The Inter-American Court’s Advisory Opinion on the Climate Emergency and Human Rights: A Win for Climate-Displaced Persons?

Introduction

On 3^rd July, the Inter-American Court of Human Rights issued its long-awaited advisory opinion on the climate emergency and human rights. This advisory opinion came as a response to a request by the Republics of Chile and Colombia, brought under the American Convention on Human Rights. Noting the adverse impacts of climate change already being observed, the Republics of Chile and Colombia requested that the Court issue an advisory opinion on various questions, including those related to climate-induced human mobility. The specific question regarding human mobility in the context of climate change was:

“what obligations and principles should guide the individual and coordinated measures that the States of the region should adopt to deal with involuntary human mobility, exacerbated by the climate emergency?”.

While similar requests for advisory opinions have been brought before both the International Court of Justice and the African Court on Human and Peoples’ Rights, the advisory opinion before the Inter-American Court is, to date, the only one in which specific questions relating to climate-induced human mobility have been raised. This post examines pertinent provisions relating to climate-induced human mobility within the Inter-American Court’s advisory opinion and what these might mean to other regional contexts.

Climate-Induced Human Mobility in the Inter-American Court’s Advisory Opinion

Engagement with climate-induced human mobility is first seen in the Court’s discussion on the impacts of climate change, wherein the Court acknowledges the loss and damage associated with climate disasters (para. 95). The Court further highlights that climate disasters not only occasion damage to infrastructure and destruction of homes, but also lead to involuntary migration and displacement (ibid). The Court’s most noteworthy engagement with climate-induced human mobility, however, is seen in the discussion on state obligations arising from substantive rights in the area of climate adaptation, and more specifically in the section on the right to freedom of movement and residence (paras 414 to 434). Citing the very first OHCHR report on the relationship between climate change and human rights, the Court notes various instances in which people may be forcibly displaced as a result of climate change, including those caused by weather-related disasters such as floods and hurricanes, slow-onset disasters, and violent social unrest arising from climate change-related factors (para 415). The Court further highlights that migration and displacement in the context of climate change can be either direct, or indirect, particularly when the adverse effects of climate change are exacerbated by pre-existing vulnerabilities and other factors, including conflict, poverty, and food insecurity (para 416). The Court also notes that some populations living in situations of forced displacement often find themselves in areas already exposed to extreme climate-related risks, which can, in turn, drive new displacement among these populations (para 418). Additionally, it recognises that some populations may face immobility due to various reasons (para 419).

The Court considers that the starting point regarding States’ obligations is the need to adopt measures to prevent disaster and climate-induced forced migration and displacement, including protection measures for forcibly displaced populations (para 422). The Court further advises that States should establish regulatory, policy, institutional, and other instruments to respond to human mobility (para 424). Enacting regulatory instruments means that States may be required to enact legislation and policy aimed at addressing the adverse effects of climate change, including on climate-induced human mobility. Indeed, the Court in considering the right to freedom of movement concludes by finding that States ‘must establish an adequate regulatory framework that provides, at the domestic level, effective legal and/or administrative mechanisms to guarantee the legal and humanitarian protection of persons displaced across international borders due to the effects of climate change’ (para 433). The Court considers humanitarian visas, granting refugee status, or authorising stay as practical measures that can guarantee the humanitarian protection of climate-displaced persons (ibid). Notably, though, the Court also addresses instances of planned relocations in the context of climate change, especially with regard to indigenous peoples, emphasising that States should refrain from conduct that is likely to expose relocated populations to risk (para 428). In doing so, the Court recommends that States adopt several measures, including establishing safe settlement areas and monitoring and preventing instances of human trafficking.

Lastly, the Inter-American Court’s advisory opinion emphasises the need for international cooperation in responding to climate-induced human mobility, as enshrined in the Global Compact for Safe, Orderly and Regular Migration (paras 430 & 431). The Court highlights the importance of provisions of key COP processes, including the Cancun Adaptation Framework and the Sendai Framework for Disaster Risk Reduction, which note the need for international cooperation in ensuring the protection of the human rights of displaced persons. The Court also emphasises the need for the international community to operationalise funding arrangements to enable the most vulnerable countries to deal with climate-induced human mobility. Moreover, to ensure freedom of residence and movement, the Court recommends that local, national, and regional cooperation be enhanced in implementing climate mobility policies.

A Step in the Right Direction, or Far From Enough?

The Inter-American Court’s advisory opinion, as far as it addresses climate-induced human mobility, represents a step in the right direction, not just for the Inter-American human rights system, but also as a model for cases in other regional human rights systems, such as the African system, which also has the advisory opinion procedure. However, considering that the implementation of the advisory opinion relies on States’ willingness to implement it, it remains to be seen whether States will translate the Court’s recommendations into concrete and practical measures, such as establishing domestic legal frameworks to address climate-induced displacement. As previously noted, the Court recommended firstly that States adopt measures to prevent climate-induced displacement (para 422), and secondly that where these measures are insufficient to prevent displacement, States:

“must develop regulatory, public policy, institutional, and budgetary instruments to address the needs of populations in situations of involuntary mobility” (para 424).

Notably, some countries within the Inter-American system have demonstrably implemented the Court’s advisory opinions on previous occasions (Ramírez and Siri, 2023). This has been achieved, for instance, through national courts invoking the provisions of advisory opinions in deciding cases related to human rights protections (ibid). Such practice, particularly with regard to previous advisory opinions, indicates a promising trend, even for the current advisory opinion on the climate emergency and human rights.

Among other measures recommended by the Court is “establishing appropriate migration categories such as humanitarian visas, temporary residence permits, and/or protection under refugee status” (para 433). It would therefore be interesting to see if, for instance, domestic asylum and immigration laws will be amended to reflect the realities of climate-induced displacement, and whether reference will be made to the Court’s advisory opinion by entities determining asylum or temporary stay applications, considering that the Court recommends granting refugee status and authorisation of temporary stay as some of the practical ways to ensure the protection of climate-displaced persons. Moreover, while refugee law/international protection has indeed been recognised as having a role to play in addressing climate-induced displacement, it is important to remember that refugee law in itself does not hold all the answers to climate-induced displacement (McAdam, 2023). Therefore, in adopting the migration categories highlighted by the Court, it is vital to acknowledge the importance of other regional migration pathways within the Americas and beyond, such as free movement frameworks. 

Additionally, as one of the other regional systems with the advisory opinion function, the African Court on Human and Peoples’ Rights could, for instance, draw on the example set by the Inter-American Court to address climate-induced human mobility in the recently initiated request for an advisory opinion. Previous practice indicates that the African Court has, on several occasions, relied on ‘judicial borrowing’ in some of its past precedents, citing previously decided cases from both the Inter-American Court and the European Court of Human Rights (Christensen, 2023). Even beyond the African Court, the Inter-American Court’s advisory opinion sets a crucial precedent for future legal proceedings relating to climate change and forced displacement.

Unfortunately, though, the Inter-American Court’s advisory opinion does not go far in addressing non-refoulement as a key human rights principle, even for climate-displaced persons. In the absence of legislation and policy frameworks for addressing climate-induced displacement, non-refoulement has been widely accepted as a key principle concerning the admission of cross-border climate-displaced persons. In the now ‘famous’ case of Teitiota v New Zealand, the Human Rights Committee rightfully noted that in the absence of legal frameworks governing climate displacement in receiving countries, displaced persons could be placed at a risk of rights violations, thereby triggering non-refoulement obligations. The Court duly cites the Teitiota case in the one instance where non-refoulement is mentioned (para 433), but no further consideration or elaboration is given in the advisory opinion. Moreover, a considerable number of briefs submitted during the advisory opinion proceedings highlighted the vital importance of applying the non-refoulement principle to human mobility in the context of climate change (Navarro, 2024). The Court could have done more to address States’ non-refoulement obligations under international (and regional) human rights law instruments, in the context of climate change.