The climate crisis is an “emergency,” which can only be “adequately addressed through urgent, effective, and coordinated actions,” the Inter-American Court of Human Rights declared on July 3. The international court, established by the Organization of American States in 1979, made this pronouncement in its Advisory Opinion on Human Rights and the Climate Emergency, legal analysis requested by Chile and Colombia. It offers authoritative guidance on the scope of countries’ obligations to address climate change and is the most comprehensive overview of the intersection between human rights law and climate change in the Americas.
The advisory opinion represents a landmark moment for the climate justice movement, following similar initiatives before the International Tribunal for the Law of the Sea, the International Court of Justice (ICJ), and the African Court on Human and Peoples’ Rights. An advisory opinion from the ICJ on States responsibilities to address climate change is expected to be released on July 23. It will likely offer further guidance on the scope of all United Nations Member States’ climate obligations under international law. This wave of advisory opinions reflects civil society’s efforts to promote more progressive interpretations of international law, forming part of a broader strategy to apply normative and legal pressure on both State and non-State actors to enhance climate action. In this context, the Inter-American Court’s opinion stands out as the most comprehensive and far-reaching to date, setting out key developments that the ICJ may either reinforce or potentially constrain, but which, in any case, signify the important role international courts can play in advancing climate action.
Recognition of the Obligation not to Cause Irreversible Damage to the Climate and the Environment as Jus Cogens
One of the major developments in the opinion is recognition of an obligation not to cause irreversible harm to the climate and the environment as jus cogens, meaning a peremptory norm so essential that it cannot be violated or overridden by other agreements. Noting key international environmental law principles such as the “polluters pays” principle and the obligation not to cause transboundary environmental harm, the Court recognized that “the progressive crystallization of certain obligations reveals the creation of a body of law, the protection of which cannot be derogated, particularly regarding the risk of irreversible damage to the ecosystems that sustain life.” Given the danger to the environment posed by climate change, including the potential for that damage to be irreversible, the Court recommended that all countries cooperate to end conduct likely to cause this irreversible harm.
Elevating the obligation not to cause irreversible harm to climate and environment to that of jus cogens is a bold move by a regional human rights court. It places this harm within the same normative framework as prohibitions on genocide, torture, and slavery. Conceptually, the opinion marks a significant expansion of judicial understanding of climate harm, which could prove useful in developing accountability pathways to challenge both State and non-State actors for their role in exacerbating climate change. In particular, this new legal understanding could drive a regional consensus within Latin America and the Caribbean that avoiding irreversible climate harm must be a priority for all governments, which could support the efforts of these countries to obtain sufficient support from wealthier countries (for example, in Europe) to ensure this harm can be adequately mitigated across the Americas.
Alternatively, this move by the Inter-American Court, delivered before the ICJ weighs in on the potential recognition of this jus cogens norm, could fragment international legal understandings of climate harm, watering down the normative value of this opinion and leading to a risk of splintering common understandings of the scope and scale of legal obligations to address climate change. Either way, the Court’s willingness to recognize a jus cogens norm reflects strong judicial engagement with the gravity and scale of the climate emergency, as illustrated further through its expansive understanding of human rights obligations in respect to climate change.
Recognition of the Right to a Healthy Climate and Nature as a Subject of Rights
From a human rights perspective, two key innovations of the opinion are the recognition of a right to a healthy climate, and recognition of nature as a subject of rights.
The Court’s recognition of a right to a healthy climate is justified in two parts. First, that the right forms part of the already-recognized right to a healthy environment, which in turn carries relevant procedural and substantive obligations to ensure environmental interests are taken account of and protected within a State. Second, that the right also exists as an independent right based on the fact that
the right to a healthy climate protects the possibility of each individual being able to live in a climate system free of dangerous anthropogenic interference. Thus, its protection acts as a precondition for the exercise of other human rights.
This language recognizes the critical importance of protecting the climate to all other rights, drawing on a holistic and relational understanding of the interaction between humanity and the environment. The Court also suggests that the “the individual sphere of the right will be violated when the State’s non-compliance with its obligations concerning the protection of the global climate system affects, not only this system, but also leads to the direct violation of the particular rights of one or several individuals.” This may open the door for greater demands for reparations should States continue to exacerbate the current climate crisis.
Second, the Court recognized that, to effectively protect the right to a healthy climate, there is a need to “advance decisively towards a model of development which is truly sustainable, and aligned with human activity with the ecological thresholds of the planet.” This “systemic and integrated perspective” would be, in the Court’s view, significantly strengthened by recognizing nature as a subject of rights. This analysis builds on previous jurisprudence from a number of Latin and North American Stares, including Bolivia, Brazil Mexico, Panama, and Peru, as well as tribal/indigenous jurisprudence in the United States and Canada, all of which have recognized particular elements of nature as the subject of rights. Recognition of nature as the subject of rights could open the door for a number of novel accountability pathways. For example, the Atrato River Decision saw the Constitutional Court of Colombia recognize the Atrato river as a subject of rights, and in turn recommended the establishment of a committee (made up of representatives from the ministry for the environment and members of the local community) to represent and protect the river’s interests. Should States take account of this new opinion from the Inter-American Court of Human Rights, similar efforts to recognize other core parts of the ecosystem (for example, the Amazon rainforest) as the subject of rights may become more common.
“Enhanced Due Diligence” and Expanded Climate Mitigation and Adaptation Obligations
To address the human rights violations caused by climate change, the Court recommended a standard of “enhanced due diligence,” which all states should abide by when identifying and addressing climate risks. The Court emphasized that enhanced due diligence on climate action requires thorough risk assessment, science-based and human rights–centered policies, proactive prevention, transparent monitoring, and strict procedural compliance. The Court also called for corporate regulation and strong international cooperation on technology, funding, and capacity-building.
The Court then set out a series of sweeping recommendations regarding States obligations to mitigate and adapt to climate change. It urged States to define an appropriate climate mitigation target based on the best available science, as well as principles including equity, common but differentiated responsibilities, and intergenerational justice, and to ensure a human rights-led strategy is put in place to achieve this target. Additionally, the Court laid out a series of general mitigation and adaptation measures for the general population (including obligations to establish interim climate targets to ensure the broader target can bet met and to create adaptation plans) and recognized the need for differentiated obligations for vulnerable populations, including indigenous peoples, Afro-descendant communities, children, older persons, and those living in poverty. The Court stressed that both mitigation and adaptation measures must be developed and implemented in participatory, transparent, and rights-based ways, ensuring that affected communities have a meaningful voice in decision-making.
The Private Sector’s Role in Addressing Climate Change
Additionally, the Court recognized the “fundamental role” corporations play in contributing to and addressing the climate emergency. It endorsed the U.N. Guiding Principles on Business and Human Rights (the highest set of international normative principles on the obligations and responsibilities of State and non-State actors with regard to human rights) and recognized that corporate responsibilities with respect to climate change must be defined, imposed, and enforced by States through domestic regulation.
In particular, the Court emphasized that States should implement corporate climate and human rights due diligence frameworks, greenhouse gas emissions disclosure regimes, and corporate climate mitigation measures. The Court also called for stricter oversight on companies with a higher quantity of historical and accumulated greenhouse emissions (sometimes known as the “carbon majors”), which could in turn lead to greater degrees of regulation on these companies. Finally, it urged States to recognize and make regulatory changes where necessary to allow for legal accountability for parent companies based on the activities of their subsidiaries. This could become highly relevant given the efforts of activists to pursue transnational corporate litigation against Western-based parent companies for environmental harm caused by their subsidiaries – illustrated most recently by the lawsuits emerging in the United Kingdom against Shell for the alleged harm caused by its subsidiary company in the Niger Delta.
Next Steps: Litigation and Implementation
The advisory opinion provides a blueprint for policymakers and activists seeking to drive forward climate action in the Americas. Key next steps will be working with State and non-State actors to facilitate its implementation. This will include translating the Court’s guidance into concrete legal, policy, and judicial measures. Civil society will play a crucial role in this implementation and can use the normative hook provided by the opinion to support efforts to establish more progressive domestic climate frameworks. Additionally, the Court’s guidance may play a role in domestic litigation efforts, which could for example challenge practices that are likely to cause irreversible harm to the climate system (for example, continued deforestation of the Amazon).
At the same time, the Inter-American Court’s decisions have experienced accountability and enforcement gaps in the past, and implementing the advisory opinion will require a significant expansion of state capacity to address climate change. Nonetheless, with COP30 being hosted by Brazil in November, the advisory opinion may play a supportive role in strengthening demands for greater climate ambition and accountability across the Americas, supplemented with expanded financial support from wealthier States. The opinion therefore marks a significant step forward in embedding climate justice within the framework of international law, offering multiple pathways for climate activism that can help drive positive change in State efforts to address climate change.
