Finding that Peru failed to adequately monitor and control industrial pollution in La Oroya, the Inter-American Court of Human Rights holds the State accountable for violations of the right to a healthy environment.
Since 1922, the communities of La Oroya, Peru, have endured rights violations and environmental devastation caused by the La Oroya Metallurgical Complex’s (CMLO) industrial activities. It took a groundswell of community activism and legal battles to spur action, leading to a 2006 Constitutional Court decree mandating that the State implement emergency health measures. Refusing to back down, environmental organizations sought intervention by the Inter-American Commission on Human Rights (the Commission), asking for the issuance of precautionary measures and filing a petition. Following the precautionary orders in 2007, the Commission submitted the case to the Inter-American Court of Human Rights (IACtHR) in 2021. The case highlighted Peru’s failure to control the CMLO’s activities, violating various human rights, including the right to a healthy environment (R2HE).
The IACtHR determined that Peru had violated multiple rights, including dignity, personal integrity and R2HE. The State failed to control the CMLO’s activities and inadequately protected the environment through insufficient monitoring, regulations and regressive pollution standards. The Court emphasized the State’s obligation to prevent rights violations by public and private entities, ensuring transparency and public participation in environmental decision-making processes. Peru was directed to investigate and prosecute harassment of environmental defenders, enhance transparency and public involvement, conduct pollution assessments, provide free medical care and implement preventive measures to avert future harm.
The small town of La Oroya, home to roughly 30,533 people, experienced well-documented and severe health impacts from the CMLO. Despite awareness of the CMLO’s environmental impacts since at least 1986, Peru did not enact legislation addressing environmental control and pollution prevention in the mining and metallurgy sectors until 1993. Although these regulations established and mandated Environmental Impact Assessments (EIAs) or an Environmental Adjustment and Management Program (PAMA) to control and reduce environmental harms, the legislation’s effectiveness was limited.
The State granted CMLO multiple extensions to comply with its PAMA until the renewals ceased in 2010. However, by 2006, La Oroya was one of the world’s most polluted cities, with 99% of its air pollutants stemming from the CMLO’s operations. Contamination levels in the air, water and soil surpassed national and international standards, resulting in residents experiencing lead blood levels exceeding the WHO’s recommended limits over three times, along with many other health ailments.
Prior to approaching the Inter-American Court of Human Rights, local communities pursued legal avenues at domestic and regional levels. In 2002, victims initiated an enforcement action against the Ministry of Health and the General Directorate of Environmental Health, seeking protection for their R2HE as guaranteed by Peru’s 1979 and 1993 Political Constitutions. Their efforts bore fruit in 2006 when they secured a favorable ruling in the domestic courts. The Constitutional Court of Peru mandated the implementation of emergency healthcare and environmental surveillance programs, with a directive to report progress to the Constitutional Court.
During the domestic case, environmental organizations, which later were the representatives in the IACtHR case, sought precautionary measures from the Commission to safeguard the rights to life, personal integrity and health of 66 residents affected by the contamination. In 2007, following the domestic court’s decision, the Commission issued precautionary measures to protect the victims’ lives and personal integrity.
In 2006, the representatives, including the Interamerican Association for Environmental Defense (AIDA), The Center for Human Rights and the Environment (CEDHA), Earthjustice and the Association for Human Rights Peru (APRODEH), filed a petition with the Commission on behalf of 80 named victims in addition to the precautionary measures request. After completing the Admissibility and Merits Reports in 2020, Peru was notified and given a two-month deadline to report on compliance. After two extensions and the rejection of a third, the Commission referred the La Oroya case to the IACtHR in 2021.
The representatives asserted that the State’s actions and omissions led to numerous rights violations. Inadequate contamination control measures exposed locals, vulnerable groups like children and pregnant women in particular, to hazardous substances that exceeded recommended levels. The representatives pointed out feasible solutions to address the situation sustainably that would not require shutting down the complex, which the State failed to implement. They cited violations of various human rights articles, including the right to life, humane treatment, freedom of thought and expression, fair trial, judicial protection, the rights of the child, the right to health and R2HE. The American Convention on Human Rights and its additional San Salvador Protocol protect these rights.
The Commission presented its findings to the Court, concluding that Peru violated the rights alleged by the representatives, in addition to the obligation of non-regression. These violations stemmed from Peru’s implementation of regressive air quality standards without valid justification and failure to regulate the CMLO’s activities.
The IACtHR determined that Peru had failed to adhere to the domestic Constitutional Court’s ruling. The Court reiterated the obligation of States, as per the American Convention, to prevent both public and private entities from violating human rights through legislative and other means and to address such violations with appropriate measures. R2HE, protected under Article 26 of the Convention, was affirmed as a universal right, essential for humanity’s well-being. The Court acknowledged the adverse impacts of air and water pollution on this right, particularly on vulnerable groups like women and children. It stressed the necessity for States to implement special measures aligned with human rights principles, such as intergenerational equity, to safeguard the environment and protect children. Additionally, the Court emphasized the importance of transparency, access to information and effective public participation in environmental policymaking as fundamental for individuals to exercise their rights fully.
Peru failed in its duty to regulate, supervise and oversee the activities of the CMLO. The State’s inadequate actions led to violations of the community’s R2HE during the CMLO’s operations. Furthermore, the 2017 air quality legislation disregarded the obligation for the progressive development of environmental protection under R2HE. The IACtHR conclusively determined that the State violated multiple rights under the American Convention, including the right to a healthy environment, health, life, personal integrity, access to information and political participation.
In its judgment, the IACtHR mandated several actions from the State, including investigating and potentially punishing those responsible for harassing environmental defenders protesting CMLO contamination, assessing and addressing the extent of La Oroya’s pollution with a remediation plan, providing free medical care to affected victims and publishing the Judgment on relevant state health and environmental agency websites. The Court also directed the State to ensure non-repetition by implementing specific measures, such as strengthening regulations, initiating pollution monitoring programs, establishing medical Assistance Funds for those harmed, and providing compensatory damages, cost reimbursements and contributions to the Victims Legal Assistance Fund.
While the case before the Inter-American Court of Human Rights primarily centered on the regional American Convention, the representatives emphasized Peru’s long-standing recognition of R2HE before it ratified the American Convention and San Salvador Protocol. R2HE was enshrined in Peru’s Constitution as early as 1979, specifically in Article 2. The representatives sought the IACtHR to assess the effectiveness of the domestic Constitutional Court’s remedy and determine whether the State failed in its duty to regulate.
The representatives outlined the domestic constitutional case, built upon Article 200 of the Political Constitution and Procedural Code 43, where they had alleged non-compliance with environmental regulations. The IACtHR, considering Peru’s Constitution’s recognition of R2HE, examined whether the State fulfilled its duty to regulate. The Court noted that environmental mining legislation was enacted in 1993, creating a gap between the recognition of R2HE and regulation of the mining and metallurgical sectors. The Court inferred from this gap a violation of the State’s duty to regulate. Furthermore, crucial measures were not implemented until 2010, long after pollution issues were known, indicating a failure in the State’s duty to supervise and control. The State did not adequately assess the environmental contamination or employ due diligence when deciding to grant the CMLO extensions, thus failing to meet the objectives of domestic environmental legislation.
The representatives and the Commission argued before the IACtHR, asserting that Peru violated numerous rights outlined in the San Salvador Protocol and the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights. Central to the discussion were R2HE and the rights of the child, as specified in Article 11 of the San Salvador Protocol and Article 19 of the American Convention, respectively.
The representatives and Commission alleged violations of Article 4 of the American Convention (right to life) due to health risks and physical harm to community members; Article 5 (right to humane treatment) due to psychological distress caused by anxiety over environmental contamination; Article 13 (freedom of thought and expression) because the State failed to adequately inform the community about environmental dangers and manipulated information to downplay the severity of the situation; Article 19 (rights of the child); Article 8 (right to a fair trial); Article 25 (right to judicial protection). The representatives also invoked Article 10 of the San Salvador Protocol (right to health). From their Merits Petition, the Commission reiterated that Peru, through acquiescence and facilitation of harm, violated the aforementioned rights and the obligation of progressive development outlined in Article 26.
While the American Convention formed the basis of the representatives’ and Commission’s case, they also highlighted the expanding recognition of R2HE by various international instruments and organizations. The Rio Declaration and Paris Agreement underscore the interconnectedness of human rights, the environment and climate change. Pointing out the global acknowledgment of R2HE, the Commission referenced statements from the African Commission on Human and People’s Rights and the European Court of Human Rights regarding the right’s substantive and procedural elements.
The IACtHR initially referenced the UN General Assembly’s adoption of R2HE and its integration into the African and European human rights frameworks. While the Inter-American Human Rights System had previously addressed R2HE and State obligations, the IACtHR also drew from other regional human rights systems to reaffirm procedural obligations like transparency and public participation and confirm the universality of R2HE. Additional support for R2HE’s content, which includes the right to clean air and water, came from international instruments such as the Organization of American States Charter, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and UN statements from the General Assembly and Special Rapporteurs.
In 2021, Peru was notified of the case’s submission to the IACtHR. In the proceedings before the Court, seventeen amicus curiae briefs were submitted, at least eight of which explicitly addressed the interpretation and development of R2HE.
In its report on the representatives’ petition to the Court, the Commission emphasized that R2HE extends beyond humankind. Citing the Court’s Advisory Opinion 23 and the Llaka Honhat case, the Commission highlighted that R2HE is independent and safeguards environmental components as legal interests in their own right. The IACtHR recognized certain rights as integral elements of R2HE, such as the right to water. Elements like air and water hold universal significance and inherent value due to their critical role for all living beings. Therefore, R2HE is not human-centric but ecocentric.
The representatives emphasized the detrimental effects of pollution on vulnerable groups, particularly children. Among the represented victims were twenty-three minors, some of whom tragically passed away during the legal proceedings. The right to life is intricately linked with the Right to a Healthy Environment (R2HE), as poor environmental conditions directly impact one’s health and well-being. The case highlighted two children, John (5) and Maria (14), both of whom passed during the legal battle from health issues connected to environmental pollution.
The representatives argued that the State’s failure to regulate and address contamination from the CMLO in La Oroya significantly increased the risk of severe health problems, sometimes resulting in fatalities, particularly among children. The Court sided with the representatives, holding the State accountable for the health impacts caused by the CMLO and the tragic deaths of John and Maria. The State’s neglect of pervasive lead contamination in La Oroya and its failure to supervise the CMLO violated R2HE and the rights to health, dignified life and personal integrity, including its duty to protect children’s rights under Article 19 of the American Convention.
The representatives and Commission emphasized the State’s duty to uphold rights enshrined in the domestic Constitution, the American Convention and its protocols. They pointed out that the State’s failure to implement effective supervision and control measures, coupled with regressive air quality regulations, constituted a breach of its obligations that the rights invoked during the case required.
R2HE comprises of essential elements, requiring the State to adhere to specific principles and practices. The Commission highlighted Article 26 of the American Convention, which integrates the obligation of non-regression. The representatives argued that the State disregarded its duty to prevent harm, a sentiment supported by the Commission, which stressed the close connection between prevention and a robust regulatory framework with effective supervision and oversight mechanisms.
Moreover, the right to access information was deemed crucial in safeguarding R2HE, necessitating the State to establish accessible procedures for individuals to receive timely and sufficient information. This right is linked with the right of public participation under Article 23 of the American Convention, ensuring that community members can engage in decisions affecting them and voice their opinions.
The Court embraced the framing presented by the representatives and Commission, concluding that the State had not fulfilled its positive obligation and had exacerbated harm through regressive environmental standards. In addition to the Merit Report’s examination of the prevention principle, the IACtHR highlighted the precautionary principle, which is connected to states’ duty to safeguard the environment for future generations.
The Inter-American Human Rights System has extensively deliberated and refined R2HE over the past decade, solidifying its status as a fundamental, autonomous, and universal right. In its submission to the IACtHR, the Commission urged the Court to continue advancing its jurisprudence on R2HE, highlighting its autonomy and interconnectedness with other fundamental rights. While R2HE is recognized as an independent right, further exploration of its interaction with other rights under the Convention, along with procedural aspects like transparency and public participation, is essential.
In its ruling, the IACtHR delved into the nuances of the right to information and political participation concerning environmental issues, emphasizing a State’s duty to regulate, oversee and supervise public and private activities within its jurisdiction.
La Oroya affirmed the fundamental R2HE as an autonomous and universal right. The decision not only upheld R2HE but also highlighted the State’s obligation to prevent harm, ensure transparency and public participation, and safeguard environmental quality for future generations. Spanning over 200 pages, the Court extensively discussed R2HE’s procedural and substantive aspects, elucidating its connection with other fundamental rights. Notably, the Inter-American Court’s ruling is the most robust and comprehensive judgment on R2HE among regional human rights courts, setting a profound precedent and tool for regional and global environmental rights cases.
