Another Advisory Opinion on the Climate Emergency? The Added Value of the Inter-American Court of Human Rights

The highest human rights tribunal in the Americas, the Inter-American Court of Human Rights (IACtHR), sits in Costa Rica’s capital San Jose, part of a region significantly exposed and vulnerable to climate impacts. If the global temperature continues to rise due to greenhouse gas (GHG) emissions that remain trapped in the atmosphere, enjoying the whole gamut of rights will be severely restricted worldwide. This is especially dire in the Global South. Because the climate crisis is partly due to insufficient, ambiguous, and unambitious rules to decarbonise society, vulnerable countries are resorting to international courts and tribunals for authoritative legal certainty.

One expedient, legitimate, and non-litigious way to clarify the legal obligations of states in a given subject, such as the climate emergency, is through advisory opinions. Some small island states have recently requested the International Tribunal of the Law of the Sea (ITLOS) for an advisory opinion on climate change while simultaneously seeking support at the UN General Assembly for a similar proceeding before the International Court of Justice (ICJ). In parallel, the governments of Chile and Colombia requested the IACtHR for an advisory opinion to clarify six aspects concerning States’ human rights obligations vis-à-vis the climate emergency.

Provided a correlation exists between a rise in the global temperature and the number of requests for advisory opinions before international courts, can we ascertain whether either of these legal initiatives contributes distinctively to protecting the global climate and, by extension, human protection rights? In this piece, we believe we can. The outcome from San Jose can have distinct and impactful ripple effects for global climate governance and human rights protection. We highlight the potential international law innovations that the IACtHR’s advisory opinion could unleash, how it differs from similar initiatives and the normative and procedural circumstances that could steer the opinion towards a creative path.

Colombia and Chile’s Innovative Questions to the IACtHR      

On January 9 2023, Chile and Colombia jointly asked the IACtHR to clarify the scope of State obligations to respond to the climate emergency in their individual and collective dimensions. The request is a 14-page document that includes an introduction, a description of the effects of the climate emergency on human rights, a justification for having ‘inter-American standards’ to respond to the climate emergency, and six subsections of questions. These subsections comprise 21 questions distributed across the following aspects: due diligence (five questions), the right to life (two questions), children’s rights (two questions), procedural rights (two questions), environmental defenders (five questions), and common but differentiated responsibilities (five questions). All questions, explicitly and implicitly, seek clarification on how mitigation, adaptation, and loss and damage relate to human rights obligations.

Some questions that could result in international law innovations are those about due diligence and common but differentiated responsibilities (CBDR). For instance, the first subsection of questions Chile and Colombia posed to the Court pertains to the duty of States to prevent climate impacts under inter-American treaty obligations in light of the Paris Agreement and climate science.  In the second part of this subsection, the requesting countries ask about what considerations, including intersectional ones, a State should take to implement its obligation to mitigate activities within its jurisdiction that aggravate or may aggravate the climate emergency. This enquiry is important because, so far, international human rights bodies have not fully determined the extent to which mitigating GHG emissions constitutes a human rights obligation. The Torres Islanders v. Australia decision from the Human Rights Committee is, so far, the furthest that an international quasi-judicial institution has gone in linking climate change as a human rights issue. Still, it did not discuss mitigation obligations in extenso.   

The sixth subsection of questions concerns CBDR. The first question here asks what principles States and international organisations should consider when dealing with climate change from a human rights and intersectionality perspective. A second question expands on the concept of CBDR in the context of reparations for damages attributed to particular conduct. The other three questions in this subsection aim to clarify aspects of international cooperation to protect the right to life of those most vulnerable, including climate-induced displaced people. The focus on CBDR can induce innovations in explaining the precise nature of the principle for international human rights law, particularly in the case of states that have not historically contributed to the climate emergency but are still vulnerable to its impacts.

Due diligence and the CBDR questions could push some interpretative boundaries. Considering climate mitigation as a human rights obligation implies that states could be held accountable for failing to reduce GHG emissions, thereby gaining affected individuals a direct opportunity to claim redress. This interpretation in light of CBDR brings the possibility of recognising international cooperation as an extended duty of major carbon emitters to mitigate in the countries most affected by climate change.

Situating the IACtHR’s Request Amidst Similar Initiatives

So far, requests for advisory opinions have been only submitted to the ITLOS and the IACtHR. They are currently awaiting the courts’ response. A UN General Assembly’s vote to submit similar questions to the ICJ is also pending. This unusual synchronism has sparked some debate, not least because none of these international courts has meaningfully engaged with climate emergency concerns in their contentious or advisory functions. Asking different international legal authorities about one kind of planetary crisis could trigger either a global legal cacophony with accompanying contradictions or a new, complementary and helpful approach.

Even though all of these initiatives seek to discern legal questions in the context of the climate emergency, each court’s answer will vary based on several factors. These may include the question itself and some particularities shaped by their mandate, the breadth of their legal interpretation, the treatment of their information sources, and the socio-political context in which courts operate. The ITLOS and the IACtHR will mainly assess the legal obligations enshrined in the treaties that legitimise them. For instance, the question formulated for the ITLOS is primarily based on the Convention on the Law of the Sea, whose focus is the marine environment. In contrast, the IACtHR will mainly assess the American Convention on Human Rights, whose jurisdictional scope is not limited to a particular natural environment but rather the effects that State Parties have on human rights. In that sense, the IACtHR has already developed a rich environmental case law in contexts where resource extraction hampers indigenous peoples’ collective rights to property and dignified life.

The IACtHR’s expansive interpretation of civil and political rights, generated through a relational process of understanding the socio-ecological context of subaltern actors, already marks a different scenario vis-à-vis this court’s counterparts. The IACtHR’s approach in interpreting the content of a right in light of the facts tends to favour the victim’s interests instead those of the state. This sensibility influences how to delineate obligations to protect the climate system, which means it matters who benefits from such protection and where States should prioritise it. As argued elsewhere, the progressive normative production of the IACtHR is not a spontaneous phenomenon that emerges in a vacuum but instead is the outcome of a dialectical process in which the situated experience of victims shapes the IACtHR’s judicial interpretation.

The IACtHR tends to connect different international law regimes to create a maximalist pro-homine rationale, which may differ from the approach of the ICJ. The draft resolution for an advisory opinion to the ICJ, which Vanuatu has made public, contains two questions formulated with a list of international legal sources, including human rights and environmental treaties, that the ICJ must assess to answer. One can expect the ICJ to consider the treaties referred to in the request. However, past ICJ advisory opinions can inform us about the relevant law it uses to scrutinise a question: depending on the subject matter, it tends to rely on lex specialis or delegates the intricate details of ancillary law to another law-making body.

In Threat or Use of Legal Weapons, for example, the ICJ recognised that human rights law applies during times of war. Still, the applicable law used to exert a juristic examination was jus ad bellum, jus in bello, and specific treaties on nuclear weapons, thereby circumventing the opportunity to provide further clarification on other relevant legal regimes. In Separation of the Chagos Archipelago, when referring to the legal consequences of an unlawful process of decolonisation, the ICJ mentioned that international human rights law is applicable to assess the resettlement of Chagossians. Still, it is the General Assembly that should address it during the completion of the decolonisation of Mauritius. The applicable law selection suggests that the ICJ advisory opinion could deem the climate regime’s treaties as lex specialis, thereby passing the answer back to the climate negotiations and avoiding clarifying international obligations, as posed by Vanuatu’s question.

The IACtHR’s advisory opinion is distinctive and can contribute to a better understanding of the legal dimensions of human protection because it will focus on the relational aspects of States’ obligations vis-a-vis individuals under their jurisdiction. While the IACtHR cannot analyse in detail all the international law corpus, its focus on international human rights law could have all-encompassing effects. In contrast, the ICJ can, in principle, review all sources of international law, but the analysis could be narrower in scope. The ITLOS can only examine one treaty in detail, so the effects of its opinion might not stir all the fibres of international law.     

Steering the IACtHR’s Opinion Towards a Creative Path

The IACtHR’s closest experience to weigh in on the climate emergency was when Colombia requested an advisory opinion in 2016 on how the American Convention should be interpreted when development projects pose risks to the marine environment in the Wider Caribbean Region. Even though Colombia formulated very specific and geographically delimited questions, the IACtHR broadened the scope and answered more comprehensively, merging international environmental and human rights obligations. In doing so, the IACtHR stressed, among other things, that, provided there is a causal link, states must protect human rights if they are affected by environmental harm, even outside their territory. It also recognised that the right to a healthy environment is justiciable despite not being included in the American Convention. For this reason, the IACtHR will likely reformulate the questions in the name of efficiency and innovation. In other words, the Court could fill the critical gaps in interpreting human rights obligations concerning mitigation of, adaptation to and compensation for climate change.

By examining the 2017 IACtHR’s Advisory Opinion on Human Rights and the Environment, one can find some parameters that determine the extent of obligations that could be expanded thanks to Chile and Colombia’s questions. As mentioned before, due diligence and CBDR are some of those avenues. Deciding whether the duty to protect the rights under the American Convention, potentially including the right to a healthy environment, entails more ambitious mitigation actions (conducive to a global carbon budget aligned to a 1,5°C scenario) is the first step for allocating responsibility based on the CBDR principle. This distribution might factor in historical GHG emissions, vulnerability indexes, and state capacity parameters. The Inter-American Commission on Human Rights has taken this first step by defining general guidelines in its resolution 3.21 on the “Climate Emergency”.  Principle 15 of such a document emphasises that States must take appropriate measures to mitigate GHG according to the maximum available resources.     

A mechanism that could convey the points raised by the Commission’s resolution and many others from different actors is written and oral submissions. If one takes amici curiae and its role in shaping the outcome of a judicial decision seriously, rest assured that the IACtHR will open its doors for an influx of diversity of legal thought during the advisory opinion proceedings. The IACtHR allows non-state actors, such as NGOs and academics, to file amici curiae. These inputs will provide the IACtHR with additional information that could steer the opinion towards creative paths. In contrast, the ICJ and ITLOS only offer submissions and interventions by states and international organisations as avenues for participation. It is likely that the diversity of views, especially from communities most affected by the climate crisis, will nourish the IACtHR’s ideas. (Elsewhere, we have explored the implications beyond the legal field of such an inclusive, participatory process).

Conclusion

The requests for advisory opinions on climate change submitted to the ITLOS and the IACtHR (and potentially to the ICJ) have initiated a debate on the contribution of international courts to climate governance and human rights protection. While each court’s response will vary based on its mandate and interpretation, the IACtHR’s focus on international human rights law and its relational approach could have wide-ranging effects. A new advisory opinion on the climate emergency could spark international law innovations, particularly in interpreting human rights obligations concerning due diligence and common but differentiated responsibilities. The court’s openness to written and oral submissions from non-state actors could also steer the opinion toward creative paths prioritising the realities of those most affected by the emergency.

Furthermore, the influence of the IACtHR’s previous interpretative work is well-established. The impact the IACtHR’s advisory opinion on human rights and the environment has had in expanding our collective understanding of the application of law in environmental contexts is remarkable. Not only did it substantially inspire the legal rationale of the UN Committee on the Rights of the Child when it assessed the jurisdictional test in Sacchi et al. v. Argentina et al., but it has also permeated into numerous domestic climate litigation cases around the world. Suppose this indicates progress in international human rights law and evidence of growing cross-fertilisation. In that case, it is not unrealistic to expect that a new advisory opinion on the climate emergency from the IACtHR could influence ongoing clarification processes, either at the ITLOS, the ICJ or elsewhere.

Photo: ‘Fires along the Rio Xingu, Brazil’ (NASA Earth Observatory, September 17, 2011).