Today, the first public hearing begins before the Inter-American Court of Human Rights (the Court), following a request from Chile and Columbia to issue an Advisory Opinion on state obligations in responding to climate change. The initial request by Chile and Columbia had been issued on 9 January 2023. The Court has since received over 250 submissions from states, organisations, and interest groups to assist the Court in its interpretation of the law. Due to the large influx of submissions and the “importance and breadth of the questions submitted to the Court”, the Court decided to hold public hearings to encourage “diverse and participative opportunities for direct dialogue”.
This first public hearing is taking place in Barbados, on 23, 24, and 25 April 2024. A second public hearing on the same matter will take place on 24, 27, 28, and 29 May, in Brazil. The proceedings are overseen by the international public law firm Volterra Fietta.
The Request for an Advisory Opinion
In their request, Columbia and Chile are asking the Court to provide a comprehensive answer to several legal questions posed. The Opinion issued by the Court should clarify the individual and collective responsibility of States in addressing the climate emergency, from a human rights perspective.
The two countries highlight in their submission the disproportionate adverse impact certain countries suffer as a result of climate change. This is especially annoying given that most of these countries only marginally contributed to total emissions. Within vulnerable countries, attention is also paid to certain population groups that are more likely to suffer from the adverse impacts of climate change. The submission considers, for example, children, indigenous peoples, and peasant farmer communities. However, other factors, such as geography, age, poverty, gender, nationality, birth status, or disability also play a major role in certain groups being more at risk for climate change impacts. Overall, the request suggests a need for a response that is human-rights-based, and that considers “principles of equity, justice, cooperation, and sustainability”.
The issues and questions brought by Chile and Colombia relate to rights under the American Convention on Human Rights (the Convention) and the Regional Agreement on Access to Information, Public Participation, and Justice in Environmental Matters in Latin America and the Caribbean (the Escazú Agreement). The Convention prescribes certain human rights, such as the right to life (Article 4) and right to humane treatment (Article 5). The Escazú Agreement deals with matters such as access to justice and public participation in environmental decision-making. It is also the only treaty in the world that explicitly mentions state obligations toward human rights defenders.
The Advisory Opinion given by the Court would build on a previous opinion given following a request made by Colombia. In 2017, Colombia asked the Court to clarify the relationship between the environment and human rights. In its resulting opinion OC-23/17, the Court stated that it “has recognized the existence of an undeniable relationship between the protection of the environment and the realization of other human rights, in that environmental degradation and the adverse effects of climate change affect the real enjoyment of human rights”. This was the first time the Court recognised the autonomous right to a healthy environment. In OC 23/17, the Court also accepted the extraterritorial effects of climate change, and that “[m]any environmental problems involve transboundary damage or harm”, holding that “States have the obligation to avoid transboundary environmental damage that can affect the human rights of individuals outside their territory”. OC-23/17 laid the groundwork for the recognition of the effect of climate change on human rights.
The present request builds on OC-23/17 by calling for Inter-American obligations for States, both individually and collectively, on how to actively address the climate crisis. Having established that there is an autonomous right in OC-23/17, Chile and Colombia are now seeking a prescription on how to approach this right in a way that is just and equitable.
Common But Differentiated Responsibilities
In the request, there is repeatedly made reference to the principle of ‘common but differentiated responsibilities’ (CBDR). CBDR originated in 1992, at the first Earth Summit in Rio de Janeiro. Included as Principle 7 in the Rio Declaration, participating states agreed as follows:
“States shall cooperate in a spirit of global partnership to conserve, protect, and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command”.
CBDR has since also been included in Articles 2 and 4 of the Paris Agreement.
Arguably, CBDR is a form of global climate justice: those countries that contributed most to environmental degradation, and that have the most resources in order to adapt to or mitigate climate change, should bear the largest responsibility in doing so. Translating CBDR from the global sphere to the Inter-American context, the request is thus asking the Court, in light of the historic contribution and capacity of each Inter-American country individually and the Inter-American countries as a collective, what these countries should do to address the climate emergency from a human rights-based approach.
Climate Change Questions Before the Inter-American Court of Human Rights
With the above context in mind, we can now turn to what Colombia and Chile are actually asking the Court to clarify. These questions are described in detail in the original request; the below provides a summary:
What is the scope of the State’s individual obligations to (i) Prevent adverse climate events; (ii) Protect children and future generations from climate emergencies; (iii) Allow children to participate in administrative or judicial proceedings to prevent climate emergencies; and (iv) Establish judicial remedies for timely and adequate protection?
What differentiated measures to protect vulnerable communities should be taken within that scope?
What are the specific considerations should be taken into account when a State implements these obligations?
Which principles should guide a State’s actions towards acting on loss and damages resulting from climate emergency?
How much action should states take in addressing climate emergency regarding (i) access to information; (ii) just transition policies; (iii) economic and non-economic damages; and (iv) mobility, health, and non-economic impacts?
To what extent is the right to access environmental information necessary to guarantee human rights to life, property, health, participation, and access to justice?
To what extent should the consultation obligation take into account the consequences of an activity on the climate emergency or the emergency projections?
For human rights defenders: - How should states facilitate environmental human rights defenders? - How should states guarantee the rights of women, indigenous peoples, peasant farmer communities, and Afro-descendant human rights defenders? - What information should states publish about the persecution of human rights defenders? - What measures should a state implement to ensure attacks on human rights defenders are punished?
What are the collective responsibilities of the States as a region to address climate change?
How should States, individually and collectively, guarantee the right to redress for damage caused by their acts and omissions regarding the climate emergency?
How should inter-State cooperation obligations be interpreted?
What obligations and principles should guide State actions in order to ensure the right to life and survival of the most affected regions and populations in the different countries and in the region?
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?
The Role of Advisory Opinions
Advisory opinions issued by an international or regional court function as legal advice on the interpretation or clarification of a piece of international law. They are therefore non-binding, but they are nonetheless very important.
The Inter-American Court of Human Rights in particular, allows its member states to request an advisory opinion on either “(a) the compatibility of internal norms with the Convention; or (b) the interpretation of the Convention or of other treaties concerning the protection of human rights in the American States.
The Inter-American Court of Human Rights is also entitled to reject the request for an advisory opinion.
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