Abstract
This chapter is centred around the first legal cluster that the book analyses in a critical perspective. It focuses on the interaction between climate change and human rights by taking into consideration critical legal approaches on the conceptualization of human rights. Such critical approaches also consider Indigenous conceptualization of the relationship between humankind and nature. It then focuses on the challenges related to substantive rights, participatory and procedural rights in climate change governance.The second part of the chapter narrows the focus of the investigation to environmental human rights, firstly by providing a critical overview of the right to a healthy environment, and then elaborating the justice focus of some substantive rights vis a vis climate change impacts..
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Notes
- 1.
Sen defines human rights as “ethical pronouncements” with political connotations (Sen, 2009).
- 2.
In the modern conceptualization of human rights, the recognition of what constituted a “human” was based on the criteria of capacity of reason and autonomous moral will. This conceptualization excluded slaves, Indigenous peoples, women, impoverished and the insane from being considered human and, therefore, entitled to human rights. Such an exclusion justified colonization and imperialism in order to accomplish a civilizing mission, which would ultimately turn the “non-human” into “human” through practices of assimilation.
- 3.
This point resonates with Baxi’s thought: “The emergent paradigm insists upon the promotion and protection of the collective human rights of global capital in ways that ‘justify’ corporate well being and dignity even when it entails gross and flagrant violation of human rights of actually existing human beings and communities”, as cited by (Grear, 2007).
- 4.
The no harm principle, applied in an environmental context, appears for the first time in the 1941 Trail Smelter case (US v. Canada). In this case, the court established that “no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or the persons therein”. The principle was then confirmed by the ICJ in the Corfu Channel case (UK v. Albania). Following the adoption of Resolution 1803, this principle has been considered a corollary of the principle of permanent sovereignty over natural resources. This principle was limited by the duty not to cause damage to other states and only in 1972 with the Stockholm Declaration was the link made between the sovereignty principle and the responsibility not to cause damage (Principle 21). The Stockholm Declaration went beyond the idea of transboundary harm, since it also referred to the obligation not to cause damage “to the environment of other States or areas beyond the limits of national jurisdiction” (See generally: Dupuy & Viñuales, 2018).
- 5.
The duty to cooperate is a general duty well established in international law. In environmental law, this duty has taken different forms including a duty to cooperate in a spirit of global partnership (duty for the states to respect the global commons) and a duty to cooperate in a transboundary context (establishment of minimal requirements of cooperation in a transboundary context through norms such as notification and consultation with and prior informed consent of states potentially affected by an environmental activity). The principle of cooperation seems to have substantive meaning because it encompasses principles and concepts. In international environmental law, the duty of cooperation has been translated into requirements of information exchange, joint evaluation of environmental impacts of certain activities and the consultation of the secretariat of an environmental treaty of particular relevance to the case (Dupuy & Viñuales, 2018).
- 6.
Sustainable development is the general principle affirming that human development, and the use of natural resources, must be conducted in a suitable manner. Sustainable development was defined at the 1992 UN Conference on Environment and Development in Rio de Janeiro as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. There are at least four main elements that are encompassed within the general principle of sustainable development: (1) inter-generational equity; (2) sustainable use of resources: (3) equitable use or intra-generational equity; (4) integration of environmental and developmental needs (Sunkin et al., 2002, pp. 45–49).
- 7.
The preventive principle aims at minimizing the possible environmental damage that will derive from an activity and that action should be taken before such damage occurs. At an international level, the application of this principle is particularly significant as states commit themselves to avoid causing environmental pollution within their domestic borders in addition to not causing environmental damage in areas beyond their national jurisdiction. An example of this principle can be found in Article 194 of the 1982 Convention on the Law of the Sea which obliges the signatories to prevent pollution of the marine environment (including in areas beyond national jurisdiction).
- 8.
The precautionary principle is different from the preventive principle. The precautionary principle can be used to reverse the burden of proof: the activity must be proven not to cause pollution before it is implemented. This principle applies when there is scientific uncertainty, as stated in Principle 15 of the Rio Declaration (“where there are threats of serious or irreversible damage lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”) (Dupuy & Viñuales, 2018).
- 9.
This principle provides that the costs of environmental pollution should be paid by the state that has caused the damage. This principle can have a specific and a general application. In the first case, we refer to rules governing civil and state liability for environmental damage due to hazardous activities (some examples are the 1992 Convention on Civil Liability for Oil Pollution Damage and the 2000 European Commission White Paper on Environmental Liability). In the case of general application, its meaning relates more to the fact that all economic activities that affect the environment should be accounted for in the pricing system for goods and services resulting from such an activity. This process is called the “internalisation of environmental costs” (Sunkin et al., 2002).
- 10.
The CBDR principle aims to distribute the efforts required for the management of global environmental problems among states on the basis of their historical responsibilities and respective capabilities. This principle highlights the development needs of less developed countries and their lower contribution to current environmental problems such as climate change. Developed countries regard this principle as a tool to ensure the participation of developing countries in the management of global environmental problems. The CBDR principle was first enshrined in principle 7 of the Rio Declaration. It is also embodied in the UNFCCC and in the Convention on Biological Diversity (Dupuy & Viñuales, 2018).
- 11.
Kyoto Protocol, Art. 3. This obligation could be fulfilled jointly or individually, since the Protocol envisaged four flexibility mechanisms: joint implementation, emission trading, the bubble and the clean development mechanism. (see also Nicelli & Ramdas, 2013).
- 12.
See Decision 1/CP.13, Bali Action Plan, in United Nations Climate Change Conference, Dec. 3–15, 2007, Report of the Conference of the Parties on its Thirteenth Session, U.N. Doc FCCC/CP/2007/6/Add.12008.
- 13.
Developing countries contested that their high levels of emissions where necessary to undertake their economic development goals, and that they were entitled to such economic growth just as the western countries (Atapattu, 2016).
- 14.
Bali Action Plan, FCCC/CP/2007/6/Add.1* 14 March 2008.
- 15.
This problem is more specifically addressed in Chap. 4.
- 16.
Human Rights Council, Resolution 7/23 Human Rights and Climate Change, A/HRC/RES/7/23, 2008.
- 17.
“Noting resolution 10/4 of the United Nations Human Rights Council on human rights and climate change, which recognizes that the adverse effects of climate change have a range of direct and indirect implications for the effective enjoyment of human rights and that the effects of climate change will be felt most acutely by those segments of the population that are already vulnerable owing to geography, gender, age, Indigenous or minority status, or disability”, UNFCCC Report of the COP16, FCCC/2010/7/Add.1.
- 18.
Ibid, para 12.
- 19.
UNFCCC, Cancun Adaptation Framework, 2011, at https://unfccc.int/process/conferences/pastconferences/cancun-climate-change-conference-november-2010/statements-and-resources/Agreements, last accessed September 2022.
- 20.
At the COP17 in Durban, the state parties agreed for the institution of a Green Climate Fund to assist the poorest countries to tackle the worst effects of climate change. See also: Launching of the Green Climate Fund, available at: https://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf, last accessed September 2022.
- 21.
At Doha, parties decided to extend the Kyoto commitments for a second period (2013–2020), meaning that the division between Annex I and Non-annex I countries was intended to remain for another eight years. The amendment of the Kyoto Protocol set a new target for the emissions reductions at 18%. See also: Doha Amendment to the Kyoto Protocol, available at https://unfccc.int/process/the-kyoto-protocol/the-doha-amendment, last accessed September 2022.
- 22.
At Warsaw COP the Warsaw International Mechanism for Loss and Damage was established. This instrument was aimed at guaranteeing a system of protection for those most vulnerable peoples against damages caused by extreme weather events and slow-onset events. A funding of $280 million was pledged for the Warsaw Framework for REDD+ programme.
- 23.
“Stressing that all actions to address climate change and all the processes established under this agreement should ensure a gender-responsive approach, take into account environmental integrity / the protection of the integrity of Mother Earth, and respect human rights, the right to development and the rights of Indigenous peoples”, Lima Call for Climate Action, available at https://unfccc.int/files/meetings/lima_dec_2014/application/pdf/auv_cop20_lima_call_for_climate_action.pdf, last accessed September 2022.
- 24.
Ibid.
- 25.
Ibid.
- 26.
UNFCCC, Report of the Conference of the Parties on its nineteenth session, held in Warsaw from 11 to 23 November 2013. Addendum. Part two: Action taken by the Conference of the Parties at its nineteenth session, FCCC/CP/2013/10/Add.1, 2013.
- 27.
Tim Phillips, Fiona Harvey and Alan Yuhas, Breakthrough as US and China Agree to Ratify Paris Climate Deal, The Guardian, September 3, 2016: https://www.theguardian.com/environment/2016/sep/03/breakthrough-us-china-agree-ratify-paris-climate-change-deal#:~:text=The%20United%20States%20and%20China,the%20battle%20against%20global%20warming, last accessed September 2022.
- 28.
The SDGs have been instituted after the end of the Millennium Development Goals’ period, in 2015. These goals evolved into a new series of 17 objectives to be reached at a global level by 2030. For more information, visit https://sustainabledevelopment.un.org/, last accessed April 2021. Goal 13 (“Take urgent action to combat climate change and its impacts”) establishes a series of objectives which are climate-related, such as strengthening resilience, integrating climate change into national policies and planning and the mobilization of at least $100 million per year to be destined for the adaptation of developing countries. See also: https://sustainabledevelopment.un.org/sdg13, last accessed September 2022.
- 29.
“Also recognizing that sustainable lifestyles and sustainable patterns of consumption and production […]”, Paris Agreement, Preamble.
- 30.
“This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development”, Ibid, Art. 2.
- 31.
“Parties are encouraged to take action to implement and support, including through results-based payments, the existing framework as set out in related guidance and decisions already agreed under the Convention for: policy approaches and positive incentives for activities relating to reducing emissions from deforestation and forest degradation, and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries”, Ibid, Art. 5 para 2.
- 32.
Non-marked based approaches have the objective of enhancing the cost-effectiveness of mitigation actions and promoting mitigation actions while contributing to sustainable development of the implementing countries. They provide emissions reductions with an international dimension that requires cooperation for implementing action at other levels. See Article 6, Section 8 of the Paris Agreement.
- 33.
The Environmental Impact Assessment (EIA) was first established as an obligation by the US in 1969 through their National Environmental Policy Act. It was then incorporated into national laws of other states and also in Principle 17 of the Rio Declaration (“Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority”). The obligation to conduct an EIA derives from the formal source where the obligation derives from (treaty, custom, general principles); the spatial scope of the requirement (national, transboundary, global); and the specific content of the obligation. The duty to conduct an EIA is codified in the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context. The Espoo Convention establishes for state parties the duty to conduct an EIA before authorizing activities that may have a “significant adverse transboundary impact” (Dupuy & Viñuales, 2018; Montini, 2013).
- 34.
Congreso de la Republica, Ley N. 30754, Ley Marco sobre Cambio Climatico. See generally MINAM (Peruvian Ministry of the Environment) website. https://sinia.minam.gob.pe/documentos/ley-marco-cambio-climatico, last accessed April 2021.
- 35.
Ibid.
- 36.
Ibid., Article 2 section 2.2.
- 37.
Ibid.
- 38.
Ibid., Articles 3 and 4.
- 39.
Ibid., Article 17.
- 40.
Ibid., Articles 4 and 17.
- 41.
Economic Commission for Latin America and the Caribbean (ECLAC), Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, 2018.
- 42.
UNGA, Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3–14 June 1992) Annex I Rio Declaration on Environment and Development, A/CONF.151/26 (Vol. I).
- 43.
Article 5, “Access to Environmental Information”, Section 4: “Each Party shall guarantee that the above-mentioned persons or groups in vulnerable situations, including Indigenous peoples and ethnic groups, receive assistance in preparing their requests and obtain a response”; and in Article 7, “Public participation in the environmental decision-making process”, Section 15: “In the implementation of the present Agreement, each Party shall guarantee that its domestic legislation and international obligations in relation to the rights of Indigenous peoples and local communities are observed”, Economic Commission for Latin America and the Caribbean, Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, 2018.
- 44.
Article 7.
- 45.
Petition to the Inter-American Commission on Human Rights Seeking Relief From Violations Resulting from Global Warming Caused By Acts and Omissions of the United States, 2005. The plaintiffs claimed: “The impacts of climate change, caused by acts and omissions by the United States, violate the Inuit’s fundamental human rights protected by the American Declaration of the Rights and Duties of Man and other international instruments. These include their rights to the benefits of culture, to property, to the preservation of health, life, physical integrity, security, and a means of subsistence, and to residence, movement, and inviolability of the home”.
- 46.
See, for instance, the affirmation outlined in paragraph 1 of the Stockholm Declaration: “Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth […] Both aspects of man’s environment, the natural and the manmade, are essential to his well-being and to the enjoyment of basic human rights-even the right to life itself”, Declaration of the United Nations Conference on the Human Environment, Stockholm 1972.
- 47.
However, there are many non-anthropocentric legal theories that tend to substitute the anthropocentric approach with an earth-centred approach. The purpose of this approach is to realize a paradigmatic shift where human beings are not anymore at the centre of legal universe, and rights of nature are promoted by the recognition of legal personhood to natural elements (Aragão & Taylor, 2016; Boyd, 2017).
- 48.
These aspects are further analysed in Chap. 6.
- 49.
“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention”, Aarhus Convention, Article 1, Objective.
- 50.
Overview of the mandate, available at https://www.ohchr.org/en/special-procedures/sr-environment, last accessed September 2022.
- 51.
UNHRC, Human Rights and the Environment, Resolution 28/11, 7 April 2015, available at https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/28/11, last accessed April 2021.
- 52.
UNHCR, Framework Principles on Human Rights and the Environment, 2018.
- 53.
UNHCR, Human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, 19 July 2018, A/73/188.
- 54.
Ibid, Framework Principles 1 and 2.
- 55.
UNGA, 74th session, Human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, 15 July 2019, A/74/161.
- 56.
HRC, Resolution adopted by the Human Rights Council on 8 October 2021 48/13. The human right to a clean, healthy and sustainable environment, A/HRC/RES/48/13, 18 October 2021, at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G21/289/50/PDF/G2128950.pdf?OpenElement, last accessed September 2022.
- 57.
The European Parliament has recently interpellated the Commission around the steps that have been taken towards the recognition of a right to healthy environment at the global level. In fact, the Parliament has called for the EU to promote global recognition of the right to a safe, clean, healthy and sustainable environment at a global level (see European Parliament recommendation of 9 June 2021 to the Council on the 75th and 76th sessions of the United Nations General Assembly (Texts adopted, P9_TA(2021)0278)). In addition, the Parliament has called for the Union to take action to introduce the right to a safe and healthy environment in the Charter of Fundamental Rights of the European Union and to fully comply with Article 37 thereof. The Parliament has also underscored the importance of close cooperation with states and all relevant institutional actors involved in ensuring the proper implementation of human rights and environmental provisions and that the EU should lead the initiative to recognize a similar right internationally. See also: European Parliament resolution of 19 May 2021 on the effects of climate change on human rights and the role of environmental defenders on this matter (Texts adopted, P9_TA(2021)0245); European Parliament resolution of 9 June 2021 on the EU Biodiversity Strategy for 2030: Bringing nature back into our lives (Texts adopted, P9_TA(2021)0277).
- 58.
Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights, 1988.
- 59.
Ibid, para 46–48.
- 60.
See, for instance, Supreme Court of Colombia, Demanda Generaciones Futuras v. Minambiente, Decision of 5 April 2018; Lahore High Court, Leghari v. Federation of Pakistan, W.P. No. 25501/201, Decision of 4 April 2015; Lahore High Court, Maria Khan et al. v. Federation of Pakistan et al., No. 8960 of 2019; Superior Court of the Judicial District of Bogotá, Demanda Generaciones Futuras v. Minambiente, 2018.
- 61.
United Nations Environment Assembly of the United Nations Environment Programme, GEO-6 Key Messages, UNEP/EA.4/INF.18, para 4.
- 62.
See the report UN Secretary-General, ‘Gaps in International Environmental Law and Environment-Related Instruments: Towards a Global Pact for the Environment’ UN Doc A/73/419.
- 63.
“[C]limate change poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights”. HRC, Resolution 7/23 Human Rights and Climate Change, 2008, available at https://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_7_23.pdf, last accessed September 2022.
- 64.
HRC, 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, 2009, available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement, last accessed September 2022.
- 65.
Ibid, para 60.
- 66.
As also described in article 3 of the UNFCCC.
- 67.
The unequal burden of the effects of climate change is reflected in Article 3 of the UNFCCC (referred to as “the equity article”). It stipulates that parties should protect the climate system “on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities”; that developed countries “should take the lead in combating climate change and the adverse effects thereof” and that full consideration should be given to the needs of developing countries, especially “those that are particularly vulnerable to the adverse effects of climate change” and “that would have to bear a disproportionate or abnormal burden under the Convention” Giving operational meaning to the “equity principle” is a key challenge in ongoing climate change negotiations.
- 68.
From 1970 to 2008, over 95% of deaths related to extreme weather events occurred in developing countries (Intergovernmental Panel on Climate Change, 2012).
- 69.
See NASA website: https://climate.nasa.gov/vital-signs/arctic-sea-ice/, last accessed April 2021.
- 70.
European Conventions, African Charter and Inter-American Convention.
- 71.
Human Rights Committee, General Comment No 31, CCPR/C/21/Rev.1/Add. 1326 May 2004.
- 72.
IPCC, Intergovernmental Panel on Climate Change (IPCC) (2014): Climate Change: Impacts, Adaptation, and Vulnerability: Summary for Policy Makers. https://www.ipcc.ch/report/ar5/wg2/summary-for-policymakers/, last accessed September 2022.
- 73.
HRC, Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, supra note 64.
- 74.
Ibid, para 23.
- 75.
UNGA, Climate change and its possible security implications, A/64/350, September 2009.
- 76.
Human Rights Committee, Submission of the Maldives to the Office of the UN High Commissioner for Human Rights, September 2008.
- 77.
Article 11 of the International Covenant on Economic Social and Cultural Rights. Also refer to Committee on Economic Social and Cultural Rights, Substantive issues arising in the implementation of the International Covenant on Economic Social and Cultural Rights: General Comment 12 (Twentieth session, 1999), E/C.12/1999/5.
- 78.
SDG Zero Hunger Website, available at http://www.undp.org/content/undp/en/home/sustainable-development-goals/goal-2-zero-hunger.html, last accessed September 2022.
- 79.
OHCHR (2009): Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, UN Doc. A/HRC/10/61, para 15 and 17.
- 80.
UNDP, Human Development Report 2007/2008, available at http://www.hdr.undp.org/sites/default/files/reports/268/hdr_20072008_en_complete.pdf, last accessed April 2021.
- 81.
“[T]o ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner”, UNFCCC, Article 2.
- 82.
CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), E/C.12/2000/4.
- 83.
Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/62/214, August 2007.
- 84.
“Until mid-century, projected climate change will impact human health mainly by exacerbating health problems that already exist (very high confidence). Throughout the twenty-first century climate change is expected to lead to increases in ill-health in many regions and especially in developing countries with low income, as compared to a baseline without climate change (high confidence). Health impacts include greater likelihood of injury and death due to more intense heat waves and fires, increased risks from foodborne and waterborne diseases and loss of work capacity and reduced labour productivity in vulnerable populations (high confidence). Risks of undernutrition in poor regions will increase (high confidence). Risks from vector-borne diseases are projected to generally increase with warming, due to the extension of the infection area and season, despite reductions in some areas that become too hot for disease vectors (medium confidence)”, IPCC, supra note 72.
- 85.
CESCR, General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), E/C.12/2002/11, 2002.
- 86.
OHCHR, supra note 79.
- 87.
UN, Committee on Economic, Social and Cultural Rights (CESCR) (1992): General Comment No. 4. On the right to adequate housing. UN Doc. E/1992/23.
- 88.
UNGA, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, A/64/255, August 2009.
- 89.
Ibid.
- 90.
“Sea level rise and extreme weather events related to climate change are threatening the habitability and, in the longer term, the territorial existence of a number of low-lying island States. Equally, changes in the climate threaten to deprive Indigenous peoples of their traditional territories and sources of livelihood. Either of these impacts would have implications for the right to self-determination […] while there is no clear precedence to follow, it is clear that insofar as climate change poses a threat to the right of peoples to self-determination, States have a duty to take positive action, individually and jointly, to address and avert this threat. Equally, States have an obligation to take action to avert climate change impacts which threaten the cultural and social identity of Indigenous peoples”, see supra note 79.
- 91.
The most well-known climate refugee estimate was produced by Professor Myers from Oxford University in 2005, who argued that by 2050, about 200 million people will likely be forced to flee their homes due to extreme weather events, disruptions, flooding and drought. This prediction has become the accepted model for many neo-Malthusian climate refugee theorists, as predicted massive human migrations would cause problems of relocation, resource conflicts and collective security problems (see generally Brown, 2008).
- 92.
However, it should be noted that relevant carbon emissions studies are undergoing an important phase of production at the moment, and they include studies such as: Heede R. Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010; SpringerLink 2013 and the Carbon Majors Report, available at https://climateaccountability.org/carbonmajors.html, last accessed April 2021.
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Giacomini, G. (2022). The International Legal Framework: Human Rights and Climate Change. In: Indigenous Peoples and Climate Justice. Energy, Climate and the Environment. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-09508-5_3
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