Green Reparations at the Inter-American Court of Human Rights: The La Oroya Judgment

by | May 1, 2024

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About Juan Pablo Perez Leon Acevedo

Juan-Pablo Pérez-León-Acevedo is currently taking the DPhil in Law (international law) at the University of Oxford. He holds a DSocSci from Åbo Akademi (Finland), an LLM from Columbia University (USA), and an LLB from Catholic University of Peru. At Oxford, he is affiliated with the Bonavero Institute of Human Rights. He is additionally a human rights law lecturer at the Catholic University of Peru and in Åbo Akademi, a grader of master's degree theses at Oslo University, and a visiting professor (international law) at the Technological University of Peru.

The La Oroya judgment, delivered by the Inter-American Court of Human Rights (IACtHR) on 27 November 2023, but only published late March 2024, constitutes an important legal first in the Court’s reparations jurisprudence and beyond. Unlike the IACtHR’s previous environmental reparations jurisprudence, which concerned only indigenous communities (e.g., Saramaka, Lhaka Honhat), this is the first IACtHR’s case involving pollution affecting the inhabitants of a city: La Oroya.

La Oroya is located in the Peruvian Andes. Its environment and people’s health have suffered serious harm from pollution related to metallurgic activities for decades. This blog post, which partially updates a previous journal article of mine, examines the non-compensatory forms of reparation ordered by the IACtHR against Peru, namely, restitution, rehabilitation, satisfaction measures, and non-repetition guarantees. While it acknowledges the IACtHR’s important contributions to reparations for serious environmental damages, it also adopts a critical stance by identifying some deficits in the reparations granted.

Concerning restitution [329-334], the IACtHR ordered Peru to conduct a study to determine the air, soil, and water pollution levels, including a plan to redress environmental damages, based on up-to-date scientific information, caused by heavy metal pollution. Despite the merits of these measures, the IACtHR did not explicitly ask the state to bring back or at least try to restore the situation prior to pollution. Whether this is feasible has to be determined at a later stage, namely, during the implementation stage of the reparations awarded. Yet, the Court should have ordered such an obligation of result as a jurisprudential/normative standard rather than measures that are seemingly obligations of conduct (primarily ‘best efforts’) for Peru.

Regarding rehabilitation [335-338], the Court ordered Peru to provide free, timely, and effective healthcare (medical and psychological or psychiatric treatment) to victims affected by pollution, prioritising children and the elderly. Although these measures are necessary and sound, a major weakness is that the state is instructed to provide such healthcare exclusively through the public healthcare system. Considering the important qualitative differences between private and public healthcare in a developing country such as Peru, the Court should have explicitly mentioned that, if needed or urgent, private healthcare for victims should also be covered by the state.

As to satisfaction measures [339-341], the IACtHR ordered Peru to publish a summary of the judgment in the official gazette and a major Peruvian newspaper; to publish the full judgment on the webpages of the Ministries of Mines or Energy, Health, and Environment; to issue an informative leaflet about the judgment tailored to minors; to disseminate the judgment through the said ministries’ social media networks; and to offer the state’s apologies in a public ceremony in La Oroya, recognizing its international responsibility for human rights violations. In addition these undoubtedly relevant measures, the Court should have expressly recommended that representatives of the polluting private mining companies also apologise. Additionally, the IACtHR – as it has done in other cases (e.g., Plan de Sanchez Massacre), consistently with the UN Reparations Principles – could have ordered Peru to build a monument or memorial in La Oroya to remember the serious damage caused to the environment and local inhabitants; and to proceed with judicial or administrative sanctions against liable individuals.

Concerning non-repetition guarantees [342-355], the IACtHR ordered Peru to harmonise the legislation on air quality standards, keeping levels of polluting metals within the maximum allowed in order to avoid jeopardising the environment and human health; to organize La Oroya’s alert and air quality monitoring; to guarantee that La Oroya’s inhabitants suffering from exposure to pollutants can access healthcare at public institutions; to guarantee that La Oroya mining-metallurgic activities are consistent with international environmental standards; to train state agents on environmental matters; and to set up an information system on air and water quality in Peruvian mining-metallurgic zones. Although these measures correspond to key non-repetition guarantees, the IACtHR could have ordered additional suitable non-repetition guarantees. Under its own reparations jurisprudence (e.g., Saramaka, Lhaka Honhat) and/or the UN Reparations Principles, these could have included mechanisms for preventing, monitoring and resolving social conflicts that usually occur in mining-metallurgic areas, plus further legislative review and reform on environmental and related issues.

Therefore, while the IACtHR’s La Oroya judgment marks an important legal first in reparations for environmental damages, attention should also be drawn to what the Court could and should have additionally ordered. Yet, it should be also acknowledged that over-ambitious reparation awards against states can be counterproductive: states may become reluctant to implement the IACtHR’s judgments. In any event, the IACtHR could have engaged with the recent African Court of Human and Peoples’ Rights’ reparation jurisprudence (see the LIDHO case), which discussed forms of reparation involving pollution. In this way, the IACtHR could benefit from and contribute towards potential and meaningful judicial cross-fertilisation in order to better redress serious harm inflicted on the environment and on entire populations.

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