Climate Change and Human Rights
Wake Forest University (United States)
Climate change threatens the enjoyment of a vast range of human rights. Conversely, to effectively combat climate change, the exercise of human rights, including rights to information and participation, is necessary.
In my role as the first United Nations Special Rapporteur on human rights and the environment, I report to the United Nations Human Rights Council, the principal UN human rights body, on the application of human rights obligations to environmental issues. My most recent report, presented to the Council in March of this year, describes how climate change affects the enjoyment of human rights and the obligations that states have to address climate change (Knox, 2016). The Paris Agreement adopted in December 2015 is an important step, but much more remains to be done. States must implement their commitments and they must move quickly to strengthen those commitments. At the same time, they must ensure that the actions they take to respond to climate change do not themselves cause human rights violations.
Summarizing my report, this article describes: (1) the ways that climate change threatens the enjoyment of human rights, including rights to life and health; (2) the human rights obligations that are relevant to climate change; and (3) how well the Paris Agreement meets those obligations.
1. The effects of climate change on the enjoyment of human rights
Mary Robinson, who previously served as the President of Ireland and the United Nations High Commissioner for Human Rights and who is now (August 2016) the Special Envoy of the Secretary-General on Climate Change, has called climate change the greatest threat to human rights in the twenty-first century. Climate change threatens the full enjoyment of the rights to life, health, water, food, housing, development and self-determination.
As average global temperatures rise, deaths, injuries and the displacement of persons from climate-related disasters such as tropical cyclones increase, as do mortality and illness from heat waves, drought, disease and malnutrition. The foreseeable consequences of even a 2°C rise in average global temperature are dramatic. According to the Intergovernmental Panel on Climate Change (IPCC), they include an increasing probability of “declining work productivity, morbidity (e.g., dehydration, heat stroke, and heat exhaustion), and mortality from exposure to heat waves. Particularly at risk are agricultural and construction workers as well as children, homeless people, the elderly, and women who have to walk long hours to collect water” (IPCC 2014, p. 811).
Climate change will compound the problem of access to safe drinking water, currently denied to approximately 1.1 billion people. It has been estimated that about 8 per cent of the global population will see a severe reduction in water resources with a 1°C rise in the global mean temperature, rising to 14 per cent with a 2°C rise (IPCC 2014, p. 250). More generally, as a result of reduced rainfall and snowpack, increased evaporation, and contaminated freshwater resources due to rising sea levels, climate change is projected to reduce the availability of water in most dry subtropical regions and to increase the frequency of droughts in many already dry areas (UNEP 2015a, p. 3).
With respect to the right to food, climate change is already impairing the ability of some communities to feed themselves, and the number affected will grow as temperatures rise. The IPCC states that “all aspects of food security are potentially affected by climate change, including food access, utilization, and price stability” (IPCC 2014, p. 488). It is very likely that climate change will adversely impact the production of major crops, such as wheat, rice and maize, in both tropical and temperate regions (UNEP 2015, p. 5).
The worst effects of climate change are felt by those who are already vulnerable because of factors such as geography, poverty, gender, age, indigenous or minority status, national or social origin, and disability. In the words of the IPCC, “People who are socially, economically, culturally, politically, institutionally or otherwise marginalized are especially vulnerable to climate change and also to some adaptation and mitigation responses” (IPCC 2014, p. 6). The Panel states that “future impacts of climate change, extending from the near term to the long term, mostly expecting 2°C scenarios, will slow down economic growth and poverty reduction, further erode food security, and trigger new poverty traps, the latter particularly in urban areas and emerging hotspots of hunger” (IPCC 2014, p. 796). Climate change will also contribute to forced migration. However, those who are most vulnerable may be unable to migrate, instead remaining in locations that are subject to the harms caused by climate change.
Climate change threatens the very existence of certain small island states. Global warming expands ocean waters and melts land-based ice, causing sea levels to rise. Long before islands are inundated, climate change may make them uninhabitable by increasing the frequency and severity of storm surges or by causing sea water to invade their freshwater resources. If the residents of small island states are forced to evacuate and find other homes, the effects on their human rights, including their rights to self-determination and to development, will be devastating.
Climate change also threatens other forms of life that share this planet with us. As the world warms, increasingly disastrous consequences will ensue. One study has found that if global temperatures increase by more than 2ºC to 3°C, 20 to 30 per cent of the assessed plant and animal species are likely to be at a high risk of extinction (IPCC 2014, p. 1053). The decimation of other species will harm humans as well. With respect to the right to health, for example, the Intergovernmental Panel on Climate Change states that the loss of biological diversity “can lead to an increase in the transmission of infectious diseases such as Lyme, schistosomiasis, and hantavirus in humans” (IPCC 2014, p. 1054).
As the effects of climate change on human rights have become clearer, the amount of attention paid by domestic and international bodies to the relationship of climate change to human rights has increased. An important milestone was the Male’ Declaration on the Human Dimension of Global Climate Change, adopted by representatives of small island developing states in November 2007. For the first time, states explicitly recognized that climate change has “clear and immediate implications for the full enjoyment of human rights”, including the rights to life, to an adequate standard of living and to the highest attainable standard of health.
Since then, the UN Human Rights Council has agreed 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 human rights, and that “human rights obligations and commitments have the potential to inform and strengthen international and national policy-making in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes”.
Human rights and environmental bodies, including the Office of the High Commissioner for Human Rights (OHCHR), the United Nations Environment Programme, and the United Nations Children’s Fund, have published reports that describe how climate change threatens the enjoyment of a wide range of human rights, including the rights to life, health, food, water, adequate housing and self-determination (E.g., OHCHR 2009; UNEP Climate Change Report, 2015; UNICEF 2015). On World Environment Day, 5 June 2015, 27 United Nations human rights experts issued a joint statement describing the devastating effects that even a 2°C increase in global average temperature would have on human rights. Before the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) met again in Paris in December 2015, 30 governments came together to take the Geneva Pledge for Human Rights in Climate Action, a voluntary undertaking initiated by Costa Rica through which states promise to facilitate the sharing of knowledge and best practices between climate and human rights experts at the national level.
The increasing attention to climate change and human rights culminated at the Paris talks. The Paris Agreement is the first climate agreement, and one of the first environmental agreements of any kind, to explicitly recognize the relevance of human rights. Its preamble states:
“Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.”
In addition, the growing recognition of the disastrous effects of climate change on human rights helped to support the decision of the parties to state, in article 2, that the Agreement “aims to strengthen the global response to the threat of climate change... including by holding the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change” (UNFCCC 2015).
2. The human rights obligations related to climate change
The foreseeable adverse effects of climate change on the enjoyment of human rights give rise to duties of states to take actions to protect against those effects. Human rights obligations apply not only to decisions about how much climate protection to pursue, but also to the mitigation and adaptation measures through which protection is achieved.
Human rights obligations regarding environmental protection include procedural and substantive obligations. In addition, states may have heightened obligations to those who are particularly vulnerable to environmental harm. Procedural obligations include duties: (a) to assess environmental impacts and make environmental information public; (b) to facilitate public participation in environmental decision-making, including by protecting the rights of expression and association; and (c) to provide access to remedies for harm. They are also supported by international environmental instruments, including principle 10 of the 1992 Rio Declaration on Environment and Development. Exercising these rights of access to information, to participation, and to remedy helps to ensure that proposed actions protect the environment on which all human rights depend.
Thus, for example, wherever possible, states should assess the climate effects of major activities within their jurisdiction. Such assessments are an important method for clarifying impacts, especially on vulnerable communities. States should also make information related to climate change publicly available and provide for public participation in the development of climate policies. To be effective, public participation must include the provision of information to the public in a manner that enables interested persons to understand and discuss the situation in question, including the potential effects of any proposed project or policy, and must provide real opportunities for the views of affected members of the public to be heard and to influence the decision-making process. These principles are of special importance for members of marginalized and vulnerable groups. These requirements apply not only to decisions about how much climate protection to pursue, but also to the measures through which protection is achieved. Decisions on mitigation or adaptation projects must be made with the informed participation of the people who will be affected by the projects.
To enable informed public participation, the rights of freedom of expression and association must be safeguarded for all people in relation to all climate-related actions, including those individuals who oppose projects designed to mitigate or adapt to climate change. To try to repress persons expressing their views on a climate-related policy or project, whether they are acting individually or together with others, is a violation of their human rights. States have obligations to refrain from interfering with persons seeking to exercise their rights, and must also protect them from threats, harassment and violence from any source.
At the international level, states should ensure that projects supported by climate finance mechanisms respect and protect all human rights, including the rights to information, participation and freedom of expression and association. These mechanisms currently vary in their levels of protection. Some, such as the Adaptation Fund, include safeguards that are generally considered to be satisfactory, while others, such as the Clean Development Mechanism, have been criticized for failing to provide for adequate stakeholder consultation, thereby resulting in human rights violations through displacement and the destruction of livelihoods. After Paris, the safeguards must be strengthened and made more uniform across the board.
The substantive obligation of every state to protect those within its jurisdiction from the harmful effects of climate change is relatively straightforward with respect to adaptation measures. States must adopt a legal framework that assists those within their jurisdiction to adapt to the unavoidable effects of climate change. While states have some discretion as to what measures to adopt, taking into account their economic situation and other national priorities, they should ensure that the measures result from a process that provides for informed public participation, take into account national and international standards and are neither retrogressive nor discriminatory. Finally, once measures are adopted, states should ensure that they are implemented.
With respect to mitigation, the situation is more complicated. Most countries do not emit greenhouse gases in quantities that cause, by themselves, appreciable effects on their own people or on those living in other countries. As a result, these states cannot avoid the effects of climate change merely by reducing their own emissions. In addition, although the emissions of larger countries may well have a discernible impact on the effects of climate change on their own people, no single state can, by itself, do more than delay those effects as long as the emissions of other states continue to increase. This does not mean that states have no obligations under human rights law to mitigate their own emissions, but it does suggest that to understand the nature of those obligations, it is necessary to look at the role of international cooperation.
Article 55 of the Charter of the United Nations requires the United Nations to promote “universal respect for, and observance of, human rights and fundamental freedoms for all” and in Article 56, “all Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55”. Similarly, article 2(1) of the International Covenant on Economic, Social and Cultural Rights requires each of its parties to take steps not only individually, but also “through international assistance and cooperation”, towards the progressive realization of the rights recognized in the Covenant.
With respect to many threats to human rights, international cooperation plays only a supporting role. Environmental harms whose causes and effects are within the jurisdiction of one state can and should be addressed primarily by that state. But climate change is the paradigmatic example of a global threat that is impossible to address effectively without coordinated international action. As states have acknowledged in the UNFCCC itself, “the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response” (UN 1992).
The duty of international cooperation does not require each state to take exactly the same actions in response to climate change. The language in the UNFCCC calling for states to cooperate with one another immediately adds: “in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions”. All states have a duty to work together to address climate change, but the particular responsibilities necessary and appropriate for each state will depend in part on its situation.
3. Assessing the Paris Agreement
States agreed in the UNFCCC that their goal is to achieve “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. It has become clear that an increase of even 2°C would have drastic consequences for the full enjoyment of human rights. This target is consistent with the obligations of states, acting together in accordance with the duty of international cooperation, to protect human rights from the dangerous effects of climate change. Human rights norms contemplate that states have some discretion to decide how best to balance their obligation to protect against environmental harm with their pursuit of other legitimate interests, but they should exercise that discretion reasonably in the light of all relevant factors. Applying those factors to the international climate regime indicates that states have struck a reasonable balance in many respects. They have conducted an international decision-making process based on detailed, publicly disseminated scientific assessments. The agreement that emerged from this process takes into account international standards, including human rights standards, and is non-retrogressive. It also appears to be non-discriminatory, and it includes provisions designed to address the concerns of the most vulnerable countries and communities.
In certain critical respects, however, the Paris Agreement falls short. The Agreement addresses mitigation principally through requiring each party to prepare its own nationally determined contribution. The problem is not that the Agreement allows each state to decide for itself what contribution it commits to making, but that the proposed contributions do not go far enough. Commendably, almost every state in the world has presented an intended nationally determined contribution, but even if fully implemented, they will not put the world on a path that avoids disastrous consequences for human rights. UNEP has determined that full implementation of the intended contributions would lead to emission levels in 2030 that will likely cause a global average temperature increase of well over 2°C, and quite possibly over 3°C (UNEP Emissions Gap Report, 2015). Therefore, even if states meet their current commitments, they will not satisfy their human rights obligations.
From a human rights perspective, then, it is necessary not only to implement the current intended contributions, but also to strengthen those contributions to meet the target set out in article 2 of the Paris Agreement. States are aware of the gap between their current commitments and their collective goal, and they agreed in Paris to review the adequacy of their commitments through stocktaking exercises every five years, beginning in 2018. However, it is already clear that states must begin to move beyond their current commitments even before the first stocktaking, in order to close the gap between what is promised and what is necessary.
Other elements of the international climate regime are also integral to the implementation of the duty of international cooperation. For example, article 7 (7) of the Paris Agreement calls on the parties to strengthen their cooperation on enhancing action on adaptation, including with regard to sharing information, improving the effectiveness of adaptation actions and assisting developing countries; and developed countries reiterated in Paris their commitment to assist developing countries with respect to both mitigation and adaptation. Specifically, the Conference of the Parties adopted a decision stating that developed countries intend to continue their existing collective mobilization goal, which is $100 billion per year as of 2020, and that before 2025, the parties to the Paris Agreement will set a new goal from a floor of $100 billion, taking into account the needs and priorities of developing countries.
The human rights norms relating to protection of the environment indicate that once states have adopted measures to protect human rights from environmental harm, they must implement those measures. The commitments made in relation to the Paris Agreement are elements of the collective decision of states on how to address climate change. All of them — the commitments for assistance as much as the commitments for mitigation and adaptation — should be implemented fully and as strengthened as necessary, to protect against the effects of climate change on human rights.
From the Male’ Declaration to the Paris Agreement, it has become clear that mitigating and adapting to climate change are necessary to safeguard human rights, and that exercising human rights helps to ensure robust, effective climate actions. Efforts to bring human rights norms to bear on climate change should continue and intensify. States should fully implement all of the commitments they have made in relation to the Paris Agreement and strengthen their commitments in the future, in order to ensure that climate change does not cause catastrophic consequences for human rights.
John H. Knox, Henry C. Lauerman Professor of International Law at Wake Forest University (USA) and United Nations Special Rapporteur on the issue of human rights and the environment
Independent expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (2013): Mapping human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox: Mapping report, U.N. Doc. A/HRC/25/53 (30 December 2013)
Intergovernmental Panel on Climate Change (IPCC), Working Group II, Climate Change 2014: Impacts, Adaptation, and Vulnerability.
Knox, John H. Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment: climate change, U.N. Doc. A/HRC/31/52 (1 February 2016)
Knox, John H. Mapping report. Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, U.N. Doc. A/HRC/25/53 (30 December 2013)
Office of the High Commissioner for Human Rights (OHCHR), Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship Between Climate Change and Human Rights, U.N. Doc. A/HRC/10/61 (15 January 2009).
United Nations (2015), Paris Agreement. Available at https://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf
United Nations (1992), United Nations Framework Convention on Climate Change (UNFCCC) https://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf;
United Nations Children’s Fund (UNICEF), Unless we act now: The impact of climate change on children (November 2015), available at [http://www.unicef.org/publications/index_86337.html].
United Nations Environment Programme (UNEP), Climate Change and Human Rights (2015a).
UNEP, The Emissions Gap Report (2015b), available at http://uneplive.unep.org/media/docs/theme/13/EGR_2015_301115_lores.pdf
United Nations Human Rights Council, Resolutions 7/23 (28 March 2008), 10/4 (25 March 2009), 18/22 (30 September 2011), 26/27 (27 June 2014), and 29/15 (2 July 2015).
Wake Forest University (United States)