Climate Change and Human Rights

An International and Comparative Law Perspective

Ottavio Quirico, Mouloud Boumghar, Ottavio Quirico, Mouloud Boumghar

• Verlag: Routledge
• Jahr: 2015
• ISBN:
  9781317662679
• Auflage: 1
• Thema: Jura
• Thema: Rechtstheorie & -praxis

Do anthropogenic greenhouse gas emissions affect human rights? Should fundamental rights constrain climate policies? Scientific evidence demonstrates that anthropogenic greenhouse gas emissions contribute to increasing atmospheric temperatures, soon passing the compromising threshold of 2° C. Consequences such as Typhoon Haiyan prove that climate alteration has the potential to significantly impair basic human needs. Although the United Nations Framework Convention on Climate Change and human rights regulatory regimes have so far proceeded separately, awareness is arising about their reciprocal implications. Based on tripartite fundamental obligations, this volume explores the relationship between climate change and interdependent human rights, through the lens of an international and comparative perspective. Along the lines of the metaphor of the 'wall', the research ultimately investigates the possibility of overcoming the divide between universal rights and climate change, and underlying barriers.

This book aims to be a useful resource not only for practitioners, policymakers, academics, and students in international, comparative, environmental law and politics and human rights, but also for the wider public.

Part I

General framework

1 States, climate change and tripartite human rights

The missing link

Ottavio Quirico, Jürgen Bröhmer and Marcel Szabó

Introduction

Relevant scientific evidence demonstrates that anthropogenic GHG emissions almost certainly have an impact on climate change (general causation). Currently, GHGs are estimated at 430 ppm CO₂e,¹ approximately doubling pre-industrial concentrations. In order to contain temperature increase within the sustainable threshold of no more than 2º Celsius, GHGs must be stabilised between 450 and 550 ppm, halving current emissions by 2050.² Higher atmospheric temperatures would have negative environmental consequences, increasing phenomena such as rising sea level, droughts, floods, land degradation, and cyclones.³

As recognised by the UN HRC in Resolutions 7/23 (2008) and 10/4 (2009), this chain of facts impacts on legal obligations (specific causation), including human rights, such as the rights to life, adequate food, housing, health, water and self-determination.⁴

Briefly, it is possible to represent the outlined causation pattern as follows:

(1) anthropogenic GHG emissions → (2) rising atmospheric temperatures (climate change) → (3) further environmental changes (general causation) → (4) legal effects, including breaches of (human) rights of (present and future) generations (specific causation).⁵

Within the context of such a complex chain, the Cancun Agreements provide that the ‘Parties [to the UNFCCC] should, in all climate change-related actions, fully respect human rights’.⁶ Climate change-related action encompasses mitigation, that is ‘anthropogenic intervention to reduce the sources of GHGs or enhance their sinks’,⁷ and adaptation, that is ‘adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities’.⁸ According to the OHCHR, such conduct is informed by the State duties to respect, protect and fulfil human rights.⁹

This chapter considers the impact of tripartite human rights obligations on anthropogenic GHG emissions. More specifically, the analysis addresses the question as to whether or not, and to what extent, the obligations to respect, protect and fulfil human rights compel States to take mitigation and adaptation measures against climate change. The issue is considered by taking a backward approach to the GHG–human rights chain of causation, exploring its objective and subjective elements. Furthermore, the chapter begins by tackling existing first and second generation human rights and is concluded by taking into account evolving third generation human rights, in particular, the right to (a sustainable) environment.

1. GHG emissions and tripartite human right obligations

Who has to do what to avoid cumulatively causing climate change and adapt to its effects? Around 30 per cent of current GHG emissions come from the electricity sector, 28 per cent from transportation, 20 per cent from other industrial sectors, 10 per cent from the agricultural industry, and 10 per cent from residential and commercial activities.¹⁰ Within this context, the picture of State responsibility is not excessively complex. Out of the currently existing 200 States of the international community, almost a half of total GHG emissions are produced by the US and China, more than a half by these two States plus India and Russia, and more than two-thirds by all these countries plus European States.¹¹

With regard to tripartite human rights obligations, since States’ GHG emissions are the result of aggregate emissions by public and private corporations and natural persons,¹² States might be held overall liable under the obligation to respect human rights, which entails a duty not to take action interfering with fundamental claims and is therefore negative.¹³ Part of the Inuit petition to the IAComHR is based on this approach. In this case, the Inuit filed their complaint with the Commission against the US for emitting unsustainable GHGs, causing the melting of the Arctic ice-cap and thus breaching several human rights.¹⁴ Grounded in the ADRDM, ACHR, ICCPR, ICESCR, UNFCCC and the Kyoto Protocol, the petition claims violations of fundamental rights such as the rights to property, health, life, physical integrity, residence, movement and inviolability of home, inter alia, because of positive ‘action’, that is, aggregate GHG emissions, by the US.¹⁵ More analytically, when GHGs are emitted by public agents and corporations, State responsibility might be established for positive action, in breach of the negative obligation to respect human rights.¹⁶ This responsibility may be fostered by conduct aimed at increasing GHG emissions, such as ‘denying, distorting and suppressing scientific evidence’ on climate change, which the Inuit petition imputes to the US government.¹⁷

With respect to non-State natural and legal persons, in particular private energy corporations, a more correct human rights framework to approach State mitigation measures is provided by the obligation to protect human rights. This obligation implies for States a duty to prevent and punish human rights breaches caused by third parties, and is thus positive.¹⁸ There is therefore room for the view that States are compelled to implement regulatory measures that exclude or limit GHGs emitted by third persons, in order to achieve sustainable emissions. This is the stance taken by the Arctic Athabaskan Council in a petition filed with the IAComHR against Canada for insufficient regulation of black carbon emissions.¹⁹ In turn, third entities, such as energy corporations, might be held responsible under the obligation to respect human rights.²⁰

The obligation to fulfil human rights, which is positive and compels States to facilitate, provide and promote the enjoyment of fundamental claims,²¹ is also relevant to mitigation measures, to the extent that the latter can be interpreted as a means of facilitating satisfactory fundamental rights. However, this duty is particularly important for adaptation measures.²² In fact, if rising average temperatures affect the enjoyment of specific human rights, for instance, the right to water owing to desertification, it is sensible to assume that the State has an obligation to provide water and thus facilitate the enjoyment of that specific fundamental right.

Finally, States may be held responsible for actively breaching human rights when they take positive action aiming to mitigate GHG emissions and deploy adaptation measures.²³ Not taking action should initially generate State responsibility under the obligations to respect, protect and fulfil human rights, but the negative obligation to respect human rights and the positive obligation to fulfil them are also particularly relevant when States take action.²⁴

2. Respecting human rights

Along the lines of the Trail Smelter arbitration, transboundary pollution can give rise to State responsibility,²⁵ and that is also true of anthropogenic GHG emissions.²⁶

Non-State natural and legal persons, in particular energy corporations, may be held responsible for exceeding GHG emissions limits. Although it is problematic internationally, because of the limited personality of non-State entities, this is domestically possible when emission caps are established under administrative law.²⁷

As for States, in addition to the hypothesis of aggregate emissions, responsibility might be engaged both domestically and internationally for emissions by public agencies breaching the obligation to respect human rights, provided a causal link can be demonstrated between unsustainable GHG emissions and specific first and second generation human rights.²⁸ Such a logical pattern underpins the request of the Federal State of Micronesia to the Czech Minister for Environment to conduct an environmental impact assessment (EIA) of the project of modernisation of Prunerov II power plant under Article 1(b)(11) of Czech EIA Law 100/2001. Prunerov II is operated by CEZ, a State-owned monopoly. It is the largest source of CO₂ in the Czech Republic, and its modernisation would lead to the emission of 0.021 per cent of global CO₂ in the next 25 years.²⁹

Similarly, with regard to first and second generation human rights and environmental protection, in Fadeyeva v Russia the ECtHR held Russia responsible for failing to regulate a large iron smelter located in Cherepovets. The plant was run by the Ministry of Black Metallurgy of the Russian Soviet Federative Socialist Republic and released high levels of climate pollutants beyond the nationally set threshold. More specifically, according to the Court, Russian authorities failed to design and apply effective measures to reduce the industrial pollution to acceptable levels.³⁰ Along these lines, in Öneryıldız v Turkey the ECtHR adjudicated upon the case of an applicant’s dwelling built without authorisation on land surrounding a municipal rubbish tip under the authority of a local mayor answerable to the District Council.³¹ In April 1993, a methane explosion occurred at the tip and the refuse erupting from the pile of waste engulfed more than ten surrounding houses, including that of the applicant, who lost nine relatives. The Court found that the Turkish government violated Article 2 ECHR, because it had not provided the slum inhabitants with information about the risks of living in a dangerous area; and even if it had done so, the government was to be considered responsible for not taking measures necessary to prevent the explosion, in spite of an alarming expert report. The State regulatory framework had proved defective, since the tip had been allowed to open and operate without a coherent supervisory system. Also the town-planning policy was considered inadequate and part of the sequence of events leading to the accident.³² In our view, in these cases the public nature of the legal persons operating the defective plants triggers State responsibility under the obligation to respect, rather than protect, human rights.

Conversely, as to emissions by private persons, the international and domestic responsibility of the State should be primarily engaged under the obligation to protect human rights, which compels prevention and punishment of human rights violations committed by private entities.³³ However, at least under international law, it is also possible to think of directly attributing the conduct of non-State agents to the State, thus triggering the responsibility of the latter for breaching the obligation to respect human rights. The attribution process should take place under Article 8 of the ILC’s 2001 Draft Articles on State Responsibility, which provides that the conduct of a ‘person or a group of persons’ can be imputed to the State ‘if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’.³⁴ This mechanism raises the question as to whether GHGs emitted by private legal persons can be attributed to the State. A positive answer would permit the consideration of direct State responsibility for breac...

Inhaltsverzeichnis

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Foreword
• Introduction
• Part I General framework
• Part II Specific rights
• Part III Specific regimes
• Part IV Institutional prospects
• Conclusion
• Appendix – CO2 emissions
• Documents
• Cases
• Bibliography
• Index
• Abbreviations
• Notes of Contributors
• Detailed contents
• Acknowledgements