This is the third installment of the joint ICONnect/IberICOnnect symposium on the IACtHR Advisory Opinions on the climate emergency and the right to care. For the introduction, see here.
Laura Clérico, Professor of Constitutional Law at the Faculty of Law of the University of Buenos Aires, and Honorary Professor of Human Rights and Comparative Constitutional Law at the Faculty of Architecture and Urbanism, University of Erlangen-Nuremberg. Principal Researcher at the National Scientific and Technical Research Council (CONICET), Argentina.
Sofía Reca Milanta, Doctor of Law from Pompeu Fabra University (Barcelona, Spain). Professor of Constitutional Law at Pompeu Fabra University (Barcelona). Master of Laws in Constitutional Law from the Menéndez Pelayo International University and the Center for Political and Constitutional Studies (Madrid, Spain). Master of Laws in Administrative Law from Austral University (Buenos Aires, Argentina). Lawyer from the National University of La Plata (Argentina). Fellow at the Doctrine Service of the Constitutional Court of Spain (Madrid). Currently a postdoctoral researcher at the University of Münster (Germany).
On July 3, 2025, the Inter-American Court of Human Rights (IACtHR) issued Advisory Opinion 32/2025 (AO 32/25) on climate emergency and human rights. This outcome stems from a process that reflects the highest level of participation in the IACtHR’s history, both in terms of scale and the significance of the locations where the public hearings were held: regions directly impacted by the climate emergency. This opinion has been eagerly anticipated for months, accompanied by a sense of “eco-hope.”
Days after its publication, the AO was celebrated by human rights, environmental, and climate activism and doctrine as a “historic milestone,” “historic opinion,” “monumental,” “blueprint for rights-based climate action,” the “clearest pronouncement to date from an international court on the urgency of transformative changes to address the existential threat,” and a “contribution from the global south to climate governance,” among many other considerations.
The climate emergency poses a significant, structural, and immediate threat to human rights, as well as to the fundamental livelihoods of people, nature, and various species on our planet. Therefore, it is encouraging to see that the IACtHR is concentrating on the development of state obligations and actions, emphasizing the urgency and seriousness of the various measures States must continue or initiate.
In this work, we explore, in two parts, how the IACtHR addresses the three questions at issue in the AO on State obligations in the face of the climate emergency. To do so, we reconstruct in Part 1 the structure, content, and orientation of the AO. Then, in Part 2, we focus on a differentiated approach based on inequality and climate vulnerability to sustain and make visible the specific obligations that arise from the right to a healthy climate and from substantive and procedural rights.
Structure and content
The AO is organized into two sections. The first section features the IACtHR’s reconstruction of the diagnosis of the climate emergency, informed by the best available scientific evidence, the international response to climate change, developments in norms across the States of the Americas, and the overall landscape of the climate emergency within the framework of Inter-American law. The second section concentrates on interpreting the inter-American provisions to address the inquiries presented by Chile and Colombia. The IACtHR reformulated these inquiries into questions regarding the scope of a) general obligations to respect and guarantee; b) specific obligations that pertain to substantive rights; c) obligations arising from procedural rights; and d) existing differential obligations concerning individuals or groups or population in a situation of vulnerability in the context of a climate emergency.
The framework: general obligations
Among the general state human rights obligations to address the climate emergency, we will focus on a novel one: the human right to a healthy climate.
Addressing the climate emergency cannot wait. “It requires urgent and effective mitigation and adaptation actions and progress towards sustainable development, all articulated with a human rights perspective” (paras. 183-205).
Not one step back. Respect implies the prohibition of arbitrary regression (paras. 219-223).
With enhanced care. Guaranteeing includes the obligation to act with enhanced due diligence to counteract the human causes of climate change and protect people from climate impacts (paras. 219-223).
Jus cogens norm.The prohibition of anthropogenic conduct that can irreversibly affect the interdependence and vital balance of the common ecosystem that makes the life of species possible. By virtue of the principle of effectiveness, the prohibition of such conduct is imperative (paras. 287-294).
Nature and its components have rights. States must protect them against the impacts of climate change. But not only to enable the exercise of human rights (anthropocentric approach), but also for their own value (ecocentric approach) (paras. 287-294).
The principle of environmental and climate democracy. The strengthening of the Democratic Rule of Law, as an essential framework to protect human rights against climate change, the effectiveness of public action, open and inclusive citizen participation, and access to information and science constitute state obligations (paras. 460-527).
Moreover, the IACtHR also stressed that States’ responsibility is common but differentiated according to their contributions to the climate emergency, their response capacity, and their particularities. Cooperation and multilateralism are not optional and are keys to success.
Multidimensional approach of the AO
From an articulated reading of the document, the multidimensional approach that the Court uses to give content to the referred obligations emerges. Explicitly, the Court establishes that the interpretation is carried out “under the guidance” of (paras. 205-265):
a) the principles of international human rights protection (pro persona principle, the best interests of the child, the principle of progressivity, and the prohibition of discrimination);
b) “fundamental” principles and obligations in the context of the climate emergency (such as the pro natura, precautionary, prevention, and polluter pays principles, intra- and intergenerational equity, “enhanced” due diligence, the progressive development of ESCR, common but differentiated responsibilities, the obligation to cooperate, and the prohibition of transboundary harm); and
c) “the relevance of the best available science” in “constant dialogue with different knowledges: scientific, traditional, local, and indigenous” (paras. 471-487) and of key concepts such as “climate resilience”(para. 216).
In any case, this approach is not only crucial for the Court’s work but also for the future, when the parties do a finer job of interpretive articulation to apply or allege it in the context of concrete cases at the domestic and inter-American levels.
Climate inequality and vulnerability. Differentiated obligations to guarantee real equality. From the margins to the center.
The multidimensional approach is reflected in various sections of AO 32/2025, grounded in the premise that the climate emergency exacerbates inequality. References to this inequality perspective are pervasive throughout the document, serving multiple functions. Notably, we wish to emphasize two key aspects:
a) that various territorial and sectoral inequalities influence the diagnosis of the climate emergency; and
b) that populations already experiencing structural and intersectional inequality are more vulnerable to the risks and damage associated with the climate emergency. Therefore, they must be considered in the “determination of differentiated state obligations” and in the attribution of state responsibility.
a) Inequality in the diagnosis of the climate emergency
The States that produced it and the States that suffer from it. The diagnosis warns of a major polluter not only in the region (USA) but also on a planetary level, followed, but from a great distance, by two other polluters in the region (Mexico and Brazil). However, those who contributed the least to the climate emergency are more vulnerable to its negative effects and lack the resources to address it (para. 57).
Between the companies that produced it and those of a smaller scale. The sectoral distribution of accumulated atmospheric emissions indicates that they mainly come from the energy and industry sectors and originated in only 90 companies, which accounted for 71% of CO2 emissions between 1988 and 2017 (para. 54).
Between members of the population. In Latin America and the Caribbean – considered one of the “most unequal regions in the world” –the 10% of the population with the highest incomes would emit 20 times more CO2 than the poorest 10% (para. 54).
In a concluding paragraph, the Court maintains that “inequality must be considered a key factor in understanding the climate crisis. This factor is closely related to the causes of climate change analyzed by this Court” (para. 63).
b) Vulnerability and climate inequality. On the aggravation of inequality and its devastating effects
The diverse effects of the climate emergency affect all people and species inhabiting the planet, as well as future generations. However, it has a devastating impact on populations already in situations of inequality, making them more vulnerable to the climate emergency.
Therefore, the IACtHR establishes that “climate vulnerability” requires a multidimensional, variable, and open approach. This approach goes beyond reductionist ones that focus exclusively on the economic perspective. Thus, it implies considering multiple factors, such as “access to rights, the quality of environmental governance, and community resilience” (paras. 62 & 621), as well as the lack of access to essential services for a dignified life. In addition, it must be interpreted by considering the variations according to the circumstances of each state and its populations (para. 595). Finally, the approach must remain open and be porous to understanding new vulnerabilities.
Thus, the Court warns that not all groups especially affected by climate change correspond to “traditionally protected categories within Inter-American jurisprudence,” (para. 628), such as: (i) people in a situation of multidimensional poverty, (ii) children and adolescents, (iii) older adults, (iv) people with disabilities, (v) women and LGBTTIQ+ people, (vi) indigenous, tribal, Afro-descendant peoples, and peasant and fishing communities, (vii) people who suffer differentiated effects in the context of climate disasters, (viii) defenders of the environment and a healthy climate, (ix) people in mobility induced by the climate emergency. In addition, in light of the climate emergency, the IACtHR interpreted that the recognition of “new” forms of vulnerability (such as young people in a situation of unemployment) is essential to guarantee the effectiveness of human rights in the context of the climate emergency and to ensure a just and inclusive transition, under the prism of resilience.
To this end, States must adopt measures to address how the climate emergency aggravates inequality and has a differentiated impact on people in situations of vulnerability for “dynamic or contextual” reasons. For example, there is a duty to identify the risks and needs, the conditions of high exposure or disadvantage of populations already in a situation of structural inequality, and the new ones that the climate emergency may generate. This obligation entails adopting specific, reasonable, and differentiated measures to prevent and reduce climate risks, mitigate their effects, and facilitate sustainable adaptation. These actions must be incorporated transversally with the specific obligations derived from the right to a healthy climate (See Part 2).
Conclusions
Both the Inter-American Court and the Inter-American Commission are recognized for their progressive interpretations of the anti-discrimination principle and material equality. This approach has led them to include in their toolbox: the strict scrutiny proportionality test, the anti-stereotype approach, the prohibition of indirect and covert discrimination, context analysis, and the examination of structural and intersectional inequality, among others. The content of this toolbox indicates the Inter-American System’s openness to considering the region’s characteristics, as Latin America is the most unequal region in the world.
This inclusive perspective fosters a victim-centered approach to take their voices seriously. It also emphasizes participation in hearings, promotes the IACtHR’s physical presence in communities and territories, and supports in situ supervision of judgments. The goal is to create standards that align with the realities and material conditions people face, which often impede their effective enjoyment of rights.
In the context of AO 32/2025, this multidimensional approach to equality and vulnerability is particularly relevant, as the climate emergency worsens existing inequalities. In short, the inclusion of differentiated measures in all state actions is fundamental for the fulfillment and development of obligations in general, specifically, and of those enhanced obligations that must be incorporated transversally derived from the right to a healthy climate, as we will analyze in the Second Part of this entry. The IACHR Court is categorical: the incorporation of this approach and the adoption of a differentiated course of action is not discretionary, but rather an indispensable requirement to ensure the effective enjoyment of rights in the context of the climate emergency.
Suggested citation: Laura Clérico and Sofía Reca Milanta, Advisory Opinion 32 of 2025 on climate emergency and human rights. Climate inequality and vulnerability: from the margins to the center I, Int’l J. Const. L. Blog, Nov. 20, 2025, at: https://www.iconnectblog.com/symposium-on-the-inter-american-court-advisory-opinions-regarding-the-climate-emergency-and-the-right-to-care-part-3-advisory-opinion-32-of-2025-on-climate-emergency-and-human-rights-climate-inequalit/