Symposium: Climate Change in an Unequal World: Does International Law Matter?

The Configurations of Latin American Climate Law

by Juan Auz[1]

Published on 19 September 2022

  1. Law and Climate Vulnerability in Latin America: An Introduction

Alongside the contingencies of human spatial settlement, the law co-creates and perpetuates vulnerability. As a social technology, law dictates the allocation of property rights and financial resources amongst and within specific communities. In Latin America, the law has therefore played a substantial role in obstructing impoverished and racialised populations from benefiting from such material and rights distribution. In the context of the climate crisis, such asymmetry has prompted an infrastructure deficit that renders these communities more vulnerable to disasters. According to the IPCC, low-income populations in the region are far more likely to be at risk from climate-related impacts, especially those that rely upon climate-sensitive resources like forests, crops, fisheries, and aquaculture. Although several Latin American countries have adopted climate adaptation policies, these have not been fully integrated within a broader vision of poverty alleviation and financial redistribution. To make matters even more complex, Latin America and the Caribbean contribute less than 10% of total greenhouse gas (GHG) emissions and less than 8 % of global excess material use, raising questions about the region’s degree of responsibility for tackling the ecological crisis.

Against this backdrop, I will explain how this complexity is captured in Latin American climate law. This post argues that Latin American climate law configures itself from an axis of common objectives and modes of operation. Still, under closer inspection, significant differences emerge due to geo-political contingencies. I assume that a creature such as ‘climate law’ is constantly moving across levels of governance, from the halls of international climate negotiations to a judge’s word document in Bogotá. Considering all this, the reader is warned that this post, just like the crumbling roads in the melting Andes, will be rather bumpy. 

  1. Latin America in the Making of the International Climate Regime

Since the early 1990s, Latin American countries have been actively involved in international climate negotiations by maintaining the position that, on the one hand, they are among the most vulnerable to climate change, and on the other, they possess abundant carbon sinks and renewable energy potential. They have thus played a vital role in implementing the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, the Paris Agreement and COP decisions, especially since several UNFCCC COP meetings have taken place in Latin American countries. As a result, these countries have been at the forefront of efforts to secure fair and equitable climate decisions that reflect the principles of common but differentiated responsibilities and respective capabilities. In this regard, they have worked to ensure that the needs and concerns of developing countries are considered in the negotiation process. The region has also been a strong advocate for the inclusion of human rights in the preamble of the Paris Agreement, the protection of vulnerable populations in climate action, and the integration of the concept of loss and damage in the Paris Agreement.

Despite a general pattern of common interests in climate negotiations, Latin American countries have expressed their national concerns individually or via coalitions, resulting in heterogeneous diplomatic goals. For instance, Latin American countries that in the 2010s shared a progressive political leaning, like Venezuela, Bolivia, and Ecuador, coalesced in the ALBA to submit anti-imperialist and non-market-based proposals at the negotiations. Contrarily, non-ALBA countries united in AILAC generally supported market-based mitigation approaches. These somewhat contrasting positions have generated tensions between and within these countries. A well-known site for such pressures is the REDD+ mechanism. Proposed by Costa Rica in 2005 in the context of the UNFCCC, the REDD+ aims at reducing emissions using forests as carbon sinks. This mechanism, crystallised in Article 5.2 of the Paris Agreement, has been defended internationally by some forest-rich countries like Peru and Brazil while criticised by countries like Bolivia because it monetises Mother Earth. Several indigenous organisations and NGOs have also agreed with the latter critique, saying that policies like the REDD+ limit the ancestral usage of forests, so the Global North keeps polluting.   

Nevertheless, international positions in climate negotiations do not always reflect domestic state behaviour, especially in countries that deem themselves more progressive. Selected former ALBA countries, for instance, positioned themselves internationally as ecologically sensible, whilst domestically they passed pro-extractivist laws that undermine vital ecosystems and violate the rights of local populations. The same was true for Brazil before the government of Bolsonaro, whose positions at home and abroad moved towards convergence. His administration has dismantled policies and funds for Amazon forests protection whilst proposing, in international climate negotiations, procedures that would distort the integrity of cooperative mechanisms as defined in Article 6 of the Paris Agreement.

  1. The Latin American Responses to International Climate Law

The UNFCCC sets rights and responsibilities according to its Parties’ economic development. All Latin American and Caribbean countries are Non-Annex I Parties, meaning they are not the ones to bear the heavier climate action burden. The same rationale applied to the Kyoto Protocol, which included a Clean Development Mechanism (CDM), so industrialised countries offset their GHG emissions in developing countries. Almost all Latin American countries registered CDM projects, an endeavour that required national legislation to accommodate them. The CDM project’s approach ended with the Paris Agreement, a diplomatic milestone ratified by all of Latin America. For the first time, an international treaty binds its Parties to keep a global temperature below 2˚C and ideally to 1.5˚C, implying novel obligations. Articles 3 and 4 of the Paris Agreement require each Party to prepare, communicate and maintain successive nationally determined contributions (NDCs), which all Latin American countries have complied with. However, the quality or ambition of every NDC in Latin America is contingent on various factors, more importantly, the national political context, economic opportunism, and risk aversion. Overall, climate pledges in most of these countries are still highly insufficient.

Arguably, concern for unambitious climate action has spread into the regional sphere through human rights. For instance, the Inter-American Human Rights System, composed of a Court and a Commission, now embraces environmental and climate dimensions. By exercising its contentious and advisory functions, the Inter-American System has expanded its understanding of human rights obligations to apply to transboundary ecological issues, including climate change. For instance, Advisory Opinion 23/17 and the Lhaka Honhat v. Argentina case encapsulate the Inter-American Court’s position to declare the right to a healthy environment as binding despite not being recognised in the American Convention on Human Rights. Additionally, the Inter-American Commission has recently issued a resolution dedicated to the climate crisis. Among others, it includes an obligation to prevent transboundary environmental harm through implementing GHG emission mitigation targets according to the Paris Agreement’s global temperature thresholds. These normative outputs are instrumental because they could sometimes have constitutional authority, which is why individuals and groups use them in domestic and international climate litigation.

Another noteworthy regional normative development is the Escazú Agreement. This treaty, ratified by thirteen Latin American and Caribbean countries, guarantees the full and effective implementation of environmental procedural rights. These include the rights of access to information, public participation, and access to justice in environmental matters. It also provides for the protection of the intergenerational right to a healthy environment and the protection of environmental defenders. These rights catalogue is now part of the normative map of a region with severe state capacity deficiencies. In that context, the risk of hampering environmental and civic engagement in procedural climate justice is significant. The Escazú Agreement is thus called to reduce such risk by reviewing current inadequate domestic legislation. Structural compliance barriers aside, Escazú could contribute to replacing law that hinders access to GHG inventories, expels indigenous people when their territories are converted into carbon sinks, and denies justice to environmental defenders at risk who stand against a hydroelectric project. 

  1. Conclusion: The Transition Curse?

Latin America’s climate law is shaped by a slow interactional process involving multi-level competing interests. The process is influenced by, among other things, the region’s historical and material conditions, national political interests, cooperation opportunities, and transnational coalitions. States seemingly share the broad strokes of vulnerability-centred climate action but widely differ in their national approaches. Civil society, including indigenous peoples’ organisations, demands more ambitious climate legislation and its implementation, frequently using litigation as a mobilisation strategy. The reticence to delivering mitigation promises might lie in Latin America’s need to address its economic recession, which tends to be tackled with carbon-intensive activities.

Some political ecologists claim that the abundance of natural resources is a curse to Latin America because of the perennial incentive for their exploitation. As the Global North transitions to a cleaner energy future, Latin America will provide critical minerals like lithium to power it, thereby rehashing the curse. In its present configuration, Latin American climate law will be used to mediate this new facet of extractivism, either through the moral imperative for an energy transition or through fragmented regulations that neglect environmental impacts beyond the climate. Suppose Latin American climate law aims to break the colonial-originated natural resource curse and heal the root causes of vulnerability. In that case, the climate legal corpus should be designed to embrace the interdependence of natural and human systems as a shared horizon. Without this principle at the core, Latin American climate law will be nothing but a spell that prolongs the curse.

[1] Ecuadorian lawyer and PhD researcher at the Hertie School’s Centre for Fundamental Rights. Former Alexander von Humboldt Fellow at the Potsdam Institute for Climate Impact Research (PIK).