Published April 18, 2024
The world has known about the grave risks and impacts of the climate crisis for decades, but it wasn’t until 2022 that international courts were finally asked to formally clarify what States must do to protect people from this threat. Today, there are three climate advisory proceedings underway before the Inter-American Court of Human Rights (Inter-American Court), the International Tribunal for the Law of the Sea (ITLOS), and the International Court of Justice (ICJ), each of which has been asked to clarify States’ climate obligations. In this era of devastating climate harm, as multilateral negotiations have failed to deliver at pace or at scale, and while political inertia plagues national action, the world is looking to these legal proceedings for decisive guidance on States’ duties to confront the climate crisis.
What Are Advisory Opinions and Why Do They Matter?
Several international courts can deliver advisory opinions upon request. These are not cases involving disputes between specific parties, but processes in which tribunals issue interpretations of the law in response to specific questions. Though advisory opinions (AOs) are not binding, they carry substantial legal weight and are even considered instruments “of preventive diplomacy.” Together, the three aforementioned climate advisory proceedings represent a historic moment that will set the stage for climate action, accountability, and justice for decades to come.
While the three opinions will draw on a diverse range of laws and treaties, they should be united in affirming that States have a clear and indisputable duty, under multiple sources of existing law, to take concrete action to respect and protect human rights from the impacts of climate change. The opinions do not create this duty, but they should serve to confirm and clarify it.
Engaging with the Inter-American Court of Human Rights
On January 9, 2023, Chile and Colombia signed a joint request to the Inter-American Court of Human Rights to clarify State obligations in the context of the climate emergency. The request contained the most extensive set of questions of all the climate-related AO requests — putting before the Court a range of issues related to State duties with respect to climate change: adaptation, mitigation, and remediation of losses and damages; environmental defenders; and common but differentiated responsibilities and respective capabilities, among other issues.
At the end of last month, the Inter-American Court announced the dates of its public hearings, which will be held in Barbados next week and in Brazil in May. During its submission period (which ended in December of last year), the Court received more than 200 submissions from stakeholders. This number is almost double what the Court has typically received for advisory opinions in the past.
CIEL and partners submitted four written observations and were invited to participate in the hearings on April 24 and 25 in Barbados and May 27 in Brazil. Our joint oral interventions with partners will highlight relevant sources of international law and key arguments to inform the Court’s opinion, and critically, we will also facilitate the participation of affected communities to ensure that the Court hears the perspectives and demands of those most impacted by the climate crisis.
Throughout the hearings, the Court will gather information relevant to its deliberations in relation to its upcoming advisory opinion. The written observations that CIEL submitted or supported cover a range of topics, including corporate accountability, the phaseout of fossil fuels, climate reparations, and the rights of environmental defenders.
Corporate Accountability and the Climate Crisis
One vital issue, given the scope of the advisory opinion request before the Inter-American Court, is that of corporate accountability. The written observations we submitted with Greenpeace International, the Union of Concerned Scientists (UCS), the Open Society Justice Initiative (OSJI), and the New York University School of Law’s Climate Law Accelerator (CLX), focuses on legal duties to halt industry-driven climate destruction.
This submission argues that the Court cannot address the question of international obligations on climate change without addressing duties to prevent and remedy climate-destructive conduct by corporations. Polluting business enterprises, through both their physical and their socio-political activities, have contributed the most to the climate crisis, resulting in devastating impacts on people and the environment. In order for States to comply with their obligations to protect against human rights harm, they must regulate corporate conduct driving climate change. The submission also details the duties of those business enterprises to respect human rights and refrain from such conduct, and the requirement for both States and businesses to remedy any harms and violations of human rights resulting from their actions.
The first part of our submission lays out the unequivocal evidence that climate change is caused by anthropogenic activities and has significant adverse impacts on human rights. We discuss how advances in attribution science — the mounting body of research that allows us to link specific events and impacts (like fires and floods) to climate change, and in turn to link climate change to specific sources of emissions — make it increasingly possible to connect the conduct causing climate change to its escalating consequences. We also emphasize how climate change exacerbates existing vulnerabilities throughout Latin America and the Caribbean, and therefore has the greatest impacts on the most marginalized communities.
The second part of our submission demonstrates how business enterprises, particularly in the fossil fuel and agribusiness industries, drive climate change — both through their physical activities (emission of greenhouse gases and destruction of carbon sinks) and through often-overlooked social drivers such as spreading misinformation about the crisis and industry’s role in it, or obstructing and delaying necessary climate action. These social drivers play just as much of a role in causing and perpetuating the crisis, if not more so. For example, businesses have repeatedly engaged in political lobbying, greenwashing, and other activities to influence State processes to prevent climate policies.
Finally, the third and fourth parts of our submission draw from a range of relevant legal frameworks under multiple sources of international law to set forth State duties to prevent, regulate, and remediate industry conduct fueling climate change and impeding climate action, and also the independent legal obligations of corporate actors to refrain from such conduct and repair the resulting harm. These sections also lay out measures States and businesses must adopt to comply with their human rights duties, including halting expansion and accelerating the phaseout of fossil fuel production and agro-industrial deforestation and ensuring access to justice and full reparation for climate-related harms that they have caused or to which they have contributed.
Read the full written observations here.
Leveraging States Legal Obligations for Climate Justice
The advisory opinion that the Inter-American Court of Human Rights will issue on legal obligations under human rights law in relation to climate change is an important moment in the rising tide of climate justice litigation, especially in light of the other ongoing climate advisory proceedings. The Court has an unparalleled opportunity to make clear that States and indeed corporations themselves have clear legal duties to take measures to effectively tackle harmful industry conduct driving the climate emergency. We are hopeful that the Court’s opinion will send a strong signal to States and business enterprises about what they must do to combat climate change and remedy climate harm; provide guidance to courts throughout the region and around the world facing a rising tide of climate litigation; and serve as a vital tool for legal advocates working to secure climate justice and accountability. The content of the opinion will likely inform the creation of public policy and serve as a blueprint for climate litigation cases at the local, regional, and national levels, and has truly transformative potential.
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Read our submissions to the Inter-American Court of Human Rights, the International Tribunal for the Law of the Sea, and the International Court of Justice here.