TIME TO WAKE UP!: Pushing the Boundaries in the Americas to Protect the Most Vulnerable.

• Author: Davila A., Sarah

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND ON INTER-AMERICAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS II. ORIGINS OF THE RIGHT TO A HEALTHY ENVIRONMENT III. ENVIRONMENTAL HUMAN RIGHTS IN THE INTER-AMERICAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS A. Interconnectedness of the Environment and Human Rights B. "Greening " of Human Rights IV. THE RIGHT TO A HEALTHY ENVIRONMENT AS A NORMATIVE TOOL TO PROTECT VULNERABLE POPULATIONS A. Obligation of Prevention B. Precautionary Principle C. Obligation to Cooperate D. Procedural Obligations E. Working Group Criteria and Vulnerable Populations 1. Environmental Racism and Discrimination: Afro-Descendants and Immigrant Communities 2. Endangering the Environment Without Due Regard to Protection and Conservation: Campesinos 3. Disproportionate burden of Climate Change: Coastal Communities CONCLUSION This is the time to wake up. This is the moment in history we need to be wide awake.... And yet, wherever I go, I seem to be surrounded by fairy tales. Business leaders, elected officials all across the political spectrum spending their time making up and telling bedtime stories that soothe us, that make us go back to sleep. These are 'feel-good' stories about how we are going to fix everything. How wonderful everything is going to be when we have 'solved' everything.... [But] it's time to face the reality, the facts, the science. And the science doesn't mainly speak of 'great opportunities to create the society we always wanted.' It tells of unspoken human sufferings, which will get worse and worse the longer we delay action.... Stop telling people that everything will be fine, [when in fact,] as it looks now, it won't be very fine. (1)--Greta Thunberg

INTRODUCTION

As a society we have continually prioritized economic growth over protection of the environment. We have let corporations and governments decide our planet's future as they make decisions based on their own greed. Corporations purchase land, atmospheric space, underground minerals, animals, fish--really anything that money can buy--without regard for the human and environmental suffering they create. (2) After all, "everything we take for ourselves we take from someone else." (3) The idea that corporations and governments can take from and destroy the environment--without having serious lasting effects on the environment and on people--is fiction.

Climate change has real and devastating environmental consequences. A 2020 United Nations study confirmed that climate change has already had catastrophic effects on "socio-economic development, human health, migration and displacement, food security, and land and marine ecosystems." (4) For vulnerable persons and communities, the effects of climate change are undoubtedly devastating. Children, low-income people, people with disabilities, pregnant people, and underrepresented groups are at particularly high risk of contracting diseases or other health conditions and lack access to basic resources as a result of environmental degradations due to climate change. (5)

Communities living in arid environments will be unable to rely on their natural environment without facing major obstacles, as the destruction of extreme flooding and rising sea-levels takes its toll. (6) In the Americas from 2000 to 2013, devastating hydro-meteorological events such as typhons, hurricanes, flash floods, droughts, and coastal storm surges led to serious human and economic losses. (7) Most concerning are the increasing temperatures and droughts affecting the region. Scientists are concerned that the increased frequency of extreme droughts in the Amazon will lead to the region's "tipping point" and the destruction of the Amazon forest. (8)

Similarly, Mexico, Central America, and the Caribbean have experienced increasingly powerful hurricanes and tropical storms that are devastating the environment and creating severe human health effects. (9) In the Caribbean, the rising sea temperatures are projected to lead to catastrophic hurricanes, resulting in flooding, landslides, the destruction of homes, loss of basic resources, and increasing health conditions. (10) For the communities that live near and fish coastal waters, increasing sea-level is projected to destroy their environment through the erosion of shorelines, the inundation of low-lying areas, and the contamination of freshwater aquifers. (11) The Mesoamerican reef of Central America and Mexico has already suffered from these consequences. There, coral bleaching has led to a loss of biodiversity, and in turn, a loss of marine life that could have fed many communities. (12) Additionally, climate change has affected access to freshwater sources, (13) which has led to increasing vectorborne diseases, including dengue and malaria, as well as other transmittable diseases. The spread of these diseases will continue to increase as the availability of freshwater decreases. (14)

If we know that so much human suffering is already happening due to the environmental harm caused by climate change, why are we continuing on this path? If we do not act now, we will continue to feel the effects of climate change. The most vulnerable will become poorer, will have less access to health and natural resources, and will be increasingly marginalized. As former Secretary General of Amnesty International Kumi Naidoo, a fierce advocate of the environmental human rights movement, has said, "[t]here are no human rights on a dead planet. There are no humans on a dead planet." (15) Now is the moment in time where we need strong intervention through "legitimate, far reaching, and ultimately, effective judicial measures" to protect the environment. (16) We have to think creatively and radically to develop new normative tools to protect the environment, and to protect those most affected by environmental harm and climate change.

This article proposes that the Inter-American System for the Protection of Human Rights (Inter-American System) must recognize that there is a right to a healthy environment and use this right as a normative framework in order to protect the human rights of vulnerable persons facing environmental harm in the Americas and the Caribbean. There is a growing global movement advocating for the express and autonomous right to a healthy environment. (17)

The Inter-American System has recognized the right to a healthy environment since 1988 through Inter-American instruments and jurisprudence on the rights of indigenous and tribal communities. (18) The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) and the Court's Advisory Opinion on the Environment and Human Rights (OC-23/17) have built on the recognition of that right for the Americas. (19) The Protocol and Advisory Opinion on the Environment and Human Rights clarify that the right to a healthy environment is a viable framework for protection. As later discussed, both the Protocol and the Advisory Opinion can be the beginning of a new chapter in the protection of the environment in the Inter-American System of Human Rights.

Past Inter-American jurisprudence protecting the environment has done so through the "greening" of human rights. This approach attempts to protect the environment by using existing human rights (not focused on the environment) as indirect mechanisms to protect the rights of persons and communities affected by environmental risk or harm. (20) The "greening" of human rights is not exclusive to the Inter-American System. The European Court of Human Rights has taken this approach and protected human rights affected by environmental harm through the rights to life, property, privacy, and information. (21) However, this approach lacks the ability to anchor arguments in the actual environmental risk or harm that is affecting populations or in the harm that is likely to occur in the foreseeable future. Moreover, this approach is limited in that provable harm must be traced back to the environmental injury that is affecting the right to property, or life, for example. Establishing this connection or causation is quite challenging, especially since environmental harm can often be largely attributed to aggregate harm that has developed over time and causes long lasting intergenerational effects on the population. (22)

The vast protection of the environment in the Inter-American System has occurred as a result of the indigenous rights movement. This movement has been instrumental in fighting for environmental protections, as indigenous communities' survival is greatly jeopardized by the environmental harm that results from extractive and highly polluting industries. (23) The indigenous rights movement has paved the way for recognition of the relationship between human populations and their natural environment. (24) "[T]he wisdom, and the experiences of indigenous peoples around the world are critically important for us to make progress." (25) Additionally, indigenous and tribal jurisprudence has been critical to establishing that environmental harm leads to a multitude of human rights violations, including the rights to culture, identity, and language. (26) The recognition of environmental human rights in the indigenous context has also solidified procedural rights, such as free, prior, and informed consent. (27) Procedural rights have been critical in the protection of the right to a healthy environment. They ensure that individuals and communities are able to have access to participatory rights and justice in the context of environmental human rights. The recognition of environmental human rights is critical for the non-indigenous communities that rely on their natural environment, or are disproportionately affected by climate change, as their voices go similarly unheard. Unfortunately, the gains that the indigenous rights movement has made with the framework to protect the...