Potential Climate Remedies at the Inter-American Court of Human Rights

[Eoin Jackson is a PHD Candidate at LSE]

At present, the Inter-American Court of Human Rights (IACtHR) is considering its Advisory Opinion on the Climate Emergency and Human Rights. The proceedings follow on the heels of the landmark European Court of Human Rights decision in KlimaSeniorinnen v Switzerland, where the Court issued a declaratory judgment that the human rights of the elderly Swiss women plaintiffs had been violated due to critical gaps in Switzerland’s climate policies. The IACtHR has often been willing to pursue innovative remedies to address human rights violations. Sketching out this innovative approach is useful in understanding the capacity of the IACtHR to be more ambitious than its European counterpart in mandating climate measures, having due regard for the common but differentiated responsibilities of Latin America and the Caribbean for addressing climate change.

Reforming Laws and Policies 

In previous advisory opinions, the IACtHR has recommended that laws and legislation be reformed to address human rights violations. In Advisory Opinion OC-27/21 on collective labour rights and gender, the IACtHR noted that states are “under obligation to adapt their laws and practices to new conditions on the labour market, regardless of the kind of technological developments that produce these changes”. Similarly, in Advisory Opinion OC-29/22 on differentiated approaches with respect to certain groups of persons deprived of liberty, the IACtHR set guidelines that states adopt a differentiated approach to the special needs of distinct groups deprived of liberty. This lays the foundation for an Advisory Opinion on the Climate Emergency to set out recommended law and policy reforms to effectively address climate change. 

In expanding on this foundation of recommending law and policy changes to climate change, the IACtHR can look to remedies it has adopted in the context of contentious environmental rights cases. In Lhaka Honhat v. Argentina, the IACtHR was asked to consider appropriate remedies in response to (among other rights violations) a violation of the right to a healthy environment, as a result of the failure of the State to appropriately handle and protect the land of an indigenous community. Among the remedies ordered by the IACtHR was that the State had to take necessary actions, whether judicial, administrative, notarial, or any other kind of action, to delimit, demarcate, and grant a collective title that recognized the indigenous people’s ownership of the territory. A similar remedy was issued in Mayagna (Sumo) Awas Tingni v. Nicaragua. Here, the IACtHR ordered the State to implement legislative, administrative, and any other measures necessary to create an effective mechanism for delimitation, demarcation, and titling of the communal lands. The remedies in these cases had to be implemented in accordance with the culture of the indigenous tribe.

Additionally, the IACtHR has issued orders to protect or require the restoration of land subject to environmental damage. In Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, the IACtHR ordered that the State must neutralize, deactivate and, where appropriate, remove all of the pentolite on the surface of the plaintiffs territory. In Case of the Triunfo de la Cruz Garífuna Community v. Honduras, the State was ordered to refrain from carrying out acts that could lead the agents of the State itself to, or third parties who act with their acquiescence or tolerance, affect the existence, value, use, or enjoyment of the lands that must be restored to the plaintiffs.

Taking all of these cases into consideration, we can see that the IACtHR has issued both sweeping guidelines and narrower sets of recommended actions to reflect the urgency and scale of the human rights violation or violations in question. This leaves the Court a great deal of scope to be as broad or as specific as possible when it comes to what it recommends with regard to addressing climate change. As an example, the Court could recommend that states implement law and policy in compliance with the best available climate science, and then issue more specific guidelines on what this science entails, having due regard for leading international bodies like the Intergovernmental Panel on Climate Change. It could also order a general strengthening of the laws regarding corporate accountability for the climate emergency, which is critical to ensuring corporations do not take advantage of lax regulation to enact further climate destruction. 

Alternatively, or in tandem to general recommended changes, the IACtHR could specify particular actions and/or guidelines to influence how member states implement policies e.g. no new fossil fuel investments, an established coordinated social, environmental, and climate strategy that ‘joins the dots’ with regards to sectoral mitigation plans, and an emphasis on protecting critical ecosystems like the Amazon, among other possible actions. What will be important in mandating legislative and policy changes of this kind is that equity remains at the heart of the Court’s measures. In this regard, it can rely both on its prior deference and respect for indigenous knowledge, and combine it with recognition that all policies should respect the principle of common but differentiated responsibilities.

Action Plans 

Action plans are becoming a core aspect of the remedies utilised by the IACtHR to protect the environment. Action plans leave broader scope for states to implement reforms than direct legislative changes and allow for domestic experts to apply their own skills to meet the demands of the court for an effective remedy.

In the recent landmark decision of La Oroya v. Peru, the Court ordered Peru to establish a plan of action for the city of La Oroya, to be implemented in no more than 18 months from the issuing of the judgment, aiming to remediate the environmental damages caused by deductive mining practices. This plan was ordered to prioritize the areas that represent a higher risk for the environment and health and involve the active participation of the victims. Additionally, the Court ordered Peru to implement an environmental compensation plan applicable to La Oroya Metallurgical Center that guarantees a zero net loss of biodiversity, an identification of ecological equivalence from an analysis of ecosystem services, and the search for an “additionality” in environmental compensation.

Similarly, in Lhaka Honhat, the Court ordered Argentina to present a study in six months that identified critical situations of lack of access to drinking water and food, and that Argentina then formulate an action plan to address these situations. In Rio Negro v Guatemala, the IACtHR ordered that the state must consult with the victims and draw up a timetable with short and medium term goals of how it would ensure the preservation of the cultural integrity of the community that had brought the case.

Applying such an approach to the climate emergency Advisory Opinion, the Court could also take inspiration from the Colombian case of Future Generations v. Minister for the Environment. Here, the Supreme Court of Colombia ordered the government to create and implement short, medium, and long term action plans to counteract the deforestation rate in the Amazon, with a focus on tackling climate change impacts. The formulation of these plans was left to the discretion of the relevant governmental departments. Coupling a plan of this kind with recommended reforms to climate law and policy, would be a useful method for the Court to ‘fill in the gaps’ with regard to state climate ambition, while still leaving room for regional and domestic innovation. Action plans could prove particularly helpful for the Amazon, whose territory intersects with different Latin American countries, thus meriting a coordinated response to guarantee its protection. 

Monitoring and Accountability Mechanisms 

The Inter-American Court has often struggled with enforcing its rulings, and Latin America and the Caribbean do not have the same capacity to address climate change as their wealthier counterparts. However, in contentious proceedings, the IACtHR has previously set up implementation committees and/or requested implementation reports to monitor and supervise relevant legislation or programs. In Plan de Sanchez v Guatemala, the court ordered that the state submit an implementation report within one year of the judgment outlining how the state had complied with the remedies outlined in the case. In Moiwana Community v. Suriname, the IACtHR established that the implementation committee for its remedies must consist of one representative from the state, one from the affected indigenous community, and one representative that was mutually agreed upon by both sides. The Court would further intervene in the event that the composition of the committee could not be agreed upon.

An implementation committee of this kind for climate change would see a dramatic expansion of its previous utilisation by the Court. Establishing a committee of this kind to all member states in an area as vast and interconnected as climate change would be challenging from a capacity perspective. However, what may prove useful is a more limited science-policy action supervision committee. A committee of this kind could be tasked with bringing member states together to share updates on the latest climate science and best practices on climate mitigation and adaptation. In turn it could flag general behaviors not in line with the necessity to remain below 1.5°C with limited overshoot, and issue regional reports monitoring the extent to which climate policy is science-led, with due regard for concerns regarding equity and common but differentiated responsibilities. This would increase climate accountability for the member states, without the Court becoming bogged down in every single aspect of the region’s climate policies.

Conclusion 

With Latin America and the Caribbean being one of the regions worst affected by climate change, the Inter-American Court faces an opportunity to enact remedies that reflect vulnerable circumstances while having due regard for the principle of common but differentiated responsibilities. The Court has often been ambitious in its approach to remedies, and the climate emergency Advisory Opinion is a critical opportunity to influence the response to the climate emergency.