Inter-American Court of Human Rights Advisory Opinion on ‘The Climate Emergency and Human Rights’

The Court’s guidance, provided in response to a request by the governments of Chile and Colombia in 2023, applies to all Member States of the Organisation of American States (which include Canada and the United States) (§§39-41).

Among other matters:

1. The Court recognised the right to a healthy climate as a human right deriving from the right to a healthy environment (distinguishing damage to “the climate system” from separate, though related, forms of environmental damage, such as those resulting from pollution or harm to biodiversity) (§§298-304).

2. The Court recognised nature as the subject of rights, providing that States hold positive obligations to adopt measures to guarantee the protection, restoration and regeneration of ecosystems (§§279-286). The Court considered that the recognition of such rights derived from the interdependence between human rights and the environment (§282), and reflected a growing tendency in regional and global case law and legislation (§286).

3. The obligation not to cause irreversible damage to the climate and the environment was recognised as a jus cogens, or peremptory norm (§§287-294). This was on the basis (inter alia) that the prohibitions arising from the obligation to preserve the “common ecosystem” are a “precondition to the enjoyment of other rights that have already been identified as fundamental” (§291).

4. The Court recognised that forced migration and displacement are caused, directly and indirectly, by climate-related disasters and other impacts, and that States must adopt appropriate measures to protect freedoms of residence and movement (§§414-434). These include public policy, regulatory and other measures (i) to prevent and mitigate the conditions that drive migration or forced displacement, (ii) to assist persons in situations of involuntary mobility, and (iii) to guarantee legal and humanitarian protection for internationally displaced persons.

Antonia Eklund acted as part of a team intervening on behalf of a coalition of Caribbean civil society organisations supported by the Global Strategic Litigation Council. The amicus brief submitted on behalf of the coalition considered the question (per Colombia and Chile’s Request) of “involuntary human mobility, exacerbated by the climate emergency.”

The Advisory Opinion is available here.