Leading the Way

There is little doubt that climate change in all its facets is one of the most pressing global issues of our time. Increasingly, we see international and regional treaty bodies addressing it. Much has been written about ongoing procedures in front of the International Court of Justice, the International Tribunal for the Law of the Sea, and the European Court of Human Rights (ECtHR). However, other regional developments, such as the African Commission’s study on the impact of climate change or the request for an advisory opinion on the climate emergency to the Inter-American Court of Human Rights (IACtHR) have regrettably received less attention. As we have submitted an amicus curiae to the latter proceeding, we want to contribute to its prominence and present the core arguments of our intervention to the Court. In particular, we highlight the nexus between climate change and forced displacement from a complementary protection perspective.

The IACtHR’s Advisory Opinion: Why the fuss?

On 9 January 2023, Chile and Colombia jointly filed a request to the IACtHR for an advisory opinion to “clarify the scope of the States’ obligations […] to respond to the climate emergency within the framework of international human rights law”. The requesting states stressed the relevance of the proceedings beyond the Americas and asked the Court to establish how states need “to respond to the climate emergency within the framework of international human rights law, paying special attention to the differentiated impacts of this emergency on individuals from diverse regions and population groups, as well as on nature and on human survival on our planet”. (see request, p. 1)

The questions posed to the Court in this case are impressively extensive, holistic, and complex (analyzed elsewhere, see here and here). The proceeding could shape not only the interpretation of the Organization of American States’ human rights obligations but also serve as inspiration for other international, regional, and domestic courts or treaty bodies.

The Role of Advisory Opinions in the Inter-American System

The Inter-American Court of Human Rights is situated in San José, Costa Rica, and functions as a human rights tribunal with jurisdiction over the American Convention on Human Rights (ACHR) as well as other treaties adopted within the Inter-American system. Its functions range from interpreting and applying the Convention (Article 62(1)), adjudicating cases, issuing provisional measures (Article 63) to providing advisory opinions (Article 64). As Article 64 ACHR clarifies, the Court’s advisory function is quite extensive as it goes beyond the regionally applicable treaties and extends to “other treaties [emphasis added] concerning the protection of human rights in the American States”. The Court has made extensive use of this broad approach, turning to other courts’ or treaty bodies’ interpretations as well as to international human rights instruments to interpret the Convention “regardless of the principal purpose of such a treaty and whether or not non-Member States of the Inter-American system are or have the right to become parties thereto” (OC-1/82, p. 12).

Advisory opinions have historically played a significant role, with the Court issuing eight advisory opinions within its first eight years after its establishment in 1979, while not deciding a single contentious case. This initial popularity of the advisory tool faded towards the mid-1980s until it regained popularity in 2017 when the Court wowed the world with its Advisory Opinion 23. The opinion acknowledged extraterritorial jurisdiction for transboundary environmental harm; the autonomous right to a healthy environment; and state responsibility for environmental damage. The currently pending opinion is intended to build on this by further strengthening the link between the protection of the environment and respect for human rights.

Remarkably, and in contrast to the International Court of Justice, for example, the IACtHR’s advisory opinions have a strong legal effect on state parties. The Court indicated that all member states should follow its proclaimed opinions as it has “undeniable legal effects” (see ‘The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law’, OC-16/99, para 48). Moreover, while the Convention itself does not expressly state the opinions’ bindingness, the Court stressed that states must act per its interpretations (see, e.g., Almonacid-Arellano et al. v. Chile, para 124). Nonetheless, two of the world’s largest emitters of greenhouse gases, Canada and the United States, have unfortunately not ratified the ACHR and will therefore not be bound by the Court’s advisory interpretations.

The Many “Friends of the Court”

The advisory opinion on the climate emergency and human rights is still pending at the Court. Its next stage – a public hearing, likely to take place in June 2024 – is eagerly expected by spectators, especially in the region. The deadline for submissions of amicus curiae passed on 18 December 2023, which allowed states, NGOs, law clinics, law firms, and anyone with an “expert” opinion on the topic to submit their writings to the Court pursuant to Article 44 of the Convention.

The Court apparently received a record number of submissions. While not all amicus have been published yet, those that have indicate that there was a significant amount of contributions from around the globe, each dealing with particular sub-issues of the request (see, for example: here, here, here or here). In what follows, we focus on one particular sub-issue, namely the nexus between climate change and forced displacement which is central to our amicus as well.

In this regard, other interventions submitted by the United Nations High Commissioner for Refugees and an interest group around the International Refugee Assistance Project focus on the applicability of well-established refugee definitions under the 1951 Refugee Convention and the Cartagena Declaration to climate-induced displacement. By contrast, our amicus concentrates primarily on possibilities of complementary protection stemming from the human rights-based non-refoulement principle as laid down in Article 22(8) ACHR. Accordingly, states cannot return aliens to other countries where there is a real and foreseeable risk to their right to life or personal liberty (IACtHR, ‘Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection’, OC-21/14, para 221).

Non-Refoulement and Accelerating Climate Change

To demonstrate how the IACtHR might interpret the non-refoulement principle in light of accelerating climate change, we provided a comparative legal analysis with relevant international and European case law, particularly from German (higher) administrative courts.

Given the lack of relevant ECtHR case law, jurisprudence from Germany appears particularly appropriate in this context as the examination of potential non-refoulement obligations is firmly embedded in its national protection status determination. According to Sec. 60(5) of the German Residence Act “a foreigner may not be deported if deportation is prohibited under the terms of the [ECHR]”. This refers primarily to situations where there is a “real risk” of ill-treatment in the meaning of Article 3 ECHR upon return. When applying the threshold of Article 3 ECHR in relation to situations of precarious humanitarian conditions in the country of origin that cannot be attributed to any state actor – such as environmental disasters and climate change – an applicant is generally required to establish that “the humanitarian grounds against the removal” are both “very exceptional” and “compelling” (ECtHR, N v. United Kingdom, para 42).

Against this background, a remarkable number of German administrative courts have recognised the interdependencies of the different factors determining the humanitarian situation in the country of origin. They recognized the detrimental effects of climate change on aspects such as the overall economic situation, food supply or (social) security and its potential to exacerbate existing vulnerabilities. In a case concerning a young, healthy, and unmarried male Afghan citizen, the Administrative Court of Düsseldorf referred to the 2017/2018 winter planting season which was accompanied by “a prolonged drought that affected more than two-thirds of the Afghan population, leading to health problems and income reductions by 50%” (paras 208, 210; similar: Higher Administrative Court of Bautzen, para 116). It considered the humanitarian conditions to be further worsened by “significant floodings in the south, west and north of the country in the first half of 2019, which caused economic problems and crop failures”.

More recently, the Administrative Court of Munich referred to scientific findings which deemed “droughts in Afghanistan […] a frequent and devastating phenomenon that will occur even more regularly and severely as a result of climate change”,  stressing that “[b]y 2030, annual droughts are likely to become the norm in many parts of the country” (para 37). In a case concerning Ethiopia, the Administrative Court of Cottbus held that “the consequences of the increasingly visible climate change – more rapid and prolonged droughts, increasing water shortages, destruction of forest areas and plagues of locusts – in addition to social and ethnic tensions including violent riots” taken together constituted a violation of Article 3 ECHR (para 7).

The most detailed assessment of climate-induced displacement was provided by the Higher Administrative Court of Mannheim. Referring to reports by the International Organization for Migration, the World Bank and the World Food Programme, the court stressed that the poor humanitarian conditions in Afghanistan are caused by environmental degradation – including droughts, floodings and torrents – which are all driven by climate change (para 163).The overall 30 domestic judgments referred to in our amicus illustrate how legal protection for people who leave their home country due to natural disasters and climate change could possibly be realized within the scope of well-established principles of international and European human rights law. Against this background, the authors invited the IACtHR to consider non-American jurisprudence as a source of inspiration for the interpretation of Article 22(8) ACHR’s non-refoulement principle. Addressing the nexus between climate change and displacement from a complementary protection perspective would allow for a thorough and dogmatically sound assessment of the negative impacts of environmental degradation that (in)directly affect the humanitarian situation in the country of origin.

The Way Forward

Given the IACtHR’s past and present pioneering role in pushing the boundaries of regional and international human rights law, the advisory opinion has the potential to contribute significantly to legal developments on the nexus between climate change and human rights including aspects such as climate-induced displacement.

While the opinion’s outcome and impact are uncertain, it is a proceeding that should be watched closely as the scope of the questions on states’ obligations and the submissions of amicus from around the globe offer a comprehensive picture of open and relevant legal questions in the context of the climate crisis.

Moreover, the proceeding could serve as an inspiration and role model for courts beyond the region. An explicit turn to the Inter-American jurisprudence would follow the spirit of a real judicial dialogue between regional and international human rights bodies instead of a one-sided monologue. We see this too often when comparing ECtHR jurisprudence with that of the IACtHR or the African Commission for Human and Peoples’ Rights. Whereby the latter two regularly and explicitly refer to their European counterpart – e.g., to develop complementary protection for asylum seekers based on general human rights standards – the same is not true the other way around, at least not as often and explicitly. Nevertheless, as former ECtHR president Róbert Spanó acknowledged, it is important for the ECtHR and its human rights “sister courts” to learn from each other. Additionally, analyzing the proceeding and outcome at the Inter-American level could contribute to harmonizing an area of the law that is in progress and underdeveloped but requires urgent global attention. Climate change and corresponding states’ legal obligations are pressing issues with cross-border and regional implications, rendering a harmonious legal approach with thorough and coordinated solutions particularly important.

Hopefully, the Court will be able to live up to the high expectations that civil society and the requesting states placed on it. Either way, the proceeding already serves as inspiration and motivation to turn to human rights instruments to advance international law related to climate change.