Introduction: Why Human Rights?
Two starting points inform this chapter. The first is that, as a matter of simple fact, climate change is already undermining the realisation of a broad range of internationally protected human rights: rights to health and even life; rights to food, water, shelter and property; rights associated with livelihood and culture; with migration and resettlement; and with personal security in the event of conflict.1 Few dispute that this is the case.
Moreover, the interlinkages are deep and complex. The worst effects of climate change are likely to be felt by those individuals and groups whose rights protections are already precarious.2 This is partly coincidence. As it happens, the most dramatic impacts of climate change are expected to occur (and are already being experienced) in the world’s poorest countries, where rights protections too are often weak. But the effect is also causal and mutually reinforcing. Populations whose rights are poorly protected are likely to be less well-equipped to understand or prepare for climate change effects; less able to lobby effectively for government or international action; and more likely to lack the resources needed to adapt to expected alterations of their environmental and economic situation. A vicious circle links precarious access to natural resources, poor physical infrastructure, weak rights protections, and vulnerability to climate change-related harms.
At another level, the close relation between climate change and human rights vulnerability has a common economic root. Rights protections are inevitably weakest in resource-poor contexts. But resource shortages also limit the capacity (of governments as well as individuals) to respond and adapt to climate change. Worse, where governments are poorly resourced, climate change harms will tend to impact populations unevenly and unequally, in ways that are de facto discriminatory because the private capacity of individuals to resist and adapt differs greatly.
The construction of an international climate change regime too has rights implications. Mitigation policies have clear human rights dimensions. On one hand, any strategy (or mix of strategies) that is successful at global level will tend to determine the long-term access that many millions of people will have to basic public goods. On the other, choices made in the shorter-term—such as whether and where to cultivate biofuels or preserve forests— will affect food, water and health security and, by extension, the cultures and livelihoods of numerous particular persons in particular places.
Adaptation policies will raise comparable human rights concerns. Adaptation may be reframed as a compensatory or corrective response to potential or actual climate change-related human rights violations. Adaptive interventions before or during climate change impacts reduce the likelihood that rights violations might result from those impacts; adaptation actions after the fact may provide redress where violations have already taken place. Indeed, discussions of adaptation at international and government level (as opposed to autonomous local measures) already assume a rights basis for policy construction, even if it is rarely articulated in those terms. At the same time, adaptation actions can themselves affect human rights—such as, for example, if communities or individuals are forcibly removed from disaster or flood-prone areas, or, less forcibly, expected to conform to new economic policy imperatives (by adopting different cash crops or energy sources, for example).
Despite the obvious overlaps outlined above, the mainstream climate change literature and debate has, until very recently, given little or no attention to human rights concerns.3 This has been so even though the reports of the Intergovernmental Panel on Climate Change (IPCC) have steadily examined the social impacts of climate change—in particular on food, water and health—and have progressively expanded their sphere of reference to include the social as well as the physical sciences. Nonetheless, perhaps unavoidably, climate change analyses generally remain aggregated at continental or subregional level: the available information is still not sufficiently nuanced to cover the situation of individuals and communities who experience climate impacts directly as rights infringements. This too reflects the resource asymmetries that everywhere inform climate change discussion and research. Information is far more detailed for those areas likely to experience lesser impacts than for those where the consequences will be most devastating.
The paucity of rights-specific information is not, of course, merely a cause of the negligible analysis of the human rights dimensions of climate change, it is also a consequence. Given their salience to the main themes discussed in the IPCC’s fourth assessment report (“IPCC AR4”), for example, it is remarkable that human rights are scarcely signalled in almost 3,000 pages of analysis.4
This would appear to indicate a near complete disciplinary disconnect, an impression borne out by a glance at the 10,000-strong participants’ list for the recent (thirteenth) Conference of the Parties of December 2007, among whom no more than a tiny handful hailed from human rights backgrounds. Scanning for human rights “language” is, of course, a poor analytical tool. Similar concerns may be addressed using different terms—and this appears to be at least partly true in this instance. Nevertheless, the choice of language and disciplinary lens will determine to some extent the relevance of certain kinds of information, orientation and response. Since the IPCC reports are essentially literature reviews, the shortage of rights references no doubt indicates a mere vacuum in the literature rather than any conclusion, bias or failing on the part of the IPCC authors. That vacuum says as much about an absence of interest in climate change among human rights professionals to date as vice versa.
Why the Silence on Human Rights?
What explains this mutual disinterest? The primary cause appears to be a kind of disciplinary path-dependence. The study of climate change began among meteorologists, became firmly entrenched in the physical sciences, and has only gradually— if inevitably—reached into the social sciences. The basic orientation has remained pre-eminently, though not solely, economic. Climate change negotiations have centred on consensus-driven welfare-based solutions, approaches that have historically thrived independently of and in parallel to human rights. Human rights organisations, for their part, are unlikely, as a matter of professional orientation, to take up issues framed as “hypothetical” or scenario-based, quite aside from the disciplinary boundaries that have long existed between environmental and human rights law. It may be that consideration of “new and additional” future harms simply escapes the ordinary purview of human rights analysis. The confluence is consequently marginal: on the few occasions human rights are mentioned in the IPCC reports, it is almost exclusively in connection with harms that have already taken place.5
In addition, experts in either discipline might identify plausible reasons for doubting that a “human rights approach” would assist the formation of effective policies to address climate change. Listed below are five such reasons.6
The rights at issue are difficult to enforce. Climate change generally (if not exclusively) affects categories of human rights that have notoriously weak enforcement mechanisms under international law—social and economic rights, the rights of migrants, rights protections during conflicts.7 Even those rights that have strong protections, such as rights to life and to property, are not subject to their normal enforcement procedures, because the harms caused by climate change can be attributed only indirectly to the identified perpetrators. In the absence of strong enforcement institutions, either at national or international level, it is not immediately obvious what human rights can add to a policy discussion that is already notably welfare-conscious, even if focused on the general good rather than on individual complaints.
Extraterritorial responsibility is hard to establish. Under human rights law, a person’s government ordinarily has the primary duty to act when rights are violated. In the context of climate change, however, responsibility for impacts in the most vulnerable countries often lies not with the government nearest to hand, but with diffuse actors, both public and private, many of whom are located far away. Human rights law does not easily reach across international borders to impose obligations in matters such as these.8
Local accountability is hard to establish. Although countries that lack economic resources and infrastructure are least likely to be major emitters of greenhouse gases, they are most likely to suffer devastating effects of climate change—effects whose human consequences will be worsened by their low capacity to adapt. Resource constraints inevitably impair a state’s ability to provide quality public goods to its population. This problem, which underpins the inadequate fulfilment of social and economic rights in some countries, has led to the notion of “progressive realisation” of those rights under international law. Under existing circumstances, however, climate change is likely to lead to a progressive deterioration of those same rights. If a government cannot be held accountable for failing fully to protect those rights in the ordinary course, it will surely be even harder to hold it responsible for circumstances it did not create.9
Emergency conditions limit the application of human rights law. The most severe climate change impacts will be catastrophic—drought, floods, famines, mass migration, wars—and will affect large numbers of people. In such circumstances, a common response is to declare an emergency. International human rights treaties and most national constitutions typically allow for the suspension (“derogation”) of many human rights in times of emergency.10 Emergency regimes are habitually critical or dismissive of human rights constraints, tending instead to adopt an ends-oriented and charity-centred language of humanitarian relief. Governments are empowered to act expediently, with less regard to individual rights and interests that might act as a brake on achieving the greater good. Human rights, traditionally conceived as a bulwark against expansive state discretion, become less relevant as legal tools at such times (although their rhetorical force may increase). Indeed, many human rights traditionalists might be expected to oppose climate change action on precisely the grounds that it will empower government, both nationally and internationally, at the expense of individuals.11
Rights may conflict. Human rights protect others besides those who are potentially harmed by climate change. Economic actors are also rights-holders and it is foreseeable that some of them will invoke the human right to property or peaceful enjoyment of their possessions to prevent or reduce action on climate change. The right to property has been given a broad interpretation by international tribunals and could be asserted by those who have been licensed to act in ways that harm the environment. Other human rights claims too— such as to culture, or freedom of religion, or family reunion—may bring individuals into conflict with climate change policies. All of these rights, like other rights, may be limited for the public good, and struggles can be expected over exactly where the line should be drawn in such cases. Adversarialism is, of course, part of the ordinary human rights landscape. As climate change policies will necessarily generate choices about the distribution of costs and benefits, the invocation of human rights can be expected to produce struggles, pitting interest groups against one another in a way that is markedly different from the consensus-building and compromise that has traditionally guided climate negotiations.
The above objections are not negligible. But they nevertheless rely, perhaps excessively, on a legalist vision of human rights that, if frequently effective, is not necessarily definitive. Legal scholars will quickly recognise a long-standing dichotomy between formal and substantive justice: the hard rule-of-law formalism of human rights on one hand versus the soft law, policy orientation of the UNFCCC on the other. The ethical language of “equity” and “common but differentiated responsibilities” of the UNFCCC has a quite different texture to the moral certainty and universalism of statements like the Universal Declaration on Human Rights (UDHR) and the international human rights covenants. Indeed “equity”, as it appears in the UNFCCC, might be thought difficult to reconcile with the formal equality that underpins human rights law, much as the UNFCCC’s distinction between “Annex I” (wealthy or “developed”) and “non-Annex I” (“developing”) countries seemingly runs counter to the universal obligations held by all countries under human rights law.12 Fortunately, however, as this report will show, the two approaches are not mutually exclusive.
Possible Benefits of a Human Rights Policy Orientation
As harms due to climate change are increasingly felt, it is very likely that many of those affected will turn to the hard law language of human rights for protection. Indeed, this is already happening.13 However, human rights can be articulated in registers other than law. In approaching climate change, a case might be made for a less legalist application of human rights principles to the climate change field, in favour of an approach better suited to the immense policy challenges that lie ahead. Five potential benefits of such a policy orientation are identified below.
Human rights prioritise harms to actual persons. As mentioned, human rights discourse cannot easily sustain discussion of hypotheticals: it reverts quickly to actual facts and outcomes. But this can be an advantage. In a debate necessarily steeped in scenarios and probabilities, human rights law requires that hard lines be drawn where possible. The important questions about impact scenarios would then be: who, precisely, is likely to suffer what and why? Human rights standards provide thresholds of minimum acceptability.14 If an effect of climate change is to cause the living conditions of specific individuals to sink below these understood thresholds, it might be considered unacceptable (or even unlawful). This approach (discussed in more detail in the following chapter) is more modest than one that argues for equal rights to the atmosphere, or to a given level of aggregate prosperity, or to the notion of “utility maximisation” common in economic analysis. Because it is modest, achievable and fair, and uses a language to which few will object, a policy orientation based on human rights thresholds potentially provides a platform for broad-based dialogue on burden sharing of a kind that has frequently lacked in climate change debates.
Looking forward, mitigation and adaptation policies too might be framed or evaluated by reference to human rights thresholds. Deforestation, biofuel substitution, even emissions trading will all lead to outcomes that, like climate impacts themselves, can be reviewed in advance for their likely human rights effects. If specific policies are forecast to lead to faltering rights fulfilment, they could be altered or rejected. For vulnerable states, a focus on affected populations rather than (or in addition to) environmental damage may prove useful in mobilising international assistance.15
Ethical demands translate into legal obligations. Human rights thinking habitually resituates ethical imperatives within a legal framework. Observers of climate change negotiations have long noted that the distribution of climate change impacts is inherently unfair: the costs are carried less by those who created the problem than by innocent others elsewhere. One long-standing ethical worry has been that this original injustice will be reproduced throughout an international climate regime, allowing the beneficiaries of carbon overuse to pass their costs onto others distant in time or space. This hard ethical problem has always been close to the heart of climate change negotiations. It is unlikely that human rights law can resolve it. But human rights values might usefully refocus or perhaps help to ground the debate.
Accountability. The human rights preoccupation with accountability might be helpful in constructing a climate regime. In general, international environmental treaties have been slow to introduce judicial instruments or other mechanisms of direct accountability, preferring to emphasise collaborative action. However, as the climate regime extends, as the urgency of addressing the problem grows, and as the instruments involved increase in complexity, accountability is likely to become more important. Accountability mechanisms of some sort will be needed to underpin any functional climate regime, because compliance will be vital to credibility.16