Litigating Climate Justice: The Right to Health and Vulnerable Populations in Latin America

Abstract

As the climate crisis disproportionately imperils the health of populations living in poverty and social exclusion in Latin America, realizing the most vulnerable population's right to health as a crucial component for achieving climate justice becomes increasingly urgent. While the region's new constitutionalism has made progress toward protecting this right, a transformative approach is just beginning to take hold in the field of climate change law, as evidenced by the growing number of rights-based climate litigation cases. This paper employs systematic content analysis (SCA) to qualitatively examine the corpus of domestic rights-based climate change lawsuits filed across Latin American jurisdictions through mid-2022 and places a sharper focus on the adjudicated cases. The goal is to scrutinize the relationship between the use of the right to health and climate justice within this body of litigation. Particularly, the study delves into the interplay of the social and ecological factors that compound climate vulnerability. It achieves this by identifying and classifying data based on the motives of the litigants, the objectives of the litigants and courts and their arguments, and the legal bases of their respective complaints and judgments as they relate to the existing and emerging health concerns of vulnerable populations. The findings reveal a constellation of ways in which litigants and courts use the right to health in relation to the socio-ecological spectrum of health vulnerability. This paper proposes a typology of cases (climate justice gradient) to conceptualize this phenomenon as a first step in expanding the strategic and interpretative horizons of the current climate litigation toward a more comprehensive approach to climate justice.