Q&A: The Inter-American Court Takes a Lead on our Climate Emergency

Who should bear the costs of damage caused by climate change? What are the responsibilities of states to protect their people from harm? The Inter-American Court of Human Rights (IACHR) is currently in the midst of public consultations on these and other questions arising from the climate emergency—as it develops what is known as an Advisory Opinion that will guide legal thinking on the vast and significant issues at stake. The court held a first public hearing on the process in Bridgetown, Barbados, at the end of April; additional hearings will take place in Brasilia and Manaus in Brazil in late May. Juliana Vengoechea and Daniela Ikawa, both lawyers at the Open Society Justice Initiative, share more about the hearings and what impact an Advisory Opinion by the court could have on climate justice in the Americas and beyond.

What is an Advisory Opinion by the Inter-American Court of Human Rights? 

Chile and Colombia asked the court for the opinion to clarify what legal responsibilities states have to address the climate emergency and to avoid breaching the human rights of people most impacted by the climate emergency.  

IACHR Advisory Opinions shape how the American Convention on Human Rights and other international treaties must be interpreted and applied by the 34 members of the Organization of American States. In this forthcoming opinion, the court will also be able to include interpretation of environmental and climate treaties under a very broad mandate. 

Why is this Advisory Opinion important? 

We expect the Advisory Opinion to give guidance on what human rights violations in the context of climate change could be brought before Inter-American Court in the future. As such, it will play a similar role for human rights law to the recently issued Advisory Opinion from the International Tribunal on the Law of the Sea on harm caused by climate change to the marine environment—providing guidance on an underlying legal framework for future decisions and policies.  

The IACHR Advisory Opinion will be legally binding for some countries in the region including Colombia whose constitution allows for it. In addition, the Court will follow the positions taken in the opinion when contentious cases come before it, which would then become case law. 

What issues is the Advisory Opinion expected to address?  

States have clear human rights obligations that underpin the development of public policies and plans for mitigation, adaptation, prevention and redress in relation to climate change. 

These rights include the right to a healthy environment; the rights of populations in the move; the right to food security; the right to adequate housing; the right to nationality and protection against statelessness; and self-determination of indigenous peoples.  

This particular opinion will likely tie a state’s human rights obligations concretely to the day-to-day implications for people’s rights in a way that sets standards and principles. 

The court will also look at fossil fuel and agro-industries that are driving climate change, and at states’ human rights obligations to protect their citizens from the activities of these companies through regulation. Briefs submitted to the court outlined what those businesses could be expected to do to respect human rights, including refraining from conduct that leads to climate change. The briefs also proposed that states and businesses remedy any harms and violations of human rights resulting from their actions.  

While the court’s opinion will not have jurisdiction over companies, we hope it will provide guidance for the standards that states need to set to ensure that companies operating within their borders are meeting their human rights obligations in the context of climate change and are not causing further harm. 

What will happen next? 

We hope the Court will take a bold approach and that its opinion will influence domestic courts in the Americas region, as well as the regional human rights courts in Europe and Africa. It will be important because there is limited case law in the Inter-American legal system about climate justice. 

Given the pace of climate change we have to act quickly. People who are already being affected by climate change need a response from the court as soon as possible so their existence can be protected. This is likely to be an important step to move towards putting in place norms that will help curb climate change and climate warming.  

We hope some of these issues, which until now have looked aspirational, become concrete obligations and duties by states in the region, including those under the court’s jurisdiction. 

We are cautious about any outcome, but clear guidance in a good opinion by the court would take a firm stance that there is a clear link between human rights and climate change, and that states have duties with regards to ensuring that climate change is addressed to avoid further violations of these rights. Our hope is that the opinion will be clear, innovative and well argued, and that it will serve as inspiration for other courts and give firm footing for plaintiffs in other countries to cite in legal complaints.  

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