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Can International Mechanisms Support Local Efforts?
Candis M. Hamilton
As we face the challenges to protect our environment are we ignoring an important tool that could facilitate our local efforts? Particularly for environmental advocates in the Americas - North, South, Central America and the Caribbean - the Inter-American system of human rights offers a fairly accessible mechanism for the protection of basic rights that can be linked to the protection of our environment.
The Inter American Commission on Human Rights (‘Commission’ or ‘IACHR’) was created in 1959 and the Inter American Court of Human Rights in 1969 as a result of the adoption of the American Convention on Human Rights. Both bodies comprise the Inter American system of human rights within the Organization of American States (OAS) with the mandate for the promotion and protection of human rights within this hemisphere.
There are two principal international instruments that are legally binding in the Inter American system of human rights. These are the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights. In 1948 the inter-American system, which had been created in 1890, was renamed the Organization of American States, to fit into the new world architecture following the creation of the United Nations. The American Declaration of the Rights and Duties of Man was approved in Bogotá, Colombia in 1948 at the same meeting at which the OAS was created. At the time the OAS was created it was comprised of 21 States and today it is comprised of thirty-four States from North, South, Central America and the Caribbean. Although originally adopted as a declaration and not as a legally binding treaty, as the more famous Universal Declaration of the Human Rights, adopted by the United Nations on December 10, 1948, the American Declaration is today a source of international obligations for all the OAS Member States. The American Convention on Human Rights was adopted on November 22, 1969 and States that have since ratified or acceded are legally bound by this treaty. With the adoption of this Convention the Inter American Court of Human Rights was also created. All thirty-four Member States of the OAS are considered to be legally bound by the American Declaration, whereas only twenty-four Member States have become parties to the American Convention on Human Rights.
The Inter American system of human rights protection is for all practical purposes a three-tiered system:
1. For all the Member States of the Organization of the American States;
2. For the Member States that have become parties to the American Convention of Human Rights; and
3. For those Member States that have accepted the jurisdiction of the Inter American Court of Human Rights.
Any person or legally recognized non governmental organization is entitled to submit a petition to the Commission and allege a violation committed by the State of one or more of the human rights established in either the American Declaration or the American Convention. Submissions under the first tier fall under the legal foundation of the American Declaration before the Commission, the second tier under the American Convention before the Commission and the third tier under the American Convention with a possibility that the case may be submitted before the Inter American Court.
There are certain requirements that must be fulfilled before the submission of a petition to the Commission, the principal of which is that local remedies must be exhausted. Since the Commission is not a court of final appeal the Commission will accept submissions only where it appears that a right established in either the American Declaration or the Convention (depending on the State) has been violated, and the State in the domestic proceedings did not protect that right. As such it is advisable that practitioners ensure that the right which they believe the State has violated is included in their original pleadings. If this right is asserted and not respected then a submission may be made to the Commission to ensure that the right is protected.
Submissions to the Commission can be an effective tool for human rights protection in various areas of the law, and the right to a healthy environment is not to be overlooked. Increasingly this right is being asserted as a fundamental human right and advocates will do well to be creative in applying the current civil and political rights and standards in the American Convention and the American Declaration for the pursuit of the right to a healthy environment. In 2001, the Inter American Court of Human Rights held in the Awas Tingni case for the first time that the right to property can go beyond the right of the individual to the framework of communal property rights. The ruling recognized the close spiritual and cultural link that indigenous peoples have to the land which the Court held falls within the protection of the right to property. Based on that ruling the State of Nicaragua was ordered to abstain from granting concessions, or other acts that would affect the use and enjoyment of the Awas Tingni community of their property. In essence the environment was protected within the civil right of right to property.
This combination of using existing standards on civil and political rights for the protection of social rights of health, the environment is an effective method of using the current system to advocate for the protection of new rights. In the same Awas Tingni case the court held that “human rights treaties are live instruments whose interpretations must adapt to the evolution of the times and, specifically, to current living conditions” . While access to the Inter-American Court of Human Rights is limited to States that have accepted its contentious jurisdiction, the Inter-American Commission on Human Rights has relied on the Court’s interpretations of the American Convention for its recommendations. All twenty-four States that have ratified the American Convention have accepted jurisdiction of the Inter-American Court with the exception of Dominica, Grenada and Jamaica.
The requirements to submit a petition to the Inter-American Commission are relatively few, hence the Commission requires strict compliance. The costs involved are relatively low. All the pleadings are in writing and the only time an actual appearance before the Commission at their headquarters in Washington, D.C. is required is for a hearing on the merits of the case.
The Inter-American Court was clear that the interpretations must reflect our current situation. Today the region struggles to address social and economic challenges that impact our access to basic human rights. Protecting our environment is no longer a choice but a requirement. Our legal institutions must and can be made aware of this requirement through our voices. The inter-American system of human rights protection was created for the protection of all persons within this hemisphere. It is as effective as we make it. Use it.
For further information on the Inter American Commission on Human Rights, please visit the website at www.cidh.org or on the Inter American Court of Human Rights, please visit the website at www.corteidh.or.cr or contact Candis Hamilton at firstname.lastname@example.org