On March 22nd, the Inter-American Court of Human Rights ruled a landmark decision on the protection of the right to a healthy environment in the context of mining activities. The Court declared the international responsibility of the Peruvian State for breaching the Inter-American Convention on Human Rights, specifically for violations of the right to a healthy environment (Article 26), the right to life (Article 4.1.), the right to personal integrity (Article 5), the rights of children (Article 19), and others.
By evaluating environmental and medical evidence from decades ago to the present, the Court found that there is no doubt about the presence of high levels of environmental contamination in La Oroya, including lead, cadmium, arsenic, sulphur dioxide and other metals in air, soil and water. Importantly, it indicated that the principal cause was the activity of the La Oroya Metallurgical Center operating from 1922 (par. 263). Given the difficulty of establishing scientific causality, the Court also noted that it is not necessary to demonstrate that health diseases are directly caused by exposition to metals, but it is sufficient to determine that environmental contamination poses a significant health risk, that people have been exposed to contamination, and the State knew and allowed this situation to persist (par. 204).
The UN Special Rapporteur on Human Rights and the Environment indicated that it “is the strongest decision and most comprehensive judgment of any regional human rights court to date” and highlighted some positive aspects of the Court’s arguments:
a) Building upon its amply cited Advisory Opinion, it clarified that the right to a healthy environment is comprised of a bundle of procedural and substantive elements.
b) It recognized the collective nature of the right to a healthy environment in reaching the decision and providing extensive reparations.
c) It crafted the decision in dialogue with the work of the Special Rapporteur by classifying La Oroya as a “sacrifice zone” and accepting that the effects of environmental pollution fall disproportionally on poor people and communities.
d) In cases where the high toxicity of substances is well established, it determined that the State must develop and implement laws and policies with a higher standard of due diligence.
Beyond individual reparations, the Court ordered the Peruvian State to elaborate a baseline diagnosis that establishes the level of contamination in La Oroya, which must include a plan of action to be implemented in no more than 18 months aiming to remediate the environmental damages. This plan should prioritize the areas that represent a higher risk for the environment and health and should be conducted with the active participation of the victims (pars. 333 – 334). Secondly, it ordered specialized medical attention for all people with symptoms and diseases related to the exposition to contamination in La Oroya through public medical institutions, with a special focus on children, pregnant mothers and the elderly (pars. 348 – 349). Thirdly, the Peruvian State must implement an environmental compensation plan applicable to La Oroya Metallurgical Center that guarantees a zero net loss of biodiversity, an identification of ecological equivalence from an analysis of ecosystem services, and the search for an “additionality” in environmental compensation (par. 351). Finally, the State must require all mining companies to face the consequences and compensation for environmental damages caused by their operations in compliance with the “polluter pays” principle (par. 352).
What Changes to Expect? Broadening the Picture from a Socio-Legal Perspective
Despite the relevance of the doctrinal development of the right to a healthy environment and the ambitious collective reparations, the local conditions and the national context will represent great obstacles to the full realization of the decision.
In 2006, La Oroya was classified as one of the ten most contaminated cities on the planet, which is representative of a very long history of mining contamination, economic dependence and land dispossession. Limited by legal constraints arising from the Inter-American Convention, the scope of the Court’s decision falls short in the bigger picture of an environmental sacrifice zone. It focuses on the immediate causes of human rights violations regarding the State’s non-compliance with environmental and health standards, while it ignores the root causes of structural inequality, ethnic discrimination and extractive economy. This context will make it barely impossible for the Peruvian State to completely accomplish the reparations.
As pointed out by Arelí Valencia, the La Oroya case should not be characterized simply as the failure of the company and the State to fulfil legal obligations, but as a confluence of international and domestic politico-economic forces that reproduce an extractive status quo where people are forced to exchange their health for work; in other words, a human rights trade-off. In concrete, the emergence of environmental consciousness in the last decades contrasted with the urgency of the population of La Oroya to preserve their work and means of life, this is why the workers were the social support for the company’s lack of compliance and often consider environmentalists as enemies.
In the Court’s hearings, we can hear the testimony of one of the victims when asked what her goal in the case was: “I want to return to my birthplace and my name to be cleansed of all stains. The workers accused me as an enemy of La Oroya, but I am not that person”. Not even this international judgment may allow her aspiration to come true because the desire of a large part of the population, especially of the 1305 workers who became the owners of the company, is that the metallurgical industry resume activities.
Furthermore, there is an unfavourable institutional context to implementing the reparations ordered by the Inter-American Court. The Peruvian economy is highly dependent on extractive activities, thus, the institutional arrangements tend to prioritize laws and policies that are convenient for large extractive investments to the detriment of those that protect the environment. As indicated by the Court, air quality standards in Peruvian legislation were reduced to below what the WHO considers appropriate, which is a regressive measure in the protection of the environment (par. 186).
Crucially, in what configures a conflict of interest, the Peruvian Ministry of Energy and Mines is in charge both of ensuring auspicious conditions for investors and of inspecting environmental compliance. Thus, it is not likely that Peru will comply with the Court’s order (par. 346) to modify its legislation according to international law, as the State is constantly the object of external pressure to weaken environmental standards. In the last years, the Peruvian Mining, Oil and Energy Society has repeatedly denounced the excessive procedures and bureaucracy that impede long-scale mining investments from succeeding. Accordingly, regressive measures in the protection of the environment have become more frequent.
How Effective is International Law to Enforce the Right to a Healthy Environment in Extractive Contexts?
In extractive contexts, international obligations regarding the protection of the environment are hardly enforceable. This is due to the combination of two factors: 1) the lack of access to environmental justice, and 2) the dominance of international investment law.
The Inter-American system has taken almost 20 years to provide a final decision for La Oroya, a case where contamination was scientifically demonstrated decades ago. Contrary to other critical notes supra, this delay is directly attributable to the organs of the system as no administrative burdens or political considerations may serve as justification. However, the further problem is the limited capacity of international human rights law to provide timely and effective reparations, that build upon a consistent and realistic factual framework.
In Latin America and other regions of the Global South, human rights violations due to extractive activities are largely extended phenomena. As described, national institutions are generally incapable of providing environmental justice because it will simultaneously threaten the continuity of economic activities that are crucial for large portions of the population. The paradox of human rights trade-offs such as La Oroya is more common than exceptional.
This is an ongoing situation, for example, in the province of Espinar (Cusco, Peru) situated in an area known as the Southern Mining Corridor. In September 2023, the Ministry of Environment presented a scientific report demonstrating that air, soil, water, flora, fauna and domestic animals from the area are severely contaminated by the direct influence of mining activities. Despite the devastating findings, neither any State office nor the local population is actively soliciting the suspension of activities. On the contrary, the multinational company Glencore, operating in Espinar, is negotiating with local communities for the implementation of a new long-scale project called Coroccohuayco.
After many years of unfruitful attempts to obtain justice, the population of Espinar has lost confidence in the national and international systems of human rights, while mining activities can provide economic opportunities that are indispensable for their future. This does not mean they have renounced their claims for medical attention and environmental reparations, but they have decided to strategically negotiate these claims with the multinational company and State authorities in exchange for different forms of economic compensation. Are people from Espinar or the workers from La Oroya environmental defenders? As they do not fulfil all idealistic conditions, they might be denied this category. In an extractive context, environmental justice, as portrayed by international law, is a chimera.
Finally, the legal architecture of long-scale extractive activities largely relies upon international investment law, which is crucial to natural resource governance through the proliferation of investment agreements. Created for the protection of foreign direct investments in host countries, nearly all economic activities of a foreign investor are considered under the protection of these agreements and almost any aspect of the legal system of the State might be subjected to international arbitration. Thus, States from the Global South are more restrained in regulating extractive activities implemented by multinational companies.
It is not surprising that it was the multinational Doe Run Company operating in La Oroya who filed a claim against the Peruvian State before the International Centre for Settlement of Investment Disputes, alleging that environmental regulations configured unfair and inequitable treatment. Even if the arbitration tribunal did not merit these arguments, it shows that international obligations regarding foreign investments are limiting the regulatory capacities of the States and that, in case of breaches or attempts, there is an enforceable system that is more rapid and effective than others.
