O meio ambiente na jurisprudência da Corte Interamericana de Direitos Humanos: de sua proteção conexa aos direitos da natureza

Abstract

This research, of an exploratory and descriptive nature, aims to study the possibility for the Inter-American Court of Human Rights to consider that the rights of nature are protected in the American Convention on Human Rights. To this end, from a historical-evolutionary approach, and using bibliographic and documentary research methods, the protection of the natural environment in the jurisprudence of that jurisdiction is analysed, based on a division into three periods: the past, which goes from the first cases with environmental dimensions until the Advisory Opinion 23/17, drawn up on the 15th of November 2017; the present, which begins with the referred Opinion and continues to this day, and which corresponds to the current approach of American judges to environmental issues; finally, the future, exploring in the light of this historical trajectory the feasibility of the enshrinement of the rights of nature. The result of this study reveals a progressive disconnection of the protection of the environment in relation to human beings, with a change in the Court's reasoning over the years. If in the first phase analysed the Inter-American Court adopted a markedly anthropocentric perspective, protecting the environment only to the extent that its destruction generated impacts on certain human beings, nowadays a new approach to the environmental issue is emerging, biocentric, organized around the right to a healthy environment and based on the recognition of the intrinsic value of non-human living entities. This change was put into the context of the construction of an Ius Constitutionale Commune in Latin America in ecological matters, characterized by the multiplication in the region's countries of cases where rights are recognised to components of nature such as rivers, forests, or even to non-human animals considered individually. In these circumstances, and in view of the characteristics of the right to a healthy environment, as well as the techniques used by the Inter-American Court to include new rights in the American Convention, and the evolution of the interpretation of the rules relating to the status of alleged victim and victim, it is argued that the judges of the Inter-American Court find themselves in the position of including the rights of nature in article 26 of the aforementioned treaty.