A Human Rights Perspective on Climate Change: What Value Can it Add to International Efforts to Mitigate Climate Change? Part I
By Genevieve Fox, Guest Contributor
The interrelationship between human rights and climate change has become fairly well articulated and embraced over the past decade. Nonetheless, proponents of a human rights perspective to climate change have yet to demonstrate how it can be used to establish legal obligations or a functional response to the climate change problem. Part I will discuss various impediments that prevents human rights perspective from serving as more than a complement to broader international efforts to respond to climate change. Part II will discuss how a human rights perspective to climate change remains valuable despite these impediments.
Climate change is a pressing international concern; nonetheless, little substantive international law directly addresses the issue. Additionally, those most responsible for causing climate change are least likely to suffer from it, while those who contributed least to it stand to lose their homes, livelihoods, and access to such necessities as food and water due to its effects. Given the failure of the current climate change framework and the realization that the effects of climate change threaten these and other basic human rights, various actors have begun to examine the potential for using human rights law, principles and mechanisms to develop a more just and effective climate change response.
Fundamentally, the human rights perspective to climate change rests upon the notion that the impacts of climate change threaten the enjoyment of human rights and, furthermore, that “human rights can provide a basis for apportioning responsibility and liability as between those who have caused climate change and those who will suffer from it most.” While a recognized link between human rights and the environment dates back to the 1972 Stockholm Declaration, this interrelationship was largely ignored until the mid-2000s, when scholars, States, international organizations, and civil society began using it to better understand and respond to climate change.
“Human rights can provide a basis for apportioning responsibility and liability as between those who have caused climate change and those who will suffer from it most.”
In 2005, the Inuit people initiated the first case linking climate change to human rights violations. In their submission to the Inter-American Commission, they asserted that climate change, driven in part by the United States’ failure to reduce greenhouse gas emissions, violated their recognized human rights to, inter alia, the enjoyments of the benefits of their culture, land and property, as well as their health, physical integrity and security. Although dismissed without prejudice, the Inuit’s petition brought attention to marginalized peoples’ vulnerability to climate change, and launched the development of a human rights perspective to climate change. In 2007, the Small Island Developing States took up the Inuit’s human rights framing of climate change and requested that the Office of the High Commissioner for Human Rights (OHCHR) study the effects of climate change on the full enjoyment of human rights. In the two years that followed, the United Nations Human Rights Council adopted two resolutions. Together, they state 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 [such] human rights” as the rights to life, adequate food, the highest attainable standard of health, adequate housing, self-determination, safe drinking water, and sanitation. Moreover, Resolution 10/4 acknowledges “that human rights obligations and commitments have the potential to inform and strengthen international and national policy-making in the area of climate change.”
Along with UN committees, communities such as the Inuit, and developing States, international tribunals, scholars, and organizations have indicated support for moving from a scientific to rights-based climate change perspective. Through litigation and direct advocacy, these actors have asserted that under international law, such as the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), State parties have binding obligations to respect, protect, and fulfill in good faith the rights contained thereunder. While this rights-based response to climate change has wide support and solid grounding in existing international law, various theoretical and practical problems are likely to prevent it from serving as more than a complement to broader international efforts to respond to climate change.
Such impediments as causality, asserting liability, and global politics problematize a truly legal, or hard law application of the human rights perspective to climate change. With respect to causality, many actors recognize that while climate change impacts affect human rights, “it is less obvious whether, and to what extent, such effects can be qualified as human rights violations in a strict legal sense.” Such a legal claim would be tenuous because determining the relationship between a State’s greenhouse gas emissions, its climate change-related effects, and their impact on human rights is essentially impossible. While scholars have attempted to overcome this flaw by asserting, “responsibility could be allocated according to states’ shares of global emissions of greenhouse gases,” this theory has its flaws. Allocating responsibility for human rights violations in this way ignores States’ widely varying per capita emissions and would either necessitate States being held accountable retroactively or impose emissions restrictions that ignore historical emissions imbalances.
“Such impediments as causality, asserting liability, and global politics problematize a truly legal, or hard law application of the human rights perspective to climate change.”
Asserting liability poses an additional impediment to holding States accountable for climate change-induced human rights violations. International human rights law imposes vertical, not horizontal or diagonal obligations upon States. As such, holding States accountable for extraterritorial human rights violations caused by climate change “would require the idea of human rights developed in the post-1945 world of nation-states … to give way to a recognition that, in the globalized world, … personal cause and effect no longer respect traditional concepts of sovereignty.” Such a radical reformulation of international law is not likely to develop within the timeframe necessary for responding to climate change.
Additionally, because “human rights law evolved before man-made climate change was recognised as a global concern,” for this perspective to be legally tenable, “existing treaties would need to be reinterpreted in a fashion not envisaged at the time when they were negotiated.” In fact, despite the perspective’s grounding in international human rights law, few if any human rights instruments actually recognize an explicit environment-related human right. Moreover, none of the international climate change instruments contain explicit human rights obligations. Implementing this perspective would thus require re-conceptualizing and, moreover, integrating existing climate and human rights agreements. Further complicating this implausible task is the fact that the existing human rights framework is a patchwork of texts and obligations pursuant to which countries recognize different kinds of rights, e.g. civil and political, or economic, social and cultural. This incongruous conception of human rights and attendant obligations has historically impeded the development of the human rights and climate change regimes, and this obstacle is unlikely to be resolved by linking the two together.
Part II will discuss how a human rights perspective to climate change remains valuable despite various impediments.
 See, e.g., Edward Cameron, Moving from an Intrinsic to an Instrumental Approach, 38 Ga. J. Int’l & Comp. L. 673, 693 (2010).
 See International Bar Association, Achieving Justice and Human Rights in an Era of Climate Disruption 44 (2014) [hereinafter IBA Report].
 See, e.g., id. at 45.
 See Submission of the Maldives to the OHCHR, 18 (Sept. 25, 2008), http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Maldives_Submission.pdf (last visited Nov. 11, 2014).
 See, e.g., Timo Koivurova et al., Climate Change and the Law, 21 IUS Gentium 287, 288 (2013).
 David Hunter, Human Rights Implications for Climate Change Negotiations, 11 Or. Rev. Int’l L. 331, 340 (2009).
 1972 Declaration of the UN Conference on the Human Environment, Principle 1.
 See Marc Limon, Constructing A Case For Political Action, 33 Harv. Envtl. L. Rev. 439, 440 (2009); See Daniel Bodansky, Climate Change And Human Rights: Unpacking The Issues, 38 Ga. J. Int’l & Comp. L. 511, 512-13 (2010)
 Koivurova, supra note 5, at 289.
 Petition to the IACHR Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (Dec. 7, 2005), http://earthjustice.org/sites/default/files/library/legal_docs/petition-to-the-inter-american-commission-on-human-rights-on-behalf-of-the-inuit-circumpolar-conference.pdf (last visited Dec. 11, 2014).
 See, e.g., Margaux Hall and David Weiss, Avoiding Adaptation Apartheid, 37 Yale J. Int’l L. 309, 340-41 (2012).
 Male’ Declaration on the Human Dimension of Global Climate Change (2007), http://www.manystrongvoices.org/_res/site/file/Background%20docs/Male_Declaration_Nov07.pdf (last visited Sept. 11, 2014)
 Human Rights Council Res. 7/23, March 28 2008; Human Rights Council Res. 10/4, March 25 2009. [hereinafter Res. 10/4].
 Res. 10/4, supra note 13.
 Lavanya Rajamani, The Increasing Currency and Relevance of Rights-Based Perspectives in the International Negotiations on Climate Change, 22 J. Env’t L. 391 (2010).
 See IBA Report, supra note 2, at 6.
 Human Rights Council, Jan. 15 2009, at paragraph 70.
 Hall & Weiss, supra note 11, at 342; Cameron, supra note 1, at 706.
 John Knox, Linking Human Rights and Climate Change at the United Nations, 33 Harv. Envtl. L. Rev. 477, 489 (2009).
 Hall & Weiss, supra note 11, at 342.
 Limon, supra note 8, at 473.
 IBA Report, supra note 2, at 67.
 Rajamani, supra note 17.
 See Cameron, supra note 1, at 715.
 Rajamani, supra note 17.
 See Cameron, supra note 1, at 700.