Symposium: Climate Justice in International Courts: Working Towards a Livable Future
The Inter-American Court of Human Rights and the Climate Emergency
by José Daniel Rodríguez Orúe
Published on 3 August 2023
Introduction
On 9 January 2023, Chile and Colombia requested an advisory opinion on human rights and the climate emergency from the Inter-American Court of Human Rights (IACtHR). Such a request was only possible due to the strong legal activism of the Center for Justice and International Law which effectively brought this legal avenue to the attention of both States. The request joins historic momentum at the international level, where States are seeking legal clarity on their obligations to tackle climate change from the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS).
Aware of the profound impact that climate change has on human rights, the international community has recognised that in any action related to the fight against this phenomenon, human rights must be respected. Similarly, the preamble of the Paris Agreement provides that, in adopting measures to address climate change, Parties shall respect, promote and consider their obligations relating to human rights. Despite these formal statements, the there is little clarity on how States must comply with human rights obligations in the face of the climate emergency.
Currently, human rights law and international climate law seem to be separate due to apparent fragmentation of public international law. In this sense, the advisory opinion request before the IACtHR presents a unique opportunity for a regional human rights tribunal to elaborate comprehensively and systematically on the interpretation of existing human rights norms and apply them to the climate sphere, thus rendering a human rights framework applicable to the Inter-American human rights system. Although not a generalist court, when answering an advisory opinion request, the IACtHR often analyses the whole corpus iuris of international law relevant to the specific human rights issue. For example in its advisory opinion on the rights of the child, it ‘provided content’ for Article 19 of the American Convention from relevant provisions of the Convention on the Rights of the Child.
This blog will provide an overview of the IACtHR’s advisory jurisdiction, the content and scope of the advisory request, and will also present several potential implications of a future advisory opinion.
The IACtHR’s advisory jurisdiction and the questions raised in the request
Due to its non-contentious nature and expeditious proceedings, the submission of a request for an advisory opinion on climate change and human rights is the most strategic avenue for the Court to clarify the application of human rights law to climate change. Indeed, the Court will have an opportunity to build the scope of its standards developed in its previous AO-23/17 on human rights and the environment, apply them to the specific issue of climate change, and clarify the obligations of Organization of American States’ member-States to combat it.
The request posed by Colombia and Chile raises questions on: (1) State obligations derived from general duties to prevent human rights violations and guarantee human rights in relation to the climate emergency; (2) State obligations to preserve the right to life in the face of the climate emergency; (3) the differential obligations of States with respect to the rights of children and future generations; (4) State obligations arising from consultation and judicial proceedings given the climate emergency; (5) the conventional obligations of protection and prevention for environmental and territorial defenders, as well as women, indigenous peoples and Afro-descendant communities in the context of the climate emergency; and, (6) the principles States and international organisations, collectively and regionally, should take into account in analysing the shared but differentiated responsibilities in the face of climate change from a human rights and intersectionality perspective.
The next section, analyses how the advisory opinion is an opportunity for the Court to cement its jurisprudence on the principle of progressive realisation of economic, social, cultural, and environmental rights, as well as the importance of intersectional and differentiated approaches when tackling climate change.
A call to integrate specific human rights standards to the regional response to climate change
In its Advisory Opinion on People Deprived of Liberty, the Court applied a ‘differentiated approach’ when determining the specific human rights obligations of States to protect various groups deprived of liberty, such as pregnant women, the elderly and indigenous peoples on the basis of the differentiated impact that deprivation of liberty had on their rights. Moreover, the Court has relied on the analysis of the intersectionality of human rights violations resulting from discrimination, acknowledging that quite often, people that suffer several forms of structural discrimination are comparatively more vulnerable to suffer human rights violations than those who are not.
This is especially relevant when addressing climate change impacts and reparations for such impacts, given that climate change disproportionately affects several persons and communities. In the Americas, for example, climate change disproportionately affects women environmental defenders and indigenous peoples. Therefore, integrating a differentiated approach and analysing the intersectionality of human rights violations arising from climate change will be a relevant issue that the Court will undoubtedly analyse by answering the questions posed by Colombia and Chile.
Climate change also widens and deepens existing inequalities within States, and will be a driving force of poverty, resource scarcity and conflict in the coming decades. In this regard, the IACtHR has emphasised that the progressive realisation of economic, social, cultural and environmental rights (ESCER) must be understood under the logic of progress, whereby effective improvements must be pursued in the conditions for enjoyment and exercise of these rights. This means correcting social inequalities and facilitating the inclusion of vulnerable groups. The Court has ruled, in the case of Cuscul Pivaral et al. v. Guatemala that ‘the obligation of progressive realisation prohibits the State’s inactivity in implementing actions to achieve the integral protection of rights, especially in those areas where the total absence of state protection places people at imminent risk of harm to their life or personal integrity.’ In such cases, the obligation of progressive realisation of ESCER is not ful1lled
when the State lacks public policies that de facto—not only de jure—allow it to make progress in fulfilling its obligation to achieve the full effectiveness of the right. Regarding progressivity in climate action, the Paris Agreement is clear in stating that nationally determined contributions to address climate change must represent a progression from a State’s past contributions, reflecting ‘the highest possible ambition’ of that Party.
From progression arises a logical duty of non-regression. This means that States must mobilise their resources to adopt measures that are effective for the gradual achievement of full guarantees of ESCER. A regression in the degree of protection of these rights may constitute a violation of this obligation. In the context of the climate emergency, we have warned that non-regression in climate action has important consequences for ensuring intergenerational equity. Thus, it has been argued that regressive climate action means that future generations will face more severe restrictions on the enjoyment of their human rights. For example, in Neubauer et. al. v. Germany, the German Federal Court ruled that the State must set its emission reductions taking into account the long-term impact that such a reduction may have on the rights of future generations. Thus, an unambitious reduction would imply, in the future, a disproportionate restriction of the rights of the German population compared to the restrictions imposed on the rights of present generations. Therefore, when analysing the proportionality, suitability and necessity of such regression, it is necessary to weigh the effects of the regressive measure on the rights of future generations.
Therefore, the advisory opinion is also an opportunity for the Court to relate the principles of progressiveness and non-regression to State’s level of ambition both in regard to mitigation and adaptation measures, and clarify the content of the principle of intergenerational equity.
A Court of the people: an opportunity to influence the causeway of human rights law
The advisory proceedings before the IACtHR are the most participative of all international tribunals. According to its rules of procedure, any person, organisation or State, may present amici curiae before the Court. Submissions are often submitted by NGOs, UN Special Procedures Mandate Holders, international organisations, States, affected groups and academics. Such submissions are very often considered by the Court and those that present them are also invited to participate in a public hearing.
It is crucial for the Court to receive not only legal and scientific information to make the most informed decision on its answer to the request, but also to hear stories of impact of those most affected by climate change. In the past, the Court has looked at testimonies of young people with parents deprived of liberty, and their views were influential in shaping the Court’s standards on the matter.
Youth has a special role in shaping the Inter-American human rights standards on climate change and human rights. For example, we have the chance to ask the Court to clarify which obligations States have to ensure access to justice and public participation for children and youth, who are often left out of political discussions due to age and, therefore, lack political representation. In this matter, the Committee on the Rights of the Child has highlighted the good practice of intergenerational policy-making councils.
As the climate crisis disproportionately affects several populations and States, the advisory proceedings present an unmissable opportunity for individuals and civil society from Latin America and the whole world to join voices and shape the course of legal history.
Conclusion
The request for an advisory opinion presented by Chile and Colombia to the IACtHR presents a unique opportunity for a regional human rights tribunal to provide a comprehensive and systematic interpretation of existing human rights norms and apply them to the climate emergency.
Through its advisory jurisdiction, the Court can shed light on the application of human rights law to the obligations and consequences arising from climate change, and develop important standards for States to protect human rights. The answers to the questions have significant implications for establishing specific human rights standards that may guide a regional response to climate change.
It is very likely, due to being requested before and in light of the nature of their own proceedings, that both the IACtHR and ITLOS advisory opinions will antecede the advisory opinion of the ICJ. Therefore, the World Court will have a crucial opportunity to provide a systematic and comprehensive interpretation of public international law, drawing from the advisory opinions of both international tribunals, as subsidiary means for determining rules of law, when referring to human rights obligations and the law of the sea, respectively.
José Daniel Rodríguez Orúe is a lawyer from Costa Rica, with a background in international human rights law. He has carried out legal research on the regional and international standards applicable to human rights violations arising from climate change. He holds an LLB with a mention in Environmental Law from the University of Costa Rica, and for the past five years, he has worked as a Legal Assistant at the Inter-American Court of Human Rights.
José is a member of the Academic Taskforce at World’s Youth for Climate Justice (WYCJ) – a global youth-led movement campaigning to seek an Advisory Opinion from the World’s Highest Court on the issue of climate change and human rights. He is the coordinator of the WYCJ’s Latin-American front.