The Inter-American Court of Human Rights set an important precedent for state oversight of industrial pollution.

By Rosa Peña and Jacob Kopas*

This past March, the Inter-American Court of Human Rights, the human rights tribunal for the Americas, released an historic ruling condemning Peru for failing to control toxic industrial pollution. The ruling set an important precedent for the right to a healthy environment and state oversight of corporate activities across the Americas.

This victory began as a petition that the Interamerican Association for Environmental Defense (AIDA) and Earthjustice, together with partner organizations, presented in 2006 on behalf of families and environmental defenders in La Oroya, a small town in the heart of the Peruvian Andes. For more than 100 years, an industrial smelter has exposed La Oroya to extreme levels of toxic pollution, leading to nearly all the town’s children having dangerously high levels of lead and other heavy metals in their blood.

The court’s binding judgment is a powerful condemnation that the families of La Oroya are today using to demand concrete action from the Peruvian government. In addition to financial compensation, the court ordered Peru to halt further harmful pollution from the smelter, clean up the toxic metals in the soil and water, and provide specialized health care for the victims and inhabitants of La Oroya. The court's judgment itself also constitutes a form of reparations for the victims, by acknowledging the legitimacy of their work as environmental defenders.

The significance of the ruling goes far beyond the immediate benefits for people in La Oroya and Peru. Ensuring the environmental quality of water and air in Latin America remains a major challenge across the Americas. This is the first time that the Inter-American Court has held that industrial pollution can harm human rights, opening a path to justice for communities in so-called “Sacrifice Zones” overburdened with industrial pollution.

The court’s landmark ruling establishes several key precedents with significance for both international and domestic jurisprudence.

Innovative new measures for collective reparations.

This case went beyond previous cases by ordering not only individual reparations, but also collective reparations that benefit all inhabitants of La Oroya. These include environmental remediation of the surrounding ecosystem (para. 351), comprehensive and specialized health care for any inhabitant who presents symptoms (para. 348), and support for relocating inhabitants who wish to do so (para. 355). In addition, the court ordered differentiated measures for women, children, and elderly victims. The judgment also ordered environmental and public health measures that will improve the lives of all Peruvians impacted by the mining industry, including bringing air quality standards in line with international standards (para. 346), guaranteeing that mining companies adhere to the UN Guiding Principles on Business and Human Rights (para. 352), and creating an information system that proactively provides updated air and water quality data in mining areas (para. 354).

Showing causality: Exposure to a significant health risk is enough to prove a human rights violation.

One major obstacle to access to justice for communities exposed to dangerous pollution is showing causality, that is, proving that pollution caused a specific health condition. Showing causality is often difficult because many communities lack access to proper health care and diagnostic tests, because some conditions such as cancer can be latent and lie undetected for years, and because many different factors contribute to poor health. To account for this reality, the court held that it is sufficient to show that an exposure to pollution created a significant health risk, without having to prove that the exposure caused a concrete condition or disease (para. 204). The court also went a step further, and noted that under the precautionary principle, the lack of scientific certainty regarding those risks cannot be an excuse for failing to adopt measures to protect public health (para. 207).

The right to clean air and water as substantive elements of the right to a healthy environment.

In the judgment, the Court established that the right to a healthy environment includes the rights to air and water that are free of pollution which could constitute a significant risk to health and rights. These rights also entail specific obligations for states. These include:

• Setting environmental quality standards that do not constitute a risk to health and that are based on the best available science
• Monitoring air and water quality and providing access to information on pollution that endangers health
• Creating plans to maintain air and water quality
• Effectively enforcing environmental quality standards and ensuring the proper management of water resources (paras. 120-121)

Access to public participation in environmental decisions.

This ruling is also the first time that the Inter-American Court has condemned a state for failing to guarantee effective public participation in environmental decision-making affecting the general public (para. 256). In prior cases, the court examined the right to public participation only in the context of consultation with Indigenous Peoples, who have special protections under international law. In addition, the court held that the mere existence of formal procedures for public participation may not be sufficient for states to satisfy their obligations under the American Convention. Authorities must also ensure that these procedures provide an effective opportunity to be heard and participate in decision making (para. 260).

The judgment also consolidated advances in other important issues for environmental justice in the region:

• Business and human rights obligations. The court emphasized states’ obligations to protect human rights and their duties to supervise and control companies (paras. 109-110). It also held that companies themselves have responsibilities to respect human rights and act with due diligence, regardless of their size, sector, operational context, ownership, or structure (para. 111).
• Environmental pollution violates the right to a dignified life. Because pollution impacted many different areas of the lives of families in La Oroya, it also violated their right to a dignified life. These impacts included not being able to carry out a life project under normal circumstances, which affected their personal, family, psychological, and professional development (paras. 220-230).
• The effects of environmental contamination fall disproportionately on individuals, groups, and communities that already bear the burden of poverty, discrimination, and systemic marginalization. The court recognized that pregnant women, children, teenagers and the elderly, who, given their condition, are frequently exposed to a greater risk of harm from pollution (para. 134). Given the principle of intergenerational equity, states have particular obligations to protect children’s health from environmental pollution and provide specialized care for those that acquired illnesses as a result of exposure (para. 141).
• The right to a healthy environment as jus cogens. The ruling noted that guaranteeing the interest of both present and future generations from serious, extensive, long-lasting, and irreversible damage to the environment is fundamental for the survival of humanity. The court thereby called on the international community to recognize such environmental harm as violating a preemptory norm (jus cogens) of international law (para. 129).
• Weakening air quality standards violates international law. The court found that when Peru rolled back national air quality standards for sulfur dioxide, it violated its duty against retrogressive measures inherent in the right to a healthy environment (paras. 182-186). The court held that any such rollbacks must be justified in light of the state’s maximum available resources for guaranteeing human rights and be consistent with the precautionary principle (para. 186).
• Obligation of active transparency when guaranteeing access to information. This case is the first time the court has found a state responsible for failing its obligation of “active transparency,” which requires states to not only respond to requests for accessing environmental information, but also to actively distribute and publicize environmental information (para. 247). This information must be complete, comprehensible, and in an accessible language (para. 255).

The ruling is poised to a significant legal precedent for the many communities affected by industrial pollution. Its ultimate impact will depend on how it is implemented by courts in Peru and throughout Latin America. In Peru alone, the Peruvian Human Rights Ombudsman estimated that over 10 million people (31% of the population) are at risk of exposure to heavy metal pollutants and other chemicals related to the mining industry. With this new ruling as a powerful legal tool, hopefully other communities will not have to wait 100 years to finally breath clean air.

*Rosa Peña is a senior attorney with AIDA's Human Rights and Environment Program; Jacob Kopas is a senior attorney with Earthjustice's International Program.