Abstract
Indigenous peoples are amongst the most affected by climate change. Its effects threaten the very survival of their cultural identity which revolves around a strong connection to their ancestral lands and natural resources. Indigenous peoples have thus played a prominent role in the recent development of international human rights-based climate litigation. Against this background, this paper examines their specific status and legal tools in this regard. It first recalls how they obtained the recognition of their special relationship with their natural environment as well as specific environmental rights under international law, both in specific instruments of protection of indigenous peoples’ rights and under general human rights law. After emphasizing their significant role in advancing environmental protection under international human rights law, the article then enquires whether the recognised environmental component of indigenous peoples’ fundamental rights might allow them to develop stronger substantive legal arguments in human rights-based climate litigation.
1 Introduction
The dangers of climate change and the urgent necessity to take drastic measures to prevent it are being increasingly recognized and emphasized today. In the face of political inaction, strategic litigation has been used to try and force States to adopt a stronger climate change mitigation policy. Recently, a new type of climate litigation has emerged, invoking international human rights as a legal basis to request the adoption of more advanced and coherent measures to protect individuals from the dangerous effects of climate change. In addition to domestic jurisdictions, a few of those cases have also been filed before international and regional human rights courts and bodies.1
This paper aims at offering insights into the potential prospects of such litigation, with a specific focus on indigenous peoples and their rights under international human rights law. Such an analysis is warranted because indigenous peoples are particularly vulnerable to climate change, which might explain why they have played an active role in bringing climate cases before international human rights courts and bodies. As will be further analysed later in this paper, the very first human rights-based climate case was indeed filed by the Inuit people before the Inter-American Commission on Human Rights (‘iachr’) in 2005, initiating the linking of climate change and human rights.2 In addition, two other climate cases brought by indigenous peoples are currently pending before international and regional human rights courts and bodies: a petition filed in 2013 by the Athabaskan people before the iachr3 and a petition filed by the Torres Strait Islanders before the UN Human Rights Committee (‘unhrc’).4 Furthermore, indigenous peoples have specific legal tools at their disposal concerning environmental protection which could prove particularly useful in climate litigation. This is the topic of this paper. While the environmental aspect of indigenous peoples’ rights has attracted some scholarly attention,5 a comprehensive study of its concrete implications in the context of climate litigation has not yet been performed. Hence, this contribution aims to provide valuable insights on the potential legal remedies available to indigenous peoples to request protection against climate change, a research field that is still at a nascent stage.6
Against this background, this paper critically analyses the rights and legal tools at the disposal of indigenous peoples in the judicial struggle against climate change at the international level. This analysis first recalls how the recognition of the special relationship of indigenous peoples with their environment has led to the development of specific rights under international law (2). The paper then reviews and critically appraises the international human rights case law on the land and cultural rights of indigenous peoples, with a specific focus on the environmental protection aspect of this case law (3). In light of the fact that the two pending climate cases involving indigenous peoples have been filed before the iachr and the unhrc which have also developed a significant practice on indigenous peoples’ rights, the analysis focuses on the case law developed in those two human rights protection systems. Finally, this contribution enquires into the prospects of using this environmental human rights framework in climate litigation (4).
2 Indigenous Peoples’ Rights and Environmental Protection under International Law
2.1 The Special Relationship of Indigenous Peoples with their Natural Environment as a Core Component of their Cultural Identity
The culture of the members of the indigenous communities directly relates to a specific way of being, seeing, and acting in the world, developed on the basis of their close relationship with their traditional territories and the resources therein, not only because they are their main means of subsistence, but also because they are part of their worldview, their religiosity, and therefore, of their cultural identity.8
After centuries of oppression and violation of their most fundamental rights, indigenous peoples have managed, through a long process of advocacy and judicial struggle, to obtain a formal recognition of their special relationship with their traditional lands and natural resources and a protection of their land and cultural rights under international law.9 Those rights were first recognized and safeguarded under specific instruments of protection of indigenous peoples’ rights. At the international level, the two main instruments are the ilo Convention 169 concerning indigenous and tribal peoples, adopted in 198910 (‘ilo Convention 169’) and the UN Declaration on the Rights of Indigenous Peoples (‘undrip’), adopted in 2007.11 At the regional level, the Organization of American States (‘oas’) also adopted the American Declaration on the Rights of Indigenous Peoples (‘adrip’) in 2016.12 Those instruments specifically protect the rights of indigenous peoples to own, use, develop and control their traditional lands, and the natural resources they contain.13 The specific legal framework protecting indigenous peoples’ rights also includes rights to maintain and develop their traditional ways of life and cultures.14 Land rights and cultural rights are closely intertwined in the context of indigenous peoples because of the crucial importance of their lands and natural environment for the preservation of their cultural identity.
Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.19
The special relationship of indigenous peoples with their natural environment has also led to the inclusion of provisions referring explicitly to environmental conservation and protection in the specific instruments protecting indigenous peoples’ rights.20 Article 29 of undrip for instance states in its first paragraph that: “[i]ndigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.” Likewise, Article 7 of ilo Convention 169 states in its paragraph 4 that “[g]overnments shall take measures, in co-operation with the peoples concerned, to protect and preserve the environment of the territories they inhabit.” Article xix of adrip also recognizes a right to a healthy environment for indigenous peoples, noting in its first paragraph that: “[i]ndigenous peoples have the right to live in harmony with nature and to a healthy, safe, and sustainable environment, essential conditions for the full enjoyment of the rights to life and to their spirituality, cosmovision, and collective well-being.” While its second paragraph further states that “[i]ndigenous peoples have the right to conserve, restore, and protect the environment and to manage their lands, territories and resources in a sustainable way”, its third paragraph establishes a right to be protected from “any harmful substance that could adversely affect indigenous communities, lands, territories and resources”. As noted by Heinämäki, indigenous peoples’ environmental rights thus include both a substantive right to be protected from environmental degradation and a procedural right to participate in environmental protection.21
The special relationship of indigenous peoples with their lands and natural resources has thus been recognized and protected under international law via three main categories of rights: land rights, cultural rights and environmental rights. All those rights are closely interconnected and have jointly developed to form a protection regime built around the core idea that the cultural identity of indigenous peoples revolves around their relationship to their lands and natural resources which should therefore be protected from environmental degradation. Environmental protection thus forms an integral part of the legal framework protecting indigenous peoples’ rights under international law, as a logical consequence of the need to protect their rights to land and natural resources to safeguard their cultural identity.
2.2 Indigenous Peoples’ Rights as More Appropriate Legal Tools than General Human Rights to Address Environmental Issues?
While environmental protection is a fundamental aspect of the international legal regime protecting indigenous peoples’ rights, general human rights do not include such a built-in environmental component. Indeed, international human rights law and international environmental law were created and have initially developed as two distinct and separated areas of international law.22 As originally conceived, human rights were thus not concerned with environmental protection which was the exclusive realm of international environmental law. However, regardless of the theoretical boundaries established by law, the physical reality remains that human beings are part of the complex and interrelated ecosystem that is the global environment. As such, human beings depend on a healthy and functioning environment to survive and thrive and environmental pollution and degradation can thus affect their fundamental rights in various ways.23 Cases of heavy pollution can for instance infringe on the right to life but also the right to health, the right to private and family life or the right to property. Therefore, despite it not being a prime concern for human rights initially, environmental considerations have still progressively permeated into human rights law. This has led to the progressive addition of an environmental component under international human rights law, through successive jurisprudential developments in the various international and human rights protection system. This process is generally referred to as the ‘greening of human rights’.24
In the absence of a stand-alone right to a healthy environment, most of the environmental case law not involving indigenous peoples has been based on the right to life and physical integrity on the one hand, and the right to home, private and family life on the other hand. This is evident for instance in the environmental case law of the ECtHR which has mostly developed around Articles 2 and 8 of the European Convention on Human Rights (‘echr’). This case law will not be analysed in detail here as it goes outside the scope of this paper.25 It should however be noted that the ECtHR has so far found violations of the echr due to environmental degradation only in cases involving life-threatening events under Article 2 of the echr,26 or environmental nuisances of a certain level of severity that directly affected an individual’s fundamental interests as protected by Article 8 of the echr.27 The scope of protection from environmental degradation afforded under general human rights in the absence of an autonomous right to a healthy environment thus appears to be rather narrow as a violation might be found only in cases of environmental harms that reach such a level of severity as to directly affect individuals’ physical well-being or the integrity of their home and direct surroundings. This is exacerbated by the individualistic nature of human rights, which entails in practice that members of the general population wishing to request protection from environmental harm through human rights-based litigation are required to establish not only the existence of the environmental degradation but also its specific, direct and serious impact on their individual human rights.28
By comparison, indigenous peoples’ rights would appear to constitute more adequate legal tools to address environmental issues. First, as mentioned above, indigenous peoples’ rights inherently involve an environmental protection component through its protection of indigenous peoples’ special relationship with their lands and natural resources. Second, unlike general human rights, indigenous peoples’ rights are of a collective nature. Third, the provisions protecting indigenous peoples’ cultural identity also impose to respect and take into account their distinct culture and worldviews in which the environment occupies a central position. The international legal framework protecting indigenous peoples is thus infused by the holistic vision of the environment that is typical of indigenous cultures. Considering those characteristics, it is argued that indigenous peoples’ rights might allow for a wider and more flexible approach in addressing environmental issues in litigation compared to general human rights.
3 Indigenous Peoples’ Land, Cultural and Environmental Rights under General Human Rights: a Critical Appraisal
3.1 The Recognition and Protection of Indigenous Peoples’ Land and Cultural Rights in the International Human Rights Case Law
Although indigenous peoples’ land and cultural rights have been protected under specific instruments of protection, they are intimately linked to general human rights on which they are based. They are not special rights granted to indigenous peoples but should rather be seen as constitutive of a complementing and clarifying legal framework established to effectively safeguard the basic human rights of which indigenous peoples have been consistently deprived. In the words of the prominent specialist James Anaya addressing the status of undrip: “the Declaration exists because indigenous peoples have been denied self-determination and related human rights. It does not create for them new substantive human rights that others do not enjoy. Rather, it recognizes for them rights that they should have enjoyed all along as part of the human family”.29
Against this background, the special protection of indigenous peoples’ land and cultural rights has also been transposed under general human rights law through evolutive interpretation. In cases involving indigenous peoples, human rights courts and bodies have indeed interpreted general human rights in accordance with the principles contained in the specific instruments protecting their rights, especially undrip. In this context, indigenous peoples’ land and cultural rights have been recognized in the international human rights case law via two main patterns: on the basis of property rights and physical survival on the one hand, and via the right to cultural identity on the other hand.
Following the first pattern, indigenous peoples’ rights to land and natural resources have been protected in the case law of the IACtHR on the basis of an extensive interpretation of the right to property and the right to life, respectively enshrined in Article 21 and 4 of the American Convention on Human Right (achr).30 First, the right to property has been interpreted by the IACtHR in accordance with the principles governing indigenous peoples’ land rights. In the case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the IACtHR indeed ruled in its judgment issued in 2001 that “article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property”.31 Based on this finding, the IACtHR has developed a comprehensive system of protection of the rights of indigenous peoples to their traditional lands and natural resources.32 This protection regime includes both a negative obligation of States to respect indigenous peoples’ land rights in a way that is consistent with their traditional cultures and customs, and a positive obligation to actively protect those rights, notably against interferences by third parties.33 Second, the rights of indigenous peoples to their traditional lands and natural resources have also been protected via the right to life broadly interpreted by the IACtHR as a right to a decent or dignified life.34 Based on the crucial importance of those rights for the subsistence and well-being of indigenous peoples, the IACtHR has indeed ruled in 2005 in the Yakye Axa case that the failure to recognize the Yakye Axa’s rights to their ancestral lands and natural resources constituted a violation of their right to a decent life, in addition to breaching the right to property according to its established case law under Article 21.35 Recalling that the right to life enshrined in Article 4 of the achr had to be interpreted in accordance with the economic, social and cultural rights contained in the Protocol of San Salvador,36 the IACtHR ruled that depriving the indigenous community of access to their lands and natural resources had a negative impact on their ability to enjoy their rights to health, food and water, which constitute necessary conditions for the fulfilment of the right to a decent life.37
Following a second related but distinct pattern, the unhrc has protected the rights of indigenous peoples to their traditional lands and natural resources via cultural rights, based on their special relationship with their natural environment and its importance for the preservation of their cultural identity.38 This has been done through an extensive interpretation of Article 27 of the International Covenant on Civil and Political Rights (‘iccpr’) protecting the rights of minorities.39 The first notable decision in this regard was issued in 1990 in the case of the Lubicon Lake Band v. Canada which concerned the legality of Canada’s decision to allow oil and gas exploration in the traditional lands of the Lubicon Lake Band.40 In this decision, the unhrc decided that “the rights protected by Article 27, include the right of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong.”41 Since those activities are in the case of indigenous peoples closely linked to their lands and natural resources, measures impacting those lands and resources can lead to a violation of indigenous peoples’ cultural rights protected by Article 27. In the Lubicon Lake Band case, the unhrc concluded that the way of life and culture of the community was threatened by Canada’s decision and found a violation of Article 27 on this basis.42 In 1994, the unhrc further developed its position in its general comment no. 23 on Article 27, in which it recalled that “culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples” and emphasized the necessity to ensure the effective participation of minority communities in the decisions affecting their interests.43
In what can be seen as a major legal victory, indigenous peoples have thus succeeded in convincing human rights courts and bodies to adopt an evolutive interpretation of the right to property, the right to life and the right to culture to protect their fundamental rights to land and culture. They have first gained the recognition of their collective ownership rights to their lands and natural resources in accordance with their customs and traditions. The protection of indigenous peoples’ land rights is particularly well-developed in the case law of the IACtHR.44 They have also obtained an acknowledgment of the central importance of maintaining and developing their cultural practices closely based on their traditional lands and natural resources for the survival of their culture. Overall, it can thus be argued that international and regional human rights courts and bodies have progressively adopted a more flexible and open approach in their case law allowing for the distinct culture and holistic worldview of indigenous peoples to be taken into account through the recognition of their land and cultural rights. As will be shown in the next section, there is an inherent environmental protection component to this case law, based on the crucial importance for indigenous peoples to maintain their connection with their lands and natural resources, which should therefore be protected from destructive environmental degradation.
3.2 The Environmental Protection Component of the Human Rights Case Law on Indigenous Peoples: Positive Achievements and Limitations
It follows from the above that environmental degradation and pollution constitute a significant threat for the land and cultural rights of indigenous peoples. Accordingly, environmental issues have been litigated by indigenous peoples in front of international and regional human rights courts and bodies, in the context of their judicial struggle for their land and cultural rights. Despite some notable legal victories, the protection that indigenous peoples were able to obtain from the negative impacts of environmental degradation on their rights in the established human rights case law is not without limitations, as will be shown in the analysis below.
An environmental protection component has first been developed indirectly in the practice of the unhrc on Article 27 of iccpr based on the fundamental importance of indigenous peoples’ lands and natural resources for the preservation of their cultural identity. This issue was central in the case of Länsman and others v. Finland.45 In their petition, the Saami claimed that the mining activities authorized by the Finnish State on their territory was severely impacting their ability to carry on their reindeer herding activities which are at the very core of their cultural identity. The unhrc first ruled in its decision issued in 1994 that, as an essential part of the Saami’s culture, the reindeer husbandry clearly fell within the scope of protection of Article 27.46 Furthermore, the unhrc established a dual standard to assess the legality of measures impacting on such traditional activities at the core of indigenous peoples’ culture. It ruled that restrictions on Article 27 in the form of measures impacting a community’s way of life and culture could be allowed only to the extent that they did not amount to a complete denial of the right of the community to enjoy its culture.47 The measures should not result in the impossibility for indigenous peoples to maintain their traditional lifestyle and culture. It also underlined the importance of ensuring the effective participation of the community in the decision-making process.48 This “combined test of consultation and sustainability”, as termed by Heinämäki,49 was reasserted in the later case of Poma Poma v. Peru in which the unhrc specified that “the measures must respect the principle of proportionality so as not to endanger the very survival of the community and its members”.50 The unhrc also stressed that the need to ensure effective participation of the community must take the form of free, prior and informed consent rather that mere consultation.51
Similarly, the IACtHR has also developed an environmental protection aspect in its jurisprudence on indigenous peoples. Among its extensive case law on indigenous peoples’ land rights, the decision issued in 2007 in the case of the Saramaka People v. Suriname is of particular interest in this regard.52 This case concerned the potential infringements of indigenous peoples’ land rights caused by mining and logging activities permitted on their traditional lands. In its decision, the IACtHR ruled that the protection of indigenous peoples’ rights to land necessarily extends to the “natural resources traditionally used and necessary for the very survival, development and continuation of such people’s way of life”.53 The IACtHR specified that the rights of indigenous peoples to their traditional lands and resources could only be restricted in so far as “it does not deny their survival as a tribal people”.54 To ensure the respect of this condition, the IACtHR has developed three safeguards that must be respected by States. First, the effective participation of indigenous peoples in the decision-making process should be guaranteed.55 The extent of this participation right depends on the scope of the intended project and its impact on indigenous lands. Indigenous peoples should in any case be consulted but, regarding large-scale projects susceptible of having a major impact on indigenous peoples’ lands, States should secure their free, prior and informed consent.56 Second, the State is under a duty to ensure a reasonable sharing of the benefits arising from the development project with indigenous peoples.57 Third, an environmental and social impact assessment should be conducted before authorizing a development project on indigenous lands.58 In a similar approach to the one developed by the unhrc, the IACtHR has thus established a protection of the integrity of indigenous peoples’ natural environment against degradations threatening their cultural survival, while also granting them procedural environmental rights.
the Court has emphasized the importance of the protection, conservation and improvement of the environment contained in Article 11 of the Additional Protocol to the American Convention in the area of Economic, Social and Cultural Rights “Protocol of San Salvador,” as an essential human right related to the right to a dignified life derived from Article 4 of the Convention in light of the existing international corpus iuris on the special protection required by members of indigenous communities60
Indigenous peoples have thus managed to obtain a well-established recognition of the importance to ensure a certain level of environmental protection for the fulfilment of their fundamental land and cultural rights in the case law of human rights courts and bodies.61 However, the actual protection that has been traditionally afforded to the integrity of their lands and natural resources in this context appears rather limited in scope. Indeed, according to the established case law of the IACtHR and the unhrc, the only substantive limit to the legality of the activities negatively impacting on indigenous peoples’ traditional lands and natural resources is that it should not amount to a complete denial of their culture.62 Besides this limited substantive protection, the only environmental rights granted to indigenous peoples are of a procedural nature, namely a right to effective participation in the decision-making process, a right to benefit sharing and the obligation of the State to conduct a prior environmental and social assessment. The established legal framework thus only includes procedural rights unless the environmental degradation is so severe that it constitutes a real threat to the very cultural survival of indigenous peoples. This protection is arguably very narrow and appears widely insufficient to fully safeguard the distinct lifestyle and culture of indigenous peoples according to the principles established in the specific instruments of protection of their rights.63
However, this traditional and rather limited environmental protection was recently widened and further developed by the IACtHR in a ground-breaking judgment issued on 6 February 2020 in the case of the Indigenous Communities of the Lhaka Honhat Asssociation (Our Land) v. Argentina.64 The environmental aspect of this case concerned the illegal logging and other activities, including livestock raising and the installation of fences, carried out in the territory of the Lhaka Honhat by third parties. The IACtHR analysed this issue in light of the rights to a healthy environment,65 to adequate food, to water and to cultural identity, derived from Article 26 of the achr which establishes the states’ obligation to act to progressively achieve the full realization of economic, social and cultural rights.66 Interpreting this provision, the Court specified that “notwithstanding the obligation to adopt measures to achieve “progressively” the “full realization” of the rights included in Article 26 of the Convention, the content of such rights includes aspects that are enforceable immediately.”67 After reviewing the content of the rights to a healthy environment, food, water and cultural identity under contemporary international law,68 the IACtHR then stressed how those rights are closely linked and interdependent in relation to indigenous peoples, thus justifying to consider them jointly in this case.69 In this context, the Court referred to the specific instruments of protection of indigenous peoples’ rights and to some of the relevant international human rights practice.70 The IACtHR further stressed that indigenous peoples are particularly vulnerable to environmental degradation which can have a strong negative impact on their rights to food, water and culture, thus warranting the protection of their natural environment through specific legal provisions.71 Finally, the Court concluded that Argentina had violated the Lhaka Honhat’s interrelated rights to a healthy environment, food, water and culture by taking insufficient actions to effectively prevent the harmful activities carried out by third parties on their traditional territories.72
This recent decision of the IACtHR in the Lhaka Honhat case is clearly a first step towards a better protection of indigenous peoples’ fundamental rights from the impacts of environmental harms and degradations. The IACtHR indeed departed from its traditional case law on land rights under which a violation was only found in cases where the cultural survival of the communities was at stake.73 Instead, the Court examined the environmental issues in this case under the interconnected rights of indigenous peoples to a healthy environment, food, water and culture based on Article 26 of the achr. This approach allows for a broader and more holistic examination of the various impacts of environmental degradations on the rights of indigenous peoples. Furthermore, the IACtHR found a violation of the fundamental rights of the Lhaka Honhat under Article 26 without establishing that the harmful impacts on the indigenous community’s environment had threatened the very survival of their cultural identity. Therefore, the threshold to find a violation under Article 26 as determined in the Lhaka Honhat case appears considerably lower than the one which has been consistently applied by the IACtHR in its case law on Article 21.74 The Lhaka Honhat judgment is thus clearly ground-breaking and it does send a positive signal for a more effective protection of indigenous peoples’ environmental rights under international human rights law. However, this decision is very recent and still isolated. Therefore, its concrete ability to initiate an evolution of the international human rights case law on the issue remains uncertain as it is unclear at this stage whether this novel approach will be adopted more globally.
3.3 The Recognition of Indigenous Peoples’ Rights: a Contributing Factor towards a Better Protection of the Environment under International Human Rights Law?
Based on the above, it can be argued that the recognition of indigenous peoples’ land and cultural rights by international human rights courts and bodies might have paved the way for a better inclusion of environmental protection concerns under international human rights law. By shedding light on the importance to adequately protect the environment for the full enjoyment of human rights on the one hand, and by progressively infusing their distinct cultural values centred around a holistic relationship with their natural environment, indigenous peoples might have planted the necessary seeds for the emergence of a more adequate protection of the environment in the international human rights case law.
It is still too early to confirm the practical validity of this hypothesis. However, the advisory opinion on human rights and the environment issued by the IACtHR in 2017 could arguably be seen as the first manifestation of this positive impact of indigenous peoples on human rights-based environmental protection.75 This advisory opinion was requested by Colombia out of concern for the significant environmental harm that could potentially be caused to the marine environment of the Wider Caribbean Region as a result of the development of new major infrastructure projects in the area, and its impacts on the rights of the local population. Against this background, the opinion addresses the impacts of environmental degradations on human rights, particularly the rights to life and personal integrity, and the obligations of States in this regard. It is groundbreaking in several respects.76 First, the IACtHR clearly underlined the crucial importance of environmental protection for the full realization of the rights protected under the iachr, in particular the right to life and the right to physical integrity.77 Based notably on its earlier environmental case law developed in relation to indigenous peoples, the IACtHR developed the content of States’ positive obligations in this regard, which include an obligation to prevent environmental harms that reach a certain level of gravity,78 an obligation to protect rights against potential violations that could result from those harms,79 an obligation of international cooperation to prevent transboundary harms,80 and an obligation to ensure the respect of the three main procedural rights of access to information, public participation and access to justice in environmental matters.81 Drawing on the principles previously established in its case law on indigenous peoples’ rights, the IACtHR thus recognized the existence of general environmental rights under the achr based on the necessity to protect the environment for the full enjoyment of fundamental rights. This advisory opinion is undeniably ground-breaking as it extends for the first time a protection system that was until then limited to the specific situation of indigenous peoples. It should nevertheless be noted that the IACtHR still specified in its opinion that indigenous peoples constituted a particularly vulnerable group in the face of environmental degradation and recalled its earlier findings in this regard.82
Second, the IACtHR also recognized for the first time the existence of an implicit autonomous right to a healthy environment under the achr. While a right to a healthy environment was already enshrined in Article 11 of the Protocol of San Salvador, this provision was however not directly invokable before the IACtHR.83 Plaintiffs therefore had to resort to other rights to litigate environmental issues before the IACtHR. In recognizing an implicit right to a healthy environment under the achr, the IACtHR thus alleviated this limitation, allowing for a direct reliance on this right in future litigation. What is particularly interesting to note in the context of the current reasoning is that the right to a healthy environment has been conceived in a broad and innovative manner by the IACtHR in its advisory opinion. Indeed, the Court first ruled that the right to a healthy environment encompasses both an individual and a collective aspect and must be perceived in its collective dimension as a “universal value that is owed to both present and future generations.”84 Furthermore, the IACtHR departed from the anthropocentric vision of environmental protection through human rights, according to which the environment should only be protected based on its value for human beings, with no regards for other species.85 The Court indeed considered that the right to a healthy environment “protects the components of the environment, such as forests, rivers and seas, as legal interests in themselves, even in the absence of the certainty or evidence of a risk to individuals.”86 The advisory opinion is mainly drawing on the principles established by the IACtHR in its earlier environmental case law regarding indigenous peoples and it might therefore be argued that this advanced and creative interpretation of the right to a healthy environment has at least partly been inspired by indigenous peoples and their rights.
Indigenous peoples have thus played a crucial role in advancing environmental protection concerns under international human rights law by using their fundamental land and cultural rights in human rights-based environmental litigation. This is also evident from the fact that, except for the 2017 Advisory Opinion, the environmental case law of the IACtHR has developed exclusively in relation to indigenous peoples. The same is also true in the African context in which all three human rights-based environmental cases have involved indigenous peoples.87 This overwhelming presence of indigenous peoples in the international human rights-based environmental case law might be a sign that human rights courts and bodies could be more inclined to a green interpretation of human rights in cases concerning indigenous peoples, even in systems containing a stand-alone right to environment such as the African and inter-American systems. This argument seems to be confirmed by the fact that the autonomous right to a healthy environment under the Inter-American human rights system has only been applied in a contentious context so far in the Lhaka Honhat case, which involved an indigenous community.88 The IACtHR also noted in this ruling the particular vulnerability of indigenous peoples to environmental degradation and their specific interest in the protection of the environment.89 Against this background, it could be asserted that indigenous peoples are in a unique position to litigate climate change-related issues using international human rights.
4 Indigenous Peoples in a Unique Position to Litigate Climate Change?
4.1 The Special Vulnerability of Indigenous Peoples to Climate Change
While climate change has the potential to affect virtually everyone on the planet, it has been established that indigenous peoples are more particularly vulnerable to its effects.90 Just as for other types of environmental degradation, this is notably due to their distinct lifestyle and culture built around a close connection to their natural environment, which makes them more sensitive to the environmental disturbances induced by climate change. By preventing them from maintaining their special relationship with their natural environment and the cultural practices built around it, climate change could eventually lead to the complete destruction of indigenous peoples’ cultural identities, which has even led some scholars to describe it as ‘cultural genocide’.91 The impacts of climate change on indigenous peoples’ rights are thus severe and far-reaching. This is particularly true for indigenous peoples living in the Arctic region and in the small Pacific islands as those regions are themselves particularly vulnerable to the effects of climate change.92 Furthermore, if adaptation measures might be effective in protecting the general population from the devastating effects of climate change on their lives, health and property, such might not be the case for indigenous peoples as their cultures could be irreparably damaged by climate change in a way that cannot be compensated by adaptation.93 Considering the fact that indigenous peoples have contributed the least to climate change, this raises some acute issues of justice and equity, as analysed in the legal scholarship on climate justice.94
4.2 The Inuit Petition: a First Attempt to Link Climate Change and Human Rights under International Law
Indigenous peoples are thus particularly concerned by the climate crisis, which is probably why the very first human rights-based climate case was brought by an indigenous community. In 2005, years before the development of human rights-based climate litigation as a general trend, the Inuit people indeed filed a petition before the iachr against the United States for its contribution to the violations of their human rights caused by climate change.95 In this petition, the Inuit recalled how the Arctic environment had been and will continue to be drastically affected by climate change. Emphasizing on the centrality of their connection to land and natural resources for their cultural survival, the Inuit then exposed how the environmental changes and degradations caused by climate change in the Arctic were impacting on every aspects of their lives, thus violating their human rights, including their rights to culture, lands, property, life, physical integrity and security. They invoked the responsibility of the US in this regard as the largest greenhouse gas (‘ghg’) emitting country and notably requested the adoption of ghg emissions reduction measures. The petition was dismissed by the iachr in a letter which simply stated that “the information provided does not enable us to determine whether the alleged facts would tend to characterize a violation of rights protected by the American Declaration.”96 While this decision is undeniably disappointing, the Inuit petition nonetheless succeeded in shedding light on the impacts of climate change on human rights and the specific vulnerability of indigenous peoples in this regard. It is in fact recognized that the Inuit petition greatly contributed to the linking of climate change and human rights under international law.97 Indigenous peoples have thus been at the forefront of human rights-based climate litigation, thereby confirming their central role in advancing environmental protection under international human rights law.
The inconclusive outcome of the Inuit petition despite the existence of potentially strong substantive legal arguments in favour of the plaintiffs is illustrative of the difficulties of litigating climate change-related issues under international human rights law.98 While this will not be further developed here because it goes outside the scope of this paper, it should be noted that the legal issues surrounding standing, causation and separation of powers in particular create significant hardship in human rights-based climate litigation.99 Indigenous peoples are clearly not immune to those difficulties, as demonstrated by the Inuit petition. It would be tempting to conclude from the decision of the iachr in the Inuit petition that the legal hurdles in international human rights-based climate litigation are so significant that indigenous peoples’ chances of actually succeeding are slim to none. However, several factors should lead to a more nuanced conclusion, at least concerning the substantive part of their argumentation. First, it must be recalled that the only justification provided by the iachr for dismissing the case was that the information supplied did not allow it to determine if the alleged facts violated the rights invoked in the claim.100 Arguably, this very concise dismissal of the Inuit petition by the iachr does not warrant any definitive conclusion as to its position on the matter. Second, it must be recalled that this decision was issued in 2005 at a time where the impacts of climate change on human rights, and indigenous peoples’ rights in particular, were not as widely acknowledged and documented as they are today.101 The iachr has for instance since then officially recognized the serious impact of climate change on human rights in a statement issued in 2015, in which it also noted that “climate change has a special impact on indigenous peoples, whose lands and natural resources come under direct threat.”102 Third, and perhaps most importantly in the context of the present analysis, the environmental case law of human rights courts and bodies has also considerably evolved since 2005, as has the recognition of indigenous peoples’ rights under international human rights law. Indeed, most of the positive decisions reviewed in this paper were issued after 2005. The most important developments include the Saramaka decision of 2007,103 the 2015 ruling in the case of the Kaliña and Lokono Peoples v. Suriname,104 the 2017 Advisory Opinion105 and the ground-breaking 2020 decision in the case of Lhaka Honhat v. Argentina106 of the IACtHR, as well as the 2006 decision of the unhrc in the case of Poma Poma v. Peru.107 The legal context has thus considerably evolved since the Inuit petition and it can be argued that those new legal developments provide indigenous peoples with more robust legal tools to support their case, at least the substantive part of their argumentation.108
4.3 Looking Ahead: the Athabaskan Petition before the iachr and the Torres Strait Islanders Petition before the unhrc
Against this background, it seems that indigenous peoples might now be in a stronger position to request protection from climate change through human rights-based litigation, building on the existing environmental case law of international and regional human rights courts and bodies. However, this still needs to be confirmed in practice as climate litigation raises important legal challenges, as shown by the unfortunate outcome of the Inuit petition. New elements of analysis might soon emerge in this regard as two human rights-based climate cases filed by indigenous peoples are currently pending before international human rights courts and bodies.
The first one is a petition filed in 2013 by the Athabaskan People before the iachr alleging a violation of their human rights by Canada because of its important emissions of black carbon in or near the Arctic region which contributes to a rapid warming and ice melting in the region.109 Very similar to the Inuit petition, the Athabaskan petition claims that this is violating several of their human rights, including their rights to culture and property, emphasizing the strong connection that they have and need to maintain with their natural environment to preserve their culture, way of life and identity as people. One of the main differences between the two cases is that, while the Inuit Petition concerned all ghg emissions from the US globally, the Athabaskan petition rather focuses on the specific regional emissions of black carbon by Canada. This narrower focus on local emissions, which have been proved to have a direct effect on climate change in the Arctic, might allow for an easier establishment of the causal link between Canada’s actions and omissions and the violations of the Athabaskan’s rights, although some argue that it is still insufficient.110
The second case which should be mentioned is the recent communication filed in 2019 before the unhrc against Australia by the Torres Strait Islanders, an indigenous people living in the small islands and coastal areas in Northern Australia. Unfortunately, not much information is currently available on this case since the petition has not been made public yet. In a press release, the lawyers representing the plaintiffs however specified that their argument is based on the rights to culture, life and private and family life.111 They allege that those rights are being violated by Australia which adopted an insufficient and inadequate climate mitigation policy and failed to properly fund adaptation strategies. It seems safe to assume that they will rely in this context on the legal practice of the unhrc on Article 27 of the iccpr exposed above. In terms of relief, the plaintiffs request the adoption of stricter ghg emissions reduction targets and the funding of emergency relief and long-term adaptation measures to protect the habitability of their ancestral territory.
It is still too early to properly assess the chances of success of those cases. However, from a theoretical point of view, it seems that the litigants in both cases can rely on the existing environmental case law of human rights courts and bodies to support their arguments. Indeed, according to the principles established by the IACtHR and the unhrc, States have an obligation to protect indigenous peoples from activities negatively impacting their lands and natural resources, particularly when such impacts might result in their inability to maintain their lifestyle and culture, thereby leading to a complete denial of their cultural identity. As developed above, climate change has the potential to have this drastic effect on indigenous peoples’ culture. This is especially true in the plaintiffs’ case since both the Athabaskan and the Torres Strait Islanders live in geographic areas that are particularly vulnerable to climate change. Imposing obligations on States to adopt climate change mitigation measures to protect them from the irreparable loss of their culture therefore seems to be in keeping with the principles established in the existing international human rights case law.
In addition, the serious and far-reaching threats posed by climate change to indigenous peoples’ rights might hopefully prompt human rights courts and bodies to further increase the scope of environmental protection afforded in their case law. Such a development seems necessary to adequately safeguard fundamental rights and promote climate justice as the global environmental protection framework is currently limited, although the IACtHR seems to have taken a first step in the right direction with its recent ruling in the Lhaka Honhat case.112 It is argued in this regard that indigenous peoples might be better placed than the general population to inspire such an evolution of the human rights case law precisely because of their greater connection to the environment, which has been a decisive factor in many environmental cases adjudicated by human rights courts and bodies so far.
5 Conclusion
It is clear from the above analysis that indigenous peoples have potentially strong substantive legal arguments based on the environmental case law of international human rights courts and bodies on which they can rely in human rights-based climate litigation. Since the potential of climate change to drastically affect their ability to maintain their distinct culture and way of life is widely acknowledged, indigenous peoples also have solid practical arguments pointing to the possibly devastating effects of climate change on their fundamental rights. Indigenous peoples might therefore appear to be in a unique position to litigate climate change using human rights law. The practical outcome of indigenous peoples’ rights-based climate litigation remains however uncertain as the specific characteristics of climate change as a global environmental phenomenon raises some unprecedented and complicated legal issues. In view of an adequate protection of the fundamental rights of indigenous peoples against the daunting threats posed by climate change, an adaptation of the current human rights legal framework might be warranted to provide better environmental protection and promote climate justice. It remains to be seen how international human rights courts and bodies will react in practice to these important legal challenges raised by indigenous peoples’ climate cases, in particular regarding the difficulties to establish standing and causation. These issues deserve to be further analysed specifically in relation to indigenous peoples as the specific content and characteristics of their rights on the one hand, notably their environmental aspect and collective nature as well as the obligation to respect their cultural distinctiveness, and the more severe and direct impact of climate change on their rights on the other hand, might contribute to ease those difficulties.
Acknowledgment
An earlier version of this paper was originally presented at the Human Rights Courts and Bodies at the Edge of the Climate Tipping Point Workshop co-organised by the Centre for Fundamental Rights at the Hertie School, the Grantham Research Institute on Climate Change and the Environment at the lse, the University of Stirling and the Center for Human Rights and Global Justice at nyu. I would like to sincerely thank the organizers and participants for the valuable comments that I received in this context.
I also wish to thank my supervisors, Pr. Dr. Stefaan Smis and Dr. Dorothée Cambou, for their time and constructive feedback.
This work was supported by the Research Foundation – Flanders (fwo - Research project G079120N)
Two cases filed in 2020 are for instance currently pending before the European Court of Human Rights (‘ECtHR’): Duarte Agostinho and Others v. Portugal and 32 Other States, <climatecasechart.com/climate-change-litigation/non-us-case/youth-for-climate-justice-v-austria-et-al> (accessed 17 May 2021); Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others, <climatecasechart.com/climate-change-litigation/non-us-case/union-of-swiss-senior-women-for-climate-protection-v-swiss-federal-parliament> (accessed 17 May 2021). A petition has also been filed in 2019 by a group of sixteen children before the UN Committee on the Rights of the Child (‘crc’). The case was declared inadmissible on 12 October 2021 for failure to exhaust domestic remedies. The petition and the decisions of the crc are all available at: Sacchi et al. v. Argentina et al., <climatecasechart.com/climate-change-litigation/non-us-case/sacchi-et-al-v-argentina-et-al> (accessed 21 October 2021).
The petition filed by the Inuit and the decision of the iachr (iachr, Letter to Paul Crowley, Legal Representative of the Inuit Plaintiffs (16 November 2016)) are both available at: <climatecasechart.com/climate-change-litigation/non-us-case/petition-to-the-inter-american-commission-on-human-rights-seeking-relief-from-violations-resulting-from-global-warming-caused-by-acts-and-omissions-of-the-united-states> (accessed 16 May 2021).
Petition available at: <climatecasechart.com/climate-change-litigation/non-us-case/petition-inter-american-commission-human-rights-seeking-relief-violations-rights-arctic-athabaskan-peoples-resulting-rapid-arctic-warming-melting-caused-emissions> (accessed 17 May 2021).
The petition has not been made public yet. For a press release introducing the case, see <climatecasechart.com/climate-change-litigation/non-us-case/petition-of-torres-strait-islanders-to-the-united-nations-human-rights-committee-alleging-violations-stemming-from-australias-inaction-on-climate-change> (accessed 17 May 2021).
Cherie Metcalf, ‘Indigenous Rights and the Environment: Evolving International Law’, 35:1 Ottawa Law Review (2003–2004) pp. 101–140; Laura Westra, Environmental Justice and the Rights of Indigenous Peoples. International & Domestic Legal Perspectives (Earthscan, London, 2008); Leena Heinämäki, ‘Protecting the Rights of Indigenous Peoples – Promoting the Sustainability of the Global Environment?’, 11 International Community Law Review (2009) pp. 3–68, doi 10.1163/187197309X401406; Leena Heinämäki, ‘The Right to Be a Part of Nature: Greening Human Rights via Strengthening Indigenous Peoples’, 4 Yearbook of Polar Law (2012) pp. 415–474, doi 10.1163/22116427-91000099; Alessandro Fodella, ‘Indigenous Peoples, the Environment, and International Jurisprudence’ in Nerina Boschiero, Tullio Scovazzi, Cesare Pitea and Chiara Ragni (eds.), International Courts and the Development of International Law. Essays in Honour of Tullio Treves (Asser Press, The Hague, 2013) pp. 349–364; Adriana Giunta, ‘Looking Back to Move Forward: The Status of Environmental Rights under the UN Declaration on the Rights of Indigenous Peoples’, 23 The International Journal of Human Rights (2019) pp. 149–173, doi 10.1080/13642987.2019.1572874.
E.g., Rebecca Tsosie, ‘Indigenous People and Environmental Justice: The Impact of Climate Change’, 78 University of Colorado Law Review (2007) pp. 1625–1677; Jay Williams, ‘The Impact of Climate Change on Indigenous Peoples – The Implications for the Cultural, Economic and Legal Rights of Indigenous Peoples’, 16:4 The International Journal of Human Rights (2012) pp. 648–688, doi 10.1080/13642987.2011.632135; Randall S. Abate and Elizabeth Ann Kronk (eds), Climate Change and Indigenous Peoples: the Search for Legal Remedies (Edward Elgar Publishing, Cheltenham - Northampton, 2013); D. Kapua`ala Sproat, ‘An Indigenous People’s Right to Environmental Self-Determination: Native Hawaiians and the Struggle against Climate Change Devastation’, 35:2 Stanford Environmental Law Journal (2016) pp. 157–220.
Special Rapporteur José R. Martinez Cobo, Study of the Problem of Discrimination against Indigenous Populations, vol. V (UN Doc e/cn.4/sub.2/1986/7/add.4, 1986), para. 379.
Case of the Yakye Axa Indigenous Community v. Paraguay, 17 June 2005, IACtHR, Series C No. 125, para. 135.
For a thorough study on indigenous peoples’ rights under international law, see S. James Anaya, Indigenous Peoples in International Law, 2nd ed. (Oxford University Press, New-York, 2004).
ilo Convention 169 concerning Indigenous and Tribal Peoples, 27 June 1989,1650 unts 383.
unga, United Nations Declaration on the Rights of Indigenous Peoples (Res 61/295, UN Doc a/res/61/295, 13 September 2007).
Organization of American States, American Declaration on the Right of Indigenous Peoples (ag/res.2888 (xlvi-o/16), 15 June 2016).
undrip, supra note 11, art. 10, 25–28 but also art. 29, 30, 32; ilo Convention 169, supra note 10, art. 13–19; adrip, ibid., art. xxv but also xviii-2, xix and xxix-4.
undrip, supra note 11, art. 8, 11–15 and 31; ilo Convention 169, supra note 10, art. 5; adrip, supra note 12, art. ii, x, xiii-xvi and xxviii.
Metcalf, supra note 5, p. 107; Heinämäki (2009), supra note 5, pp. 14–15.
E.g., unga, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (UN Doc a/73/188, 19 July 2018), para. 23; unhrc, Report of the Special Rapporteur on the issue of human rights obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (UN Doc a/hrc/37/59, 24 January 2018), Annex Framework Principles on Human Rights and the Environment, framework principles 14–15; 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) in Relation to Articles 1(1) and 2 of the American Convention on Human Rights), 15 November 2017, IACtHR, Advisory Opinion 0C-23/17, Series A No 23 (hereafter ‘2017 Advisory Opinion’), para. 67.
On tek, see Metcalf, supra note 5; Heinämäki, supra note 5; Deborah McGregor, ‘Coming Full Circle. Indigenous Knowledge, Environment, and our Future’, 28:3–4 American Indian Quarterly (2004) pp. 385–410, doi 10.1353/aiq.2004.0101.
E.g., unga, Report of the United Nations Conference on Environment and Development (UN Doc a/conf.151/26 (Vol. i), Annex 1 Rio Declaration on the Environment and Development’ (14 June 1992), p. 3; Convention on Biological Diversity, 5 June 1992, 1760 unts 79 (‘cbd’), art. 8 (j); Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, 29 October 2010, 3009 unts.
Rio Declaration, ibid., p. 4.
undrip, supra note 11, art. 29 and 32; ilo Convention 169, supra note 10, art. 4 and 7; adrip, supra note 12, art. xix.
Leena Heinämäki, ‘Environmental Rights Protecting the Way of Life of Arctic Indigenous Peoples: ilo Convention No. 169 and the UN Draft Declaration on Indigenous Peoples’ in T. Koivurova, T. Joona and R. Shnoro (eds.), Arctic Governance, (Juridica Lapponica 29, Rovaniemi, 2004) p. 233.
Donald K. Anton and Dinah L. Shelton (eds.), Environmental Protection and Human Rights (Cambridge University Press, New-York, 2011) p. 118.
Supra note 16.
unga, supra note 16, para. 12–13; John H. Knox and Ramin Pejan, ‘Introduction’, in John H. Knox and Ramin Pejan (Eds.), The Human Right to a Healthy Environment (Cambridge University Press, New-York, 2018) p. 2.
For an overview of the case law of the ECtHR on articles 2 and 8, see ECtHR, Environment and the European Convention on Human Rights (Factsheet, April 2021), <www.echr.coe.int/documents/fs_environment_eng.pdf> (accessed 17 May 2021); Council of Europe, Manual on Human Rights and the Environment, 2nd ed. (Council of Europe Publishing, Strasbourg, 2012).
See notably Öneryildiz v. Turkey, 30 November 2004, ECtHR, application no. 48939/99; Budayeva and others v. Russia, 20 March 2008, ECtHR, applications no. 5339/02, 21166/02, 20058/02, 11673/02 and 15343/02.
See notably Lopez Ostra v. Spain, 9 December 1994, ECtHR, application no. 16798/90; Fadeyeva v. Russia, 9 June 2005, ECtHR, application no. 55723/00; Tatar v. Romania, 6 July 2009, ECtHR, application no. 67021/01.
The individual nature of human rights has been identified in legal scholarship as a serious obstacle in litigating environmental issues: Francesco Francioni, ‘International Human Rights in an Environmental Horizon’, 21 European Journal of International Law (2010) pp. 43–44, doi 10.1093/ejil/chq019; Sumudu Atapattu and Andrea Schapper, Human Rights and the Environment. Key Issues (Routledge, London, 2019) p. 80.
James Anaya, ‘The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era.’, in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, Copenhagen, 2009) pp. 193–194.
American Convention on Human Rights, 22 November 1969, 1144 unts 123.
Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 31 August 2001, IACtHR, Series C no 79, para. 148.
For an overview of this case law, see Inter-American Commission on Human Rights (iachr), Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources. Norms and Jurisprudence of the Inter-American Human Rights System (Ref oea/Ser.l/v/ii. Doc 56/09, 30 December 2009) p. 21.
Mayagna (Sumo) Awas Tingni case, supra note 31; Maya Indigenous Communities of the Toledo District (Belize), 12 October 2004, iachr, Report no. 40/04, case 12.053; Yakye Axa case, supra note 8; Case of the Saramaka People v. Suriname, 28 November 2007, IACtHR, Series C no 185.
2017 Advisory Opinion, supra note 16, para. 109; Case of the “Street Children “ (Villagran-Morales et al.) v. Guatemala, 19 November 1999, IACtHR, Series C no 63, para. 144.
Yakye Axa case, supra note 8.
Organization of American States (oas), Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, 17 November 1988, oas Treaty Series No 69 (1988) (hereafter ‘Protocol of San Salvador’).
Yakye Axa case, supra note 8, para. 163, 167, 168.
This approach based on cultural rights has also been followed in the decisions of the African Commission on Human and People’s Rights (‘achpr’) and the African Court on Human and People’s Rights (‘ACtHPR’) which will however not be further analysed in this paper. See Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 4 February 2010, achpr, communication no. 276/2003, para. 243; African Commission on Human and Peoples’ Rights v. Republic of Kenya, 26 May 2017, ACtHPR, application no. 006/2012, para. 130.
International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171, art. 27.
B. Ominayak and the Lubicon Lake Band v. Canada, 26 March 1990, unhrc, communication 167/1984 (UN Doc ccpr/c/38/d/167/1984).
Ibid., para. 32.2.
Ibid., para. 33.
unhrc, General Comment No. 23 (art. 27) (UN Doc ccpr/c/21/Rev.1/Add.5, 6 April 1994), para. 7.
iachr, supra note 32.
I. Länsman et al. v. Finland, 26 October 1994, unhrc, Communication 511/1992 (UN Doc ccpr/c/52/d/511/1992).
Ibid., para. 9.2.
Ibid., para. 9.4.
Ibid., para. 9.5.
Heinämäki, supra note 21, p. 442.
Angela Poma Poma v. Peru, 27 March 2009, unhrc, Communication No. 1457/2006 (UN Doc ccpr/c/95/d/1457/2006), para. 7.6.
Ibid.
Saramaka case, supra note 33.
Ibid., para. 122.
Ibid., para. 128.
Ibid., para. 133.
Ibid., para. 133–134.
Ibid., para. 129, 138–140.
Ibid., para. 129.
Case of the Kaliña and Lokono Peoples v. Suriname, 25 November 2015, IACtHR, Series C no. 309, para. 201 et seq.
Ibid., para. 172 (footnotes omitted).
Such a recognition has also been established in the case law of the achpr and the ACtHPR which will however not be examined in details in this paper. See supra note 38. See also Social and Economic Rights Action Center(serac) and Center for Economic and Social Rights(cesr) v. Nigeria, 27 May 2002, achpr, communication no. 155/96.
Länsman case, supra note 45; Poma Poma case, supra note 50; Saramaka case, supra note 33.
Case of the Indigenous Communities of the Lhaka Honhat Asssociation (Our Land) v. Argentina, 6 February 2020, IACtHR, Series C no. 400.
The existence of an autonomous right to a healthy environment under the Inter-American human rights system was recognized for the first time by the IACtHR in its 2017 Advisory Opinion on the Environment and Human Rights: 2017 Advisory Opinion, supra note 16. This is further analysed below in section 3.3.
achr, supra note 30.
Lhaka Honhat case, supra note 64, para. 272.
Ibid., para. 202–242.
Ibid., para. 243–254.
Ibid.
Ibid., para. 209 and 275.
Ibid., para. 287–289.
Saramaka case, supra note 33; Kaliña and Lokono case, supra note 59.
Ibid.
2017 Advisory Opinion, supra note 16.
A substantial part of the 2017 Advisory Opinion concerns the extra-territorial aspects of States’ human rights obligations regarding environmental protection. This will however not be analysed here as it goes outside the scope of this paper. For an analysis of this aspect of the 2017 Advisory Opinion, see e.g., Monica Feria-Tinta, ‘The Rise of Environmental Law in International Dispute Resolution: Inter-American Court of Human Rights Issues Landmark Advisory Opinion on Environment and Human Rights’, EJIL:Talk! (26 February 2018), <www.ejiltalk.org/the-rise-of-environmental-law-in-international-dispute-resolution-inter-american-court-of-human-rights-issues-landmark-advisory-opinion-on-environment-and-human-rights> (accessed 20 May 2021); Antal Berkes, ‘A New Extraterritorial Jurisdictional Link Recognised by the IACtHR’, EJIL:Talk! (28 March 2018), <www.ejiltalk.org/a-new-extraterritorial-jurisdictional-link-recognised-by-the-iacthr> (accessed 20 May 2021).
2017 Advisory Opinion, supra note 16, para. 47, 66 and 69.
Ibid., para. 127–174.
Ibid., para. 180.
Ibid., para. 185.
Ibid., para. 211–212.
Ibid., para. 67–69. See also para. 113, 138, 152, 156, 164, 166 and 169.
Protocol of San Salvador, supra note 36, art. 11 and 19.
2017 Advisory Opinion, supra note 16, para. 59.
On the potential problems linked to this restrictive approach, see e.g., Anton and Shelton, supra note 22, pp. 118–134; Atapattu and Schapper, supra note 28, pp. 63–80.
2017 Advisory Opinion, supra note 16, para. 62.
Supra note 61.
Lhaka Honhat case, supra note 64.
Ibid., para. 209 and 275.
ohchr, Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights (UN Doc a/hrc/10/61, 15 January 2009), pp. 17–18; unga, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (UN Doc a/74/161, 15 July 2019), pp. 14–15.
Williams, supra note 6, p. 649.
ohchr, supra note 90, p. 17, para. 51; Tsosie, supra note 6, pp. 1628, 1635–1643.
Tsosie, ibid., p. 1675.
See e.g., Tsosie, ibid.; Sproat, supra note 6. For a general discussion of climate justice issues, see also David Schlosberg and Lisette B. Collins, ‘From Environmental to Climate Justice: Climate Change and the Discourse of Environmental Justice’, 5:3 wire s Climate Change (2014) pp. 359–374, doi 10.1002/wcc.275; Doreen Stabinsky, ‘Climate Justice and Human Rights’ in Sébastien Duyck, Sébastien Jodoin and Alyssa Johl (eds.), Routledge Handbook of Human Rights and Climate Governance (Routledge, London, 2018) pp. 280–291; Tahseen Jafry, Routledge Handbook of Climate Justice (Routledge, London, 2019).
Inuit petition, supra note 2. For a detailed analysis of the Inuit case, see Hari M. Osofsky, ‘The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change and Indigenous Peoples’ Rights’, 31:2 American Indian Law Review (2009) pp. 675–697, doi 10.2307/20070803.
iachr, Letter to Paul Crowley, supra note 2.
Derek Bell, ‘Climate Change and Human Rights’, 4:3 WIREs Climate Change (2013) pp. 159–170, doi 10.1002/wcc.218; Spyridon Aktypis, Emmanuel Decaux and Bronwen Leroy, ‘Systemic Integration between Climate Change and Human Rights at the United Nations’ in Ottavio Quirico and Mouloud Boumghar (eds.), Climate Change and Human Rights. An International and Comparative Law Perspective (Routledge, London, 2017) p. 222.
Sumudu Atapattu, Human Rights Approaches to Climate Change. Challenges and Opportunities (Routledge, London, 2016) pp. 274–281; Jacqueline Peel and Hari Osofsky, ‘A Rights Turn in Climate Change Litigation’, 7 Transnational Environmental Law (2018) pp. 45–48, doi 10.1017/S2047102517000292.
Jacqueline Peel, ‘Issues in Climate Change Litigation’ 5 Carbon and Climate Law Review (2011) p. 15, doi 10.21552/CCLR/2011/1/162; UN Environment, The Status of Climate Change Litigation. A Global Overview (unon Publishing Services Section, Nairobi, 2017) pp. 27–30; Peel and Osofsky, ibid.
iachr, Letter to Paul Crowley, supra note 2.
See e.g., ohchr, supra note 90; unhrc, General Comment no. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life (UN Doc. ccpr/c/gc/36, 30 October 2018) para. 62; unga, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (UN Doc a/74/161, 15 July 2019); International Human Rights Instruments, Joint Statement on Human Rights and Climate Change (UN Doc hri/2019/1, 14 May 2020).
iachr, iachr Expresses Concern Regarding Effects of Climate Change on Human Rights (2 December 2015) <www.oas.org/en/iachr/media_center/preleases/2015/140.asp> (accessed 3 May 2021).
Saramaka case, supra note 33.
Kaliña and Lokono case, supra note 59.
2017 Advisory Opinion, supra note 16. On the potential impact of this Advisory Opinion for climate litigation specifically, see Agnieszka Szpak, ‘Arctic Athabaskan Council’s Petition to the Inter-American Commission on Human Rights and Climate Change—Business as Usual or a Breakthrough?’, 162 Climatic Change (2020) pp. 1587–1588, doi 10.1007/s10584-020-02826-y.
Lhaka Honhat case, supra note 64.
Poma Poma case, supra note 50.
The more technical and procedural issues relating to standing, causation and separation of powers might still be difficult to overcome but this goes beyond the scope of this paper.
Athabaskan petition, supra note 3. For a detailed analysis of the case, see Don McCrimmon, ‘The Athabaskan Petition to the Inter-American Human Rights Commission: Using Human Rights to Respond to Climate Change’ The Polar Journal online version (2016) pp. 1–19, doi 10.1080/2154896X.2016.1241484; Szpak, supra note 105.
On the specific issue of causation in the Inuit and Athabaskan cases, see McCrimmon, ibid., pp. 14–16.
Torres Strait Islanders v. Australia Press Release, supra note 4.
Lhaka Honhat case, supra note 64.