November 15, 2017, the Inter-American Court of Human Rights (‘Inter-American Court’) issued an advisory opinion in which it held that the American Convention on Human Rights (‘ACHR’) recognizes the right to a healthy environment. The Inter-American Court was established under the ACHR in 1979. It has two main functions. Firstly, it can give binding judgments on alleged violations of the ACHR. Secondly, it can give advisory opinions on the interpretation of the rights of the ACHR. Advisory opinions are binding to all Member States of the ACHR.

States Have an Obligation to Prevent Environmental Damage

The Inter-American Court issued the advisory opinion in response to questions of Colombia regarding obligations on the environment under the ACHR. The Inter-American Court found that States that are a party to the ACHR have to protect the right to a healthy environment. The ACHR does not expressly contain such right. However, the Inter-American Court interpreted the general obligation to protect the rights included in the ACHR and the right to life in the light of national and international law on human rights and the environment. Under the ACHR’s right to a healthy environment, States can be held responsible if they do not prevent causing environmental damage, both within and outside their territory. Whenever States plan projects that possibly cause environmental damage, they need to carry out environmental impact assessments, cooperate with States that are possibly affected, and guarantee that citizens have access to environmental information.

Opening the Possibility to Complain about Environmental Damage

The advisory opinion has great significance because it gives individuals and groups of individuals the opportunity to complain before the courts of Member States and the Inter-American Court about violations of the right to a healthy environment in the ACHR. Important is that the advisory opinion stresses that ACHR Member States can also be held responsible if they cause transboundary environmental damage. Consequently, a polluting Member State can be sued if it violates the right to a healthy environment of citizens of a foreign State, irrespective of if this State is an ACHR Member State.

Potential Significance for The Development of Taiwan’s Law

This interpretation of the Inter-American Court of the general obligation to protect the rights included in the ACHR and the right to life can impact the interpretation of these rights included in other international human rights treaties. Treaties such as the European Convention on Human Rights and the International Covenant on Civil and Political Rights contain similar provisions. The monitoring bodies of these treaties may interpret these provisions as containing the right to an environment. This is also important for Taiwan, which has included the articles of various international treaties in its national law. Taiwan therefore would be bound to guarantee the right to an environment if a monitoring body finds such right in the treaty it supervises.

The full advisory opinion can be found at: http://www.corteidh.or.cr/docs/opiniones/seriea_23_esp.pdf (Spanish only)

The official summary of the advisory opinion can be found at: http://www.corteidh.or.cr/…/opini…/resumen_seriea_23_eng.pdf (English)

Responsible Editor: 
Jeroen van Bekhoven
Post-Doctoral Fellow, National Taiwan University, College of Law

Proofreader: 
Yu-hsiu Joe Hsieh
Graduate Student, National Taiwan University, College of Law