State Responsibility, Climate Change and Human Rights under International Law

Margaretha Wewerinke-Singh

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509918454
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The last decade has witnessed an increasing focus on the relationship between climate change and human rights. Several international human rights bodies have expressed concern about the negative implications of climate change for the enjoyment of human rights, and the Paris Agreement is the first multilateral climate agreement to refer explicitly to states' human rights obligations in connection with climate change. Yet despite this, there are still significant gaps in our understanding of the role of international human rights law in enhancing accountability for climate action or inaction. As the Paris Agreement has shifted the focus of the climate change regime towards voluntary action, and the humanitarian impacts of climate change are increasingly being felt around the world, accountability for climate change has become an increasingly salient issue. This book offers a timely and comprehensive analysis of the legal issues related to accountability for the human rights impact of climate change, drawing on the state responsibility regime. It explains when and where state action relating to climate change may amount to a violation of human rights, and evaluates various avenues of legal redress available to victims. The overall analysis offers a perceptive insight into the potential of innovative rights-based climate actions to shape climate and energy policies around the world.

PART I

Legal and Conceptual Foundations

1

Introduction

Introduction: Climate Change as a Human Rights Issue

Climate change has been characterised as one of the defining challenges of our time.¹ The Nobel Prize winning Intergovernmental Panel on Climate Change (IPCC) has stated unequivocally in numerous reports that greenhouse gas-emitting human activities are causing global warming and associated damage to natural and human systems.² The Earth has now warmed by about 1.1°C since pre-industrialisation, and this is mostly attributable to the fossil fuel combustion that facilitated the economic development of what are now high-income countries from around 1750 onwards.³ Carbon dioxide stocked in the atmosphere were at an approximated level of 1,900 billion tonnes in 2013, a level unprecedented in at least 800,000 years, and one that continues to rise.⁴ The IPCC has indicated that as a result of these existing stocks, many aspects of climate change and associated impacts will continue for centuries even if anthropogenic emissions of greenhouse gases are stopped today.⁵ However, greenhouse gases have not been stopped and instead the flow of global emissions is expanding, partly as a result of increasing contributions from countries that have relatively recently embarked on carbon-intensive pathways of economic growth. This expansion leads to an accelerating increase of the atmospheric stocks of greenhouse gases which, if it continues, could have catastrophic consequences for human populations.

The IPCC’s reports make it clear that the adverse effects of climate change are already posing significant threats to human life, livelihoods and traditional cultures, especially in developing countries with a limited capacity to adapt.⁶ For example, inhabitants of low-lying coastal zones and small islands are facing an increased risk of death, injury, ill health and disrupted livelihoods due to storm surges, coastal flooding and rising sea levels. Poor populations in rural and urban areas face the risk that continuing rises in temperature, changing precipitation patterns and the increased occurrence of drought, extreme weather events and flooding will cause the breakdown of food systems on which they rely for sustenance. Urban populations are exposed to an increased risk of mortality and morbidity during periods of extreme heat; and fishing communities in the tropics and the Arctic are already facing climate change-induced water scarcity and irreversible degradation of marine and coastal ecosystems, all of which puts their traditional livelihoods at risk.⁷ It has been established with a relatively high degree of certainty that these specific impacts are attributable to climate change. An important premise of this book is that this attribution has normative consequences under existing international human rights law.

It is also significant that existing evidence provides insight into the consequences of various emission scenarios and the sort of actions needed to alleviate the risks of future climate change. The IPCC’s latest Physical Science Report carries a strong warning that without additional mitigation efforts, and even with adaptation, by the end of the twenty-first century warming will lead to a ‘high to very high risk of severe, widespread and irreversible impacts globally’.⁸ Pathways that are likely to limit warming to below 2°C relative to pre-industrial levels would require substantial emission reductions over the next few decades and near zero emissions by the end of the century, while pathways to limit warming to lower levels associated with lower risks to human life, health and traditional cultures will require deeper and more rapid cuts.⁹ In relation to emission pathways, the IPCC’s Mitigation Report stresses that mitigation and adaptation capacity differ immensely between countries, and that mitigation pathways that impose too heavy a burden on developing countries could reduce the resilience of populations to the impact of climate change and other causes of environmental stress.¹⁰ The International Energy Agency’s finding that 1.3 billion people are still without access to electricity and 2.6 billion people are without clean cooking facilities (over 95 per cent of them in sub-Saharan African or developing Asia) illustrates the IPCC’s recommendation that effective global mitigation pathways must involve international cooperation to create or facilitate sustainable development pathways in all regions.¹¹

International human rights law is prima facie relevant to climate change because its impacts, as well as measures to respond to climate change, have consequences for the enjoyment of internationally recognised human rights. Indeed, the link between climate change and human rights has been articulated in multilateral forums, by various human rights treaty bodies,¹² and by the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC).¹³ The first attempt to link human rights and climate change in an international agreement was made in November 2007, when several Small Island Developing States (SIDS) convened a conference on the human impact of climate change in order to stimulate concern about the human rights impacts of climate change at the international level. The Small Island Conference led to the adoption of a document that outlined the ‘clear and immediate impacts’ of climate change on human rights.¹⁴ Several months later the UN Human Rights Council adopted Resolution 7/23 on human rights and climate change, initiated by a ‘core group’ composed of the Maldives, Costa Rica and Switzerland. The resolution recognises that climate 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’.¹⁵ It also requested the Office of the United Nations High Commissioner on Human Rights (OHCHR) to undertake a detailed analytical study of the relationship between climate change and human rights.¹⁶ The OHCHR replied to the request from the Council by submitting a thirty-two page report to the Council’s 10th Regular Session.¹⁷ This report was based on OHCHR research and submissions from more than thirty States, thirteen inter-governmental organisations and seventeen non-governmental organisations.¹⁸ The report details the implications of climate change impacts and risks for the enjoyment of a range of human rights, including the rights to life, adequate food, safe drinking water and sanitation, the highest attainable standard of health, adequate housing and self-determination.¹⁹ In addition, it notes that ‘Industrialized countries, defined as Annex I countries under the UN Framework Convention on Climate Change, have historically contributed most to manmade greenhouse gas emissions’ while the impacts of climate change ‘disproportionally [affect] poorer regions and countries, that is, those who have generally contributed the least to human-induced climate change’.²⁰ It states that human rights standards and principles can ‘inform debates on equity and fair distribution of mitigation and adaptation burdens’ by ‘[focusing] attention on how a given distribution of burden affects the enjoyment of human rights’,²¹ and also explicitly mentions that States’ obligations to address climate change include obligations owed to non-nationals located outside a State’s territory.²² Another key finding is that ‘International human rights law complements the [UNFCCC] by underlining that international cooperation is not only expedient but also a human rights obligation and that its central objective is the realization of human rights’.²³ Yet the report fails to take these points to their logical conclusion, stating that ‘The physical impacts of global warming cannot easily be classified as human rights violations, not least because climate change-related harm often cannot clearly be attributed to acts or omissions of specific States’.²⁴ The report also suggests that it is difficult to establish climate change-related human rights violations because it is ‘virtually impossible to disentangle the complex causal relationships linking historical greenhouse gas emissions of a particular country with a specific climate change-related effect, let alone with the range of direct and indirect implications for human rights’.²⁵ Unfortunately these two claims confuse questions of evidence with legal issues of State responsibility: it is the conduct of States, and not the occurrence of weather-related impacts or the existence of causal relationships per se, which has the potential to produce legal consequences under existing international law.²⁶

Despite these shortcomings, the report appears to have consolidated a political consensus about the existence of a link between climate change and enjoyment of human rights.²⁷ This consensus is reflected in Resolution 10/4, adopted by the Council at its 10th Regular Session held in March 2009. Here too it was initiated by the Maldives, Costa Rica and Switzerland. The resolution lists specific rights that are implicated by climate change, building on the first OHCHR report: ‘inter alia, the right to life, the right to adequate food, the right to the highest attainable standard of health, the right to adequate housing, the right to self-determination and human rights obligations related to access to safe drinking water and sanitation’.²⁸ The Council also acknowledged that ‘human rights obligations and commitments have the potential to inform and strengthen international and national policymaking in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes’.²⁹ Climate change has since remained on the Council’s agenda: it has now adopted a total of eight resolutions on human rights and climate change³⁰ and held several seminars and panel discussions on the topic. The Human Rights Council has also encouraged its Special Procedures mandate-holders to consider climate change as part of their respective mandates.³¹ Several of them have since published reports on issues relating to climate change, and a group of mandate-holders issued a joint letter, statements and a report to highlight the importance of integrating human rights into climate action.³² The Special Rapporteur on Human Rights and the Environment in particular has actively engaged with the international climate change negotiations to encourage States to integrate human rights into climate action. The Human Rights Council now also regularly discusses the nexus between climate change and human rights under its Universal Periodic Review (UPR) process.³³ In sum, climate change has become a recurring feature on the Council’s agenda, and advocacy around the nexus can be expected to continue in years to come.

Climate Change, Human Rights and State Responsibility

It is worth noting that in the increasingly voluminous body of statements of international bodies linking climate change with human rights, no reference has, as yet, been made to ‘violations’ of human rights. Nevertheless, it has been suggested in the literature that climate change as such violates human rights.³⁴ This proposition undoubtedly has some rhetorical force. However, it disregards the doctrinal point that human rights violations result from the actions of States. This doctrinal point would seem to underpin much of the scepticism regarding human rights and climate change which characterises a significant part of the legal literature on the topic: Boda...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• Abbreviations
• Legal Materials
• PART I: LEGAL AND CONCEPTUAL FOUNDATIONS
• PART II: STATE RESPONSIBILITY AND REMEDIES FOR VIOLATIONS
• Bibliography
• Index
• Copyright Page