Addressing health crises through courts? Climate litigation in Latin America, the right to health and vulnerable populations

As Latin America faces increasing climate-related health crises that disproportionately affect populations experiencing poverty and social exclusion, it becomes increasingly urgent to realize the most vulnerable's right to health. While the region's new constitutionalism (NLAC) has made progress in protecting this right, it has only recently begun to intersect with climate change law through rights-based climate litigation. This dissertation takes a transdisciplinary multi-methods research approach to answer the following question: How do health crises emerge within, and how are they addressed by courts through, domestic climate litigation in Latin America? Specifically, it examines how health concerns for vulnerable populations are raised and addressed in climate litigation, aiming to identify how the profiles, motives, and resources of claimants and judges influence how they protect the right to health of the most marginalized groups. By also considering the legal and broader socio-political contexts intertwined with climate-related health crises, the research aims to contribute to a better understanding of Latin America's climate litigation by exploring how the socio-ecological dimensions of health vulnerability are reflected in and redressed by judicial decisions.

The dissertation concludes that within the corpus of climate litigation in Latin America (77 cases of which 61 are rights-based), health crises manifest and are addressed by domestic constitutional courts in diverse manners, none of which sufficiently address the full socio-ecological spectrum of health vulnerability. This partial manifestation of health crises is underpinned by the complex interplay between the socio-political realities of both claimants and judges, which influence their framing and utilization of normative tools. In particular, while the right to health has emerged as a prominent instrument in climate litigation, enabling claimants to obtain legal standing and courts to justify the cessation of climate change-inducing activities, the social dimension of vulnerability (health’s relationship with poverty and social exclusion) remains partially redressed. For the most part, climate litigation serves as a platform for unidimensional ecological concerns. The research thus contends that the judicial pathway is not currently sufficient as the sole mechanism for addressing health crises.

However, there is potential for improving climate litigation’s alignment with climate justice by broadening strategic and interpretative horizons for claimants and courts to account for the realities faced by those most vulnerable to climate change. To achieve this, employing socio-ecological bottom-up strategies by litigant civil society organizations, adopting open legal standing rules, embracing broad-ranging remedial designs within progressive legal traditions, and deepening judges’ understanding of claimants' social contexts seem to be crucial components. Currently, these prospects appear more likely to materialize in Colombia and Ecuador than in Chile and Mexico.