The Rise of Environmental Law in International Dispute Resolution: The Inter-American Court of Human Rights Issues a Landmark Advisory Opinion on the Environment and Human Rights

Abstract

The Inter-American Court of Human Rights’ (IACtHR) advisory opinion on the environment and human rights (Advisory Opinion), which was released on 7 February 2018 (in Spanish only), is the latest and potentially most significant decision in a series of high-profile international judicial rulings that acknowledge legal consequences for environmental harm.1 It not only recognizes the right to a healthy environment as being fundamental to the existence of humanity, but it also has the potential to unlock real cross-border remedies for the victims of environmental degradation. This decision is not an isolated development but, rather, a reflection of an important current trend that we refer to as the rise of international environmental law in international dispute resolution. As recently as 2 February 2018, the International Court of Justice (ICJ) ordered Nicaragua to pay compensation to Costa Rica for environmental damage in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), its first-ever order for compensation for environmental harm.2 The International Tribunal for the Law of the Sea, for its part, issued a landmark provisional measures order not long ago in Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), whereby the tribunal prescribed provisional measures to prevent serious harm to the marine environment, inter alia, suspending all ongoing oil exploration and exploitation operations in the disputed area.3 To that list, one could add the 2017 decision of a tribal sitting under the International Centre for Settlement of Investment Disputes in Burlington Resources, Inc. v Republic of Ecuador to award approximately US $39 million in damages in favour of Ecuador for environmental remediation costs.4