A Human Rights Perspective on Climate Change: What value can it add to international efforts to mitigate climate change?, Part II Georgetown International Environmental Law Review

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A Human Rights Perspective on Climate Change: What value can it add to international efforts to mitigate climate change?, Part II

By Genevieve Fox, Staff 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. 

Despite various impediments, a human rights perspective to climate change remains valuable. Human rights derive much of their force from natural law and their associated acceptance by societies and governments worldwide.[1] Thus, in terms of rhetorical value, the human rights perspective need not be constrained by existing legal instruments; it can be premised upon notions of equity and the protection of vulnerable peoples.[2] Such rhetoric may not give rise to the codification of these rights in hard law; nonetheless it raises awareness to the vulnerability of those least responsible for the damaging effects of climate change and elevates the climate change problem in relation to other international issues.[3] Moreover, the humanization of climate change promotes continued dialogue, and builds political and social will towards timely and just resolution of the climate change issue.[4] Finally, linking human rights with climate change secures a space for historically disenfranchised actors in the climate change debate, as is evidenced by the attention given to the plight of the Inuit and small island states, the reports and resolutions generated by United Nations (UN) bodies, and the inclusion of a “Voices from the Climate Front Lines” session at the 2014 UN Climate Change Summit.[5]

“Moreover, the humanization of climate change promotes continued dialogue, and builds political and social will towards timely and just resolution of the climate change issue.” 

Linking human rights with climate change, even without imposing obligations on States, can help ensure that climate change is tackled with the protection of human rights in mind. Including historically disenfranchised actors’ views in the climate change debate can lead to greater international collaboration and a deeper understanding of the issues.[6] The more that States and policy makers come to understand the interrelationship between climate change and human rights, the more willing they may be to translate it into at least a soft law concept. Thus, this perspective may truly help give rise to the development of a more cohesive, rights-protective international legal framework.[7]

The human rights perspective can additionally enable impacted populations to seek remedy for their own States’ human rights violations. Rather than asserting that States have extraterritorial obligations to mitigate climate change impacts, individuals and communities can hold their own States accountable for failure to establish human rights-protective adaptation strategies. These adaptation claims are more likely to succeed than extraterritorial mitigation claims because they present fewer problems of causation and asserting liability.[8] While the human rights perspective thus retains some value in a strict legal sense, its proponents are most interested in holding those responsible for climate change liable for its ill effects.[9] Thus, the value added in holding States accountable for failing to protect their own people does not accomplish the perspective’s objective because it apportions the greatest liability to States that contributed least to the climate change problem.

Finally, a human rights perspective to climate change offers some advantages over the existing environmental law framework. First, the humanistic rather than scientific framing of climate change can help spur public and political will towards just resolution of the issue.[10] Second, whereas States’ obligations under environmental law typically depend upon reciprocity, human rights obligations are not conditioned upon the compliance of other states.[11]  And third, while compliance mechanisms under international environmental law are quite limited,[12] a plethora of human rights tribunals, monitoring bodies and rapporteurs exist under human rights law, which could thereby better assess and respond to climate change-based claims.[13]

“Rather than asserting that States have extraterritorial obligations to mitigate climate change impacts, individuals and communities can hold their own States accountable for failure to establish human rights-protective adaptation strategies.”

It seems unlikely that the human rights perspective to climate change will be employed as a strategy for holding those most responsible for causing climate change legally responsible for its human rights impacts. Nonetheless, the human rights perspective can be an effective advocacy and soft law tool. This perspective has raised awareness to the injustice of climate change: that those least responsible for the problem suffer most from its ill-effects. Moreover, the perspective has engendered interest in studying the relationship between these two areas of international law with the intent of using the knowledge gained to inform future climate change strategies. Given the perspective’s ability to humanize the climate change debate and thereby raise political and social will towards a just and speedy response to the climate problem, its advocates should continue to ground it not only in existing legal instruments, but also in normative terms. In this way, the perspective can help inform, shape and propel the development of an effective climate change regime designed to ensure that State responses to the issue are consistent with their obligations under international human rights law.

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[1] See, e.g., 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).

[2] See, e.g., id.

[3] See, e.g., Margaux Hall and David Weiss, Avoiding Adaptation Apartheid, 37 Yale J. Int’l L. 309,  344-45 (2012).

[4] See, e.g. David Hunter, Human Rights Implications for Climate Change Negotiations, 11 Or. Rev. Int’l L. 331, 344 (2009).

[5] See, e.g. Marc Limon, Constructing A Case For Political Action, 33 Harv. Envtl. L. Rev. 439,  451 (2009); UN Climate Summit 2014, http://www.un.org/climatechange/summit/2014/08/voices-climate-front-lines/ (accessed 13/11/14).

[6] Hunter, supra note 4, at 362.

[7] See OHCHR, Applying a Human Rights-Based Approach to Climate Change Negotiations, Policies and Measures, http://www.ohchr.org/documents/issues/climatechange/infonotehrba.pdf (accessed 14/11/14).

[8] Hall & Weis, supra note 3 at 314.

[9] Hunter, supra note 4, at 340.

[10] Supra note 4 and accompanying text.

[11] Bodansky, supra note 8, at 516.

[12] See, e.g., Svitlana Kravchenko, Right to Carbon or Right to Life, 9 Vt. J. Envtl. L. 513, 525 (2008).

[13] Daniel Bodansky, Climate Change And Human Rights: Unpacking The Issues, 38 Ga. J. Int’l & Comp. L. 511, 517 (2010).

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