‘Anthropogenic climate change is the largest and most pervasive threat to the natural environment and human societies the world has ever experienced.’[1] According to the UN Intergovernmental Panel on Climate Change’s (IPCC) most recent report, climate change has exacerbated extreme weather disasters, food and water insecurity, declines in people’s physical and mental health, and vector-borne diseases around the world.[2] These climate change-related impacts have both a direct (extreme weather events posing a risk to the right to life) and an indirect (increasing stress on food systems posing a threat to the right to adequate food) effect on the enjoyment of human rights.
The interdependence and interrelatedness of human rights and the environment was first recognised in Principle 1 of the 1972 Stockholm Declaration which states that there is “a fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”.[3] However, it was not until the signing of the Paris Agreement in 2015 that a major international normative instrument on climate change made explicit reference to human rights.[4] As the scientific community has arrived at a consensus on the ways in which climate change affects the human population, there has also been an increase in discourse around the nature of the linkages between climate change and human rights.
This month, the Climate and Environment Initiative (CEI) will explore the theme of climate change and human rights. The following articles consider the UN Human Rights Council’s role in addressing climate change, the use of rights-based climate change litigation to protect the environment in Pakistan, and whether the environment can be protected by granting it rights of its own. This editorial explores the ways in which climate change and human rights are inextricably linked and how international human rights law can provide an avenue to tackle climate change.
Human Rights Implications of Climate Change
Effects of Climate Change on the Enjoyment of Human Rights
It is a well-recognised fact that the manifestations of climate change (including sea-level rise, increasing temperatures, extreme weather events, changes in precipitation patterns, and receding coastlines) can interfere with the enjoyment of the human rights recognised and protected under international law.[5] Climate change, for example, causes an increase in the frequency and intensity of sudden-onset events like storms, which cause displacement, damage to infrastructure, and contamination of water resources, affecting the right to life, adequate and secure housing, and water. Slow-onset events like sea-level rise, cause flooding, displacement, and salinisation of land and water, thereby interfering with the right to adequate housing, water, and food. Human health is also impacted by increases in the occurrence of climate-related food-borne and water-borne diseases like cholera and increases in cardiovascular and respiratory distress caused by exposure to smog and atmospheric dust.
Today, 3.45 billion people (about 45% of the world’s population) are highly vulnerable to the impacts of climate change.[6] These impacts, however, are not shared universally. Climate change exacerbates the vulnerabilities of regions and individuals that are already at a disadvantage. Women and children in developing countries are especially vulnerable to the effects of climate change as they are often tasked with collecting water for their families, requiring them to walk long distances during droughts.[7] Similarly, the economically marginalised face a harder time adapting to climate change and therefore, face the full force of its effects, especially during heatwaves and floods. Indigenous communities whose culture and way of life is closely linked with nature also face serious threats as they often live in fragile ecosystems particularly sensitive to alterations in the physical environment.[8]
Effects of Mitigation and Adaptation on the Enjoyment of Human Rights
Efforts to mitigate climate change by reducing greenhouse gas (GHG) emissions and efforts to adapt to the impacts of climate change can also interfere with the enjoyment of fundamental human rights.
Increased reliance on biofuels,[9] which are less polluting fuel alternatives to fossil fuels, can interfere with the right to food and the rights of indigenous communities.[10] The Office of the High Commissioner for Human Rights (OHCHR) recognised that while biofuel production can bring positive benefits for climate change and for farmers in the developing world, it has historically contributed to spikes in food prices as crops previously used to feed people are utilised for food production.[11] Given the vast amount of land required for biofuel production, indigenous peoples have suffered human rights violations and forced evictions due to the exploration of ancestral lands and forests for biofuel plantations.[12] Hydroelectric power projects which reduce GHG emissions by utilising a renewable source of energy also often lead to mass displacement of local communities and the destruction of essential ecosystems.[13]
Similarly, adaptation measures aimed at helping communities adjust to the actual or expected changes in climate and its effects can also interfere with human rights. Some adaptation projects may benefit one group to the detriment of another, for example, coastal fortifications that protect one community may expose another to a greater risk of erosion and flooding.[14] When adaptation programmes are carried out without the necessary public consultation, they may harm the very people they seek to protect. This is especially worrying in the case of relocation and resettlement programs for indigenous communities and individuals living in disaster-prone areas.[15]
Human Rights Approaches to Climate Change
Human rights are increasingly used as a lens through which to view climate change. A global problem with consequences unfolding on an international scale requires large-scale solutions, suggesting that international human rights law (IHRL) may be an appropriate method to promote accountability for climate change. International human rights law can also make up for limitations in compliance mechanisms under international environmental law and climate change law and the lack of a specific international environmental court. IHRL has also historically provided a framework for tribunals to balance human needs with scarce government resources which could provide guidance on how to approach disputes arising from climate change.[16] The human rights framework also already has tools for monitoring and enforcement which may be transposed to the climate crisis.[17]
This is not to say, however, that the application of the international human rights framework to climate change is without deficiencies. The strictly vertical relationship employed under international human rights law creates difficulties as it is challenging to identify duty bearers for climate change and damage can often not be traced to a single entity, making it difficult to prove causation. Regardless, the field of human rights provides an interesting avenue to tackle climate change and must continue to be studied.
Obligations of States and Private Actors to Respond to the Human Rights Implications of Climate Change
Despite agreement about the linkages between climate change and human rights, there is little consensus on the corresponding obligations of governments and private actors to address the human rights implications of climate change. The following section outlines the obligations of governments and private actors with respect to climate change.
State Obligations
The preamble to the Paris Agreement outlines that when taking action to address climate change, States should ‘respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity’.[18] States are therefore, bound to respect, protect and promote, and fulfil human rights with respect to climate change. This can manifest as both procedural and substantive obligations.
Under human rights law, States have procedural obligations relating to the environmental impacts of their activities, including ‘obligations to gather and disseminate information about environmental impacts, to facilitate public participation in environmental decision-making, and to provide access to remedies for environmental harm.’[19] States must ensure that citizens enjoy meaningful and informed participation in climate action by providing open and participatory institutions and processes, as well as accurate and transparent measurements of GHG emissions.[20]
States’ substantive obligations manifest in both negative obligations for States to refrain from taking action that would interfere with fundamental rights, and positive obligations for States to protect and fulfil rights. Within these obligations, States are required to mitigate climate change to prevent its negative human rights impacts and ensure that all persons have the capacity to adapt to climate change. They must also ensure accountability and effective remedy for human rights violations while mobilising maximum available resources for sustainable human rights-based development. States must guarantee equity, equality, and non-discrimination in climate action. They must protect citizens from business harms and guarantee that everyone enjoys the benefits of science and its applications. Given the international nature of the issue, States must cooperate with each other to ensure effective solutions.[21] States can be held accountable for their failure to meet their obligations. In 2019, a group of indigenous appellants filed a communication with the UN Human Rights Council alleging that Australia’s climate inaction constituted a breach of their human rights obligations under the ICCPR.[22]
Private Actor Obligations
While the core international human rights treaties do not explicitly address the obligations of private parties with respect to climate change, the UN Guiding Principles on Business and Human Rights (UNGPs) affirm that States have a duty to protect against human rights abuses by businesses and that businesses have a responsibility to respect human rights and do no harm.[23] This includes avoiding causing or contributing to adverse human rights impacts through business activities including the emission of GHGs, dumping of toxic wastes and contamination of water which adversely impact human life and health.[24] Businesses should also seek to prevent or mitigate the adverse human rights impacts directly linked to their operations, product or services even where they have not contributed to those impacts.[25] To carry out their obligations, businesses are recommended to undertake human rights due diligence and provide remediation where human rights are violated.
Though the obligations of private actors with respect to climate change and human rights arise from soft law instruments including the UNGPs and OECD Guidelines for Multinational Enterprises, and other international norms and standards, these obligations have increasingly been relied upon in litigation and complaints against companies. In May 2021, a Dutch court ordered, Royal Dutch Shell, a major oil company, to reduce its CO2 emissions by net 45% by 2030. The Court held that Shell’s total emissions breached the company’s legal obligation to prevent dangerous climate change. In the Philippines, NGOs and communities impacted by typhoon Haiyan filed a complaint before the Commission on Human Rights of the Philippines requesting the Commission to conduct an inquiry into alleged human rights violations resulting from climate change linked to 47 fossil fuel companies.[26] In their report, the Commission held that businesses have a corporate responsibility to undertake human rights due diligence and provide remediation and may be compelled to do so and held accountable for a failure to remediate human rights abuses.[27]
Positive Developments in Human Rights and Climate Change
The Right to a Healthy Environment
In a historical development on 8 October 2021, the UN Human Rights Council adopted Resolution 48/13, recognising for the first time that everyone, everywhere has a right to live in a safe, clean, healthy and sustainable environment. Prior to the Resolution, more than 150 States had already recognised the right in their constitutions, national laws or judgements of their judiciary. The Resolution paves the way for the effective integration of the right to a healthy environment in international law and stronger implementation of the right domestically.
Special Rapporteur on Human Rights and Climate Change
In its 48th session in October 2021, the Human Rights Council adopted a resolution establishing the mandate of a Special Rapporteur on the promotion and protection of human rights in the context of climate change.[28] The Council appointed Ian Fry as the first mandate holder for the newly established procedure in its 49th session. His mandate, which began on May 1, 2022, includes studying how the adverse effects of climate change impact the enjoyment of human rights and making recommendations on how to address and prevent these effects, identifying existing challenges in States’ efforts to promote and protect human rights while addressing climate change, and sharing best practices on human rights-based approaches to climate change.
Climate Change Litigation
Today, climate change litigation continues to grow in significance as the number of climate change-related cases have doubled since the adoption of the Paris Agreement in 2015.[29] Litigation before national courts and international bodies is increasingly being used to challenge governments’ climate inaction, failure to honour their existing climate commitments, and climate change strategies that themselves violate human rights.[30] Many of these cases rely on human rights-based arguments, for example, that States have positive obligations to adopt measures to reduce GHG emissions and help their citizens adapt to climate change. Though majority of cases are filed in the Global North, Pakistan is one of 18 jurisdictions in the Global South which is witnessing a boom in rights-based climate change litigation. Given the success of strategic litigation, we will likely see the courts continue to adjudicate on questions of importance for the climate crisis including cases brought against corporations.
Conclusion
Though we have seen positive developments in the recognition of the link between climate change and human rights, there is still work to be done, especially with respect to human rights implicated by mitigation and adaptation measures and accountability for climate-change related human rights abuses. International cooperation is key to addressing this issue.
References
[1] UNEP, Climate Change and Human Rights (December 2015), https://web.law.columbia.edu/sites/default/files/microsites/climate-change/climate_change_and_human_rights.pdf
[2] IPCC, Climate Change 2022: Impacts, Adaptation, and Vulnerability. Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change [H.-O. Pörtner, D.C. Roberts, M. Tignor, E.S. Poloczanska, K. Mintenbeck, A. Alegría, M. Craig, S. Langsdorf, S. Löschke, V. Möller, A. Okem, B. Rama (eds.)], (CUP 2022). [Hereafter IPCC, 2022].
[3] Declaration of the UN Conference on the Human Environment (“Stockholm Declaration”), June 16, 1972.
[4] There is no explicit reference to human rights in the United Nations Framework Convention on Climate Change or the Kyoto Protocol. The Preamble to the Paris Agreement states: ‘Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.’
[5] John H. Knox, Human Rights Principles and Climate Change, Wake Forest Univ. Legal Studies Paper No. 2523599 (2014).
[6] IPCC, 2022.
[7] UN Women Watch, Fact Sheet: Women, Gender Equality and Climate Change (2009), https://www.un.org/womenwatch/feature/climate_change/downloads/Women_and_Climate_Change_Factsheet.pdf.
[8] OHCHR, Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship Between Climate Change and Human Rights, UN Doc. A/HRC/10/61, (Jan. 15, 2009), p.68.
[9] ‘A fuel produced from dry organic matter or combustible oils produced by plants. These fuels are considered renewable as long as the vegetation producing them is maintained or replanted, such as firewood, alcohol fermented from sugar, and combustible oils extracted from soybeans. Their use in place of fossil fuels cuts greenhouse gas emissions because the plants that are the fuel sources capture carbon dioxide from the atmosphere’ UNFCCC, Glossary of climate change acronyms and terms, https://unfccc.int/process-and-meetings/the-convention/glossary-of-climate-change-acronyms-and-terms.
[10] Siobhan McInerney-Lankford, Climate Change and Human Rights: An Introduction to Legal Issues, 33-2 Harvard Environmental Law Review 431 (2009).
[11] OHCHR, Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship Between Climate Change and Human Rights, U.N. Doc. A/HRC/10/61 (Jan. 15, 2009).
[12] United Nations Department of Economic and Social Affairs, State of the world’s indigenous peoples (2009), ST/ESA/328, p117, https://www.un.org/esa/socdev/unpfii/documents/SOWIP/en/SOWIP_web.pdf.
[13] UNEP, Climate Change and Human Rights (December 2015), p.9, https://web.law.columbia.edu/sites/default/files/microsites/climate-change/climate_change_and_human_rights.pdf
[14] UNEP, Climate Change and Human Rights (December 2015), p 10, https://web.law.columbia.edu/sites/default/files/microsites/climate-change/climate_change_and_human_rights.pdf.
[15] UNEP, Climate Change and Human Rights (December 2015), p 10, https://web.law.columbia.edu/sites/default/files/microsites/climate-change/climate_change_and_human_rights.pdf.
[16] Margaux J. Hall & David C. Weiss, Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law, 37 YALE J. INT’l L. 309 (2012), p 341.
[17] Margaux J. Hall & David C. Weiss, Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law, 37 YALE J. INT’l L. 309 (2012), p 341.
[18] UN, Conference of the Parties, Adoption of the Paris Agreement (12 December 2015), FCCC/CP/2015/L.9/Rev/1, https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf.
[19] UNEP, Climate Change and Human Rights (December 2015), p 16, https://web.law.columbia.edu/sites/default/files/microsites/climate-change/climate_change_and_human_rights.pdf.
[20] OHCHR, Key messages on human rights and climate change, https://www.uncclearn.org/wp-content/uploads/library/keymessages_on_hr_cc.pdf.
[21] OHCHR, Key messages on human rights and climate change, https://www.uncclearn.org/wp-content/uploads/library/keymessages_on_hr_cc.pdf.
[22] ClientEarth, Climate threatened Torres Strait Islanders bring human rights claim against Australia, Press release (19 May 2019), https://www.clientearth.org/latest/press-office/press/climate-threatened-torres-strait-islanders-bring-human-rights-claim-against-australia/.
[23] UN Office of the High Commissioner on Human Rights (OHCHR), United Nations Guiding Principles on Business and Human Rights, https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.
[24] UN Office of the High Commissioner on Human Rights (OHCHR), United Nations Guiding Principles on Business and Human Rights, https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.
[25] UN Office of the High Commissioner on Human Rights (OHCHR), United Nations Guiding Principles on Business and Human Rights, https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.
[26] Business & Human Rights Resource Centre, Philippines: Commission on Human Rights releases national inquiry on climate change & calls for carbon majors to be held accountable (6 May 2022), https://www.business-humanrights.org/en/latest-news/philippines-commission-on-human-rights-releases-national-inquiry-on-climate-change-calls-for-carbon-majors-to-be-held-accountable/.
[27] Business & Human Rights Resource Centre, Philippines: Commission on Human Rights releases national inquiry on climate change & calls for carbon majors to be held accountable (6 May 2022), https://www.business-humanrights.org/en/latest-news/philippines-commission-on-human-rights-releases-national-inquiry-on-climate-change-calls-for-carbon-majors-to-be-held-accountable/.
[28] UN HRC, Resolution adopted by the Human Rights Council on 8 October 2021 (13 October 2021), A/HRC/Res/48/14, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G21/285/48/PDF/G2128548.pdf?OpenElement.
[29] Joana Setzer & Catherine Higham, Global trends in climate change litigation: 2021 snapshot, Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, Policy report (July 2021), https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf.
[30] Kumaravedivel Gurupran & Harriet Moynihan, ‘Climate Change and Human Rights-based Strategic Litigation’ (2021) Chaltham House Briefing, https://www.chathamhouse.org/2021/11/climate-change-and-human-rights-based-strategic-litigation/summary-trends.
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