La Oroya is a town in the department of Junín located in the central Sierra of Peru. Since the 1920s, a mining and metallurgical complex has been installed there, extracting copper and more recently lead and zinc. The metallurgical industry is the main source of employment for the 18,000 inhabitants of the area and also the largest source of air pollution due to the emission of gases and particles that it throws into the environment. The pollution level is so high that in 2006 it was declared one of the 10 most polluted cities in the world. This pollution has affected the physical and mental health of its inhabitants, particularly children and vulnerable people.

Some weeks ago, the Inter-American Court of Human Rights held the Peruvian State responsible for violating the rights to a healthy environment, health, life, a dignified life, and the rights of children, among others. This case stands out as the first in the Inter-American System to analyze air quality issues and to develop the obligations of states in relation to air pollution. Although there are many aspects that can be highlighted from this ruling and that have been pointed out in other blogs, we will focus on three key points for the litigation of cases affecting public health in the Latin American context.

First, it advances in specifying the concrete obligations states have in terms of preventing environmental damage and air quality. The Court points out that states have the duty to guarantee the human right to a healthy environment and that, as a result of this obligation, comes the duty to prevent the state itself or other agents (mining industries, transportation, etc.) from contaminating it. The Court invokes the “principle of prevention of environmental damage” to indicate that they have an obligation to take necessary measures and use all available means at their disposal to prevent activities within their jurisdiction from causing significant environmental damage, and this must be done in accordance with a “due diligence” standard. This due diligence standard is specified for the State in three duties: the duty to regulate, i.e., to issue regulations that establish sufficient standards to avoid contamination by third parties; the duty to supervise, i.e., to ensure that all public or private agents comply with these standards and, finally, the duty to punish, i.e., to prosecute and punish those who do not comply with these norms.

The Court also notes that the right to a healthy environment implies a “right to breathe clean air,” a phrase already important for activism on this issue. Furthermore, it details the obligations derived from this maintaining that states are obliged to “a) establish laws, regulations, and policies that regulate air quality standards that do not pose health risks; b) monitor air quality and inform the population of potential health risks; c) carry out action plans to control air quality that include identifying the main sources of air pollution, and implement measures to enforce air quality standards.”

These regulatory obligations in environmental prevention and air quality are key for implementation in Latin America, especially when many cities lack standards that indicate the maximum allowed levels of particulate matter or other toxic agents in the air. In some cases, the rules are so flexible that they allow non-compliance with the standards established by the World Health Organization (WHO). In Colombia, as shown by this research by Santacoloma and others published by Dejusticia (p.45), the Ministry of Environment and Sustainable Development’s regulation (Resolution 2254 of 2017) sets standards two to four times higher than the WHO guidelines.

Second, the case advances in the standard of responsibility applicable to companies whose activities affect the environment and human rights. The Court held that companies should also act with the necessary due diligence to prevent their activities from causing violations of human rights or the environment. The Court indicates that States must adopt measures aimed at ensuring companies have a) appropriate policies for the protection of human rights; b) due diligence processes for identifying, preventing and correcting human rights violations and the protection of dignified work and c) processes that allow companies to remedy violations committed.

This standard is very important considering that laws on corporate due diligence are currently being discussed in several Latin American countries, which should at least include these criteria in terms of environmental protection, dignified work, and human rights.

Third, the case is an advance in the way violations of the right to health are recognized and considered proven, particularly in situations affecting public health but whose demonstration is complex and multifactorial. The Court recognizes the issue of air quality not only as an environmental problem but also as a serious public health problem. Consequently, the Court also declares the violation of the right to health of the children of the community who were exposed to pollution.

To make this assertion, the Court also advances in the application of the standard of proof. It indicates that, contrary to what the State and other similar cases claimed, in certain scenarios it is not necessary to demonstrate that there is a direct causal link between the diseases acquired and their exposure to pollutants to determine the violation of the right to health. For the Court, it will not be necessary to demonstrate such a link as long as three circumstances concur: i) it is proven that environmental pollution is a significant risk to people’s health; ii) people were exposed to such pollution; and iii) the State is responsible for failing to fulfill its duty to prevent such pollution.

This change in the standard of proof, from one based on the “direct causal link” to one requiring “exposure to a significant risk,” can be of great help  in demonstrating how exposure to other products or toxins (i.e. asbestos, glyphosate, ultra-processed edible or drinkable products, etc.) can pose a risk to health. In other similar cases, proving that exposure to a certain product or toxin was the direct cause of a disease became almost impossible to fulfill, since, in these types of situations, diseases can have multicausal origins and information sufficient to rigorously demonstrate exposure to a contaminating agent is often not available throughout the course of the disease.

The case of La Oroya thus marks a milestone that must be taken into account in other cases. From Dejusticia, we congratulate the community of La Oroya, the colleagues from AIDA and all those who intervened in the litigation of this case, which we supported through an amicus built together with the ESCR-Net.