ELC 2025: From Jim Crow to the Climate Crisis by Camila Bustos
Over the past two years, the obligations of states under international climate law have crystallized with unprecedented clarity.
In a groundbreaking case brought by elderly women challenging the Swiss government's climate inaction, the European Court of Human Rights found for the first time in its history a human rights violation resulting from climate change. This year, two landmark advisory opinions have further clarified that states bear a fundamental duty not to cause climate-related harm.
The International Court of Justice (ICJ) recognized the "duty to prevent significant harm to the environment" as a principle of customary international law. Meanwhile, the Inter-American Court of Human Rights issued its own advisory opinion on climate change, affirming that the principle of prevention imposes an obligation on states to prevent harm and follow a standard of "enhanced due diligence." A year earlier, the International Tribunal for the Law of the Sea recognized that climate change “represents an existential threat”, raising human rights concerns.
Yet even as international consensus builds, the United States government has withdrawn from the Paris Agreement, dismantled climate-friendly programs domestically and internationally, and is now attempting to rescind the finding that greenhouse gas emissions are harmful and, thus, can be regulated under the Clean Air Act.
I’ve been thinking about the many events that led us here—climate denialism, rebuke of international law and cooperation, rejection of scientific expertise, and blatant disregard for the historic responsibility of the United States, who, after all, is responsible for the largest net share of greenhouse gas emissions.
This stark contradiction forces us to confront an uncomfortable question: How did the United States—once hailed a champion of environmental and international law—become one of its most prominent skeptics?
A Brief Summary of US History
The United States was not always hostile to the United Nations and international law. In the aftermath of World War II, the United States played a pivotal role in establishing the international legal order as we know it today. Eleanor Roosevelt herself is often credited as one of the key architects of the UN Declaration of Human Rights.
But the 1950s marked a turning point. As segregation remained entrenched across the United States, civil rights groups like the NAACP recognized that the emerging human rights regime could serve as a powerful tool to expose white supremacy and Jim Crow on the global stage. In 1951, the Civil Rights Congress submitted a petition charging the United States of genocide, documenting instances of violence, police brutality, and racial discrimination against Black Americans. The document argued that the U.S. government's actions fulfilled the legal requirements of genocide under international law.
The potential of international law to challenge domestic racial hierarchies became starkly apparent in a 1951 California case. A state court initially found a domestic law restricting the property rights of non-citizens unconstitutional because it violated the UN Charter's anti-discrimination provisions. The California Supreme Court quickly overturned this part of the decision, reasoning that the UN Charter could not supersede domestic legislation by declaring its preamble and subsequent articles were not self-executing.
What followed has been thoroughly documented by historians like Carol Anderson: segregationists mounted a fierce campaign against the United Nations and introduced a series of Constitutional amendments designed to give Congress greater power over international agreements. Their motivation was transparent—a deep-seated fear that legitimizing the United Nations and international law would subject America's racial hierarchy under Jim Crow to scrutiny by what they derided as a "world government."
While these amendments ultimately failed, they fundamentally shaped the persistent hostility of the U.S. legal system toward international law. This legacy persists today, influencing U.S. treaty practice through the systematic attachment of reservations to human rights treaties. Remarkably, the last human rights treaty the United States ratified was more than twenty years ago.
Why These Climate Rulings Matter
As my colleague Anthony Moffa asks, do these recent developments in climate law actually matter? Outside the United States, they clearly do. An increasing number of courts worldwide have held that subnational and national governments bear legal obligations to address climate change. The number of climate lawsuits will undobtedly continue to increase following the guidance from the ICJ and Inter-American Court.
It is precisely in these moments of intersecting crises that we must think ambitiously and look beyond our borders for inspiration and solidarity. We must abandon American exceptionalism to embrace the progress of international climate law. These landmark opinions reflect a broader global consensus built on four foundational principles:
1. Every Government Must Act
The ICJ definitively rejected the frequent argument that individual States cannot meaningfully address climate change on their own. The Court acknowledged that while cumulative emissions cause climate change, "it is scientifically possible to determine each State's total contribution to global emissions, taking into account both historical and current emissions."
Crucially, the ICJ clarified that state responsibility can be determined even when multiple states contribute to environmental damage, and that cumulative impact does not preclude applying the duty to prevent significant harm to each individual state.
2. We Must Transition Away from Fossil Fuels
The ICJ affirmed that a state's failure to take appropriate action to protect the climate system from greenhouse gas emissions—"including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences or the provision of fossil fuel subsidies"—may constitute an internationally wrongful act attributable to that State.
The Court clarified that "relevant conduct" for assessing state obligations includes not only activities directly resulting in greenhouse gas emissions, but also "all actions or omissions of States which result in the climate system and other parts of the environment being adversely affected by anthropogenic GHG emissions."
The Inter-American Court of Human Rights similarly emphasized that states have obligations to reduce greenhouse gas emissions from fossil fuels and regulate business conduct accordingly. Specifically, the Court assigned differentiated obligations to higher-emitting companies. The opinion further declared that human conduct causing irreversible harm to "the common ecosystem that makes the life of the species possible" violates a non-derogable norm of international law (jus cogens).
3. Human Rights Are Interlinked with Nature's Rights
The Inter-American Court explained how rights of nature approaches align with existing obligations under international environmental law. The Court stated that the right to a healthy environment, as an autonomous right, protects environmental components such as forests, rivers, and seas as legal rights in themselves.
The Court emphasized that nature's rights "represents a contemporary expression of the principle of the interdependence between human rights and the environment." It underscored that "States must not only refrain from acting in a way that causes significant environmental damage, but have the positive obligation to adopt measures to guarantee the protection, restoration and regeneration of ecosystems."
While the ICJ did not explicitly recognize the rights of nature, it acknowledged the importance of integrating the "interests of nature" in climate actions and built upon the “harmony with nature” principle of the Rio Declaration.
4. Migration Justice Is Climate Justice
Both decisions recognized that climate change is displacing people worldwide. The ICJ reaffirmed that states have obligations under the principle of non-refoulement to prevent irreparable harm to the right to life when individuals face real risk upon return to their country of origin. The Inter-American Court observed that states bear an obligation to prevent migration and forced displacement resulting directly and indirectly from climate change impacts.
Both courts reaffirmed the duty to cooperate not only for environmental protection, but also in addressing climate displacement.
Breaking the Cycle
The historical thread from Jim Crow-era resistance to international oversight to today's climate obstruction reveals a troubling pattern. America's reflexive hostility to international law, born partly from a desire to protect racial hierarchy and avoid international scrutiny, now threatens global climate action when we can least afford delay.
These landmark international climate opinions represent more than legal precedent—they embody a global recognition that the climate crisis demands coordinated action grounded in shared legal obligations. As the world moves forward with this consensus, the United States faces a choice: continue clinging to an exceptionalism rooted in historical injustice, or join the international community in building a sustainable future governed by law.
The path forward requires not just policy changes, but a fundamental reckoning with why America fears international accountability. Only by confronting this history can we hope to break free from patterns that now threaten not just justice, but survival itself.
Camila Bustos is an Assistant Professor of Law at the Elisabeth Haub School of Law at Pace University.