Significant attention has focused on the unprecedented climate change advisory opinions from three international or regional tribunals — the recent opinion from the International Tribunal on the Law of the Sea (ITLOS),  and the pending ones from the International Court of Justice (ICJ), and the Inter-American Court of Human Rights (IACtHR) — for their potential to shape how States respond to climate change. These opinions will contribute to an emerging body of jurisprudence, like that of the European Court of Human Rights, recognizing State accountability for climate change impacts. As the global community grapples with the multifaceted impacts of the climate emergency, the request before the IACtHR is unique in its potential to set standards for addressing cross-border climate-related displacement.

ITLOS was queried and briefed about specific obligations to prevent and protect the marine environment from climate change effects. Although these obligations can be read to imply a duty to prevent the displacement of coastal communities, the Tribunal’s opinion, while a historic step towards climate justice, did not explicitly discuss displacement.

The ICJ likewise received two broad questions about State obligations to protect the climate system for present and future generations, and the legal ramifications of significant harm caused by State actions or omissions. Although the responses may also touch upon climate displacement, the extent to which they do will depend on the depth of the issue’s treatment in the briefs presented to the court, which were not public at the time of this writing.

In contrast, Colombia and Chile presented a comprehensive set of questions to the IACtHR concerning the scope of State human rights obligations with respect to climate change. They include a range of areas, such as preventing violations, preserving life, protecting vulnerable groups and future generations, and the role of international cooperation. The final question of the request focuses specifically on forced displacement: “What obligations and principles should guide the individual and coordinated measures that the States of the region should adopt to deal with involuntary human mobility exacerbated by the climate emergency?”

Climate Displacement in the IACtHR Briefs

Given the breadth of questions raised in the request for the IACtHR advisory opinion, it is noteworthy that out of the more than 250 briefs submitted to the Court (including one from the Center for Gender & Refugee Studies, or CGRS, and other civil society organizations, which I co-authored), at least 50 acknowledge the need to protect individuals forced to migrate across borders due to climate change. Significantly, no less than 29 directly responded to the question concerning State obligations regarding climate displacement.

While the briefs offered a variety of arguments, the general direction of their advice to the Court is clear: existing international refugee and human rights instruments provide a solid foundation for protection. More than 30 briefs supported the application of the principle of non-refoulement — which prohibits States from returning individuals to places where their life, liberty, or security could be threatened — in climate-related cases. For instance, multiple briefs made references to the U.N. Human Rights Committee’s decision in Teitiota v. New Zealand, recognizing the applicability of the non-refoulement obligation of the International Covenant on Civil and Political Rights in climate-related cases; or cited subsequent jurisprudence from domestic courts.

Many briefs advocated for maximizing the potential of the refugee protection regime despite the limitations of the definition found in the 1951 Refugee Convention and its Protocol. These instruments define a refugee as a person with a well-founded fear of persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, where the State is the persecutor or is unable or unwilling to protect the person from a non-state persecutor. Given the specificity of the definition, for long it was considered ill-suited to protect those fleeing climate change and disasters. However, as the UN High Commissioner for Refugees has explained (p. 11 et seq.)— and CGRS’s advocacy illustrates — the social and political impacts of these disasters, combined with inadequate or inequitable State responses, can violate human rights and amount to persecution, and therefore some climate-displaced people qualify for protection under the Convention and Protocol.

Two dozen briefs highlighted the broader refugee definition from the 1984 Cartagena Declaration on Refugees. This non-binding instrument, which has been incorporated into the domestic laws of at least 15 countries in the region, extends protection to individuals who cannot return to their countries due to threats resulting from “generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order.” After the 2010 earthquake, a limited number of Haitians were granted protection in Mexico (p. 81) under the expanded refugee definition, exemplifying its potential in the context of disasters.

In particular, disasters can result in serious disturbances to public order. Sudden events, like hurricanes or cyclones, can disrupt essential services, clean water, food supplies, and infrastructure, undermining societal stability and individual rights to life and personal integrity. Slow-onset disasters can cause widespread environmental damage, affecting public safety and human security, especially when the State is unable or unwilling to respond effectively. CGRS’s brief also argued that the effects of disasters can impact the enjoyment of fundamental human rights for entire populations or large segments, warranting classification as massive violations of human rights.

Climate Displacement in the IACtHR Hearings

As part of the process for the advisory opinion, the IACtHR held public hearings in Barbados last April and in Brazil in late May. During the initial session in Barbados, the Court heard more than 60 interventions. Notably, only one intervention, which I led representing CGRS, focused exclusively on climate displacement. An additional limited number of interventions also briefly touched upon this issue.

Amid the diverse topics covered, the judges, particularly Judge Pérez Manrique from Uruguay, exhibited interest in this area. Their inquiries were focused on several key questions: how to identify individuals displaced by climate across borders; the standards necessary to protect them; whether international law requires adjustments to safeguard this population effectively; the implications of the international environmental law principle of common but differentiated responsibilities in displacement contexts; and the potential for employing additional mechanisms, such as climate or humanitarian visas, as potential tools in the response.

Unlike the hearings in Barbados, climate displacement played a more central role during the session in Brazil, with more advocates focusing on it in their interventions.

What the IACtHR Should Do

While many significant issues demand the Court’s attention, the specific challenge of climate displacement, both internal and cross-borders, must not be sidelined. The pressing reality of this displacement calls for the IACtHR’s advisory opinion to address State obligations to respond decisively. With respect to cross-border displacement, the Court should clarify State obligations in four key areas to ensure a comprehensive and rights-based response.

First, the Court should confirm the applicability of the principle of non-refoulement in the context of climate-displacement and advise States to create or adapt their procedures to process such claims. Drawing upon international human rights law and principles, the Court has a history of interpreting the non-refoulement obligations deriving from the American Convention on Human Rights and the American Declaration of the Rights and Duties of the Man broadly. It has recognized that the right extends beyond refugees to cover anyone whose personal integrity might be at serious risk upon return. Considering the growing understanding of the impact of the climate emergency on fundamental human rights, it is essential for the Court to affirm that individuals cannot be returned to places where their lives or well-being are at risk due to foreseeable threats caused or exacerbated by it.

Second, the Court should stress the importance of the right to seek and receive asylum, and promote the use of complementary protection mechanisms, as tools to fulfill States’ non-refoulement obligations towards climate-displaced individuals. The Court has stated that the right to seek and receive asylum enshrined in the American Convention is governed (para. 132) by the Refugee Convention and Protocol and the Cartagena Declaration. UNHCR has clarified that the refugee definition, including the Cartagena Declaration, should be informed by international and regional human rights law, and issued legal considerations to elucidate the applicability of these frameworks in the context of climate displacement.

Third, the Court should emphasize that States must employ diverse and flexible measures, such as temporary protection programs and humanitarian visas, as part of the response. When processing refugee claims is impractical (e.g., after the arrival of a large number of displaced individuals in a host country with limited capacity), or when individuals do not qualify for any immigration status but are still at risk of refoulement, States can implement different policies to prevent returns to danger or allow individuals to reach safety. In the past, the Court has suggested that States can take measures to assist in meeting their non-refoulement obligations, while also maintaining that these tools do not absolve them from the comprehensive duties to provide protection when required.

Finally, the Court should advise States on the imperative to cooperate in fulfilling their human rights obligations, a duty underscored by the principles outlined in the American Convention and by international instruments, like the Global Compact on Refugees and the Global Compact for Migration. Additionally, climate change treaties, such as the Paris Agreement, emphasize the necessity for global cooperation to respond to the impacts of climate change, including on human rights. To this end, they should proactively leverage regional agreements to enhance migration in ways that uphold human rights and recognize the needs of those displaced or at risk of displacement due to the climate emergency. These agreements include frameworks such as the Los Angeles Declaration on Migration and Protection and initiatives resulting from economic integration schemes, such as free mobility agreements.

The Potential of the Americas to Lead the Way

The Court is expected to publish its advisory opinion before the end of 2024. Its guidance could become an invaluable tool for shaping a principled and pragmatic international response to the pressing human rights challenge of climate-related displacement. A progressive approach from the Court would help shape climate displacement policy by establishing standards that can guide domestic decision-makers, inspire legislation, and influence judicial interpretations across the Americas. However, it is certain that States will not implement the Court’s direction uniformly. To ensure the rights recognized by the Court are upheld, it will be incumbent upon civil society to monitor, advocate for legislation, and push for adherence at the national, regional, and international levels. Additionally, depending on the timing of the respective courts, the IACtHR’s advisory opinion may also inform that of the ICJ.

As the proceedings for the advisory opinion progress, States in the Americas are gearing up to commemorate the 40th anniversary of the Cartagena Declaration, culminating with the Chile Declaration and Plan of Action in December. Disaster-related displacement is formally included in the agenda, creating a pivotal opportunity for States to make explicit and tangible commitments. As with any international political process, the main challenge for participating States will be reaching an agreement on how to address this matter and determining the extent of their commitment. For these reasons, the meaningful involvement of civil society, academia, and individuals directly affected is pivotal. Engaging with the process can take various forms, such as providing input to the participating governments or to Chile’s Foreign Ministry, which spearheads the initiative.

Together, the IACtHR advisory opinion and the Cartagena+40 process could position the Americas to lead the world in establishing clear obligations, guidelines, and policies to tackle this urgent challenge effectively and humanely.

IMAGE: Inter-American Court of Human Rights judges Nancy Hernandez (L) and Humberto Sierra attend a hearing on the responsibility of states in the face of climate emergencies, organised by the Inter-American Court of Human Rights, in Manaus, Brazilian Amazon on May 27, 2024. The Brazilian Amazon, home to the world’s largest rainforest, is a “region of indisputable importance” when facing the effects of climate change, said the president of the Costa Rica-based court, Nancy Hernandez Lopez, at the opening of the hearing. (Photo by Michael DANTAS / AFP) (Photo by MICHAEL DANTAS/AFP via Getty Images)