On 4 March 2022, the Inter-American Commission on Human Rights (IACHR) and the Office of the Special Rapporteur on Economic, Social, Cultural and Environmental Rights published a resolution titled ‘Climate Emergency: Scope of Inter-American human rights obligations.’ In the Inter-American Human Rights system, this is the first document dedicated exclusively to the issue of climate change. The resolution was adopted by the IACHR pursuant to its mandate to make recommendations to governments of member States of the American Convention on Human Rights for the adoption of progressive measures in favour of human rights, as well as their observance (Article 41(b)).
The resolution not only recognises the link between climate change and the enjoyment of individual and collective human rights, but also attempts to systematize and concretely describe the human rights obligations of States in the context of the climate crisis. The operative part of the resolution is organized into nine chapters, which contain both normative guidance and concrete policy recommendations.
Interestingly, the resolution offers novel recommendations by bridging international human rights law with international environmental law. For instance, it states that those member States which have made international commitments to develop and update Nationally Determined Contributions (NDCs) (climate-related targets communicated under the Paris Agreement) ‘must incorporate a human rights approach into their construction and implementation’ (paragraph 2). More generally, it recommends that, for procedural and substantive compliance with the ‘right to a healthy environment,’ States must interpret in good faith the principles of environmental law (e.g. prevention, precaution, and so on) in order to seek harmonization and consistency with the principles of international human rights law (paragraph 10).
Most importantly, the resolution affirms that the obligation to take appropriate measures for mitigation of greenhouse gases, implementation of adaptation measures and remediation of climate-relate damages should not be neglected because of the ‘multi-causal nature of the climate crisis’ (paragraph 15). It does so by reading human rights law in accordance with the principle of common but differentiated responsibilities. Moreover, the resolution reiterates findings in the Inter-American Court on Human Rights’ (IACtHR) advisory opinion no. 23 regarding extra-territorial obligations under international human rights law, and applies them in the context of States’ greenhouse gas emissions. The relevant paragraph is worth quoting in whole:
‘39. States are tasked with implementing human rights obligations that are intertwined with those of international environmental law in the contexts of polluting activities within their jurisdiction, or under their control, so that they do not cause serious harm to their environment or that of other countries or areas outside the limits of national jurisdiction. At the same time, the rule of customary international law of “doing no harm” would be breached as a result of greenhouse gas emissions and thus the increase in frequency and intensity of meteorological phenomena attributable to climate change, which, regardless of their origin, contribute cumulatively to the emergence of adverse effects in other States.’
The resolution also dedicates separate chapters to individuals and groups in situations of vulnerability or who have been historically and systematically discriminated against, as well as indigenous peoples, tribal groups, Afro-descendants and those working in rural areas, requiring States to account for the disparate impact that climate change and climate response measures may have on the lives and interests of such individuals and groups.
Judged by the tenor of its language and its coverage of a multitude of issues under international human rights law that relate to climate change, the resolution is ground-breaking. Its normative relevance in the Inter-American Human Rights system is promising, considering the approach of the IACtHR in valuing soft-law instruments arising out of the system for interpretive guidance (see for e.g. OC-23/17, OC-22/16). It remains to be seen how member States receive the resolution and respond to it.
Written by Pranav Ganesan (Research Assistant at the Chair of Professor Helen Keller, University of Zurich)