International Human Rights and the Climate Emergency: An Examination of the Climate Advisory Opinions of the International Court of Justice and the Inter-American Court of Human Rights

This article examines the recent climate change advisory opinions of the Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ). Though not without limitations, both opinions provide strong support for the recently vibrant human rights-based advocacy efforts on climate change. The IACtHR’s opinion builds on its 2017 advisory opinion on the environment and human rights to specify a right to a healthy climate and reaffirm robust state obligations, inter alia, of international cooperation and enhanced due diligence. The opinion also extends IACtHR’s recent trajectory of progressive climate jurisprudence, for example in its recognition of the rights of nature and in its broadly participatory deliberation process. The ICJ’s advisory opinion, meanwhile, is notable in its choice broadly to reject familiar arguments against robust state obligations in respect of climate change, e.g., arguments of lex specialis against the applicability of non-climate legal norms, arguments from causal complexity or causal inefficacy against individual actor responsibility, or arguments claiming broad state discretion in setting contribution standards. In doing so, the ICJ chose also to lay the groundwork for stringent and wide-ranging state obligations in respect of climate change, including, inter alia, robust obligations of due diligence and international cooperation under customary international law, obligations intersecting climate and human rights law, and obligations erga omnes based on the consideration that the climate system is a global common good, etc. This article argues that both courts’ opinions can be read as variously responding to the fact that climate change is a structural threat to human rights. It concludes with a discussion of the opinions’ limitations and some outstanding challenges.