The south of Brazil is currently experiencing one of its worst crises. 80% of the territory of the State of Rio Grande do Sul is under water and there are nearly 1.5 million victims. Further north, in the cities of Brasilia and Manaus, from this Friday, May 24, to Wednesday, the 29th, something that is deeply related will be happening: the Inter-American Court of Human Rights (IAC Court), will be holding public consultations on the obligations that states have regarding human rights related to the climate emergency.
During these days, the Court will land in Brazil to hear what 116 delegations have to say, testimonies that will serve as input for the response that the court will give to Chile and Colombia, countries that, at the beginning of January 2023, asked it for a unpublished advisory opinion to the Court on this topic. “An advisory opinion is a manual, a very comprehensive roadmap that will tell the states of the region [no solo a Chile y a Colombia] “what to take into account when protecting all human rights in the context of the climate crisis,” Viviana Krsticevic, executive director of the Center for Justice and International Law (Cejil), and one of the experts who will present their ideas before the Court this week.
The document, which is expected to be presented at the end of this year, will not only guide states on how to act in the face of the climate emergency, but will also guide civil society, academia and generate a kind of precedent for climate litigation. that occur at the national and local level. “The advisory opinion that emerges from this process will also guide the judiciary, because they will have an essential tool for litigation that arises in the countries,” adds Soledad García Muñoz, who served until recently as the first Special Rapporteur on Economic Rights. Social, Cultural and Environmental (Redesca) of the Inter-American Commission on Human Rights (IACHR). García was invited to give her contributions by the Inter-American Court itself in the first hearings on climate change and human rights that were held in Barbados in April of this year and in which 63 delegations participated.
Although the expectation is placed on the final advisory opinion, both experts believe that what happened in Barbados and is now about to be repeated in Brazil, the same public hearings, are enriching in themselves. “There is a plural, angry and profound debate taking place not only about the impact that the climate crisis has on human rights, but also how these can leverage climate action,” says Krsticevic, recalling that indigenous leaders, scientists, farmers, the same states and NGOs are being heard by the Court. In fact, according to the high court, this has been the most participatory process of the Inter-American Court, since, in addition to the 179 delegations that will be heard, 262 written observations have been received from more than 600 people.
A climate legal revolution
The climate crisis is also one of human rights. The emergency affects the right to a dignified life, to a healthy environment, to health, to water, to work and, with enormous emphasis, violates the rights of children and adolescents. For this reason, the recommendations that are being given to the Court have several fronts. Krsticevic, for example, says that Cejil is part of several groups that will present four reports during these days: one on girls, boys and new generations, another on human rights defenders, one more on access to justice and, finally, a last on access to information and climate production.
“We are urging the Court to generate specific guidelines on the protection of people who defend the environment and indigenous people,” he comments. “We seek to develop to a certain extent what was proposed with the Escazú Agreement, to understand that states have the obligation to defend defenders of nature.” But there are also other issues that, he believes, are urgent and in which more progress can be made in practice. “We await an advisory opinion in which the Court guides states to generate information systems that allow a more adequate response to the climate emergency, information that is key for prevention and adaptation measures.”
García makes a contribution along the same lines. “There is something that has not been explored as much and that is the human right to science, to benefit from the best scientific knowledge,” he explains. In her intervention before the Court that she made in Barbados, the expert also stated that the approach taken on human rights in the climate emergency must be “indivisible, interdependent and dignified.” In short, what she proposes is that this interrelationship between human rights be applied, in which it is understood that, when a single right is violated, I know that several are being violated at the same time. “For example, when I went to La Guajira (Colombia), they mainly talked about the impact on the right to water or hunger, but in the context of the climate emergency, civil and political rights are also being violated,” she says.
Furthermore, he says he hopes that the Court, in its final document, speaks of an intersectional perspective on rights. “It must be recognized that there has been historical discrimination and situations of vulnerability against certain groups of people who are also the most exposed to climate change.” The women, the indigenous people, the farmers, and “the boys and girls, as well as future generations, those who have not been born, but to whom we have left this house like this.”
From his point of view, what is happening with these consultations and with what the Court says will be a “legal revolution where, finally, economic, social, cultural and environmental rights cease to be second-class rights.” And not only because of what is being experienced in the inter-American system, but at the global level. In 2022, the Republic of Vanuatu, an island state highly affected by the crisis, also asked the International Court of Justice for an advisory opinion on climate change. A few days ago, also, the International Tribunal for the Law of the Sea, a United Nations court, ruled that the human-generated greenhouse gases that cause climate change can be considered a marine pollutant.
Climate change is changing everything. And the justice and litigation systems will also have to adapt to this to make more urgent, perhaps more radical, decisions. It is no coincidence that the Inter-American Court has reached these key places in the climate discussion. Barbados is a Caribbean island threatened by coastal erosion and rising sea levels, but very local about repair and the loss and damage that climate change brings. “Everywhere you see signs of what to do in the event of a tsunami,” García recalls. Brazil, for its part, is the country that has the most Amazon rainforest, the one that is talked about in almost any climate discourse. But as we see today, Brazil has not only just emerged from a drought alert, but has just plunged into a historic flood. The climate crisis is palpable.
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