Abstract
Human rights law has been called upon to help with the problem of persistently high greenhouse gas emissions. An obligation on states and other legal entities to lower their emissions (mitigation) is said to be deducible from that body of law. I refute this thesis. First, I consider two practical difficulties—causality and non-triviality—that face a plaintiff who, with emission mitigation as the objective, attempts to prove a human rights violation using the regular pattern of proof for a violation. Proponents of the “human rights approach” to mitigation have held that proof of an emission “contribution” by the defendant together with proof of an “impact” by climate change on the plaintiff’s human rights are sufficient to discharge the evidentiary burden for the proof of causation. The rest of the causation chain is simply presumed. Thus, the original proof pattern for a human rights violation is abandoned. The proponents’ answer to the triviality difficulty has been to aggregate emitters into very large entities and sue them. However, aggregation can be shown to lead to a reductio ad absurdum. In my argument’s second part, I identify a more fundamental difficulty with the human rights approach to mitigation: The defendant’s emissions do not amount to a norm violation. Everyone contributes emissions without legislative or other prohibition. Treaty law on climate change itself recognizes emitting behaviour as lawful and permits the continuation of state emissions through to at least 2050. A rise in global warming from preindustrial levels to 1.5° Celsius with room for an even greater rise to close to 2° Celsius has been budgeted for by the Paris Agreement on Climate Change. The setting up of a budget affirms the normalized status of within-budget emissions. This universal license to emit denies the human rights approach to mitigation the very conditions of application of human rights law.
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Notes
Including Campbell-Duruflé and Atapattu (2018), Knox (2019), Lambooy and Palm (2017), Lewis (2018, p. 178), Liston (2020), Mayer (2021, pp. 449–450), Pedersen (2020), Peel and Osofsky (2018, p. 63), Rajamani (2010), Savaresi (2020), Savaresi and Auz (2019, pp. 248–249), Wewerinke-Singh (2018, p. 80), and Wewerinke-Singh and McCoach (2021)
See especially the three cases cited in fn. 1.
The overlap with the pattern for tort is discussed by Posner (2007). A duty of care is not part of the pattern, as it is with a tort, but elements (1) and (4), taken together, imply something like a duty of care. Where a violation is caused by inaction, a duty to act will need to be proven. The pattern’s elements are expressed in the past tense (for emissions already released), but the tense could be changed to cover emissions ongoing in the present or expected in the future.
I use “conditions of application” in the sense of “sphere of validity” of a legal norm—a concept introduced by Kelsen, which is elaborated by Navarro and Moreso (1997).
For examples, see Knox (2019, p. 168), Lewis (2018, p. 177), and Shell Case (DC 2021, para. 4.1.3). The term “protect” in these passages could mean protect by removing the causes or protect by shielding from the effects. See also the ambiguity in Rajamani (2010, p. 412) and Savaresi and Auz (2019, p. 249).
Wewerinke-Singh and McCoach (2021, p. 279), who take the court’s side on this point, themselves fail to give pinpoint references to where we might look to find the general embrace of the 25–40% figure in the sources mentioned by the court in its judgment.
The Shell court presumably took its 45% standard for 2030 from the IPCC (2018, para. C.1), where the IPCC writes: “In model pathways with no or limited overshoot of 1.5 °C, global net anthropogenic CO2 emissions decline by about 45% from 2010 levels by 2030 (40–60% interquartile range), reaching net zero around 2050 (2045–2055 interquartile range). For limiting global warming to below 2 °C CO2 emissions are projected to decline by about 25% by 2030 in most pathways (10–30% interquartile range) and reach net zero around 2070 (2065–2080 interquartile range).” In other words, the 45% figure is a middle value in a range, not a salient value; it concerns collective, not individual, mitigation; and it is for the 1.5 °C goal, not for the (equally legally permissible) below 2 °C goal, whose middle value is only 25%.
See Shell Case (DC 2021, paras 4.4.17–18), and the buildup to those sections.
For example, OHCHR (2011), which was relied on by the Shell decision, when read as a whole along with the examples of “abuse” it gives, is targeted despite its mostly general language at such matters as exploitative labor practices constituting “complicity in the commission of a crime” in another jurisdiction (ibid., p. 19), “the risk of gross human rights abuses … in conflict-affected areas” for which there might exist state responsibility for transnational business enterprises operating in those contexts (ibid., pp. 8–10), and “the incorporation of the provisions of the Rome Statute of the International Criminal Court in jurisdictions that provide for corporate criminal responsibility” (ibid., pp. 25–26). Climate change is not mentioned in OHCHR (2011). These Guiding Principles currently have no legal force.
Wewerinke-Singh writes that “international human rights law requires climate action that not only reflects States’ maximum efforts to combat climate change, but also leads to a fair distribution of mitigation … burdens at the local, domestic and global levels” (Wewerinke-Singh 2018, p. 83). Knox writes that “human rights law requires states to do what they can [to reduce their own emissions], and at a minimum requires them to take concrete actions to reduce their emissions on a schedule consistent with their international commitments” (Knox 2019, p. 177). Mayer writes that “to comply with its treaty obligation to protect a human right, a state must cooperate on the mitigation of climate change only if and only inasmuch as climate change cooperation may effectively protect the enjoyment of the right at issue by individuals within its territory or under its jurisdiction” (Mayer 2021, p. 413). If human rights law really requires these things, it is rendered irrelevant by the climate treaties, which say the same things except in much greater detail or more demandingly.
Mayer’s “windows-of-applicability” metaphor (Mayer 2021, pp. 445–447) amounts to nothing more than the claim that a state is obliged to implement its mitigation obligations under the climate treaties without breaching human rights law. This obvious point further simplifies to the truism that a state must uphold human rights law. To state the obvious in a convoluted and upside-down way (“a state [is] to mitigate climate change only if and inasmuch as this contributes to the effective protection of the treaty rights”: ibid., p. 447) is not to be “constructive” (ibid., p. 413) about eliciting the relevance of human rights law to emission mitigation; rather, it is to entirely miss the point that human rights law has no “window” on normal conduct.
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Zahar, A. Human Rights Law and the Obligation to Reduce Greenhouse Gas Emissions. Hum Rights Rev 23, 385–411 (2022). https://doi.org/10.1007/s12142-021-00648-8
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DOI: https://doi.org/10.1007/s12142-021-00648-8
Keywords
- Climate change
- Emission-reduction (mitigation) obligations
- United Nations Framework Convention on Climate Change (UNFCCC)
- Kyoto Protocol to UNFCCC
- Paris Agreement on Climate Change
- Test for a violation of human rights
- Conditions of application of human rights law
- Urgenda v. The Netherlands case
- Milieudefensie et al. v. Shell case