The Challenging Application of IHRL to Climate Change

October 14, 2018

      The well-established threats to natural resources, biodiversity, and ecological patterns and processes from drastic human and industrial growth bestows mankind with a climate crisis never before seen in today’s world. Largely due to the burning of fossil fuels and the accumulation of greenhouse gasses in the earth’s atmosphere, earth’s natural systems have been tremendously disrupted. Wholly affecting such fundamental processes as weather patterns and events, temperature, and sea level, these direct climate changes give way to a rapidly increasing milieu of indirect effects upon human life. These effects include, but are not limited to, major impacts on human health as a result of pollution and environmental contamination, the spreading of infectious diseases, food and water insecurity, coastal erosion and increased flooding and fires, large-scale adverse economic effects, and mass human migration and global conflict [1].

 

Given the complicated and all-encompassing nature of climate change, there is no surprise that there have been many different proposed avenues for litigating and enforcing environmental protection. Among these, chiefly, is through the use of environmental law and international environmental agreements. Beginning in 1972 with the Stockholm Conference on the Human Environment, other international agreements - such as the 1992 creation of the UNFCCC following the Rio de Janeiro Earth Summit, the Kyoto Protocol (1997), the 1999 Declaration of Bizkaia on the Right to the Environment, the World Summit on Sustainable Development (2002), and the most recent Paris Climate Accord (2015) [2] - have sought to bring some clarity to the adaptation and mitigation measures needed to adequately confront the climate crisis. 

 

      Yet while the creation and ratification of these treaties and agreements maintain significant political symbolism, the requirements themselves often hold loose guidelines or pledges that are non-binding in nature and result in many issues of compliance, particularly in the protection of human rights resulting from a changing climate. More, the standards set by these international treaties have yet to see any substantial results. The Kyoto protocol, which was perhaps the most significant global climate treaty prior to the Paris Accord, is widely regarded as an empty shell, not meeting first period obligations that were enough to close the emissions gap [3] Despite some noteworthy developments in the area of international environmental law over the past 20 or 30 years, chiefly in the existence of these treaties, the international community continues to face a disjointed blueprint for climate change justice. This fragmentation is “partly due to the many areas of relevant international legal activity, but also due to the breadth and complexity of international development and economic activity” [4] More, the current standards of environmental law are largely built upon the right to pollute. In assuming a “business as usual” approach to regulation, environmental law merely seeks to lessen the environmental impacts of conducting that business [5] For instance, in regard to the regulation of toxic pollutants, current environmental laws permit emissions at levels that can still easily harm individuals [6] What remains to be seen is a legal environmental framework that significantly protects both the environment and human security in practice. Although many environmental treaties have, at the least mentioned a human aspect to environmental protection, such as in the 1972 Stockholm Conference on the Human Environment, stating “man has the 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,” [7] the protection of human rights has not been a focal point of international environmental agreements thus far. Indeed, it is widely understood that the Stockholm Conference was the first hallmark of the necessity for the human rights world and the environmental world to come together [8]. However, it may be said that the intersection of human rights and climate change will become entirely indistinguishable within the next century. Mary Robinson, the former High Commissioner for Human Rights, has even described climate change as being, “Very likely, the single greatest human rights challenge of the 21st century” [9]. Whether directly or indirectly, a wide range of human rights such as the rights to food, clean water, health, self-determination, an adequate standard of living, and the right to life have all begun to be challenged by the global threat of climate change [10]. So why examine climate change through the lens of human rights? First, international human rights law (IHRL) attaches international governance and policymaking to the most widely shared set of international norms, making it easy for the world’s powers to align their policymaking with an already established international human rights framework [11]. Second, international human rights law allows for aspects of climate policy to be directly centered around the environmental impacts to individuals’ lives, health, and property, rather than just the general impact to states or the environment as a whole [12]. This effectively allows international human rights law to hold a special focus on the world’s most vulnerable citizens in the face of climate injustice. For instance, in the event of relocation or mass climate migration, international human rights law provides certain standards of treatment to be conducted by the host state, thus giving climate migrants a more solidified legal standing [13]. Third, international human rights law may promote a higher standard of environmental improvement when the health and well-being of humans is considered in climate change mitigation and adaptation. Last, only a human rights-based approach can adequately capture the scale of injustices committed in the climate crisis and begin to identify and hold those responsible [14] As established in international law, human rights act as an effective way to “counteract the fundamental power imbalances that lead to injustice” [15]. Through each state’s presumed responsibility to preserve, protect, and implement each human beings’ fundamental rights, human rights have the capacity to protect citizens beyond domestic laws. Human rights therefore have the potential and the capacity to protect those in a way that other legal mechanisms do not, and “by placing a thumb on the scale in favor of more vulnerable actors, human rights correct for the ways that power can distort law.” [16]. While human rights law is not directly engaged in preventing or mitigating climate change, it nevertheless has the potential to act as a key element of climate change justice [17].

 

      Today, there is a very widely accepted understanding that “environmental degradation can and does interfere with the enjoyment of a wide range of human rights.”18 However, on the global plane, there is currently no treaty that explicitly states the human right to a clean and healthy environment. Perhaps, in the most over-arching sense, this is the greatest challenge in applying international human rights law to the issue of climate change. However, there are many additional direct and indirect factors of climate change that affect the lives and well-being of humans, thus bringing many challenges to the implementation of international human rights law within the context of climate change. Through a broad exploration into some of the greatest challenges that climate change poses to IHRL, this paper will examine the valuable role that international human rights law can still play in confronting the world’s climate crisis. 

 

Part I: Territorial and Trans-National Challenges

 

      One of the most significant challenges in addressing climate change, particularly in applying international human rights law, comes in the issue of territory and trans-national responsibility. Carbon dioxide levels, no matter where they originate, are generally understood to disperse beyond the regions in which they occur. Pollution knows no borders, and often times the actions of one nation will considerably affect the citizens of many others. Further, the effects of pollution and the exploitation of natural resources most often do not have any less effect on those living beyond the border from where they originated.19 In the 1980’s and 1990’s, for example, the acid rain dilemma in Europe created a major international dimension to pollution control. As a result of wind currents and the dispersion patterns of Sulphur dioxide, many countries faced the effects of acid rain generated by another country’s pollution.20 Particularly in eastern Europe, developing countries like Poland and the Czech Republic saw extreme occurrences of acid rain as a result of emissions drifting from wealthier, more western-located nations like France and the United Kingdom.21 Certainly, one of the most significant factors of human rights and climate change, seen in the research of transboundary harm, is that poor and developing countries will bear the greatest burden of a changing climate (see figure 1). More, there is a growing argument that these developing nations should not be held responsible for the climate impacts of historically higher-emitting developed nations, which produces another added layer to trans-national human rights.22

 

Figure 1: Per capita emissions vs. vulnerability to climate change23

 

Geographically, the multi-faceted difficulties of a states’ borders and the challenge in identifying responsible abusers, in combination with the ongoing and large-scale effects of rising greenhouse gasses within the atmosphere, presents a growing issue that is not consistent with evolving international environmental law nor international human rights law, in particular.24 Generally, human rights have largely been the responsibility of individual nation-states, with the principal task of addressing these rights through both negative and positive enforcement, yet primarily within their territory or jurisdiction.25 Where human rights law currently stands, the IHRL obligation of states to protect any foreign territory that may be affected by their actions, environmentally or otherwise, is extremely vague. Principally, environmental human rights jurisprudence has developed in regard to national harm, but has yet to expand to any kind of transboundary pollution or global damage.26 While many domestic policies have begun to strike a balance between economic development and environmental protection, this has proven to be incredibly difficult to practice in the case of transboundary harm. Given that states have sometimes widely differing policies in terms of preference given to economic development and the environmental destruction it can create, insofar a common ground for an equal balance between development and environmental policy has not been settled on internationally.27 More, it is important to recall that under most international law norms, only governments can bring claims against another state.28 If an individual has been affected by another state’s transboundary pollution, and human rights law is not applicable to the harmful environmental activities of one state affecting citizens in another, then the citizens’ rights to be safeguarded from transboundary harm can only be claimed by their own state acting on their behalf.29

 

      However, as international environmental treaties continue to develop, the recognition that the many facets of our shared global ecosystem do not belong to just one group of people, one nation, or one corporation, has advanced in terms of international human rights law. Traditionally, it is not exceptional for international human rights laws to be applied trans-nationally based on a state’s actions within their jurisdiction, but so far this has mostly been seen in cases of military occupation or cross-border activities.30 This is exemplified in such cases as Al Skeini, where the European court held that ‘[t]he Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.’31 The growing understanding in cases like Al-Skeini is that where a state is employing some type of control over another territory or citizens abroad, they are therefore obliged to follow international human rights law. Furthermore, decisions like the one adopted in the Al Skeini case show that international human rights courts and mechanisms are moving towards a broader interpretation of states’ rights in a transboundary context. While there has yet to be a similar decision reached on a case concerning environmental human rights, in this sense, one could undoubtedly argue that victims of pollution and environmental degradation are subject to the ‘jurisdiction’ of a foreign polluting state.32 On this basis, in the appreciation of international human rights treaties being ‘living instruments,’ it can be inferred that a state has the responsibility to protect foreign human rights against their own acts of environmental degradation. This inference comes not on the basis of territory, but because of the dispersion patterns of pollution and the current technology available to track it. Effectively, those abroad, it can be argued, are technically subject to a foreign states’ jurisdiction and control as a result of pollution and emissions.33 This is consistent with human rights law, principally through the ICESR, ADHR, and in limited cases, the ECHR.34 Further, while not grounded in human rights law, this concept is reinforced in the promotion of procedural rights through such conventions as the 1998 UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, or the Aarhus Convention and the 1991 UNECE Convention on Environmental Impact Assessment in a Transboundary Context, or the Espoo Convention.35 

 

      Moreover, the growing feature derived from international human rights law of non-discriminatory treatment has led to a greater availability for victims of transnational environmental degradation to gain access to justice and appropriate remedies at the national level.36 In confronting the issue of trans-boundary pollution and negative effects to human rights, these non-discriminatory measures allow victims to gain access to information, legal procedures, and the decision-making process, empowering them to participate in the enforcement structure that makes its way to the national level.37 A clear example of this non-discriminatory framework in practice can be seen by the creation of the Aarhus Convention and the Espoo Convention. While not a treaty of international human rights, the Aarhus Convention is now firmly established within the jurisprudence of the ECHR. It is this measure of non-discriminatory treatment and national resources in combination with existing international human rights laws that make it easier in clarifying transboundary environmental procedures. Effectively, the non-discrimination procedure requires states to consider extra-territorial claims and domestic claims equally.38 While little human rights jurisprudence exists on trans-boundary environmental harm, human rights law still requires basic actions of states to examine the effects of climate change and their range of choice in responding to environmental harms challenging human rights.39 If every state developed an adequate environmental policy framework that was consistent with international human rights standards and the rights to life, health, clean water and food, outlined in various international and regional human rights treaties, the need for trans-boundary environmental jurisprudence could be greatly diminished. Yet, as an extra precaution beyond domestic policy, international human rights law must continue to follow the direction that cases like Al Skeini indicate, that a state’s jurisprudence and control over a territory can take many forms.  

 

 

PART II: Multinational Corporation Challenges

 

      As it currently stands, no formal mechanism exists at the international level to hold corporations responsible for human rights violations. One can see that the lack of accountability in corporate conduct presents problems not just in the realm of climate justice, but also to international human rights as a whole. As a result of the inconsistent and unproductive measures that are in place to hold corporations accountable, companies have become some of the greatest polluters and violators of human rights. In 2010, the BP Deepwater Horizon oil spill not only caused horrific, irreversible damage to marine and coastal biodiversity, but the negligence of BP’s business practices also triggered a handful of human rights implications. The spill exposed thousands of coastal residents and cleanup workers to the health risks associated with oil fumes and dispersants40, and had an enormous negative impact on the livelihood of those that depended upon the Gulf of Mexico economically. Not until 2011 did the UN, through the office of the High Commissioner on Human Rights, finally implement the UN Guiding Principles for Business and Human Rights. Under the framework of “Protect, Respect, and Remedy,” these guiding principles highlight that corporations have a responsibility to honour human rights, and that states have an obligation to monitor and remedy any human rights abuses that may result from corporate activity.41 As stated by John Ruggie, then Secretary-General on human rights and transnational corporations and other business enterprises, ‘the State duty to protect against non-State abuses is part of the very foundation of the international human rights regime. The duty requires States to play a key role in regulating and adjudicating abuse by business enterprises, or risk breaching their international obligations.’42 However, while these guiding principles provide solid recommendations for both states and corporations, they remain only as recommendations, and are non-binding in nature. Indeed, international human rights law principally ‘concerns the responsibility of states towards individuals within their own territory or under their effective control’.43 Therefore, the challenge of holding corporations legally responsible for human rights abuses in the context of climate change, without a binding instrument, stays. Since the drafting of the UN Guiding Principles on Business and Human Rights, corporate implementation has been largely irregular and incomplete, in part due to the vague language of the UN document.44 Additionally, the principles do not candidly mention the interrelation of human rights and climate change.45

 

      Yet despite the difficulties in holding corporations responsible for their actions across many different legal mechanisms, even beyond human rights, broader interpretations of international human rights law have led to include joint state and corporate misconduct in the treatment of the environment and subsequent human rights abuses. Although human rights treaties still do not legally bind corporations and private parties to follow IHRL, they are constructed to require states to take adequate measures to protect these human rights from the interference of private actors.46 As a result, the jurisprudence in recent years of holding corporations responsible for their actions or complicity in abetting state violations of human rights has made significant headway.47 While states still bear the responsibility of legally implementing human rights, “major corporations [that] act jointly with governments to exploit climate-driven shortages of food, water, land, or basic health care – or so suppress the freedom of speech of environmental advocates protesting those shortages – those corporations can be identified as parties with joint responsibility for the resulting human rights violations.”48 This growing ability to implicate corporations in human rights violations and the environment is especially evident in such cases as the Ogoni Case before the African Commission on Human and People’s Rights. In March 1996, a complaint was filed by two non-governmental organisations, the Centre for Economic and Social Rights (CESR) and the Social and Economic Rights Action Centre (SERAC).49 The NGOs alleged that both the government of Nigeria and the Nigerian National Petroleum Company (NNPC) in partnership with Shell Petroleum Development Corporation had committed multiple human rights violations. In particular, the complaint asserted that NNPC and Shell’s joint corporate activity had caused the widespread contamination of soil, air and water, the destruction of homes, the burning of crops and killing of farm animals, and the general suffering of the Ogoni people in regard to Shell and NNPC’s violations of their rights to health, a healthy environment, housing, and food.50 The complaint further claimed that the Nigerian government had been a knowing actor in facilitating these human rights violations, had sought to silence those speaking out against the violations through attacks carried out by Nigeria security forces, and finally, had failed to investigate the attacks themselves. In October of 1996 the complaint was declared admissible, and after a long period in which a settlement was negotiated, in 2001 a decision was reached in favour of the Ogoni people.51 

 

      The Ogoniland case was a landmark decision in establishing the shared responsibility between states and private actors in respecting IHRL and climate justice. Moreover, a favourable decision was reached for the Ogoni people largely because of the actuality of a human rights instrument (the African Charter on Human and People’s Rights, or ACHPR) and its prevailing IHRL framework. In particular, the allegations brought forth by SERAC and CESR included abuses of Articles 2 (non-discriminatory enjoyment of rights), 4 (right to life), 14 (right to property), 16 (right to health), 18 (family rights), 21 (right of peoples to freely dispose of their wealth and natural resources) and 24 (right of peoples to a satisfactory environment).52 In this case, the existing language of the ACHPR, particularly Article 24 which ensures the right to a satisfactory environment, played an enormous role in ensuring the economic, social, cultural, and collective rights of the Ogoni people.53 As an additional advantage, the role that NGOs can play in the wider acceptance of IHRL in the face of environmental degradation is clearly seen through SERAC and CESR’s participation in the case.54 This case, along with others that have followed, particularly under the ECtHR55, have proved that it is possible to utilise the existing international human rights framework to reach favourable decisions that uphold substantive as well as economic, social, and cultural rights in the face of climate injustice and exploitation. Ultimately, the OHCHR and the collective effort brought forth by various nations will need to take further measures to secure corporate responsibility in relation to human rights. While the UN Guiding Principles on Business and Human Rights have laid a basic foundation for corporations to consider the human rights implications of their business practices, these principles must be built upon to legally require corporations to commit to certain actions that honour international human rights, particularly in connection to development and subsequent risks to the environment. However, as seen from the Ogoni case study, there does exist reasonable language within certain human rights instruments in requiring states to monitor corporate activity, with a growing number of cases reaching favourable decisions on the side of upholding human and environmental rights.  

 

 

PART III: Regulation and Implementation Challenges: The Normative Gap

 

      As explored in the introduction of this paper, some of the greatest challenges in the regulation and implementation of human rights in the face of climate change come from the vague nature of international agreements. While some treaties, including the United Nations Convention on the Rights of the Child (UNCRC), contain clauses that recognise such rights as “the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution” (Article 24) and “The development of respect for the natural environment,” (Article 29)56 there exists no explicit human right to a clean and healthy environment in either its autonomous or derivative form.57 More, there are certain human rights treaties - while otherwise holding great standing in international human rights, such as the Universal Declaration of Human Rights (UDHR) - that entirely leave out the topic of environment altogether. Due mostly to the timing of the creation of the UDHR, environmental rights were seen more as the right of a “people” to exercise control over their natural resources, born mostly out of a post-colonial, nationalistic mindset.58 Yet even in cases where there is some mention made of the importance of the environment in a human rights context, such declarations do not automatically guarantee the international human right to a healthy environment. There are certainly many ways in which the treaty system of human rights law has a limited growth capacity, despite the concept of the “living instrument.” Largely owed to a lack of explicit language within human rights treaties, state obligations to environmental protection can sometimes only be clearly defined within international law or environmental law.59 In this sense, many experts believe this is “the very definition of the normative gap” between human rights law and the environment.60

 

      In the absence of clear instructive language within human rights treaties that requires states to provide a clean and healthy environment for their citizens, the tendency is that states place much more importance on economic development than environmental policies that protect and preserve human rights. Partially due to the priority and complexity of international development and economic activity, human rights law was not necessarily created with the issues of climate change in mind, nor is it always the best avenue to address it.61 Particularly among the world’s largest industrial powers, the support of a human right to a healthy environment is not substantial because of the potential negative effects it could have on economic development.62 These states often argue that climate change mitigation exists in opposition to development goals, which can be seen in the interrelatedness of economic development and GHG emissions.63 This global preference to favour economic development over climate policy has also been reinforced by climate agreements themselves, with the Kyoto Protocol incorporating the principle of ‘common but differentiated responsibilities’, which allows the convention’s principal obligations to be subject to ‘specific national and regional development priorities, objectives and circumstances.’64 Thus, even in internationally recognised environmental treaties, economic development often takes precedent because of its immediacy. It has therefore been suggested that because of the allowance of mass economic development within environmental treaties, the safeguarding of human rights has, as a result, become more compromised.65 Moreover, the UN Millennium Development Goals made virtually no mention of human rights in the face of global development.66 

 

      Beyond the conflict of development priorities and the actual language of human rights treaties themselves, the normative gap in implementing human rights as they relate to climate change is greatly widened by the difficultly of linking the specific actions of one country to a particular effect of global warming that impacts human rights.67 Moreover, as a result of the wide-ranging and complicated effects of environmental degradation, it is difficult to attribute specific actions of particular countries to climate change as a whole.68 Human rights accountability requires not only a detection of the abuse of recognised rights, but also the identification of the responsible abuser and a feasible remedy for the abuse itself. 69 This becomes particularly complicated when countries conduct joint business or when a corporate influencer or partner is involved. Third, the “adverse effects of global warming are often projections about future impacts, whereas human rights violations are normally established after the harm has occurred.”70 

 

      Nevertheless, in response to the difficulties of implementation and accountability in human rights related to the environment, following the controversial statement in the first principle of the 1992 Rio earth summit regarding a human entitlement rather than right to the environment,71 there has been a growing institutionalisation of environment-rights linkages across human rights systems. According to a 2009 expert meeting organised by UNEP and OHCHR, the experts noted “the growing trend in international and regional courts and tribunals to consider human rights issues when adjudicating on environmental disputes.”72 As a result, a slow proliferation of rights-based approaches to environmental protection has occurred, which can be seen in formal UN statements as well as human rights jurisprudence.73 This jurisprudence, with the input of both regional mechanisms and international treaties, has established that environmental degradation may interfere with many rights, including rights to “life, health, privacy, and property, as well as components of the right to an adequate standard of living, such as water and food.”74 (See also Figure 2 for a more comprehensive list of human rights vulnerable to climate change.)

      

Figure 2: Submission by the Maldives to the OHCHR in September 200875, as part of OHCHR’s consultative study on the relationship between climate change and human rights.

 

Cases such as Lopez Ostra v Spain and Guerra v Italy, for example, were monumental in establishing jurisprudence within the ECHR in regards to environmental degradation and climate-related issues.76 While the UN OHCHR recognises that some international human rights treaties, such as the UDHR, lack an environmental foundation, it also states that “In no other area is it so clear that the actions of nations, communities, businesses and individuals can so dramatically affect the rights of others - because damaging the environment can damage the rights of people, near and far, to a secure and healthy life.”77 More, in the OHCHR’s report linking human rights and climate change, it concludes that the main judicial bodies in charge of overseeing the fulfilment of human rights within climate change have recognised “the intrinsic link between the environment and the realisation of a range of human rights.”78 This movement towards an evolving legal understanding of environmental degradation and its violations to human rights can also be seen in the creation of the position of UN Special Rapporteur on human rights and the environment, previously filled by John H. Knox. Appointed in 2012, Knox helped to establish a mandate on human rights and the environment, addressing the scope of international and domestic laws and judicial decisions on the relationship between human rights and the environment.79 Further, in the ways that many international human rights instruments have left room for a widening normative gap between human rights and climate change, regional instruments have made steps to close this gap. According to Knox, “Most of the jurisprudence on the connections between the environment and human rights has been developed by regional tribunals.”80 These efforts by regional mechanisms can even go as far as declaring the right to a healthy environment, as seen in Article 24 of the 1981 African Charter on Human and People’s Rights, which states that “All people shall have the right to a general satisfactory environment favourable to their development”.81 Additionally, the 2004 Arab Charter on Human Rights makes mention of the right to a healthy environment through the linkage to adequate living standards, and the Association of Southeast Asian Nations (ASEAN) adopted a comparable declaration in 2012.82 

 

      Formally, the OHCHR has declined to categorise climate change as a violation of human rights law itself.83 However, a legal basis for state responsibility in the protection of human rights, as a result of climate change, still exists. The report states, “Irrespective of whether or not climate change effects can be construed as human rights violations, human rights obligations provide important protection to the individuals whose rights are affected by climate change.”84 Hence, the requirement of states to protect human rights against climate change and environmental degradation still has its roots in the basic notion of a state’s obligation to respect, protect, and fulfil. This precedent can be seen even in the event of climate-related issues beyond a state’s control. In the case of Budayeva v. Russia,85 for example, the European Court of Human Rights found that Russia had not employed the adequate infrastructure or policies to protect the citizens of an area susceptible to deadly mudslides.86 It is decisions like Budayeva that have begun to establish that regardless of a state’s responsibility in climate-related issues, there nevertheless remains a duty to address these effects upon human rights. Furthermore, the acknowledgement of procedural rights within the OHCHR report and international and regional mechanisms in relation to climate change contributes another layer of state responsibility. 87 In the requirement of ratifying states to provide the full enjoyment of procedural rights such as access to administrative and judicial resources, access to information, and participation in decision-making, national-level and international-level human rights are more likely to be protected.88 Beyond binding human rights law, such agreements as the Responsibility to Protect can add yet another layer to protecting human rights against the effects of climate change. While mostly concerned with international humanitarian law, R2P does contain language requiring “That sovereign states have a responsibility to protect their own citizens from avoidable catastrophe, but when they are unwilling or unable to do so, that the responsibility must be borne by the broader community of states”.89 Under these terms, measures to protect human rights from climate change could potentially meet the qualifications of R2P to become internationally recognised norms. While R2P cannot be solely relied upon, its evolving norms allow for violations against certain groups to be adequately applied in issues of climate security. 90

 

Lastly, while economic development can occasionally provide a strong, legally-justified opposition to climate policy and human rights, the legal basis for state responsibility to uphold human rights remains. Within the Declaration on the Right to Development itself, it is required that states “cooperate to eliminate obstacles to development, and do so with a view to eradicating social injustices,”91 with climate change being a chief example. It can be inferred that climate change, in all its effects both large and small, greatly compromises the human right to development. Particularly in relation to Article 1.1 and 1.2 in the Declaration on the Right to Development, in which “every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised” and “the full realisation of the right of peoples to self-determination,”92 a stable climate has become increasingly necessary for the fulfillment of the right to development.93 Further, Article 3.1 and 4.1 in the Declaration add additional state responsibility in fulfilling human rights as a result of climate change, declaring “States have the primary responsibility for the creation of national and international conditions favourable to the realisation of the right to development,” as well as “the duty to take steps, individually and collectively, to formulate international development policies with a view to facilitating the full realisation of the right to development.”94 The human rights implications of climate change can therefore be seen as a central component of the Right to Development, a treaty that must be legally considered in the expansion of global economic growth. 

 

 

PART IV: The Way Forward

 

      Conclusively, it cannot be denied that a relationship between human rights and climate change exists. Despite legal objections from large polluters, such as the United Kingdom’s submission to the OHCHR stating that “climate change may impact on the full enjoyment of human rights at the national level”95, the OHCHR has responded with a deduction stating:

“Climate change-related impacts.., have a range of implications

for the effective enjoyment of human rights. The effects on human

rights can be of a direct nature, such as the threat extreme weather

events may pose to the right to life, but will often have an indirect

and gradual effect on human rights, such as increasing stress on

health systems and vulnerabilities related to climate change-induced

migration.”96

 

Nor can it be denied that the right to a clean and healthy environment belongs to the economic, social, and cultural rights of all living persons.97 Indeed, many nations have even begun to clearly articulate this right constitutionally.98 However, climate change remains a global issue, with consistent global implications that are not equal or fair, and insofar, human rights mechanisms have faced many challenges in addressing the threat of climate change to basic human rights. Many believe that further integration between the two is essential, for environmental considerations have remained “peripheral to the UN’s human rights activity and its work for peace, just as peace and human rights have been the weak links in the UN’s environmental efforts.”99 Many have also suggested that an advanced “greening” of existing human rights treaties must occur.100 In agreement with the concept of treaties as “living instruments,” this greening must be complemented by a broader interpretation and stronger implementation of human rights law in combination with procedural rights and the input of international environmental treaties.  It will be imperative to spell out explicitly the ways in which the expectation of IHRL can be met “in international, national, subnational and corporate climate change strategies.”101 There is no shortage of statements on the human rights obligations applicable to the environment and climate change, but these statements have yet to come together to form a consistent set of international norms. 102 Yet while it is clear that additional progress is needed in determining the clarity and implementation of human rights as it relates to climate change and a healthy environment, what this paper has argued is that there exists enough framework in IHRL mechanisms to develop adequate jurisprudence in climate change and human rights norms. Particularly when it comes to such fundamental rights as the right to life, each section of this paper reiterates in its arguments the obligation of states to positively protect these rights.103 Despite the challenges of clarifying, implementing, and enforcing international human rights, they continue to stand as the marker of a just and reasonable society. This is why they continue to maintain their transformative power.104 The exercise of human rights creates accountability within the global climate crisis, just as a stable climate supports a multitude of human rights.105 A healthy environment is intrinsic to a host of recognised human rights, such as the rights to food, water, health, life, development, and social and cultural participation. In combination, human rights are essential for the allowance of procedural and participatory rights in the face of climate injustice.106 Thus, “when the environment is protected, human rights are more likely to flourish; when human rights are protected, the environment is more likely to be sustained.”107 Ultimately, the potential power of IHRL in environmental and climate policymaking is strong enough for there to be more of an intrinsic link between the two, and eventually a choice will have to be made as to what degree the linkage will be. Yet if Mary Robinson is correct, in the coming years, neither will be able to exist without the other. 

 

 

WORKS CITED

 

Alan Boyle. “Human Rights and the Environment: Where Next?” The European Journal of International Law 23, no. 3 (2012): 613–42.

Barisere Rachel Konne. “Inadequate Monitoring and Enforcement in the Nigerian Oil Industry: The Case of Shell and Ogoniland.” Cornell Int’l Law Journal 47 (2014): 181–204.

Basil Ugochukwu. “Climate Change and Human Rights: How? Where? When?” CIGI Papers, no. 82 (2015).

Björn Fasterling and Geert Demuijnck. “Human Rights in the Void? Due Diligence in the UN Guiding Principles on Business and Human Rights.” Journal of Business Ethics 116, no. 4 (n.d.): 799–814.

Cass R. Sunstein. “Of Montreal and Kyoto: A Tale of Two Protocols.” Harvard Environmental Law Review 31, no. 1 (2007): 1–66.

Conca, Ken. An Unfinished Foundation: The United Nations and Global Environmental Governance. Oxford University Press, 2015.

David M. Newbery. “Acid Rain.” Journal of Economic Policy, no. 11 (1990).

Dunoff, Jeffery L.; Ratner, Steven R., Wippman, David. International Law: Norms, Actors, Process: A Problem-Oriented Approach. New York: Aspen, 2010.

ECtHR. “Al-Skeini v. United Kingdon,” 2011. paragraph 136.

———. “Budayeva v Russia,” 2008. https://hudoc.echr.coe.int/eng#{"fulltext":["budayeva v russia"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-85436"]}.

Eghosa O. Ekhator. “Improving Access to Environmental Justice under the African Charter on Human and People’s Rights: The Roles of NGOs in Nigeria.” African Journal of International and Comparative Law 22 (2014): 63–79.

Ellen Dorsey, Mayra Gómez, Bret Thiele, and Paul Nelson. “Falling Short of Our Goals: Transforming the Millennium Development Goals into Millennium Development Rights.” Netherlands Quarterly of Human Rights 28, no. 4 (2010): 516–22.

Estrin, David, and Kennedy, Helena. Achieving Justice and Human Rights in an Era of Climate Disruption. Climate Change Justice and Human Rights Task Force Report. London, England: International Bar Association, n.d. file:///Users/bsands91/Downloads/Climate%20Change%20Justice%20and%20Human%20Rights%20Report%20(2).pdf.

F. Coomans, M.T. Kamminga. Extraterritorial Application of Human Rights Treaties. Antwerp, Belgium: Intersentia, 2004.

Ilias Bantekas and Lutz Oette. International Human Rights Law and Practice. New York: Cambridge University Press, 2013.

Jan Hancock. Environmental Human Rights: Power, Ethics, and Law. Aldershot, Hants, England: Ashgate Publishing Limited, 2003.

Jane McAdam. Climate Change, Forced Migration, and International Law. Oxford University Press, 2012.

John H. Knox. “Climate Change and Human Rights Law.” Virginia Journal of International Law 50 (2009): 163–218.

———. “Linking Human Rights and Climate Change at the United Nations.” Harvard Environmental Law Review 33 (2009): 477–98.

———. “Report of the Independent Expert on the Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy, and Sustainable Environment.” U.N. Doc. United Nations, February 3, 2015.

Karen Morrow. “After the Honeymoon: The Uneasy Marriage of Human Rights and the Environment Under the European Convention on Human Rights and in UK Law Under the Human Rights Act 1998.” Justice Environnementale et Droits Humains: Comprendre Les Tensions et Explorere Les Possibilités 43 (2013). https://doi.org/10.7202/1021217ar.

Karrie Wolfe. “Greening the International Human Rights Sphere - Environmental Rights and the Draft Declaration of Principles on Human Rights and the Environment.” Appeal Law Review: Rev. Current L. & L. Reform 45 9 (2003): 45–58.

Kishan Khoday, Human Development Report Office. “Climate Change and the Right to Development: Glacial Melting in the Himalayas and the Future of Development in the Tibetan Plateau,” 2008 2007.

Margaux J. Hall; David C. Weiss. “Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law.” Yale Journal of International Law 37 (2012): 309–66.

McCoy, Margaret A.; Salerno, Judith A. “Assessing the Effects of the Gulf of Mexico Oil Spill on Human Health: A Summary of the June 2010 Workshop.” National Academies Press, 2010.

Motoko Aizawa. “Staying Human-Centric at the Intersection of Climate Change and Human Rights.” Journal of Energy & Natural Resources Law 34, no. 1 (2016): 86–94.

OAU. “African (Banjul) Charter on Human and People’s Rights.” OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), June 27, 1981.

Organisation for Environmental Co-operation and Development. OECD Environmental Outlook to 2050: The Consequences of Inaction. Paris, France: OECD Publishing, 2012.

Oxfam Briefing Paper. “Climate Wrongs and Human Rights,” September 2008.

Rebecca Bratspies. “Claimed Not Granted: Finding a Human Right to a Healthy Environment.” Transnational Law & Contemporary Problems 26 (2017): 263–80.

Ronald B. Mitchell and the IEA Database Project. “International Environmental Agreements (IEA) Database Project.” Academic Database, n.d. https://iea.uoregon.edu/base-agreement-list.

Samson, J., Berteaux, D., B.J. and Humphries, M. M. “Geographic Disparities and Moral Hazards in the Predicted Impacts of Climate Change on Human Populations.” Global Ecology and Biogeography 20 (2011): 532–44. https://doi.org/10.1111/j.1466-8238.2010.00632.x.

Sarah Joseph et. al. The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary. Third Edition. 24. Oxford University Press, 2000.

Siobhán McInerney-Lankford, Mac Darrow and Lavanya Rajamani. “Human Rights and Climate Change, A Review of the International Legal Dimensions.” The World Bank, 2011.

Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) V Nigeria, No. 155/96 (ACHPR October 27, 2001).

Stephen L. Kass. “Integrated Justice: Human Rights, Climate Change, and Poverty.” 18 Transnat’l L & Comtemp. Probs. 115, 138, 2009.

Tord Kjellstrom & Anthony J. McMichael. “Climate Change Threats to Population Health and Well-Being: The Imperative of Protective Solutions That Will Las.” Global Health Action 6, no. 1 (2013). https://doi.org/10.3402/gha.v6i0.20816.

UN Economic Commission for Eurore (UNECE). “Convention on Environmental Impact Assessment in a Transboundary Context,” 1991. https://www.unece.org/fileadmin/DAM/env/eia/documents/legaltexts/Espoo_Convention_authentic_ENG.pdf.

UN General Assembly. “Declaration on the Right to Development.” United Nations, 1986. http://www.un.org/documents/ga/res/41/a41r128.htm.

UN General Assembly, Human Rights Council. “Report of Independent Expert,” 2013 2012.

UN OHCHR. “Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment.” United Nations, 2014.

———. “Special Rapporteur on Human Rights and the Environment.” United Nations Human Rights Office of the High Commissioner, n.d. https://www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/SRenvironmentIndex.aspx.

UNFCCC. “Kyoto Protocol (Article 10).” United Nations, 1997. https://unfccc.int/resource/docs/convkp/kpeng.html.

United Nations. “Declaration on the Human Environment.” Report of the United Nations Conference on the Human Environment, 1973. UN Doc. A/CONF.48/14/Rev.1.

———. “Submission of the Maldives to OHCHR Report, Assessment at National Level of the Impact of Climate Change (Experienced or Anticipated) on Human Lives and on Population Most Affected and Vulnerable,” 2008. http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Maldives_Submission.pdf.

———. “Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change.” OHCHR, November 27, 2015.

———. “Submission of U.K. to OHCHR Report, Assessment at National Level of the Impact of Climate Change (Experienced or Anticipated) on Human Lives and on Population Most Affected and Vulnerable,” 2008. http://www2.ohchr.org/English/issues/climatechange/docs/submissions/ uk.pdf.

United Nations conference on Environment and Development. “The Rio Declaration on Environment and Development,” 1992.

United Nations Environment Programme. “The New Future of Human Rights and Environment: Moving the Global Agenda Forward - High Level Experts Meeting,” n.d. www.unep.org/environmentalgovernance/Events/HumanRightsandEnvironment/HighLevelExpertsMeeting/tabid/2661/language/en-US/Default.aspx.

United Nations OHCHR. “Convention on the Rights of the Child (UNCRC),” 1989. http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf.

———. “Frequently Asked Questions on the Right to Development.” United Nations, 2016. http://www.ohchr.org/Documents/Publications/FSheet37_RtD_EN.pdf.

———. “Guiding Principles on Business and Human Rights.” United Nations, 2011.

———. “Report of the UNHCHR on the Relationship between Climate Change and Human Rights.” United Nations, 2009. https://documents-dds-ny.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement.

———. “Universal Declaration of Human Rights - In Six Cross-Cutting Themes,” n.d. http://www.ohchr.org/EN/UDHR/Pages/CrossCuttingThemes.aspx.

Weston, Burns and Bollier, David. Green Governance: Ecological Survival, Human Rights and the Law of the Commons. Cambridge University Press, 2014.

 

 

1 Tord Kjellstrom & Anthony J. McMichael, “Climate Change Threats to Population Health and Well-Being: The Imperative of Protective Solutions That Will Las.”

2 Ronald B. Mitchell and the IEA Database Project, “International Environmental Agreements (IEA) Database Project.”

3 Cass R. Sunstein, “Of Montreal and Kyoto: A Tale of Two Protocols.”

4 Estrin, David and Kennedy, Helena, Achieving Justice and Human Rights in an Era of Climate Disruption.

5 Rebecca Bratspies, “Claimed Not Granted: Finding a Human Right to a Healthy Environment.”

6 Jan Hancock, Environmental Human Rights: Power, Ethics, and Law.

7 United Nations, “Declaration on the Human Environment.”

8 Motoko Aizawa, “Staying Human-Centric at the Intersection of Climate Change and Human Rights.”

9 United Nations, “OHCR 2015 Understanding Human Rights and Climate Change.”

10 John H. Knox, “Report of the Independent Expert on the Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy, and Sustainable Environment.”

11 Oxfam Briefing Paper, “Climate Wrongs and Human Rights.”

12 UN OHCHR, “Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment.”

13 Jane McAdam, Climate Change, Forced Migration, and International Law.

14 Oxfam Briefing Paper, “Climate Wrongs and Human Rights.”

15 Rebecca Bratspies, “Claimed Not Granted: Finding a Human Right to a Healthy Environment.”

16 Ibid.

17 Estrin, David and Kennedy, Helena, Achieving Justice and Human Rights in an Era of Climate Disruption.

18 John H. Knox, “Report of the Independent Expert on the Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy, and Sustainable Environment.”

19 Alan Boyle, “Human Rights and the Environment: Where Next?”

20 David M. Newbery, “Acid Rain.”

21 Ibid.

22 Estrin, David and Kennedy, Helena, Achieving Justice and Human Rights in an Era of Climate Disruption.

23 Samson, J., Berteaux, D., B.J. and Humphries, M. M., “Geographic Disparities and Moral Hazards in the Predicted Impacts of Climate Change on Human Populations.”

24 Alan Boyle, “Human Rights and the Environment: Where Next?”

25 Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice.

26 John H. Knox, “Climate Change and Human Rights Law.”

27 Organisation for Environmental Co-operation and Development, OECD Environmental Outlook to 2050: The Consequences of Inaction.

28 Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice.

29 Alan Boyle, “Human Rights and the Environment: Where Next?”

30 F. Coomans, M.T. Kamminga, Extraterritorial Application of Human Rights Treaties.

31 ECtHR, “Al-Skeini v. United Kingdon.”

32 Alan Boyle, “Human Rights and the Environment: Where Next?”

33 Ibid.

34 F. Coomans, M.T. Kamminga, Extraterritorial Application of Human Rights Treaties.

35 UN Economic Commission for Eurore (UNECE), “Convention on Environmental Impact Assessment in a Transboundary Context.”

36 Alan Boyle, “Human Rights and the Environment: Where Next?”

37 Ibid.

38 Alan Boyle, “Human Rights and the Environment: Where Next?”

39 John H. Knox, “Climate Change and Human Rights Law.”

40 McCoy, Margaret A.; Salerno, Judith A., “Assessing the Effects of the Gulf of Mexico Oil Spill on Human Health: A Summary of the June 2010 Workshop.”

41 United Nations OHCHR, “Guiding Principles on Business and Human Rights.”

42 Ibid.

43 Siobhán McInerney-Lankford, Mac Darrow and Lavanya Rajamani, “Human Rights and Climate Change, A Review of the International Legal Dimensions.”

44 Björn Fasterling and Geert Demuijnck, “Human Rights in the Void? Due Diligence in the UN Guiding Principles on Business and Human Rights.”

45 Estrin, David and Kennedy, Helena, Achieving Justice and Human Rights in an Era of Climate Disruption.

46 Sarah Joseph et. al., The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary.

47 Stephen L. Kass, “Integrated Justice: Human Rights, Climate Change, and Poverty.”

48 Ibid.

49 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) V Nigeria.

50 Ibid.

51 Barisere Rachel Konne, “Inadequate Monitoring and Enforcement in the Nigerian Oil Industry: The Case of Shell and Ogoniland.”

52 OAU, “African (Banjul) Charter on Human and People’s Rights.”

53 Barisere Rachel Konne, “Inadequate Monitoring and Enforcement in the Nigerian Oil Industry: The Case of Shell and Ogoniland.”

54 Eghosa O. Ekhator, “Improving Access to Environmental Justice under the African Charter on Human and People’s Rights: The Roles of NGOs in Nigeria.”

55 Karen Morrow, “After the Honeymoon: The Uneasy Marriage of Human Rights and the Environment Under the European Convention on Human Rights and in UK Law Under the Human Rights Act 1998.”

56 United Nations OHCHR, “Convention on the Rights of the Child (UNCRC).”

57 Weston, Burns and Bollier, David, Green Governance: Ecological Survival, Human Rights and the Law of the Commons.

58 Conca, Ken, An Unfinished Foundation: The United Nations and Global Environmental Governance.

59 Alan Boyle, “Human Rights and the Environment: Where Next?”

60 Basil Ugochukwu, “Climate Change and Human Rights: How? Where? When?”

61 Estrin, David and Kennedy, Helena, Achieving Justice and Human Rights in an Era of Climate Disruption.

62 Weston, Burns and Bollier, David, Green Governance: Ecological Survival, Human Rights and the Law of the Commons.

63 Margaux J. Hall; David C. Weiss, “Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law.”

64 UNFCCC, “Kyoto Protocol (Article 10).”

65 Basil Ugochukwu, “Climate Change and Human Rights: How? Where? When?”

66 Ellen Dorsey, Mayra Gómez, Bret Thiele, and Paul Nelson, “Falling Short of Our Goals: Transforming the Millennium Development Goals into Millennium Development Rights.”

67 United Nations OHCHR, “Report of the UNHCHR on the Relationship between Climate Change and Human Rights.”

68 United Nations OHCHR.

69 Stephen L. Kass, “Integrated Justice: Human Rights, Climate Change, and Poverty.”

70 United Nations OHCHR, “Report of the UNHCHR on the Relationship between Climate Change and Human Rights.”

71 United Nations conference on Environment and Development, “The Rio Declaration on Environment and Development.”

72 United Nations Environment Programme, “The New Future of Human Rights and Environment: Moving the Global Agenda Forward - High Level Experts Meeting.”

73 Conca, Ken, An Unfinished Foundation: The United Nations and Global Environmental Governance.

74 John H. Knox, “Linking Human Rights and Climate Change at the United Nations.”

75 United Nations, “Submission of the Maldives to OHCHR Report, Assessment at National Level of the Impact of Climate Change (Experienced or Anticipated) on Human Lives and on Population Most Affected and Vulnerable.”

76 Karen Morrow, “After the Honeymoon: The Uneasy Marriage of Human Rights and the Environment Under the European Convention on Human Rights and in UK Law Under the Human Rights Act 1998.”

77 United Nations OHCHR, “Universal Declaration of Human Rights - In Six Cross-Cutting Themes.”

78 United Nations OHCHR, “Report of the UNHCHR on the Relationship between Climate Change and Human Rights.”

79 UN OHCHR, “Special Rapporteur on Human Rights and the Environment.”

80 John H. Knox, “Linking Human Rights and Climate Change at the United Nations.”

81 OAU, “African (Banjul) Charter on Human and People’s Rights.”

82 Conca, Ken, An Unfinished Foundation: The United Nations and Global Environmental Governance.

83 United Nations OHCHR, “Report of the UNHCHR on the Relationship between Climate Change and Human Rights.”

84 United Nations OHCHR.

85 ECtHR, “Budayeva v Russia.”

86 John H. Knox, “Linking Human Rights and Climate Change at the United Nations.”

87 United Nations OHCHR, “Report of the UNHCHR on the Relationship between Climate Change and Human Rights.”

88 Conca, Ken, An Unfinished Foundation: The United Nations and Global Environmental Governance.

89 Dunoff, Jeffery L.; Ratner, Steven R., Wippman, David, International Law: Norms, Actors, Process: A Problem-Oriented Approach.

90 Conca, Ken, An Unfinished Foundation: The United Nations and Global Environmental Governance.

91 United Nations OHCHR, “Frequently Asked Questions on the Right to Development.”

92 UN General Assembly, “Declaration on the Right to Development.”

93 Kishan Khoday, Human Development Report Office, “Climate Change and the Right to Development: Glacial Melting in the Himalayas and the Future of Development in the Tibetan Plateau.”

94 UN General Assembly, “Declaration on the Right to Development.”

95 “Submission of U.K. to OHCHR Report, Assessment at National Level of the Impact of Climate Change (Experienced or Anticipated) on Human Lives and on Population Most Affected and Vulnerable.”

96 United Nations OHCHR, “Report of the UNHCHR on the Relationship between Climate Change and Human Rights.”

97 Alan Boyle, “Human Rights and the Environment: Where Next?”

98 Conca, Ken, An Unfinished Foundation: The United Nations and Global Environmental Governance.

99 Conca, Ken.

100 Karrie Wolfe, “Greening the International Human Rights Sphere - Environmental Rights and the Draft Declaration of Principles on Human Rights and the Environment.”

101 Basil Ugochukwu, “Climate Change and Human Rights: How? Where? When?”

102 UN General Assembly, Human Rights Council, “Report of Independent Expert.”

103 Jane McAdam, Climate Change, Forced Migration, and International Law.

104 Rebecca Bratspies, “Claimed Not Granted: Finding a Human Right to a Healthy Environment.”

105 Conca, Ken, An Unfinished Foundation: The United Nations and Global Environmental Governance.

106 Conca, Ken.

107 Conca, Ken.

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