How Effective is International Law to Protect the Environment in Extractive Contexts?
Posted: Tue Feb 18, 2025 4:57 am
On March 22nd, the Inter-American Court of Human Rights ruled a landmark decision on the protection of the right to a healthy environment in the context of mining activities. The Court declared the international responsibility of the Peruvian State for breaching the Inter-American Convention on Human Rights, specifically for violations of the right to a healthy environment (Article 26), the right to life (Article 4.1.), the right to personal integrity (Article 5), the rights of children (Article 19), and others.
By evaluating environmental and medical evidence from decades ago to the present, the Court found that there is no doubt about the presence of high levels of environmental contamination in La Oroya, including lead, cadmium, arsenic, sulphur dioxide and other metals in air, soil and water. Importantly, it indicated that the principal cause was the activity of the La Oroya Metallurgical Center operating from 1922 (par. 263). Given the difficulty of establishing scientific causality, the Court also noted that it is not necessary to demonstrate that health diseases are directly caused by exposition to metals, but it is sufficient to determine that environmental contamination poses a significant health risk, that people have been exposed to contamination, and the State knew and allowed this situation to persist (par. 204).
The UN Special Rapporteur on Human Rights and the Environment indicated that it “is the strongest decision and most comprehensive judgment of any regional human rights court to date” and highlighted some positive aspects of the Court’s arguments:
a) Building upon its amply cited Advisory Opinion, it clarified that the right to a healthy environment is comprised of a bundle of procedural and substantive elements.
b) It recognized the collective nature of the right to a healthy environment in reaching the decision and providing extensive reparations.
c) It crafted the decision in dialogue with the work of the Special Rapporteur by classifying La Oroya as a “sacrifice zone” and accepting that the effects of environmental pollution fall disproportionally on poor people and communities.
d) In cases where the high toxicity of substances is well established, it determined that the State must develop and implement laws and policies with a higher standard of due diligence.
Beyond individual reparations, the Court ordered the Peruvian State to zalo database elaborate a baseline diagnosis that establishes the level of contamination in La Oroya, which must include a plan of action to be implemented in no more than 18 months aiming to remediate the environmental damages. This plan should prioritize the areas that represent a higher risk for the environment and health and should be conducted with the active participation of the victims (pars. 333 – 334). Secondly, it ordered specialized medical attention for all people with symptoms and diseases related to the exposition to contamination in La Oroya through public medical institutions, with a special focus on children, pregnant mothers and the elderly (pars. 348 – 349). Thirdly, the Peruvian State must implement an environmental compensation plan applicable to La Oroya Metallurgical Center that guarantees a zero net loss of biodiversity, an identification of ecological equivalence from an analysis of ecosystem services, and the search for an “additionality” in environmental compensation (par. 351). Finally, the State must require all mining companies to face the consequences and compensation for environmental damages caused by their operations in compliance with the “polluter pays” principle (par. 352).
By evaluating environmental and medical evidence from decades ago to the present, the Court found that there is no doubt about the presence of high levels of environmental contamination in La Oroya, including lead, cadmium, arsenic, sulphur dioxide and other metals in air, soil and water. Importantly, it indicated that the principal cause was the activity of the La Oroya Metallurgical Center operating from 1922 (par. 263). Given the difficulty of establishing scientific causality, the Court also noted that it is not necessary to demonstrate that health diseases are directly caused by exposition to metals, but it is sufficient to determine that environmental contamination poses a significant health risk, that people have been exposed to contamination, and the State knew and allowed this situation to persist (par. 204).
The UN Special Rapporteur on Human Rights and the Environment indicated that it “is the strongest decision and most comprehensive judgment of any regional human rights court to date” and highlighted some positive aspects of the Court’s arguments:
a) Building upon its amply cited Advisory Opinion, it clarified that the right to a healthy environment is comprised of a bundle of procedural and substantive elements.
b) It recognized the collective nature of the right to a healthy environment in reaching the decision and providing extensive reparations.
c) It crafted the decision in dialogue with the work of the Special Rapporteur by classifying La Oroya as a “sacrifice zone” and accepting that the effects of environmental pollution fall disproportionally on poor people and communities.
d) In cases where the high toxicity of substances is well established, it determined that the State must develop and implement laws and policies with a higher standard of due diligence.
Beyond individual reparations, the Court ordered the Peruvian State to zalo database elaborate a baseline diagnosis that establishes the level of contamination in La Oroya, which must include a plan of action to be implemented in no more than 18 months aiming to remediate the environmental damages. This plan should prioritize the areas that represent a higher risk for the environment and health and should be conducted with the active participation of the victims (pars. 333 – 334). Secondly, it ordered specialized medical attention for all people with symptoms and diseases related to the exposition to contamination in La Oroya through public medical institutions, with a special focus on children, pregnant mothers and the elderly (pars. 348 – 349). Thirdly, the Peruvian State must implement an environmental compensation plan applicable to La Oroya Metallurgical Center that guarantees a zero net loss of biodiversity, an identification of ecological equivalence from an analysis of ecosystem services, and the search for an “additionality” in environmental compensation (par. 351). Finally, the State must require all mining companies to face the consequences and compensation for environmental damages caused by their operations in compliance with the “polluter pays” principle (par. 352).