In November 2017, the Inter-American Court of Human Rights issued Advisory Opinion OC-23, which highlighted the relationship of interdependence and indivisibility that exists between human rights, the environment and sustainable development.This blog will attempt to describe the possible effects of the Court’s Advisory Opinion on state responsibility claims related to climate change, by using the approach of the customary principle of the no harm rule and extraterritorial state responsibility.

Introduction

In accordance with Article 64(1) of the American Convention on Human Rights (ACHR), in March 2016, Colombia asked the Inter-American Court of Human Rights (IACHR) for an interpretation of the right to life and right to humane treatment/personal integrity, in relation to article 1(1), in light of international environmental law. This request was made because of the “severe degradation of the human and marine environment of the Wider Caribbean Region”[1], which according to Colombia “may result from the acts and/or omissions of States with coasts on the Caribbean Sea in the context of the construction of major new infrastructure projects”.[2] The purpose of this blog is to determine the possible effects of this Advisory Opinion (AO) on state responsibility claims related to climate change.

AO related to the Protection of the Environment

A key aspect that the Court recognised in the AO is the “existence of an irrefutable relationship between the protection of the environment and the realization of other human rights, due to the fact that environmental degradation affects the effective enjoyment of other human rights”.[1] This is highly important because it makes an explicit and undeniable link between human rights and the environment, which can be used to pursue legal claims for violations of human rights due to environmental issues. Another issue that the Court focused on was the autonomy of the right to a healthy environment. Considering this interpretation, there can now be claims solely for environmental harm, meaning that harm to human rights is not needed.[2]

Moreover, the Court addressed another vital topic in respect to claims regarding transboundary environmental damages. The Court examined the extraterritorial application of article 1.1 of the ACHR, that concerns the jurisdiction of State parties “particularly in relation to conducts committed outside the national territory of a State, or with effects beyond the national territory of a State”.[3] It stated that the jurisdiction mentioned in Article 1.1 is “broader than the territory of a State and includes situations beyond its territorial limits,”[4] meaning that it is not limited to the territory. Specifically, the Court:

“considers that an individual is under a State’s jurisdiction, in respect of conduct undertaken outside the territory of the said State (extraterritorial conduct) or with effects outside its territory, if that State is exercising its authority over that person or when that person is under its effective control”[5]

The latter is significant to the analysis, alongside the duty of States to prevent transboundary damages to the environment of other States. As such, in these types of cases what is relevant for jurisdiction depends on the state´s exercise of authority and effective control.

State Responsibility and Climate Change

In the AO, the Court repeated what it previously stated in the case Kawas Fernández Vs. Honduras, concerning the existence of a relationship between human rights and the protection of human rights in relation to environmental degradation and the adverse effects of climate change.[1] Furthermore, this is a direct reference to climate change and, as such, may open the doors for more claims in respect to this topic. Moreover, the analysis of extraterritorial jurisdiction gives States the option to raise claims against another States for damage to the environment and the enjoyment of human rights within their territory.

The analysis of the responsibility of States in public international law is imbedded in article 2 of the ILC Draft´s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), which responds to the principle of law that every wrongful act entails responsibility. ARSIWA states that a Sate has committed an internationally wrongful act “when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State”.[2]

The attribution of conduct may be analysed from the perspective described by the IACHR regarding the extraterritorial scope of jurisdiction in environmental matters, as a result of climate change. In the case of human rights violations due to the effects of climate change, a violation of an international legal obligation and the attribution of this violation to the conduct of a state is required. An approach that can be taken is the “no harm rule”, which is a recognised principle of customary international law, “whereby a State is duty-bound to prevent, reduce and control the risk of environmental harm to another state”,[3] alongside the obligations of states to ensure that activities within their jurisdiction and control respect not only the environment of other states, but also areas beyond national jurisdiction.[4] Additionally, the ICJ AO on The Legality of the Threat or Use of Nuclear Weapons identified it as a principle of customary international law.[5]

Conclusion

Considering the breach of international law “no harm rule”, with respect to treaty law and custom, alongside the assessment of the extraterritoriality regarding environmental damages made by the IACHR, it is plausible to determine the responsibility of a state for human rights violations due to environmental damages and the adverse effects of climate change. This means that with the AO, there is a now a new means of litigation with respect to the protection of human rights that are affected by environmental phenomena caused by climate change. The interpretation by the IACHR must be set as an example for the rightful protection of human rights in relation to environmental issues.