O DIREITO AO AMBIENTE NA CORTE INTERAMERICANA DE DIREITOS HUMANOS: UMA ANÁLISE DA OPINIÃO CONSULTIVA N. 23/17

Abstract

There is no doubt about the international recognition of a human right to the environment, both hard or soft law norms. Even though this right has been affirmed by the 1988 San Salvador Protocol, it cannot be opposed to the Inter-American Human Rights Court, as states article 19.6 of the mentioned Protocol. This situation is changed by the Consultive Opinion n. 23/17, where the Court recognizes positive and negative obligations that arise from the human right to the environment. These obligations represent the search for this right’s effectiveness, by allowing in practical terms, its opposability in Court, but also drive it towards the jus cogens (mandatory) international norms. In this way, the present research aims at identifying the connexion between prevention instruments and the right to the environment, what is done from the Consultive Opinion elaborated by the Inter-American Human Rights Court (IAHRC) in November 2017, following a solicitation from Colombia. Some International Court of Justice’s (ICJ) decisions are analyzed within the same frame, as they “paved the way” for the IAHRC’s opinion. The investigation aims, from this view, at demonstrating how these international jurisdictions, especially the Inter-American Human Rights Court, allow the recognition of the opposability of the right to the environment - which is affirmed regionally by article 11 of the San Salvador Protocol (BRASIL, 1999) - but also for the inscription of the fundamental right to the environment among the jus cogens international norms.