In March 2016, Colombia requested the IACtHR to opine on three related questions on the interpretation of the ACHR, namely (as a précis):
I. Should the term “jurisdiction” in Article 1(1), ACHR be interpreted so as to allow a State party (“State X”) to the ACHR be made the respondent to a claim by an individual living in another State (“State Y”) for violations of human rights recognized in the ACHR where those violations are caused by environmental harms emanating from State X, and in particular where the two states are parties to a treaty-based system of environmental protection, such as the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (“Cartagena Convention”)?
II. If so, would it be a breach of the ACHR for State X, by act or omission, to cause serious transboundary environmental damage that undermined the rights to life and personal integrity protected by Articles 4 and 5, ACHR?
III. In order to protect human rights in State Y, does the ACHR require State X to comply with the norms of international environmental law, and what does that entail?
The IACtHR’s response was broadly in the affirmative on all three questions, except that on (I) the IACtHR declined Colombia’s invitation to base the scope or extent of ACHR obligations on the presence or absence of an environmental treaty regime.
Colombia’s Request was directed at a pressing international issue. In today’s world of intensified economic development, we are indeed “living at a time when major infrastructure projects are frequently being built and brought into operation … with effects that may exceed State boundaries” (Request §9). Damage to the marine environment would be one example; others would include climate change, toxic air pollution, persistent organic pollutants and endocrine disruptors, mercury, and many more. Given the band database magnitude of transboundary effects and their consequences, it is clear that some human rights recognized in the major conventions will be de facto inoperable and meaningless unless the States that are the sources of these harms bear an international responsibility capable of being invoked under those conventions’ accountability mechanisms, such as Article 63, ACHR. This is the context for the evolving field of ‘diagonal’ human rights obligations. State practice to date has been limited and cautious, but scholarship and ‘soft’ law have sought to develop balanced and workable principles: key examples include the detailed reports by the U.N. independent expert and special rapporteur, Prof. John Knox (available here), and, in the context of the ICESCR, the 2011 Maastricht Principles (here).
At the same time, there was an inescapable political ‘edge’ to Colombia’s Request. It was made in a context where Nicaragua’s plans for major development projects (including a possible Chinese-funded trans-isthmus canal) had aroused widespread concerns about the likely effect on the vulnerable island-dwelling and coastal communities in the Caribbean region, and where Colombia – after withdrawing its consent to the ICJ’s compulsory jurisdiction following the ICJ’s 2012 judgment in Nicaragua v. Colombia – no longer has a right of recourse to the ICJ should its maritime provinces be harmed by the side-effects of such projects. The Request could be seen as Colombia opening up a new front in that political dispute. The IACtHR has deftly defused that aspect by concentrating on the issues of principle.