by Juan Auz
As reported by Savaresi, Setzer and Ohdedar on this blog, rights-based climate litigation is flourishing in the Global South. Latin America is no exception to this trend, where groups and individuals have incorporated climate concerns in a longstanding tradition of strategic litigation to counter environmental harms threatening or violating the enjoyment of their human rights. I analyse this phenomenon from a socio-legal standpoint in an article published in a new special issue of the Journal of Human Rights and the Environment. This blog post summarises my findings, namely how the constitutional opportunities for and constraints upon adjudicating climate-related cases manifest through human rights law. The article concludes by stressing that this type of climate litigation has increased and has led to several favourable verdicts. However, caution is warranted as some political economy elements might hinder the development of such litigation, its inclusivity and long-term effectiveness.
Climate Litigation Sprouts in the Latin American Landscape
At the time of writing, I identified 27 human rights-based cases in Latin America, 11 of which have yielded a verdict and 16 of which are still pending. Of those 11 verdicts, nine lean towards protecting the rights invoked, and two were dismissed. Despite these numbers, the literature has neglected a regional analysis of how these cases form, including an examination of the factors that facilitate them and obstacles that could be of potential deterrence. To address some of these gaps in the literature, I map the legal topography of human rights-based climate litigation in the region by focusing on three constitutional opportunities in Latin America: the prevalence of constitutional environmental rights, openness to international law, and the widespread use of constitutional ‘amparos’. Further, I problematize the future development of climate litigation by briefly discussing how extractivism, hyperpresidentialism, and elitism pose structural constraints thereto.
A green cadastral: constitutional environmental rights in Latin America
All 27 human rights-based climate cases filed in Latin American countries have argued that climate change threatens environmental rights. Most, however, do not cite climate change as a primary concern but as an additional argument for ecological protection. They have relied on the constitutional right to a healthy environment and procedural and substantive rights connected to environmental degradation. Such a tactic is unsurprising given that 20 Latin American constitutions recognise such rights. Their usage has enhanced environmental protection and paved the way for more complex disputes. For instance, the Instituto de Estudos Amazônicos’s lawsuit against Brazil expands the constitutional right to an ecologically balanced environment to seek the recognition of a right to a stable climate.
Porous soils: the percolation of international law into domestic judgments
Most Latin American States are monist – international law is equivalent to domestic law and directly enforceable. Indeed, in most human rights-based climate cases, litigants invoke states’ obligations arising from treaties and jurisprudence of the Inter-American Court of Human Rights. The latter is significant because it has developed human rights standards in environmental contexts, especially in Advisory Opinion 23/17 and its Lhaka Honhat judgement. The Inter-American Court has clarified that the right to a healthy environment is a self-standing and autonomous justiciable right. These novel jurisprudential tools have influenced legal strategies before domestic courts, for example, in Brazil and Mexico. They are likely to continue to do so in the context of climate litigation.
The ecological Amparo
Amparo proceedings or remedies are used in all Latin American constitutions. Depending on the jurisdiction, the Amparo might take a different form. However, it is essentially a writ to protect rights in an expedited manner, which usually can be filed against public or private actors at any time and without legal representation. In Colombia, the Amparo is called Tutela, and apex courts have used its flexible nature to expand standing to accommodate minors as plaintiffs. For instance, 25 young people brought the Future Generations v. Colombia Tutela. In a landmark judgement, the Supreme Court of Colombia recognised the link between deforestation, climate change, and human rights and ordered the government to protect the Amazon. Not long after this, similar climate-related amparos started to emerge in other Latin American countries, including Peru, Argentina and Mexico.
Extractivism and Hyperpresidentialism as barriers to Climate Litigation
The advent of climate litigation in Latin America is occurring on the heels of a collapse in raw materials prices. However, several Latin American states do not enjoy appropriate conditions to adopt environmentally friendly economic reforms due to the obligations arising from agreements with the extractive sector. The result is that extractivism becomes the only way to fund states’ public spending. Combined with the ‘hyper-presidential’ design of many Latin American constitutions, this creates the perfect enabler for executive interference in the judiciary, whether explicit or implicit.
This context influences climate-related decisions because judges must balance environmental protection against other societal interests, whose fulfilment may depend on extractivism. Still, resources from extractivism are usually not sufficient to fund effective public institutions, which is, in turn, a primary obstacle to implementing rulings. For example, the Amazon has continued to disappear, four years after the Future Generations ruling in Colombia.
The role of actor capacity in framing climate lawsuits
It is arguably the case that the organisations most likely to bring climate lawsuits before courts tend to be highly professionalised and uphold a rather technocratic ethos, traits that are atypical in the region. As opposed to these organisations, the approach adopted by most social movements and grassroots organisations in the region is more akin to popular environmentalism, partly explaining the lack of climate lawsuits in Latin America. This asymmetry reveals that since climate change is not yet a topic that traditional and smaller human rights organisations are willing or able to litigate, high-calibre, well-funded and expert-based organisations are leading the way on strategic litigation as a matter of climate protection. An additional point of concern is that, despite the geographical diversity of climate cases in Latin America, only one case in Ecuador has been filed by members of indigenous communities to protect their territories, even though Indigenous peoples will be severely affected by climate impacts.
Climate litigation in Latin America is a nascent phenomenon that is already showing some promising developments – despite the need for critical awareness of the more problematic political and economic factors delineated here. Given the commonalities of Latin American constitutions, litigants in the region can build on each other’s successes. At the time of writing, most cases remain pending, which makes it difficult to predict their outcome. However, given the enormous importance of Latin American ecosystems to protecting the rights of thousands of communities, climate change is likely to continue to feature in litigation, just as one of many other urgent human rights concerns in the region.