Written by: Siyi Shen, Global Environmental Law Graduate Fellow

On February 8, 2018, the Inter-American Court of Human Rights (the IA Court) issued a groundbreaking advisory opinion (2018 Opinion) in response to a request by Columbia recognizing the right to a healthy environment as a fundamental human right that protects current and future generations. The IA Court also noted that a country is obligated to prevent significant environmental damages both within and outside its borders, including damages caused by climate change. This is a precedent-setting opinion that may reshape the international landscape of climate litigation and cross-border environmental litigation.

The IA Court has advisory jurisdiction among all members of the Organization of American States (OAS). At the request of the OAS members, the IA Court issues advisory opinions to interpret the American Convention of Human Rights and other human rights instruments. Advisory opinions are binding on all states that have accepted the IA Court’s jurisdiction.[1]

The real-world effects of this February 8, 2018 advisory opinion, however, reach far beyond the Americas. In fact, for many decades human rights forums and domestic courts in various countries and continents have woven the IA Court’s judgments into their case law analysis, expanding the IA Court’s influence on environmental and human rights issues to a global level.

For example, in the 2010 landmark ruling of the Endorois case, the African Commission on Human and People’s Rights (African Commission) concluded that the Kenyan government violated human rights of the indigenous Endorois people by evicting them from their land to make way for tourist facilities.[2] In making this decision, the African Commission made a number of references to the IA Court jurisprudence and studied the IA Court’s treatment under similar circumstances. Similarly, the European Court on Human Rights and courts in the United States and Canada have used the IA Court’s opinions to support their decisions.[3]

The IA Court’s 2018 Opinion has started to reshape the landscape of global environmental and human rights protection. For example, the 2018 Opinion was used in a Joint Summary of the Amicus Curiae Briefs (Joint Summary) on March 19, 2018, to the Philippine Human Rights Commission (Philippine Commission), in support of its inquiry into the responsibility of 47 investor-owned fossil fuel companies for human rights violations resulting from the impacts of climate change.[4]

In discussing the linkages between climate change and human rights law, the Joint Summary cited the IA Court’s opinion that “protecting the environment is critical to the enjoyment of other human rights” and “the existence of an undeniable relationship between the protection of the environment and the fulfillment of other human rights, in that environmental degradation and the adverse effects of climate change affect the effective enjoyment of human rights.”[5]

Similarly, the IA Court’s 2018 Opinion was quoted in an Amicus Brief submitted on March 1, 2019, in support of the plaintiffs in Juliana v. United States. Environmental law professors and experts cited the IA Court’s finding that “states are obligated to prevent significant environmental damages within and outside their territory” to support their argument that the United States also has an obligation “not to cause or contribute to severe environmental degradation that threatens the earth’s ability to sustain life.”[6] The Philippine Commission and the Juliana cases have yet to be decided; in their decisions, the references to the IA Court’s 2018 Opinion should be seriously considered.

The IA Court’s 2018 Opinion is powerful. It paves the way for future litigation relating to cross-border environmental damages and climate-related damages worldwide. An increasing number of courts and human rights forums are beginning to consider and recognize the IA Court’s guidance on achieving environmental and social justice. The simple truth is that humans share one planet and must safeguard its resources for present and future generations.

[1] The following 22 states have accepted the IA Court’s Jurisdiction as of March 2019: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Surinam, Trinidad & Tobago, Uruguay, and Venezuela. 2018 Annual Report of the Inter-American Commission on Human Rights (March 2019), http://www.oas.org/en/iachr/docs/annual/2018/TOC.asp.

[2] Ruling of the African Commission on Human and Peoples’ Rights, No. 276/03: Centre for Minority Rights Development (Kenya) and Minority

Rights Group (on behalf of Endorois Welfare Council) / Kenya, at 1-3 (Feb. 4, 2010), http://www.achpr.org/files/sessions/46th/comunications/276.03/achpr46_276_03_eng.pdf.

[3] See Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1049 (D.C. Cir. 2014); People v. Madej, 739 N.E.2d 423, 430 (Ill. 2000); Kazemi Estate v. Islamic Republic of Iran, [2014] 3 S.C.R. 176, 240 (S.C.C.); R. v. Quesnelle, [2014] 2 S.C.R. 390, 407-08 (S.C.C.); Eur. Consult. Ass., Research Report: References to the Inter-American Court of Human Rights and Inter-American instruments in the case-law of the European Court of Human Rights (updated Nov. 2016), https://www.echr.coe.int/Documents/Research_report_inter_american_court_ENG.pdf.

[4] Brief for Greenpeace Southeast Asia et al. as Amici Curiae Supporting Petitioners (Mar. 19, 2018), In RE: National Inquiry on the Human Rights Violations or Threats of Violations Resulting from the Impacts of Climate Change and the Responsibility Therefor, (CHRNI-2016-0001), http://www.ciel.org/wp-content/uploads/2018/03/Joint-Summary-Amicus-submitted.pdf.

[5] Id. at 22.

[6] Brief for Kelsey Cascadia Rose Juliana, et al. as Amici Curiae Supporting Plaintiffs-Appellees, at 17 (Mar. 1, 2019), Juliana v. United States, 339 F. Supp. 3d 1062 (D. Or. 2018) (No. 18-36082), http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2019/20190301_docket-18-36082_amicus-brief-9.pdf.