International Courts must lead the way towards a fossil free future 

Litigation can make or break fossil fuel expansion. As governments fail to meet climate and human rights obligations and spend billions in taxpayer money supporting fossil fuel production, courtrooms are busier than ever settling climate disputes and issuing crucial advisory opinions clarifying States’ obligations. 

This April I attended the public hearings held by the Inter-American Court of Human Rights (IACtHR) in Barbados as OCI’s legal officer to present arguments on how fossil fuel funding worsens the climate emergency and endangers the protection of human rights. With Bank Climate Advocates and the Center for International Environmental Law, OCI argued that States must phase out fossil fuels production and use to avoid breaching the 1.5°C limit and take all necessary measures to prevent further foreseeable harm, including the irreversible harm that will follow if warming reaches or exceeds 1.5ºC. 

????On the final day of @IACourtHR #AdvisoryOpinion hearings, CIEL & partners are focused on States’ duty to uphold the #RightToRemedy & phase out #FossilFuels.
In this session, we are urging @CorteIDH to make history by naming the ? in the room…??

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— Center for International Environmental Law (@ciel_tweets) April 25, 2024

This intervention follows OCI’s Amicus Brief submission, a legal document provided to the Court with key evidence on the topic. The brief supports the request for an Advisory Opinion asking the IACtHR to assess the scope of States’ obligations to respond to the climate emergency under international human rights law and the American Convention 

The request builds on a previous Advisory Opinion, in which the IACtHR recognized the justiciable right to a healthy environment and the responsibility of States for environmental damage within and beyond their borders. It parallels advisory processes at the International Tribunal on the Law for the Seas (ITLOS) and the International Court of Justice (ICJ) in which both courts are tasked to assess obligations of States with respect to the climate emergency arising under the United Nations Framework and the fundamental principles of international environmental law. While ITLOS focuses primarily on determining measures to protect and preserve the marine environment, the ICJ addresses broader obligations under international law to protect the climate from anthropogenic greenhouse gas (GHG) emissions. 

Although these three courts have varied jurisdiction, their opinions will serve to clarify the interpretation of international law and further determine the application of international treaties concerning the climate, the environment, and the protection of human rights. Together, these courts have an opportunity to pave the way for climate action and lead the way towards a fossil free future.

The climate crisis endangers human rights, particularly in vulnerable regions

At the public hearings in Barbados, together with other civil society representatives we made one thing clear: rising global temperatures endanger human rights, with the fossil fuel industry being the main culprit, responsible for 91% of global carbon dioxide emissions.

At an already alarming 1.1ºC of global heating, Latin-America and the Caribbean are experiencing devastating climate impacts, with recurrent wildfires and floods disrupting livelihoods and threatening lives. What will come next if we let the global temperature increase further?

The science is crystal clear: staying below 1.5°C means no further investments — public or private — in fossil fuel production, a fast and fair phase out of existing fossil fuel production, and a fast and fair ramp up of energy efficiency and renewable energy solutions. Instead, governments continue to prop up the fossil fuel industry with public funds. That is what our intervention in Barbados focused on: government financial flows and policies favoring fossil fuels undermine our climate goals.

OCI’s research assessing energy finance of Multilateral Development Banks (MDB) and G20 international finance institutions indicates that between 2020 and 2022, MDBs and G20 countries provided $142 billion in international public finance for fossil fuels, almost 1.4 times their support for clean energy in the same period ($104 billion). Canada, the U.S., Japan and Korea lead the list of the top fossil fuel financiers, allocating on average $10.9 billion, $10 billion, $6.9 billion and $2.3 billion a year respectively in international public finance.

At the hearings, OCI and partners stressed that public finance flows are crucial to meeting or breaking climate commitments. Ending fossil fuel financing is critical for States to phase out fossil fuels and uphold international obligations, including human rights.

Scientific evidence informs the obligations of States and their due diligence duties to control GHG emissions 

Science plays a central role in the context of climate advisory proceedings at the International Courts. 

In the ITLOS opinion from May 21st, the Tribunal relied on the authoritative scientific work of the Intergovernmental Panel on Climate Change (IPCC) Reports to recognize that GHG emissions, from any source, constitutes marine pollution and that climate change is a threat to humanity, particularly for communities most vulnerable to its increasing impacts. Further, the Tribunal concluded that countries have a legal obligation to prevent, reduce, and control their GHG emissions, among which Carbon dioxide (CO2) from burning fossil fuels, in order to protect the ocean, and this is a due diligence duty.

At the Barbados hearings of the IACtHR, we recalled to the Court that the best available science confirms that fossil fuels drive the climate emergency and emphasized that States significantly contribute to GHG emissions with their fossil fuel projects and financing for these projects, at home and abroad. This activates the state’s duty to prevent transboundary environmental damage. 

International fossil fuel finance matters because wealthy and developed countries must stop investing their money in projects that lock the dependence of developing states in coal, gas and oil. With the Fossil Fuel Non Proliferation Treaty Initiative we made clear that if the Court seeks to address the question of human rights protection, fossil fuels need to be taken out of the equation. States cannot avert the climate emergency or effectively limit its impacts without rapidly reducing fossil fuel production and use. Hence, the need for a concrete, binding plan to end the expansion of fossil fuels and manage a global transition away from them.

The IACtHR has a historic opportunity to enhance State capacity in safeguarding human rights, especially regarding access to information, participation, and transparency in financing institutions. The Court should have the possibility to address whether the State conduct in relation to fossil fuel production must be governed by and assessed against the obligations of States under human rights law. As stressed by our co-panelist MOCICC, it is urgent to establish clear and binding standards, effective monitoring and responsibilities for States, especially in the fossil fuel phase-out.

Advisory Opinions can become building blocks for stronger regulations or strategic litigation, as courts work to clarify the climate-related obligations of States. In particular, this should implicate the continued government support fossil fuels receive in the form of subsidies, grants, tax exemptions, other forms of public finance, and flexible regulations. 

Courts defining clear State obligations related to the climate crisis can help strengthen the link between the energy transition and international environmental law. Court cases have profound impacts on global law and diplomacy, and opinions from IACtHR, ITLOS, and ICJ will shape this trajectory.

We are looking forward to impactful and comprehensive opinions from the International Courts that can support stronger legal frameworks and recognize the undeniable urgency of a fair fossil fuel phase-out.