When Courts Must Lead

Something is clearly failing in the climate political system, which results in a level of compliance with collective obligations—freely undertaken by States under multilateral agreements such as the United Nations Framework Convention on Climate Change or the Paris Agreement—that is slow and often frustrating. There is an absence of political responsibility and accountability, and this stems from the lack of mechanisms that ensure that States comply with the "duty to respect and to ensure in the context of the climate emergency."

It is in this context that the Advisory Opinion OC-32/25 issued by the Inter-American Court of Human Rights (ICHR) on May 29, 2025, becomes pertinent, timely, and relevant. While it is not applicable to cases outside the Inter-American jurisdiction, it sets a precedent for what the role of the courts could be in ensuring State compliance with climate obligations. Furthermore, it may be signaling the path that we hope the International Court of Justice will take in the coming weeks, in response to the process initiated by Vanuatu on the obligations of States regarding climate change, aimed at strengthening legal frameworks for climate action.

In the case of the ICHR, the process was initiated by Chile and Colombia with the objective of analyzing how the general obligations of States—respect, guarantee, and normative adequacy—with respect to human rights, might be affected in the context of the climate emergency. The conclusions contained in the advisory opinion are significantly valuable.

Let us then go to the essential. The recognition of the climate emergency is the starting point. The ICHR does so based on three explicitly stated criteria: “the climate emergency is characterized by the conjunction and interrelation of three factors: the urgency of effective actions, the severity of impacts, and the complexity of the responses required.” Each of these factors is developed in detail. Regarding the severity of impacts, the Court notes that for Latin America and the Caribbean, this is heightened due to the high exposure of States to climate change-related phenomena and the vulnerability exacerbated by the high levels of inequality in the region.

Having said that, it is worth emphasizing that the ICHR develops and details the obligations of States in relation to this climate emergency, stating that “in order to fulfill the obligation to respect human rights in the context of the climate emergency, States must refrain from any conduct that causes setbacks, delays, or halts the outcome of necessary measures to protect human rights from the impacts of climate change,” adding that this will only be possible if access to truthful and required information is not obstructed.

This is a central element in times of climate denialism and in the face of measures—such as those mentioned at the beginning—that are oriented toward regressing on previously assumed obligations, thereby exposing vulnerable populations, ecosystems, and activities to greater risk.

The ICHR continues by developing the duty of ensure, which obliges States to organize their structures to ensure the free exercise of human rights in the context of the climate emergency. It further clarifies that this duty particularly entails the implementation of actions based on prevention and precaution—an obligation currently challenged by political decisions aimed at diminishing the power of agencies responsible for climate action in several countries.

Such political actions in various regions of the world contradict what the ICHR describes as a fundamental aspect of the duty of ensure: the exercise of "heightened due diligence," proportional to the level of risk inherent to the climate emergency.

Finally, the ICHR emphasizes the obligation of States to adopt domestic legal decisions in two key forms: the repeal of regulations that adversely affect human rights, and the enactment of the necessary laws to ensure those rights. It does so within a context that represents a significant step forward in court decisions concerning the right to a healthy environment.

Let us recall that between 2021 and 2022, the United Nations Human Rights Council, and subsequently the General Assembly, recognized the right to a healthy environment as a human right. The ICHR has gone one step further by recognizing the right to a healthy climate. While intrinsically linked to the right to a healthy environment, the right to a healthy climate involves distinctive elements—different from those posed by pollution or biodiversity loss. It protects human development in a climate free from anthropogenic interference.

Many other considerations are contained in the ICHR’s advisory opinion, but those highlighted here are perhaps the most notable given the political context in which they emerge. The potential loss of political support for the climate process, reflected in questionable political decisions, opens the space for three trenches of defense:

1. The maturity of an economy that must demonstrate that climate goals are unstoppable and irreversible;
2. The increasing and more robust scientific evidence; and
3. The role of international, regional, or domestic Courts.

In this regard, the ICHR’s advisory opinion represents a step in the right direction.Principio del formulario