Summary

In July 2004, a group of residents of the Matanza/Riachuelo basin filed a suit before the Supreme Court of Argentina against the national government, the Province of Buenos Aires, the City of Buenos Aires and 44 companies seeking compensation for damages resulting from pollution of the basin, stoppage of contaminating activities and remedy for collective environmental damage. In July 2008, the Court issued a decision in which it required the national government, the Province of Buenos Aires and the City of Buenos Aires to take measures to improve the residents’ quality of life, remedy the environmental damage and prevent future damage. The Court established an action plan requiring the government agency responsible for the Matanza/Riachuelo basin, ACUMARJ1], to fulfil specific measures, including: (a) producing and disseminating public information; (b) controlling industrial pollution; (c) cleaning up waste dumps; (d) expanding water supply, sewer and drainage works; (e) developing an emergency sanitation plan; and (f) adopting an international measurement

{Continued)

  • 84 Salman M.A. Salman and Siobhan McInerney-Lankford, 2004. The Human Right to Water: Legal and Policy Dimensions. Law, Justice, and Development; Washington, DC: World Bank, available at https://openknowledge.worldbank.org/bitstream/handle/10986/14893/ 302290PAPER0Human0right0to0H20.pdf?sequence=l&isAllowed=y 1 April 2020.
  • 85 J.M. Belisle, La causa Mendoza, in B. Olmos Giupponi (ed), Cambio Climático, Derechos Humanos y Medio Ambiente (Dike 2011).

system to assess compliance with the plans goals. In order to ensure adequate enforcement, the Court delegated the enforcement process to a federal court, Juzgado Federal de Primera Instancia de Quilmes, to monitor enforcement of the decision. Furthermore, the Court created a working group formed by the national Ombudsman and the NGOs[2] that had been involved in the case as non-litigant parties, seeking to strengthen and enable citizen participation in monitoring enforcement of the decision.

In its decision, the Court did not expressly adopt a human rights perspective. However, the Court stated that the action plan’s objective should be improving the residents’ quality of life and required specific sanitation programs to be adopted to meet the needs of the basin’s population. The wording of the decision leaves open the possibility of promoting the human rights issue in the execution stage. Furthermore, the NGOs, in their submissions as third parties to the case, held that in this case several economic, social and cultural rights are directly affected. The main affected right is the right to health, which covers basic health factors, including but not limited to access to clean and drinking water, to adequate sanitation conditions and to a healthy environment.

  • 15. (...) effective implementation requires a program (or action plan) that properly addresses the identified behaviour with technical precision, the identification of a subject who is obliged to comply with the decision, setting objective indicators to allow periodical monitoring over the outcomes, and ample participation in the monitoring.
  • 16. The River Basin Authority (...) is obliged to carry out the program, and will assume the responsibility for any non-compliance or delays in carrying out the goals set. The Authority must comprise representatives of the State, the province of Buenos Aires and the Autonomous City of Buenos Aires, who are responsible for the watershed under the obligations set in the Constitution and local and regional laws.
  • 17. The present ruling mandates that the River Basin Authority complete the following program:

Objectives

The program must simultaneously purse three objectives, as follows:

  • 1 Improving the quality of life of the river basin inhabitants;
  • 2 Environmental restoration of all river basin’s components (water, air, soil);
  • 3 The prevention of any foreseeable harm.

In order to determine the level of compliance of these objectives, the River Basin Authority must adopt one of the available international measurement systems and notify the relevant tribunal of the compliance with this decision within 90 working days. Failure to comply with this decision within the mandated period will result in the imposition of a daily fine.

Enforcement of the Decision and Outcomes-.

The Court ordered the government authorities found responsible to fulfill the objectives and schedules given in the decision. Throughout enforcement of the decision, the court in charge has sought ways to single out concrete actions and expand the said objectives, and ACUMAR, through the Plan de Saneamiento Integral submitted in February 2010, has expanded the objectives even more. In spite of such efforts, throughout this process the enforcement court has requested the Ombudsman to issue an opinion on the adequacy, quality and sufficiency of the measures established by ACUMAR. In the months following the sentence, the working group has stated that, although ACUMAR made efforts in 2010 to work towards fulfilling the terms of the decision, it has not yet wholly met any of the obligations set forth in the decision and in the plan established by ACUMAR. Therefore, there have been several requests for fines against responsible officials. The process has also included the establishment of indicators (http://www.acumar.gov.ar/pagina/204/indicadores-informes, 2011 and 2012), hearings, timetables and the responsibility of specific governmental authorities, in order for the enforcement court to define terms missing in the decision and to understand the stage of progress of certain individual measures.

Beyond enforcement, this decision changed the way politics are done in the basin by establishing that the authority in charge of executing the clean-up plan be ACUMAR, an inter-jurisdictional agency, whose function is to correct the issues of poor coordination among agencies and applicable regulations and to improve the oversight of polluting activities. Furthermore, the decision opened spaces for civil society participation in policymaking and monitoring processes. The working group is involved on a permanent basis in monitoring Supreme Court orders, replying to court requests and organizing meetings with grassroots organizations to promote and expand citizen awareness and to channel the concerns of the basin’s residents.

In 2016, the Supreme Court took note of implementation gaps relating to the 2008 decision and ordered the Basin Authority, ACUMAR, to create a detailed plan to comply with that ruling.

In a November 2016 hearing, petitioners had showed that the ACUMAR was not in compliance with the 2008 ruling. In response, the Court ordered ACUMAR to produce a report by March 1, 2017, detailing a compliance plan, including specific timetables for compliance; additionally, the Court obligated ACUMAR to issue periodic progress reports to monitor compliance. The 2016 decision recalled that the earlier ruling had ordered ACUMAR, the State of Argentina, the Buenos Aires Province and the City of Buenos Aires to implement a Comprehensive Plan for Environmental Rehabilitation (PISA). The PISA was to include three objectives: improving the quality of life for the river basin residents, the rehabilitation of the environment and the prevention of foreseeable harms.

The 2016 Court stressed that ACUMAR must comply with all of the PISA objectives and identified seven areas for special attention: (1) A system of effective control and inspection of industrial contamination must be developed; (2) ACUMAR must work with the City of Buenos Aires and the towns within that province to collect trash in the area, particularly around the banks of the river, to prevent open-air dumps; (3) ACUMAR needs to expand the availability to potable water and sewer services and track progress in creating sewer systems; (4) ACUMAR must comply with the Marco Convention regarding the relocation of at-risk towns and settlements, and the City of Buenos Aires should continue construction of the towpath to towns 21-24 and 26 and relocate the residents; (5) Buenos Aires, through ACUMAR, must provide an update on the housing complexes it committed to build for the relocation of residents of towns 21-24 and 26 and give a date when construction will finish; (6) ACUMAR must implement an effective public health plan, including preventative care, emergency care and continuing care to those suffering health problems in areas of the river basing that are vulnerable or experience high poverty. ACUMAR must give information detailing the number and geographic distribution of health problems related to contamination and how they are improving and report on the development progress of health care systems; (7) ACUMAR must develop a system of quality indices that comply with international standards to monitor environmental quality, particularly regarding the condition of surface water. With special attention to these priorities, the Court ordered the federal judges of the lower courts to intensify control over ACUMAR’s compliance with the PISA objectives.

Source: SAI J http://www.saij.gob.ar/corte-suprema-justicia-nacion-federal-ciudad-autonoma-buenos-aires-mendoza-beatriz-silvia-otros-estado-nacional-otros-danos-perjuicios-danos-derivados-contaminacion-ambiental-rio-matanza-riachuelo-fa08000047-2008-07-08/123456789-740-0008-0ots-eupmocsollaf Author’s translation

Pulp mills

Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ, Judgment of 20 April 2010

  • (1). The obligation to contribute to the optimum and rational utilization of the river (Article 1) 170-177 (2). The obligation to ensure that the management of the soil and woodland does not impair the regime of the river or the quality of its waters (Article 35) 178-180. (3). The obligation to co-ordinate measures to avoid changes in the ecological balance (Article 36) 181-189. (4). The obligation to prevent pollution and preserve the aquatic environment (Article 41).
  • 175. The Court considers that the attainment of optimum and rational utilization requires a balance between the Parties’ rights and needs to use the river for economic and commercial activities, on the one hand, and the obligation to protect it from any damage to the environment that may be caused by such activities, on the other hand. The need for this balance is reflected in various provisions of the 1975 Statute establishing rights and obligations for the Parties, such as Articles 27, 36, and 41. The Court will therefore assess the conduct of Uruguay in authorizing the construction and operation of the Orion (Botnia) mill in the light of those provisions of the 1975 Statute, and the rights and obligations prescribed therein.
  • 176. The Court has already addressed in paragraphs 84 to 93 above the role of CARU with respect to the procedural obligations laid down in the 1975 Statute. In addition to its role in that context, the functions of CARU relate to almost all aspects of the implementation of the substantive provisions of the 1975 Statute. Of particular relevance in the present case are its functions relating to rule-making in respect of conservation and preservation of living resources, the prevention of pollution and its monitoring, and the co-ordination of actions of the Parties. These functions will be examined by the Court in its analysis of the positions of the Parties with respect to the interpretation and application of Articles 36 and 41 of the 1975 Statute.
  • 177. Regarding Article 27, it is the view of the Court that its formulation reflects not only the need to reconcile the varied interests of riparian States in a transboundary context and in particular in the use of a shared natural resource, but also the need to strike a balance between the use of the waters and the protection of the river consistent with the objective of sustainable development. The Court has already dealt with the obligations arising from Articles 7 to 12 of the 1975 Statute which have to be observed, according to Article 27, by any party wishing to exercise its right to use the waters of the river for any of the purposes mentioned therein insofar as such use may be liable to affect the regime of the river or the quality of its waters. The Court wishes to add that such utilization could not be considered to be equitable and reasonable if the interests of the other riparian State in the shared resource and the environmental protection of the latter were not taken into account. Consequently, it is the opinion of the Court that Article 27 embodies this interconnectedness between equitable and reasonable utilization of a shared resource and the balance between economic development and environmental protection that is the essence of sustainable development.

WATER FRAMEWORK DIRECTIVE

Quality Standards

Article 4

Environmental objectives

1 In making operational the programmes of measures specified in the river basin management plans:

a for surface waters

i Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8;

ii Member States shall protect, enhance and restore all bodies of surface water, subject to the application of subparagraph (iii) for artificial and heavily modified bodies of water, with the aim of achieving good surface water status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;

iii Member States shall protect and enhance all artificial and heavily modified bodies of water, with the aim of achieving good ecological potential and good surface water chemical status at the latest 15 years from the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;

iv Member States shall implement the necessary measures in accordance with Article 16(1) and (8), with the aim of progressively reducing pollution from priority substances and ceasing or phasing out emissions, discharges and losses of priority hazardous substances

without prejudice to the relevant international agreements referred to in Article 1 for the parties concerned;

b for groundwater

i Member States shall implement the measures necessary to prevent or limit the input of pollutants into groundwater and to prevent the deterioration of the status of all bodies of groundwater, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8 of this Article and subject to the application of Article ll(3)(j);

ii Member States shall protect, enhance and restore all bodies of groundwater, ensure a balance between abstraction and recharge of groundwater, with the aim of achieving good groundwater status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8 of this Article and subject to the application of Article ll(3)(j);

iii Member States shall implement the measures necessary to reverse any significant and sustained upward trend in the concentration of any pollutant resulting from the impact of human activity in order progressively to reduce pollution of groundwater.

Measures to achieve trend reversal shall be implemented in accordance with paragraphs 2, 4 and 5 of Article 17, taking into account the applicable standards set out in relevant Community legislation, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8; (c) for protected areas

Member States shall achieve compliance with any standards and objectives at the latest 15 years after the date of entry into force of this Directive, unless otherwise specified in the Community legislation under which the individual protected areas have been established.

Source: European Union, https://eur-lex.europa.eu/eli/ dir/2000/60/oj

Judgment of the Court (First Chamber)

  • 3 October 2019
  • (Reference for a preliminary ruling — Environment — Directive 91/676/EEC — Protection of waters against pollution caused by nitrates from agricultural sources — Objective of reducing pollution — Waters affected by pollution — Maximum nitrate level of 50 mg/1 — Action programmes adopted by the Member States — Rights of individuals to have such a programme amended — Locus standi before the national authorities and courts)

Case C-197/18, Wasserleitungsverband Nördliches Burgenland and Others

Locus standi of individuals

  • 30 According to settled case-law of the Court, it would be incompatible with the binding effect conferred by Article 288 TFEU on a directive to exclude, in principle, the possibility that the obligations which it imposes may be relied on by the persons concerned (judgments of 19 January 1982, Becker, 8/81, EU:C:1982:7, paragraph 22; of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging, C 127/02, EU:C:2004:482, paragraph 66; and of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Urnweltorganisation, C 664/15, EU:C:2017:987, paragraph 34).
  • 31 In particular, where the EU legislature has, by directive, imposed on Member States the obligation to pursue a particular course of action, the effectiveness of such action would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of EU law in deciding whether the national legislature, in exercising the choice open to it as to the form and methods for implementation, has kept within the limits of its discretion set out therein (judgments of 24 October 1996, Kraaijeveld and Others, C 72/95, EU:C:1996:404, paragraph 56, and of 26 June 2019, Craeynest and Others, C 723/17, EU:C:2019:533, paragraph 34).
  • 32 It follows, as the Advocate General observed in point 41 of her Opinion, that at least the natural or legal persons directly concerned by an infringement of provisions of a directive must be in a position to require the competent authorities to observe such obligations, if necessary by pursuing their claims by judicial process.
  • 33 In addition, ‘where they meet the criteria, if any, laid down in [the] national law, members of the public’ have the rights provided for in Article 9(3) of the Aarhus Convention. That provision, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, imposes on Member States an obligation to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law (see, to that effect, judgment of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, C 664/15, EU:C:2017:987, paragraph 45).
  • 34 The right to bring proceedings set out in Article 9(3) of the Aarhus Convention would be deprived of all useful effect, and even of its very substance, if it had to be conceded that, by imposing those conditions, certain categories of ‘members of the public’, a fortiori ‘the public concerned’, such as environmental organisations that satisfy the requirements laid down in Article 2(5) of the Aarhus Convention, were to be denied of any right to bring proceedings (judgment of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, C 664/15, EU:C:2017:987, paragraph 46).
  • 35 In order to determine whether natural and legal persons such as the applicants in the main proceedings are directly concerned by an infringement of the obligations provided for in Directive 91/676, it is necessary to examine the purpose and the relevant provisions of that directive, the proper application of which is asserted before the referring court.
  • 36 The purpose of Article 1 of Directive 91/676 is to reduce water pollution caused or induced by nitrates from agricultural sources and to prevent further such pollution. To that end, Article 5 of that directive provides that, in accordance with the conditions which it lays down, Member States are to establish action programmes and, if necessary, adopt additional measures or reinforced actions.
  • 37 In accordance with Article 2(j) of that directive, ‘pollution’ is defined as the discharge, directly or indirectly, of nitrogen compounds from agricultural sources into the aquatic environment, the results of which are such as to cause hazards to human health, harm to living resources and to aquatic ecosystems, damage to amenities or interference with other legitimate uses of water.
  • 38 That concept is given specific expression in Article 3(1) of Directive 91/676 and, in particular, in Annex I A, point 2 to that directive, according to which Member States must at least consider that groundwaters are polluted if they contain more than 50 mg/1 nitrates or could be polluted if, in the absence of appropriate measures taken under Article 5 of that directive, those levels could be exceeded.
  • 39 Therefore, it follows from Article 2(j) and Article 3(1) of Directive 91/676 that nitrate levels in groundwater that exceed or could exceed 50 mg/1 must be considered to be such as to interfere with the legitimate use of water.
  • 40 It follows from the above that a natural or legal person having the option of drawing and using groundwater is directly concerned by that threshold being exceeded or the risk of it being exceeded, which is capable of limiting that person’s option by interfering with the legitimate use of that water.
  • 41 In view of the variety of uses referred to in Article 2(j) of Directive 91/676, the fact that values over that threshold do not, as such, involve a danger to the health of the persons wishing to bring an action is not capable of calling into question that conclusion.
  • 42 As regards in particular the situation of the applicants in the main proceedings, it is apparent from the order for reference that, pursuant to Paragraph 10 of the Law on water rights 1959, they are entitled to operate groundwater wells at their disposal for domestic or commercial needs.
  • 43 To the extent that the nitrate levels in the groundwaters in question exceed or could exceed 50 mg/1, the use of that water by the applicants in the main proceedings is interfered with.
  • 44 According to the order for reference, exceeding that threshold is such as to prevent them from being able to make normal use of the water from their wells or, at the very least, to force them to incur costs for its decontamination.
  • 45 Consequently, natural and legal persons such as those in the main proceedings are directly concerned by the failure to attain the main objective of Directive 91/676, laid down in Article 1 thereof, of reducing and preventing water pollution caused or induced by nitrates from agricultural sources as a result of the infringement of certain obligations of the Member States deriving from that directive.
  • 46 It follows that natural and legal persons, such as the applicants in the main proceedings, must be in a position to require national authorities to observe those obligations, if necessary by bringing an action before the competent courts.

On the extent of the obligation to reduce and prevent pollution

  • 47 As regards the obligations deriving from Directive 91/676, the referring court wishes to know, in particular, whether the maximum nitrate level of 50 mg/1 in groundwater, provided for in Annex I A, point 2 to that directive, is a deciding factor for obliging the competent national authorities to amend the action programmes they have adopted pursuant to Article 5(1) to (4) of that directive or to adopt additional measures, in accordance with Article 5(5) of that directive.
  • 48 In that regard, it must be recalled that, in accordance with the Court’s settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 7 February 2018, American Express, C 304/16, EU:C:2018:66, paragraph 54 and the case-law cited).
  • 49 As the Advocate General observed in point 55 of her Opinion, under Article 37 of the Charter of Fundamental Rights of the European Union, Article 3(3) TEU and Article 191(2) TFEU, EU policy on the environment aims at a high level of protection.
  • 50 It follows from paragraphs 36 to 39 of the present judgment that, by attaining its objective of reducing water pollution caused or induced by nitrates from agricultural sources and preventing any further such pollution, Directive 91/676 seeks to allow individuals to make legitimate use of water, which means that the nitrate level must not exceed 50 mg/1.
  • 51 As the Advocate General observed in points 72 and 73 of her Opinion, Directive 91/676 provides for specific instruments to combat water pollution by nitrates from agricultural sources. It applies where the discharge of nitrogen compounds of agricultural origin makes a significant contribution to the pollution (judgment of 29 April 1999, Standley and Others, C 293/97, EU:C:1999:215, paragraph 35). In that connection, it must be noted that the Court has previously held that such a contribution is significant where agriculture contributes, for instance, 17% of the total nitrogen in a specific basin (see, to that effect, judgment of 22 September 2005, Commission v Belgium, C 221/03, EU:C:2005:573, paragraph 86). If that condition for the application of Directive 91/676 is satisfied, it is for the Member States to determine, in accordance with Article 3(1) of that directive, the status of the waters within their territory.
  • 52 Where, pursuant to that latter provision, read in conjunction with Annex I A to Directive 91/676, water must be considered as being affected or capable of being affected, Member States are required to adopt the measures provided for in Article 5 of that directive, namely action programmes and, if necessary, additional measures and reinforced actions (see, to that effect, judgment of 21 June 2018, Commission v Germany, C 543/16, not published, EU:C:2018:481, paragraph 60).
  • 53 As regards action programmes, their implementation is inextricably linked to Article 3(1) of Directive 91/676, since, as long as the water is or could be polluted in the absence of appropriate action programmes adopted pursuant to Article 5(4) of that directive, Member States are obliged to adopt such action programmes. The measures contained therein are, in any event, broadly determined by Directive 91/676 itself, as is apparent from Article 5(4) thereof, read in conjunction with Annex III thereto.
  • 54 It is true that Member States have a certain latitude as regards the precise methods of implementing the requirements of Directive 91/676. However, they are, in all circumstances, obliged to ensure that the objectives of that directive, and consequently the objectives of European Union policy in the area of the environment, are achieved, in accordance with the requirements of Article 191(1) and (2) TFEU (judgment of 4 September 2014, Commission v France, C 237/12, EU:C:2014:2152, paragraph 30).
  • 55 It follows from Article 5(5) of that directive that Member States are required to take, in the framework of the action programmes, such additional measures or reinforced actions as they consider necessary if, at the outset or in the light of experience gained in implementing the action programmes, it becomes apparent that the measures referred to in Article 5(4) will not be sufficient to attain the objectives laid down in Article 1 of that directive.
  • 56 According to the case-law of the Court, it follows that the Member States must take such additional measures or reinforced actions at the point at which it first becomes clear they are necessary (see, to that effect, judgment of 21 June 2018, Commission v Germany, C 543/16, not published, EU:C:2018:481, paragraph 53 and the case-law cited).
  • 57 In order to fulfil the aforementioned obligation in particular, Member States are required to monitor the water status closely. Thus, in accordance with the first subparagraph of Article 5(6) of Directive 91/676, they are required to draw up and implement monitoring programmes.

Source: http://curia.europa.eu/juris/document/document.

jsPtext=&docid=218620&page!ndex=0&doclang=EN&mode=l-st&dir=&occ=first&part=l&cid=1286876

LATIN AMERICAN WATER TRIBUNAL

Decision

La Parota Dam

UN Committee on Economic, Social and Cultural Rights (CESCR), UN Committee on Economic, Social and Cultural Rights: Concluding Observations of the Mexico, 9 June 2006, E/C.12/MEX/CO/4

C. Factors and difficulties impeding the implementation of the Covenant

9. The Committee notes the absence of any major factors or difficulties impeding the effective implementation of the Covenant in the State party.

D. Principal subjects of concern

10. The Committee is concerned about reports that members of indigenous and local communities opposing the construction of the La Parota hydroelectric dam or other projects under the Plan Puebla-Panama are not properly consulted and are sometimes forcefully prevented from participating in local assemblies concerning the implementation of these projects. It is also concerned that the construction of the La Parota dam would cause the flooding of 17,000 hectares of land inhabited or cultivated by indigenous and local farming communities, that it would lead to environmental depletion and reportedly displace 25,000 people. It would also, according to the Latin American Water Tribunal, violate the communal land rights of the affected communities, as well as their economic, social and cultural rights.

Source: https://www.refworld.org/docid/ 45377fa20.html [accessed 24 May 2020]

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