1. Introduction
On 29 May 2024, the Inter-American Court of Human Rights (IACtHR), the main judicial body of the Organization of American States, adopted the first advisory opinion by an international human rights tribunal regarding climate change.Footnote 1 Entitled Climate Emergency and Human Rights, the opinion was widely welcomed as a watershed moment and qualified in early reactions as “historic,” “meet[ing] the moment,” and “a blueprint for rights-based climate action.”Footnote 2 We both agree. First, the advisory opinion clarifies many general issues that pertain to the application of international human rights law in response to the climate emergency in a way that could allow avoiding future litigation, a function that Jorge Contesse describes as “anticipatory adjudication.”Footnote 3 Second, the Court directly addressed specific issues that individuals, communities, and countries impacted by the climate emergency did raise, albeit indirectly, during the advisory opinion process and are already advancing in other cases. For example, there are currently petitions before the Inter-American Commission on Human Rights (Commission) that challenge Canada’s and the United States’ conduct for allegedly exacerbating climate change.Footnote 4 Contesse describes this second function as “ruling through advice” and notes that, since advisory opinions are not legally binding, their power ultimately lies on courts’ ability to persuade.
This article focuses on Canada, a country that has repeatedly failed to adopt effective climate policy,Footnote 5 with both functions of advisory opinions in mind. In what ways could the IACtHR’s opinion have anticipatory legal effects, clarifying international law in a way that could avoid future litigation in or against Canada? And in what ways could it indirectly resolve live domestic and international cases by resolving the issues in play? The stakes are high. In 2024 alone, insured losses caused by severe weather events in Canada (wildfires, floods, and hailstorms) surpassed eight billion dollars, shattering all previous records.Footnote 6 Yet, at the same time, one of the country’s leading think-tanks warned that the Paris Agreement “2030 emissions reduction target is now out of reach given weakening policy momentum across the country.”Footnote 7
In section 2, we offer a brief description of the Inter-American Human Rights System, with a focus on its key instruments and institutions, and the legal framework for advisory opinions under Article 64 of the American Convention of Human Rights (American Convention).Footnote 8 Section 3 then puts the Climate Emergency advisory opinion in context, identifying background elements, discussing the questions raised by Colombia and Chile, and noting the participation of Canadian university clinics and academics in the process. In section 4, we identify key legal developments ushered by the IACtHR, with a focus on identifying “climate emergency” as a decisive interpretive element for future climate cases, characterizing the obligation not to generate irreversible harm to the common planetary ecosystem as peremptory (jus cogens), affirming a right to a healthy climate, and clarifying that states have an enhanced due diligence obligation to prevent the degradation of the climate system. In section 5, we identify some of the main implications of the advisory opinion for Canada. We start by clarifying the legal effect of such an opinion for the state and then discuss potential impacts on ongoing and future litigation.
We conclude that, as an example of “anticipatory adjudication,” the Climate Emergency advisory opinion offers Canadians a major opportunity to escape the contradictions that mar their commitments to human rights, the environment, and multilateralism. By abiding by the obligations and other norms clarified by the IACtHR, Canadian courts and decision-makers throughout the public and private sectors can reduce the considerable legal risk that the state may be found in breach of international law and ordered to pay reparations. We do not under-estimate the formidable political challenge that this represents in a context that includes, among many other disturbing developments around the globe, the United States’ imperialist threatsFootnote 9 and tariffs on Canadian exports.Footnote 10 These take nothing away from the fact that embracing the advisory opinion could reduce the exposure of Canadians to potentially catastrophic climate impacts on their fundamental rights while signalling at the same time Canada’s commitment to the international rule of law at a time of unprecedented attacks.
2. The Inter-American Human Rights System
The Inter-American Human Rights System is composed of the institutions and instruments agreed to by the members of the Organization of American States (OAS) to promote and protect human rights in the Americas.Footnote 11 These instruments include the Charter of the Organization of American States (Charter of the OAS),Footnote 12 the American Declaration of the Rights and Duties of Man (American Declaration),Footnote 13 the American Convention, and many other issue-specific human rights treaties.Footnote 14 The members of the OAS meet periodically in pursuit of their common purpose to “achieve an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their independence,”Footnote 15 and they have adopted a host of political declarations and other non-binding documents to this end.
The two main institutions of the Inter-American Human Rights System are its human rights commission and court. The Charter of the OAS established the Commission with a mandate “to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters.”Footnote 16 It is composed of seven experts acting in their individual capacity who monitor human rights throughout the Americas, observe developments in specific countries by pursuing official visits and through other means, issue recommendations to member states, hold hearings to learn from civil society and state officials about pressing issues, and publish thematic reports.Footnote 17 The Commission reports annually to the OAS General Assembly.Footnote 18
In addition to human rights promotion, the Commission considers petitions lodged against states by individuals or groups who allege rights violations based on the Inter-American instruments. In doing so, it ensures that domestic remedies have been exhausted, receives material evidence, hears witnesses, and decides on the merit. If a state does not follow its recommendations, the Commission can refer cases to the IACtHR if that state has recognized the Court’s jurisdiction.Footnote 19 Independently from this petition systems, individuals or groups who face “serious and urgent situations presenting a risk of irreparable harm to persons or to the subject matter of a pending petition” can also apply to the Commission for it to request that a state adopt precautionary measures in their favour.Footnote 20
Lastly, the IACtHR is also composed of seven independent experts who rule on the cases referred to it by the Commission or by member states in the case of inter-state petitions.Footnote 21 The Court issues internationally binding judgments based on the Inter-American instruments. It can also order provisional measures regarding proceedings before it in “cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons”Footnote 22 and also reports annually to the OAS General Assembly. At the request of any member state or of the organs of the OAS (General Assembly, Meeting of Consultation of Ministers of Foreign Affairs, Inter-American Juridical Committee, Commission, and so on), the IACtHR can render advisory opinions regarding the interpretation of the American Convention or of any other instrument related to human rights in the Americas as well as concerning the compatibility of a domestic statute with the American Convention. Footnote 23 Requests for advisory opinions “must state with precision the specific questions on which the opinion of the Court is being sought,” “identify the provisions to be interpreted, [and] the considerations giving rise to the request.”Footnote 24 As was the case with the Climate Emergency advisory opinion, the Court’s presidency may “authorize any interested party to submit a written opinion on the issues covered by the request” and hold oral proceedings. The opinions themselves may also be delivered in public.Footnote 25
Of note, the IACtHR has been the most active advice-providing human rights court in the world, delivering thirty-two opinions since 1981.Footnote 26 These have clarified procedural issues such as the effect of reservations to the American Convention, exceptions to the exhaustion of domestic remedies, and denunciations of the American Convention, and a wide range of substantive issues of general interest for the Americas (for example, restrictions to the death penalty, the rights of children in the context of migration, non-discrimination of same-sex couples, the right to care).
3. Getting to the Climate Emergency advisory opinion
The Climate Emergency advisory opinion was requested by Colombia and Chile in 2023 in a detailed submission articulated around the core aim “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.”Footnote 27 Substantively, the request casts a wide net by enquiring about “the American Convention and other Inter-American treaties to confront the situations arising from the climate emergency” and by engaging with a range of concepts not explicitly reflected in such instruments (for example, climate emergency, climate crisis, nature, equity, sustainability, future generations, intersectional considerations, shared but differentiated obligations, prudence, losses and damage, and just transition). Procedurally, this advisory proceeding was the most complex ever conducted by the Court, with 263 briefs received from 613 participants over the course of two public hearings.Footnote 28
The backdrop for the IACtHR’s consideration of the questions raised shows a growing interest in clarifying states’ international obligations regarding the climate emergency. In 2004, the Commission considered admissible a petition alleging that violations of the right to a healthy environment could constitute a violation of Article 26 of the American Convention, dealing with economic, social, and cultural rights, but no decision on the merits followed.Footnote 29 In 2006, the famous Inuit Circumpolar Conference petition against the United States was rejected by the Commission at the pre-admissibility stage, but it resulted in a high-visibility public hearing during which the petitioners explained the magnitude of climate impacts on their economy and way of life.Footnote 30 The legal and political legacy of the petition cannot be understated, directly inspiring the climate challenge by an association of elderly women against Switzerland in 2016 that would eventually reach the European Court of Human Rights (ECtHR),Footnote 31 which itself was explicitly referenced by Chile and Colombia in their request for the advisory opinion.Footnote 32
In 2017, the IACtHR released an advisory opinion on Environment and Human Rights in response to a request by Colombia in the context of its maritime dispute with Nicaragua.Footnote 33 The opinion raised a host of new questions in light of the grave threats posed by climate change since the Court recognized the existence of “the right to a healthy environment as an autonomous right” protected by the American Convention and found that a state from which transboundary environmental damage that impacts human rights originates can be held responsible when a causal link with that damage can be established.Footnote 34 In the 2023 case of La Oroya v Peru, the IACtHR continued to define the content of the right to a healthy environment, noting that its substantive dimensions “include air, water, food, ecosystems and the climate, etc.”Footnote 35 The Court had prior opportunities to do so, but it seems to have waited for the right case. It avoided it altogether in one caseFootnote 36 and approached it indirectly in others, focusing on the relationship that Indigenous peoples have with their ancestral territories and their environment.Footnote 37
Beyond the Inter-American Human Rights System, major developments also paint a rapidly evolving landscape in the run-up to the Climate Emergency advisory opinion. In 2024, the ECtHR ruled favourably in the challenge against Switzerland’s climate efforts previously mentioned, on the basis of the right to private and family life protected by the European Convention on Human Rights. Footnote 38 The same year, the International Tribunal for the Law of the Sea provided the first ever international law advisory opinion regarding climate change, finding that states have a “stringent” due diligence obligation “to prevent, reduce and control marine pollution from anthropogenic GHG [greenhouse gas] emissions.”Footnote 39 Two more processes were underway when the IACtHR released the Climate Emergency advisory opinion. In March 2023, the United Nations (UN) General Assembly had requested an advisory opinion on states’ obligations regarding climate change to the International Court of Justice (ICJ), which gave its far-reaching response in July 2025.Footnote 40 Weeks before the IACtHR released its opinion, the African Court on Human and Peoples’ Rights was presented with a similar request, unanswered at the time of writing.Footnote 41
Unlike nine other states and contrary to its active participation in the advisory process before the ICJ,Footnote 42 Canada did not make a written submission to the IACtHR regarding the Climate Emergency advisory opinion. Civil society was more active, with five briefs submitted by university clinics and academics with ties to the country. These stakeholders made a range of submissions that are highly relevant for countries that have both high GHG emissions and a high level of capacity to act, like Canada. They address the obligations that apply to the regulation of economic activities, including extractive projects;Footnote 43 to climate mitigation and adaptation measures in light of the needs of persons with disabilities, including accessibility and full participation;Footnote 44 to the protection of Indigenous and Afro-descendant human rights defenders in light of their grave situation of vulnerability, especially in cases when state institutions acquiesce to rights violations;Footnote 45 and to the appropriate judicial remedies granted by domestic courts in order to reduce GHG emissions, including injunctions and target setting.Footnote 46 Both authors also presented an amicus curiae brief, in which we discussed the distinction between the concepts of climate emergency and public emergencies, the applicability of the obligation to prevent significant harm to the environment in the context of the climate emergency, and the relevance of the “One Health” approach (which envisions the health of people, animals, and the environment as fully integrated) to defining this prevention obligation.Footnote 47
4. Key legal developments
In responding to the questions posed by Colombia and Chile, the IACtHR went far and wide in describing how Inter-American treaties establish legal obligations applicable to states’ response to the climate emergency. In this section, we analyze the resulting legal framework for decarbonization, including identifying “climate emergency” as a decisive interpretive element to synthesize different norms relevant to climate action, characterizing the obligation not to generate irreversible harm to the common planetary ecosystem as peremptory (jus cogens), declaring that the Inter-American Human Rights System affirms a new right to a healthy climate and clarifying that states must prevent the degradation of the climate system as part of the general obligations to respect and guarantee rights, subject to a due diligence standard that is “enhanced.”
A. The climate emergency as a decisive interpretive element
Colombia and Chile introduced an emergency framing directly in the title of their request and dedicated significant attention to establishing the climate emergency as a question of fact.Footnote 48 The IACtHR adopted this framing in the title of its own advisory opinion and discussed it at length, thereby endorsing it from a factual perspective and affirming its standing “as a decisive element for interpreting States’ obligations under the American Convention on Human Rights, the Protocol of San Salvador, and other applicable instruments.”Footnote 49 Doing so paves the way to the use of “climate emergency” as an interpretive element by other tribunals, including the African Court on Human and Peoples’ RightsFootnote 50 and domestic courts such as Canada’s. The Court starts by noting that the climate emergency is only one among the “so-called ‘triple planetary crisis’ stemming from the relationship and mutual reinforcement among three ongoing phenomena: climate change, pollution, and biodiversity loss.”Footnote 51 It goes on to note that this “climate emergency is characterized by the confluence and interrelation of three factors: the urgency of effective action, the severity of the impacts, and the complexity of the required responses.”Footnote 52 While urgency and severity generally refer to well-established scientific facts, the Court makes a range of statements relevant to current and potential disputes under both headings, thereby also “ruling through advice” and offering “anticipatory adjudication.”
One of these statements is to reject the de minimis defence sometimes presented by states and private actors, given the complex and global scale of the climate system.Footnote 53 “[W]ith each additional gigaton of GHG emitted, and each degree of increase in the global temperature,” the IACtHR notes, “the number of people exposed to disease, displacement, cultural losses, hunger, water insecurity, unemployment, poverty and, in general, inhuman living conditions increases exponentially.”Footnote 54 Another is to acknowledge the challenge of “achieving a just distribution of the climate debt based on the principle of common but differentiated responsibilities,” where such debt is defined by the Court as “the sum of the damage caused by the accumulated negative effects of GHG emissions, whose costs are imposed on the planet without any compensation.”Footnote 55
When addressing the complexity of the responses required, the IACtHR further defines climate emergency as a “decisive” interpretive element. This includes identifying resilience as the overarching goal of international action, which is to be “grounded in the best available science and framed around sustainable development.”Footnote 56 The Court also stressed “the importance of reinforcing multilateral cooperation mechanisms,” of “strengthening the democratic rule of law,” and of “constant dialogue with scientific, traditional, local and indigenous knowledge,” and it identified other relevant concepts derived from international environmental law. These are: the pro natura principle, the precautionary and prevention principles, the polluter pays principle, intra- and inter-generational equity, common but differentiated responsibilities, the obligation of cooperation, and the prohibition of transboundary damage.Footnote 57
The foregoing shows how, for the IACtHR, “climate emergency” has migrated from popular usageFootnote 58 to legal interpretation. The notion of an interpretive “element” is novel in this context and distinct from guiding principles of international environmental law (for example, sustainable development, common but differentiated responsibilities and respective capabilities, the precautionary principle, and equity).Footnote 59 We understand it as analogous to an interpretive approach, which is useful to synthetize a broad range of norms relevant to climate action, including general principles of international law (for example, the rule of law),Footnote 60 obligations (that is, cooperation, prohibition of transboundary damage), guiding principles of environmental law, emerging principles (for example, the polluter pays principle), and more general goals (resilience, just distribution of the climate debt, dialogue between different forms of knowledge, and so on). In that sense, it is entirely different from the public emergency provisions found in many human rights treaties, which allow derogating from certain rights if strictly necessary to face threats to the independence or security of a state.Footnote 61
Using climate emergency as an interpretive element to approach states’ obligations may be daunting because of the variable legal status of the different norms identified.Footnote 62 However, it has two virtues that make it advantageous for courts and litigants internationally as well as domestically. First, such an approach can bring together many different concepts relevant to a specific case in a coherent way. To borrow from Ronald Dworkin, climate emergency is useful because it allows constructing a “general theory” of how institutions, rules, and rights can be interpreted coherently considering the urgency of effective action, the severity of climate impacts, and the complexity of the responses required.Footnote 63 Second, it is a future-oriented approach, which can prove galvanizing in a time of rampant despair.Footnote 64 Declaring a given social condition to be an emergency is a “hopeful act in that it aims to interrupt those conditions by making what has become ordinary into an exception.”Footnote 65 While offering no guarantee of success, interpretations that incorporate the climate emergency as part of their general theory may lead to more transformative outcomes than those rooted in classical concepts that have long been associated with environmental degradation (sovereignty, jurisdiction, territory, development, and so on).Footnote 66
B. Jus cogens obligation not to harm the common ecosystem
One of the most noteworthy developments ushered by the Climate Emergency advisory opinion is the recognition that the “prohibitions arising from the obligation to preserve our common ecosystem, as a precondition to the enjoyment of other rights that have already been identified as fundamental, are of peremptory importance and are, therefore, of a jus cogens nature.”Footnote 67 Of note, the IACtHR does not limit its understanding of the common ecosystem to the global climate and identifies several of its dimensions:
[C]onducts that can be identified as a direct cause of irreversible effects on the vital equilibrium of the ecosystems include: large-scale and irreversible deforestation of primary forests crucial to biodiversity, climate regulation and hydrological cycles; the destruction or extensive and lasting damage to biodiversity with a mass and irreversible loss of species and the degradation of critical habitats; the persistent and large-scale pollution of vital resources, such as potable water sources, the oceans and the atmosphere, with long-lasting and irreversible effects on the health of species and the viability of ecosystems, including the release of persistent toxic substances; large-scale radioactive pollution and severe oceanic acidification, and the irreversible alteration of natural biogeochemical cycles such as those of carbon, nitrogen or phosphorus on which the life of the species on our planet depends; for example, the irreversible alteration produced by the effect of anthropogenic climate change in its extreme manifestations. These are factors that, according to the best available science, threaten the conditions necessary for life on Earth.Footnote 68
This development is consequential since, as affirmed in the Vienna Convention on the Law of Treaties, “a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.”Footnote 69 Any conduct among those identified in the previous paragraph that is the “direct cause of irreversible effects” on the common ecosystem (also paraphrased as one that would “generate massive and irreversible damage to the environment”) would thus amount to an internationally wrongful act.Footnote 70 The Court rooted this analysis in the best available science, general principles of international law (precautionary principle, polluter pays, prohibition of transboundary environmental damage), and “State practice, the elaboration of multilateral environmental treaties, the resolutions of the United Nations General Assembly and the case law of regional courts.”Footnote 71 Indeed, it had already announced shortly before in La Oroya v Peru that “international environmental protection requires the progressive recognition of the prohibition of such conduct as a peremptory norm (jus cogens)” when referring to “unlawful or arbitrary conduct that causes serious, extensive, lasting and irreversible environmental damage, especially in the context of the climate crisis that threatens the survival of species.”Footnote 72
This line of reasoning has led to valid methodological concerns,Footnote 73 although these are not fatal for the result arrived at. Indeed, the IACtHR was narrowly split four votes to three on this issue, with Judges Nancy Hernández López and Patricia Pérez Goldberg dissenting. For President Hernández López, the majority’s approach is problematic because environmental treaties like the Paris Agreement grant parties a wide amount of discretion, a peremptory status would have disproportionate legal effects, and the prohibition of transboundary damage relies on reasonability and proportionality rather than strict application.Footnote 74 Similarly, Judge Pérez Goldberg criticized the majority for failing to identify sufficient evidence of recognition of peremptory status, warning that such a normative development “cannot be derived from an authoritative statement or an idealized intuition” to be convincing.Footnote 75
According to the International Law Commission, evidence of acceptance and recognition that a norm of general international law is a peremptory norm (jus cogens) may include “public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; constitutional provisions; legislative and administrative acts; decisions of national courts; treaty provisions; resolutions adopted by an international organization or at an intergovernmental conference; and other conduct of States.”Footnote 76 Although it pointed to environmental treaties and court decisions in its section on jus cogens, the IACtHR did not list these by name and reasoned instead that “the present and future habitability of the planet” is a precondition for the enjoyment of rights guaranteed under international law.Footnote 77 We thus agree with Judge Pérez Goldberg that the evidence presented by the Court in the section of its opinion specific to jus cogens is scant, although we note that it dedicated twenty-five earlier pages to describing the legal framework applicable to climate change (including international climate law, human rights law, labour law, trade and investment law, and domestic climate litigation).Footnote 78 These sources do point to a remarkably consistent, almost universally recognized, and imperative objective of maintaining a stable global climate system, as exemplified by Articles 2 and 4 of the Paris Agreement. Footnote 79 The majority of the Court, however, could have restated such sources and emphasized relevant international resolutions to make its point more forcefully, and it did not clearly identify the same level of evidence for other types of conducts that endanger the common ecosystem (for example, deforestation, pollution).Footnote 80
Of note, this is not the first time that the IACtHR breaks new ground by qualifying a human rights norm as one of jus cogens. Footnote 81 This happened with regard to enforced disappearancesFootnote 82 and self-amnestiesFootnote 83 in the context of contentious cases, over and above observations regarding the pre-existing jus cogens status of the prohibition of slavery, torture, and crimes against humanity.Footnote 84 Climate Emergency and Human Rights is also the second time the Court has made such a finding in an advisory opinion. In Juridical Condition and Rights of Undocumented Migrants, the Court concluded that the principles of non-discrimination and equality before the law have reached a peremptory status.Footnote 85 Interestingly, it did so in a manner that was similar to the present case, by primarily referencing the considerable number of international treaties that include this principle.Footnote 86 This contrasts with the Commission’s finding on the jus cogens nature of the prohibition on the death penalty for minors, which relied on a detailed review of state practice and opinio juris. Footnote 87
Future cases within the Inter-American Human Rights System and beyond thus have an important opportunity to expand — or undo — the IACtHR’s groundbreaking line of reasoning regarding the planetary ecosystem. Methodologically, these will contribute to the ongoing dialogue between analyses of peremptory status (jus cogens) focused primarily on treaty sources and deductive logics in a context that is often sympathetic to natural law reasoning and those that focus on opinio juris and practice recognizing this status in a more positivist and inductive way.Footnote 88 Substantively, future cases will hopefully clarify which environmentally destructive conduct by states would meet the threshold of causing “irreversible effects on the vital equilibrium” or “massive and irreversible damage” to the common ecosystem. This is particularly urgent in a context in which seven of nine “planetary boundaries” have already been breached.Footnote 89
C. Right to a healthy climate
Another consequential development in the Climate Emergency advisory opinion is the recognition of the right to a healthy climate as “as an independent right — derived from the right to a healthy environment.”Footnote 90 Methodologically, the IACtHR justified this development based on decisions from domestic courts, general comments, and reports by the Committee on the Rights of the Child, the Committee on the Elimination of Discrimination against Women, and the Special Rapporteur on the Human Right to a Healthy Environment, as well as scientific evidence, noting that climate change is “one of the most severe threats that [individuals’] rights are facing and will face in the future.”Footnote 91
Substantively, the IACtHR indicated that the right to a healthy climate has collective and individual dimensions. Under the first dimension, “this right protects the collective interest of present and future generations of human beings and other species in preserving a climate system that is suitable for ensuring their well-being and the equilibrium between them.” Under the second dimension, it “protects the possibility of each individual being able to live in a climate system free of dangerous anthropogenic interference … as a precondition for the exercise of other human rights.”Footnote 92 “Taking into account that human generations exist within an unbroken continuum that is continually renewed and redefined as untold new members join the living human community,” the Court added, “their protection requires the adoption of measures that ensure equity in both the effective enjoyment of rights by present generations, and in their transmission to future generations.”Footnote 93
The IACtHR split again, five votes to two partially dissenting votes. President Hernández López opined that the right to a healthy climate should not have been recognized as a new independent right because it is, rather, a dimension of the right to a healthy environment. She criticized the majority for not properly anchoring its reasoning in treaties or precedent and for failing to define the scope of this new right, the obligations attached to it, and parameters for its implementation.Footnote 94 Judge Pérez Goldberg similarly found that the majority did not identify sufficient normative bases to find a new independent right and that, in any case, it was redundant with the existing right to a healthy environment. The judge also restated her disagreement with Lagos del Campo v Perú, where the Court found that it had jurisdiction to award remedies for violations of economic, social, and cultural rights based on Article 26 of the American Convention Footnote 95 and objected to such remedies applying to the new right to a healthy climate.Footnote 96 The partially dissenting judges raised important questions regarding the scope of the right to a healthy climate, including whether all conduct that endangers the common ecosystem (for example, deforestation, damage to biodiversity) should also give rise, as a matter of consistency, to corresponding independent rights to forests, to biodiversity, and so on. These, in turn, point to more fundamental concerns raised by Samuel Moyn and others about the multiplication of rights in a context of “galloping” inequality.Footnote 97 Is recognizing new rights the most effective way to respond to the triple planetary crisis?
Without pretending to answer this difficult question, we note that the majority’s framing of a right to a healthy climate has notable differences with that to a healthy environment in terms of legal status, urgency, and scale. These mirror the UN Human Rights Council’s approach, which created a special procedure mandate of the Special Rapporteur on Climate Change in 2021,Footnote 98 which was distinct from that of the Special Rapporteur on the Human Right to a Clean, Healthy and Sustainable Environment.Footnote 99 Legally, the right to a healthy climate is supported in the Climate Emergency advisory opinion by a corresponding jus cogens obligation not to provoke irreversible effects on the climate system and the concept of climate emergency as a decisive interpretive element. Relatedly, while the right to a healthy environment can be applied both in cases of damage to local environments and planetary ecosystems,Footnote 100 the right to a healthy climate is exclusively focused on the global climate system and always raises issues of inter-generational equity.Footnote 101 Indeed, the IACtHR’s focus on a positive obligation to adopt climate measures, on equity, and on the rights of Nature, discussed in the next subsection, provide additional qualitative differences with the right to a healthy environment. These innovative features of the right to a healthy climate may even allow addressing the many valid critiques made against the rights discourse and its inability to reign in social inequality because of their deeply transformative potential.Footnote 102
D. Nature as a subject of rights
A closely related development, expanding on gesturing in this direction in the 2017 Environment and Human Rights advisory opinion, is the IACtHR’s characterization of Nature as a “subject of rights”:
Recognition of Nature’s right to conserve its essential ecological processes contributes to strengthening a truly sustainable development model that respects planetary limits and ensures the availability of crucial resources for present and future generations. Making progress towards a paradigm that recognizes rights inherent in the ecosystems is fundamental for the protection of their long-term integrity and functionality, and it provides coherent and effective legal tools in relation to the triple planetary crisis to prevent existential harm before the latter becomes irreversible.Footnote 103
The Court defined Nature “as the physical and biological foundation of life” and recognized it as “a collective subject of general interest” rather than clearly ascribing it legal personality.Footnote 104 This nuance, consonant with Article 1.2 of the American Convention, according to which “‘person’ means every human being,” raises a host of new questions. What exactly is a “collective subject”? What rights, if any, is it endowed with? How can these rights be exercised?Footnote 105 The Court identified the “right to conserve its essential ecological processes”Footnote 106 and the right to a healthy climate previously discussed,Footnote 107 which leaves the door open to further rights to be recognized in the future.Footnote 108 Can a human person or community bring a petition under Article 44 of the American Convention to enforce these rights on Nature’s behalf? The Court does not answer this question, but it asserts that states have negative obligations not to “caus[e] significant environmental damage” and “positive obligation to adopt measures to guarantee the protection, restoration and regeneration of ecosystems.”Footnote 109
Methodologically, the IACtHR ground its “pro natura” evolutive approach in Article 29 of the American Convention, according to which the treaty should be interpreted so as not to restrict the enjoyment of rights recognized in domestic laws, other treaties to which a state is party, or “other rights or guarantees that are inherent in the human personality.” The Court pointed to treaties such as the Convention on Biological Diversity and the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction that recognize the intrinsic or inherent value of Nature,Footnote 110 the growing number of recognitions of Nature as a subject of rights in the Americas (including the Mutehekau Shipu/Magpie River in Canada),Footnote 111 and the many UN resolutions and reports that, since the 1982 World Charter for Nature,Footnote 112 promote the idea of living in harmony with Nature.Footnote 113
This time, the IACtHR split four votes to three. President Hernández López dissented, finding that to recognize natural elements as legal subjects amounted to a “hermeneutic jump” contrary to the principles of state consent and good faith, to Article 1.2 of the American Convention, and to a previous advisory opinion on the status of legal persons.Footnote 114 Similarly, Judge Pérez Goldberg criticized the majority for “an innovation that exceeds the limits of this Court’s interpretative mandate and resembles the exercise of legislative or constituent functions.”Footnote 115 Both philosophically and doctrinally, she lamented the lack of clarity regarding which persons or entities could sue on behalf of Nature as a social construct, how the interests of Nature could be identified independently of the human persons suing on its behalf, and how to resolve potential conflicts between the rights of Nature and human rights.Footnote 116
The dissenting judges are right that the IACtHR’s opinion under this heading raises more questions than it answers. It is not immediately clear if the Court aimed at “[m]aking progress towards a paradigm that recognizes rights inherent in the ecosystems” at a later date, or if the Court considered that the Climate Emergency advisory opinion achieved a “recognition [that] allows us to transcend inherited legal concepts that conceived Nature exclusively as an object of ownership or an exploitable resource.”Footnote 117 Yet because the Court returns to the rights of Nature in its section on the right to a healthy climate, we consider that it has crossed the Rubicon.Footnote 118 To borrow from Dworkin again, the Court seems to be conceiving of these as “background rights” for now at least, useful to justify the legal interpretation given to other rights enshrined in the American Convention rather than as “institutional rights” that can be invoked directly.Footnote 119 The demonstration will undoubtedly be influential at the domestic level where judicial and legislative innovation is rapidly evolving across the Americas.Footnote 120
E. The obligation to respect and guarantee rights in the climate emergency
Another significant development is the IACtHR’s affirmation that states’ obligation to guarantee human rights includes a duty to “take all necessary measures to reduce, on the one hand, the risks derived … from the degradation of the global climate system and, on the other, from exposure and vulnerability to the effects of this degradation.”Footnote 121 This prevention obligation encompasses the regulation by states of the actions of private individuals under their jurisdiction that “may create a risk of severe and irreversible damage,” extends to risk of harm “outside their territory,” and is subject to a standard of “enhanced due diligence.”Footnote 122 The Court clearly defined this standard of conduct (for example, risk assessment, ambitious preventive measures, best available science, integration of a human rights perspective), and it added that states’ actions under the Paris Agreement should be informed by the right to a healthy environment. This includes setting targets (known as Nationally Determined Contributions) that reflect current and historical cumulative contributions to climate change, the capacity to contribute to mitigation measures, and actual circumstancesFootnote 123 as well as defining a human rights-based strategy to achieve their targets.Footnote 124
As part of its analysis of the obligations to respect and guarantee rights, the IACtHR was of the view that “States must refrain from adopting retrogressive measures” in the context of the climate emergency, noting that “any setback in climate and environmental policies that harm human rights must be exceptional, duly justified based on objective criteria, and comply with the standards of necessity and proportionality.”Footnote 125 It also affirmed the principle of non-discrimination “in the design, implementation or assessment of public policies relating to climate mitigation and adaptation.”Footnote 126 While the Court did not mention the principle of climate justice explicitly, it noted that “States must adopt differentiated and reasonable measures to ensure that vulnerable individuals and groups — including Indigenous Peoples, rural communities, persons with disabilities, children and adolescents — can exercise their rights in equal conditions in the face of the effects of climate change and state responses to address this.”Footnote 127
The IACtHR was unanimous on the recognition of an “enhanced” due diligence obligation to respect and guarantee rights under Article 1 of the American Convention, the accompanying principles of non-retrogression and non-discrimination, and the related obligations to adopt domestic legal provisions and cooperation. These principles may appear less lofty than the developments previously discussed. Nonetheless, a legal standard of behaviour of enhanced due diligence applicable to states’ obligation to prevent the degradation of the climate system is perfectly tailored to the formidable challenge of regulating the actions of an infinite number of state and non-state actors whose cumulative effects interfere with human rights.Footnote 128 It goes considerably further than the “due diligence” standard set by the ECtHRFootnote 129 and may have contributed to shaping the “stringent” standard of due diligence affirmed by the ICJ in its own opinion only months later.Footnote 130 It applies to all protected rights (for example, life, equality), something that may facilitate its adoption by legislatures and courts at the domestic level and which is the issue we turn to in the following section.
5. Implications for Canada
One key threshold question is whether the content of the Climate Emergency advisory opinion is binding for Canada, considering its advisory nature and the fact that Canada has not yet ratified the American Convention. In the first part of this section, we answer the question in the affirmative, noting that opinions from the IACtHR interpret the legal obligations contained in the Charter of the OAS as well as rules of customary international law and that Canadian courts use different techniques to ensure that the country is not placed in default of such obligations. We then discuss the implications of the advisory opinion for ongoing and future litigation, with a focus on an active petition against Canada regarding the regulation of black carbon emissions (Arctic Athabaskan Council Petition), the province of Ontario’s climate target (Mathur v Ontario), Canada’s national climate target (La Rose and Lho’imggin v Canada), and potential litigation on behalf of rivers (Mutehekau Shipu/Magpie River case). Insofar as the first three cases are concerned, we highlight instances of the Court “ruling through advice” on many of the issues raised by the plaintiffs. The Climate Emergency advisory opinion also offers rich “anticipatory adjudication” insofar as rights of Nature initiatives in Canada are concerned, including a helpful legal framework to further define the rights of the Mutehekau Shipu/Magpie River via a modern treaty, a provincial statute, or municipal bylaws.
A. Legal effects in Canada
As noted in section 2, Article 64 of the American Convention empowers the IACtHR to assist OAS members with the “interpretation of this Convention or of other treaties concerning the protection of human rights in the American states.”Footnote 131 Advisory opinions are thus, strictly speaking, not legally binding like judgments of international tribunals are; it is the obligations that they interpret that must be performed in good faith, including under the Vienna Convention. Footnote 132 In the case of the Climate Emergency advisory opinion, the Court clearly indicated in the header that three instruments have been interpreted: the American Convention, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador),Footnote 133 and the American Declaration. Footnote 134 In the text of the opinion, the Court observed that “the rights whose scope will be determined in this advisory opinion are likewise enshrined in the American Declaration on the Rights and Duties of Man.”Footnote 135
The American Declaration is widely recognized as a source of obligations for all OAS member states because it defines the human rights contained in the Charter of the OAS. Footnote 136 The charter affirms that each member, in the pursuit of its cultural, political, and economic life, “shall respect the rights of the individual and the principles of universal morality.”Footnote 137 This obligation echoes the treaty’s preamble and Article 3, in which “[t]he American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex.” The Court’s interpretation of the American Declaration thus has legal effects for OAS members that have not yet ratified the American Convention, such as the United States and Canada, because the Charter of the OAS is a binding treaty that contains international human rights obligations.Footnote 138 Moreover, some provisions of the American Declaration are part of customary international law, making them binding independently from the Charter of the OAS. Footnote 139
The IACtHR clarified this issue in a 1989 advisory opinion on the interpretation of the American Declaration:
For the member states of the Organization, the Declaration is the text that defines the human rights referred to in the Charter. Moreover, Articles 1(2)(b) and 20 of the Commission’s Statute define the competence of that body with respect to the human rights enunciated in the Declaration, with the result that to this extent the American Declaration is for these States a source of international obligations related to the Charter of the Organization. Footnote 140
The Commission as well has indicated that, “[b]y virtue of their ratification of the OAS Charter, all member states are bound by the human rights obligations incorporated in that instrument, which the political and human rights organs of the Organization have recognized are contained in and defined by the American Declaration of the Rights and Duties of Man.”Footnote 141 On this basis, it has routinely applied this interpretation of the Charter of the OAS when ruling on petitions brought against OAS members that have not ratified the American Convention. Footnote 142 This includes Canada, such as in the case of Suresh v Canada:
The Declaration became a source of legal obligation for application by the Inter-American Commission to Canada when it became a Member State of the Organization of American States (OAS). Canada deposited its instrument of ratification of the OAS Charter on January 8, 1990. Article 20 of the Inter-American Commission’s Statute, and the Rules of Procedure of the Inter-American Commission, authorize the Inter-American Commission to entertain the alleged violations of the Declaration raised by the petitioners against the State, which relate to acts or omissions that transpired after the State joined the OAS.Footnote 143
Canada’s Standing Senate Committee on Human Rights has explicitly acknowledged that “the American Declaration was a source of legal obligations for all the member States of the OAS,” stated in its 2003 report on Canada’s participation in the Inter-American System, noting that “it would be difficult for Canada to adhere to [the contrary] position since, as mentioned earlier, it became a member of the OAS after the advisory opinion of the IACtHR concerning the legally binding character of the American Declaration.”Footnote 144 Indeed, Canada spent twenty-eight years as an observer to the organization before ratifying the Charter of the OAS in 1990.Footnote 145
Canadian courts share the responsibility of ensuring that the country does not default on its international obligations. In a system of reception of international law that is a “hybrid” of monism and dualism,Footnote 146 this responsibility includes taking judicial notice of international treaties,Footnote 147 the direct incorporation of customary international law in the common law,Footnote 148 the interpretive presumption that statutes conform with international obligations (both customary and treaty based),Footnote 149 and interpreting the rights enshrined in the Canadian Charter of Rights and Freedoms (Canadian Charter)Footnote 150 so as to make them at least as protective as international human rights.Footnote 151 In the recent case of Quebec (Attorney General) v 9147-0732 Québec inc, the majority of the Supreme Court of Canada noted that international norms “have typically played a limited role of providing support or confirmation for the result reached by way of purposive interpretation.”Footnote 152 It added that, “even within that limited supporting or confirming role, the weight and persuasiveness of each of these international norms in the analysis depends on the nature of the source and its relationship to our Constitution.”Footnote 153
When such sources are binding, the IACtHR considered that courts and other national institutions have an important role to play in response to the climate emergency. It described it as one of “control of conventionality” or the responsibility that all state agents ensure that state conduct is consistent with international human rights conventions:
[W]hen deciding litigations and legal issues that may arise in the context of the climate emergency, the competent authorities should conduct due control of conventionality based on the standards developed by the Court in its case law and, in particular in this Advisory Opinion, to ensure adequate protection of human rights. These standards also result from the American Declaration, the OAS Charter, and the Inter-American Democratic Charter and are, therefore, applicable in all member countries of the inter-American system.Footnote 154
To conclude, the content of the Climate Emergency advisory opinion identifies many obligations binding on Canada, even though the opinion itself is “only” advisory and even though Canada has not yet ratified the American Convention. Analogously to references by the Supreme Court of Canada and provincial courts of appeal,Footnote 155 the opinion interprets and clarifies the legal obligations contained in the Charter of the OAS, a binding treaty that Canada has ratified, and under customary international law. In turn, Canadian courts (along with the executive and legislative powers) have the shared responsibility to abide by these obligations in the unprecedented context of the climate emergency, bearing in mind the nature of each source and its relationship to the Constitution. Of note, the American Declaration calls onto the general population to partake in this responsibility as well since, alongside rights, it lists duties owed by individuals to society and with respect to social security and welfare.Footnote 156
B. Ongoing and future litigation
i. Black carbon emissions (Arctic Athabaskan Council Petition)
There is at least one active climate-related petition against Canada on which the Climate Emergency advisory opinion has significant bearing as an example of “ruling through advice.” In 2013, the Arctic Athabaskan Council alleged that Canada’s failure to implement available black carbon emissions reduction measures contributes to warming the Arctic in violation of the rights to culture, property, health, and means of subsistence protected by the American Declaration. Footnote 157 In their detailed submission, four chiefs from Yukon, the Northwest Territories, and Alaska indicate that the council represents seventy-six communities and approximately forty-five thousand people of the Arctic. The relief sought includes asking the American Commission for an onsite visit and a hearing to investigate their claims, to declare that Canada has breached the American Declaration, and to recommend that it adopt mandatory measures to limit black carbon emissions and that it establish a plan to protect Arctic Athabaskan culture in coordination with the petitioners.Footnote 158
It is illuminating to read the Arctic Athabaskan Council’s allegations regarding the right to culture (Article XIII of the American Declaration) in light of the Climate Emergency advisory opinion. The council pointed out that “[i]n no Canadian jurisdiction are there explicit statutory requirements for addressing black carbon as a distinct pollutant,” “nor the concerns of Canada’s aboriginal peoples about the rapid warming and melting experienced in Canada’s Arctic north” as a result of these emissions.Footnote 159 The council then alleged:
[R]apid Arctic warming is damaging, and in some places possibly threatening the existence of, the subsistence way of life central to Arctic Athabaskan cultural identities. At the heart of Arctic Athabaskan peoples’ culture is hunting, trapping, fishing, and gathering. This includes the experience of participating in those activities and the community’s sharing of the foods obtained from these activities. These activities are central to Arctic Athabaskan culture and mythological heritage because they provide a basis for the elders to educate the younger members of society in traditional ways of life, kinship and bonding, and recreational enjoyment of hunting.Footnote 160
As will be recalled, the Climate Emergency advisory opinion affirmed a jus cogens obligation not to generate irreversible harm to the common ecosystem; a right to a healthy climate, free from dangerous anthropogenic interference with said system; and an enhanced due diligence standard of conduct regarding the obligations to respect and guarantee rights. This standard includes taking all necessary measures to reduce risks of degrading the global climate system and defining a human rights-based strategy to achieve the climate target set under the Paris Agreement. Whether the Arctic Athabaskan Council’s allegations meet the legal test in all three cases (that is, irreversible harm, dangerous interference, and lack of diligence) is a factual question that we cannot answer in the abstract. Canada has taken some positive steps since its 2015 chairship of the Arctic Council,Footnote 161 but scholarship warns that legislation on black carbon emissions from shipping is “either vague or non-existent”Footnote 162 and that the international governance of these pollutants remains fragmented.Footnote 163
What is certain is that the Climate Emergency advisory opinion transformed states’ obligations regarding the right to the benefits of culture and the other rights invoked by the Arctic Athabaskan Council in the context of the climate emergency. The enhanced due diligence standard sets a much higher justificatory burden regarding how Canada regulates pollutants such as black carbon, with a strong emphasis on non-discrimination, the differentiated vulnerability of Indigenous peoples, as well as intra- and inter-generational equity. Positive obligations to regulate potent GHGs also flow from the recognition of Nature as a collective subject of general interest and of an independent right to a healthy climate, all of which must now be considered by the Commission in ruling on the petition or when considering any friendly settlement reached by the parties.Footnote 164
ii. Ontario’s climate target (Mathur v Ontario)
In the case of Mathur v Ontario, seven youths aged twelve to twenty-four sued the province on the basis of the Cap and Trade Cancellation Act, 2018,Footnote 165 by which the provincial government repealed Ontario’s targets of 15 percent in emissions reductions by 2020 and 37 percent by 2030 under 1990 levels to replace them with a weaker one of 30 percent under 2005 levels by 2030.Footnote 166 Invoking Articles 7 and 15 of the Canadian Charter, they argued that their generation and future ones will face a range of devastating consequences to their lives, health, livelihood, and ability to make fundamental life choices and that these will be visited disproportionately on vulnerable communities. The Superior Court characterized the application as a positive rights one and found that “[w]hile the [new] Target falls short and its deficiencies contribute to increasing the risks of death and to the security of the person, it cannot be said that the effects of the Target bear no connection to its objective,” thereby foreclosing conclusions of arbitrariness or gross disproportionality under the Canadian Charter. Footnote 167 The Ontario Court of Appeal granted the plaintiffs’ appeal regarding the court’s characterization of the case as a positive rights one, finding that “it is not the constitutional compliance of the scheme that is challenged by the appellants, but the constitutional compliance of the government measures taken under the scheme that are in issue.”Footnote 168
Because the case was remitted for a new hearing before the same application judge, the opportunity for the courts to interpret the Canadian Charter in light of Canada’s international obligations is momentous. As the Ontario Court of Appeal noted, “there is an unexplained gap between international standards and [Ontario’s new climate] Target.”Footnote 169 In light of the Climate Emergency advisory opinion, these standards now include the jus cogens obligation not to generate irreversible harm to the common ecosystem, a right to a healthy climate,Footnote 170 and an enhanced due diligence standard in respecting and guaranteeing rights. By contrast, the Ontario auditor general has warned that the province may miss “the 2030 target by an even wider margin than the projected 3.5 Mt gap” identified in the government’s modelsFootnote 171 and the 2025 Budget Measures Act repealed the sections of the Cap and Trade Cancellation Act, 2018 that required the province to set climate targets and plans altogether.Footnote 172
The Climate Emergency advisory opinion’s ruling that “States must refrain from adopting retrogressive measures” clearly applies to the present situation, and Canadian courts should follow the analytical framework provided by the Charter of the OAS when reviewing such measures under the Canadian Charter, including the principles of exceptionality, objective justification, necessity, and proportionality.Footnote 173 This long-standing approach was recently exemplified in R v Bissonnette, where the Supreme Court of Canada noted that the International Covenant on Civil and Political Rights is “a relevant source for the interpretation of the Charter’s provisions.”Footnote 174 The obligation not to generate irreversible harm to the common ecosystem should have a particular bearing on the analysis because of its jus cogens status. As a precondition for the enjoyment of the human rights found in the American Declaration, it finds its source in the Charter of the OAS and should receive the same treatment as other international human rights treaties for the purpose of reception within Canadian law.
Jus cogens rules can also be part of customary international law,Footnote 175 in which case they are directly incorporated into the Canadian common law and provide a basis for civil actions.Footnote 176 The Court closely associated the obligation not to generate irreversible harm to the common ecosystem with the customary prohibition of transboundary damage,Footnote 177 creating the possibility that this jus cogens rule find its source in customary international law at the same time as in treaty law. This raises new questions beyond the scope of this article, including whether a new common law obligation not to generate irreversible harm to the common ecosystem exists in Canada and whether it could provide a basis for a tort action against “an officer, employee or agent” of the province exercising their operational powers in response to the climate emergency.Footnote 178
iii. Canada’s climate target (La Rose and Lho’imggin v Canada)
A similar opportunity to interpret the Canadian Charter in light of the Climate Emergency advisory opinion arises in the cases of La Rose and Lho’imggin against Canada, which were joined for the appeals from motions to strike granted by the Federal Court of Canada.Footnote 179 In Lho’imggin, two houses of the Wet’suwet’en Indigenous people argue that Canada’s national climate target for 2030 (also 30 percent under 2005 levels at the time of filing) contributed to forest insect infestations, wildfires, and a decline in forest food animals and salmon in their territories in violation of a constitutional duty to make laws for peace, order, and good government (section 91 of the Constitution Act, 1867), the rights to life and the rights of future generations (section 7 and 15 of the Canadian Charter), and a common law duty to prevent climate change.Footnote 180 In La Rose, fifteen youths aged ten to nineteen years old from across the country brought a similar challenge against the target based on their rights to life and equality and that of all present and future youth in Canada (sections 7 and 15 of the Canadian Charter) as well as the public trust doctrine.Footnote 181
Both appeals were granted, and the applicants were allowed to amend their section 7 claims. The Federal Court of Appeal found that the “claim of a right to a healthy and livable environment, and the legislative sanctioning of something less, explores the scope of section 7 and tests its boundaries. The argument is novel, but it is not doomed to fail.”Footnote 182 However, all their other claims remained struck. The Court refused the peace, order, and good government claim that the Lho’imggin applicants had framed in light of Canada’s obligations under the Paris Agreement, finding that “Section 91 is a source of Parliament’s legislative power, not a limit.”Footnote 183 It even refused to allow the applicants’ inter-generational discrimination claim to proceed under section 15, despite its observation that “the international legal community is moving towards … the promotion of intergenerational equity” and its acknowledgement of a general comment by the Committee on the Rights of the Child on this very topic.Footnote 184
The Climate Emergency advisory opinion is of direct legal applicability in both cases, and its conceptual relevance undeniable. While the Ontario Court of Appeal in Mathur found that the application was not one of positive rights, the Federal Court of Appeal commented in La Rose and Lho’imggin that current case law “does not mean that the door to positive rights under section 7 is closed”Footnote 185 and shows that “the line between positive and negative rights is at times difficult to draw.”Footnote 186 The advisory opinion is relevant to interpreting section 7 of the Canadian Charter in its negative dimension and in any eventual positive one: the IACtHR noted that states have a prevention obligation to guarantee the right to life, liberty, and security of the person (Article 1 of the American Declaration), which is subject to an enhanced due diligence standard and requires “the enactment of laws and the implementation of practices leading to the effective observance of such guarantees” and of other rights.Footnote 187 The Court reaffirmed the right to a healthy environment protected by the Charter of the OAS as a precondition for the enjoyment of other rights, such as the right to life.Footnote 188 It noted that the right to a healthy environment requires states to set emission targets under the Paris Agreement (Nationally Determined Contributions) that are based on equity and “calculated by the best available science based on a temperature increase of no more than 1.5°C, using tools such as the carbon budget, the annual mitigation gap, and the mitigation scenarios established by the IPCC” as “a minimum starting point, rather than the finishing line.”Footnote 189
Recent developments raise concerns regarding Canada’s regulation of GHG emissions. Like the province of Ontario, the country as a whole is set to miss its 2030 target, which was since enhanced to 40–45 percent below 2005 levels; emissions could in fact “rise again without coordinated policy action.”Footnote 190 In a Canada-Alberta Memorandum of Understanding that followed shortly after the Climate Emergency advisory opinion, the federal government also committed to declaring “that an Alberta bitumen pipeline to Asian markets as a priority, that offers opportunities for Indigenous co-ownership and economic benefits, is a project of national interest and can be referred to the Major Projects Office for consideration of designation under the Building Canada Act.”Footnote 191 In this context, the advisory opinion offers a useful framework to analyze the Canadian Charter claims raised in La Rose and Lho’imggin, including recognizing the climate emergency as a decisive interpretive element and applying enhanced due diligence as the standard for guaranteeing the right to life.
iv. Rights of Nature (Mutehekau Shipu/Magpie River)
In two coordinated resolutions, the Ekuanitshit Innu Council and the Regional Municipality of Minganie, situated within Nitassinan, the ancestral territory of the Innu on Quebec’s North Shore, declared that “as a legal person, the Mutehekau Shipu/Magpie River and its watershed possess the following fundamental rights, in accordance with the beliefs, customs and practices of the Innu of Ekuanitshit: the right to live, exist and flow, the right to have its natural cycles respected, the right to evolve naturally, to be preserved and to be protected, the right to maintain its natural biodiversity, the right to perform essential functions within its ecosystem, the right to maintain its integrity, the right to be free from pollution, the right to regeneration and restoration, the right to sue.”Footnote 192 This groundbreaking initiative, one of the first in Canada and around the world, responds to the “threat from hydroelectric development” on the Mutehekau/Magpie, a majestic river with a watershed of 7,650 square kilometres that flows south for 290 kilometres towards the Saint Lawrence River.Footnote 193
Conceptually, both resolutions note that “a paradigm shift must take place in order to conceive of Nature as a subject of rights to be respected and preserved for future generations and for the benefit of other species” and affirm the urgency of “transform[ing] the structures and systems that are at the origin of climate change and environmental degradation, in order to ensure a healthy and ecologically balanced environment for the survival of communities.”Footnote 194 Practically, the resolutions establish that the Mutehekau/Magpie will be represented by guardians appointed by both local governments, with the duty to act in the rivers’ name to protect its fundamental rights and the powers to take legal action on its behalf, to seek reparation for harm suffered, and to receive compensation for the river’s benefit.Footnote 195 This development is closely linked to the IACtHR’s case law, providing examples of two-way norm diffusion and of how local actors are involved in the “legal mediation” of international law.Footnote 196 On the one hand, both resolutions explicitly referenced the Court’s 2017 advisory opinion on Environment and Human Rights, in which rivers and other natural elements were recognized as having autonomous legal interests.Footnote 197 On the other hand, the Climate Emergency advisory opinion refers to this Canadian example when it “notes a growing tendency in legislation and case law to recognize Nature as a subject of rights.”Footnote 198
The implications of the Climate Emergency advisory opinion for the legal personality recognition of the Mutehekau/Magpie and for similar initiatives in the future are twofold.Footnote 199 First, further steps may be needed by the Ekuanitshit Innu Council and the Regional Municipality of Minganie to define the appointment process of the guardians, their responsibilities, and the applicable procedures. As noted by Stéphanie Roy,Footnote 200 this could take place through the adoption of local bylaws or in a modern treaty finally resolving the Innu’s 1979 land claims,Footnote 201 as was the case with the Whanganui River in Aotearoa New Zealand.Footnote 202 The National Assembly of Québec could also reaffirm the two simultaneous resolutions and provide further detail via legislation, thereby dispelling any concerns that such a legal personality recognition exceeded the Band Council and regional municipality’s jurisdiction.Footnote 203 Whether through bylaws, a modern treaty, or a provincial statute, the advisory opinion is directly relevant to further clarifications of the rights of the Mutehekau/Magpie. This includes the Court’s finding that Nature has the right to conserve its essential ecological processes (already well reflected in the twin resolutions) and to a healthy climate and the corresponding obligations of states not to cause significant environmental damage and to guarantee the protection, restoration, and regeneration of ecosystems.Footnote 204
Second, as an example of “anticipatory adjudication,” the Climate Emergency advisory opinion is directly relevant to any future litigation by the guardians on behalf of the Mutehekau/Magpie or to similar rights of Nature litigation.Footnote 205 One of the most concrete risks to the biodiversity and integrity of the river is hydroelectric damming, as contemplated in Hydro-Québec’s 2009–13 Strategic Plan.Footnote 206 This was abandoned in the 2022–26 plan, but fast-growing electricity needs make this risk a possibility in the future. Another risk, more indirect but also more immediate, results from the climate emergency and Canada’s poor climate record discussed above.Footnote 207 Could the guardians sue Hydro-Québec for breach of civil responsibility on behalf of the Mutehekau/Magpie or invoke its right to a healthful environment protected by Quebec’s Charter of Human Rights and Freedoms (Quebec Charter)?Footnote 208 Could they seek judicial review of any government authorizations on its behalfFootnote 209 or invoke the right to life under the Canadian Charter (section 7) in the wake of the Mathur, La Rose, and Lho’imggin cases?Footnote 210 Could they participate on its behalf in public hearings held by the Bureau d’audiences publiques sur l’environnement?Footnote 211
The clearest approach to establishing the rights of Nature as “institutional rights” in Canada appears to be modern treaties or legislation to that effect.Footnote 212 Absent this, the courts may well have to consider whether “person” under the Civil Code of Québec and the Québec Charter, and “everyone” under the Canadian Charter, extends to elements of the natural world, a task that is no doubt legally complex and ontologically challenging. In any such case, interpreting domestic law instruments in accordance with the Charter of the OAS and Canada’s other international obligations will be invaluable. Indeed, the Climate Emergency advisory opinion offers a detailed framework within which to consider the extent to which, like in Edwards v Canada, “the necessity of the times” requires evolutive interpretations given the climate emergency.Footnote 213
6. Conclusion
This article analyzes the IACtHR’s Climate Emergency advisory opinion and assesses its implications for Canada. After considering some of the legal developments that have attracted the most attention by early commentators — “climate emergency” as a decisive interpretive element, a peremptory obligation (jus cogens) not to generate irreversible harm to the common planetary ecosystem, a new right to a healthy climate, and the enhanced due diligence obligation regarding the climate system — we find that the Climate Emergency advisory opinion aptly demonstrates the legally disruptive nature of climate change.Footnote 214 This disruption of international law will inevitably be reflected in domestic law: according to the rules of reception of international law in Canada, judicial interpretations of the Charter of the OAS and customary international law must be incorporated by the courts within Canadian law to avoid placing the country in default of its international obligations.
This reception process is obviously challenging in view of the difficult global political context in which the Climate Emergency advisory opinion was rendered. In response to mounting pressures on Canada by the United States, the federal government and some provinces announced the prioritization of multiple GHG-intensive major industrial projects. These include the new bitumen pipeline mentioned in section 5, doubling the capacity of a fossil liquefied natural gas (LNG) facility in Kitimat, and building a new floating LNG liquefaction and export facility in Pearse Island, British Columbia.Footnote 215 This, we warn, places Canada on a collision course with the many members of the international community who advocate to stabilize the global climate system and with the rules of international law on which they rely.
In this context, the Climate Emergency advisory opinion offers two unique opportunities to legislative, executive, and judicial branches of government in Canada, including Indigenous governments. From a practical perspective, the advisory opinion calls for a future with a safe climate and offers a detailed normative framework as a basis for collaboration between nations. Decisively acting on this call could allow for the materialization of this future and avoiding the large-scale “injury and death” caused by heatwaves, floods, droughts, forest fires, and air pollution as well as the “extraordinary economic losses” associated with them.Footnote 216 Without under-estimating the formidable political challenge that this represents or overlooking the fact that many aspects of the advisory opinion need to be clarified over time, we consider that Canada should follow the guidance that it provides at the same time as it engages with other pressing geopolitical realities.
From a legal perspective, decision-makers in the public and private sectors have the related opportunity to prevent that a climate change legal action be decided against Canada at the Commission, the International Tribunal for the Law of the Sea, or the ICJ. By following the obligations and other norms clarified by the Climate Emergency advisory opinion by way of “anticipatory adjudication,” members of legislatures and executive branches of government can reduce the significant legal risk that Canada be found in breach of international law and ordered to pay reparations. Canada’s courts also have a key role to play to ensure the compatibility of domestic law with the advisory opinion, the Charter of the OAS, and other sources of international law, especially through their interpretations of statutes and of the Canadian Charter and the direct incorporation of customary international law. This role has been set out for them in the American Declaration since 1948,Footnote 217 and it was reiterated in the advisory opinion as it “ruled through advice” on several legal issues currently being litigated.Footnote 218
To conclude, the Climate Emergency advisory opinion offers Canadians yet another opportunity to escape the contradictions that mar their commitments to human rights, the environment, and multilateralism. Put simply, Canada cannot pretend to be a champion of any of them, at home or abroad, if it breaches its international obligations regarding the climate emergency. On the contrary, in times of unprecedented attacks on the international rule of law, opening up to innovative legal developments within the Inter-American Human Rights System and beyond offers an opportunity for true regional and global leadership.Footnote 219
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