Abstract
The link between climate change and human rights is being made under the instruments as well as charter and treaty bodies constituting the United Nations (UN) human rights system. Despite the efforts, the right to a safe climate does not exist under the UN human rights system. Based on the vulnerability of human populations and the essential compliance with yardsticks for a new human right, the article argues for the creation of the right to a safe climate and advances two approaches by which it can be achieved under the UN human rights system.
1 Introduction
Climate change is one of the greatest challenges of the 21st century. 1 The global nature of its adverse effects on human populations in every region of the world has featured consistently in the reports of the Intergovernmental Panel on Climate Change (ipcc). 2 Generally, its effects are in areas such as food production, health, water, energy, and infrastructure. 3 Among the most affected by climate change are vulnerable and marginalised populations all over the world. 4 Consequently, reports and writings have stressed the need to consider vulnerability as an urgent basis for climate change interventions. The 2019 Report by the United Nations (UN Special Rapporteur on Human Rights and the Environment (unsr 2019 Report), for instance, notes that the root causes of vulnerability of marginalised communities in climate change context should be addressed. 5 Also, the Report by the United Nations Special Rapporteur on Extreme Poverty and Human Rights (unsr Climate Change & Extreme Poverty Report) confirms that globally people in poverty are more vulnerable to climate related disasters. 6
While it is not disputed that the concept of vulnerability is regarded as the common basis for all human rights, 7 under the United Nations (UN) human rights system, based on charter and treaty foundations, and particularly the activities of monitoring bodies, 8 the notion of vulnerability has not been articulated to found safe climate as a human right. There have been writings, highlighting the links between climate change and human rights and calling for a rights-based approach to guide global climate change policies and action. 9
However, as unspr on extreme poverty and human rights affirms, climate change remains a ‘marginal concern’ despite being on the human rights agenda for about a decade. 10 Rather, what is evident is its cursory link to the realization of human rights in the work of the UN charter and treaty bodies. 11 Evidence of linkage of climate change to human rights is found in the UN Human Rights Council (unhrc) Resolutions 10/4 (2009), 18/22 (2011) and 26/33 (2014). 12 Under the aegis of the United Nations Framework Convention on Climate Change (unfccc), 13 climate change is also linked to human rights in the preamble of the 2015 Paris Agreement which calls on states to take human rights into consideration in climate actions. 14 Although, a laudable development, the cursory linkage of human rights to climate change in the work of treaty bodies has neither a binding nor equally influencing legal weight as does a concrete formulation of a safe climate as a human right under the UN human rights system.
For a new right to emerge, such a proposal argues Alston, must comply with certain criteria. It should: reflect a fundamental social value; be relevant throughout the world value system; recognised as an interpretation of Charter obligations, reflect customary law or a formulation that is declaratory of general principles of law; not be repetitive of existing body of international human rights law; be capable of attaining high degree of international consensus; be compatible with state practice; be precise to give rise to identifiable right and obligation. 15 Whether or not the proposition for a new right to a safe climate may be sustained in the light of these criteria merits a scrutiny. If these requirements are met, how the right to a safe climate may emerge under the UN human rights system also requires clarification. The aim of this paper is to argue vulnerability and essential compliance with Alston yardsticks as the bases for the articulation of the right to a safe climate and then offer options on how it may emerge under the UN human rights system.
However, some caveats are necessary from the onset as there are certain preliminary and relevant issues that may undermine an argument for a new right of this nature. First, the causation of climate change is global but disproportionate for developed and developing nations, and the wealthy and the poor. 16 Therefore, a binding human right to a safe climate may become an unjust burden on the developing nations and poor populations of the world whose subsistent livelihood contributes only marginally to climate change. Second, there is no guarantee that all states will agree to be bound by such a new right. As Mutua contends regarding human rights standard setting, ‘governments and nongovernmental organizations (ngos) are divided over the value of undertaking negotiations on new texts’. 17
In fact, according to other writings, without a wide spread ratification, a new treaty on any specific human right is not useful. 18 Third, it has been argued that a safe climate is a component of the right to healthy environment, 19 or its ‘obvious corollary’, 20 involving a wide range of issues that cut wide across a range of rights which ‘do not fit neatly into any single category of human rights’, 21 thus signalling that the need for a distinct right to a safe climate is unnecessary. Fourth, even if necessary, there are concerns that factors that have challenged the origination of international human right to environment such as the international market order and accountability of non-state actors before human rights treaty bodies may work against the proposed right to a safe climate. 22 Lastly, there are suggestions that accountability for climate change at the domestic level can be pursued outside human rights through the public trust doctrine, 23 torts law 24 and common law. 25
Arguably, the foregoing arguments do not exempt the need for the right to a safe climate, though. First, the right to a safe climate should seek to address unsustainable and worldwide commercial interest and practices underlying climate change. It is in the long-term safety of the earth and its populations, whether poor or rich, in the developed or developing world, that such interests and practices are addressed. Second, a wide ratification is important, but worse still, even if a state does ratify international human rights treaties, it does not necessarily enforce their provisions. 26 Hence, a political will to ratify and implement is more important.
It is argued that as the climate worsens, political leaders will be more willing to take an ambitious step of embracing the right to a safe climate. 27 Third, it is difficult to accept that the right to environment paradigm is an adequate response to the global climate challenge. Authors have shown that despite its promises, it has neither solved the climate change problem nor prevented the development and commercialisation of earth resources underlying global warming. 28 For instance, in a special report termed Global Warming of 1.5°c, the ipcc concluded that a safe climate requires a two-thirds reduction in coal power generation in 2030 and its near total elimination by 2050. 29 Yet, this has not translated much to a global effort for the reduction of carbon which is the main driver of climate change. 30
While there are declining emissions with some states taking measures to reduce carbon emission, 31 other states are not so keen. 32 Hence, it is difficult to accept that the right to environment regime is an adequate response to the climate change challenge. Fourth, the arguments that climate change does not fit into a distinct category of rights, and that creating the right to a safe climate will suffer the challenges that have plagued the creation of the international human right to environment under the UN system are understandable. However, there is no greater platform to address the pervasive nature of climate change and accountability of relevant stakeholders than to formulate safe climate as a human right. Existing challenges reinforce a business as usual approach that requires the response of an unambiguous right.
As well evident in literature, conventional approaches to achieve net zero carbon dioxide (CO2) emissions and stabilize global temperatures below 2°C on their own are not enough. 33 Also, accountability under the doctrine of public trust, torts law and common law are neither conflicting with nor exclusive of human rights. In addition to the limited relevance of these approaches at the international level, the human rights edge lies in the fact that it complements other approaches and is a more suited gauge for the adequacy or otherwise of efforts by states and non-state actors at both national and international levels on strategic issues of present and future climate significance. Such issues include implementation of response measures and justice to present and future generations.
Consequently, this article argues the vulnerability of human populations and the essential compliance with yardsticks for a new right as the bases for the crystallisation of the right to a safe climate to emerge under the UN human rights system. It then proceeds to demonstrate the approaches for achieving such an end.
2 Human Vulnerability and a Safe Climate
Vulnerability denotes susceptibility to harm and has been applied in different fields and disciplines. 34 In the climate change context, it refers to the propensity of populations, systems or persons to suffer harm, cope with, resist and recover from the adverse effects of climate change. 35 These populations include women, children, sexual minorities, the disabled, the elderly, the poor, and internally displaced people, 36 who are vulnerable due to a range of environmental and socio-economic factors that extend their “disempowerment, stereotyping, stigmatizing, exclusion, and ultimately, myriad injustices.” 37 No doubt, as the common basis for all human rights, the concept of vulnerability offers these populations the window for the protection of their human dignity. 38 The concept of vulnerability is core in writings which argue human rights approach as an appropriate response to climate change, 39 and is not strange in the textual narration of international climate change instruments and international human rights law. However, it has not been deployed in the sense of affirming or concretising a new right to a safe climate to populations who are adversely affected by climate change.
The unfccc recognises and calls for a special attention to the needs of communities that are vulnerable to climate change. 40 The provision of the Cancun Agreements Decision reached at cop 16 is instructive on the vulnerability of certain populations to climate change. 41 Recital 8 of that decision affirms that climate change compounds the situation of populations ‘already vulnerable owing to geography, gender, age, indigenous or minority status, or disability’. Similarly, while it is merely indicated in the preamble and not as a substantive article, the Paris Agreement urges states to consider specific rights of indigenous peoples, local communities, migrants, children, persons with disabilities, women and people in vulnerable situations. 42 In particular, the need to address vulnerability is referenced in article 7 of the Paris Agreement, which ascertains the reduction of vulnerability to climate change as a global climate goal. 43 As Sands argues, however, no single provision in the Paris Agreement requires countries to take a binding domestic legal action. 44 This reasoning is also appropriate regarding Goal 13 of the 2030 Agenda for Sustainable Development which merely calls upon parties to take actions to address climate change and its impacts. 45 Hence, thus far, the normative progress in the international climate agenda has not advanced into the right to safe climate.
The developments in human rights instruments and bodies are not different. Human vulnerability to climate change features prominently in the activities of human rights monitoring bodies of the UN, but not in the sense of imposing unambiguous and binding obligations on states for climate actions. For instance, Resolution 7/23 of the unhrc requires a detailed analytical study on the relationship between climate change and human rights. 46 In response to the call for analytical study, the Office of the High Commissioner on Human Rights (ohchr) affirms that human beings are vulnerable to climate change and demonstrates the effect of climate change on a range of human rights, including the right to life, 47 the right to adequate food, 48 the right to adequate water, 49 the right to health, 50 the right to adequate housing, 51 and the right to self-determination. 52 Resolution 10/4 of the unhrc further affirms that human rights obligations and commitments of states have the potential to inform and strengthen international and national policy-making in the area of climate change. 53 The urgency to address the adverse effects of climate change on vulnerable populations is reiterated in Resolution 18/22, emphasised in Resolution 26 /33, 54 buttressed by Resolution 32/34, which all note that climate change poses an ‘existential threat’ to the humankind, 55 a development that is reaffirmed in the unsr 2019 Report. 56
The work of human rights treaty monitoring bodies, namely, the Committee on Economic and Social Cultural Rights (cescr), 57 the Committee on the Elimination of Discrimination Against Women (cedaw), 58 the Committee on the Rights of the Child (crc), 59 and the Committee on Rights of Persons with Disabilities (crpd), consider the provisions of instruments meant for the protection of the human rights of vulnerable groups, 60 and in doing so, note that climate change may impact the enjoyment of specific rights. In General Comment No 25 of 2020 on science and economic and socio cultural rights, the cescr identifies climate change as one of the most acute risks related to science and technology to which the world is vulnerable, and calls for international cooperation and promotion of multilateral agreements both for the prevention and mitigation of its effects. 61
Earlier, in delineating states’ obligations in General Comment No 15 of 2002 on the right to water, the cescr acknowledges the need to assist vulnerable or marginalised groups in the realisation of their right to water and remarks that new strategies and programmes are necessary in the face of developments such as climate change which may hinder the realisation of the right to water. 62 While examining the normative content of the right to food in General Comment No 12 of 1999, the cescr refers to the plight of vulnerable population groups and individuals. 63 It observes that normative elements of the right to food, that is, the availability, accessibility, acceptability and safety can be negatively affected by climatic and ecological factors, hence, State parties should put in place appropriate preventive measures to ensure that climate change does not adversely affect the right to food. 64
The link between vulnerability to climate change and the enjoyment of the right to adequate housing is made by the cescr in General Comment No 4 of 1991. In setting out States’ obligations, the cescr recognises that some members of the society are vulnerable and disadvantaged in respect to the right to housing. 65 It then indicates that security of tenure, availability, accessibility, location, affordability, habitability and cultural adequacy of housing may be adversely affected by climatic and ecological considerations. 66
Women are vulnerable groups identified in climate change instruments for special attention, 67 hence, it does not surprise that the cedaw has worked on gender dimension of climate change on human rights of vulnerable groups such as the aged, older, and rural women. 68 Its General Recommendation No. 27 on Older Women and Protection of their Human Rights urges states to note and recognise in their decision making that older women suffer more from climate change, due to their ‘physiological differences, physical ability, age and gender, as well as social norms and roles and an inequitable distribution of aid and resources relating to social hierarchies’. 69
Similar attention is urged in concluding remarks and observations of cedaw in the State reporting process. For instance, while dealing with Djibouti in 2011, cedaw notes that “rural women are particularly affected by poverty, food insecurity, the lack of safe drinking water and adverse climatic conditions such as drought”. 70 In its Concluding Remarks to the fifth periodic report of Seychelles in 2016, cedaw expresses the concern that the policy interventions by the State on climate change lacks a gender perspective which recognises the disproportionate effect of climate change on women. 71 While dealing with the report of Vanuatu, cedaw recommends that the active participation of women should be paramount in ‘planning, decision-making and implementation processes concerning disaster risk reduction, post-disaster management and climate change policies’. 72
Children, another vulnerable group identified under the Cancun Agreement and Paris Agreement, 73 has been a subject of consideration of the crc on the link of climate change to the enjoyment of their rights. In relation to United Kingdom of Great Britain and Northern Ireland in 2016, the crc recommends that the state should regard the vulnerabilities, peculiar needs and views of children while formulating policies or programmes to address climate change and disaster risk management. 74 While considering the report of Tuvalu in 2013, the crc recognises the increasing threat posed by climate change to children and indeed the survival of the country. 75
The Committee on the Rights of Persons with Disabilities in its concluding remarks on Guatamela, Honduras, and Panama, recognises that the effects of climate change contribute to exacerbating inequality and vulnerability among persons with disabilities and recommends that States incorporate and mainstream disability inclusion in their policies and programmes on climate change. 76 It urges Columbia to include persons with disabilities in their strategies, 77 while both Seychelles and Bolivia are urged to include them in the implementation of climate change adaptation and disaster risk reduction. 78 Subsequently, the general impact of climate change on the rights of people living with disabilities and the need for their protection have been noted in the 2020 report of the ohchr. 79
However, while the foregoing are progressive developments, they are no substitute to a specific creation of the right to a safe climate. The monitoring bodies clearly miss out on the opportunity to use the clear connection of vulnerability of populations to climate change as the basis to assert unambiguously that the right to a safe climate is at least emerging. More importantly, while general comments, concluding remarks and recommendations do not strictly have a binding force, 80 initiating the right to a safe climate should have been the logical conclusion from the analysis that climate change worsens the human rights situation of vulnerable groups. With the state of current developments, however, this is not yet the case. Whether the right to a safe climate may be supported on other grounds is the focus of the next section.
3 A Safe Climate as a New Human Right
This section argues that a proposition for the right to a safe climate essentially meets the criteria for a new right as discernible from literature. For a new right to emerge, according to Alston, certain criteria are required: such a right should reflect a fundamental social value; be relevant throughout the world value system; be recognised as an interpretation of Charter obligations, reflect a customary law or a formulation that is declaratory of general principles of law; not be repetitive of existing body of international human rights law; be capable of attaining high degree of international consensus; compatible with state practice; and be precise to give rise to identifiable rights and obligations. 81 These yardsticks set out by Alston have been tested and deployed in a number of works covering area such as safe motherhood, 82 and the right not to be displaced. 83 Alston yardsticks are preferred to investigate the need for the right to a safe climate as they serve as a convenient platform to analyse as far as possible, the extent to which the right to a safe climate can be justified as a new human right. Arguably, establishing the human right to safe climate under the UN human rights system meets the criteria.
First, per Alston, a new right should ‘reflect a fundamentally important social value’. 84 Climate change has adverse effects on social life which compromise the human dignity of vulnerable populations. In affecting the security of water, food and livelihood, climate change undermines human dignity, hence, a right seeking to address its adverse effects on human wellbeing constitutes the protection of human dignity which is an important social value.
Second, Alston points out that for a new human right to emerge, it should be ‘relevant, inevitably to varying degrees, throughout a world of diverse value systems’. 85 The adverse effects of climate change are universal, 86 a feature which itself suggests that a universal and inalienable normative value should be within contemplation while advancing an appropriate legal response to climate change. The principle of universality and inalienability connotes that human rights apply to everyone everywhere in the world and that negotiations should not result in human rights violations. 87 The notion is a core feature of the UN human rights system. For instance, the Preamble of the UN Charter recognises the universality of all rights, 88 while the preamble to the Convention on the Rights of the Child claims that the sources of inspiration for the instrument are the Universal Declaration on Human Rights (udhr). 89 The cedaw affirms that human rights are ‘inalienable, interdependent and indivisible’. 90 Except the right to a safe climate is established as a corollary of the adverse effects of climate change, the universality and inalienability of rights will remain downplayed. Also, considering its widespread implications for human rights, to treat a safe climate as least deserving of human right status either mocks or entirely defeats the purpose of the general scope of universality and inalienability of rights under the UN system.
The third consideration affirms that a new right has to derivate from ‘an interpretation of UN Charter obligations, 91 a reflection of customary law rules or a formulation that is declaratory of general principles of law’. 92 The key obligations under the UN relate mainly to international peace, 93 which has acquired the status of an obligation erga omne. 94 While it is not specifically referenced under the UN Charter, climate change has been acknowledged as a global challenge to mankind, 95 and its link to conflict brings the phenomenon to the heart of international peace. Doubtless, the link of climate change to conflict is reinforced in the 2009 report of the UN Secretary General to the United Nations General Assembly which affirms that climate change has security implications, 96 and subsequently in 2015 by the report of G7 which stresses the link of climate change to fragility of states. 97 Formulating the right to a safe climate will reinforce the commitment of states to international peace, an obligation that arises under the UN Charter. Regarding the customary law status of a rule, this depends on whether the principle has been referred to, or put into operation in a treaty, a soft law instrument, judicial or semi-judicial decisions, or other expressions of state practice. 98 Arguing the right to a safe climate under the UN is consistent with customary international law, due to its linkage to or equal importance with rights such as the right to life which has attained that status. 99 As the Human Rights Committee in General Comment 36 of 2018 on the right to life notes, climate change constitutes one of the ‘most pressing and serious threats to the ability of present and future generations to enjoy the right to life’. 100 Hence, in so far as the right to a safe climate is crucial to the realisation of the right to life and dignity of human persons, it is legally plausible to assert that it is compatible with international customary law.
The fourth requirement set up by Alston is that the new right should ‘be consistent with, but not merely repetitive of the existing body of international human rights law’. 101 The right to a safe climate stresses the connection between several other human rights but it is nonrepetitive of any. There is no such specific right in international human rights law known as the right to a safe climate. At best, what is evident at the intergovernmental bodies is at the regional level regarding the protection of the environment. For instance, at the African Union (AU) regional level, there is the recognition of the right to a general satisfactory environment favourable to the development guaranteed under article 24 of the African Charter on Human and Peoples’ Rights. 102 Also, article 5(4) of the AU Convention for the Protection and Assistance of Internally-Displaced Persons in Africa (Kampala Convention) requires states to take necessary measures to protect those displaced by climate change. 103 Arguably, the right to a safe climate overlaps with the environment but goes farther. It touches on the climate system that binds all mankind together and advances a right which has not been so recognized under the UN human rights system.
The fifth requirement for a new right is that it should ‘be capable of achieving a very high degree of international consensus’. 104 The application of this requirement to the proposition of the right to a safe climate does not raise any difficulty. Stabilising the climate system has been a global issue at the core of international engagement among states. A consensus on this desire is found in the 189 member states that are signatories to the Paris Agreement. 105 The Agreement urges respect for human rights in climate actions and commits state parties to limit the global average temperature increase to ‘well below’ 2°C. 106 With eight more ratifications, the Paris Agreement will have the same number of parties as the unfccc which, with 197 Parties, is nearly universal. While this development may not necessarily translate into automatic universal endorsement of the right to a safe climate, it does indicate that the idea of recognizing the right to a safe climate centers on a pressing concern that has been a continual subject of global engagement.
The sixth requirement laid out by Alston is that a new right should ‘be compatible or at least not clearly incompatible with the general practice of States’. 107 This is problematic in that the number and nature of evidence of practice that can sustain state practices as an element of customary international law is not certain. Regarding state practices, international tribunals have often resorted to the case law of domestic courts and national legislation. 108 Regarding case law at the UN level, no treaty monitoring body has specifically entertained a communication/complaint on climate change and human rights. Evidence on litigations in judiciaries of UN member states indicate also the continuing struggle of vulnerable populations to have climate change litigated as a human right issue. Arguably, burgeoning evidence on the judicialisation of climate change issues in different regions of the world, and states’ attention to commitments under the Paris Agreement exist as practices that can sustain the right to a safe climate.
In Africa, the judiciaries in some states have entertained claims from vulnerable populations on development projects with implications for a safe climate. None of the decisions has yielded a finding of violation of the right to a safe climate as no such right exists, but, there is a link to human rights. In Nigeria, Gbemre v Shell Petroleum Development Company Nigeria Limited and others 109 arose from gas flaring activities in the Niger Delta area involving communities and other non-state actors, namely, Shell, ExxonMobil, Chevron – Texaco, and the Nigerian National Petroleum Corporation. 110 The Court was only able to find that the practice of gas flaring and the failure by the corporations to complete an environmental impact assessment violated Nigerian gas flaring regulations and the right to life in the Niger Delta. 111
The South Africa’s case of Earthlife Africa Johannesburg v. Minister of Environmental Affairs and others 112 is very instructive in terms of compatibility with the proposition of the right to safe climate. It concerned a 1200MW coal-fired power station near Lephalale in the Limpopo Province. The applicant, successfully approached the court to review the decision to grant project authorization. In granting the review, the Court approved a climate impact assessment, which comprises an analysis of the extent to which a proposed coal-fired power station will contribute to climate change over its lifetime. 113 The disconnect with human rights has been argued as one of the shortfalls of this decision, 114 however, this could be excused as the matter of right was never canvassed in the proceedings. Arguably, the reference of the court to a climate impact assessment shows the pro activeness of the court towards curtailing activities underlying climate change.
There have been cases involving the link of climate change to human rights by domestic courts in Europe. In Urgenda Foundation v The State of the Netherlands, The Hague District Court established a causal link between emissions by the Netherlands, global climate change, and the effects for state’s duty for environmental rights. In so doing, it found that the Netherlands must do more to prevent the imminent danger posed by climate change. Failure to do so, the Court held, is in breach of its duty of care to protect and improve the living environment. 115 In 2018, the unsr intervened in a case before an Irish court, 116 drawing attention to the state’s ‘clear, positive and enforceable obligations’ to protect its citizens against the infringement of human rights caused by climate change. 117
In the United States, a sweet-sour twist on climate change and human rights litigation is reflected in the case of Juliana v United States. In that case, a group of young people commenced a lawsuit against the US government to have it develop a plan to reduce CO2 emissions. It was the case of the plaintiffs that fossil fuel-combusting processes endorsed by the government does not only cause global warming which is harmful to people and the planet, it has disadvantaged them of both a right to life and to liberty protected by the Fifth Amendment of the US Constitution. 118 Among others, it infringes their capacity to provide for their basic human needs, and access clean air, water, shelter, and food. 119 Agreeing with the plaintiffs’ argument, the Federal District Court concluded that ‘the right to a climate system capable of sustaining human life is fundamental to a free and ordered society’, 120 a position that was confirmed by the Federal Court of Appeals. 121
However, upon an appeal by the defendants/appellants, a three-judge panel in the US Ninth Circuit Court of Appeals dismissed the law suit for want of standing to sue. Additionally, the Court ruled that issues around climate policies are a political and not a judicial question for adjudication. 122 While an application for the rehearing of the matter has been filed, 123 the proceedings thus far indicate that human rights are of significance in climate change context. Importantly, the fact that the appeal ruling was on a slim 2–1 majority decision portrays a glimpse of hope of success in the future. The role of dissenting opinion as agency in the development of the law is well known. 124 Hence, even if the rehearing request is unsuccessful, the minority position at the appeal is indicative of perhaps future possibilities of litigation on the link of climate change to human rights. More importantly, the dissenting opinion in Juliana will keep the debate around the link of climate change to human rights alive among judges, politicians, scholars and commentators alike.
In Columbia, group of Colombian youth in Children and Youth v Colombian Government successfully challenged the Colombian government for failure to tackle deforestation in the Amazon, thereby infringing several human rights obligations protected both in the Colombian Constitution and in international human rights instruments. 125 The Colombia’s Supreme Court upheld the argument of the plaintiffs that the government had done too little to halt deforestation in the Amazon, despite its obligation to achieve net-zero deforestation by 2020. It then found the neglect of obligation as amounted to a threat to their rights to a healthy environment, life, health, food, and water. 126 In all, the development on case law shows that the link of climate change to human rights, even if not always successful, is not strange to court room litigations in the judiciaries of states.
Besides the foregoing, by signing the Paris Agreement, states commit to limiting average warming to 2°C above pre-industrial temperatures. To ensure this, as required under the Paris Agreement, about 184 states have submitted their first nationally determined contributions (ndcs). 127 This is an important statement on the general aspiration of states to address climate change. At the cop24, parties agreed to a ‘rule-book’ dubbed the Katowice Climate Package (kcp), a set of guidelines for implementing the Paris Climate Change Agreement. 128 In the first cycle, as reported by the unsr, seventeen States committed to taking a rights-based approach to climate action, 129 nine States include responsibilities relating to climate change in their Constitutions, 130 while approximately 140 States have enacted framework climate legislation. 131 This may not have translated to the reduction of carbon which is the main driver of climate change, 132 because not all states are consistent in taking measures to reduce carbon emission. 133
However, these developments are themselves a progressive statement to sustain the position that, at the very least, the general practice of state is to aim at reducing global warming and address adverse effects of climate change. Under international law, there has been argument and counter argument as to whether statements alone without acts constitute state practices. 134 No doubt, states’ actions are necessary in climate interventions, but statements of commitments are an important starting point of actions. In addition, coupled with the emerging trend on the decisions of courts, it can be argued that commitments by states as noticeable in their ndcs are a sufficient evidence of state practices that are compatible with the proposition of the new right to a safe climate.
The seventh and last of Alston’s requirements is that the right ‘be sufficiently precise as to give rise to identifiable rights and obligations’. 135 The right to a safe climate will serve as a precise textual basis for clarifying and particularising key rights and obligations in the context of climate change for rights holders to enjoy and impose obligations on states and non-state actors under their control as duty bearers. Human rights that are impacted by adverse effects of climate change are entrenched in a range of instruments ratified by states under the UN system, but, require to be particularised in terms of climate change. For instance, key procedural rights are guaranteed under climate related and human rights instruments. Of these rights, freedom of information, the right to participate in decision-making and the right to seek a remedy have been prominently discussed. 136 These rights are recognised under Principle 10 of the Rio Declaration, article 12(9) and (10), article 14 of the unfccc and chapter 3 of Agenda 21. 137
The right to a safe climate will also articulate these procedural rights in the context of climate change. Substantive rights which are implicated by climate change include civil and political rights under the udhr and iccpr include the right to life, 138 freedom of expression, 139 liberty and security of person, 140 peaceful assembly, 141 and freedom of association. 142 Socio-economic rights under the icescr include the right to food, housing and health, 143 while articles 11 and 12 of the icescr have been interpreted by the cescr as conferring the right to water. 144 The right to a safe climate will validate the interface of climate change with these existing rights under the UN human rights system.
The right to a safe climate will also serve as the instrumental basis to crystallize human rights obligations in the context of climate change. The obligation to comply with internationally recognised human rights requires three levels of duty from states: the duty to respect, protect and fulfil human rights. The obligation to ‘respect’ signifies that states must refrain from interfering with or hindering the enjoyment of human rights. The obligation to ‘protect’ demands that individual and groups should be protected from human rights abuses, especially by non-state actors while the obligation to ‘fulfil’ requires states to take positive action to facilitate the enjoyment of basic human rights. 145
The conceptualisation of these obligations owes its introduction and current influence on international human rights law to the pioneering work of Shue and Eide. 146 In Shue’s view, the tripartite typology of duties include, (1) duties to avoid the deprivation of the right concerned, (2) duties to protect rights holders from deprivation, and (3) duties to aid rights holders who have been deprived. 147 Reinforcing the foregoing view, Eide argues that the tripartite obligations entail the negative obligation to abstain from acts contrary to human rights principles and a positive duty as a ‘protector and provider’ of rights. 148 The tripartite obligations have since gained international acceptance, first among scholars working on the right to food, and then in the broader area of economic, social and cultural rights. 149 The right to a safe climate will provide a specific normative basis for expounding duties to refrain from measures or initiatives that may hinder the realization of a safe climate. Such measures may include prohibition of continuous burning of fossil fuels or the implementation of climate change response measures in manner that occasions displacement or infringes human rights. Measures to ‘protect’ may require states to put in place appropriate legislation to ensure the protection of populations and ensure that activities of non-state actors do not worsen the climate and adversely affect rights. The measure to ‘fulfil’ rights will require the state to mobilise human and financial resources from within and without to ensure the fulfilment of global urgency for a safe climate.
4 Formulating the Right to a Safe Climate
The initiation of the right to a safe climate can take two directions within the UN human rights system. On one hand, through advocacy and interpretation of existing human rights provisions in human rights instruments, treaty monitoring bodies can establish the right to a safe climate in their work and jurisprudence. This is the most practicable way of formulating the right as stakeholders, namely the states, ngos, and complainants engage with the reporting process and address communications from member states by treaty monitoring bodies. On the other hand, it can crystalise by way of an amendment to introduce the right to a safe climate as a substantive right.
4.1 Advocacy and Interpretation of Existing Human Rights Provisions
The state reporting and complaint procedures of treaty monitoring bodies have a significant role to play in interpreting existing human rights provisions. 150 The state reporting exercise offers the opportunity to member states to not only share their challenges, but more importantly, to invite concrete comments on how these challenges can be addressed. There is paucity of concrete recommendations and concluding remarks on the interface of climate change with human rights, let alone, a clear creation of the right to a safe climate in the work of the treaty monitoring bodies. The extant cursory treatment of the theme is itself understandable as there is no guidance on the reporting processes before treaty monitoring bodies which deliberately requires information on climate change and human rights. Without guidance and appropriate advocacy, it is difficult to expect recommendations and concluding remarks that can ground the right to a safe climate. The importance of such recommendations and concluding remarks as the most important aspect of the reporting process cannot be overstated. Even if not binding, 151 when made with the view of affirming the right to a safe climate, recommendations and concluding remarks can generate solutions or best practices on policy gaps on climate change and effects on human rights. Also, when such recommendations and the concluding remarks eventually are made public, they can serve the purpose of empowering civil society to request and demand accountability of state for commitments to the right to a safe climate.
Except climate related information is included in the reporting guidelines and analysed from the clear lens of the right to a safe climate, it is not likely for monitoring bodies to generate recommendations and concluding remarks that respond comprehensively to the effects of climate change on human rights. To overcome the challenge, reporting guidelines of treaty bodies may be amended to include specifically a component on climate related information and interface with human rights. 152 Such an inclusion will be helpful as states, ngos and vulnerable group representatives can consult with one another in relation to measures being taken to combat adverse effects of climate-change and their related projects on human rights. The monitoring bodies can then analyse the information and come up with necessary recommendations or concluding remarks that affirm the right to a safe climate. Far from being a duplication, this arrangement is distinguishable from the national communications and ndcs under the unfccc and Paris Agreement. 153 Its difference lies in the focus on the interface of climate change with human rights at human rights fora that carry the mandate to analyse and develop recommendations and concluding remarks with focus on the right to a safe climate.
The individual communication procedures, particularly of the treaty monitoring bodies is equally an important window for developing the right to a safe climate. This can be achieved when treaty bodies analyse and form opinions on the submissions made by parties through their individual communications. Since there is no substantive right to a safe climate yet, the quality and outcome of analysis will largely depend on the nature of arguments submitted by parties. Arguably, the third-party interventions of the treaty monitoring bodies can assist in generating arguments and reasoning to formulate the right to a safe climate. Several treaty monitoring bodies, namely, the cescr, Human Rights Committee and crc, among others, provide for third party interventions in their rules of procedures empowering them to accept submissions from third parties. 154
Unlike the use of amicus curiae at the regional human rights system, 155 third parties involved in this type of interventions under the treaty monitoring bodies are generally not parties to the case. 156 Also, it appears that without being invited or authorised, ngos may not make submission in the proceedings under the rules of the cescr, 157 while the rules of the hrc and the crc are more liberal and clear. In terms of the rules of the hrc, information and documentation may be received from third parties if relevant for effective determination of the matter, 158 and under its guidelines, the crc may ‘consult or receive’ request specifically and allow entities including ngos, other treaty bodies instituted by international instruments and the special procedures of the UN to intervene. 159
In that way, it would seem that without an invitation, there is nothing under the hrc rules and the crc guidelines preventing UN bodies, special procedures such as the unsr on Human Rights and the Environment and ngos to clarify the right to a safe climate. Submissions can be made to aid the hrc and crc in their analysis and determination of matters before them to crystallise and sustain a safe climate as a right. A similar practice can be anticipated from monitoring bodies such as the cescr which require authorisation before interventions. 160 Where invited, they may ground the existence of the right to a safe climate through arguments drawn from their interpretation of existing human rights in the context of climate change.
4.2 Amendment to Introduce the Substantive Right to a Safe Climate
The formulation of a substantive right offers a distinct basis for a clear articulation of obligations of states, inclusive of the regulation of non-state actors in addressing the adverse effects of climate change on human rights. At the international level, it makes the task of treaty monitoring bodies less arduous in the performance of their mandates on state reporting and individual communication as they can find a clear reference to a safe climate in a binding instrument. Incorporating the right to a safe climate in an existing instrument is empowering for other reasons.
On one hand, it can enrich the collation of information and statistics on climate change and human rights component of their reporting before treaty monitoring bodies. On the other hand, in the context of individual communications, the jurisprudence likely to emerge may help in empowering parties who daily face states’ neglect of human rights obligations in the face of adverse effects of climate change. Also, it may help in guiding the state on steps to ensure the realisation of the right at the domestic level. The central attribute of this protection afforded by the right to safe climate would be undeniably related to carbon generating activities such as fossil fuel combustion, coal related extraction and of course climate mitigation and adaptation measures which, as argued, infringe on rights of populations. 161
To achieve the above will require the amendment of existing human rights treaties. While such an amendment may take a long route to achieve, it is not impossible under international human rights law. Article 40 of the Vienna Convention on the Law of Treaties (vclt) governs the amendment of multilateral treaties. 162 Article 40 (1) of the vclt recognises that a treaty may be amended through its own amendment provisions or by resorting to the vclt where no such provisions exist. The Convention on the Elimination of Racial Discrimination, 163 and cedaw are examples of treaties with no clear provisions on amendment, 164 hence, amenable to the application of article 40(1).
However, majority of the international human rights treaties provide internally for amendment procedures which are akin with the provision of article 40 (1) of the vclt. For instance, in terms of the provisions of the icescr, icprc and crc, the procedures are notably: amendment proposal by a contracting party; notification of other contracting parties about the proposed amendment; convening an amendment conference; adoption of amendment by majority of states at conference; approval by the UN General Assembly; and coming into force of amendment. 165
Based on the procedures above, the proposal for amending an existing human right treaty to incorporate the right to a safe climate may be initiated by any member state of the UN. For instance, such an initiative may be commenced by the Vulnerable Small Island states which are big time players in climate change negotiations, 166 and in the link of climate change to human rights at the unhrc. 167 The challenge may lie in securing a majority approval for the amendment to enter force, though. Notwithstanding, the momentum on lobbying already built through the forces of international organizations on the interface of climate change with human rights may be beneficial in overcoming such a challenge. It is noteworthy that the momentum was valuable in incorporating human rights component in the Paris Agreement. 168 Arguably, it will be useful in achieving the incorporation of the right to a safe climate in an existing human rights instrument.
5 Conclusion
The adverse effects of climate change have a global reach as populations in all regions of the world are susceptible even if disproportionately. The vulnerability of populations to climate change is recognised in several international instruments dealing with climate change and human rights instruments. However, the normative development falls short of making a safe climate as a human right. Whether the development in relation to the link of climate change to vulnerability and human rights can support a proposition of the right to a safe climate, and if so, how this can be achieved, is the main thrust of this article.
As has been shown, the right to a safe climate can stem from the logic that climate change may worsen the human rights situation of vulnerable groups. Also, the proposition meets other criteria set up as a gauge for a new human right to emerge. According to Alston, a new human right should reflect a fundamental social value throughout the world value system. It should be recognised as an interpretation of Charter obligations, echo a customary law or a formulation that is declaratory of general principles of law; not cyclical but novel and capable of attaining high degree of international consensus. Such a right should also be precise to give rise to identifiable rights and obligations.
Affirming a new right to a safe climate reflects a fundamental social value in that the adverse effects of climate change undermine human dignity, an important universal value. It is of equal weight as an obligation to maintain peace, and a substantial reflection of customary rules due to its linkage to right such as the rights to life and dignity of human persons which have attained the status of international customary law. The proposal for a new right to a safe climate stresses the connection between several other human rights but it is a distinct right in the sense that it does not replicate an existing right.
There is an international consensus that climate change poses an existential threat, the solution to which is the core of international engagement among states. The practices of states as deducible from judicialisation of climate as a human right are mixed and problematic. While the emerging evidence from courts shows that it is both possible to affirm or reject a safe climate as a human right, the attention of States to some of the commitments under the Paris Agreement show that there is critical mass of practices to support the right to a safe climate. The right to a safe climate will also help particularise key rights and obligations in the context of climate change for rights holders to enjoy and impose obligations on states as duty bearers.
The formulation of the right to a safe climate, as demonstrated, can emerge in two ways. It can be created through consistent advocacy and interpretation of existing human rights provisions by treaty monitoring bodies to establish and confer its existence in their work and jurisprudence. It can also crystalise by way of an amendment to introduce a substantive right to a safe climate in existing human rights instruments. Formulating the right to a safe climate is neither competitive with other means through which climate change may be addressed nor is it a mere surplusage.
Rather, it is complementary and will resonate a sense of global urgency towards climate change. At the very least, it will empower the voice of the marginalised in their struggles over basic amenities challenged by climate change before the human rights monitoring bodies of the UN. It will offer them the tool to engage and allow them the opportunity to enforce their claim, entitlement to goods and services which are vital to their livelihood. The construction of the right to a safe climate will send a global wave that strengthens strategic advocacy around issues associated with climate change at both national and international levels.
See Protection of Global Climate for Present and Future Generations of Mankind’ Resolution 43/53, unga. 70th Plenary Meeting 6 December 1988 (unga Resolution 43/53).
The ipcc was established by the World Meteorological Organisation and the United Nations Environment Programme in 1988, pursuant to unga Resolution 43/53 (n 1); the most recent report of the ipcc which reviews and assesses the most recent scientific, technical and socio-economical information relating to climate change is Hewitson Bruce and others, ‘2014: Regional Context’ in Barros V. Ricardo and others (eds), Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B: Regional Aspects. Contribution of Working Group ii to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2014) 1133–1197.
Thomas F. Stocker and others (eds), The Physical Science Basis. Contribution of Working Group I to the 5th Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2013).
World Economic and Social Survey 2016, ‘Climate Change Resilience-an Opportunity for Reducing Inequalities’ <https://wess.un.org> accessed 31 August 2020.
Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, David R. Boyd, submitted in accordance with Human Rights Council resolution 37/8, 74th Session, Preliminary List Item 72 (b), UN Doc. A/74/161 (15 July 2019) para 85 (Report of unsr on the Environment); see also Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, David R. Boyd, 43rd Session, Agenda item 3, A/hrc/43/53 (30 December 2019) (Report of the unsr on Good Practices).
Report of the Special Rapporteur on Extreme Poverty and Human Rights Climate Change and Poverty, 41st Sess., Agenda item 3, UN Doc. A/hrc/41/39 (17 July 2019) paras 12–13 (Report of unsr on Extreme Poverty).
Roberto Andorno, ‘Is Vulnerability the Foundation of Human Rights?’ in Aniceto Masferrer & Emilio García-Sánchez (eds), Human Dignity of the Vulnerable in the Age of Rights: Interdisciplinary Perspective (Springer, 2016) 272; Bryan S Turner, Vulnerability and Human Rights (Pennsylvania State University Press, 2006) 25–44.
See Fact Sheet No. 30/Rev.1: United Nations Human Rights Treaty System, United Nations (2012); also see Frans Viljoen, International Human Rights Law in Africa ( 2nd edn, Oxford University Press, 2012) 40.
These include Ademola O Jegede, ‘The Protection of Indigenous Peoples’ Lands by Domestic Legislation on Climate Change Response Measures: Exploring Potentials in the Regional Human Rights System of Africa’ (2017) 24 (1) International Journal of Minority and Group Rights 24–56; Marc Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’ (2009) 33 Harvard Environmental Law Review 439–476; Simon Caney, ‘Climate Change and the Duties of the Advantaged’ (2009) 13 Critical Review of International Social and Political Philosophy 203–228. Sara C Aminzadeh, ‘A Moral Imperative: The Human Rights Implications of Climate Change’ (2007) 39 Hastings International & Comparative Law Review 231–265; for an example of recent reports on the need for a rights based approach, see Report of unsr on the Environment, (n 5).
Report of unsr on Extreme Poverty, (n 6), para 16.
For pioneering works on climate change in the work of charter body, see John H Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (2009) 33 Harvard Environmental Law Review 477–498; Limon, (n 9) at 439; for a writing that focuses on climate change in the work of UN treaty monitoring bodies, see Marcos A Orellana, Miloon Kothari and Shivani Chaudhry, ‘Climate Change in the Work of the Committee on Economic, Social and Cultural Rights’ (Centre for International Environmental Law, 2010); and regarding a similar work with a focus on regional human rights level, see Ademola O Jegede, ‘Climate Change in the Work of the African Commission on Human and Peoples’ Rights’ (2017) 31(2) Speculum Juris 136–150.
See the preamble of the Resolution on Human Rights and Climate Change (Resolution 10/4), adopted 25 Mar.2009 at the 41st meeting of the Human Rights Council (Resolution 10/4]; Preamble of the Resolution on Human Rights and Climate Change (Resolution 18/22), adopted 30 Sept. 2011 at the 37th meeting of the Human Rights Council, A/hrc/res/18/22; Resolution on Human Rights and Climate Change (Resolution 26L/33), adopted 23 Jun. 2014 at the 26th meeting of the Human Rights Council, A/hrc/26/L.33, 1.
United Nations Framework Convention on Climate Change (1992) ilm 851 ( unfccc ).
Paris Agreement under the United Nations Framework Convention on Climate Change, adopted 30 Nov.- 11 Dec. 2015 at the 21st Sess., Conference of the Parties, fccc/cp/2015/L.9/Rev.1 (Paris Agreement 2015).
Philip Alston, ‘Conjuring up New Human Rights: A Proposal for Quality Control’ (1984) 78 (3) American Journal of International Law 607–621.
Henry Shue, ‘Subsistence Emissions and Luxury Emissions’ (1993) 15(1) Law & Policy 39–59; Caney, (n 9) at 221; Jegede, (n 9) at 29.
Makau Mutua, ‘Standard Setting in Human Rights: Critique and Prognosis’ (2007) 29 Human Rights Quarterly 547–630.
Jane McAdam, ‘Swimming against the Tide: Why a Climate Change Displacement Treaty is not the Answer’(2011) 23 (1) International Journal of Refugee Law 2–27.
Report of unsr on the Environment, supra n 5, para 96; also see David R Boyd, The Environment Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (ubc Press, 2011) 226, 273.
Vanderheiden, (n 9) at 241.
Sam Adelman, ‘Rethinking Human Rights: The Impact of Climate Change on the Dominant Discourse’ in Stephen Humphreys (ed), Human Rights and Climate Change, (Cambridge University Press, 2010) 169.
Burns H Weston & David Bollier, ‘Toward a Recalibrated Human Right to a Clean and Healthy Environment: Making the Conceptual Transition’ (2013) 4(2) Journal of Human Rights and the Environment 116–142, 134; Cernic L Jernej, ‘Corporate Human Rights Obligations at the International Level’ (2008) 16 (1) Willamette Journal of International Law and Dispute Resolution 130–205, 139; Iveta Hodkova, ‘Is there a Right to a Healthy Environment in the International Legal Order?’ (1992) 7 Connecticut Journal of International Law 65–80.
Michael C Blumm & Mary C Wood,’“No Ordinary Lawsuit”: Climate Change, Due Process and the Public Trust Doctrine’ (2017) 67(1) American University Law Review 1–87. designating government actors as trustees over essential resources including the air and arguing that their failure to do so is a breach of duty; also see Zachary L Berliner, ‘What about Uncle Sam – Carving a New Place for the Public Trust Doctrine in Federal Climate Litigation’ (2018) 21(4) University of Pennsylvania Journal of Law and Social Change 339–357.
Robert F Blomquist, ‘Comparative Climate Change Torts’ (2012) 46 Valparaiso University Law Review 1053–1075 demonstrating the potentials in tort claims including public nuisance and product liability to address climate change.
Mark P Newitt & Robert V Percival, ‘Could Official Climate Denial revive the Common Law as a Regulatory Backstop’ (2018) 96 (3) Washington University Law Review 441–494 showing how what they refer to as ‘the common law of interstate nuisance’ that allows states to protect their citizens from environmental harm can be used to address injuries resulting from climate change.
Eric Posner, ‘The Case against Human Rights’, The Guardian 4 Dec. 2014 <http://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights> accessed 31 August 2020.
An example of how political will can sporadically emerge in the face of a global challenge is evident in current efforts being taken by political leaders in addressing the global pandemic of corona virus (covid-19) which was first declared as an international pandemic and subsequently by virtually all the countries in the world, as a national disaster. States have taken drastic and emergency measures in response to the pandemic. As an example of writings on measure being taken by states, see Michael Levenson, ‘Local and State Officials Unlock Sweeping Powers to Fight Coronavirus, The New York Times March 14, 2020 <https://www.nytimes.com/2020/03/14/us/national-state-emergency.html> accessed 31August 2020.
Louis Kotzé, ‘The Conceptual Contours of Environmental Constitutionalism’ (2015) 21 Widener Law Review 187–200, 199; Weston & Bollier, (n 22) at 134.
Valérie Masson-Delmotte and others (eds), Summary for Policymakers, in Global Warming of 1.5°c: An ipcc Special Report on the Impacts of Global Warming of 1.5°c above Pre-industrial levels and related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty (World Meteorological Organization, 2018) 1–32 (Summary for Policymakers).
Report of unsr on the Environment, (n 5), para 2.
Corinne Le Quéré and others, ‘Drivers of declining CO2 Emissions in 18 Developed Economies’ (2019) 9 Nature Climate 213–217.
Hannah Ritchie & Max Roser, ‘co₂ and Greenhouse Gas Emissions 2019’ <https://ourworldindata.org/co2-and-other-greenhouse-gas-emissions> accessed 31 August 2020.
Summary for Policymakers, (n 29) at 14–16.
James D Ford and others, ‘Vulnerability and its Discontents: The Past, Present, and Future of Climate Change Vulnerability Research’ (2018) 151(2) Climatic Change 189–203.
Martin Parry and others (eds), Climate Change 2007: Working Group ii: Impacts, Adaptation and Vulnerability (Cambridge University Press, 2007) 976.
Anna Grear, ‘Foregrounding Vulnerability: Materiality’s Porous Affectability as a Methodological Platform’ in Andreas Philippopoulos-Mihalopoulos & Victoria Brooks (eds), Research Methods in Environmental Law: A Handbook (Edward Elgar Publishing, 2017) 1–28.
Louis Kotzé, ‘The Anthropocene, Earth System Vulnerability and Socio-ecological Injustice in an Age of Human Rights’(2019) 10(1) Journal of Human Rights and the Environment 62–85, 72.
See Andorno, (n 7); Turner, (n 7); Mutua, (n 17).
‘Climate change is greatest ever threat to human rights, UN warns’, Guardian, 9 Sept .2019.
These communities recognized in the preamble of unfccc include the low-lying and other small island countries while art. 3(2) includes countries with low-lying coastal, arid and semi-arid areas or areas and developing country parties. In fact, art. 4(4) of the unfccc calls for special assistance for such communities.
The Cancun Agreements: Outcome of the work of the Ad-hoc Working Group on Long-term Cooperative Action under the Convention, Decision 1/cp.16, fccc/cp/2010/7/Add.1 (2010) (Cancun Agreements).
Paris Agreement 2015, (n 14).
Ibid.
Philip Sands, ‘Climate Change and the Rule of Law: Adjudicating the Future in International Law’ (2016) 28 (1) Journal Environmental Law 19–35, 22.
United Nations General Assembly Transforming our World: the 2030 Agenda for Sustainable Development, A/res/70/1, adopted by the General Assembly on 25 Sep. 2015.
Resolution on Human Rights and Climate Change (Resolution 7/23), adopted 28 Mar. 2008 at the 41st meeting of the Human Rights Council, Res. 7/23, UN Doc. A/hrc/7/78 (Resolution 7/23).
Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights, A/hrc/10/61 15 Jan. 2009 ( ohchr Report).
Ibid, paras 21–27.
Ibid, paras 28–30.
Ibid, paras 31–34.
Ibid, paras 35–38.
Ibid, paras 39–41.
Resolution 10/4, (n 12), preamble.
Ibid, preamble; Resolution 26/33, (n 12), para 1.
unga Resolution 43/53, (n 1), preamble.
The effects of climate change on the enjoyment of human rights are well documented in the Report of unsr on the environment, (n 5), paras 26–44.
The cescr was established under the Economic and Social Council Resolution 1985/17 of 28 May 1985.
Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979 (entered into force 3 Sep. 1981), 1249 unts 13, art 17.
Convention on the Rights of the Child, adopted 20 Nov. 1989 (entered force 2 Sept. 1990), 1577 unts 3, art 43.
Convention on the Rights of Persons with Disabilities, adopted 13 Dec. 2006 (entered into force 3 May 2008), 2515 unts 3, art 34.
cesr, General comment No. 25 (2020) on Science and Economic, Social and Cultural Rights Art. 15.1.b, 15.2, 15.3 and 15.4, adopted 7 Apr. 2020, E/C.12/gc/25, para 81.
cescr, General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), adopted 20 Jan. 2003, E/C.12/2002/11, paras 28–29.
cescr, General Comment No. 12: The Right to Adequate Food (Art. 11), adopted 12 May 1999 , E/C.12/1999/5, paras 13, 28.
Ibid, paras 4 and 7.
cescr, General Comment No. 4: The Right to Adequate Housing (Art. 11 (1) of the Covenant), adopted 13 Dec. 1991, E/1992/23, para 13.
Ibid, para 18.
For example, see the preamble of Paris Agreement 2015, (n 14).
cedaw, Gender-related Dimensions of Disaster Risk Reduction and Climate Change, 29 Feb. 2016 <http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/ClimateChange.aspx> accessed 31 August 2020.
cedaw General Recommendation No. 27 on Older Women and Protection of their Human Rights, adopted 16 Dec. 2010, cedaw/C/gc/27, para 25.
cedaw Concluding observations of the Committee on the Elimination of Discrimination against Women: Djibouti’, adopted 2 Aug. 2011, cedaw/C/dji/co/1–3, para 32.
cedaw Concluding Observations on the Combined Initial to Fifth Periodic Reports of Seychelles, adopted 29 Oct. 2013, cedaw/C/syc/co/1–5, para 36.
cedaw Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Vanuatu, adopted 9 March 2016, cedaw/C/vut/co/4–5, para 37.
See the preamble of Paris Agreement 2015, (n 14).
crc, Concluding Observations on the Fifth Periodic Report of the United Kingdom of Great Britain and Northern Ireland, adopted 3 June 2016, crc/C/gbr/co/5, paras 56(a) & 68(b).
crc, Concluding Observations on the Initial Report of Tuvalu, adopted by the Committee at its 64th Sess. (16 Sep.–4 Oct. 2013), crc/C/tuv/co/14, para 7.
Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Guatemala, adopted at its 293rd meeting, 31 Aug. 2016, crpd/C/gtm/co/1, para 30; Committee on the Rights of Persons with Disabilities Concluding observations on the initial report of Honduras, adopted at its 327th meeting, 10 Apr. 2017, crpd/C/hnd/co/1, para 26; Committee on the Rights of Persons with Disabilities Concluding observations on the initial report of Panama, adopted at its 350th meeting, 24 Aug. 2017, crpd/C/pan/co/1, para 29(b).
Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Colombia, adopted at its 292nd meeting, 31 Aug. 2016, crpd/C/col/co/1, para 27.
Committee on the Rights of Persons with Disabilities , Concluding observations on the initial report of Seychelles, adopted at its 389th meeting, 6 Mar. 2018, crpd/C/syc/co/1, para 23; Committee on the Rights of Persons with Disabilities Concluding observations on the initial report of the Plurinational State of Bolivia, adopted at its 290th meeting, 30 Aug. 2016, crpd/C/bol/co/1, para 26.
Report of the Office of the United Nations High Commissioner for Human Rights on the Analytical Study on the Promotion and Protection of the Rights of Persons with Disabilities in the Context of Climate Change, submitted pursuant to Human Rights Council resolution 41/21, 44th Sess., A/hrc/44/30 (22 Apr. 2020).
South West Africa (Ethiopia v S Africa; Liberia v S Africa) (Second Phase) [1966] icj Rep 6, para 98 (South West Africa case); Marco D Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the icj’ (2006) 16(5) European Journal of International Law 879–906.
Alston, (n 15).
Hélène Julien, ‘Is There a Human Right to Safe Motherhood within the United Nations Legal System?’ (2015) 2 (1) Queen Mary Human Rights Review 1–29.
Maria Stavropoulou, ‘The Right Not to be Displaced’ (1994) 9 (3) American University International Law Review 689–749.
Alston, (n 15) at 615.
Ibid.
Ricardo and others, (n 2).
The idea of universality of human rights is challenged by relativists who view that human rights vary from culture to culture, see Sally Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (University of Chicago Press, 2006) at 40. However, human rights are at least universal in the sense that it has become a subject of attention all over the world, see Jack Donelly, ‘International Human Rights Law: Universal, Relative, or Relatively Universal’ in Mashood Baderin and Manisuli Ssenyonjo (eds), International Human Rights Law: Six Decades after the udhr and Beyond (Ashgate Publishing, Ltd., 2010), who rightly argues that universality remains the core feature of human rights.
Preamble of the Charter of the United Nations and the Statute of International Court of Justice San Francisco (1945) ( icj Statute).
Convention on the Rights of the Child, supra n 52; Universal Declaration of Human Rights (udhr), adopted 10 Dec. 1948, G. A. Res. 217A (iii), U.N. gaor, 3d Sess, U.N. Doc. A/res/3/217A (1948).
See the preamble and art 53(1) (c) of the Convention on the Elimination of All Forms of Discrimination Against Women, (n 58).
Alston, (n 15) at 615.
Ibid.
Charter of the United Nations, 24 Oct. 1945, 1 unts xvi, art 1.
Cherif M Bassiouni, ‘International Crimes: Jus Cogens and Obligation Erga Omnes’ (1996) 59(4) Law & Contemporary Problems 63–74, 69.
unga Resolution 43/53, (n 1).
Report of the Secretary-General, Climate Change and its Possible Security Implications, A/64/350 (11 Sept. 2009).
G7, A New Climate for Peace <https://www.newclimateforpeace.org/#report-top> accessed 31 August 2020.
Pierre-Marie Dupuy,’Formation of Customary International Law and General Principles’ in Daniel Bodansky, Jutta Brunnée and Ellen He (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, Oxford, 2007) 449–466.
Hurst Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’(1998) 25 Georgia Journal of International and Comparative Law 287–397, 289.
hrc, General Comment No. 36: The Right to Life (Art. 6), adopted 30 Oct. 2018 at the 124th Sess., ccpr/C/gc/36, para 62.
Alston, (n 15) at 615.
African (Banjul) Charter on Human and Peoples’ Rights, adopted 27 Jun. 1981, oau Doc. cab/leg/67/3 rev. 5, 21 ilm 58 (1982), entered into force 21 Oct.1986.
African Union Convention for the Protection and Assistance of Internally-Displaced Persons in Africa (Kampala Convention), adopted 23 Oct 2009, <https://au.int/en/treaties/african-union-convention-protection-and-assistance-internally-displaced-persons-africa> accessed 31 August 2020; Ademola O Jegede, ‘Rights away from home: Climate-induced Displacement of Indigenous Peoples and the Extraterritorial Application of the Kampala Convention’ (2016) 16(1) African Human Rights Law Journal 58–82.
Alston, (n 15) at 615.
‘Paris Agreement – Status of Ratification’ <https://unfccc.int/process/the-paris-agreement/status-of-ratification> accessed 31 August 2020.
Paris Agreement 2015, (n 14), art 2.
Alston, (n 15) at 615; see icj Statute, (n 76), art 38(1)(b); Continental Shelf (Libya v. Malta), 1985 I. C. J. 13 (June 3) para 33 where the icj relied solely on state practice in parts of its judgment; see also International Court of Justice, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo), Merits, Judgment, 30 Nov. 2010, I. C. J. Reports 2010, para 639; but see International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, 1996 General List No. 95 where court avoided the argument relating to state practice made by both parties before it; on general discussion of the concept, see generally, Mark A Wesburd, ‘The International Court of Justice and the Concept of State Practice’ (2009) 31(2) University of Pennsylvania Journal of International Law 295–372, 306.
Harmen van der Wil, ‘State Practice as Element of Customary International Law: A White Knight in International Criminal Law?’ (2019) International Criminal Law Review 1–21, 12.
Gbemre v. Shell Petroleum Development Company Nigeria Limited and Others [2005]) ahrlr 151 (NgHC 2005).
Ibid, para 51.
Ibid, paras 5–7.
Earthlife Africa Johannesburg v. Minister of Environmental Affairs and others [2017] jol 37526 (gp).
Ibid, para 117.
See Ademola O Jegede & Walter Makulana, ‘Climate Change Interventions in South Africa: The Significance of Earthlife Africa Johannesburg v Minister of Environmental Affairs and others [2017] jol 37526 (gp)’ (2019) 15(2) Obiter 399–407.
Urgenda Foundation v The State of the Netherlands, C/09/456689/ha za 13–1396 (24 Jun.2015); for a review of the case, see Kans J de Graaf and Jan H. Jans, ‘The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change’ (2015) 27(3) Journal of Environmental Law 517–527; see also Ademola O Jegede, ‘Climate Change and Environmental Constitutionalism A Reflection on Domestic Challenges and Possibilities’, in James R May and Erin Daly (eds), Implementing Environmental Constitutionalism (Cambridge University Press, 2018) 84–97, 92.
Climate Case Ireland <https://www.climatecaseireland.ie> accessed 31 August 2020; see generally Annalisa Savaresi and Juan Auz, ‘Climate Change Litigation and Human Rights: Pushing the Boundaries’ (2019) 9(3) Climate Law 244–262.
Special Rapporteur on Human Rights and the Environment, Statement on the Human Rights Obligations related to Climate Change with a Particular Focus on the Right to Life, 2018, <https://www.ohchr.org/Documents/Issues/Environment/FriendsIrishEnvironment25Oct2018.pdf> accessed 31 August 2020.
First Amended Complaint for Declaratory and Injunctive Relief, Juliana v. United States (D.Or.) Case No.: 6:15-cv-01517-tc (Sept. 10, 2015) paras 131, 282 (Juliana Amended Complaint).
Ibid, paras 283, 285.
Juliana v United States, No. 6:15-cv-01517-tc (D.Or. Nov. 10, 2016) para 82.
See generally Irma S Russell, ‘Listening to the Silence: Implementing Constitutional Environmentalism in the United States’, in May and Day (eds), (n 115) at 209.
Juliana v United States, Court of Appeals for the ninth circuit No. 18-36082 D. C. No. 6:15-cv-01517-aa (2020) paras 11, 25–28.
Juliana v. United States <http://climatecasechart.com/case/juliana-v-united-states/?cn-reloaded=1> accessed 31 August 2020, a rehearing filed on the matter is being opposed on similar grounds.
Julia Laffranque, ‘Dissenting Opinion and Judicial Independence’ (2003) viii Juridical International Law Review 170–171 arguing the influence of dissenting opinions. The author cited as an example the decision in President of the Republic of South Africa and another v Hugo (South-Africa, Constitutional Court), 18 Apr. 1997, cct 11/96, which referred to and considered the dissenting opinion of McLachlin J of the Canadian Supreme Court in Committee for Commonwealth of Canada v Canada (1991) 77 dlr (4th) 385, para 96.
Children and Youth v. Colombian Government [2018] Supreme Court of Justice of Colombia stc4360-2018, 11001-22-03-000-2018-00319–01 (Future Generations v. Colombia) for translated excerpts of the case from Spanish to English language, see De Justicia, ‘Climate Change and Future Generations Lawsuit in Colombia: Key Excerpts from the Supreme Court’s Decision’<https://www.dejusticia.org/en/climate-change-and-future-generations-lawsuit-in-colombia-key-excerpts-from-the-supreme-courts-decision/> accessed 31 August 2020.
Ibid.
unfccc, ‘nd Staging’ <https://www4.unfccc.int/sites/ndcstaging/Pages/Home.aspx> accessed 31 August 2020.
‘unfccc <https://unfccc.int/news/new-era-of-global-climate-action-to-begin-under-paris-climate-change-agreement-0> accessed 31 August 2020; Frederic Sourgens, ‘Paris Agreement: Regained or Lost? Initial Thoughts’ ejil: Talk! <https://www.ejiltalk.org/paris-agreement-regained-or-lost-initial-thoughts/> accessed 31 August 2020.
unsr on Good Practices, (n 5), para 57.
unsr on Good Practices, (n 5), para 50.
Global Trends in Climate Change Legislation and Litigation: 2018 Snapshot, Grantham Research Institute on Climate Change and the Environment, para 51.
Report of unsr on the Environment, (n 5), para 2.
Corinne Le Quéré and others, (n 31) at 213–17; Hannah Ritchie & Max Roser, ‘co₂ and Greenhouse Gas Emissions’ 2019 <https://ourworldindata.org/co2-and-other-greenhouse-gas-emissions> accessed 31 August 2020.
See Michael Akehurst, ‘Custom as a Source of International Law’ (1975) 47 (1) British Yearbook of International Law 1–53, arguing that statements are themselves enough acts to constitute state practice; but see Jörg Kammerhofer, ‘Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems’ (2004) 15 (3) European Journal of International Law 523–553, questioning this position but admitting that it is difficult to argue for and against it.
Alston, (n 15) at 615.
Sumudu Atapattu, ‘The Public Health Impact of Global Environmental Problems and the Role of International law’(2004) 30 American Journal of Law & Medicine 283–304; Moritz von Normann, ‘Does a Human Rights-based Approach to Climate Change lead to Ecological Justice?’ delivered at Lund Conference on Earth System Governance Towards a Just and Legitimate Earth System Governance: Addressing Inequalities Apr. 18–20, 2012.
Declaration on Environment and Development, adopted at the United Nations Conference on Environment and Development, at Rio de Janeiro from 3–14 June 1992 (Rio Declaration]; unfccc , (n 13); Agenda 21, adopted at the United Nations Conference on Environment and Development, at Rio de Janeiro from 3–14 June 1992 (Agenda 21).
udhr, (n 89), art 3; International Covenant on Civil and Political Rights (iccpr), adopted 16 Dec. 1966, G. A. Res.2200 (xxi), U.N. gaor, 21st Sess., U.N. Doc. A/6316 (1966), 999 unts 171 (entered into force 23 Mar. 1976) art 6.
udhr , (n 89), art 19; iccpr , (n 138), art 19 (2).
udhr , (n 89), art 3; iccpr , (n 138), art 9.
udhr , (n 89), art 20; iccpr , (n 138), art 21.
udhr , (n 89), art 19; iccpr , (n 138), art 22.
International Covenant on Economic, Social and Cultural Rights (icescr), adopted 16 Dec. 1966, 993 unts 3 (entered into force 3 Jan. 1976). See also udhr , (n 89), art 25.
General Comment No. 15, (n 64).
Oliver De Schutter, Economic, Social and Cultural Rights as Human Rights: An introduction, (2013) cridho Working Paper 2, 6 <http://cridho.uclouvain.be/documents/Working.Papers/CRIDHO-WP2013-2-ODeSchutterESCRights.pdf> accessed 31 August 2020; ohchr, International Human Rights Law, <http://www.ohchr.org/en/professionalinterest/pages/internationallaw.aspx> accessed 31 August 2020.
Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (2nd edn, Princeton University Press, 1996) 52; Austin Eide, ‘Realisation of Social and Economic Rights and the Minimum Threshold Approach’ (1989) 10 Human Rights Law Journal 35–51.
Ibid.
Eide, (n 146).
cescr, General Comment No. 12: The Right to Adequate Food, UN Doc. E/C.12/1999/5 (1999) paras 14–20; cescr, General Comment No. 13: The Right to Education, E/C.12/1999/10, (1999) paras 46–48.
On these procedures under the UN system, see United Nations Human Rights Office of the High Commissioner Human Rights Bodies, Complaints Procedures <https://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx> accessed 31 August 2020 ; United Nations Human Rights Office of the High Commissioner, Monitoring the core International Human Rights Treaties, <https://www.ohchr.org/EN/HRBodies/Pages/WhatTBDo.aspx> accessed 31 August 2020.
South West Africa case, (n 80); Öberg, (n 80).
See generally, United Nations International Human Rights Instruments, Compilation of Guidelines on the Form and Content of Reports to be submitted by States Parties to the International Human Rights Treaties, hri/gen/2/Rev.6 3 Jun. 2009; some treaty bodies have upgraded their reporting guidelines, for example see, Rules of Procedure of the Human Rights Committee, adopted 9 Jan. 2019, Hum. Rts. Comm., 124th Sess., 3567th mtg., UN Doc. ccpr/C/3/Rev.11 (2019) r 96 ( hrc Rules of Procedure).
See respectively, unfccc , (n 13), art 12; and Paris Agreement 2015, (n 14), arts 3 and 4.
See, Provisional Rules of Procedure Under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted 15 Jan 2013, UN Doc E/C.12/49/3 (2013) r 14; Guidance on Third-Party Interventions, Comm. On Econ., Soc. & Cult. Rts., 59th Sess. (2016) ( cescr Guidance on Third-Party Interventions); hrc Rules of Procedure, (n152), r 96; on emerging jurisprudence relating to the application of these rules and social economic rights, see Sandra Liebenberg, ‘Between Sovereignty and Accountability: The Emerging Jurisprudence of the United Nations Committee on Economic, Social and Cultural Rights Under the Optional Protocol’(2020) 42(1) Human Rights Quarterly 48–84; other rules with similar provisions are cat Rules of Procedure, 1 Sep. 2014, adopted 1st and 2nd Sess., amended 13th, 15th, 28th, 45th and 50th Sess., UN doc cat/C/3/Rev.6 (2014) r 118(2) ( cat Amended Rules] ; Revised Rules of Procedure of the Committee on the Rights of Persons with Disabilities, adopted 10 Oct 2016, Committee on the Rights of Persons with Disabilities, 16th Sess., UN doc crpd/C/1/Rev.1 (2016) r 72(3) ( crpd Revised Rules) In terms of the specific rules of cat Amended Rules, the Committee may obtain at any time in the course of examination any document from United Nations bodies, specialized agencies, or other sources regarding communications; while the crpd Revised Rules generally accepts interventions from third parties.
Frans Viljoen & Adem Kassie, ‘Amicus Curiae Participation Before Regional Human Rights Bodies in Africa’ (2014) 58(1) Journal of African Law 22–44.
For examples, see hrc Rules of Procedure, (n 152), r 96(4); cescr Guidance on Third-Party Interventions, (n 154), r 5.
cescr Guidance on Third-Party Interventions, (n 154), preamble and r 1; See also the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted 18 June 2008, G. A. Res. 63/117, UN Doc A/res/63/117 (entered into force 5 May 2013) which only provides in its art. 8(3) for the Committee to consult third parties, a provision that signifies that third party submissions cannot be made without request by the Committee.
hrc Rules of Procedure, (n 152), r 96(1).
Guidelines on third-party interventions under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (opic), adopted 20 Jan. – 7 Feb. 2020, 83d Sess., preamble <https://www.ohchr.org/Documents/HRBodies/CRC/GuidelinesTPI.pdf>; See also cat Amended Rules, (n 154); and crpd Revised Rules, (n 154).
cescr Guidance on Third-Party Interventions, (n154).
Report of unsr on the Environment, (n 5), para 76.
Vienna Convention on the Law of Treaties, art 32, opened for signature 23 May 1969, 1155 unts 331.
International Convention on the Elimination of All Forms of Racial Discrimination, adopted and opened for signature and ratification 21 Dec. 1965, ga Res. 2106 (xx) (entered into force 4 Jan. 1969).
Convention on the Elimination of All Forms of Discrimination Against Women, (n 51).
icescr , (n 143), art 29; iccpr , (n 138), art 51; Convention on the Rights of the Child, (n 59), art 50.
Timothée Ourbak & Alexandre K. Magnan, ‘The Paris Agreement and Climate Change Negotiations: Small Islands, Big Players’ (2018) 18 (8) Regional Environmental Change 2201–2207.
Limon, (n 9), 440–444; Knox, (n 11), 479–484.
Benoit Mayer, ‘Human Rights in the Paris Agreement’ (2016) 6 Climate Law 109–117, 114; Sébastien Duyck, ‘The Paris Climate Agreement and the Protection of Human Rights in a Changing Climate’ (2015) 26 Yearbook of International Environmental Law 3–45.