Inter-American Court of Human Rights Asked to Issue Advisory Opinion on States’ Obligation to Respond to the Climate Emergency

On January 9, 2023, Chile and Colombia co-signed a request to the Inter-American Court of Human Rights (“Inter-American Court”) for an advisory opinion with the purpose of “clarify[ing] the scope of the States’ obligations … to respond to the climate emergency within the framework of international human rights law” (the “Request”).

According to the Request, an advisory opinion on these issues will “guide both the requesting countries as well as the other countries in the region, regarding the development of policies and programs at the local, national and international level.”  According to the Chilean Ministry of Foreign Affairs, this request is intended to “se[t] a precedent that will help guide the actions of States committed to environmental human rights.”

In this post, we will provide an overview of the Inter-American Court’s advisory function as well as the potential implications of the Request for this advisory opinion on climate change.

The Advisory Function of the Inter-American Court

The Inter-American Court is a human rights tribunal, established under the American Convention on Human Rights (“Convention”), that has jurisdiction over “all matters relating to [its] interpretation or application” (art. 62.1). As such, it exercises a contentious function, resolving cases, supervising judgments, and ordering provisional measures (art. 63). It also exercises an advisory function (art. 64).

The Inter-American Court’s advisory function is not limited to interpreting the Convention (or other treaties adopted within the framework or under the auspices of the Inter-American system), and it extends towards any “other treaties concerning the protection of human rights in the American States” (art. 64).  The Inter-American Court has construed its advisory jurisdiction broadly, expressing that it “can be exercised, in general, with regard to any provision dealing with the protection of human rights set forth in any international treaty applicable in the American States …whatever be the principal purpose of such a treaty, and whether or not non-Member States of the Inter-American system are or have the right to become parties thereto” (OC-1/82, p. 12).

In recent years, the Inter-American Court has emphasised that States should act consistently with its advisory opinions.  In 2017, the Inter-American Court noted that judiciaries of states which have ratified the American Convention must “take into account not only the treaty, but the interpretation made thereof by the Inter-American Court.” (Almonacid-Arellano et. al. v. Chile, ¶ 124) (emphasis added).  This opinion taken with others (OC-24/17, ¶ 26), indicates that State Parties may not ignore the interpretations of treaties issued by the Inter-American Court.  However, as the Inter-American Court has not yet expressly affirmed that its advisory opinions are binding on States, the issue remains unsettled among commentators.

This position taken by the Inter-American Court contrasts with the advisory function of the International Court of Justice (“ICJ”) under the United Nations Charter.  As the ICJ notes, its advisory opinions “hav[e] no binding force.”  This means that states are not bound by an ICJ advisory opinion and are free to disagree with it. Thus, unlike the Inter-American System, the United Nations System does not require states to adhere to interpretations in ICJ advisory opinions.

The question of whether the Inter-American Court’s advisory opinions are binding may well arise in relation to the Request, given the comments made by the Colombian Ministry of Foreign Affairs, that the Inter-American Court’s decision on this issue will be “immediately and automatically linked to the [countries] constitutional framework.”

Related developments leading to the Request

This issuance of the Request follows three recent landmark developments at the intersection of climate change and human rights: (a) the November 2022 draft text of a proposed United Nations General Assembly resolution requesting an advisory opinion from the ICJ on climate change (the “Draft Resolution”); (b) the ratification of the Escazú Agreement by the Chilean and Colombian congresses in May and October 2022, respectively; and (c) the Resolution No. 3/21 “Climate Emergency: Scope of Inter-American human rights obligations” jointly issued by the Inter-American Commission on Human Rights (“Commission”) and the Office of the Special Rapporteur on Economic, Social, Cultural and Environmental Rights in March and October 2022, respectively.

The Escazú Agreement, which entered into force in April 2022, provides for the full and effective implementation of the right to access to environmental information; public participation in environmental decision-making processes; and access to justice in environmental matters.  In fact, it was under the framework of Escazú Agreement, which includes access to information as a core tenet, that Colombia and Chile submitted the Request.  Indeed, as explained below, the Request asks the Inter-American Court to identify specific measures to be adopted under the Escazú Agreement for States to protect the rights to life, property, health, and participation in the context of the climate emergency.

Resolution No. 3/21 was issued by the Commission with the purpose of “systematiz[ing] the human rights obligations of States in the context of the climate crisis in order for them to make public policy decisions under a rights-based approach” (p. 7), and is based on the Inter-American Court’s advisory opinion on the right to a healthy environment (OC-23/17).  In this resolution, the Commission includes, inter alia, a series of general standards and recommendations in connection to [the control/limitation of?] greenhouse gases emissions, social and environmental impact studies, pollution prevention, individuals or groups in conditions of vulnerability, indigenous peoples, tribal communities, afro-descendants, and nature defenders.  Accordingly, it is likely that any advisory opinion issued in response to the Request may build on guidance already included in Resolution No. 3/21.

The Inter-American Court has previously given several advisory opinions in response to requests from either State Parties or the Commission, but only one on the subject of the Environment and Human Rights (OC-23/17), in which it recognized for the first time that a healthy environment was a fundamental right under the American Convention (Id., ¶ 59).

The Questions Posed in the Request

After an extended description of the worldwide climate emergency, and the consequences of global warming for vulnerable communities and human rights, the Request submits questions on six topics to the Inter-American Court.  Each topic is based on the interrelation between the right to a healthy environment and a separate set of rights.

The first topic relates to the recently recognized right to a healthy environment (art. 26 of the Convention, and art. 11 of the Protocol of San Salvador), and the State’s obligations derived from the duties of prevention and guarantee of human rights related to the climate emergency.  The applicants asked questions regarding two themes (a) the scope of a State’s duty of prevention regarding global warming in light of the Paris Agreement, and (b) the particular measures to be taken by states to reduce the damage caused by the climate emergency.  In particular, the Request asks the Inter-American Court to identify specific measures to be taken by States in order to regulate, audit, conduct environmental assessments, as well as about the principles that should guide any mitigation actions States should undertake.

The second topic refers to States’ obligations to grant access to information as a means to protect the rights to life, property, health, and participation under the recently ratified Escazú Agreement.  The applicants asked about the scope of the studies and information to be produced and what the states should share in connection to the climate emergency, as well as the specific policies to be adopted in such regard.

The third topic concerns children’s rights in face of the climate emergency (art. 19 of the Convention and art. 12 of the Convention on the Rights of the Child).  The applicants asked about the scope of its obligations to protect children, as well as to provide them with meaningful means to ensure freedom of expression and access to judicial recourses to prevent climate change.

The fourth topic dealt with States’ obligations regarding consultation and judicial proceedings in connection with the climate emergency (art. 8 and 25 of the Convention).  In particular, the applicants referred to the judicial recourses that need to be available to people to fulfill  States’ obligations on full protection and reparation, including the scope of its obligation to consider within a consultation proceeding the climate consequences of certain activities.

The fifth topic relates to “human rights defenders in environmental matters” (addressed in art. 9 of the Escazú Agreement), with an emphasis on women, and indigenous and Afro-descendants communities.  Based on the States’ obligations to respect rights and ensure this protection through domestic legislation (art. 1.1 and 2 of the Convention), the applicants asked the Inter-American Court to identify measures to be taken and policies to be adopted to ease the work of and protect environment defenders in light of the climate emergency.

Finally, the sixth topic concerned cooperation between States to address the climate emergency.  The applicants asked four questions, each of which highlighted the need for guidelines to determine the joint but separate responsibilities for addressing climate change and reparations. The Request states that some of the elements raised to show the need for different obligations are based on factors like geography (e.g., effects of climate change being suffered by countries with low levels of greenhouse gasses emissions), equity, justice, and sustainability.

The State Parties’ written observations and the Amici Curiae’s written opinions

Once an advisory opinion is requested from the Inter-American Court, all other State Parties to the Convention are notified about the request and invited to file written comments on the admissibility and/or the merits of the request (art. 73.1, Rules of Procedure of the Inter-American Court (“Rules”)). Also, although the rule provides that any other interested parties may be invited to submit written opinions, in practice it is common for such submissions to be invited.

The time limit for submitting written observations or amici briefs is usually six months after the request for an advisory opinion has been filed.  The hearing is generally held six months after the written submissions are received by the Inter-American Court, and the advisory opinions are usually issued a year later.

In the last five advisory opinion proceedings, the Inter-American Court admitted all the amici briefs submitted by interested parties. Those parties included international organisations (such as the Office of the High Commissioner for Human Rights), State agencies (like Ombudsmen Offices), non-governmental organizations and associations, academic institutions, and private individuals.

The Implications of the Advisory Opinion

Unlike the Draft Resolution (yet to be adopted by the United Nations General Assembly), the Request seeks from the Inter-American Court specific measures and criteria to be adopted by State Parties to be compliant with applicable international instruments.

Regardless of whether the advisory opinion will be considered binding, a direction setting out States Parties’ obligations in detail will create further pressure on Governments in the region to strengthen their domestic regulatory frameworks to ensure compliance with international obligations.  For instance, as a result of the advisory opinion, governments may make environmental assessments and audit processes stricter, increase opportunities for citizen participation in the context of environment assessments, require further socio-environmental commitments and broader environmental information disclosures (e.g. on GHG emissions), order the closure of carbon-intensive projects (see our post on the decarbonization process in Chile, here), limit their approvals, or grant specific resources to environmental defenders groups (increasing the potential for environmental related disputes).

Finally, if the Inter-American Court decides to address all the questions posed by the applicants, such an advisory opinion will become a landmark decision in the Inter-American system clarifying the specific scope of States’ obligations to ensure the right to a healthy environment.

For more information please contact Christian Leathley, Partner, Antony Crockett, Partner, Daniela Paez, Senior Associate, Carlos Hafemann, Visiting Attorney, or your usual Herbert Smith Freehills contact.