Astrid Puentes*

Leer en español aquí. This article was first published here.

On March 22 the Inter-American Court of Human Rights released a historic and long awaited decision in the case of the people of La Oroya v. Peru. At last, the people who since 2005 have sought in the Inter-American System the justice they did not find in their country, received the final decision. The 220-page judgment requires deep analysis. For now, some initial reflections.

First, calling this case “historic” despite the overuse of the word, is actually accurate. The La Oroya case is the first in which the Court analyzes violations of the right to a healthy environment, to life, integrity, information and participation, among others, linked to industrial pollution and the responsibility of the State for inadequate monitoring the company causing the damage. It all happened in a city and country with profound inequality, putting people in a situation of vulnerability. Though not weakness, as has been demonstrated by its more than 20 years of impressive action for justice.

To have a sense of the dimension of the case, there are many firsts in La Oroya at the Inter-American System including being the first case addressing:

1. air pollution,
2. environmental impact of human rights regarding an urban and non-Indigenous Peoples,
3. industrial pollution,
4. the differentiated impact of contamination on human rights, and special situation of vulnerability of children, women and the elderly,
5. exhaustion of domestic remedies with a collective legal action,
6. recognition of State’s responsibility for the death of two people as it was linked to the contamination,
7. public information and participation in relation to the environment, as essential rights to also guarantee the right to health, integrity and life.

Finally, after almost 20 years of international litigation, the Inter-American Court declared that the State of Peru is responsible for violating the rights to a healthy environment, life, health, integrity, protection of children, information and public participation.

According to the Court:

• Breathing clean air and having clean water are key parts of the right to a healthy environment and that the State must guarantee them. In other words, it is not normal to breathe polluted air, nor should populations be sacrificed in order to encourage economic growth.

States must:

• AVOID human rights violations produced by public and private businesses. Therefore, they should adopt legislative and other measures to prevent damages. They must also investigate, punish and remediate such violations,
• USE all means at their disposal to avoid significant damage to the environment in general, and to air and water in particular,
• PREVENT harm, an obligation linked to the duty to guarantee the right to health, life with dignity and personal integrity,
• CONTROL businesses in an effective manner thus when States grant multiple extensions for law compliance, they might ignore the duty to protect human rights. This happened in La Oroya.

As for Businesses, the Court concluded that they “MUST AVOID that their activities cause or contribute to cause human rights violations, and adopt measures aimed at remediating such violations. The Court considered that business responsibility is applicable regardless of their size or sector, however, their responsibilities may be differentiated in law by virtue of the activity and the risk they pose to human rights.”

The Inter-American Court also reiterated that the environment is a human right and also a universal and fundamental interest for the existence of humanity. Given the impact in this case, which affected the entire city, for the Court the impact was individual and collective. It further determined that the precautionary principle is related to the State’s obligation to preserve the environment, as well as to the guarantee rights of future generations.

The Court’s decision emphasizes that the State’s responsibility is especially relevant given that the State had known for decades about the serious pollution, and the impacts to human rights. The State failed to implement adequate actions for the protection of human rights. Particularly for those who were in most vulnerable situations, as children, women and the elderly.

The Court demanded the State to compensate the people of La Oroya for the damages. The State has to implement a comprehensive and effective medical assessment and treatment. In addition, an environmental remediation plan should be put in place and relocation to safe and clean areas should be offered for those who so decide so.

Beyond the advances and precedent setting of the Court, this case is immensely important for what it means. 20 years ago La Oroya was known as a lost case by authorities and even by many organizations. A process in which few people believed that the constant corporate impunity in Peru and in the region, would actually be broken. However, these dozens of people chose to seek justice. Most of them women, many moms and also fathers who, inspired by their love for their children, faced everything to protect them. Despite the pressures, the lack of information and the harsh circumstances.

With that determination and accompanied by AIDA, APRODEH and multiple organizations and individuals who provided fundamental scientific, legal, psychological, emotional and religious support, to travel a completely unexplored path towards justice. In addition to the unprecedented decision in the Inter-American System, they also inspired unprecedented decisions in the judicial and legislative branches in Peru.

For all these, congratulations to all those who participated in this long and important process, in which coordination was essential, a process of which I am grateful to have been a part. Deep gratitude for making possible what once seemed impossible. An important milestone today, inspiring many generations.

*Astrid Puentes is an independent consultant on climate change and human rights. With over 20 years of experience leading strategic litigation and advocacy towards climate justice.

Photo credits: Astrid Puentes