Q&A: Climate Change, Human Rights, and International Law: An Interview with Prof. Miriam Cohen

Most people consider climate change a top-down responsibility. We look to governments to create policies and demonstrate the leadership that can make the large-scale changes necessary to reduce waste and emissions that contribute to environmental degradation. However, citizens, communities, and small states are increasingly using domestic and international courts to draw attention to the real-world implications of climate change and their impact on human rights around the world.

On 9 April 2024, the European Court of Human Rights ruled that Switzerland's inadequate approach to mitigating climate change had violated the human rights of the KlimaSeniorinnen, a group of more than 2,000 women who had argued that climate change represented a significant threat to their health.

On 21 May 2024, the International Tribunal for the Law of the Sea (ITLOS) delivered an advisory opinion on a case brought by the Commission of Small Island States on Climate Change and International Law (COSIS). The tribunal opined that nations have the responsibility to protect the marine environment from the impact of climate change.

With additional advisory proceedings in progress before the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (IACHR), citizens and small nations are wielding new legal weapons to force government action. 3E reporter Graham Freeman sat down with Prof. Miriam Cohen from the Université de Montréal to discuss these developments and what they might mean for the future direction of climate activism and government responsibility.

The following interview has been edited for clarity and length.

Everyday people and small nations fighting climate change through the courts is very much in the news of late. What lies behind this development?

It’s quite unprecedented to have four international courts and tribunals dealing with the question of climate change in parallel. The hope is that all these courts will have some kind of dialogue to fill in gaps and clarify international law in a cohesive, coherent manner.

It’s interesting because the proceedings touch on different areas of international law, albeit they are all intertwined by the common theme of climate change. For example, if you look at the Inter-American Court of Human Rights, it relates to human rights and the American Convention on Human Rights. The ITLOS proceedings are concerned with the UN Convention on the Law of the Sea, and the International Court of Justice will focus on the obligations of states in relation to climate change.

I think there will be room for these courts to have common ground and to learn from one another. For example, they could build on each other relating to questions of scientific evidence. Scientific evidence can have a certain meaning in the law of the sea, for example, but there is a larger question of how to deal with complex scientific evidence in the context of climate change. Even though each court has its own rules and applicable laws, its set of questions, and its set of submissions, the courts don’t operate in a complete vacuum. There will be some common questions, such as how to assess scientific evidence from experts.

Is there a danger of dissent and fragmentation between courts that could damage the credibility of these decisions?

There’s always a possibility that there will be fragmentation stemming from the different decisions. I think there are some reasons to believe that shouldn’t be the case. One of them is that even though they’re all connected to the bigger question of climate change and obligations of states related to climate change, they’re also in their own fields. For example, ITLOS is very specific to the UN Convention on the Law of the Sea. The Inter-American Court will be very related to the American Convention. So, they play in their own fields. In this case, there is this overarching context, but they have specific questions that they have to respond to.

In the ITLOS case, the Tribunal gave a very detailed response to the questions that were posed, and the opinion had to focus on those questions. In that way there is room for each one to have its own voice without necessarily going in different directions.

Even though the advisory opinions are not binding under international law, they will carry a lot of weight because of some factors such as the legitimacy of the courts, the evidence produced, and the participation of a number of states, organizations, and even individuals. All of that together can foster a greater influence of advisory opinions.

In the end, what do we hope will be the result of these court cases?

I think it’s an important question, especially with advisory opinions not being binding. There can be some impact on, for example, what happens in domestic litigation. The clarifications that we will get, especially from the momentum of all these opinions being heard in parallel and being delivered closely one after the other, will shed some light on questions of international law, and we’ve seen in other areas where domestic litigation cites international decisions. I think it will really embolden and foster more domestic climate change litigation, which is already very prolific all over the world.

Then there’s the technical question of how you use international law and international judgments or advisory opinions in each country. It can differ from country to country, so there’s no one-size-fits-all. It depends on the legal system, but even if you can’t directly apply the judgment or the advisory opinion in a domestic case, there could be varying ways that an international advisory opinion, from the ICJ for example, may influence building cases and putting forth arguments before domestic courts.

I think pronouncements by international courts may also positively influence international negotiation. For example, ITLOS clarified a lot of questions under international law in terms of the relationship between climate change, the law of the sea, the marine environment, and the obligations of states that are parties to the Convention on the Law of the Sea.

Another interesting point is the idea of the day in court. You see more of that in the Inter-American Court. It has very inclusive ways of allowing participants to provide submissions. Not only states but also civil society, academics, and individuals are participating. Their written submissions often capture the impact of climate change and how it has completely changed the course of their lives - the real, true impact of climate change on individuals' lives. Sometimes those perspectives are not really captured in international negotiations if only states are participating and deciding on the course of the negotiations.

It seems like citizens have grown tired of waiting for governments and business leaders to do the right thing and are using the courts to force them to act. 

People know there’s a climate emergency. Individuals, vulnerable states, and vulnerable communities have grown tired of waiting. There is this momentum where they were able to build from grassroots movements to go to these international courts, putting questions to the ICJ, the IACHR, and ITLOS. There was this impetus to do more because what's been done so far is not sufficient.

The courts are faced at the same time with these legal questions relating to the consequences of climate change. The European Court of Human Rights for example, has made the link between human rights, climate change, and the inaction of governments and their climate policies. They're changing the status quo. They've reached a new phase, now before the international courts, to fight government inaction.

——

Editor’s Note: 3E is expanding news coverage to provide customers with insights into topics that enable a safer, more sustainable world by protecting people, safeguarding products and helping business grow. Q&A articles feature our reporters’ exclusive 1:1 interviews with regulatory and industry influencers.

Prof. Miriam Cohen is an Associate Professor and holds the Canada Research Chair on Human Rights and International Reparative Justice at the University of Montreal's Faculty of Law, where she teaches and researches in international, public, and human rights law. She is the recipient of the Scholarly Book Award of the Canadian Council on International Law and the Legal Competition Award of the Quebec Bar Foundation for her book Realizing Reparative Justice for International Crimes: From Theory to Practice (Cambridge University Press, 2020). She is a member of the Global Young Academy and sits on numerous international law and human rights boards of directors. Professor Cohen obtained her PhD from Leiden University. She was a Frank Knox Memorial Fellow and John Peters Humphrey scholar during her graduate studies at Harvard Law School. She obtained a master of laws (LLM) from the University of Cambridge as a Rt. Honourable Paul Martin Sr scholar, and both a law degree (LLB) and a master of laws (LLM) from Université de Montréal. At the Faculty of Law, she leads a research program based on two main axes: international justice and reparation for human rights violations (Axis 1); and the interplay between human rights, new technologies, and the empowerment of individuals and communities (Axis 2). She is the founder of the Human Rights and International Justice Lab, where she supervises interdisciplinary research teams developing a specialized digital platform for the analysis of human rights jurisprudence.