Thread by @JohnHKnox

This week, the Human Rights Committee (a treaty body overseeing the Int’l Covenant on Civil and Political Rights) issued Portillo Cáceres v Paraguay, its most important environmental decision yet. In this (lengthy) thread, I describe the case and explain why it’s a big deal. 1/20

The decision is the first one in which a treaty body has so clearly stated that a State’s failure to protect against environmental harm can violate its obligations to protect rights of life and of private/family life. It will be a precedent cited in many subsequent cases. 2/20

In addition to reviewing reports from every country that belongs to the ICCPR, the Committee also hears communications (complaints) from individuals and groups alleging violations by countries that have accepted its jurisdiction, and issues non-binding decisions. 3/20

Members of two families in Curuguaty, Paraguay, alleged that the application of pesticides to soy farms caused many to become ill, and one -- Rubén Portillo Cáceres – to die. (Here's the press release; the decision itself is only available in Spanish.) 4/ ohchr.org/EN/NewsEvents/…

The submitters brought an amparo in Paraguay, and the court agreed that the State had violated its obligations, including to protect their right to live in a healthy environment. The submitters told the Committee that, eight years later, the government still hadn’t complied. 5/20

Before the Human Rights Committee, the submitters argued that Paraguay had violated ICCPR articles 6 (right to life), 7 (prohibiting torture and cruel/inhuman/degrading treatment), and 17 (private and family life), by failing to adequately regulate the agro-toxicos. 6/20

Paraguay argued, among other things, the submission was inadmissible because the ICCPR doesn’t recognize environmental rights. But the submitters didn’t claim violation of a right to a healthy environment, but rather specific rights protected by the Covenant. (para. 6.3) 7/20

The Committee also rejected Paraguay’s argument that the submitters hadn’t connected the harm to the pesticides. Aldrin and Lindane, pesticides banned by domestic law, were found in their well water. Also, Paraguay failed to undertake an autopsy despite repeated requests. 8/20

The Committee recalled that the burden of proof doesn’t lie only with submitters. In cases where there's information available only to the State, the Committee may consider that the allegations are substantiated if the State doesn't refute them with evidence (para. 7.2). 9/20

With respect to the right to life, the Committee cited noted decisions from other international tribunals, including the Inter-American Court, the African Commission, and the European Court of Human Rights, holding that severe environmental harm can violate the right. 10/20

In this case, the Committee found that the massive fumigation of agro-toxicos constituted foreseeable threats to the life of the submitters, and the government’s failure to take effective action to address the threats violated article 6 of the ICCPR. (para 7.5) 11/20

Having found a violation of article 6, the Committee decided that it wasn’t necessary to examine whether there was a separate violation of article 7 (on torture and CID treatment). 12/20

The Committee did, however, go on to find a violation of article 17, on the basis of the State’s failure to protect against harm to farm animals, crops, water, and fish, which constitute elements of the submitters’ private, family and domestic life. (para. 7.7) 13/20

Finally, the Committee found a violation of ICCPR art. 2(3) (right to an effective remedy), based on Paraguay’s failure to conduct an effective and diligent investigation to the environmental contamination implicated in the death of Sr Portillo Cáceres. 14/20

The Committee stated that the State has an obligation to (a) conduct an investigation; (b) sanction all those responsible; (c) provide full reparation to the submitters for the harm suffered; and (d) adopt measures to prevent similar transgressions in the future. 15/20

So why is this decision so important? As the Committee itself recognizes, it isn’t breaking new substantive ground -- the links between environmental harm and the rights to life and to private/family life have long been established, esp. by the European Court. 16/20

But much of the caselaw in this field has been at the regional level. This body has near-universal jurisdiction. Its statement that States have obligations to protect against environmental harm that threatens human life has implications for all 173 ICCPR parties. 17/20

Although the Human Rights Committee’s decisions aren’t binding, it’s usually awkward and embarrassing for countries to ignore or discount them. And the decisions may be taken into account by other courts that do have binding authority. 18/20

Expect the Committee to raise environmental issues more and more in its country reviews – and expect more environmental cases to be submitted from individuals in the 116 states that have accepted its jurisdiction over individual complaints. 19/20

The next one in line may be the one brought in May by Torres Strait Islanders against Australia, arguing that its failure to take steps to address climate change violates their human rights. But there will undoubtedly be more to follow. 20/20
nytimes.com/2019/05/12/wor…

Well noted from Hélène Tigroudja of the Committee: "Hundreds of similar cases around the world could be submitted for our consideration. We deeply encourage States to protect the right to life understood as the right to enjoy a life with dignity against environmental pollution”.