Climate change in the Inter-American Court: from the causalist perspective of transboundary environmental damage to the multi-causality of climate change.
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Harold Miñarro Escalona. Lawyer, Universidad Católica Andrés Bello, Venezuela. Master in International Law, London School of Economics and Political Science, England. hescalona@alumni.lse.ac.uk
The multiple applications to international tribunals.
In December 2022, Colombia and Chile asked the Inter-American Court of Human Rights (IACHR) for an advisory opinion on States' obligations under the American Convention on Human Rights in the face of the climate emergency.
On the other hand, now in March 2023, after several years of intense diplomatic campaigning, Vanuatu achieved the necessary support before the United Nations General Assembly to approve by consensus a request for an advisory opinion before the International Court of Justice (ICJ) on the legal consequences of the obligations under international treaties to ensure the protection of the climate system from anthropogenic - i.e. human-caused - greenhouse gas emissions against vulnerable states and populations.
2. The confluence of different advisory opinions.
In the face of a possible confluence of advisory opinions between the two courts, it is important to assess what expectations one might have of each advisory opinion. This article decides to focus on the IACHR Court in particular and its possible contribution to the ICJ.
First, it will be a matter of great importance. The first court to issue an advisory opinion will become the reference for the following courts. This will be an element of judicial policy that judges will value in their handling of the case. Whatever their opinion, however, they will need to ensure that it is as strong as possible so as not to undermine the legitimacy of each of their institutions. This could be through recourse to the reports of the Intergovernmental Panel on Climate Change (IPCC), to establish the scientific basis for damage from climate change and what the associated liabilities might be, the same methodology used by the Dutch courts in the Urgenda case.
Secondly, due to each court's own competence and the questions asked, it is natural that there will be differences between the two advisory opinions. While the IACHR has as its main focus persons subject to the jurisdiction of States Parties to its Convention, the ICJ has a much broader competence, aimed at seeking the interpretation and application of general international law.
3. The positions of the IACHR Court.
On the one hand, the IACHR could choose to modify the questions posed by Chile and Colombia in addition to their length and seek to synthesise the general or minimum obligations applicable to climate change, as it did in its previous Advisory Opinion 23/17 Environment and Human Rights.
This previous Advisory Opinion, moreover, could offer some standards for the questions posed, which is why the Court could choose to discard answering them, as it did in its ruling where it refused to issue an advisory opinion on the figure of political trials in the Americas, given its great variety of systems and the possibility of guaranteeing rights through its jurisprudence on political rights.
Some of these standards that the Court could consider applicable to climate change, without prejudice to their already recognised application in the doctrine or jurisprudence of other international bodies, include substantive principles such as the principles of prevention, precaution and cooperation, but it could also delve into others that are not further developed, such as the principle of common but differentiated responsibilities, or polluter pays, reducing the burden of proof that could be required for States or affected persons, by virtue of the establishment of a prior duty of diligence.
It could thus choose not to consider its opinion necessary, or to issue its opinion, drawing on its earlier work in OC23/17 to complement the obligations of States and their consequences in terms of climate change. In this case, the issue is considered to be of such relevance that it is unlikely that the Court would take the position of not delivering an opinion.
4. The causal nexus as a determining factor for the IACtHR.
However, it is important to consider what the IACHR might address in the event that it decides to rule in full on the request for an advisory opinion, and to what extent its previous opinion serves as an input.
In its advisory opinion on Environment and Human Rights, the IACHR took the opportunity to analyse whether it could hear cases of transboundary environmental damage, concluding that insofar as there was a causal link between the damage caused to a person in one State and the act that caused the environmental damage within the territory of another State, the affected person would be considered to be under its jurisdiction as required by article 1.1 of the Convention, as a fundamental requirement for establishing its responsibility.
Thus, the IACHR relied on the criteria of jurisdiction previously developed by the ICJ, recognising that a State can violate the human rights of a person, even if that person is not in its territory, but "under its jurisdiction", in those cases where the person is under its authority or effective control, by controlling the sources of contamination from its territory. Thus, since liability is the legal consequence of the breach of a specific obligation or the production of damage, the Court could define legal consequences for threats to Convention rights connected to breaches of climate change treaties.
From this arises the central element of State liability for transboundary environmental damage: the causal link. The victim must have this status as a consequence of an act of a State, even if it does not occur in its territory. Thus, if an oil spill spreads from State A to State B, causing the death of inhabitants of State B through the consumption of contaminated water, there would be a causal link between the deaths in State B and the oil spill caused by State A on its territory.
However, when it comes to climate change, the situation has historically been more difficult. This is because climate change, unlike transboundary environmental damage, is not a one-off phenomenon. It does not occur on a particular day and in a particular place. It is cumulative, because it is caused, in principle, not by the actions of a particular state, but by the joint activity of all states, companies and people in the world. And it is progressive, in that it does not occur on a specific day, but is exposed gradually, in different parts of the world, in different ways, with varying intensity.
Consequently, even if on a certain day and in a certain place a flood occurs, if the effect is cumulative, who is or are the responsible state or states? And if it is progressive, what is the triggering act? To what extent can the United States be held responsible for having produced a certain number of kilotonnes of CO2 with the loss of glaciers in the Andes that has harmed a group of farmers in Peru? To the extent that the common but differentiated responsibilities imposed by climate change treaties can be identified, human rights violations could be adjudicated for failure to meet greenhouse gas reduction targets.
In the cases of Sacchi and others v. France and others, before the UN Committee on the Rights of the Child, the Committee established its jurisdiction on the basis of the IACtHR test, assuming that the alleged victims' suffering from disease and other afflictions were a reasonably foreseeable consequence of climate change and would therefore be the responsibility of states.
Despite the initial failures of climate change litigation to establish the causal link, technological and scientific progress has enabled it to move beyond this. As Veerle Heyvaert, Joana Setzer and Geetanjali Ganguly have argued, courts are now inclined to recognise IPCC reports as scientific evidence of anthropogenic origin; scientific reports establishing the major corporate groups according to their percentage contribution to carbon dioxide emissions from 1854 to 2010 are being used in a new wave of climate change litigation, so that the partial or joint liability of a corporate group or state can now be scientifically proven in court proceedings.
This is why the thesis of attribution of responsibility of the IACHR Court, through the Sacchi case, has been shown to be used in cases related to climate change to establish a state's jurisdiction, and ultimately also its responsibility. And that the problems of proving the causal link that existed previously are increasingly being left behind.
5. The possible position of the ICJ and the contribution of the IACHR Court.
As for the ICJ, some authors, such as Sands, argued in 2015 that it was unlikely that the ICJ would deliver an Advisory Opinion on this matter. More recently, though, he pointed out that the way to avoid this Advisory Opinion becoming a missed opportunity like the Advisory Opinion on Nuclear Weapons - where his conclusion was that he could not conclude whether the threat or use of nuclear weapons would be legitimate or not in extreme circumstances - would be to ask precise questions.
Auz and Viveros-Uehaha have also argued that the ICJ tends not to interfere in matters of high complexity or uncertainty, as a matter of principle. However, it is important to point out that it is impractical for an international tribunal to have to set the reductions that each country should have, similar to what happened in the Urgenda case in the Netherlands, knowing that, in addition, each reduction entails sacrifices in economic and developmental terms, which states are in a better position to assess than an international court chamber.
Given these claims, it would be possible to expect the ICJ to choose to have deference for the Conference of States Parties regulated by the various climate change-related treaties. Especially considering that the obligations with regard to greenhouse gas emission reductions are stipulated in the Paris Agreement, and this is interpreted and implemented by the Conference of States Parties. It could choose to extend its duty of oversight and require more rigorous scrutiny by the Conference of the States Parties of reports submitted in relation to nationally determined contributions, or it could choose to make nationally determined contributions binding and judicially enforceable, eliminating some of the difficulties of domestic climate change litigation.
It is likely that when faced with the question of what are the obligations of States in the area of climate change, some States will seek to question the binding nature of some of the precepts of the United Nations Framework Convention on Climate Change or the Paris Agreement, and thus mitigate any consequences that may arise from their non-compliance, a question that the ICJ will have to resolve on the basis of its understanding of these treaties, and of what emerges from the same custom and principles of international law. However, in our view, the wording of the treaties and the intention of the parties do not leave much room for thinking that these are not binding obligations, but only legal obligations with high political and economic obstacles to their implementation.
Therefore, following the determination of the obligations that States would have, it could be expected that the criteria for attributing responsibility of the IACHR Court with respect to damages derived from climate change could also be adopted by the ICJ as part of the answer to the second question, as consequences derived from non-compliance with the obligations. In this way, in a stepwise manner, a legal interpretation of the most important climate change treaties would be produced that would move from the regional level (IACHR) to a broader, if not entirely universal, spectrum (ICJ).
6. Conclusions.
Therefore, among the possible positions of the IACHR Court, it could opt for an advisory opinion that complements the standards of OC23/17, or one that goes even deeper, in order to establish the conditions for the establishment of State responsibilities in the area of climate change.
Both positions, in turn, could serve as a complement to the ICJ, which could opt for a conservative position, where it deems not to make major definitions regarding the obligations and legal consequences of states in terms of climate change, or a more innovative one, which in addition to making the obligations set out in the treaties against climate change more rigorous, could use the thesis of the IACHR Court to establish the way in which the responsibility of states in this area could be determined, with application beyond the American continent.
