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Over 20 years ago, a group of lawyers and Inuit Indigenous leaders converged in Washington, D.C., to bring a legal petition against the United States government before the Inter-American Commission on Human Rights (IACHR). It was the first-ever case seeking to hold a government accountable for human rights violations stemming from global warming. It was summarily dismissed, and not only by the IACHR. Human rights practitioners and advocates, too, viewed the petition with reactions ranging from indifference and skepticism to derision and hostility. In 2003, human rights frameworks weren’t yet ready to grapple with the most pressing challenge of our time: climate change.
As I show in Climate Change on Trial: Mobilizing Human Rights Litigation to Accelerate Climate Action, which launched this month as an open-access Cambridge University Press book, the next two decades would see nearly 500 such rights-based climate actions filed around the world. The book documents this legal field’s history, actors, norms, and impact, efforts which ultimately culminated in two recent watershed moments, with the Inter-American Court’s (IACtHR) and the International Court of Justice’s (ICJ) strong and comprehensive advisory opinions on climate change and human rights. These decisions corroborate one of the book’s core findings: international law and human rights can turn around relatively quickly when it comes to facing ecological emergencies like climate change. In this article, I focus on the IACtHr’s opinion.
Three breakthroughs in climate and human rights law
First, the IACtHR declared that the obligation not to cause irreversible environmental damage is a jus cogens norm of international law—that is, a highest-order peremptory duty that cannot be abrogated, derogated from, or reserved upon. In so ruling, the IACtHR issued the strongest statement to date by any international court on the state duty to refrain from acts or policies causing massive ecological destruction, elevating climate protection to the same normative status as peremptory prohibitions against genocide and torture.
To reach this conclusion, the IACtHR examined normative developments in domestic jurisdictions that have gradually elevated the legal status and urgency of protecting Earth’s climate and life systems, including the implementation of core principles like intergenerational equity, “polluter pays,” and the precautionary principle. To the IACtHR, these developments indicate that the survival of humanity on a habitable planet has become a universal value.
Second, the IACtHR took another pioneering step by becoming the first regional court to acknowledge and express support for rights of nature, recognizing “nature’s right to maintain its essential ecological processes” in a way that “respects planetary boundaries and ensures the availability of vital resources for present and future generations.” Importantly, the IACtHR clarified that principles of international law require not only that states refrain from acting in certain environmentally damaging ways, but also that states have positive obligations to “ensure the protection, restoration and regeneration of ecosystems.”
The significance of an international human rights court reasoning through environmental obligations in an ecocentric rather than anthropocentric manner cannot be overstated. Indeed, the IACtHR recognized the intrinsic value of nonhuman entities and ecosystems instead of making their value a function of how useful they are to humans. In doing so, the court not only recognized that rights of nature are compatible with human rights law but that, in fact, the two movements are mutually reinforcing. This holding is likely to have significant and lasting impacts on both the global trend towards recognition of rights of nature and on the ongoing debates surrounding the “more-than-human” turn in law and human rights, which I have written about elsewhere.
Third, the IACtHR made the bold and necessary move to recognize a distinct right to a healthy climate, derived from the right to a healthy environment, which compels states to protect the global climate system and prevent human rights violations resulting from its alteration. This recognition, like its recognition of the intergenerational nature of climate injustice, consolidates decades of norms and doctrines developed in landmark cases by international human rights bodies and domestic courts from Germany to South Korea, as shown in Chapter 3 of Climate Change on Trial.
Crucially, the IACtHR’s emphasis on comprehensive, urgent, ecosystem-supporting, and equitable adaptation strategies reflects growing legal recognition that significant global warming is now locked in. States must not only take adequate adaptation measures but must also ensure those measures don’t create new vulnerabilities or harm ecosystems. This crucial development will go a long way toward addressing the blind spots in climate jurisprudence documented in Chapter 6 of the book, as adaptation emerges as the most pressing frontier in climate justice and policy.
The IACtHR also held that robust state obligations to regulate corporate behavior and duties for private corporate actors—until now, a glaring gap in rights-based climate jurisprudence—arise from the right to a healthy climate. These obligations, which represent a significant expansion of state regulatory and monitoring responsibilities, include duties to enact legislation that requires emissions disclosures and human rights and climate change due diligence across businesses’ full value chains, to adopt measures to reduce emissions and human rights impacts, and to discourage greenwashing and the undue influence of companies in political and regulatory domains.
Necessary, but not sufficient
Although the IACtHR’s advisory opinion consolidates decades of international norm development and makes great strides toward adequate state action, corporate accountability, and responsible environmental conduct, among other things, critical gaps remain.
As Elisa Morgera (UN special rapporteur on climate change and human rights) pointed out on a recent panel hosted by the NYU Climate Law Accelerator (CLX), the phrase “phasing out fossil fuels” (and near synonyms) appeared only once in the IACtHR’s opinion and in a footnote, no less (at footnote 597). Additionally, the court missed a precious opportunity to fill another critical gap in the field: the duty to compensate countries and communities that, while contributing the least to the climate emergency, bear the brunt of its impacts. In general, the advisory opinion provided very little guidance around the critical issues of “making polluters pay” and compensation for climate-impacted and vulnerable states (also known as loss and damage). Ultimately, the human rights field will need to contend with this pressing question, which the ICJ took up in its own advisory opinion.
Where will the next two decades take us?
The Inter-American Court has revitalized discussions around the human rights impacts of climate change, reenergized international judicial procedures with its transparent and people-centered hearings, and given hope to the climate-vulnerable while providing critical guidance to states and businesses. Beyond that, as I document in Climate Change on Trial, its advisory opinion demonstrates not only that human rights frameworks can make space for environmental concerns and adapt to the existential climate challenges of our time, but that, in fact, international climate change frameworks have radically reshaped human rights frameworks in turn.
Looking ahead, the IACtHR’s advisory opinion could trigger a flurry of legal actions leveraging the doctrines specified above and more, catalyzing the next wave of rights-based global climate litigation much as Urgenda did when it was filed over a decade ago. From a normative perspective, domestic cases will provide granular guidance on how to develop these doctrines further. We can brace for a spate of new legal actions, especially in Latin America, which already represents a quarter of all cases of this sort.
But any successful field risks becoming isolated and developing blind spots. The proliferation of similar actions across the world, while a sign of the field’s maturity, should not be seen as an end in itself. With greenhouse gas emissions continuing and extreme weather events increasing, and the Paris Agreement in crisis, legal strategies need to look beyond the Paris framework that many of the existing rights-based legal actions sought to implement.
As suggested by the IACtHR’s apt framing of human rights as embedded in and depending on the rights and well-being of the more-than-human world, future legal actions against global warming should be viewed as a holistic endeavor for the defense of life on Earth—for instance, through linkages with deeply interrelated areas such as biodiversity and the rights of nature. Climate justice advocates must go beyond what has already been achieved and seek to leverage these holistic connection points in defense of flourishing conditions for human and more-than-human life on Earth, now and for future generations.