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Existing sources of law under public international legal system may offer a comprehensive examination on states’ human rights responsibilities in the context of climate change

Introduction

Recently, it has been reported that increasing numbers of people are dying because of heat waves and that climate change is making the phenomenon ‘longer, hotter, more likely and more dangerous’. Another report bluntly points out that the climate crisis can only create two classes: ‘those who can flee, and those who cannot’. It is true that climate change poses a threat to people’s life. Human-caused climate change affects the human rights of all, though people across the world are disproportionately affected by the climate impacts. Climate change threatens the full enjoyment of a vast range of human rights, including the rights to life, health, food, water, housing, property and self-determination. In particular, the human rights of vulnerable groups and marginalized communities located in low-lying islands are easily affected despite their minimal contributions in the emissions of greenhouse gases. Human rights are also relevant in the context of mitigation and adaptation measures to address climate adverse effects. For example, the right to food may be threatened as a result of utilizing bio-fuel as a clean energy alternative and by shifting farm land into forests, which may cause the reduction of food productivity. The close and complex relationship between human rights and climate change therefore requires states to take into account human rights protection in responding to climate change. Against this background, this article examines states’ human rights responsibilities relating to climate change under the current international legal regime.

Responsibilities under public international law

Existing sources of law under public international legal system may offer a comprehensive examination on states’ human rights responsibilities in the context of climate change. Article 38 of the Statute of the International Court of Justice provides the sources of international law as follows: international conventions, international custom, the general principles of law recognized by civilized nations, and judicial decisions and the teachings of the most highly qualified publicists. However, analyses of these sources reflect the inadequate protection of human rights in relation to climate change. Specifically, international treaties – particularly climate change treaties like the United Nations Framework for Climate Change Convention (UNFCCC), Kyoto Protocol and Paris Agreement – are only legally binding to the extent of state’s consent. States may withdraw from the treaties as they like if the compliance obligation under these treaties harms their interests. In terms of customary international law, relevant environmental rules and principles such as the ‘no harm’ rule – and perhaps the precautionary principle – have arguably achieved the status of international custom.

However, despite climate change and human rights being claimed as common concerns, the norm of human rights related to climate change still needs time to be accepted as jus cogens (‘peremptory norms from which no derogation is permitted’). Furthermore, the protection of human rights affected by the adverse effects of climate change does not yet qualify as erga omnes obligations (‘obligations owed by States to the international community as a whole’). For general principles of law, the principle of good faith and the principle of international cooperation seem to be widely recognized. However, these principles tend to be ‘soft’ and have no concrete, legally binding, obligations. Judicial decisions and publicists’ teachings on human rights and climate change are inconsistent. Therefore, under public international law, states have limited human rights responsibilities to protect their people from the climate catastrophe.

Nevertheless, a human rights approach to climate change has been suggested in the process of international climate negotiations. For example, according to the 2010 Cancun Agreements, ‘[p]arties should, in all climate change related actions, fully respect human rights’. There was also the ‘Geneva Pledge for Human Rights in Climate Action’ in 2015, which stated that the parties ‘will strive to include human rights knowledge…to the UNFCCC and where applicable, climate change expertise in the HRC’ (Human Rights Council). Another example is the Paris Agreement, in which the responsibility of parties to ‘respect, promote and consider their respective obligations on human rights’ was enshrined. With the integration of human rights responsibilities into international climate treaties, contracting states are obliged to respect, protect and fulfill human rights when formulating climate laws and policies.

Responsibilities under international human rights law

As the most important international human rights instrument, the 1948 Universal Declaration of Human Rights (UDHR) mentioned nothing of substantive environmental rights, nor rights related to climate change. This is unsurprising because both environmental concerns and climate change only occurred decades later. However, the UDHR remains a declaration without any legally binding force. It is thus argued that under the current international human rights law regime, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC) are the relevant human rights treaties in responding to climate change not only because of the detailed lists of rights to be protected, but also because of their legally binding character. In particular, the ICESCR is the most relevant since many social-economic rights are easily affected by the adverse consequences of climate change, including the rights to food, health, water, and housing. Furthermore, there are many regional treaties recognizing civil and political rights like rights to life, movement, privacy, and family, whose enjoyment is highly related to the climate crisis. It is argued that since every state in the climate negotiations has signed and ratified at least one human rights treaty, states thus should ensure that their actions match their responsibilities enshrined in the human rights treaties, including actions relating to the mitigation and adaptation to climate change.

The increasingly environmentally orientated caseload of human rights tribunals is also noteworthy. For example, in the absence of a substantive right to the environment in the Convention, the European Court of Human Rights (ECtHR) has specified states’ procedural obligations to safeguard the environment by creatively interpreting the enshrined rights to life and privacy. The ECtHR imposes obligations on states to ‘regulate environmental risks, enforce environmental laws or disclose environmental information’. Human rights are thus granted with an environmental dimension. Accordingly, states have the responsibilities not only to refrain from infringing human rights caused by any environmental crisis, but also to take positive measures to protect human rights that could be potentially violated by private actors’ environmental mistakes. In addressing climate change, states are expected to take human rights seriously and act with due diligence when adopting relevant climate policies.

Responsibilities under international environmental law

The development of environmental rights needs our attention when exploring the human rights responsibilities pertaining to climate change. The continuing debate on whether a right to the  environment should be recognized as a distinct human right is relevant. Principle 1 of the 1972 Stockholm Declaration articulates the importance of ‘an environment of a quality’ for the enjoyment of fundamental human rights. Regional treaties have enshrined notions like ‘the right to a general satisfactory environment’, ‘the right to live in a healthy environment’, ‘the right to a healthy environment’, and ‘the right to a safe, clean and sustainable environment’. Over one-half of the countries in the world have entrenched explicit environmental rights in their national constitutions. While more deliberation is required regarding the specific content of these codified environmental rights, they nevertheless contribute to the general recognition of an independently substantive right to a healthy environment. If this is the case, states are obliged to meet the substantive environmental rights standards towards a satisfactory outcome of responding to climate change, the most challenging environmental issue across the globe.

Meanwhile, states also have procedural duties under multilateral environmental agreements, such as the Aarhus Convention. The Convention highlights procedural rights including the rights to access to information, public participation, and access to justice in environmental matters, which are argued to be a regional custom in Europe. The good process principle and procedural environmental rights enshrined in the Convention are regarded as ‘the most important environmental addition to human rights law’. In the context of climate change, when climate change actions these days have been extended to the public sphere, states have particularly the procedural obligations for climate-related information disclosure, decision making, and remedies guarantee.

Conclusion

In summary, the current international legal regime does not specify explicitly what human rights responsibilities states are subject to as a result of climate change. Nonetheless, the undeniable relationship between human rights and climate change, and the environment, sheds light on the types of responsibilities that states may be subject to. States have substantive obligations to cooperate and not to harm, to regulate state as well as private actions, and to prevent and protect against the adverse impacts of climate change interfering with the enjoyment of basic human rights. Meanwhile, states have procedural obligations to assess climate effects on human rights, to disseminate climate information to the public, to facilitate public participation in climate decision-making process, and to provide access to administrative and judicial remedies when the obligation of good process is not undertaken. Therefore, states have the responsibilities to respect, protect and fulfill human rights, both substantively and procedurally, in the context of climate change.

Evelun Li Wang is a Ph.D Candidate at the Newcastle University Law School.

Article: The Human Rights Responsibilities of States as a Result of Climate Change

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