Summary
In January 2023, the Republic of Chile and the Republic of Colombia requested an advisory opinion from the Inter-American Court of Human Rights (the “Court”) to understand the obligations that States within the Organization of American States (“OAS”) have to respond to climate change as an emergency under international human rights law. In their advisory opinion, the Court analyzed the interpretation and scope of the American Convention on Human Rights, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights “Protocol of San Salvador,” and the American Declaration of the Rights and Duties of Man. The Court also relied on reports from the Intergovernmental Panel on Climate Change.
The Court addressed the necessary extent of State obligations to protect the rights of their people, including the measures necessary to do so, on three topics: substantive rights, procedural rights, and the ability to exercise those rights without discrimination by vulnerable groups. Additionally, the Court analyzed the connection between climate change and human rights law.
The Court explained that the environmental impacts of climate change include rises in harmful global temperatures and weather phenomena, ocean level rise and acidification, cryosphere (sections of the Earth that are covered by a frozen layer of ice) deterioration, extinctions and ecosystem damage. For humans, climate-related deaths, diseases, infrastructure and cultural destruction, increases in poverty and food insecurity, and threats to democracy were shown to be tied to climate change.
The Court mentioned many global human rights organizations who have acknowledged climate change, such as the Human Rights Committee, the Committee on Economic, Social, and Cultural Rights, the International Labour Organization, the World Trade Organization, the International Monetary Fund, and the World Bank. The Court also went over the current international legal framework on environmental protection and climate change, mentioning various resolutions by the Inter-American Commission on Human Rights and the United Nations General Assembly that recognize the connection between human rights protection, climate action, and environmental protection. Commitments made by States through the United Nations Framework Convention on Climate Change, the Kyoto Protocol, and the Paris Agreement were shown to be more than voluntary obligations.
The Court stated that many OAS States’ constitutions refer to the right to a healthy environment, and that many have also adopted climate-change-specific laws and agendas. It also mentioned that litigation involving climate-related issues has been increasing around the world, particularly following the Paris Agreement, an international climate accord. The Court concluded their introductory analysis by finding that there is an international climate emergency that is threatening human life, particularly vulnerable populations, with severe impacts in Latin America and the Caribbean because of their exposure to climate-related phenomena and societal inequalities.
In order to combat the climate crisis within the OAS, the Court stated that all mitigation and adaptation approaches needed to be human-rights-centered and consider sustainable development. Before even considering the substantive, procedural, and equal exercise rights, the Court found that the OAS States have obligations regarding the climate crisis generally; these obligations are both to their individual State citizens and the citizens of other OAS States if their rights are infringed by a State’s actions. In accordance with the various international commitments the States are signatories to, the Court stated that there are State obligations to not simply respect the ensured rights, but to guarantee the rights by (a) adopting domestic legislative provisions that provide guidance on how to address climate change, (b) creating progressive development of economic, social, cultural, and environmental rights by allocating the necessary resources to vulnerable communities to protect themselves, (c) preventing any risks that stem from the climate crisis and any that may harm the measures needed to protect human rights amidst the climate crisis (d) exercising enhanced due diligence through science- and human-rights-informed evaluation, implementation, and supervision of the measures, and (e) cooperating with the international community in order to further common climate objectives and find collective solutions.
Moving to their major topics of analysis, the Court began with substantive rights (e.g. human rights to life, health, property, etc.); the Court categorized them as especially susceptible to the negative impacts of environmental degradation. The Court highlighted the right to a healthy environment, referencing the natural elements and the ecosystems that support human life, which is crucial because of the implications for both current and future generations. Within the right to a healthy environment, the right to a healthy climate was also emphasized as a precursor to individuals’ other human rights. The right to a healthy climate protects the climate system, a component of the environment that is directly damaged by the climate crisis. The Court also found that environmental damage created by States is a violation of the jus cogens, peremptory norms, of international law.
The Court stated that “Nature” needs to be recognized as its own subject of rights, like humans, since treating Nature as a rights-having individual will lead to stronger environmental protections and will better allow for sustainable development models. Central to substantive rights for both people and Nature are States’ positive obligations to protect and restore their ecosystems and the ecosystems’ equilibrium; this is necessary because of the interconnectedness of all the species within them, with an emphasis on utilizing both science and traditional Indigenous knowledge. The Court also mentioned the principle of intergenerational equity, stating that environmental policies should be implemented by present generations to ensure that future generations can develop with adequate mobility and freedom.
After explaining the importance of the rights to a healthy climate and environment, the Court stated the obligations arising from those rights in the context of a climate emergency. The majority of the obligations fall under the goal of mitigating greenhouse gas emissions, such as completing environmental and climate impact assessments, implementing mitigation strategies that are realistic for stakeholders to carry out and are consistent with international agreements, and controlling activities by public and private actors with the necessary domestic legislation to mitigate emissions. The Court also highlighted the action States must take against the use of fossil fuels, including State regulation of fossil fuel exploration, extraction, and processing.
More specifically under the obligations of the States to regulate private actors was the theme of corporate accountability. The Court found that States should prevent undue corporate influence in the making of climate action decisions. It was also noted that corporations have their own obligations in addressing the climate emergency, and that States should measure corporations’ obligations based on how each business has historically contributed to climate change and if it is a large producer of greenhouse gases.
For other substantive rights, like the right to life, property, water, education, etc., the Court found that States need to create adaptation goals and plans to prevent and mitigate the climate-related impacts to those rights. The Court stated that the States’ goals and plans needed to become more progressive with time; the Court also emphasized that each substantive right faces its own risks from climate change and those need to be addressed in the plans.
The Court then moved on to the topic of procedural rights, which are important for environmental policymaking, democracy, and protection. Within the context of the climate emergency, the Court stated that procedural rights are at risk since resource inequalities increase tensions, harming democracy. To combat this, States need to exercise due diligence in ensuring that decisions are made in an inclusive and participatory manner. The Court also found that States should be promoting action through environmental education and supporting civil societies, facilitating dialogue between public and private actors, ensuring transparency in their environmental management systems to prevent corruption, and promoting the integration of ideas to protect Nature as an individual and future generations in their actions.
The Court articulated the obligations under procedural rights by placing them under five categories: (1) the right to science and the recognition of local, traditional, and Indigenous knowledge, (2) the right to access information, (3) the right to political participation, (4) the right of access to justice and (5) the right to defend human rights. The right to science encompasses both an individual’s access to and opportunities to contribute to science, and the Court stated that States have an obligation to use the best available science, meaning up-to-date, peer-reviewed, and containing verifiable conclusions; local and Indigenous knowledge is also given weight in this context because of communities’ knowledge of their own environments. The right to access information requires obligations like facilitating citizen participation and oversight of climate change mitigation, collecting and making available data that is used to support climate action, publicly disseminating all information clearly and timely to the people for their benefit, and combating disinformation – these all lent themselves to what the Court called the obligation of active transparency. The right to public participation has the obligation for States to ensure that all people, especially those from vulnerable and historically marginalized communities, are included and represented equally in decision-making processes related to climate crisis efforts. For the right of access to justice, the Court focused on the courts’ roles in the administration of justice, stating that courts should allow legal standing to be broad, interpret evidentiary rules flexibly, and allow reparations for victimized communities to prevent legal barriers to climate action. The right to defend human rights builds off the right of access to justice since States have an obligation to protect environmental advocates and rights defenders, which can be done through protection programs, legal action in their defense, and public support against their criminalization.
Finally, the Court addressed the topic of individuals’ ability to equally exercise their rights and the associated State obligations. The Court reiterated that because of climate change, there is increased vulnerability and discrimination for those with marginalized identities. The Court listed many groups that are at extreme risk because of the climate crisis, such as impoverished people, Indigenous people, Afro-descendant people, peasant and fishing communities, children, people with disabilities, and elderly people. There is a large amount of intersectionality among these identities particularly including poverty, which the Court stated is extremely harmful given the heightened impact the climate crisis has on those lacking resources for physical protection and the funds to support themselves. The Court found that States need to adopt specific measures to support each vulnerable community individually and guarantee their access to the necessary goods and services for impoverished people to live a dignified life amid the climate emergency.
