From Advisory Opinions to Action: Legal Indicators as Tools to Reinforce Non-Regression in Colombia's National Climate Governance
By Ada Valentina Gaviria Erazo*
The climate crisis represents the greatest challenge of our time, with profound implications for human rights and global environmental stability. In this context, clarification of States' obligations under international law is more urgent than ever. The year 2024 marked a historic milestone with the activation of three consultative processes before key international tribunals: the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (IACTHR). These efforts seek to outline a robust legal framework to guide national climate action, and for Colombia, this exercise offers an opportunity to strengthen its climate governance through the principle of environmental non-regression and the development of legal indicators. From the perspective of youth climate advocates, the effective implementation of these advisory opinions is critical to ensure a just and sustainable future, in line with the vision of the World Youth Climate Justice (WYCJ).
The ITLOS Advisory Opinion and the Framework of State Obligations
The ITLOS Advisory Opinion, issued in May 2024, represents a significant precedent in the development of international maritime environmental law. In its request, the Commission of Small Island States (SIDS) asked the Tribunal to clarify the obligations of State Parties to the United Nations Convention on the Law of the Sea (UNCLOS) concerning climate change. ITLOS unequivocally stated that States have an obligation to protect and preserve the marine environment from the deleterious effects of anthropogenic greenhouse gas (GHG) emissions, such as climate change and ocean acidification, clarifying that these emissions constitute pollution of the marine environment within the meaning of Article 1, paragraph 1, subparagraph 4 of the Convention (ITLOS Advisory Opinion, para. 441; see also paras. 193-258). The Tribunal emphasized the need for enhanced due diligence to prevent significant transboundary harm from climate change, an obligation that extends to all activities under the jurisdiction or control of a State that may affect the marine environment, requiring States to take "all necessary measures" proportional to the degree of risk (ITLOS Advisory Opinion, paras. 207, 208, 211).
For Colombia, a nation with extensive coastlines on the Caribbean and the Pacific, the implications of this opinion are profound. While Colombia has signed but not yet ratified UNCLOS, meaning it is not directly bound by the Convention's treaty obligations, the ITLOS Advisory Opinion still holds significant relevance. Its interpretations clarify the scope of international legal obligations concerning marine environmental protection, which are of broad application and often reflect widely accepted principles of international law. The opinion thus carries considerable persuasive authority, guiding the understanding of State responsibilities even for non-parties. Moreover, the ITLOS Opinion clarifies the obligations of other States Parties to reduce GHG emissions. These actions, or lack thereof, will inevitably impact Colombia’s maritime system and coastal communities due to the transboundary nature of climate change. Protecting the ocean, as the largest carbon sink, is crucial for human health, existence, and climate change mitigation globally, and thus profoundly affects Colombia.
Therefore, it is essential that Colombia continues technical discussions to analyze the ratification of UNCLOS. By not ratifying, Colombia remains outside the direct legal framework for comprehensive ocean governance and the specific dispute settlement mechanisms offered by UNCLOS. Ratification would align Colombia more closely with international efforts in marine environmental protection and provide a stronger legal basis for addressing climate impacts on its vast coastline. The ITLOS Advisory Opinion, situated within the broader international legal framework that includes the Paris Agreement and other international environmental and human rights treaties, reinforces the urgency for all nations, including Colombia, to address the acute problems faced by vulnerable territories such as San Andrés, Providencia, and Santa Catalina. This would involve strengthening Colombia's regulatory framework and public policies to meet these clarified obligations, encouraging a review of its climate policy with a view to integrating stronger mitigation and adaptation strategies.
The International Court of Justice and the Challenges of Climate Governance in Colombia: A View from San Andrés, Providencia, and Santa Catalina
The jurisprudence of the International Court of Justice (ICJ), although it has not yet issued its advisory opinion on climate change, presents relevant precedents and cases that, in the Colombian context, underscore the complex intersection between international law, territorial sovereignty, and human rights in a scenario of climate crisis. The emblematic case of the "Territorial and maritime delimitation dispute over the islands of San Andrés, Providencia and Santa Catalina" between Colombia and Nicaragua, resolved by the ICJ in 2012, starkly illustrates the problems that can arise from maritime delimitation and its repercussions on coastal communities and their ways of life, with indirect but significant implications for climate governance.
The ICJ ruling, in delimiting the maritime border, drastically redefined the waters in which the artisanal fishermen of San Andrés, Providencia, and Santa Catalina had historically developed their activities. Traditionally, fishing extended beyond 12 nautical miles, in waters that, because of the ruling, became Nicaraguan sovereignty. This geographical reconfiguration has not only stripped fishermen of their ancestral fishing grounds but has also generated a situation of extreme vulnerability. The impossibility of accessing these fishing areas, vital for their subsistence and cultural heritage, has triggered severe security problems. The lack of protection and effective accompaniment by the General Maritime Directorate (DIMAR) and the Colombian armed forces in the new permitted fishing zones has left fishermen exposed to constant risks. This State neglect, combined with economic pressure, has led to a paradoxical and deeply unfair situation: many fishermen are forced to "self-designate" as drug traffickers to be rescued at sea, using routes that allow them to access areas with greater fishing resources, even if this means venturing into waters of complex jurisdiction and under the shadow of illegality. The prioritization of the fight against drug trafficking over the protection of artisanal fishing and food security of these communities is a clear manifestation of the injustices resulting from this situation. This dynamic reveals how high-level international policy decisions, such as maritime delimitations, can have devastating impacts on the fundamental human rights of local communities, exacerbating their vulnerability in the context of increasing climate pressure on marine ecosystems.
The connection of this case to the ICJ's ongoing advisory opinion on climate change, although the deliberation has not yet been concluded, is profound and multidimensional. The vulnerabilities faced by the fishing communities of San Andrés, Providencia, and Santa Catalina due to the maritime delimitation, such as loss of livelihoods and increased insecurity, are directly exacerbated by the impacts of climate change, the persistent non-compliance with fishing bans by maritime neighbors of Colombia, which causes a decrease in fish populations and other marine ecosystems, ocean acidification, and extreme weather events. The ICJ's forthcoming advisory opinion, by clarifying States' obligations regarding climate change and human rights, has the potential to offer a legal framework to address these overlapping vulnerabilities and provide principles for the protection of affected communities in such complex scenarios.
Colombia has played an active role in this process, presenting substantial contributions highlighting the importance of climate justice and the protection of human rights in the context of global climate action. In its Written Statement to the ICJ dated March 11, 2024, Colombia emphasized the urgent need for significant action on climate change, detailing its impacts on Colombia's ecosystems and population, including children, women, indigenous, Afro-descendant, and Raizal communities (Written Statement by Colombia, 11 March 2024, Chapter 2). Colombia argued for an integrated approach to international law on climate change, focusing on the obligations of States to protect the climate system and environment from anthropogenic GHG emissions (Written Statement by Colombia, 11 March 2024, Chapter 3). Key arguments included the principle of due diligence, which it considers a normative foundation, the principle of highest possible ambition and progression as reflected in the Paris Agreement, common but differentiated responsibilities and respective capabilities, and the duty to cooperate. Furthermore, Colombia stressed the relationship between international human rights law and climate change, highlighting the need to protect the special rights of vulnerable populations. Colombia submitted that the "sole application of the principle of prevention is insufficient" to address the climate crisis, given both known and unknown effects (Written Statement by Colombia, 11 March 2024, para. 3.25). The Court’s opinion is expected to provide essential legal guidance for the international community in addressing the climate crisis. For Colombia, this means a clearer understanding of its responsibilities to protect its ecosystems and communities, and to align its national policies with international climate obligations, potentially reinforcing existing and future climate actions.
In this sense, the principle of environmental non-regression and legal indicators stand as powerful tools to shield the achievements of both youth and States in climate action, ensuring that the ICJ guidelines are translated into effective and measurable actions in the Colombian legal system. The principle of environmental non-regression asserts that environmental protection standards and levels should not be reduced or rolled back. It aims to ensure that environmental progress, once achieved, is maintained and improved upon, preventing any legal or policy changes that might diminish existing protections. This principle is crucial for countries like Colombia, which face the challenge of reconciling economic development with the sustainable safeguarding of their ecosystemic resources amidst a multidimensional crisis (Patiño Posse, Miguel; Gaviria Erazo, Ada Valentina, El principio de non regresión: la necesidad de proyección de los ODS como política ambiental efectiva en Colombia, pp. 4, 5, 10, 14). Legal indicators, as described in the methodology for measuring the effectiveness of environmental law, are tools for evaluation and decision-making that demonstrate how each State deploys legal mechanisms to strengthen environmental protection (Prieur & Bastin, Midiendo la efectividad del derecho ambiental, pp. 67-68). They allow for the appreciation of the implementation process of legal rules to measure their effectiveness, focusing on the process of applying the law rather than just the final outcome. These indicators also enable the measurement of the progression or regression of effectiveness levels over time (Prieur & Bastin, Midiendo la efectividad del derecho ambiental, pp. 67-68). By using these tools, "achievements" – referring to the advancements made in climate policy, regulatory frameworks, and practical measures for environmental protection – can be safeguarded against setbacks, ensuring continuous improvement and adherence to the ICJ's forthcoming guidance.
*Ada Valentina Gaviria Erazo is a Colombian national, student at the University of Bogotá Jorge Tadeo Lozano, and member of WYCJ’s Latin American Front.
DISCLAIMER: The views expressed in the symposium’s blog posts are those of the author and do not represent the views of WYCJ. Furthermore, university chapters were prepared, edited, and approved by the respective universities; WYCJ cannot guarantee the level of scientific and legal inquiry, nor the content of blog posts.