By Jolyon Ford, College of Law, ANU
Is framing climate change in terms of human rights a positive development for addressing climate change and its various impacts?
This week sees the much-anticipated Paris summit (Conference of Parties to the UN Framework Convention on Climate Change, ‘COP 21’). A growing and diverse constituency is calling for COP 21 to couch state climate change responses in the vocabulary of human rights. A draft ‘Climate Rights Declaration’ has been circulating, so far endorsed mainly by academics.
The call for a response to climate change that is couched in the language of human rights has developed only within the last decade, but has quickly gathered momentum. It has been widely recognised for some time that climate change will adversely impact the enjoyment of human rights, especially for vulnerable populations. The UN Human Rights Council has adopted Resolutions acknowledging as much since 2008 (Res. 7/23); most recently in July this year (Res. 29/15). At 2010’s COP 16 in Cancun, the outcome statement called for the first time on states to respect human rights in pursuing their climate change responses, although this language disappeared from subsequent COP processes.
Ahead of Paris, this year saw more sustained calls for states to deploy the language of human rights and to approach their COP 21 undertakings through the prism of their human rights obligations. In February, the Geneva Pledge on Human Rights and Climate Action was opened. In April, COP officials received a 14-strong delegation of Special Rapporteurs with human rights related mandates. This followed the release in December 2014 of a public Statement from the Special Procedures on human rights and climate change. Alongside this we’ve seen many institutional and advocacy reports, including the COP-directed November 2015 paper from the Office of the UN High Commissioner for Human Rights (OHCHR).
Much of this activity deals with issues going beyond the obvious impact that climate change will have on the enjoyment of human rights. As distinct from a focus solely on the right to a healthy environment, this activity explicitly frames state responses to climate change by reference to human rights principles, frameworks and procedures. It holds out the promise that a human rights based approach will increase the effectiveness, inclusivity and fairness of responses to climate change.
Former UN High Commissioner for Human Rights Mary Robinson has been the leading voice on the imperative – and practical utility – of approaching climate change responsibilities through the lens of human rights. Her refrain, based on seven ‘Principles of Climate Justice’, is about putting people and their suffering – not economies, or the environment – at the heart of global climate action. Her rationale is that ‘integration of human rights into climate change policies can improve [the] effectiveness [of those policies]’.
This rationale has some appeal and support. For example, the OHCHR states that such a framing ‘anchors [climate change] plans, policies and programmes in a system of rights and corresponding obligations’. It argues that such an approach is necessary in order to empower people to participate in policy-formation and to ensure state accountability, promoting ‘consistency, policy coherence and the enjoyment of human rights’. Former UN Special Rapporteur on the Right to Food Olivier de Schutter has argued that climate change is not merely a human rights issue, but rather that human rights can ‘solve’ the climate change problem. In his view, destructive practices can be ‘blocked’ on human rights grounds and rights institutions can ‘help overcome the problems of delivering collective action’.
The University of Queensland’s Karen McNamara argues that placing human rights at the heart of Australia’s climate response would make government agencies act with greater urgency. Similarly, an Australian human rights/climate change project views a human rights framework as ‘essential for understanding the urgency of acting on climate change’ and ‘necessary to communicate fully’ the human impact of climate change.
Related to such contributions are growing ‘climate justice’ campaigns. These seek remedies for groups adversely impacted by climate change, and often present arguments in human rights terms – both in law courts and in the ‘court of public opinion’. In 2015, one group secured a Netherlands court ruling that the Dutch state owes its populace a duty of care to mitigate climate harms. The litigants relied on the European human rights framework to reinforce their tort-based claim.
Is there any reason to oppose this growing consensus that the best approach to climate change is firmly founded in human rights?
Certainly, it is perfectly coherent to frame climate issues in human rights terms. How could one object if the linking and integration of issues produces compelling and easily communicable insights, or fosters preventive and remedial procedural avenues? What harm is done if the linkage increases the climate-related ambitions and attentiveness of global institutions, whatever their main mandate? The same goes for encouraging private sector climate change proactivity.
Yet at the risk of sounding unfashionable around Paris, I do wonder if the human rights turn in climate change advocacy requires closer scrutiny.
I wonder about the merits of claims that human rights lenses and language inevitably or automatically increase the perceived urgency of climate change issues and enhance the ability to communicate these issues, as well as the effectiveness of responses. Is it so obvious that framing the climate challenge in human rights terms necessarily enhances the likelihood, comprehensiveness, seriousness (etc.) of state, business and civic action to deal with climate change?
Mary Robinson argues that talking about ‘impacts on polar bears’ will produce limited reactions, whereas talking about ‘impacts on people’ will lead to meaningful action. Can we really be so sure? Has invoking human rights on other pressing issues had that crucial galvanising effect? Will rights-framing demonstrably change the game on climate action in ways that climate-related, economic, security, or other framings cannot? Or is it not possible that significant constituencies are in fact more likely to recognise the urgency of climate action by reference to planetary harms as opposed to yet another campaign about human rights and human vulnerability? Does an otherwise sound message about multi-issue connections and the need for cross-institutional integration also make the core problem of climate change seem too big to manage at all, in the way that rhetoric about ‘multi-stakeholder responsibility’ can perversely lead to a situation in which no one takes responsibility?
De Schutter’s claim that the existing human rights system can ‘solve’ climate change inertia requires us to believe that the system is highly effective. This is hardly self-evident. The widespread phenomenon of human rights ‘ritualism’ is evidenced by a yawning gap between states’ human rights treaty commitments and their implementation of these commitments. This should give us pause for thought, even if multilateral and national human rights institutions might stimulate state action on climate change in under-explored ways.
Earlier this year I participated in a Notre Dame Law School/International Bar Association workshop seeking to strengthen linkages between action on climate change and human rights approaches to corporate responsibility. The underlying sentiment was that climate change inertia is frustrating, and climate change targets, thresholds, and responsibilities are vague and diffuse. We should not despair, though, because international human rights provide a functional normative system with established mechanisms for ascribing responsibility – we simply need to connect the two discourses!
Now we should certainly explore productive linkages on pressing climate and human rights issues. But given state incapacity, apathy and resistance on human rights issues, this blind faith that injecting human rights will render the climate project more viable, visible or vital seems misplaced.
A number of questions in particular deserve attention. In Australia, could adding a ‘human rights’ label or lens in fact retard or distort responses to climate change, within officialdom, parliament, and beyond? Will a human rights perspective necessarily strengthen ‘climate justice’ litigation or public relations strategies? Are conventional human rights remedies of any utility to particular groups now confronting the impacts of climate change? Does the new and vague language of an ‘adverse impact’ on rights (as opposed to a breach or a violation) risk undermining something we value, in the context of unclear lines of causation and attribution for climate harms? While multiple avenues should exist, does the legalisation, lawyer-isation, human rights-rinsing of climate change responses really hold more power than (for instance) regulated markets, the advocacy efforts of consumer-citizens…or plaintive calls from ice-stranded polar bears?
For further reading, here is the UN OHCHR’s ‘key messages’ paper; here is a useful primer; and here is an advocacy perspective (Oxfam). Australia’s Human Rights Commission was already exploring the issue in 2008, here. On climate change justice, see here. In terms of legal strategies, here is the International Bar Association’s 2014 report. For one leading academic in this area, see the LSE’s Stephen Humphreys. For a recent and balanced blog post on the utility and potential of the human rights linkage, see Marc Limon’s September 2015 piece, here.