{"id":10827,"date":"2020-04-10T14:22:15","date_gmt":"2020-04-10T14:22:15","guid":{"rendered":"https:\/\/gnhre.org\/?p=10827"},"modified":"2023-08-15T19:47:51","modified_gmt":"2023-08-15T18:47:51","slug":"lhaka-honhat-association-vs-argentina-the-human-right-to-environment-in-the-inter-american-court","status":"publish","type":"post","link":"https:\/\/gnhre.org\/?p=10827","title":{"rendered":"Lhaka Honhat Association vs. Argentina: the human right to environment in the Inter-American Court"},"content":{"rendered":"\n

Contributed by Maria Antonia Tigre<\/a><\/strong><\/p>\n\n\n\n

In its 2020 decision in Indigenous Communities Members of the Lhaka Honhat Association vs. Argentina, <\/em>the Inter-American Court of Human Rights held that Argentina violated an autonomous right to a healthy environment, to indigenous community property, cultural identity, food, and water.[1]<\/sup><\/a>For the first time in a contentious case, the Court analyzed the rights above autonomously based on Article 26 of the American Convention, and ordered specific measures of reparation to their restitution; including actions for access to adequate food and water, for the recovery of forest resources and indigenous culture.[2]<\/a> The ruling marks a significant milestone for the protection of indigenous peoples\u2019 rights.<\/p>\n\n\n\n

Background<\/strong><\/p>\n\n\n\n

The case relates to the claim for recognition of land ownership by Indigenous Communities belonging to the Wich\u00ed (Mataco), Iyjwaja (Chorote), Komlek (Toba), Niwackle (Chulup\u00ed) and Tapy’y (Tapiete) peoples within the Argentinian province of Salta, on the border with Paraguay and Bolivia. The presence of these communities, which number more than ten thousand people, has been verified continuously in the area since at least 1629. Nonetheless, the lands have also been occupied by other residents, including Creole communities. These communities have promoted illegal logging activities, developed livestock, and installed fencing. Additionally, an international bridge was built by the State without prior consultation to the indigenous groups. These activities have decreased forest resources and biodiversity and have affected how indigenous communities traditionally sought access to food and water.<\/p>\n\n\n\n

At the core of the case is the lack of delimitation, demarcation, and title of the ancestral lands of more than 90 indigenous communities comprising the Association of Aboriginal Communities Lhaka Honhat in Argentina<\/a>. Over ten thousand people belong to these communities, whose traditional way of life is based on hunting, gathering, agriculture, and fishing. Since 1984, the indigenous communities have claimed recognition and a unique property title of their ancestral lands in the province of Salta. The communities were forced to modify their uses and customs because of the illegal activities managed by the Creole families, which severely affected their traditional way of life.<\/p>\n\n\n\n

On August 4, 1998, the Llaka Honhat Association, represented by the Center for Legal and Social Studies (CELS) and the Center for Justice and International Law (CEJIL), presented a petition before the Inter-American Commission on Human Rights (IACHR) regarding the violation of the obligations to respect, protect and adopt necessary measures to ensure the effective enjoyment of the right to communal property, based on the construction of several public works and the exploration of hydrocarbons in the traditional indigenous territory without respecting inter-American standards on free, prior and informed consultation, and for having consented to and tolerated illegitimate actions by private individuals such as the installation of fences, logging and cattle farming in traditional indigenous territory.[3]<\/a><\/p>\n\n\n\n

In its Admissibility Report N\u00ba 78\/06, the IACHR observed that the State has had multiple opportunities to promote the adequate protection of the property rights of the members of Lhaka Honhat and that there has been an undue delay in the pronouncement of a final sentence on an appeal for amparo filed by Lhaka Honhat in 2000.[4]<\/a> The facts denounced by the petitioners regarding the lack of implementation of demarcation and land titling policy could characterize violations of the rights to judicial guarantees and freedom of thought and expression, in connection with political rights.<\/p>\n\n\n\n

In 2012, the IACHR issued its Merits Report on the case in which it determined that various rights enshrined in the American Convention on Human Rights had been violated to the detriment of the communities grouped in the Llaka Honhat Association, and made recommendations to the Argentine state to guarantee the ancestral lands in question.[5]<\/a><\/p>\n\n\n\n

Despite intense work from the communities and the IACHR to get Argentina to enforce the rights at stake, and even though the State committed itself on several occasions (including by issuing specific regulations) to granting a land deed that respects the traditional customs of the communities, six years after the IACHR\u2019s merits report, the demarcation and delimitation of the indigenous land were not completed. Also, less than 5 percent of the infrastructure works necessary for the European-descended families to relocate were carried out, no effective measure to combat illegal logging was taken, nor was any progress been made to remove fences in the indigenous territory; among other actions that are still pending.<\/p>\n\n\n\n

This situation exposes the vulnerability of indigenous peoples\u2019 land rights and the danger that failing to achieve a timely resolution poses to their traditional ways of life. For that reason, the Inter-American Commission ultimately decided to send the case to the Inter-American Court in 2019.[6]<\/a> The ESCR-Net, a network of eight NGOs, presented an amici curiae.[7]<\/a><\/p>\n\n\n\n

Decision<\/strong>[8]<\/u><\/a><\/p>\n\n\n\n

The Court understood that the activities carried out in the territory by the Creole population affected the environment, the traditional way of feeding indigenous communities, and access to water. Additionally, the Court found that the State violated the rights to cultural identity, a <\/strong>healthy environment, and adequate food and water, due to the lack of effective measures to stop activities harmful to them.[9]<\/a> The Argentine State did not generate mechanisms to guarantee the community property right or give them a real and effective title without internal subdivisions. Neither did it consult the communities when it made modifications to their territories. The lack of proper regulation altered the indigenous way of life and damaged their cultural identity. Additionally, the communities had not consented to the interferences in their territory.<\/p>\n\n\n\n

The Inter-American Court of Human Rights determined that the State violated the right to community property, by not providing legal certainty and allowing the presence of Creole settlers as residents in the territory despite the 28 years old claim of indigenous property. It also concluded that the country does not have adequate regulations to sufficiently guarantee the community\u2019s property right. Furthermore, the Court noted that adequate mechanisms for consulting indigenous communities on an international bridge built on their territory were not followed. It also resolved that judicial authorities did not follow a reasonable time in the processing of a judicial case in which it was decided to nullify rules regarding fractional land awards.[10]<\/a><\/p>\n\n\n\n

The decision that the Argentine State was responsible for violating the rights to participate in cultural life, cultural identity, a healthy environment, food and water received 3 votes in favor (including the President\u2019s, which unties the decision) and 3 against. Judges Vio Grossi, Sierra Port and P\u00e9rez Manrique presented dissenting opinions.[11]<\/a><\/p>\n\n\n\n

The Rationale of Right to a Healthy Environment<\/strong><\/p>\n\n\n\n

The Court interpreted human rights instruments as living instruments that follow the evolution of current times and living conditions. Based on this rationale, it updated the meaning of the rights derived from Art. 26 of the American Convention, which requires States to adopt measures to achieve the full realization of the rights set forth by the Convention.[12]<\/a> This was the first contentious case on the rights to a healthy environment, adequate food, water, and to participate in cultural life, and their implications and particularities regarding indigenous peoples.[13]<\/a> The Court relied heavily on its interpretation of the right to a healthy environment its Advisory Opinion 23\/17 of 2018, in particular as it refers to the content and scope of the right to a healthy environment.[14]<\/a><\/p>\n\n\n\n

It thus incorporated the right to a healthy environment among the rights protected by Art. 26 of the American Convention given the obligation of States to achieve the integral development of its peoples arising from Arts. 30, 31, 33 and 34 of the Convention.[15]<\/a> The Court particularly noted the right as a \u201cuniversal interest\u201d and a \u201cfundamental right for the existence of humanity.\u201d As an autonomous right, it protects the components of the environment, such as forests, seas, rivers, and other natural features, as interests in themselves, even in the absence of certainty or evidence about the risk to individual people. Like it did in the 2018 advisory opinion, the Court indicated an openness to adopting the trend of recognizing the rights of nature. It explicitly acknowledged the protection of nature because of its importance for other living organisms, rather than for its \u201cusefulness\u201d or \u201ceffects\u201d to human beings. Notwithstanding, environmental damage can cause a violation of other additional human rights.[16]<\/a><\/p>\n\n\n\n

The General Assembly of the Organization of American States (OAS) has previously issued various resolutions urging the regional States to promote the right to a healthy environment within their development policies, especially to combat climate change.[17]<\/a> In this particular case, Argentina had recognized a right to a healthy environment in its constitution,[18]<\/a> and ratified the San Salvador Protocol, which specifically recognizes a right to a healthy environment in Art. 11.1.[19]<\/a> While the Court did not mention this fact as a way to legitimize the recognition of the right to a healthy environment, it is worth questioning whether it would have reached a different decision if the State of Argentina had not previously recognized the right to a healthy environment at the national or regional levels.<\/p>\n\n\n\n

Following the explanation of the 2018 advisory opinion, the Court specified what the right to a healthy environment entails. The right to a healthy environment requires not only an obligation of respect,[20]<\/a> but also the obligation of guarantee provided for in article 1.1 of the Convention, as one of the ways of ensuring compliance is preventing violations.[21]<\/a> This duty of guarantee is projected to the private sphere, to prevent third parties from violating the protected legal assets. The duty encompasses all those legal, political, administrative, and cultural measures that promote the safeguarding of human rights and to ensure that eventual violations thereof are effectively considered and treated as illicit facts. Along these lines, the Court has indicated that on certain occasions, the States must establish adequate mechanisms to supervise and control certain activities to guarantee human rights, protecting them from actions by public entities, as well as private individuals.[22]<\/a> The obligation to prevent \u201cis of means or behavior and its non-compliance is not demonstrated by the mere fact that a right has been violated.\u201d[23]<\/a> Because this indication applies to the all rights in the American Convention, it also refers to the rights to adequate food, water and to participate in cultural life.[24]<\/a><\/p>\n\n\n\n

In specific environmental matters, the principle of prevention of environmental damage is part of international customary law. It entails States\u2019 obligation to carry out necessary measures ex ante<\/em> of environmental damage, taking into consideration that, due to its particularities, it will often not be possible to restore the situation after the damage.[25]<\/a> Under the duty of prevention, the Court has indicated that \u201cthe States are obliged to use all the means at their disposal in order to prevent the activities carried out under its jurisdiction from causing significant damage to the [\u2026] environment.\u201d[26]<\/a> This obligation must be met under the standard of due diligence, which must be appropriate and proportional to the degree of risk of environmental damage.[27]<\/a> The Court provided some examples of how to fulfill the duty of due diligence related to potentially harmful activities, including to (i) regulate, (ii) supervise and oversee, (iii) require and approve environmental impact assessments, (iv) establish contingency plans, and (v) mitigate in cases of environmental damage.[28]<\/a> The Court specifically noted that a detailed enumeration of all the potential measures is not possible.<\/p>\n\n\n\n

While considering the human rights that may be affected by environmental damage,[29]<\/a> the Court noted that these \u201ccan occur with greater intensity in certain groups in vulnerable situations,\u201d among which indigenous peoples and \u201cthe communities that depend, economically or for their survival, fundamentally on environmental resources, [like] the forest areas or river domains.\u201d Therefore, \u201cbased on the international regulations of human rights law, States are legally bound to address these vulnerabilities, in accordance with the principle of equality and not discrimination.\u201d[30]<\/a><\/p>\n\n\n\n

Remedies for Restituting the Rights to a Healthy Environment, Food, Water, and Cultural Identity<\/strong><\/p>\n\n\n\n

In its ruling, the Court states that the indigenous peoples have the right to their ancestral property in the north of Salta and a unique title for the 400 thousand hectares covering the former fiscal lots 55 and 14 of the Rivadavia department and establishes deadlines for compliance. The Court ordered the State to adopt various measures of reparation.<\/p>\n\n\n\n

In its ruling, the Court ordered that the State must, within a maximum period of six years:<\/p>\n\n\n\n