{"id":27377,"date":"2025-10-13T07:00:41","date_gmt":"2025-10-13T12:00:41","guid":{"rendered":"https:\/\/blogs.law.columbia.edu\/climatechange\/?p=27377"},"modified":"2025-10-10T10:47:39","modified_gmt":"2025-10-10T15:47:39","slug":"the-inter-american-court-of-human-rights-and-climate-justice-the-case-for-a-race-conscious-jurisprudence-on-climate-reparations","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2025\/10\/13\/the-inter-american-court-of-human-rights-and-climate-justice-the-case-for-a-race-conscious-jurisprudence-on-climate-reparations\/","title":{"rendered":"The Inter-American Court of Human Rights and Climate Justice: The Case for a Race-Conscious Jurisprudence on Climate Reparations"},"content":{"rendered":"
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On January 9, 2023, Chile and Colombia <\/span>requested an advisory opinion<\/span><\/a> from the <\/span>Inter-American Court of Human Rights<\/span><\/a> (IACtHR) regarding the human rights obligations of States in the context of climate change. In response to the Court\u2019s request for<\/span> amici curiae<\/span><\/i> briefs, <\/span>three academic researchers and I, on behalf of McGill University\u2019s Faculty of Law and Montreal University\u2019s Faculty of Law<\/span><\/a>, filed <\/span>a<\/span> written contribution to the Court<\/span><\/a> in October 2023 and attended a public hearing, in May\u00a0 2024, in Brazil <\/span>to present our main findings with the Court<\/span><\/a>. Our brief and presentation focused on addressing aspects of <\/span>climate change\u2019s impacts and implications on Indigenous and Black communities in the Americas<\/span><\/a>, with one evident impact being the environmental degradation these communities face as a result, for example, of <\/span>extractive activities in their territories<\/span><\/a>. In particular, <\/span>we asked the Court to recognize<\/span><\/a> that \u201c<\/span>climate justice must be understood as racial and ethnic justice<\/span><\/a>,\u201d which is the point I want to stress in this blog post\u2019s reflection. Concretely, I argue that, similar to the incorporation of the <\/span>Critical Race Theory<\/span><\/a>\u2019s notion of intersectionality in its jurisprudence or <\/span>corpus juris<\/span><\/i><\/a>, the IACtHR needs to embrace the notion of race-consciousness to develop a historized and contextualized jurisprudence that is essential for unpacking the intertwining between structural racism and climate change. Thus, through its mechanisms of advisory opinion and binding judgements, the IACtHR can set standards to envision comprehensive reparation mechanisms that encapsulates an <\/span>Interamerican public order<\/span><\/a> from which the States can draw inspiration to proactively develop and implement policies to protect those most vulnerable to climate change, such as Indigenous and Black communities in the Americas.\u00a0\u00a0\u00a0\u00a0<\/span><\/p>\n

Participation in a Public Hearing on Climate Change and Human Rights before the Inter-American Court\u00a0<\/b><\/h2>\n

On May 28, 2024, my three colleagues and I attended a public hearing in Manaus, Brazil, to present and discuss our <\/span>amicus<\/span><\/i> brief with the IACtHR. To illustrate the importance of recognizing climate change as a racial and ethnic justice issue, we presented examples of <\/span>two communities affected by climate change in the Americas during the public hearing before the Court<\/span><\/a>. The first community was <\/span>a Black community in the town of Pangui, municipality of Nuqui, Province of Choc\u00f3, Colombia<\/span><\/a>. The rising sea levels of the Pacific Ocean are eroding the lands of this community. Its inhabitants built improvised barricades with logs to protect themselves but, several years ago, ocean waves overcame the barricades. Despite community protests and demands for help, State authorities have done little, and the community remains at the mercy of the ocean.<\/span><\/p>\n

The second example is the island of <\/span>Cart\u00ed Sugdupu in the Republic of Panama<\/span><\/a>. The <\/span>Indigenous community<\/span><\/a> of <\/span>Guna Yala<\/span><\/a>, which inhabits this island, began to be evacuated on June 1, 2024, thus becoming <\/span>the first island in Latin America to be officially displaced<\/span> due to the climate emergency<\/span><\/a>. We presented to the IACtHR that what these communities are experiencing aligns with the findings of the 2023 Intergovernmental Panel on Climate Change (IPCC) <\/span>report<\/span><\/a>, which describes and acknowledges the vulnerability of communities in Central and South America, and Indigenous communities globally to the impacts of climate change.<\/span><\/p>\n

We also drew the IACtHR\u2019s attention to the 2021 U.N. Working Group of Experts on People of African Descent\u2019s <\/span>report<\/span><\/a>, which stated that \u201cPeople of African descent continue to be subjected to environmental racism and are disproportionately affected by the climate crisis.\u201d Notably, the U.N. Working Group <\/span>concluded<\/span><\/a> that: \u201c[a]s a consequence of historical and structural racism, exploitative economic models and the legacy of the trade in enslaved Africans, people of African descent have lived segregated, and decisions have been taken that have disproportionately exposed them to environmental hazards.\u201d\u00a0<\/span>We also highlighted the 2022 report on the \u201c<\/span>Ecological crisis, climate justice and racial justice<\/span><\/a>” by E. Tendayi Achiume, the U.N. Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance. We emphasized how the Rapporteur frames the global ecological crisis as a racial justice crisis. <\/span>Our goal in providing this information was to encourage the IACtHR to conceptualize climate justice as racial and ethnic justice within its <\/span>corpus juris<\/span><\/i>. However, as I will discuss below, the IACtHR did not embark on an explicit analysis of the impacts of climate change on Indigenous and Black communities as a racial justice issue.<\/span><\/p>\n

The Inter-American Court and Race-Consciousness\u00a0<\/b><\/h2>\n

The IACtHR, like <\/span>many other tribunals in the Western world<\/span><\/a>, relies on an understanding of law as <\/span>objective, neutral, and coherent<\/span><\/a>.\u00a0 <\/span>Legal realism and Critical Legal Studies<\/span><\/a> (CLS) have c<\/span>riticized law\u2019s claim of autonomy<\/span><\/a>,<\/span> as it denies or obscures the social and power inequalities embedded in the law. However, despite those valid criticisms, <\/span>the power of law\u2019s \u201cepistemic norms remained<\/span><\/a>.\u201d\u00a0<\/span><\/p>\n

CLS <\/span>did not focus on how racism shapes law<\/span><\/a> and our understanding of it, or how law contributes to legitimizing racism. To fill that gap, Black legal scholars and others in the late 80s began to develop <\/span>the Critical Race Theory (CRT) field<\/span><\/a> to scrutinize law through the lens of race and racism.\u00a0<\/span>The main objective of CRT is <\/span>to inquire into<\/span><\/a> and <\/span>unpack<\/span><\/a> why <\/span>anti-discrimination laws have <\/span><\/a>failed to effectively<\/span> dismantle systemic racism<\/span><\/a>. CRT was born in the United States, but it is now considered a <\/span>global framework<\/span><\/a> to analyze <\/span>racism, intersectionality, and the law<\/span><\/a>. In fact, the Inter-American System has adopted a key notion of CRT: intersectionality. As the IACtHR <\/span>recognized in a 2020 judgment against Brazil<\/span><\/a>:<\/span><\/p>\n

The first person to address the concept of intersectionality was Kimberle Crenshaw when indicating that \u201cBlack women encounter combined race and sex discrimination.\u201d Thus, compared to a white woman or an Afro-descendant man, their situation may be similar or different, but involves greater vulnerability.\u00a0<\/span><\/p><\/blockquote>\n

The IACtHR also emphasized how <\/span>valuable the concept of intersectionality is<\/span><\/a> for its legal analyses by stating that \u201c[t]he concept of intersectionality as a hermeneutic element allows the Court to determine persons or groups who suffer discrimination and analyze the causes of this situation.\u201d <\/span>The IACtHR\u2019s recognition that multiple factors can intersect to exacerbate situations of vulnerability is of utmost importance. Nevertheless, a closer examination of its jurisprudence<\/span> reveals that the IACtHR has primarily applied the concept of intersectionality<\/span> to address issues of class (poverty), geographic marginalization, and gender or sex disadvantages.<\/span><\/p>\n

With respect to the issue of racial discrimination and\/or racism, in the context of the case of <\/span>Dos Santos Nascimento and Ferreira Gomes v. Brazil<\/span><\/a> (para. 97), the IACtHR indicated that it has issued an important number of decision that touch on this crucial topic, including, case of the Afro-descendant Communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia (2013); case of expelled Dominicans and Haitians v. Dominican Republic (2014); case of the Employees of the Fireworks Factory of Santo Ant\u00f4nio de Jesus and their families v. Brazil (2020); case of Acosta Mart\u00ednez et al. v. Argentina (2020); case of Leite de Souza et al. v. Brazil (2024); and the case of Dos Santos Nascimento and Ferreira Gomes v. Brazil (2024). It is worth noting that the IACtHR does not seem to consider its <\/span>rulings on collective territorial rights in favour of Indigenous and Black or Tribal communities<\/span><\/a> to address issues of race or racism, which shows that the IACtHR does not always examine the challenges of territorial rights that Indigenous and Black communities face within the larger context of historical and structural racism in which they take place. Still, I consider that even if it is not the IACtHR\u2019s intention, those rulings on collective territories advance racial justice because they seek to preserve these communities\u2019 ownership or possession of their ancestral or traditional lands, to protect their culture and life plans, and to prevent the takeover of those territories by States or private interests with the potential consequence of displacement of these communities. Due to the limited space available for this blog post, I cannot discuss all those decisions. However, I will briefly discuss one case that I consider exemplifying some of the challenges the IACtHR faces in addressing the nuances and complexities of race and racism in its <\/span>corpus juris<\/span><\/i>, above all, when the cases do not overtly show explicit racist motivation for the alleged human rights violations.\u00a0\u00a0<\/span><\/p>\n

In <\/span>Hacienda Verde vs. Brazil<\/span><\/i><\/a> (2016), the victims\u2019 representatives discussed the issue of race and racism that underlied the context of the human rights violations of the victims in that case. In particular, they contended that \u201cmost of the victims were poor men, between 17 and 40 years of age, Afro-descendant and mulatto, from extremely poor states such as Piau\u00ed, where they lived in conditions of extreme poverty and vulnerability.\u201d However, the IACtHR did not engage with the issue of race and racism explicitly and, instead, analyzed the case through the lens of social class by highlighting the problem of poverty, as is evident in the IACtHR\u2019s conclusion:<\/span><\/p>\n

In this case, the Court notes some characteristics of specific victimization shared by the 85 workers rescued on March 15, 2000: they were poor; they came from the poorest regions of the country, with the lowest human development and possibilities of work and employment, and they were illiterate with little or no schooling [\u2026]. This placed them in a situation that made them more susceptible to recruitment by means of false promises and deception (Paragraph 339).\u00a0<\/span><\/p><\/blockquote>\n

The IACtHR has not consistently tackled structural racism head-on, and this has to do with the IACtHR\u2019s view of the law as <\/span>objective, neutral, and coherent<\/span>. This understanding of law amounts to color-blindness\u2014it suggests that law is racially neutral and that it is possible to render justice without taking race into consideration. CRT has questioned this claim because that apparent neutrality overlooks the racialized structures in which law is created and operates. Khiara Bridges <\/span>asserts<\/span><\/a> that \u201cCRT embraces race consciousness <\/span>in the service of racial justice<\/span><\/i>.\u201d She also criticizes both conservatives and liberals who promote \u201ccolorblindness as the best means for achieving racial equality\u201d because of this doctrine\u2019s failure to do so. In this line, Bridges argues that \u201cCRT understands colorblindness to be a \u2018failed social policy\u2019\u201d that, in an area of formal equality, \u201cperpetuates racial oppression.\u201d<\/span>\u00a0\u00a0\u00a0\u00a0\u00a0<\/span><\/p>\n

Kimberl\u00e9 Williams Crenshaw also <\/span>criticizes colorblindness<\/span><\/a> by underscoring that \u201c[t]his belief in color-blindness and equal process, however, would make no sense at all in a society in which identifiable groups had actually been treated differently historically and in which the effects of this difference in treatment continued into the present.\u201d\u00a0\u00a0\u00a0\u00a0<\/span><\/p>\n

The Inter-American System\u2019s main <\/span>legal instruments<\/span><\/a> contain anti-discrimination provisions based on race, among other prohibited factors. But similar to CRT\u2019s argument that, for example, <\/span>the United States\u2019 anti-discrimination law has not been enough<\/span><\/a> to <\/span>dismantle racism<\/span><\/a>, one can argue that the anti-discrimination provisions in the Inter-American System have not succeeded in dismantling racism in the <\/span>State Parties to those legal instruments<\/span><\/a>.\u00a0<\/span><\/p>\n

Indigenous and Black communities in the Americas are identifiable groups that have suffered historical injustices. The IACtHR must recognize this and embrace a race-conscious approach. Doing so, in the context of its nascent climate change <\/span>corpus juris,<\/span><\/i> would push States to deal with the underlying historical and structural causes that exacerbate the impacts of the climate emergency on Indigenous and Black communities. Race-consciousness could become a hermeneutical tool for the Court to carry out legal analyses that unpack the underlying causes of implicit and explicit acts of racism and racial discrimination, and read these acts within the larger historical and structural context in which they occur.\u00a0\u00a0\u00a0<\/span><\/p>\n

Advisory Opinion on Climate Emergency and Human Rights: A Brief Assessment through the Lens of Race-Consciousness\u00a0<\/b><\/h2>\n

The IACtHR adopted its <\/span>advisory opinion on climate emergency and human rights<\/span><\/a> on May 29, 2025, and published it on July 3, 2025. This is a historic advisory opinion, which recognizes rights and declares States’ obligations to address the climate emergency within a human rights framework. Some of the most significant rights and obligations recognized in the advisory opinion are the following: 1) the right to a healthy climate as part of the right to a healthy environment; 2) States\u2019 obligation to strengthen their mitigation and adaptation actions to counter the causes of climate change; 3) States must mitigate greenhouse gas (GHG) emissions by setting mitigation targets and monitoring them; 4) States must refrain from causing significant environmental harm, but also have the positive obligation to adopt measures to ensure the protection, restoration, and regeneration of ecosystems; 5) States must regulate companies that significantly pollute the environment; 6) the recognition of a human right to science and acknowledgement of the importance of recognizing indigenous and local communities\u2019 traditional knowledge to counter climate change; 7) the inter-generational obligation to protect nature and their ecosystems for future generations; 8) States have common but differentiated responsibilities to address climate change; 9) States must cooperate to combat climate change; 10) reiteration of States\u2019 obligation to offer reparations for transboundary harm; and 11) States should establish domestic legal frameworks that recognize refugee or similar status for people displaced due to climate change.\u00a0<\/span><\/p>\n

Now, the IACtHR also discussed the impact of climate change on Indigenous communities, Tribal peoples, and Afro-descendent communities. In this respect, the IACtHR noted that it had corroborated the disproportionate impact of climate change on these communities, as they rely on ecosystems that are vulnerable to climate change, and they inhabit territories that are also vulnerable to its impacts (para. 605). The IACtHR established that States must adopt specific measures to safeguard the rights of these communities in the context of the climate emergency, including the following: 1) to reinforce the recognition and functioning of the indigenous and tribal communities\u2019 representative organizations that play an important role in land and resource management within the communities\u2019 territories. The States must provide the financial resources for the communities\u2019 authorities to participate in decision-making processes in the context of the climate emergency; 2) \u00a0 to design and implement, with the participation of the communities, mechanisms to collect statistical information about the impact of climate change; 3) to design and implement, with the participation of the communities, public policies to address the impact of climate change on them; and 4) to adopt legislative, administrative, and public policy measures to ensure the protection of the territories and to guarantee the resilience and adaptability of these communities to the impacts of climate change (para. 606). The IACtHR also emphasized the importance of States respecting the right to free, prior, and informed consent when implementing any large-scale project or measure that may impact Indigenous, Tribal peoples, and Afro-descendent communities (para. 608, 609, and 610).\u00a0<\/span><\/p>\n

Nevertheless, the IACtHR did not engage in an analysis of the historical causes that have placed these racialized communities in a position of vulnerability to climate change, because these communities\u2019 exposure to the impacts of ecological degradation is not simply due to bad luck or because they merely happen to inhabit territories prone to climate disasters. There is a history of policies, legislations, and practices that have created a context of environmental racism to the detriment of Indigenous and Black communities. The reality of environmental racism has led countries such as Canada to adopt legislation aimed at addressing <\/span>environmental racism and advancing environmental justice<\/span><\/a>. Indeed, in its advisory opinion, the IACtHR did not explicitly mention or discuss how colonialism, the history of racism, or structural racism are the driving forces that help explain why the environmental risk Indigenous and Black communities face is not addressed with urgency. I would have liked to have seen the IACtHR engage in a more thorough reflection, similar to the one carried out by E. Tendayi Achiume, the U.N. Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance, in her 2022 report on the \u201c<\/span>Ecological crisis, climate justice and racial justice<\/span><\/a>.<\/span>”\u00a0<\/span><\/p>\n

The aforementioned reinforces the importance for the IACtHR to embrace the notion of race-consciousness as a hermeneutical tool to analyze the complexity of race relationships, and how those relationships are part of the history of vulnerability that Indigenous and Black communities face today in the Americas. I remain hopeful that this advisory opinion can serve as an initial step in the process of the Court engaging with the impact of climate change on Indigenous and Black communities. I hope the IACtHR can undertake more comprehensive analyses on the intersection of climate change and race\/racism in potential contentious cases in which human rights violations are alleged against States for their failure to address climate change\u2019s impacts on Indigenous and Black communities.\u00a0\u00a0<\/span><\/p>\n

Envisioning Race-Conscious Reparation Measures in the Inter-American System<\/b><\/h2>\n

Adequate reparations for climate change are complex and must be debated and negotiated between victims, States, and other actors. Nonetheless, based on its experience with granting reparations, the IACtHR can make a meaningful contribution to the debate on climate change reparations. The Inter-American System has been recognized for its creativity and efforts to prompt States to adopt \u201c<\/span>crucial reforms of law, policy and practice as part of reparation measures in a significant number of cases<\/span><\/a>.\u201d\u00a0<\/span><\/p>\n

These successes in influencing States\u2019 public policies and legislative efforts for reparation purposes have to do, in part, with the fact that the <\/span>Inter-American Commission<\/span><\/a> and the Court \u201c<\/span>have become increasingly specific in identifying past deficiencies, and increasingly prescriptive in requiring redress<\/span><\/a>.\u201d The Commission and the IACtHR\u2019s practical experience with redress mechanisms could prove crucial when fashioning concrete reparation measures to compel States to address or prevent climate change-related harms. Through binding judgements, the IACtHR could develop a reparation approach that focuses on at least three aspects that it has developed in its jurisprudence:\u00a0<\/span><\/p>\n

    \n
  1. Protection of ancestral and collective territorial rights of Indigenous Peoples and Black Communities;<\/span><\/li>\n
  2. Protection of Indigenous and Black communities\u2019 life plans and dignified life; and\u00a0<\/span><\/li>\n
  3. The obligation to negotiate in good faith mitigation, adaptation, and reparation measures with Indigenous and Black communities.\u00a0<\/span><\/li>\n<\/ol>\n

    Regarding the risk that climate change poses to Indigenous and Black communities\u2019 <\/span>collective territorial rights<\/span><\/a>, the IACtHR could stress that States must take concrete steps to safeguard those vulnerable territories from the impacts of climate change and offer reparations when it is proven that the State has unjustifiably neglected protection for these territories.\u00a0<\/span><\/p>\n

    Additionally, the Court could include reparations for climate change as part of these communities\u2019 life plans to promote a <\/span>dignified life<\/span><\/a>. Safeguarding <\/span>victims’ life plans and dignified lives are bedrock concepts of the Court\u2019s jurisprudence<\/span><\/a> that could be expanded in the context of the climate change <\/span>corpus juris<\/span><\/i>. Finally, the IACtHR could establish that, in line with the concept of free, prior, and informed consent, States have a duty to engage with <\/span>Indigenous communities<\/span><\/a> and <\/span>Black communities<\/span><\/a> disproportionately impacted by climate change, and negotiate with them in good faith mitigation, adaptation or reparation structures and measures that aim to address the underlying causes of these communities’ vulnerabilities to ecological degradation. .\u00a0<\/span><\/p>\n

    Conclusion\u00a0<\/b><\/h2>\n

    The Inter-American Court has incorporated the key CRT concept of intersectionality into its jurisprudence, making it a crucial hermeneutical tool for the Court to analyze complex cases in which different factors of vulnerability converge to exacerbate situations of human rights violations. In this line, I contend that the Court could further strengthen its analyses of cases involving racial issues by adopting a race-conscious approach, another fundamental CRT concept. Race-consciousness can enable the Court to develop a historized and contextualized jurisprudential approach to contribute to revealing and dismantling racist structures that undermine the enjoyment of human rights of Indigenous and Black communities. A historized and contextualized approach to climate change, as outlined in the U.N. report \u201c<\/span>Ecological crisis, climate justice and racial justice<\/span><\/a>,\u201d is crucial for the Court to frame climate justice as integral to racial and ethnic justice within the Inter-American system. Crucially, acknowledging that climate justice is racial and ethnic justice in its <\/span>corpus juris<\/span><\/i> can be catalyzing for the Inter-American Court to envision reparation mechanisms that can influence and prompt States to devise reparative measures and policies aimed at addressing climate change as an issue of climate justice. Thus, building on the 2025 advisory opinion on the climate emergency and human rights, the Inter-American Court can set, through future binding decisions on climate change and human rights, a legal path that leads to an Interamerican public order that encourages and compels States to implement effective mitigation, adaptation, and reparation schemes to protect Indigenous and Black communities, who are disproportionately impacted by climate change in the Americas.\u00a0\u00a0<\/span><\/p>\n

     <\/p>\n","protected":false},"excerpt":{"rendered":"

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