Summary:
On 9 January 2023, the governments of Colombia and Chile jointly filed a request for an advisory opinion on the climate emergency and human rights to the Inter-American Court of Human Rights. The two governments requested clarification of the scope of States’ obligations, both in their individual and collective dimensions, in responding to the climate emergency within the framework of international human rights law, taking into account the different effects that climate change has on people in different regions and on different population groups, nature and human survival.
The governments asked the Inter-American Court to answer a series of questions grouped into six thematic areas, namely:
A. On the scope of States’ obligations to protect and prevent, including regarding their obligations to mitigate, adapt, regulate and monitor, and their response to loss and damage;
B. On States’ obligations to protect the right to life given the existing climate science, and taking into account the right of access to information and transparency of information, including under the Escazú Agreement;
C. On the obligations of States with respect to the rights of children and new generations, given especially the vulnerability of children;
D. On the State’s obligations concerning consultative and judicial procedures, taking into account the limited remaining carbon budget;
E. On the protective and preventative obligations concerning environmental and land rights defenders, as well as women, indigenous peoples and Afro-descendant communities; and
F. On shared and differentiated obligations and responsibilities in terms of the rights of States, the obligation of cooperation and given the impacts on human mobility (migration and forced displacement of people).
Extended summary:
In their request to the IACtHR, the two governments submit that they are already dealing with the consequences of the climate emergency, including the proliferation of droughts, floods, landslides and fires. These, they submit, underscore the need for a response based on the principles of equity, justice, cooperation and sustainability, as well as human rights. The two governments note that climate change is already putting humans and future generations at risk, but that its effects are not being experienced uniformly across the international community. Instead, given their geography, climatic conditions, socioeconomic conditions and infrastructure, they are particularly being felt in the most vulnerable communities, including several countries in the Americas. They emphasize that these effects are not proportionate to these countries’ and communities’ contribution to climate change.
The governments, in their request, emphasize the relevance of the right to a healthy environment, as well as other interrelated substantive and procedural rights (affecting life, human survival and future generations). They review the existing scientific evidence concerning the impacts and progression of climate change from the IPCC, and note the vulnerability of the Andean region. Emphasizing the utility of the human rights framework for understanding these harms, and “to advance and accelerate the collective response to the climate emergency in each State, regionally and globally”, they ask the Court to answer a series of questions “in order to provide guidance towards solutions based on human rights, with an intersectional perspective.” In doing so, they note the need for clear inter-American standards to accelerate the response to the climate emergency, arguing that while the concrete measures taken may vary, human rights obligations should be the framework for accelerating the response in a just, equitable and sustainable way.
The two governments refer to the 2017 Advisory Opinion of the IACtHR, which recognized the right to a healthy environment as an autonomous and individual right, and referred to the negative effects of climate change. However, they argue, there is a need to further clarify the human rights imapcts of climate change, and corresponding obligations. In this regard, they raise the existence also of collective rights for the protection of nature under international human rights and environmental law, and cite the need to protect fundamental biomes like the Amazon and to understand States’ shared but differentiated responsibilities in a way that copes with loss and damage. The two governments invite the Court to set out clear standards against the background of litigation and related developments, citing the Vanuatu advisory opinion request to the ICJ, the pending cases before the European Court of Human Rights, and the UN HRC’s Billy and ors. v. Australia case. An advisory opinion from the Court, they argue, would provide States with guidance for setting out domestic policies and programmes.
The questions asked:
A. On the State’s obligations of prevention and protection
Question A.1: What is the scope of States’ obligation to prevent climate phenomena created by global warming, including extreme events and slow-onset events, in accordance with their inter-American treaty obligations and in light of the Paris Agreement and the scientific consensus that calls to limit the increase in global temperature to 1.5°C?
Question A.2: In particular, what actions should States take to minimize the impact of climate-related damage, in light of their obligations under the American Convention on Human Rights (ACHR)? In this regard, what differentiated measures must be taken with respect to vulnerable populations or intersectional considerations?
Question A.2.A.: What must States consider in implementing their obligation to (i) regulate, (ii) monitor and oversee, (iii) order and approve social and environmental impact studies, (iv) establish a contingency plan, and (v) mitigate activities within their jurisdiction that aggravate or may aggravate the climate emergency?
Question A.2.B.: What principles should guide action towards mitigation, adaptation and the response to loss and damage created by the climate emergency in affected communities?
B. On the State’s obligations to protect the right to life given the existing scientific consensus
Taking into account the right to access to information and the obligations concerning the active production and transparency of information derived from Arts. 14, 4.1 and 5.1. of the ACHR, in light of Arts. 5 and 6 of the Escazú Agreement, the governments ask the Court to determine:
Question B.1.: What is the scope of States’ obligations in the face of the climate emergency, in terms of:
- (i) the environmental information required;
- (ii) the mitigation and climate adaptation measures to be adopted to address the climate emergency and the impacts of such measures, including specific just transition policies for groups and people particularly vulnerable to global warming;
- iii) responses to prevent, minimize and address economic and non-economic loss and damage associated with the adverse effects of climate change;
- iv) the production of information and access to information on greenhouse gas emissions levels, air pollution, deforestation, and short-lived climate pollutants, analysis of sectors or activities that contribute to emissions, and more; and
- v) establishing impacts on people, such as on human mobility (migration and forced displacement), effects on health and life, non-economic losses, etc.?
Question B.2.: To what extent does access to environmental information constitute a right that must be ensured to guarantee the rights to life, property, health, participation and access to justice, among other rights that are negatively affected by climate change, in accordance with the State’s obligations under the ACHR?
C. On the differentiated obligations of States with respect to the rights of children and new generations
Citing Art. 19 ACHR and Art. 12 of the Convention on the Rights of the Child, and recognizing the consensus of the scientific community that identifies children as the group most vulnerable in the long term to the imminent risks to life and well-being expected to result from the climate emergency, the govenments ask the Court to determine:
Question C.1.: What is the nature and scope of a State Party’s obligation to adopt timely and effective measures in the face of the climate emergency to ensure the protection of children’s rights derived from its obligations under Articles 1, 4, 5, 11 and 19 ACHR?
Question C.2: What is the nature and extent of a State Party’s obligation to provide children with meaningful and effective means to freely and fully express their views, including the opportunity to initiate, or otherwise participate in, any judicial or administrative proceedings concerning the prevention of climate change that constitutes a threat to their lives?
D. On the State’s obligations concerning consultative and judicial procedures
In consideration of Arts. 8 and 25 ACHR, and taking into account the scientific finding that there is a limited greenhouse gas budget that can still be emitted before reaching a dangerous and irrevocable level of climate change, and that this budget would be exhausted within a decade, the States ask the Court to clarify:
Question D.1.: What is the nature and extent of the State Parties’ obligation concerning to the provision of effective judicial remedies to provide adequate and timely protection and redress for the impairment of rights due to the climate emergency?
Question D.2.: To what extent should the obligation to consult take into account the climatic consequences of a given activity or projections concerning the emergency?
E. On the protective and preventative obligations concerning environmental and land rights defenders, as well as for women, indigenous peoples and Afro-descendant communities
In accordance with Arts. 1.1 and 2 ACHR and Art. 9 of the Escazú Agreement, the governments as the IACtHR to determine:
Question E.1.: What measures and policies should States adopt in order to facilitate the work of environmental defenders?
Question E.2.: What specific considerations should be taken into account to guarantee women human rights defenders’ right to defend the healthy environment and their land?
Question E.3.: What specific considerations should be taken into account to guarantee the right to defend the healthy environment and land in light of intersectional factors and differentiated impacts, among others, on indigenous peoples, peasant communities and Afro-descendants?
Question E.4.: In the face of the climate emergency, what information should the State produce and publish in order to determine the possibility of investigating various crimes committed against human rights defenders, including reports of threats, kidnappings, homicides, forced displacement, gender violence, discrimination, etc.?
Question E.5.: What due diligence measures should States take into account to ensure that attacks and threats against environmental defenders in the context of the climate emergency do not go unpunished?
F. On shared and differentiated obligations and responsibilities in terms of the rights of States
Bearing in mind that the climate emergency affects the entire world, and that obligations to cooperate and repair arise from the ACHR and other international treaties:
Question F.1.: What considerations and principles should States and international organizations, collectively and regionally, take into account in analyzing shared but differentiated responsibilities in the face of climate change from a human rights and intersectionality perspective?
Question F.2.: How should States act both individually and collectively to guarantee the right to reparation for the damages generated by their actions or omissions in the face of the climate emergency, taking into account considerations of equity, justice and sustainability?
Taking into account that the climate crisis has a greater impact on some regions and populations, among them, the Caribbean, island and coastal countries and territories of the Americas, and their inhabitants:
Question F.3.: How should the obligations of cooperation between States be interpreted?
Question F.4.: What obligations and principles should guide the actions of States in order to ensure the right to life and survival of the most affected regions and populations in different countries and in the region?
Considering that one of the impacts of the climate emergency is to aggravate the factors that lead to human mobility (migration and forced displacement of people):
Question F.5.: What obligations and principles should guide the individual and coordinated actions to be taken by States in the region to address non-voluntary human mobility exacerbated by the climate emergency?
Consultation procedure:
In accordance with the Rules of Procedure of the IACtHR (Art. 73(3)), all interested parties (individuals and organizations) are invited to present a written opinion on the issues covered in the advisory opinion request. The President of the Court has established 18 August 2023 as the deadline for doing so. More information is available here.
Further information:
- The text of the advisory opinion request is available here (in the official Spanish version as filed with the Court) and it has also been translated to English, French and Portuguese by the Court’s Secretariat.
- For a comment by Juan Auz and Thalia Viveros-Uehara, see ‘Another Advisory Opinion on the Climate Emergency? The Added Value of the Inter-American Court of Human Rights’, EJIL:Talk! Blog, 2 March 2023, available here.
- For a comment from Maria Antonia Tigre, see ‘A Request for an Advisory Opinion at the Inter-American Court of Human Rights: Initial Reactions’, Climate Law Blog, 17 February 2023, available here.