The Inter-American Court of Human Rights' New Advisory Opinion on Climate
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Unpacking Key Takeaways and Alignment with our Amicus Brief
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On Thursday, July 3, the Inter-American Court of Human Rights issued its landmark Advisory Opinion on the Climate Emergency and Human Rights (OC 32-25). This is a major step forward in understanding the human rights implications of the climate emergency and establishing State obligations and standards under international human rights law to respond to the global ecological crisis.
We are honored and gratified to see the Court’s Advisory Opinion align with key arguments developed in the amicus brief submitted by The Promise Institute’s team of experts working with former United Nations Special Rapporteur on contemporary forms of racism and racial discrimination, E. Tendayi Achiume: Joseph Berra, S. Priya Morley, Kate Mackintosh, and students Mollie Cueva-Dabkoski, Heliya Izadpanah, Annika Krafcik, and Paula Angarita Tovar. We continue to emphasize the need to apply a racial justice lens in the application of the Court’s standards and guidance to the States.
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A Racial Justice Perspective on the Climate Emergency |
In particular, we find it encouraging that the following elements of the Court’s Opinion aligned significantly with the racial justice perspective of our brief:
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Application of the principles of non-discrimination and equity to the climate emergency, with special focus on Indigenous and Afro-descendant peoples. While not fully adopting the racial justice lens we proposed, the Court’s Opinion is informed throughout with a focus on vulnerable communities, particularly Indigenous and Afro-descendant communities, and takes an intersectional approach in its analysis including gender, age and disability. States have an obligation to recognize the differentiated impact of the climate crisis on these communities and apply appropriate measures to mitigate environmental harms and ensure the livelihoods of these communities.
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Affirmation of Indigenous knowledge systems as a necessary element to address the climate crisis. The Court recognized both a right to science and a right to recognition of Indigenous, local and traditional knowledges in addressing the climate crisis. The right to science and an obligation to prevent disinformation responds to the current context of climate denial and the right to access complete and reliable information. At the same time, Indigenous, local, and traditional knowledges are valued equally as central to participation in the collective solutions to the climate crisis and the goal of sustainable development. This is a principle we emphasized in our brief, both as a reparative measure and as a safeguard against “quick fix” solutions, which tend to reproduce environmentally destructive models of exploitation of nature and racialized communities.
- Affirmation of Indigenous and Afro-descendant peoples’ rights to territory and resources and their right to consultation and free, prior and informed consent prior to the extraction of resources in their territories. The Court reaffirmed in the strongest terms these rights as central to addressing and repairing the harms of the climate crisis.
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The Rights of Nature and a Duty to Repair
and Protect the Earth's Climate for Future Generations |
The Court made groundbreaking progress in the development of the international law and human rights framework on climate and the environment on these key issues:
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The Court found a jus cogens norm to prevent massive environmental harm and irreversible environmental damage. This norm aligns with our call to recognize an international crime of ecocide, on par with other international crimes such as genocide and crimes against humanity.
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Recognition of nature as a subject of rights, and the need for an integrative legal approach that protects both the rights of the person and the rights of nature as interdependent. In a prior Advisory Opinion (OC-23/17), the Court noted this was an emerging development, and here it has fully embraced the rights of nature.
- Recognition of a right to a healthy climate. The Court previously recognized in its jurisprudence the right to a healthy environment, and here the Court expands on that reasoning by recognizing the complementary right to a healthy climate.
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The Court found an international obligation to protect the climate and the environment for future generations. This intergenerational obligation is an innovative international standard reflecting both the urgency and trans-historical nature of the climate emergency. Taken together, these developments represent an inflection point in human history and our collective care for the planet.
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States must commit to integral reparations as part of the obligation to mitigate and repair differential harm within differential responsibility. Our brief explores the basis and path for integral reparations from a racial justice perspective. Differential responsibility requires that States and corporations bearing greater responsibility for the climate crisis must share a comparable portion of the burden to repair and mitigate harm.
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Imagining and Working Towards a Different Future
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At the same time, we reaffirm key elements from our brief that must be taken into account to effectively fulfill the obligations found by the Court as applied to vulnerable, and in many cases, racialized groups. A different future of environmental justice for people and the planet is possible.
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Measures to address the climate crisis must address structural racism and the enduring legacies of the Trans-Atlantic slave trade and settler colonialism. Application of the Court’s standards requires a deeper analysis to address the structural causes that make racialized communities vulnerable, or, as we discuss in our brief, relegate them to “racial sacrifice zones.” The Court’s concept of “differentiated” or “multidimensional” poverty, while useful, is inadequate to address these legacies from a racial justice perspective.
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Measures to address the climate crisis must address the contradictions of neoliberal capitalism and market-based solutions to the climate crisis. In our brief we analyzed how neoliberal and market-based solutions to the climate crisis reproduce models of exploitation of both nature and vulnerable communities, exacerbating both the climate crisis and its corresponding human rights violations. The logic of unlimited growth, private profit, and the commodification of nature and labor infects market-based models of the “green” economy and technochauvinism. While the Court identified State obligations to ensure effective action and democratic control over the process, such as the obligation to regulate, supervise, and monitor businesses, it failed to address these contradictions directly and their tendency in the current moment to produce oligarchic and authoritarian forms of governance that undermine democratic control.
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The Advisory Opinion provides guidance to States on the human rights standards by which they will be judged. As an authoritative statement of the law in the Americas, it provides a crucial bedrock for civil society and legal activists to advance the twin imperatives of protecting people and the planet.
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The Promise Institute for Human Rights acknowledges our presence on the traditional, ancestral, and unceded territory of the Gabrielino/Tongva peoples.
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