The protection of the right to the environment in the Nuestra Tierra vs. Argentina: The activism of the Inter-American Court of Human Rights

Abstract

The purpose of this paper is to discuss whether the inclusion of the right to the environment as a judicial right constitutes a manifestation of uncontrolled activism by the Inter-American Court of Human Rights (CorteIDH) and whether this jeopardizes its legitimacy. There is no denying the positive aspects of expanding judicial rights in any legal system, but the question is if these positive aspects can be overridden by the rules that structure and establish the rules of jurisdiction of the bodies of that system. Ignoring procedural rules would not be a way to undermine the legitimacy of the system itself. This article begins by explaining the competences of the Inter-American Court, as provided for in the American Convention on Human Rights, including an analysis of OC-23/17, whereby the Inter-American Court declared the healthy environment to be a judicializable right. Following, the main points of the sentence in the Nuestra Tierra vs. Argentina are synthetically exposed and critically analyzed. Finally, the HDI Court's activism is discussed in an attempt to demonstrate the need for self-restraint as a way to avoid weakening its legitimacy.