Introduction
Over the course of the period from the end of 2022 to early 2023, requests for advisory opinions on climate change were, for the first time, made to the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), and the Inter-American Court of Human Rights (IACtHR).
The request to the ICJ was about the obligations of states with respect to climate change and the legal consequences of these obligations, especially with regard to, inter alia, Small Island Developing States (SIDS) and other vulnerable developing countries. It was made by the UN General Assembly through a resolution that was developed by a cross-regional “core group” led by Vanuatu and also including Angola, Antigua and Barbuda, Bangladesh, Costa Rica, Germany, Liechtenstein, Micronesia, Morocco, Mozambique, New Zealand, Portugal, Romania, Samoa, Sierra Leone, Singapore, Uganda, and Vietnam. The draft resolution was first circulated to UN member states on November 29, 2022, and thereafter negotiated over the course of several months. It was adopted by the General Assembly on March 29, 2023. While the negotiations in the United Nations were ongoing, the request to ITLOS, which was on obligations of states parties under the UN Convention on the Law of the Sea (UNCLOS) relating to climate change, was submitted on December 12, 2022, by the Commission of Small Island States on Climate Change and International Law (COSIS). The request to the IACtHR, which was on obligations of states to respond to the “climate emergency” within the framework of international human rights law, was submitted on January 9, 2023 by Chile and Colombia.
The ICJ Request
In September 2021, Vanuatu announced its intention to seek an advisory opinion from the ICJ on climate change. It explained that this initiative, which had been pushed for by the youth group Pacific Island Students Fighting Climate Change, was necessitated by its vulnerability and that of other SIDS to climate change and the need for increased action to address the global climate crisis. Over the next months, Vanuatu lobbied other countries to support this initiative and also formed the core group of UN member states to take the initiative forward in the General Assembly. The discussions within the core group leading to the circulation of the initial draft of the resolution and the negotiations that preceded the finalization and tabling of the draft resolution were extensive, with the importance of the subject matter and the diverse interests involved leading to a range of perspectives being raised for consideration. The resolution was adopted without a vote by the General Assembly.Footnote 1 A total of 132 countries co-sponsored the resolution, and many countries delivered statements that expressed strong support for the resolution, as well as appreciation to Vanuatu for its leadership and the core group for its work.
Turning to the text of the resolution, the preamble of the resolution, which provides the legal and political context to the questions posed to the ICJ, essentially has five components: the recall of past relevant resolutions on climate change;Footnote 2 references to the main legal instruments and norms relevant to climate change;Footnote 3 recognition of the scientific consensus on climate change;Footnote 4 acknowledgment of the seriousness of climate change;Footnote 5 and other key considerations.Footnote 6 The operative part was discussed at great length and depth in the core group and in the negotiations with the wider UN membership, and the final text put forward by the core group represented a careful balance of the different positions that were expressed and “a desire to further strengthen … collective efforts to deal with climate change, give climate justice the importance it deserves, and bring the entirety of international law to bear on this unprecedented challenge.”Footnote 7 It begins with a chapeau that highlights the key relevant legal instruments and norms, encompassing, among others, those relating to climate change, the law of the sea, and human rights. It then poses questions to the ICJ to clarify the obligations of states under international law in relation to the adverse effects of climate change, and to clarify the legal consequences under these obligations for states that have caused significant harm by their acts and omissions.Footnote 8
The ITLOS Request
COSIS was formed by an agreement between Antigua and Barbuda and Tuvalu, which was entered into on October 31, 2021, in the margins of Climate Change COP26 in Glasgow.Footnote 9 Membership of COSIS is open to members of the Alliance of Small Island States (AOSIS), and a key reason for its establishment was to address the existential threat of climate change to small island states. As of the time of writing, membership of COSIS, in addition to its founding members, comprises the Bahamas, Niue, Palau, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and Vanuatu. The COSIS founding agreement specifies its mandates as including to promote and contribute to the definition, implementation, and progressive development of the rules and principles of international law concerning climate change.Footnote 10 The agreement specifically authorizes COSIS to request advisory opinions from ITLOS on any legal question within the scope of UNCLOS.Footnote 11
The request for an advisory opinion on climate change, which COSIS submitted to ITLOS, posed questions on the obligations under UNCLOS to prevent, reduce, and control pollution of the marine environment in relation to the deleterious effects that result, or are likely to result, from climate change and to protect and preserve the marine environment in relation to climate change impacts.Footnote 12 As of the deadline of June 16, 2023, set by ITLOS for written submissions, there have been over 50 submissions made from states parties to UNCLOS, international organizations, and civil society.
The IACtHR Request
The request for an advisory opinion relating to climate change that Chile and Colombia submitted to the IACtHR was made under Article 64(1) of the American Convention on Human Rights.Footnote 13 The request seeks clarification from the IACtHR on the scope of state obligations, in their individual and collective dimension, 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 the planet. Colombia and Chile further indicated in the request that they were experiencing the daily challenge of dealing with the consequences of the climate emergency, including a proliferation of droughts, floods, landslides, and fires, and that such events revealed the need for an urgent response based on the principles of equity, justice, cooperation, and sustainability, with a human rights-based approach.
In accordance with the IACtHR's rules of procedure, all interested parties, beyond member states to the Organization of American States, are able to present written opinions on the issues covered by the request that they consider relevant according to their area of expertise or their field of work or interest. Those that submit written opinions will be able to participate in the oral proceedings thereafter.
Concluding Observations
The three requests are significant developments in the international community's efforts to address climate change. Although advisory opinions have no binding authority, they can have legal weight and moral authority. The requested opinions, if given, can provide clarity on international law in the area of climate change and, in so doing, provide impetus for increased climate action. In this regard, they may have a positive impact on ongoing processes in the UN climate regime, including in terms of accelerating mitigation action, climate finance, and political will for increased ambition to meet the goals of the Paris Agreement.
Seventy-seventh session
Agenda item 70
Report of the International Court of Justice
Resolution adopted by the General Assembly on 29 March 2023
[without reference to a Main Committee ( A/77/L.58 )]
77/276. Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change
The General Assembly,
Recognizing that climate change is an unprecedented challenge of civilizational proportions and that the well-being of present and future generations of humankind depends on our immediate and urgent response to it,
Recalling its resolution 77/165 of 14 December 2022 and all its other resolutions and decisions relating to the protection of the global climate for present and future generations of humankind, and its resolution 76/300 of 28 July 2022 on the human right to a clean, healthy and sustainable environment,
Recalling also its resolution 70/1 of 25 September 2015 entitled “Transforming our world: the 2030 Agenda for Sustainable Development”,
Recalling further Human Rights Council resolution 50/9 of 7 July 2022Footnote 1 and all previous resolutions of the Council on human rights and climate change, and Council resolution 48/13 of 8 October 2021,Footnote 2 as well as the need to ensure gender equality and empowerment of women,
Emphasizing the importance of the Charter of the United Nations, the Universal Declaration of Human Rights, Footnote 3 the International Covenant on Civil and Political Rights,Footnote 4 the International Covenant on Economic, Social and Cultural Rights, Footnote 5 the Convention on the Rights of the Child,Footnote 6 the United Nations Convention on the Law of the Sea, Footnote 7 the Vienna Convention for the Protection of the Ozone Layer, Footnote 8 the Montreal Protocol on Substances that Deplete the Ozone Layer, Footnote 9 the Convention on Biological DiversityFootnote 10 and the United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, Footnote 11 among other instruments, and of the relevant principles and relevant obligations of customary international law, including those reflected in the Declaration of the United Nations Conference on the Human Environment Footnote 12 and the Rio Declaration on Environment and Development, Footnote 13 to the conduct of States over time in relation to activities that contribute to climate change and its adverse effects,
Recalling the United Nations Framework Convention on Climate Change, Footnote 14 the Kyoto ProtocolFootnote 15 and the Paris Agreement,Footnote 16 as expressions of the determination to address decisively the threat posed by climate change, urging all parties to fully implement them, and noting with concern the significant gap both between the aggregate effect of States’ current nationally determined contributions and the emission reductions required to hold the increase in the global average temperature to well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 degrees Celsius above pre-industrial levels, and between current levels of adaptation and levels needed to respond to the adverse effects of climate change,
Recalling also that the United Nations Framework Convention on Climate Change and the Paris Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances,
Noting with profound alarm that emissions of greenhouse gases continue to rise despite the fact that all countries, in particular developing countries, are vulnerable to the adverse effects of climate change and that those that are particularly vulnerable to the adverse effects of climate change and have significant capacity constraints, such as the least developed countries and small island developing States, are already experiencing an increase in such effects, including persistent drought and extreme weather events, land loss and degradation, sea level rise, coastal erosion, ocean acidification and the retreat of mountain glaciers, leading to displacement of affected persons and further threatening food security, water availability and livelihoods, as well as efforts to eradicate poverty in all its forms and dimensions and achieve sustainable development,
Noting with utmost concern the scientific consensus, expressed, inter alia, in the reports of the Intergovernmental Panel on Climate Change, including that anthropogenic emissions of greenhouses gases are unequivocally the dominant cause of the global warming observed since the mid-20th century, that human-induced climate change, including more frequent and intense extreme events, has caused widespread adverse impacts and related losses and damages to nature and people, beyond natural climate variability, and that across sectors and regions the most vulnerable people and systems are observed to be disproportionately affected,
Acknowledging that, as temperatures rise, impacts from climate and weather extremes, as well as slow-onset events, will pose an ever-greater social, cultural, economic and environmental threat,
Emphasizing the urgency of scaling up action and support, including finance, capacity-building and technology transfer, to enhance adaptive capacity and to implement collaborative approaches for effectively responding to the adverse effects of climate change, as well as for averting, minimizing and addressing loss and damage associated with those effects in developing countries that are particularly vulnerable to these effects,
Expressing serious concern that the goal of developed countries to mobilize jointly USD 100 billion per year by 2020 in the context of meaningful mitigation actions and transparency on implementation has not yet been met, and urging developed countries to meet the goal,
Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an advisory opinion on the following question:
“Having particular regard to the Charter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment and the duty to protect and preserve the marine environment,
(a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations;
(b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
(i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”
64th plenary meeting
29 March 2023
Registrar
International Tribunal for the Law of the Sea
Am lnternationalen Seegerichtshof l
22609 Hamburg Germany
12 December 2022
Re: Request for Advisory Opinion
Excellency,
We have the honour to inform you, in our capacity as the Co-Chairs of the Commission of Small Island States on Climate Change and International Law (the "Commission"), representing the Commission pursuant to Article 3(3) of the Agreement for the Establishment of the Commission (the "Agreement"), that we hereby submit a request for an advisory opinion from the International Tribunal for the Law of the Sea (the "Tribunal") on the legal questions set out below.
On 31 October 2021, the Agreement established the Commission as an international organization with Antigua and Barbuda and Tuvalu as the original signatories. It was duly registered with the Secretariat of the United Nations in accordance with Article 102 of the Charter of the United Nations, and a Certificate of Registration was issued on 3 February 2022. Pursuant to Article 3(1) of the Agreement, Membership in the Commission is open to all Members of the Alliance of Small Island States. Thus far, instruments of accession have been deposited by the Republic of Palau,Footnote ** Niue, the Republic of Vanuatu, and Saint Lucia.
Article 21 of the Statute of the Tribunal provides:
The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.
Article 138 of the Rules of the Tribunal provides that the Tribunal may give an advisory opinion "on a legal question if an international agreement related to the purposes of the Convention specifically provides for the submission to the Tribunal of a request for such an opinion." Article 138 further provides that such a request for an advisory opinion "shall be transmitted to the Tribunal by whatever body is authorized by or in accordance with the agreement to make the request to the Tribunal" (emphases added).
In this respect, Article 2(2) of the Agreement provides (emphasis added):
Having regard to the fundamental importance of oceans as sinks and reservoirs of greenhouse gases and the direct relevance of the marine environment to the adverse effects of climate change on Small Island States, the Commission shall be authorized to request advisory opinions from the International Tribunal for the Law of the Sea ("ITLOS") on any legal question within the scope of the 1982 United Nations Convention on the Law of the Sea, consistent with Article 21 of the ITLOS Statute and Article 138 of its Rules.
On these bases, and pursuant to a unanimous Decision of its Members in accordance with Article 3(5) of the Agreement, the Commission decided at a duly constituted meeting on 26 August 2022 to refer the following legal questions to the Tribunal for an advisory opinion:
What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (the "UNCLOS"), including under Part XII:
(a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?
(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?
In accordance with Article 131 of the Rules of the Tribunal, we have enclosed copies of (1) the Decision of the Commission, (2) the Agreement, and (3) the Certificate of Registration. We also submit a dossier of documents likely to throw light upon the question.
We have appointed Payam Akhavan and Catherine Amirfar as the Commission's counsel in these proceedings, acting as representative and co-representative respectively.
Please address all correspondence to:
Commission of Small Islands States on Climate Change and International Law
c/o Payam Akhavan (payam.akhavan@utoronto.ca)
Catherine Amirfar (camirfar@debevoise.com)
Debevoise & Plimpton, 919 Third Avenue
New York, N.Y. I 0022 United States of America
Please accept, Excellency, the assurances of our highest consideration.
THE CO-CHAIRS OF THE COMMISSION OF SMALL ISLAND STATES ON CLIMATE CHANGE AND INTERNATIONAL LAW
FOR THE GOVERNMENT OF ANTIGUA AND BARBUDA FOR THE GOVERNMENT OF TUVALU
January 9, 2023
Request for an advisory opinion on the Climate Emergency and Human Rights submitted to the Inter-American Court of Human Rights by the Republic of Colombia and the Republic of Chile
I. Introduction
The Republic of Colombia and the Republic of Chile (hereinafter “Colombia” and “Chile” or “the applicants”) submit this request for an advisory opinion to the Inter-American Court of Human Rights (hereinafter, “the Court” or “IACtHR”) 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.
Our two countries are experiencing the daily challenge of dealing with the consequences of the climate emergency, including a proliferation of droughts, floods, landslides and fires. These events reveal the need for an urgent response based on the principles of equity, justice, cooperation and sustainability, with a human rights-based approach.
The aforementioned environmental problems also occur throughout the Americas and the rest of the world, with a significant impact on human rights, and are jeopardizing future generations. Nevertheless, the international community does not experience the effects of climate change uniformly. Unfortunately, the effects are now being felt by those communities that are the most vulnerable owing to their geography, socioeconomic and climate conditions, and infrastructure, as well as by several countries of the Americas. Moreover, it is significant that those communities and countries experience the said effects in a way that is disproportionate to their contribution to climate change.
The Republics of Colombia and Chile are conscious of the relevance of the human right to a healthy environment and its close relationship to a series of substantive and procedural rights that have an impact on the life, survival and development of present and future generations and that are protected by the American Convention on Human Rights (hereinafter, “the American Convention” or “ACHR”) and numerous inter- American and universal human rights and environmental treaties.Footnote 1 In this regard, human rights not only provide a necessary perspective from which to assess the consequences of the emergency, but also essential tools to seek solutions that are opportune, just, equitable and sustainable.
This is why the States of Colombia and Chile consider it necessary to move forward with the process of defining the scope of the relevant obligations established in the American Convention and other inter-American treaties to confront the situations arising from the climate emergency,Footnote 2 their causes and consequences. In addition, the intention is to promote measures to guarantee human rights, and also the public policies required to respond to this phenomenon in an urgent, equitable, just and sustainable manner.
Consequently, in order to advance and accelerate the responses to the climate emergency by each State, collectively, regionally and globally, we are posing a series of questions to the Court that will allow it to provide guidance towards human rights-based solutions with an intersectional perspective.
II. The climate emergency and its consequences from a human rights perspective
We are facing a climate emergency with a devastating potential for life on earth.Footnote 3 The political and scientific consensus described in the Intergovernmental Panel on Climate Change (IPCC) special report on Global Warming of 1.5°C, reveals that if global warming continues to increase at its actual rhythm, it could reach 1.5°C between 2030 and 2052Footnote 4 and, according to some experts, this would constitute a serious threat to human survival.Footnote 5
Moreover, according to the IPCC, climate change has already begun to cause adverse impacts around the world, including loss of ecosystems, reduced food security, increased migration and displacement, violations of human rights, and increased inequality.Footnote 6 If we fail to limit global warming to a maximum increase of 1.5°C, as established in the Paris Agreement,Footnote 7 these adverse effects will be exacerbated and humanity will approach a point of no return, the consequences of which will be irreversible harm, including losses and damage, especially in scenarios of insufficient climate action. The course of humanity's common history depends on the adoption of immediate measures to take up this challenge at the global level.
As Michelle Bachelet stressed in her final statement as United Nations High Commissioner for Human Rights: “As we speak, the world continues to be thrust even deeper into crisis – intensifying conflicts, profound inequalities and climate change as overhanging threats to our very existence.” Footnote 8 While, in its February 2022 report, the IPCC considered that temperature increases and extreme weather events resulting from human activities were causing irreversible impacts more rapidly than our capacity to adapt to the changes.Footnote 9
The adverse impacts of global warming are evident throughout the world.Footnote 10 However, as already mentioned, certain communities and countries face particularly severe consequences. Thus, the climate emergency has a differentiated and devastating impact in certain geographical regions and on certain vulnerable groups, such as children, indigenous peoples and peasant farmer communities, and this may become more acute if emissions are not reduced significantly accompanied by urgent measures of adaptation.Footnote 11 The situation will get worse if we exceed the thresholds established by the scientific community.Footnote 12
In the case of the Americas, the Fifth Assessment Report of the IPCC indicates that decreased water resources due to glacier retreat in the Andes and changes in regional rainfall cycles could have a significant impact on the population.Footnote 13 Also, an increase in sea level and sea surface temperatures will have an impact on coastal communities, water supplies and economies throughout the region.Footnote 14 Moreover, this may have a disproportionate impact on the coastal and island nations of the Caribbean basin.Footnote 15
The Andes are among the most sensitive regions to climatic-related migration and displacement.Footnote 16 In Colombia, an increase of more than 1.5°C will result in an increase in the intensity and frequency of extreme temperatures, storms, floods, landslides and heatwaves.Footnote 17 The Amazon forest, one of the world's largest biodiversity and carbon repositories is highly vulnerable.Footnote 18 Indeed, the Amazon region is home to 40% of the remaining tropical forests in the world and 25% of terrestrial biodiversity.Footnote 19 Furthermore, if the rate of deforestation of the Amazon continues and exceeds the tipping point permitted by the deforestation of the biome, this will have a devastating impact on rainfall regulation.Footnote 20 This would also have devastating effects not only for our region but also globally insofar as it could contribute to the “Hothouse Earth” pathway.Footnote 21
Among other impacts, it is estimated that, in the Andean region, there would be an increase of 100-200% in the population affected by floods; an increased incidence of diseases such as malaria, dengue and chikungunya; a negative impact on up to 85% of the region's flora and fauna; a decrease in agricultural production owing to increasingly more frequent droughts; a reduction in agriculture owing to the increase in temperature, and a reduction in fish stocks due to ocean acidification.Footnote 22 According to the IPCC, this will doubtlessly result in an increase in human mobility and there is evidence that this is already occurring. This displacement will have differentiated impacts on populations in situations of vulnerability, including coastal populations, island inhabitants, indigenous peoples, Afro-descendant communities, and peasant farmers.Footnote 23
In addition, the adverse effects of climate change are felt more acutely by those segments of the population that are already in vulnerable situationsFootnote 24 owing to factors such as geography – rural and coastal areas - poverty, gender, age, indigenous or minority status, national or social origin, birth or other status, and disability.Footnote 25 For example, in a report of July 2022, the UN Special Rapporteur on the rights of migrants underscored that 80 per cent of people currently displaced by climate-related events are women and girls.Footnote 26 Moreover, the adverse impacts of climate change are exacerbating migration with differentiated effects for members of indigenous peoples and Afro-descendant communities. This confirms the need to adopt an intersectional approach in this matter.
Consequently, there is a close relationship between the climate emergency and the violation of human rights.Footnote 27 At the same time, human rights laws and regulations can help accelerate the response to the climate emergency, promoting policies to ensure that key stakeholders comply with the obligation to respect and ensure human rights. Debate on this issue within the framework of a regional court will allow not only national or regional obligations to be addressed from a human rights perspective, but also those related to international cooperation, and the shared but differentiated obligations.
III. The need for inter-American standards to accelerate the response to the climate emergency
Given the climate emergency and its impacts, it is necessary to take urgent mitigation and adaptation measures that enable us to address the crisis. Even though the measures that are required may be diverse, the human rights obligations can provide basic guidelines to expedite the response in a just, equitable and sustainable manner.
In 2017, at the request of the Republic of Colombia, the Inter-American Court issued an advisory opinion on the relationship between the environment and human rights. In this opinion, the Court recognized the right to a healthy environment as an individual and autonomous right, referring to the adverse effects of climate changeFootnote 28 and mentioning the obligation of States to avoid transboundary environmental damage that could violate the human rights of persons outside their territory.Footnote 29 This opinion was fundamental for expanding the understanding of the interrelationship between the environment and human rights, and national and regional policies related to the guarantee of such rights.
However, it is necessary to further clarify the grounds for, and the scope of, the human rights affected by the climate emergency, and also the State obligations to address this, individually and collectively, addressing its causes and consequences urgently and taking into account considerations of equity, justice, prudence and sustainability.
Therefore, determining the scope of human rights obligations in relation to the climate emergency will help clarify the meaning, desirability, and scope of the obligations of the nation State, and of sub-national entities (cities, departments, or regions), and their responsibilities with regard to non-state actors, as well as the regional, transnational and global obligations in this regard.
Furthermore, for international human rights law, the protection of life, survival, and the rights of individuals, peoples and communities is an essential yardstick.Footnote 30 In this regard, it promotes the adoption of measures that take into account current generations in all their diversity, differentiated geographical impacts, and the rights of future generations.
In addition, international human rights treaties and environmental treaties have an important collective dimension as guarantors of rights. They also establish reference points in relation to human rights and environmental protection for interpreting the scope of the shared but differentiated responsibilities of every State in relation to the climate emergency.Footnote 31 This requires differentiating the contribution that their emissions make to climate change, and the differentiated impacts of this on their subsistence, considering the protection of essential biomes in order to respond to the crisis (as in the case of the Amazonian biome). The shared but differentiated responsibilities should also be examined in relation to the need to reduce to a minimum, prevent, or deal with the damage and losses caused by global warming and the climate emergency, and the need to establish mechanisms and practices that permit restoration and adaptation at the national, subregional, regional and global level in a just, equitable and sustainable manner.
In this regard, the Inter-American Court's interpretation of the different instruments of the inter-American system can provide important standards that integrate the obligations derived from diverse international regulatory frameworks, including those on climate change. These can guide the measures that should be taken to guarantee human rights, including the rights to a healthy environment, to survival, to life, etc.
At the international level, litigation has been undertaken and relevant strategies developed to determine State obligations in relation to the climate emergency. For example, Vanuatu is building a coalition of Pacific and Caribbean countries seeking an advisory opinion from the International Court of Justice focused, principally, on the issue of damage and losses, and on State obligations under multilateral agreements relevant for the effects of climate change.Footnote 32 In addition, the European Court of Human Rights is processing numerous cases related to climate change,Footnote 33 three of which have been declared admissible and will soon be heard by the Grand Chamber.Footnote 34 Similarly, the United Nations Human Rights Committee recently adopted views on an individual communication in which it found Australia responsible for failing to protect the human rights to the enjoyment of their own culture, and to privacy and family life of the indigenous communities of the Torres Strait Islands, because it had not taken adequate measures to protect them from the adverse impacts of climate change.Footnote 35
On our continent, over the almost fifty years of its existence, the advisory opinions of the Inter-American Court have provided the States with important parameters to ensure that human rights are guaranteed.Footnote 36 These opinions have examined issues such as states of emergency, freedom of expression, equality, and a healthy environment.Footnote 37 The resulting guidelines have been relevant to clarify the scope of international human rights obligations in a context in which numerous constitutions and the case law of national high courts have accorded constitutional ranking to the human rights obligations resulting from the relevant treaties.
Therefore, a possible expert opinion of the Inter-American Court will provide both the requesting countries and the other countries of the region with guidelines for the development of local, national and international policies and programs – in keeping with the commitments made under the American Convention and other human rights and environmental treaties – that enable them to better address the climate crisis, taking into account the obligations of prevention, guarantee and protection.
IV. Questions for the Inter-American Court
A. Regarding State obligations derived from the duties of prevention and the guarantee of human rights in relation to the climate emergency
Bearing in mind the State duty of prevention and the obligation to guarantee the right to a healthy environment,Footnote 38 together with the scientific consensus reflected in the reports of the Intergovernmental Panel on Climate Change (IPCC)Footnote 39 concerning the severity of the climate emergency and the urgency and duty to respond adequately to its consequences, as well as to mitigate its pace and scale:
1. What is the scope of the State's duty of prevention with regard to climate events caused by global warming, including extreme events and slow onset events, based on the obligations under the American Convention, in light of the Paris Agreement and the scientific consensus which recommend that global temperatures should not increase beyond 1.5°C?Footnote 40
2. In particular, what measures should States take to minimize the impact of the damage due to the climate emergency in light of the obligations established in the American Convention? In this regard, what differentiated measures should be taken in relation to vulnerable populations or based on intersectional considerations?
2.A. What should a State take into consideration when implementing its obligations: (i) to regulate; (ii) to monitor and oversee; (iii) to request and to adopt social and environmental impact assessments; (iv) to establish a contingency plan, and (v) to mitigate any activities under its jurisdiction that exacerbate or could exacerbate the climate emergency?
2.B. What principles should inspire the actions of mitigation, adaptation and response to the losses and damage resulting from the climate emergency in the affected communities?
B. Regarding State obligations to preserve the right to life and survival in relation to the climate emergency in light of science and human rights
Taking into account the right of access to information and the obligations concerning the active production of information and transparency reflected in Article 13Footnote 41 and derived from the obligations under Articles 4(1) and 5(1) of the American Convention,Footnote 42 in light of articles 5 and 6 of the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement):Footnote 43
1. What is the scope that States should give to their obligations under the Convention vis-à-vis the climate emergency, in relation to:
(i) Environmental information for every individual and community, including such information related to the climate emergency;
(ii) The climate adaptation and mitigation measures to be adopted to respond to the climate emergency and the impacts of such measures, including specific “just transition” policies for groups and individuals who are particularly vulnerable to the effects of global warming;
(iii) Responses to prevent, minimize and address economic and non- economic damage and losses associated with the adverse effects of climate change;
(iv) Production of information and access to information on greenhouse gas emissions, air pollution, deforestation, and short- lived climate forcers; analysis of activities and sectors that contribute to emissions, or other factors, and
(v) Determination of human impacts, such as human mobility – migration and forced displacement – effects on health and on life, non-economic losses, etc.?
2. Pursuant to State obligations under the American Convention, to what extent does access to environmental information constitute a right the protection of which is necessary to guarantee the rights to life, property, health, participation, and access to justice, among other rights that are negatively affected by climate change?
C. Regarding the differentiated obligations of States in relation to the rights of children and the new generations in light of the climate emergency
Pursuant to Article 19 of the American Convention,Footnote 44 in light of the corpus iuris of international human rights law, including article 12 of the Convention on the Rights of the Child,Footnote 45 and recognizing the consensus of the scientific community which identifies children as the group that is most vulnerable in the long term to the imminent risks to life and well-being as a result of the climate emergency:Footnote 46
1. What is the nature and scope of the obligation of a State Party to adopt timely and effective measures with regard to the climate emergency in order to ensure the protection of the rights of children derived from its obligations under Articles 1, 4, 5, 11 and 19 of the American Convention?
2. What is the nature and scope of a State Party's obligation to provide children with significant and effective means to express their opinions freely and fully, including the opportunity to initiate or, in any other way, to participate in any administrative or judicial proceedings concerning prevention of the climate change that represents a threat to their lives?
D. Regarding State obligations arising from consultation procedures and judicial proceedings owing to the climate emergency
Based on Articles 8 and 25 of the American Convention,Footnote 47 and taking into account that scientific research has indicated that there is a limit to the amount of greenhouse gases that we can continue to emit before reaching dangerous and irreversible climate change, and that we could reach this limit within the current decade:Footnote 48
1. What is the nature and scope of a State Party's obligation in relation to the establishment of effective judicial remedies to provide adequate and timely protection and redress for the impact on human rights of the climate emergency?
2. To what extent should the consultation obligation take into account the consequences of an activity on the climate emergency or the emergency projections?
E. Regarding the Convention-based obligations of prevention and the protection of territorial and environmental defenders, as well as women, indigenous peoples, and Afro-descendant communities in the context of the climate emergency
Pursuant to the obligations arising from Articles 1(1) and 2 of the American ConventionFootnote 49 and in light of article 9 of the Escazú Agreement:Footnote 50
1. What measures and policies should States adopt to facilitate the work of environmental human rights defenders?
2. What specific considerations should be taken into account to guarantee the right of women human rights defenders to defend a healthy environment and the territory in the context of the climate emergency?
3. What specific considerations should be taken into account to guarantee the right to defend a healthy environment and the territory based on intersectional factors and differentiated impacts, inter alia, of indigenous peoples, peasant farmer communities, and Afro-descendant persons in the context of the climate emergency?
4. With regard to the climate emergency, what type of information should the State produce and publish in order to establish the capability to investigate different offenses committed against defenders, including, reports of threats, kidnappings, murders, forced displacements, gender-based violence, and discrimination?
5. What are the measures of due diligence that the States should take into account to ensure that attacks and threats against environmental defenders in the context of the climate emergency do not go unpunished?
F. Regarding the shared and differentiated human rights obligations and responsibilities of States in the context of the climate emergency
Taking into account that the climate emergency affects the entire world, and that obligations to cooperate and also to provide redress arise from the American Convention and other international treaties:Footnote 51
1. What considerations and principles should States and international organisations take into account, collectively and regionally, when analyzing shared but differentiated responsibilities in the context of climate change, from the perspective of human rights and intersectionality?
2. How should States act, both individually and collectively, to guarantee the right to redress for the damage caused by their acts and omissions in relation to the climate emergency, taking into account considerations of equity, justice and sustainability?
Bearing in mind that the climate crisis has a greater impact on some regions and populations, including the Caribbean countries and territories, as well as on the coastal areas and islands of our region and their inhabitants:Footnote 52
1. How should inter-State cooperation obligations be interpreted?
2. 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?
Considering that one of the impacts of the climate emergency is to intensify the factors that lead to human mobility – migration and forced displacement:Footnote 53
3. 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?
