States urge Inter-American Court to address climate compensation during landmark hearing

The Inter-American Court of Human Rights has been asked to clearly address the issue of compensation in order to avoid issuing a “rich person’s” charter on climate change.

During the start of a landmark hearing yesterday at the University of the West Indies, near Barbados’ capital of Bridgetown, a panel of six judges heard from vulnerable nations seeking legal and financial accountability for the climate crisis.

The hearing opened with statements from Chile and Columbia, who requested an advisory opinion on climate change and human rights in 2023. 

They asked the court to set out what legal responsibilities states have to tackle climate change and to stop it breaching people’s human rights, seeking particular clarity on children’s and women’s rights, environmental defenders, common but differentiated responsibilities – the idea that all countries have a role to play in tackling climate change but some should bear a bigger burden – and loss and damage.

The court subsequently heard from Barbados, which was represented by Robert Volterra, a partner at UK firm Volterra Fietta and visiting professor of international law at University College London. He made the case that, under international law, “states which contributed to climate change must compensate those that did not but that are nonetheless harmed by climate change and do not have physical or financial space to ameliorate them”. 

"It would be a rich person's climate change advisory opinion"

Volterra told the court that failing to identify the financial obligations of developed states when it issued its advisory opinion would “sidestep accountability”. 

“It would effectively be meaningless for the people of the resource-deprived, developing and smaller states of the Americas, particularly small island states. It would be relevant only to people living in the large and wealthy states of the Americas. It would be a rich person's climate change advisory opinion.”

As a small island nation, Barbados is particularly vulnerable to climate change and is still reeling from tropical storms in 2021 that caused millions of dollars of damage - unusual historically because of its position at the eastern edge of the Caribbean. Sugarcane is also proving more difficult grow, and its fishing and tourism industries are under threat.

Its prime minister Mia Mottley has been working to build a global coalition committed to overhauling the financial system to support vulnerable nations under the banner of the ‘Bridgetown Agenda’. However, Mottley herself did not speak at the hearing, and the agenda's key author, economist Avinash Persaud, has previously said it is "unhelpful" to conflate loss and damage with reparations.

Volterra stressed that Barbados was not asking the court to create new law or to engage in redistributive justice. “Barbados is asking the court to identify international law as it exists today and indeed as it has existed for centuries.”

These comments were echoed by Vanuatu’s climate change minister Ralph Regenvanu, who said loss of damage resulting from climate change represented a massive violation of human rights. “This court could make an invaluable contribution to climate justice by fleshing out the duty to make reparations for loss and damage and related human rights violations.”

A progressive court

This will be the first of three such advisory opinions issued by international courts; the others are before the International Court of Justice and the International Tribunal for the Law of the Sea (ITLOS).

ITLOS will be the first to deliver its opinion in May. During a hearing last year, the heads of small island states most vulnerable to climate change urged it to speak of “legally binding obligations”. 

But the Inter-American Court of Human Rights is considered the most progressive. Its advisory opinion will not be directly legally binding, but in practice it does have that effect in some states.

The court will have to grapple with difficult questions about how it balances the rights and needs of the different nations under its jurisdiction. Although countries in Latin America and the Caribbean are not the biggest historical greenhouse gas emitters, the region does have wide variation in vulnerability and wealth. And it is unclear what its opinion will mean in practice for countries outside the Americas, where the biggest polluters are based.

Wealthy countries have fought hard to avoid the issue of reparations. When the Paris Agreement was finally thrashed out in 2015, it recognised the importance of “averting, minimizing and addressing loss and damage” through the Warsaw International Mechanism but clearly stated that this “does not involve or provide a basis for any liability or compensation”. 

And while demand for finance to pay for the aftermath of climate impacts is rocketing, progress on getting a new UN loss and damage fund up and running has been painfully slow.

Also representing Barbados, lawyer Gunjan Sharma from Volterra Fietta said pointedly that international climate change treaties did not displace states’ other obligations under international law. 

Volterra argued that the court's recognition of compensation obligations would be "immediate and tangible" benefits. It would mean that agencies of the Organization of American States, including the Inter American Development Bank, would need to incorporate compensation in their projects and funding, and it would support developing states in their climate negotiations with developed states (a topic I previously wrote about).

He added that it would influence other international courts and tribunals that are currently also considering these issues. During the hearing, the court was asked to coordinate with its peers to ensure their advisory opinions did not clash.

"No voice is silent and ... no opinion lacks legitimacy"

The Barbados hearing is the first of three; the other two will be held in the Brazilian cities of Brasília and Manaus in May.

The court has deliberately held hearings in the Caribbean and Brazil so that it could hear from those most affected and at risk from climate change, and clearly sees itself as having an important role to play.

Speaking at a seminar the day before the Barbados hearing, the court's president Nancy Hernández López said the advisory opinion would have a “profound” impact and would ensure “through its wide participation that no voice is silent and that no opinion lacks legitimacy".”

Another judge, Ricardo C Pérez Manrique, said the next few years would be "totally transformative" for countries in the Americas, so the problem had to be addressed before the consequences are irreversible.

Catalina Fernández Carter, a lecturer in public international law and head of the department of the universal human rights system at Chile’s Ministry of Foreign Affairs, acknowledged that the court faced a “daunting task” in producing this document but said the process had already had a “galvanizing” influence for civil society. 

“Faced with an international system that is sometimes flawed and has shortcomings due to the lack of enforcement mechanisms, this advisory opinion will be essential for domestic jurisdictions,” she said.