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The Right to Health in Climate Change Litigation

A Transformative Pathway for Addressing Latin America’s Health Crises?

22.03.2022

As Latin America’s inequalities exacerbate the climate-related health crises that disproportionately affects marginalized communities, the need to realize these populations’ right to health becomes ever more pressing. While the region’s new constitutionalism has enabled domestic litigation to advance the protection of this right, such a transformative approach is just beginning to make inroads with climate change law as rights-based climate litigation proliferates. This contribution analyzes how the normative content of the right to health has played out in key climate litigation cases in two Latin American jurisdictions. Particularly, it comparatively explores how plaintiffs and courts engage with the potential of such a right to prompt access to healthy environmental conditions and health care systems.

Climate Change, the Right to Health, and Inequality: An Inextricable Link

People in every region of the world are experiencing detrimental effects on their physical and mental health due to more frequent extreme weather events and changing patterns of infectious diseases (as the 2021 Lancet Countdown report and the recently-released contribution of the Working Group II to the Intergovernmental Panel on Climate Change’s Sixth Assessment Report track). This life-threatening toll has concentrated amongst the economically and socially marginalized individuals and groups, thereby motivating a recent reframing of climate change as health crises.

The Human Rights Council and other UN and regional human rights treaty bodies recognize that climate change contributes to the violation of human rights, including the right to health. Particularly, the UN High Commissioner for Human Rights notes that to ensure climate-resilient populations, states should fulfill their minimum core obligations with regard to the right to health, which includes ensuring access to both (1) healthy environmental conditions, and (2) health care systems, especially for vulnerable or marginalized groups. The linkage between the right to health and climate change gained even more prominence when the Paris Agreement explicitly endorsed it in 2015.

Even when most of the world’s climate litigation cases are based in Global North jurisdictions, Latin America is one of the world’s regions where most of its filed cases raise climate concerns on the basis of human rights violations—after Europe and North America (as the Grantham Research Institute on Climate Change and the Environment shows). Unlike climate litigation in high-income countries, commentators have argued that the framing of climate claims as human rights issues in the so-called developing states, including Latin American countries, owes to the high vulnerability of these countries’ populations to climate-induced risks.

Latin America vividly illustrates how the interplay between climate change and inequality determines people’s health vulnerabilities. Among the world’s regions, it is considered to have one of the highest levels of social and health inequality, which makes poor and socially marginalized populations even more vulnerable to climate change. For example, the region’s highly uneven access and quality in health care exacerbates its already tangible climate-related health risks as illnesses of people, who lack such an essential service, often go undiagnosed or untreated (as the Intergovernmental Panel on Climate Change observes).

Rights-based Litigation in Latin America: A Transformative Pathway

At the same time, during the 1980s and 1990s, several Latin American countries set in motion a series of reforms aimed at making their domestic constitutional law more compatible with international human rights law on social and economic rights, including the right to health. This so-called new Latin American constitutionalism enabled the participation in strategic litigation of civil society actors committed to social change and facilitated a legal dialogue across countries through the strengthening of the Inter-American System of Human Rights. Crucially, in doing so, it sparked the expectation on domestic courts to deliver the region’s social transformation for the protection of historically marginalized population groups.

This confluence of scenarios—on the one hand, the region’s increasing health vulnerabilities to climate change, and on the other, the transformational potential of the new Latin American constitutionalism—poses the question of whether rights-based climate litigation could help address the region’s climate-related health crises. Articulating an initial response to such an inquiry compels attention to the ways in which the right to health, the main normative vehicle to prompt improvements in the countries’ health systems, has played out in climate litigation. Particularly, how have the plaintiffs framed their arguments in relation to it? How have courts interpreted it? This understanding can inform current efforts designed to garner Latin America’s litigation potential to contribute toward a more robust climate governance.

Two of the climate lawsuits that have garnered headline attention are Colombia’s Future Generations v. Ministry of the Environment and Others, and Mexico’s Greenpeace Mexico v. Ministry of Energy and Others. Both cases are worth analyzing from the perspective of the right to health because they have explicitly invoked such a right. Further, Colombia and Mexico have legally recognized the right to health in their national constitutions and have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR). They have also ratified the Paris Agreement.

Future Generations v. Ministry of the Environment and Others

In 2018, a group of children and youth filed a tutela action—a special human rights protection procedure in Colombia, similar to the acción de amparo in other Latin American jurisdictions—before the District Court of Bogotá against the federal government, state, and local authorities for their lack of action to protect the Colombian Amazon. They alleged that the state’s inaction resulted in high deforestation rates and the consequential increase in greenhouse gas emissions, which affected the enjoyment of their right to a healthy environment.

Plaintiffs invoked the right to health in connection to the right to a healthy environment by arguing that the impacts on the latter imperiled the enjoyment of the former. Particularly, they pointed to the rise of tropical (zika, dengue and chikungunya) and respiratory diseases as consequence of increases in temperature, rainfall patterns, and heatwaves. They substantiated these arguments on Article 49 of Colombia’s Constitution, which recognizes health as a right and a public service; General Comment 14 of the UN Committee on Economic, Social and Cultural Rights; the 1992 Rio Declaration, and National Law 99 of 1993 (whose Article 1 establishes the right to a healthy life as a general principle of the country’s environmental policy).

By focusing on how climate change undermines a healthy environment thereby compromising human health, plaintiffs’ argumentation on the right to health referred to one of the two normative components of this right, namely, health’s underlying determinants—which include a healthy environment. While claimants did not explicitly raise concerns regarding their access to acceptable and quality health care, which constitutes the second component of the right to health, they pointed to two aspects closely connected with the need to ensure such pressing services. First, a claimant affirmed to be experiencing current, tangible, and personal climate-related health impacts:

“(…) [due to the projected temperature increase in Caldas] it is likely that the use of indoor air conditioning or fans increases; this threatens my right to health since I was recently diagnosed with sensibility to severe climatic changes, which provokes my skin and respiratory allergies.”

Moreover, drawing on guiding documents prepared by Colombia’s Institute of Hydrology, Meteorology and Environmental Studies, claimants flagged future and collective climate-related risks for accessing healthcare services. Specifically, they asserted that the decrease of riverbeds may impact healthcare and food in communities that depend on waterways for accessing them.

In April 2018, the Supreme Court of Justice ruled in favor of the plaintiffs and mandated the federal, state, and municipal governments to plan and implement an “intergenerational pact for the life of the Colombian Amazon” to reduce deforestation and mitigate greenhouse gas emissions. The court determined that this pact should also encompass strategies aimed at adapting to climate change.

The Supreme Court’s emphasis on the interrelation of the right to health with the right to a healthy environment allowed it to exceptionally accept to hear this specific tutela case (the tutela generally does not proceed for the protection of collective rights unless collective harms infringe individual rights). Moreover, the Court drew on Article 12 of the ICESCR to call on the state’s obligation to improve all environmental conditions which are instrumental for the realization of the highest attainable level of physical and mental health. In doing so, the Court highlighted the right to health’s normative component pertaining to its underlying determinants.

While the Supreme Court acknowledged the causal link between climate change—induced by the Amazon’s increasing deforestation—and the negative health effects on people residing in Colombian territory, it did not devote attention to the personal climate-related health effects raised by one of the claimants, neither to the alleged risks for accessing health care services (which would arguably affect rural communities disproportionately). An explicit focus on the need to strengthen health care systems, as the other normative component of the right to health, did not come forth in the Court’s resolution.

Greenpeace Mexico v. Ministry of Energy and Others (on the National Electric System policies)

In 2020, Greenpeace Mexico filed an amparo—a constitutional protection lawsuit in Mexico—before an Administrative Court in Mexico City against the Mexican government. The lawsuit contested the constitutionality of two electricity sector policies that would limit renewables.

The claimants contended that by suspending the operation and approval stages of some wind and photovoltaic power plants in the country and promoting oil-based power generation instead, the two contested policies led to an increase on the energy sector’s polluting emissions. The high concentrations of carbon dioxide, sulfur oxides, and particulate matter (PM 2.5), which the policies induced, damaged the environment thereby intensifying climate change and posing significant risks to people’s health—including premature deaths, respiratory diseases, cardiovascular diseases, malnutrition, allergies, vector-borne diseases, and mental illnesses.

The claimants explicitly invoked the right to health’s connection with the right to a healthy environment as a determinant of health. They grounded their arguments on federal jurisprudence I.7o.A. J/7 (10a.), which clarifies the state’s duties on the right to health. Despite such a legal claim, the Court did not consider health as a right. To be sure, in its judgment, it framed the issue of health as a condition contingent upon the quality of the environment rather than as a normative standard. The resolution thus did not acknowledge violations of the right to health per se. This stands in contrast to the Future Generations case, in which the Colombian Supreme Court did recognize the right to health—albeit only through the right’s interrelation with the right to a healthy environment and not through its normative component relative to health care services.

The Court’s study of the electricity sector policies’ legality rested solely on two fundamental rights, namely: the right to a healthy environment and the right to legal certainty. Consequently, it declared both contested policies void on the basis of their impacts on such rights.

Further, the Court neither expanded on the role of health systems therein. One reason for such an oversight lies in the scope of the amparo. Unlike Colombia’s Future Generations case, this Mexican constitutional appeal exclusively concentrated on reviewing the legality of two final administrative decisions (the electricity sector policies). However, even when judicial reasonings beyond the determination of the policies’ constitutionality fell out of the scope of such legal proceeding, the Court could have strengthened its arguments on the basis of an explicit recognition of the right to health (as suggested by the claimants).

Conclusions

The analysis of both cases through the lens of the right to health let identify how the climate-related health crises are surfacing in legal argumentation in Latin America. The right to health currently intersects with climate litigation mainly through its normative component pertaining to the environment as an underlying determinant of health.

On the other hand, the right’s normative component related to the provision of accessible, quality, and resilient health care systems remains underused. In the Colombian case, the imminent temporality and materiality of the climate-related health effects (to which one of the claimants pointed) together with claimants’ explicit concerns over future obstacles for accessing health care services lay bare the dimensions of the health challenges cutting across climate litigation. Particularly, such claims point to the significance of health care systems for preventing, treating, and curing current and potential climate-related diseases. However, even though the Court’s decision was wide in scope, it did not substantiate the right to health’s component regarding health systems.

Because Latin America’s social and health inequalities determine people’s vulnerability to climate change, addressing the region’s health crises entails not only ensuring a healthy environment, but crucially, also providing timely, quality, and resilient systems for health protection. When claimants denounce actual and imminent climate-related health risks, for whose abatement access to health care is crucial, the judiciary becomes a space for discussing concrete prevention and reparation measures. Hence, unless climate litigation expands its current argumentative lines toward a more meaningful engagement with the right to health, it is unlikely that it garners the transformative potential that the human rights framework has yielded in Latin America.

As rights-based climate litigation continues to proliferate as a means to tackle perceived deficiencies in climate governance and regulation, new opportunities emerge for claimants and courts to acknowledge the inextricable link between climate change, inequalities, and health. Crucially, by ensuring the protection, respect, and fulfillment of all the normative components of the right to health of poor and socially marginalized persons and groups, courts can help overcome the Executive and Legislative branches’ failures to address climate change in contexts of high social and health inequalities. While Latin America’s new constitutionalism arguably offers a transformative pathway toward such a direction, this is yet to be fully harnessed by climate litigation.

Autor/in
Thalia Viveros-Uehara

Thalia Viveros-Uehara is a Doctoral Candidate at the University of Massachusetts Boston. She holds a MSc in Environmental Policy and Regulation from the London School of Economics and Political Science and is a Visiting Scholar at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany.

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