IACHR Advisory Opinion on Climate Emergency and Human Rights

Facts

On January 9, 2023, the Republics of Chile and Colombia submitted to the Secretariat of the Inter-American Court of Human Rights a request for an advisory opinion regarding “Climate Emergency and Human Rights” under Article 64(1) of the American Convention on Human Rights. to clarify the scope of State obligations, in their individual and collective dimension, in order to respond to the climate emergency within the framework of international human rights law, paying special attention to the differentiated impacts of this emergency on individuals from diverse regions and population groups, as well as on nature and on human survival on our planet.

The petitioning States set as background to the request the fact that they are experiencing the challenges of responding to the consequences of the climate emergency, including a proliferation of droughts, floods, landslides and fires. These events reveal the need for an urgent response based on the principles of equity, justice, cooperation and sustainability, with a human rights-based approach. These challenges are not unique to these two States, but a common challenge for all countries in the Americas sand the rest of the world, with a significant impact on human rights, and are jeopardizing future generations.

One of the matters that necessitate urgent attention is the increase in human mobility as a consequence, and within the context of climate change. This displacement will have differentiated impacts on the most vulnerable populations, including coastal populations and island dwellers, indigenous peoples, Afro-descendant communities, and peasants, among others.

Open Society Justice Initiative Involvement

The Open Society Justice Initiative presented written observations to the Inter-American Court of Human Rights calling for an ambitious and expansive approach to the protection of the rights of people displaced by the climate emergency, as the Court prepares an Advisory Opinion on the issues that will shape future regional law and policy in the region. 

Argument

This brief focuses on the question posed to the Court on how the impacts of the climate emergency exacerbate the factors that lead to human mobility, migration and forced displacement of persons. This question points to the reality that climate change presents States with a collective and individual challenge to address migration and displacement. Through this intervention, we seek to provide the Court with elements for a guaranteeing and progressive analysis from the principles and obligations of human rights, which should guide the measures to be adopted by the States of the region, informed by good practices and lessons learned from some reference cases. Likewise, it proposes and understands that this phenomenon requires a combination of preventive, adaptive and reparative responses, from the individual and cooperative standpoint of the States.

The observations begin with a brief description of the concepts relevant to human mobility in the context of climate change, from different dimensions, including temporality, types of impact and mobility, seeking to encompass a broad view of guaranteeing and protecting the rights of people who are affected or at risk, and without restricting themselves to a single definition or category of protection. It then develops the framework of obligations and principles that should guide the individual and collective measures of States in response to human mobility in the context of climate change. It highlights that human rights and climate change are interdependent, and the climate emergency poses an emergency in the enjoyment and protection of human rights. States have clear human rights obligations that underpin the development of public policies and plans for attention, adaptation, prevention and redress in relation to climate change.

The framework of obligations includes principles such as accountability, the principle of participation in decision-making, the principle of the best interests of the child, the principle of non-discrimination, the principle of non-refoulement, and the principle of due process.

In the normative framework and in the five case studies( in Panama, Colombia, Central America, Puerto Rico and Alaska), particular emphasis is placed on the following rights: a) the right of refugees and other displaced persons; b) the right to food security; c) the right to health; d) the right to adequate housing; e) the right to nationality and protection against statelessness; and e) the self determination of indigenous peoples. It is understood that the analysis presented in the observations is not exhaustive of all the rights that States must guarantee in the context of human mobility due to climate change.

The brief concludes with some recommendations to the Court, including:
 - A call to the Court to take this Advisory Opinion as an opportunity to make a radical revision of the normative framework of human rights, including the rights to food, health, decent housing, nationality, self-determination of peoples, to protect people in situations of human mobility due to climate change.
- A progressive interpretation of existing obligations, require States to expand and adapt existing protections that are implemented in other contexts of people on the move to include those who move in contexts of climate change. This includes extending regional protections as provided in the Cartagena Agreement to include climate change under public order disruption.
- The Court should urge States to fill data gaps through regional and national data collection.
- The Court must call on States to promote and advocate for international collaboration, cooperation and funding within existing structures at regional and sub-regional levels, as spaces that should support local responses to resilience and adaptation.
- The Court must urge the States to give a specialized approach to the protection needs of those in situations of greater vulnerability, including children, people living in extreme poverty, and those who find it impossible to migrate given their conditions of greater vulnerability, in order to guarantee their safety and dignity.
- Likeise, the human mobility of indigenous communities and ethnic minorities requires of States a specialized and particular analysis in view of the right to self-determination of peoples and the greater vulnerability of these groups.
- The Court must call on the States of the region to firmly comply with their obligation to guarantee that persons under their territory have access to a nationality, including a relaxation of naturalization processes.
- Provide that States guarantee the full participation of the population at the community, national and international levels in planning, decision-making and response processes, including planned relocation.
- In attention to the right to remain, work with affected communities on resilience measures and seek disaster mitigation and rehabilitation alternatives.
- Establish accountability mechanisms within the framework of international human rights law to determine whether States are complying with their obligations in relation to the protection of the rights of people who have been displaced in the context of climate change.