discerned in the bold move by Palau
to create one of the world’s largest ocean reserves. In Palau, traditional
practices of environmental management known as bul combine intrinsic
respect for nature with a functional means of keeping the society’s devel-
opment within what the ecosystem can support.55
These developments are examples of Judge Weeramantry’s obser-
vation56 that modern international law has much to learn from the ways
in which ancient and traditional societies learned to co-exist with their
environment, far more sustainably than the model currently being pursued
by most countries.
54 Judgment STC4360-2018, 5 April 2018, in http://legal.legis.com.co/document?obra
=jurcol&document=jurcol_c947ae53aeb447bd91e8e9a315311ac5, accessed on 25 April
2018.
55 See, e. g., Idechong, Noah, House of Delegates of Palau, submission to the United
Nations on “Micronesian Sea Traditions - Palau’s Marine Protected Areas”, in http://www.
un.org/depts/los/consultative_process/documents/7abstract_idechong.pdf (“Surrounded
by water, Palauans have developed a life which is inextricably linked with the oceans. We
derive food, identity and traditions from our relationship with the ocean. The long standing
success of this symbiotic relationship is based on responsibility that each Palauan is taught
from childhood that they are caretakers of the sea […] Palau’s practical experience with
the ecosystem approach extends back thousands of years. The traditional practice of bul
is an important example. Bul involves the Council of Chiefs placing reef areas off limits
to shing during known sh spawning and feeding periods. This respects vulnerabilities
in the ecosystem while ensuring that there will be robust sh to catch during other times
of the year […] Palau has banned all bottom trawling within its waters and by any Palauan
or Palauan company anywhere in the world. Palauan law also obligates Palau to seek an
interim prohibition on unregulated bottom trawling in international waters […] In Palau
it is more than just a saying, ‘we do not inherit the earth from our parents, we borrow it
from our children’, it is a deeply held belief”).
56 Gabčíkovo-Nagymoros Case, separate opinion of Justice Weeramantry, icj Reports, 1997,
pp. 94-95.
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II. Situating the Advisory Opinion in Context:
A Time of Change and Reorientation in International
Environmental Law
We use the term ‘international environmental law’ to refer not to a dened
body of law but more as a convenient shorthand for a collectivity —po-
rous and ever-evolving— of international and transnational legal regimes
that touch in some way on the environment, in all its aspects (human,
natural, atmospheric, oceans, forests, rivers, groundwater, and so on). As
such, it embraces not only those instruments which might rst spring to
mind, such as multilateral treaties on explicitly environmental subjects,
but also instruments which regulate economic relationships such as trade,
foreign investment and the activities of multilateral development banks,
and global and regional human rights treaties which contain substantive
and procedural norms that support protection of the environment and
the rights and safety of its defenders. It also embraces relevant ‘soft law’
instruments adopted or endorsed by the international community, national
regulations, and private sector and cross-sectoral initiatives that seek to
govern transnational problems.
International environmental law is a young eld: its emergence as
a distinct body of law is usually dated to about 1972.57 It has evolved and
expanded rapidly.58 As with the evolution of international law generally,
international environmental law is the sum of the vectors acting upon it.
It stands in a complex and ever-shifting relationship with other parts of
international law, the international system itself, and pressures from states,
ruling elites, business, civil society, and public opinion.
From this perspective, international environmental law stands today
in a maelstrom of forces: a worsening danger of planetary collapse as fun-
damental ecological boundaries are crossed;59 turbocharged development,
especially of infrastructure megaprojects and hydrocarbon extraction
projects, many of doubtful utility; profound inequities in the distribution
of the gains and harms from economic development and of the wastes
57 E. g., Fitzmaurice, M., Ong, D. M. & Merkouris, P. (eds.), Research handbook on interna-
tional environmental law, 2010, 15.
58 E. g., Brown Weiss, E., “The evolution of international environmental law”, Japanese
Y. B. Intl. L., 2011, 54, pp. 1-27.
59 See n. 3, supra.
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it generates; ongoing divisions between countries with different levels
of wealth and capabilities; growing disorder in the international system;
and growing doubts about the ability of international law to respond to
these multiple threats in a divided world. Yet, despite the unpromising
background, the Advisory Opinion, and indeed the Atrato and Amazon
judgments, are not isolated developments but part of a discernible trend
in contemporary international law.60 Moreover, much of the momentum
behind this trend comes from countries in the global South, some of them
places where environmental law scarcely existed only twenty years ago.
What explains this new dynamic? Myriad interrelated forces are at
work. We identify four as especially signicant. These are: (1) inescapable
realities of planetary boundaries; (2) a turn to bottom-up approaches (given
the failure of traditional top-down international governance approaches);
(3) a shift in the long-problematic relationship between the global South
and international environmental law; and (4) a new problem that inter-
national law itself —in its fragmented condition— can pose obstacles to
the adoption of policies geared to the fullment of human rights and the
protection of nature. We discuss these in more detail below.
These forces (among others)61 are, we contend, prompting a reorien-
tation in international environmental law. If we are correct, the next phase
will be characterized above all by (1) the increasing integration of interna-
tional environmental law and human rights with other important bodies
of international law, achieving the “defragmentation” of international
law (properly conceived as a system) with both environmental and human
rights concerns at its core; (2) more emphasis on the operationalization of
existing (but so far inadequately implemented) norms and principles; and
(3) a focus on remedies for environmental harms.
60 Feria-Tinta, M. & Milnes, S. C., “The rise of environmental law in international dispute
resolution: Inter-American Court of Human Rights issues landmark advisory opinion on
environment and human rights”, ejil Talk!, Blog, 26 February 2018.
61 Clearly, no distillation of trends or schematization of causes such as those we put
forward could hope to be an adequate account of the full complexity of developments
occurring. Our argument below is offered as some bold, outline strokes (with all the invi-
tation to debate which that implies).
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A. The Vectors Acting on International Environmental Law
We suggest that at the present conjuncture there are —among the innu-
merable forces at work— four key developments that are especially sig-
nicant in pushing international environmental law into a particular new
direction. We have encapsulated those four trends above, and here we seek
to examine them in a little more detail. It is important to emphasize that
these four trends are, in themselves, neither “harbingers of international
happiness”62 nor “horsemen of the apocalypse”.63 They are just processes
—combinations of facts and of ideas which enjoy a certain currency—
and they affect each other,64 even as they inuence the overall direction
of international environmental law.
(1) Planetary Boundaries
Things are bad. The present situation was well summarized by the Supreme
Court of Colombia in the Amazon case:
Due to multiple simultaneous causes, derived, connected, or isolated,
that negatively impact the ecosystem, environmental issues occupy a
prominent place on the international agenda, not only of scientists
and researchers, but also of politicians, the common people and, natu-
rally, judges and lawyers. Day to day the news, articles and reports of
different tiers presenting the gravity of the planetary conditions are
abundant. There is a growing threat to the possibility of existence of
human beings.65
62 To borrow the ironic phrase coined by Klabbers, Jan, “The life and times of the law
of international organizations”, Nordic J. Int’l L., 2001, 70, pp. 287, 288.
63 Greenwood, Christopher, “Is international law falling apart?”, Public Lecture, Inner
Temple, 15 March 2018.
64 For example, the rst can fairly be regarded as a cause of the second and third. The
fourth is partly responsible for the rst, and might be a cause of the second (i. e., a reason
why states look to extra-legal or non-legal policy initiatives instead of seeking to craft an
improved multilateral framework).
65 Amazon case §4. Unofcial translation by Dejusticia, in http://blogs2.law.colum-
bia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documen
ts/2018/20180405_11001-22-03-000-2018-00319-00_decision-1.pdf
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If we are to measure the success of international environmental
law by its record in staving off a global environmental disaster, then it has
been a great disappointment. Indeed, anyone who has read the preambles
to the numerous multilateral environmental agreements concluded over the
last three decades, and who also reads the news, cannot fail to experience
a strange kind of cognitive dissonance. In the preambles, one reads that
states have spotted some potential problems on the horizon and decided
to take early, principled, equitable action to ensure that such unpleasant
visions never come to pass. The international community speaks (with
negotiated unanimity) of its own prudence, wisdom and stewardship,
of balance, of sustainable development, of its willingness to moderate
growth and consumption in the interests of environmental quality for
this and future generations. Look anywhere else, though, and evidence
for the existence of any such prudence, long-term thinking, stewardship,
or inter-generational equity is vanishingly rare.
Just for instance, one may consider how the declared intentions
of the three major multilateral legal instruments negotiated at the 1992
un Conference on the Environment and Development at Rio de Janeiro
stand up when measured against reality:
i. In the United Nations Framework Convention on Climate Change,66 en-
joying near-universal participation, the international community
pledges itself to the objective of “achiev[ing] […] stabilization
of greenhouse gas concentrations in the atmosphere at a level
that would prevent dangerous anthropogenic interference with
the climate system”.67 How did we do? According to the 2014
synthesis report of the International Panel on Climate Change
(an intergovernmental scientic organisation):
Throughout the 21st century, climate change is expected to lead to
increases in ill-health in many regions and especially in developing
countries with low income, as compared to a baseline without
climate change (high condence). By 2100 […] the combination
of high temperature and humidity in some areas for parts of
the year is expected to compromise common human activities,
66 un Treaty Series, vol. 1771 (p. 107), opened for signature at Rio de Janeiro, 4 June
1992, entered into force 21 March 1994.
67 Id. Article 2.
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including growing food and working outdoors (high condence).
In urban areas climate change is projected to increase risks for
people, assets, economies and ecosystems, including risks from
heat stress, storms and extreme precipitation, inland and coastal
ooding, landslides, air pollution, drought, water scarcity, sea
level rise and storm surges (very high condence). These risks are
amplied for those lacking essential infrastructure and services
or living in exposed areas.
Rural areas are expected to experience major impacts on wa-
ter availability and supply, food security, infrastructure and
agricultural incomes, including shifts in the production areas
of food and non-food crops around the world (high condence).
[…] From a poverty perspective, climate change impacts are
projected to slow down economic growth, make poverty reduc-
tion more difcult, further erode food security and prolong
existing and create new poverty traps, the latter particularly in
urban areas and emerging hotspots of hunger (medium condence)
[…] Climate change is projected to increase displacement of
people (medium evidence, high agreement). Populations that lack the
resources for planned migration experience higher exposure to
extreme weather events, particularly in developing countries
with low income. Climate change can indirectly increase risks
of violent conicts by amplifying well-documented drivers of
these conicts such as poverty and economic shocks (medium
condence).68
Apart from that, it’s all going pretty well.
That and the fact that ocean acidication caused by carbon
dioxide being absorbed from the atmosphere by the seas ap-
pears set to wipe out the krill, the basis of many marine food
chains.69
ii. In the United Nations Convention on Combating Desertication and Land
Degradation,70 the Preamble acknowledges that “despite efforts
68 ipcc, “Climate Change 2014, synthesis report, summary for policymakers”, in https://
www.ipcc.ch/pdf/assessment-report/ar5/syr/AR5_syr_final_spm.pdf
69 E. g., Innis, M., “Warming oceans may threaten krill, a cornerstone of the Antarctic
ecosystem”, New York Times, 19 October 2015.
70 un Treaty Series, vol. 1954 (p. 3), adopted Paris, France, 14 October 1994, entered
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in the past, progress in combating desertication and mitigat-
ing the effects of drought has not met expectations and that a
new and more effective approach is needed at all levels within
the framework of sustainable development”. After twenty-six
years to nd that “more effective approach”, where are we?
According to the Intergovernmental Science-Policy Platform
on Biodiversity and Ecosystem Services (ipbes), 75 % of the
Earth’s land area is degraded (on course to be 95 % by 2050),71
undermining the wellbeing of two-fths of humanity and with
24 billion tonnes of soil being lost every year.72 Oh, and “[b]
y 2025, 1.8 billion people will experience absolute water scar-
city, and 2/3 of the world will be living under water-stressed
conditions”.73
iii. In the Preamble to the United Nations Convention on Biological
Diversity,74 we meet an international community that is avowedly
“[c]onscious of the intrinsic value of biological diversity” and
“[d]etermined to conserve and sustainably use biological diversity
for the benet of present and future generations”. Meanwhile,
back in the real world, the sixth great extinction event in the
history of the planet is getting underway.75 Whoops.
into force 26 December 1996.
71 Leahy, S., “75 % of Earth’s land areas are degraded”, National Geographic, 26 March 2018,
in https://news.nationalgeographic.com/2018/03/ipbes-land-degradation-environmental-
damage-report-spd/
72 Watts, J., “Land degradation threatens human wellbeing, major report warns”, The
Guardian, 26 March 2018, in https://www.theguardian.com/environment/2018/mar/26/
land-degradation-is-undermining-human-wellbeing-un-report-warns
73 This is the assessment of the unccd itself: see https://www.unccd.int/issues/land-
and-drought
74 un Treaty Series, vol. 1760 (p. 79), adopted Rio de Janeiro, 5 June 1992, entered into
force 29 December 1993.
75 Carrington, D., “Earth’s sixth mass extinction event under way, scientists warn”, The
Guardian, 10 July 2017, in https://www.theguardian.com/environment/2017/jul/10/
earths-sixth-mass-extinction-event-already-underway-scientists-warn. See also Kolbert,
Elizabeth, The sixth extinction: an unnatural history, 2014 (awarded the Pullitzer Prize); and
Johnston, I., “Global mass extinction set to begin by 2100, study nds”, The Independent,
20 September 2017, in https://www.independent.co.uk/environment/mass-extinction-
global-planet-start-year-2100-a7957886.html (reporting that “Earth appears to be on course
for the start of a sixth mass extinction of life by about 2100 because of the amount of
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These were all binding treaties, not mere ‘soft law’. Yet it would be
hard to argue that the vast gulf between intention and actual performance
results from any actual breach of obligations owed under any of these
treaties by the states parties. The central problem is the absence —not the
breach— of working-level norms capable of translating declarations of
principle into effects which the atmosphere and biosphere can actually feel.
As the destruction continues, each successive global summit con-
ference has had to acknowledge the international community’s failure to
implement the agenda from the previous one. At the Millennium Summit,
the world’s governments wagged their ngers in their own faces, inton-
ing that, “[w]e must spare no effort to free all of humanity, and above
all our children and grandchildren, from the threat of living on a planet
irredeemably spoilt by human activities, and whose resources would no
longer be sufcient for their needs”.76 Two years later, the World Sum-
mit on Sustainable Development in Johannesburg mourned that: “[T]he
global environment continues to suffer. Loss of biodiversity continues,
sh stocks continue to be depleted, desertication claims more and more
fertile land, the adverse effects of climate change are already evident,
natural disasters are more frequent and more devastating, and developing
countries more vulnerable, and air, water and marine pollution continue to
rob millions of a decent life”.77 As ever, the same intentions to improve
environmental protection were announced; the predictable outcome was
another decade spent busily sacricing natural resources to short-term
exploitation. Hence, ten years later, the Rio+20 Declaration had to admit
(with diplomatic obliquity) that “[w]e recognize that the 20 years since the
United Nations Conference on Environment and Development in 1992
have seen uneven progress […] We emphasize the need to make progress
in implementing previous commitments. We also recognize the need to
accelerate progress”.
And so it goes on. A baby born during the 2002 Johannesburg sum-
mit is now a teenager nearing the end of high school: in her brief life so
carbon being pumped into the atmosphere, according to a mathematical study of the ve
previous events in the last 540 million years”).
76 United Nations, Millennium Declaration, A/Res/55/2, para. 21, in https://www.
un.org/millennium/declaration/ares552e.pdf
77 World Summit on Sustainable Development, Political Declaration, para. 13.
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far, she has lived through the burning of about 35 % of the fossil fuels
ever burned on earth.78 The situation is so baleful that some scholars have
proposed that international law is by nature unt for protecting global
public goods and needs to be superseded by a less consensual system, a
development which seems both unlikely and potentially dangerous.79
To be clear: by emphasizing the extent to which international law-
making in the environmental eld has failed to achieve its own stated
objectives we are not intending to dismiss all international environmental
law as useless. Far from it. Indeed, if the existing acquis of multilateral
environmental agreements were done away with, this would likely cause
a further massive deterioration in environmental quality, with the least
developed countries and most vulnerable populations most severely af-
fected because of the important role that multilateral funding plays in
such matters as technology transfer, climate change adaptation, disaster
risk management, and so on.
It is, however, vital to note that elaborating a coherent body of in-
ternational legal principles, plus a large corpus of multilateral agreements
on cooperation in environmental matters, has not so far been remotely
sufcient to put the trajectory of real-world development onto a sustain-
able track. The principles elaborated in treaty preambles, in principle-
setting articles (which in theory are binding as law but which contain no
directly enforceable obligations), and indeed in pronouncements of the
International Court of Justice,80 should be seen as only a beginning. The
danger is that, instead, the preambles —and the principles they set out—
become a ‘hall of mirrors’ in which states and their representatives admire
reections, while outside the unremitting sacrice of public goods for
short-term private prot grinds ever on, pushing the planet further into
78 Any person can calculate the equivalent gure for themselves: see https://www.
theguardian.com/environment/ng-interactive/2015/apr/10/how-much-fossil-fuel-are-
we-using-right-now
79 Krisch, N., “The decay of consent: international law in an age of global public goods”,
Am. J. Int’l L., 2014, 108, pp. 1-40.
80 For example, the statement in the icj’s Nuclear Weapons Advisory Opinion, para. 29,
that “[t]he existence of the general obligation of States to ensure that activities within
their jurisdiction and control respect the environment of other States or of areas beyond
national control is now part of the corpus of international law relating to the environ-
ment”. icj Reports, 1996, p. 242.
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unknown, unprecedented ecological conditions, ever more hostile to life
generally and to ourselves.
In our assessment, the reality of looming planetary boundaries is
slowly gaining recognition among judges (domestic and international),
as well as other key stakeholders in the development of international
environmental law, increasing their receptiveness to more innovative and
radical measures.
(2) The New World of Bottom-Up Initiatives
Faced with the poor record of even negotiating multilateral top-down
legal governance approaches, let alone implementing them in a manner
that actually preserves some ecology, the international community has
increasingly turned to bottom-up approaches. These stand in a differ-
ent relationship to the system of international law from ‘hard law’ treaty
obligations, but they nonetheless involve international law and exert an
inuence on its evolution.
Numerous examples could be given. At the international level, the
2009 Copenhagen Accord81 marked a historic shift away from the long
and unsuccessful attempts at climate governance involving binding tar-
gets and timetables, to the “bottom-up” approach now enshrined in the
2015 Paris Agreement,82 under which States are to a great extent free to
choose their own obligations (e. g., as regards the extent of greenhouse gas
mitigation). At the same time, a “groundswell” of actions by subnational
governments and the private sector, based on voluntary pledges and peer
pressure, is helping both to achieve substantive reductions and encourage
greater ambition on the part of national governments.83
81 “A legally non-binding political agreement”, in https://unfccc.int/resource/docs/2009/
cop15/eng/l07.pdf
82 Annexed to the unfccc, Decision adopting the Paris Agreement, fccc/cp/2015/10/
Add.1, in https://unfccc.int/sites/default/les/resource/docs/2015/cop21/eng/10a01.
pdf
83 See Chan, Sander, Falkner, Robert, Goldberg, Matthew & Van Asselt, Harro, “Ef-
fective and geographically balanced? An output-based assessment of non-state climate
actions”, Climate Policy, 2016, 18, (1), pp. 24-35 (describing these developments as a “true
groundswell” and providing an assessment of the geographical distribution of non-state
and subnational initiatives). Detail on pledges by subnational regions, cities and corpora-
tions can be found in the Non-state Actor Zone for Climate Action (nazca) portal of the
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It is a model which has been imitated outside the climate regime:
numerous countries have made bottom-up pledges to restore degraded
lands under the Bonn Challenge,84 and the unccd has adopted a bottom-up
target-based approach in aiming to achieve net land degradation neutrality
by 2030.85 National governments are increasingly taking unilateral steps to
discourage unsustainable practices, such as banning single use plastics.86
Although this might initially appear paradoxical, the trend towards
bottom-up initiatives is in fact leading to more stringent and enforceable
legal norms being introduced, the aforementioned plastic bans being a
good example.
(3) The Changing View from the Global South
The predicaments facing Southern countries are complex and differ-
entiated. They do not lend themselves to generalizations. To colleagues
working in developing countries who consider that in the below we omit
something important about their (or any) countries’ situations: we are sure
that you are right. Nor is this the place to analyse the important debates
over the concept of “differentiation” in rights and obligations, both be-
tween developed and developing countries and between different groups
of developing countries, such as the special position of least developed
countries and small island developing states.87 What we offer here is only
a rst approximation; nonetheless, our assessment is that an important
change is afoot which merits attention of scholars and policymakers alike.
unfccc’s website, established as part of the 2014 Lima-Paris Action Agenda which helped
to build momentum towards the Paris Agreement: see http://climateaction.unfccc.int/
84 See http://www.bonnchallenge.org/content/challenge
85 See https://www.unccd.int/actions/ldn-target-setting-programme
86 At the time of writing, three African countries (Rwanda, Kenya and Uganda) have
banned the manufacture of plastic bags: “Museveni bans plastic bags in Uganda”, The Star
(Kenya), 6 June 2018, in https://www.the-star.co.ke/news/2018/06/06/museveni-bans-
plastic-bags-in-uganda_c1768869. Taiwan has announced a phased ban on all single use
plastic: “Taiwan announces ban on all plastic bags, straws, and utensils”, Global Citizen, 22
February 2018 (reporting phased restrictions leading to total ban on single use plastic by
2030), in https://www.globalcitizen.org/en/content/taiwan-ban-on-plastic-bags-straws-
utensils-contain/
87 See, e. g., Different perspectives on differentiated responsibilities, Deutsches Institut für Ent-
wicklungspolitik research paper, 2014.
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The relationship between developing countries and the evolution
of international environmental law has never been straightforward.88 In-
ternational environmental law emerged at the very point when developing
countries were engaged in a struggle to alter the international system to
promote their faster economic development and establish a “New Inter-
national Economic Order”. Those struggles left a profound mark on the
Stockholm and Rio Declarations.89 Many developing country governments
felt that the Stockholm conference was an attempt to impose the North’s
concerns over the consequences of the North’s development on them, and
risked impeding their economic development in the name of protecting
values (wildlife, the atmosphere) which the North had the luxury of being
concerned about since it did not have to face immediate daily problems of
starvation, disease and squalor besetting poor countries.90 The very history
of the international environmental law itself can be seen as the story of
how blocs of countries at different stages of development have battled
over the principles of differentiation and nancial aid, of how much ef-
fort at contributing to tackling global problems can be expected from the
poorest, and in return for what degree of assistance from wealthier nations.
Today, international environmental law has certainly not escaped this
dynamic. But other dynamics have also entered the equation. Overall, the
global South is today far from sceptical about the need for international
environmental law. At government level, developing countries have played
a key role in pressing for more effective legal regimes: examples include the
88 For an excellent examination of this multifaceted topic, see Alam, Shawkat, Atapattu,
Sumudu, Gonzalez, Carmen G. & Razzaque, Jona (eds.), International environmental law and
the Global South, Cambridge, 2015.
89 See, for example, Stockholm Declaration, Principle 1 (“Policies promoting or perpetu-
ating apartheid, racial segregation, discrimination, colonial and other forms of oppression
and foreign domination stand condemned and must be eliminated”), Principle 9 (“Environ-
mental deciencies generated by the conditions of under-development and natural disasters
pose grave problems and can best be remedied by accelerated development through the
transfer of substantial quantities of nancial and technological assistance as a supplement
to the domestic effort of the developing countries and such timely assistance as may be
required”) and Principle 21 (“States have, in accordance with the Charter of the United
Nations and the principles of international law, the sovereign right to exploit their own
resources”).
90 Kotzé, Louis, “Human rights, the environment and the Global South”, in Alam, S.
et al. (eds.), n. 89 above, 172.
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trade in toxic chemicals,91 and moves towards regulating the human rights
impact of business.92 Concern at the level of civil society is even greater.
This shift is both real and rational. The Stockholm Declaration was
accurate, in 1972, when it said that most of the environmental problems
then facing poorer countries were caused by under-development and could
be solved by increased wealth.93 A half-century on, much development has
occurred. Southern countries now experience environmental problems
that are side effects of development, not only effects of under-development.
There are question-marks over how viable or benecial some of the de-
velopment has been. Much development in the global South has taken the
form of cash crop agribusiness and mining, as opposed to manufactur-
ing and services. Agricultural products and extracted raw materials (coal,
crude oil, metal ores, etc.) are today produced and exported on a scale
vastly exceeding the South’s economy in 1972. This has resulted in both
high gdp gures and a raft of new problems, from contamination of the
land, deforestation, land degradation and desertication, loss of biodi-
versity, water shortages, and, of course, climate change. Attitudes in the
South towards global environmental problems have changed as Southern
countries began to feel the local impacts of global problems.94
91 Some seventeen African countries are parties to the Bamako Convention on the Ban
of the Import into Africa and the Control of Transboundary Movement and Management
of Hazardous Wastes within Africa, unts, 2102, p. 177, adopted Bamako, Mali, 31 January
1991, entered into force 22 April 1998.
92 Developing country members of the un Human Rights Council overwhelmingly sup-
ported (whereas developed country members generally opposed) hrc Resolution 26/9 (A/
HRC/RES/26/9) which decided “to establish an open-ended intergovernmental working
group on transnational corporations and other business enterprises with respect to human
rights; whose mandate shall be to elaborate an international legally binding instrument
to regulate, in international human rights law, the activities of transnational corporations
and other business enterprises”.
93 “Environmental deciencies generated by the conditions of under-development and
natural disasters pose grave problems and can best be remedied by accelerated development
through the transfer of substantial quantities of nancial and technological assistance as a
supplement to the domestic effort of the developing countries and such timely assistance
as may be required”. Stockholm Declaration, Principle 9.
94 Atapattu, Sumudu, “The signicance of international environmental law principles in
reinforcing or dismantling the North-South Divide”, in Alam, S. et al. (eds.), n. 89, supra,
78 (footnote 29).
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In the 1970s and 1980s, in the immediate aftermath of the struggle
to establish the principle of Permanent Sovereignty over Natural Re-
sources, most of the resources at issue lay still undisturbed beneath the
rainforests and grasslands of the developing world. Postcolonial states
experimenting with socialism, and various forms of corporatism, often
lacked the resources to extract and monetize those resources at any great
speed. Neoliberal scal and economic policies from 1989 onwards changed
this picture. Quite suddenly, local communities and indigenous peoples
across the developing world found themselves on the frontline of a re-
source extraction boom. Enforcement of environmental law could mean
the difference between life and death.
In this context, the pressure for more effective environmental law
and accountability for transnational corporations is only to be expected.
Some of the most paradigmatic environmental disasters of our time have
occurred as a consequence of the non-observance of basic due diligence
standards. The environmental crisis caused by a devastating mercury spill
in a peasant village in Peru’s Andean mountains, by the world’s richest
gold mining corporation, chronicled in the award-winning documentary
Choropampa: The Price of Gold, illustrates this, as does some pioneering case
law in the Inter-American and African systems, such as Community of San
Mateo Huanchor95 (a case concerning severe environmental pollution caused
by toxic mining waste) and Mapuche Paynemil and Kaxipayiñ Communities v.
Argentina96 (a Mapuche community exposed to consumption of water
contaminated with lead and mercury) and Social and Economic Rights Action
Centre and the Center for Economic and Social Rights v. Nigeria97 (concerning
failure of Nigeria to prevent pollution and ecological degradation to the
detriment of the Ogoni people).
Indeed, the situation of indigenous peoples threatened by the pro-
posed canal in Nicaragua is a classic example: the communities seeking to
95 Inter-American Commission on Human Rights, Report 69/04, Petition 504/03, Ad-
missibility, 15 October 2004.
96 Inter-American Commission on Human Rights, Case 12010. Pending before the
Inter-American Commission, in https://www.escr-net.org/es/caselaw/2006/comunidades-
mapuche-paynemil-y-kaxipayin-caso-no-12010
97 African Commission on Human and People’s Rights, Communication 155/96. For a
full review of this case see Feria-Tinta, M., “Litigation in regional human rights systems
on economic, social and cultural rights against poverty”, in Van Bueren, G. (ed.), Freedom
from poverty as a human right, unesco Publishing, 2009.
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bring contentious proceedings before the Inter-American Commission on
Human Rights have claimed that:
The proposed route of the canal will directly affect protected areas
and it would mean the destruction of 193 thousand hectares of diverse
woodland, an irreparable loss of natural assets that provide incalculable
services to the eco-system, which guarantee the water sustainability of
the country and are home to our biological wealth [...] But the greatest
and most dangerous threat of all is the one that hangs over our Great
Lake Cocibolca (Lake Nicaragua), which is established as the most im-
portant fresh water reservoir of Central America, and the richest lake
in the Americas for its ecological, environmental and economic value.
The scientic community has already warned that the canal project
is subjecting it to severe threats of contamination by hydrocarbons,
risks of salinization, sedimentation, water turbidity and invasion from
alien species, the outcomes of which would be truly catastrophic.98
In all, the North-South dynamic has changed noticeably. Much of
the South now nds itself in a state of turbocharged development, but
one where most of the economic value generated accrues to the high-
value-adding economies of the North —in effect, to the West and to in-
dustrialized Northeast Asia (China, Japan, South Korea and Asia’s offshore
nancial hubs)— while the externalities of such growth, in the form of
wastes, contamination, land degradation, water shortages and biodiver-
sity loss, are felt in the places where the raw materials are extracted and
produced, that is, primarily in the Global South.
In this disquieting scenario, it is therefore perhaps of little wonder
that some of the most sophisticated and innovative thinking on interna-
tional environmental law is today emanating from the South.
(4) International Law —in Its Fragmented Condition—
Can Even Be a Threat to Human Rights and the Environment
Another development which is serving as a powerful impetus to rethink
the role of international environmental law is the growth of fragmented
98 See “Concesión del canal interoceánico en Nicaragua: grave impacto en los derechos
humanos - Comunidades campesinas movilizadas resisten”, supra n. 17 at p. 5. (M. Feria-
Tinta’s translation).
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(arguably even de facto “self-contained”) regimes in international law which
have —whatever their original intentions— proved to be obstacles to the
adoption of sound environmental policies.
We do not wish to exaggerate this phenomenon, and certainly we do
not suggest it is a necessary or permanent feature of international law. As
set out below, our view is that international law is a system. There is ample
room in it to allow for the operationalizing of international environmen-
tal law principles, especially when its fabric is properly defragmented.99
Nonetheless, today’s world clearly differs from 1972 in this respect:
in 1972, a developing country that chose to adopt strong measures of
environmental protection, restricting harmful activities and imposing tax
disincentives on unsustainably produced goods would have faced few
obstacles arising from international law to its “people and planet” policies.
Today, most developing countries are members of the wto and many are
party to numerous bilateral (and in some cases multilateral) investment
treaties, whose obligations have proven something of a straitjacket against
environmental measures. Recent examples of such tension between envi-
ronmental law and investment law in investment arbitration cases include
Minera Aratari v. Uruguay,100 and Eco Oro Mining v. Colombia.101 International
law itself, in its fragmented condition, has come to be an ambiguous player
in the sustainable development game —at one level, upholding principles
whereby states should pursue environmental protection, and yet at the
same time furnishing economic actors disadvantaged by environmentally
protective measures with powerful weapons to pressure states for their
reversal—. This phenomenon creates an impetus to reorient international
law so as to reduce conicts of norms.
99 Schill, Stephan W., Tams, Christian J. & Hoffman, Rainier (eds.), International investment
law and development: bridging the gap, 2015.
100 A US$3.5 billion investment treaty claim under uncitral rules, against Uruguay, over
a concession to mine for iron ore. The claim revolves around “right to regulate” issues:
Uruguay’s passing of greater environmental and nancial regulations on large-scale mining
projects. Jones, Tom, “Uruguay will face multibillion-dollar claim”, gar, 8 August 2018.
101 Eco Oro Minerals Corp. v. Republic of Colombia, icsid Case ARB/16/41. For a discus-
sion of the environmental issues concerning the Colombian Paramo and its protection
see ciel, “Protecting the Colombian paramo from eco oro mining”, in https://www.ciel.
org/project-update/eco-oro/
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B. A Period of Change and Reorientation in International
Environmental Law
The abovementioned forces do not preordain any particular outcome,
but in our view (a) these trends are conducive to reorienting international
environmental law in the directions outlined below, and (b) this would be
a positive development. The present conjuncture calls for difcult and
specialist work in taking advantage of these forces in order to make in-
ternational environmental law more effective in achieving the objectives
which states have repeatedly pledged to achieve. The urgently needed
rebalancing of international environmental law will involve
(1) Integration of international environmental law and human
rights with other elds of international law;
(2) Operationalization of principles through working-level binding
norms; and
(3) The fashioning of practical remedies to give force to legal norms.
On each of those aspects, the Advisory Opinion on Environment
and Human Rights has made a meaningful contribution.
(1) Integration and De-Fragmentation
An aspect of international law’s rapid development in response to the in-
creasing complexity of modern economic and social life is the emergence
of new and distinct elds, in which international legal norms have evolved
in relative isolation from others. This “fragmentation” of international law
has generated widespread concern. In some cases, it has even been pro-
posed that some areas constitute “self-contained regimes” to which general
principles of pubic international law do not apply or which need not be
harmonised with other elds of international law. Even where there was
in theory no suggestion of a “self-contained regime”, in practice the reality
often came to resemble just that. The consequence of fragmentation was
that certain areas of law —usually those with the most puissant dispute
resolution provisions— came to exercise a disproportionate sway over the
states’ ability to regulate, and thus over the trajectory of the countries’
development, while the norms from other elds of international law fell
de facto into desuetude.
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International investment law is a conspicuous example of a eld102
that has developed with insufcient connection to the rest of public inter-
national law (not least environmental law and human rights law). To some,
the system appears intrinsically unbalanced and unfavourable to developing
countries, despite valid and understandable motives for concluding bits.103
One detailed study of investor-state awards found evidence of widespread
failure to apply international law’s rules of treaty interpretation reected in
the Vienna Convention on the Law of Treaties when interpreting bits.104
Yet investment arbitration is not escaping the impact of the growing im-
portance of environmental and human rights rules.105 An example of a
case in which a state successfully defended an investor-state arbitration
on environmental law grounds is Oceana Gold v. El Salvador.106
Overall, the current trend is very much against endorsing any pro-
liferation of self-contained regimes. As the International Law Commission
held in its authoritative study on “Fragmentation of International Law”,
“[i]n International Law, there is a strong presumption against normative
conict”.107 There is only one international community, and its members
—primarily the States— need to know what their obligations are in or-
102 We use this term because international investment law is perhaps too decentralized
and bilateral to be described as a ‘regime’.
103 E. g., Guzman, Andrew T., “Why ldcs sign treaties that hurt them: explaining the
popularity of bilateral investment treaties”, Va. J. Int’l L., 1997, 38, p. 639; Van Harten,
Gus, Investment treaty arbitration and public law, oup, 2007.
104 Hai Yen, Trinh, The interpretation of investment treaties, Brill, 2014, passim.
105 See for example, Feria-Tinta, M., “Like oil and water? Human rights in investment
arbitration in the wake of Philip Morris v. Uruguay”, The Journal of International Arbitration,
34, (4), pp. 601-630.
106 Oceana Gold v. El Salvador (Pac Rim Cayman llc v. Republic of El Salvador), icsid Case
ARB/09/12. The investor sought a green light for its “El Dorado” mine, or approximately
US$300 million in compensation. El Salvador prevailed, showing that the investor had failed
to meet key regulatory requirements such as (i) environmental impact study, (ii) feasibility
study, and (iii) land title and mining permit.
107 ilc, “Fragmentation of international law: difculties arising from the diversication
expansion of international law”, report on the Study Group of the International Law
Commission (prepared by Martti Koskenniemi) un doc A/CN.4/L.682 (13 Apr. 2006) at
para. 37. For an in-depth analysis of the key issues concerning a non-fragmented vision
of international law see Feria-Tinta, M., “Like oil and water? Human rights in investment
arbitration”, n. 106, supra, in particular pp. 606-609.
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der for anything resembling a stable, peaceful order to exist. Purposeful
integration is the route to achieving this.108
(2) Operationalization of Principles through Working-
Level Norms
The work of elaborating principles is done. Whilst (as noted above) the
achievements of international environmental law’s rst four decades are
painfully inadequate in terms of impact, the years between Stockholm and
Rio+20 have at least produced a body of serviceable principles backed by
solid opinio juris. The task ahead is to mediate between the Heaviside Layer
of multilaterally agreed principles and the branches of law that actually
exert a direct inuence over human activities. This means ensuring that
working-level norms reect and serve those principles. In our view, re-
gional human rights treaties such as the American Convention will prove
an essential roadmap in guiding this process. Human rights law has grown,
slowly but steadily, into a signicant source of legal obligations on states.
As the Advisory Opinion makes clear, the environment and human rights
are indivisibly interrelated.
Moreover, the Advisory Opinion shows how existing norms can be
made more effective by proper judicial explication. Difcult as it may be
for the international community to negotiate new multilateral rules to avert
environmental harms, the rights and obligations that exist already cannot
simply be ignored. An understanding of the ways in which environmental
harm can violate existing rights (such as the rights to life and personal
integrity in articles 4 and 5 of the American Convention) means that cer-
tain conduct by states causing environmental destruction is already illegal
and triggers State responsibility, even without any further law-making at
the international level.109 The Inter-American Court’s Advisory Opinion
has achieved something remarkable in that sense. It has constitutionalized
the right to a healthy environment as a basic right, and has given it teeth
throughout the “Convention space” which the Pact of San José creates.
108 E. g., M. Feria-Tinta, n. 106, supra.
109 Bodansky, D., Brunnée, J. & Rajamani, L., International climate change law, Oxford, 2017,
p. 299.
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(3) A Focus on Practical Remedies
The third necessary feature of a reinvigorated international environmental
law must be a focus on practical remedies for victims of environmental
harms. The rst and second features are necessary supports to this effort:
effective remedies can hardly exist without integration and operationaliza-
tion of working-level legal norms. By the same token, fashioning principles
into working-level law means fashioning remedies. The Advisory Opinion
is a step forward in that direction, particularly in conrming that cross-
border jurisdiction may exist for serious transboundary harms originating
under the “effective control” of a state that fails to comply with the exist-
ing norms of international environmental law, including environmental
impact assessment and good faith consultation with other affected states.
These three characteristics of the emerging phase which we iden-
tify are closely interrelated: defragmentation will permit and promote the
operationalization of environmental norms in other, previously more
separate, elds of legal regulation, such as the law governing treatment of
foreign investment. Both defragmentation and operationalization will be
necessary to implement meaningful remedies that redress harm in specic
cases and encourage states and other actors to respect human rights and
environmental norms in the wider interest. In a sense, all three could be
seen as aspects of one single objective, the rebalancing of international law
—away from trends which have anomalously privileged a select few types
of economic interests and towards a more holistic approach to sustainable
human development—.
Conclusion
It was a quirk of history that human rights and international environmental
law were born at different times. The main universal human rights instru-
ments (the Universal Declaration of Human Rights —udhr— of 1948,
the iccpr and icescr of 1966) were drawn up before environmental issues
featured on the international agenda in any signicant way. The same can
be said of some of the leading regional instruments such as the American
Declaration (1948 —preceding even the udhr—), the American Conven-
tion on Human Rights (1969) and the European Convention on Human
Rights (1950). Had human rights been “discovered” a generation later, their
founding texts would have been informed by the diverse environmental
concerns that both Northern and Southern countries respectively aired
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at Stockholm in 1972 and which are reected in the Rio Declaration. In-
stead, their separation at birth (so to speak) has posed serious challenges
for both human rights law and international environmental law, which are
still in the process of being overcome.
There remain real doubts about the ability of international law itself,
a system based essentially on the consent of nearly two hundred sovereign
states, to adopt measures sufciently strong and coherent to be capable
of protecting the Earth’s highly (if eetingly) monetizable resources
from the grasp of their own most powerful citizens, for the benet of
unborn generations and the weak. But international law is, in reality, not
the work of a single creator. Tensions abound. The enduring strength of
public international law has proved to be its indivisibility, its openness
to integration. Many predictions of the emergence of self-contained re-
gimes here or there (e. g., the wto) have disintegrated upon colliding with
the surprisingly heavy submerged object —the pull towards the highest
animating values behind international law—. In the present conjuncture,
survival —of modern civilisation, our species, and even Earth’s multifari-
ous but fragile living systems— is the most urgent of these values, truly a
“universal interest, which is owed both to present and future generations”
and “a fundamental right for the existence of humanity”.110
References
Books and Articles
“Corte asegura que el río Atrato tiene derechos y ordena recuperarlo”, El
Tiempo, 2 May 2017.
“How much fossil fuel has been used in your lifetime”, The Guardian, in
https://www.theguardian.com/environment/ng-interactive/2015/
apr/10/how-much-fossil-fuel-are-we-using-right-now
“Museveni bans plastic bags in Uganda”, The Star, 6 June 2018, in https://
www.the-star.co.ke/news/2018/06/06/museveni-bans-plastic-bags-
in-uganda_c1768869
“Taiwan announces ban on all plastic bags, straws, and utensils”, Global
Citizen, 22 February 2018, in https://www.globalcitizen.org/en/
content/taiwan-ban-on-plastic-bags-straws-utensils-contain/
110 Advisory Opinion, §59.
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Monica Feria-Tinta, Simon C. Milnes
79
Ahmed, N., “Nasa-funded study: industrial civilisation headed for ‘irre-
versible collapse’?”, The Guardian, 14 March 2014.
Alam, S., Atapattu, S., Gonzalez, C. G. & Razzaque, J. (eds.), International
environmental law and the Global South, Cambridge University Press,
Cambridge, 2015.
Atapattu, S., “The signicance of international environmental law principles
in reinforcing or dismantling the North-South Divide”, in Alam, S.
et al., International environmental law and the Global South, Cambridge
University Press, Cambridge, 2015.
Barnosky, A. D. et al., “Approaching a State shift in Earth’s biosphere”,
Nature, January 2012.
Bodansky, D., Brunnée, J. & Rajamani, L., International climate change law,
oup, Oxford, 2017.
Brown Weiss, E., “The evolution of international environmental law”,
Japanese Y. B. Intl. L., 2011, 54, pp. 1-27.
Carrington, D., “Earth’s sixth mass extinction event under way, scientists
warn”, The Guardian, 10 July 2017, in https://www.theguardian.
com/environment/2017/jul/10/earths-sixth-mass-extinction-event-
already-underway-scientists-warn
Centre for International Environmental Law, “Protecting the Colombian
paramo from eco oro mining”, in https://www.ciel.org/project-
update/eco-oro/
Chan, S., Falkner, R., Goldberg, M. & Van Asselt, H., “Effective and geo-
graphically balanced? An output-based assessment of non-state
climate actions”, Climate Policy, 2016, 18, (1), pp. 24-35.
Dejusticia, “Sentencia T-622 de 2016 que reconoce al río Atrato co-
mo sujeto de derechos”, in https://justiciaambientalcolombia.
org/2017/05/07/sentencia-rio-atrato/
Deutsches Institut für Entwicklungspolitik, Different perspectives on differenti-
ated responsibilities, research paper, 2014.
Feria-Tinta, M. & Milnes, S. C., “How international law could help victims
of environmental degradation”, The Guardian, 21 February 2018.
Feria-Tinta, M. & Milnes, S. C., “The rise of environmental law in inter-
national dispute resolution: the Inter-American Court of Human
Rights issues a landmark advisory opinion on environment and
human rights”, Yearbook of International Environmental Law, 27, pp.
1-18 (forthcoming).
Feria-Tinta, M. & Milnes, S. C., “The rise of environmental law in interna-
tional dispute resolution: Inter-American Court of Human Rights
ACDI, Bogotá, ISSN: 2027-1131/ISSNe: 2145-4493, Vol. 12, pp. 7-330, 2019
International Environmental Law for the 21st Century: The
Constitutionalization of the Right to a Healthy Environment in the
Inter-American Court of Human Rights Advisory Opinion 23
80
issues a landmark advisory opinion on environment and human
rights”, ejil Talk!, Blog, 26 February 2018.
Feria-Tinta, M., “Like oil and water? Human rights in investment arbitration
in the wake of Philip Morris v. Uruguay”, The Journal of International
Arbitration, 34, (4), pp. 601-630.
Feria-Tinta, M., “Litigation in regional human rights systems on economic,
social and cultural rights against poverty”, in Van Bueren, G. (ed.),
Freedom from poverty as a human rights, unesco Publishing, 2009.
fidh, “Concesión del canal interoceánico en Nicaragua: grave impacto
en los derechos humanos - Comunidades campesinas movilizadas
resisten”, September 2016 Nº 680, in https://www.dh.org/IMG/
pdf/nicaragua680esp2016web-1gg.pdf
Fitzmaurice, M., Ong, D. M. & Merkouris, P. (eds.), Research handbook on
international environmental law, Edward Elgar Publishing Ltd, Chel-
tenham, 2010.
Gibbs, S. & Elliott, L., “China puts Nicaraguan canal plan on hold”, The
Times, 19 June 2017.
Greenwood, C., “Is international law falling apart?”, Public Lecture, Inner
Temple, 15 March 2018.
Guzman, A. T., “Why ldcs sign treaties that hurt them: explaining the
popularity of bilateral investment treaties”, Va. J. Int’l L., 1997, 38,
p. 639.
Hai Yen, Trinh, The interpretation of investment treaties, Brill-Nijhoff, Leiden,
2014.
Idechong, N., House of Delegates of Palau, Submission to the United
Nations on “Micronesian Sea Traditions - Palau’s Marine Protected
Areas”, in http://www.un.org/depts/los/consultative_process/
documents/7abstract_idechong.pdf
Innis, M., “Warming oceans may threaten krill, a cornerstone of the Ant-
arctic ecosystem”, New York Times, 19 October 2015.
Johnston, I., “Global mass extinction set to begin by 2100, study nds”,
The Independent, 20 September 2017, in https://www.independent.
co.uk/environment/mass-extinction-global-planet-start-year-
2100-a7957886.html
Jones, T., “Uruguay will face multibillion-dollar claim”, Global Arbitration
Review, 8 August 2018.
Klabbers, J., “The life and times of the law of international organizations”,
Nordic J. Int’l L., 2001, 70, pp. 287, 288.
ACDI, Bogotá, ISSN: 2027-1131/ISSNe: 2145-4493, Vol. 12, pp. 43-84, 2019
Monica Feria-Tinta, Simon C. Milnes
81
Kolbert, E., The sixth extinction: an unnatural history, Bloomsbury, London,
2014.
Kotzé, L. “Human rights, the environment and the Global South”, in Alam,
S. et al., International environmental law and the Global South, Cambridge
University Press, Cambridge, 2015.
Krisch, N., “The decay of consent: international law in an age of global
public goods”, Am. J. Int’l L., 2014, 108, pp. 1-40.
Leahy, S., “75 % of Earth’s land areas are degraded”, National Geographic,
26 March 2018, in https://news.nationalgeographic.com/2018/03/
ipbes-land-degradation-environmental-damage-report-spd/
Schill, S. W., Tams, C. J. & Hoffman, R. (eds.), International investment law
and development: bridging the gap, Edward Elgar Publishing Ltd, Chel-
tenham, 2015.
Van Harten, G., Investment treaty arbitration and public law, oup, Oxford, 2007.
Villa, L., “The importance of the Atrato river in Colombia”, 17 May
2017, in https://www.earthlawcenter.org/blog-entries/2017/5/
the-importance-of-the-atrato-river-in-colombia-gaining-legal-rights
Watts, J., “Land degradation threatens human wellbeing, major report
warns”, The Guardian, 26 March 2018, in https://www.theguardian.
com/environment/2018/mar/26/land-degradation-is-undermining-
human-wellbeing-un-report-warns
Ofcial documents
Additional Protocol to the American Convention on Human Rights in
the Area of Economic, Social and Cultural Rights El Salvador, San
Salvador, November 17, 1988. oas Treaty Series, Nº 69.
African Commission on Human and People’s Rights, Social and economic
rights action centre and the Center for Economic and Social Rights v. Nigeria,
Communication 155/96.
American Convention on Human Rights (Pact of San José), San José,
Costa Rica, 1969, oas Treaty Series, Nº 36.
Bamako Convention on the Ban of the Import into Africa and the Con-
trol of Transboundary Movement and Management of Hazardous
Wastes within Africa, unts Vol. 2102.
Bonn Challenge, website, in http://www.bonnchallenge.org/content/
challenge
Convention for the Protection and Development of the Marine Environ-
ment of the Wider Caribbean Region, Cartagena, Colombia, 1986.
ACDI, Bogotá, ISSN: 2027-1131/ISSNe: 2145-4493, Vol. 12, pp. 7-330, 2019
International Environmental Law for the 21st Century: The
Constitutionalization of the Right to a Healthy Environment in the
Inter-American Court of Human Rights Advisory Opinion 23
82
Copenhagen Accord, in https://unfccc.int/resource/docs/2009/cop15/
eng/l07.pdf
Declaration of the United Nations Conference on the Human Environ-
ment, Stockholm, June 5-16, 1972, un Doc. A/Conf.48/14/Rev.
1(1973); 11 ilm 1416 (1972).
Inter-American Commission on Human Rights, Community of San Mateo
Huanchor, Report 69/04, Petition 504/03, Admissibility, 15 Octo-
ber 2004.
Inter-American Commission on Human Rights, “Indigenous and tribal
people’s rights over their ancestral lands and natural resources, norms
and jurisprudence of the Inter-American Human Rights System”,
30 December 2009. oea/Ser.I/L/V/II. Doc. 56/09.
Inter-American Commission on Human Rights, Report on the situation of
human rights in Ecuador. Doc OE/Ser.L/V/II.96, Doc. 10 rev.1,
April 24, 1997.
Intergovernmental Panel on Climate Change, “Climate Change 2014, syn-
thesis report, summary for policymakers”, in https://www.ipcc.ch/
pdf/assessment-report/ar5/syr/AR5_syr_final_spm.pdf
International Law Commission, “Fragmentation of international law: dif-
culties arising from the diversication expansion of international
law: report on the study Group of the International Law Commis-
sion” (prepared by Martti Koskenniemi), un Doc A/CN.4/L.682
(13 Apr. 2006).
New Zealand Parliament, “Innovative bill protects Whanganui river
with legal personhood”, in https://www.parliament.nz/en/get-
involved/features/innovative-bill-protects-whanganui-river-with-
legal-personhood/
Paris Agreement on Climate Change, FCCC/CP/2015/10/Add.1, in
https://unfccc.int/sites/default/les/resource/docs/2015/cop21/
eng/10a01.pdf
Rio Declaration on Environment and Development, Rio de Janeiro, 13
June 1992, un Doc. A/CONF.151/26 (vol. I); 31 ilm 874 (1992).
unccd, “Land and drought”, in https://www.unccd.int/issues/land-and-
drought
unccd, “Land degradation neutrality targets”, in https://www.unccd.int/
actions/ldn-target-setting-programme
unfccc & nazca, “Non-state and subnational climate actions”, in http://
climateaction.unfccc.int/
ACDI, Bogotá, ISSN: 2027-1131/ISSNe: 2145-4493, Vol. 12, pp. 43-84, 2019
Monica Feria-Tinta, Simon C. Milnes
83
United Nations Convention on Biological Diversity, un Treaty Series, Vol.
1760 (p. 79), adopted Rio de Janeiro, 5 June 1992.
United Nations Convention on Combating Desertication and Land
Degradation, un Treaty Series, Vol. 1954 (p. 3).
United Nations Framework Convention on Climate Change, 1992, un
Treaty Series, Vol. 1771 (p. 107).
United Nations Human Rights Council Resolution 26/9, un Doc. A/
HRC/RES/26/9.
United Nations Human Rights Council, Preliminary report of the independent
expert on the issue of human rights obligations relating to the enjoyment of a
safe, clean, healthy and sustainable environment, John H. Knox, 24 De-
cember 2012, un Doc. A/HRC/22/43.
United Nations, Millennium Declaration, A/Res/55/2.
World Summit on Sustainable Development, Political Declaration.
Court Judgements, Laws
Colombian Supreme Court Judgment STC4360-2018, 5 April 2018, in
http://legal.legis.com.co/document?obra=jurcol&document=jur
col_c947ae53aeb447bd91e8e9a315311ac5 (Unofcial translation
by Dejusticia, in http://blogs2.law.columbia.edu/climate-change-
litigation/wp-content/uploads/sites/16/non-us-case-documen
ts/2018/20180405_11001-22-03-000-2018-00319-00_decision-1.
pdf)
Constitutional Court of Colombia, Judgment T-622-16, 10 November 2016.
Constitutional Court of Ecuador, Judgment 218-15EP-CC, 9 July 2015.
High Court of Uttarakhand at Naintal, India, Lalit Miglani v. State of Ut-
taarakhand and others, Judgment of 30 March 2017.
Inter-American Commission on Human Rights, Mapuche Paynemil and
Kaxipayiñ Communities v. Argentina, Case 12.010.
Inter-American Court of Human Rights, The environment and human rights
—State obligations in relation to the environment in the context of the pro-
tection and guarantee of the rights to life and to personal integrity - Interpre-
tation and scope of articles 4(1) and 5(1) of the American Convention on
Human Rights—, Advisory Opinion OC-23/18, (ser. A), Nº 23, 15
November 2017.
International Centre for the Settlement of Investment Disputes, Eco Oro
Minerals Corp. v. Republic of Colombia, icsid Case ARB/16/41.
ACDI, Bogotá, ISSN: 2027-1131/ISSNe: 2145-4493, Vol. 12, pp. 7-330, 2019
International Environmental Law for the 21st Century: The
Constitutionalization of the Right to a Healthy Environment in the
Inter-American Court of Human Rights Advisory Opinion 23
84
International Centre for the Settlement of Investment Disputes, Oceana
Gold v. El Salvador (Pac Rim Cayman llc v. Republic of El Salvador),
icsid Case ARB/09/12.
International Court of Justice, Gabčíkovo-Nagymoros Case, separate opinion
of Justice Weeramantry, icj Reports, 1997.
International Court of Justice, Legality of the threat or use of nuclear weapons,
Advisory Opinion, icj Reports, 1996.
International Court of Justice, Territorial and maritime dispute (Nicaragua v
Colombia), Judgment, icj Reports, 2012.
Petition 912/14 led before the Inter-American Commission on Human
Rights on 17 June 2014.
Republic of Colombia, “Request for an advisory opinion, presented by
the Republic of Colombia, concerning the interpretation of article
1(1), 4(1) and 5(1) of the American Convention on Human Rights”,
14 March 2016, in http://www.corteidh.or.cr/solicitudoc/solici-
tud_14_03_16_ing.pdf
