Inter-American Court of Human Rights to Issue Advisory Opinion on the Climate Emergency
Companies doing business in the Americas should keep an eye out for this forthcoming advisory opinion as it is likely to clarify company legal obligations regarding climate change and could therefore impact operations.
The Inter-American Court of Human Rights (IACHR) will issue an advisory opinion in the coming months regarding the obligations of States in addressing the planetary threat of climate change within the framework of the American Convention on Human Rights and general international human rights law.
Styled as an advisory opinion on the “climate emergency,” this advisory opinion is likely to discuss legal obligations of private businesses in addressing climate challenges and the possible legal consequences on such businesses that cause significant environmental damage.
The 2017 Advisory Opinion and the Climate Emergency Resolution
The anticipated advisory opinion is likely to build on the 2017 advisory opinion issued by the IACHR on State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity (linked here) (The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity – interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights) (Advisory Opinion) 2017 Inter-Am Ct. H.R. (ser. A) No. OC-23/17 (Nov. 15, 2017).) There, the IACHR held that States must “ensure compliance and implementation of their environmental protection laws and regulations” (para 153), thereby making clear that States have a positive duty to monitor the activities of business enterprises within their jurisdiction in the context of environmental harm. The IACHR also observed that “business enterprises should respect and protect human rights, and prevent, mitigate and assume responsibility for the adverse human rights impacts of their activities” (para 155) citing to the UN Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (21 March 2011) UN Doc. A/HRC/17/31 at Principles 11 to 15, 17, 18, 22 and 25.
In 2021, the Inter-American Commission on Human Rights adopted a resolution entitled, “Climate Emergency: Scope of Inter-American Human Rights Obligations” (Resolution 3/2021) which also set forth a variety of human rights obligations under the Inter-American regional human rights framework in the context of climate change (linked here). The resolution affirmed that, “Companies must adopt plans to reduce GHG emissions from their products and services, as well as those from their subsidiaries and suppliers” and also “publicly report their emissions, their vulnerability to the climate and their risk of disused assets, while not hindering access to justice, particularly for human rights defenders in environmental matters” (para 44). Companies should “consider the measures they can implement to help limit global warming to 1.5°C” and “implement the most advanced technology available to minimize their carbon footprint” (para 45). Companies must also “comply with all existing environmental laws and make clear commitments in line with their responsibility to respect human rights through environmental protection, put in place human rights due diligence processes (including human rights impact assessments) to identify, prevent, mitigate, and account for how they address their environmental impact on human rights, and enable all to be redressed” (para 46).
Implications of the new Advisory Opinion
The forthcoming advisory opinion is likely to build on these conclusions and provide further guidance regarding business liability on issues of the environment and climate change. In addition to clarifying any affirmative duties on businesses to prevent environmental harm, the advisory opinion may also touch on the responsibility of companies to disclose environmental and climate risks associated with their operations. The advisory opinion could also have implications for the discharge of fiduciary obligations by a company’s board of directors or officers, for example, in discharging their duty of care. We therefore recommend closely following the outcome of the forthcoming advisory opinion.
