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The first part of this article addressed the potential impact of climate-change-related tragedies on legal understanding, describing climate obligations derived from comparative constitutional case law and recent rulings by interstate dispute settlement bodies. This second part discusses normative and jurisprudential developments regarding the duty to mitigate and promote climate change adaptation measures in universal and regional human rights systems.
Regional and universal systems
The UN Human Rights Council, the Office of the High Commissioner for Human Rights, special procedures, and treaty bodies of the Universal System have addressed the intersection between climate emergency and human rights in various pronouncements. The specialized committees that have issued general observations, decisions on individual communications, and reports on this issue include the Human Rights Committee; the Committee on Economic, Social and Cultural Rights; the Committee on the Rights of the Child; the Committee on the Rights of Persons with Disabilities; the Committee on the Elimination of Discrimination against Women; and the Committee on the Protection of the Rights of Migrant Workers and Members of Their Families. Likewise, the Working Group on Business and Human has issued statements applying the UN Guiding Principles on Business and Human Rights to conducts contributing to climate change.
In 2009, the African Commission on Human and Peoples’ Rights issued a resolution on climate change and human rights. The resolution expressed concern about the lack of a human rights approach in state negotiations and multilateral commitments on climate change. Additionally, the African Court on Human and Peoples’ Rights is pending an advisory opinion on the matter.
In April 2024, the European Court of Human Rights (ECHR) ruled on three cases related to climate emergency and human rights. In Klimaseniorinnen Schweiz and others v. Switzerland, thousands of elder women claimed that the Swiss government’s failure to mitigate global warming put them at risk of serious harm from increasingly frequent heat waves in their country. The ECHR found violations of the right to private and family life (Article 8) and the right to access courts (Article 6.1), both of which are protected under the European Convention on Human Rights. The ECHR interpreted the scope of these provisions in light of Switzerland’s commitments under the United Nations Framework Convention on Climate Change (UNFCCC). The ECHR emphasized that these commitments must be implemented based on the best available scientific evidence. This emblematic precedent sets a standard for providing adequate remedies for judicial review of a state’s climate policies, actions, and programs vis-a-vis its human rights obligations.
The other two cases decided by the ECHR to date – Duarte Agostinho and Others v. Portugal and 32 Other States and Carême v. France — were dismissed on procedural grounds. The first case was dismissed due to a failure to exhaust domestic judicial remedies in the respondent countries, as well as a lack of sufficient factual elements to assess extraterritorial jurisdiction in relation to the alleged climate damage. The second case was dismissed because the alleged victim had ceased to be a resident of the northern coast of France, where flooding and other extreme phenomena were said to occur as a result of climate change. The ECHR concluded that she had failed to demonstrate her status as a potential victim of the alleged damage.
Inter-American System
The intersection of human rights and climate change within the Organization of American States (OAS) began in 2008 when the General Assembly issued a resolution titled “Human Rights and Climate Change in the Americas”. The resolution tasked the Inter-American Commission on Human Rights (IACHR) with “determining whether there is a link between adverse climate change effects and the full enjoyment of human rights”.
Inter-American Commission
In compliance with the mandate established by the OAS General Assembly, the IACHR has issued several recommendations for American states to respect and guarantee the rights of Afro-descendants, people living in poverty, and indigenous peoples of the Pan-Amazon region in the face of climate change effects. These recommendations have been included in thematic reports, the annual report, and press releases from the IACHR’s Special Rapporteur on Economic, Social, Cultural, and Environmental Rights (Relatoría Especial de Derechos Económicos, Sociales, Culturales y Ambientales – REDESCA).
In 2019, the IACHR and its REDESCA approved the report “Businesses and human rights: inter-American standards”, which includes a section on the prevention and guarantee obligations regarding companies’ significant climate damage. In 2023, REDESCA published a report titled “Poverty, Climate Change, and DESCA in Central America and Mexico in the Context of Human Mobility”. In December 2024, the IACHR published Resolution 2/24 on “Human Mobility Induced by Climate Change”, which establishes parameters for state action in this area.
Resolution 3/21, dated December 2021 and entitled “Climate Emergency: Scope and International Human Rights Obligations” is the most significant statement that the IACHR and its REDESCA have issued on this issue. The resolution emphasizes the importance of a rights-based approach in developing instruments, policies, programs, and standards on climate change. Notable contributions include guidelines on the obligation to prevent transboundary environmental damage through GHG emission mitigation targets in accordance with the thresholds of the Paris Agreement. The resolution aligns with Escazú Agreement standards regarding access to information, participation, transparency in decision-making processes related to climate change mitigation and adaptation, access to justice, and the protection of environmental defenders.
Resolution 3/21 is an invaluable contribution to finding legal solutions to human rights violations caused by climate change. However, it lacks the same degree of operationality as similar pronouncements by the IACHR that systematize state obligations in specific areas of human rights.¹ Resolution 3/21 primarily consists of calls for states to incorporate certain approaches into their climate change policies, descriptions of treaty provisions violated as a result of this phenomenon, and references to general principles of environmental law. It provides a limited number of clear parameters for state action in response to situations linked to climate emergency.
This lack of systematization of specific state obligations to mitigate and prevent climate damage has been filled by the Inter-American Court of Human Rights (IACt-HR) through Advisory Opinion AO-32/25. The most significant advances in this opinion are summarized below.
Inter-American Court
Titled “Climate Emergency and Human Rights” and requested by the governments of Chile and Colombia, Advisory Opinion No. 32/25 (AO-32/25) is the most comprehensive statement ever issued by a supranational body on the obligation to respect and guarantee human rights in the context of climate change. Because of the wide range of obligations recognized in this advisory opinion, this analysis will focus on novel aspects.
Extraterritorial obligations, principles of prevention and precaution, and enhanced due diligence
AO-32/25 establishes the parameters of the home states’ extraterritorial obligations for companies involved in climate damage. Unlike other forms of environmental damage, climate damage is inherently transboundary. The opinion expands the scope of the prevention and precaution principles previously addressed in AO-23/17, “Environment and Human Rights”, to encompass actions that contribute to climate change. The opinion emphasizes the obligation to regulate, monitor, and prevent activities and investment projects that could significantly contribute to said phenomenon.
AO-32/25 applies an enhanced due diligence standard to climate change risks in general, and particularly regarding groups especially vulnerable to its effects. This implies the following: “[…] (iii) utilization of the best available science in the design and implementation of climate actions; (iv) integration of the human rights perspective into the formulation, implementation and monitoring of all policies and measures related to climate change to ensure that they do not create new vulnerabilities or exacerbate preexisting ones; (v) permanent and adequate monitoring of the effects and impacts of the adopted measures […] (viii) appropriate regulation and supervision of corporate due diligence, and (xi) enhanced international cooperation, particularly regarding technology transfer, financing, and capacity-building” (para. 236).
Right to a healthy climate and to science
In a novel move, the IACt-HR recognizes healthy climate and science as autonomous, justiciable rights under Article 26 of the American Convention on Human Rights (ACHR). The Court defines a healthy climate as “one that derives from a climate system free of dangerous anthropogenic interference with human beings and nature as a whole” (para. 300). According to the Court, compliance with this right implies maximizing the principle of intergenerational equity, which establishes that “States are required to actively contribute through the creation of environmental policies aimed at ensuring that current generations leave behind a stable environment that will allow future generations similar opportunities for development” (para. 308).
The IACt-HR states that “the right to science includes every person’s access to the benefits of scientific and technological progress, as well as opportunities for them to contribute to scientific activity, without discrimination” (para. 473). AO-32/25 takes a significant step forward by stating that scientific knowledge “coexists with other forms of knowledge, such as local, traditional, and indigenous knowledge” (para. 476) and by highlighting “the importance of fostering dialogue that explores the connections between the various knowledge systems and ensuring that this dialogue facilitates the integration of the best available science with local, traditional and indigenous knowledge, and encourages the joint production of climate knowledge between scientists and the custodians of such knowledge” (para. 480). While this recognition is a key jurisprudential step forward, it would have been more appropriate to avoid such a categorical distinction between “scientific” and “indigenous” knowledge. Much of this latter knowledge, such as traditional agriculture and medicine, comes from the worldview and cultural practices of an indigenous community as well as from processes of experimentation, validation, and empirical verification, which are characteristic of the scientific method.
Other substantive rights
In addition to the aforementioned rights, the IACt-HR addresses a series of state obligations concerning other substantive rights significantly impacted by climate change, including the rights to life, personal integrity, health, private property, housing, freedom of residence and movement, water, food, work, social security, culture, and education. One interesting aspect of the Court’s approach is the scope of these obligations in the formulation of the national climate change adaptation plan. This plan is developed within the framework of the UNFCCC and describes how a country should adapt to the impacts of climate change in the medium and long term. To guarantee these rights, AO-32/25 concludes that states must define and update their national adaptation goals and plans with the highest possible ambition (paras. 384 to 391).
Obligations arising from procedural rights
In addition to the procedural rights established in its jurisprudence on the right to a healthy environment, the IACt-HR includes specific obligations related to the climate emergency concerning the right to science; the recognition of local, traditional, and indigenous knowledge; access to information; political participation; access to justice, and the right to defend human rights. The opinion emphasizes that the latter right obligates the states to protect individuals defending the Earth and climate. It places special emphasis on the role of Indigenous peoples, Afro-descendant communities, and youth in responding to the climate emergency. Additionally, AO-32/25 contains an interesting section on the relationship between representative democracy and procedural rights in the context of climate emergency.
Legal inaccuracies and pending tasks
While I recognize that this is a watershed moment in international jurisprudence, some excerpts of AO-32/25 are ambiguously worded, making it impossible to establish a clear and enforceable legal rule. For example, consider the section titled “The Protection of Nature as a Subject of Rights”. Likewise, the section titled “The Jus Cogens Nature of the Obligation not to Cause Irreversible Damage to the Climate and the Environment” crosses a red line between the potential for jurisprudential development and a rigorous reasoning required for such an innovative position. In both sections, Judges Nancy Hernández, Pérez Goldberg, and Sierra Porto issued dissenting opinions, which were unavailable on the IACt-HR website at the time of the publication of this analysis.
A pending task in AO-32/25 is defining clearer criteria for the status of victims (victimhood) of climate damage and for attributing such damage to a state. These issues are often central to climate litigation at the domestic and international levels. The ECHR has already dismissed two cases due to the lack of evidence corroborating a climate damage specific to the alleged victim (Carême v. France) and to the lack of information enabling an assessment of the European Court’s extraterritorial jurisdiction in relation to the respondent states (Duarte Agostinho and Others v. Portugal and 32 Other States).
Analysis of these aspects of the advisory opinion and of the dissenting and concurring opinions on this matter will be published in the third and final part of this article in the coming weeks.
¹ Examples of declarations of principles and resolutions of the IACHR that are more specific than Resolution 3/21 include the Declaration of Principles on Freedom of Expression, of 2001; the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, of 2008; the Inter-American Principles on the Human Rights of All Migrants, Refugees, Stateless Persons, and Victims of Trafficking in Persons, of 2019; the Inter-American Principles on Academic Freedom and University Autonomy of 2021; and Resolution 2/24 on “human mobility induced by climate change”, of 2024.
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