During Colombian President Gustavo Petro’s state visit to his counterpart Gabriel Boric in Santiago de Chile earlier this month, it was revealed that both countries had come together to ask the Inter-American Court of Justice (Corte IDH) an advisory opinion on the states’ scope in relation on their human rights obligations in connection with the climate catastrophe. A query they also branded as unprecedented. The bid document is not yet public, but the press teams in Chile and Colombia have revealed part of its heart.
“Both countries face the daily challenge of dealing with the consequences of the climate emergency, including increases in droughts, floods, landslides and fires, among others. These phenomena show the need to respond urgently and based on the principles of justice, cooperation and sustainability, with a focus on human rights,” says one of the paragraphs of the document. In it, the countries also argue that “these environmental impacts span across America and the world, have significant impacts on human rights and put future generations at risk.”
But what does this request mean in practice? As Mauricio Madrigal, Director of the Legal Clinic for Environment and Public Health at the Universidad de los Andes in Colombia, comments, one could say that the origin of this opinion is another document: Resolution 3 of 2021 of the Inter-American Commission on Human Rights (IACHR) with entitled Climate Emergency: Scope of Inter-American Human Rights Obligations, which states that states must put human rights at the center when developing strategies to deal with climate change, including those aimed at reducing emissions, or the right to information obligations and extraterritorial obligations. Put more simply, Chile and Colombia have asked the Inter-American Court of Justice to help them and other countries better understand how to implement this resolution. To give you guidance.
In an email, Ximena Insunza, a researcher at the Center for Environmental Law at the Law School of the University of Chile, explains that there are already a number of issues that both countries are known to seek answers to, such as homework prevention and ensuring related human rights with the climate catastrophe; the upholding of the right to life and survival in the face of the problem and the different obligations of states regarding the rights of boys, girls and new generations in the face of the climate crisis.
Gabriel Boric and Gustavo Petro speak during a meeting at the Palacio de la Moneda in Santiago, Chile, January 9, 2023. Cristobal Olivares (Bloomberg)
They are also asking for help on how to ensure consultations and legal processes, shared and differentiated responsibilities between states, and the protection of environmentalists, including women, indigenous peoples and Afro-descended communities. This is while considering that Latin America is the deadliest region for environmental leaders, according to organizations like Global Witness.
“It’s worth noting that this is a consultation that talks about intersections like gender issues or ethnic issues,” adds Madrigal, who is already working with a research forge to provide input to the court, which he hopes will have an answer in about a year and a half have years. “It’s also important because it’s stuck for the first time [el acuerdo de] Escazú in the middle,” he confirms. Although Colombia and Chile were among the last to agree to ratify this treaty, the new governments of both countries now want to take the lead in its implementation.
Despite the fact that this request is important and crucial, Rodrigo Uprimmy, lawyer and co-founder of Dejusticia, a Colombian legal studies center, clarifies that this is not the only scenario in which these concerns are raised. For example, in July last year, the Republic of Vanuatu did something similar in the Pacific Ocean, but before the International Court of Justice. “And various bodies of human rights committees of the United Nations deal with the issue of climate change with a human rights approach,” he says.
This, he adds, is a different route to climate change summits (COPs), where the implementation of the legendary Paris Agreement is negotiated, as all commitments there are voluntary.
Response of the Inter-American Court of Human Rights
With regard to the scope of the Inter-American Court’s answer, it can be said that there are still doubts. Uprimmy comments that there is some controversy in the legal community about how to interpret the response to an opinion. On the one hand there are those who take this as an opinion. Others, on the other hand, believe that their statements will be binding on the principle of good faith in the contracts.
“However, there is another thesis that I would follow. And these criteria, which the Court establishes more generally as answers to an expert opinion, have some legal force. They are neither directives that can be rejected, nor mandatory, but something in between: authorized interpretations or so-called soft law,” he assures. The truth is that what the Court says needs to be heard at least by all countries in the region, except Colombia and Chile.