No. 7: The Human Rights Dimension of Climate Change
Interview with Stephen Humphreys, Research Director, International Council on Human Rights Policy, Geneva and Ulrik Halsteen, Human Rights & Social and Economic Issues Unit, OHCHR, Geneva.
“Climate change is one of the most serous challenges mankind has ever faced and has serious implication for the realisation of human rights…. A Human rights analysis brings into focus how lives of individual and communities are affected and why human rights safeguards must be integrated into policies and measure to address climate change” (High Commissioner for Human Rights, Navi Pillay, 2009)
The effect that climate change will have on human rights has received little attention in international climate change debates. This is now changing. A growing number of recent studies, in particular the March 2009 OHCHR study on climate change and human rights have documented that climate change is set to impact human rights on a massive scale. The human costs of climate change born as a result of increasing droughts, water shortages, the spread of tropical and vector born diseases, which in turn lead to growing migration and conflict, directly threaten fundamental human rights; such as the rights to life, to food, to shelter and work.
Moreover, it is the poorest countries and the rights of vulnerable social groups, including elderly people, disabled people and marginalised communities, which are particularly at risk.
This article looks at the human rights dimension of climate change. It explores how human rights can help guide international climate change policy making and identifies some of the challenges that climate change raises for human rights.
1. WHAT IS THE RELEVANCE OF HUMAN RIGHTS LAW TO ADDRESSING CLIMATE CHANGE
Stephen Humphreys, Research Director, International Council
on Human Rights Policy, Geneva:
Although there is no doubt that climate change has extensive implications for human rights protection, it is not at all clear that human rights law will be particularly relevant in addressing climate change. (This is not to say that human rights analysis is not relevant-quite the reverse-a point I will return to in a moment.) There are a number of reasons for this.
For one, the most urgent and essential task in addressing climate change is, of course, to cut greenhouse gas emissions-this is the primary subject of negotiation through the UNFCCC [UN Framework Convention on Climate Change] process, which is expected to bear some fruit in Copenhagen this December. This process is inevitably science-driven and, equally inevitably, highly politicized. While it seems intuitively correct that states should be obliged under international human rights law to mitigate greenhouse gases (since not doing so will cause human rights harms), this obligation is far from self-evident under the existing law. States’ obligations for harms caused in other states are notoriously difficult to establish under human rights law. In the case of climate change harms there are all sorts of subsequent layers of complexity-establishing liability for specific harms is extraordinarily difficult, as emissions are diffuse and the process is complex: a direct causal link between the emitter and the affected individuals is hard to show. Add to this the political and economic complexity of achieving emissions reductions, and the need for international cooperation to do so-few judges will want to claim authority or competence on how this should be done.
A second reason is that the main harms caused by climate change-although by no means the only ones-are to economic, social and cultural rights. These rights do not enjoy robust protective mechanisms under international law-at present, they are routinely violated throughout the world, Climate change will make the fulfilment of these rights significantly more difficult, and so put immense extra strain on an area of law that is already weak. Unless the international framework for the protection of these rights were substantially strengthened-through the creation of something like a global welfare system (a utopian idea in the present climate)-it is hard to see how it can cope with the extra stress of climate change. The UNFCCC has its own set of tools for dealing with a similar set of issues-under the headings of adaptation and technology transfer. Rather than turning to the weaker tools of the ICESCR [International Convention on Economic, Social and Cultural Rights], human rights activists might do well to see how best to strengthen these UNFCCC tools which may, in time, provide stronger obligations in law.
A third reason that human rights law may be relatively unhelpful is the urgency of dealing with climate change itself. Climate change is fundamentally a management issue. Addressing it will involve adopting strong policy positions and ultimately regulating numerous areas of ordinary people’s lives, especially in rich countries. Where impacts hit hardest, in poorer countries, governments are also likely to be dealing with mass movements of people and conflicts over resources. In both cases, an emergency logic will apply to a degree, and these are typically situations in which human rights law is systematically weakened or suspended in part through derogations. At a minimum, human rights laws are mostly likely to be invoked to protect basic property rights or civil liberties which typically come under stress where governments must deal with emergencies. In such cases, the imperative of protecting human rights may come into direct conflict with that of addressing climate change.
All that said, however, there is plenty of complementarity between the legal frameworks governing human rights, on one hand, and climate change, on the other. An informed understanding of human rights principles may buttress the climate change regime’s priorities of equity and “common but differentiated responsibilities” between states. There has been much work to use human rights law to rein in emergency regimes. These complementarities must be understood and activated if the potential for climate change itself and climate change policies to harm human rights is to be minimized or eliminated.
Ulrik Halsteen, Human Rights & Social and Economic Issues
Unit, OHCHR Geneva:
Looking at the human rights implications of observed and projected climate change-related effects brings into focus that climate change affects real people and communities. Hence, climate change cannot be considered simply in terms of environmental and economic impacts.
The human rights perspective is particularly well suited to analyse how climate change-related effects will affect people differently. Certain groups tend to be particularly vulnerable to climate change effects and risks. For example, women often rely more than men on natural resources for their subsistence. This is also the case of indigenous peoples who often depend on natural resources for their livelihood and live in fragile ecosystems.
The human rights perspective also underlines the importance of individual agency and empowerment to effective climate change adaptation, and how human rights, including access to information, ability to participate in decision-making processes, access to education, adequate health services and housing, are critical elements of effective climate change adaptation (building climate resilience of individuals and reducing their vulnerability to climate change threats). As the OHCHR report underlines, focusing on human rights underline the need to perceive individuals as active agents of change rather than as mere passive victims.
Finally, international human rights law provides an accountability framework for State action. It is clear that human rights law, which fist and foremost regulate the relationship between States and individuals within their jurisdiction, provides a stronger framework to protect individuals against climate change effects which could have prevented by State action at the national level. At the same time, the causes of climate change-related effects transcend national borders and lie beyond the effective control of any single State. As the Human Rights Council has noted, “climate change is a global problem requiring a global solution”. Under the United Nations Charter and international human rights instruments, States have committed to engage in international assistance and cooperation and to take joint action to address global problems which threaten the realization of human rights.
2. WHAT ARE THE MAIN WAYS IN WHICH A HUMAN RIGHTS LENS CAN HELP IN POLICY MAKING AROUND CLIMATE CHANGE?
Addressing climate change is largely a matter of burden sharing and risk distribution. Any regime that effectively reduces greenhouse gas emissions to the required levels-by at least 60% globally by 2050-will necessitate extraordinary transformations in the way in which energy and other resources are accessed and distributed. These transformations will in turn directly affect the capacity of societies and states everywhere to build and maintain the machinery necessary to ensure basic human rights-especially those rights most threatened by climate change: food, water, health, shelter and so on. From a human rights perspective, the critical question to take to any climate change policy will always be: who pays the cost?
This is helpful when we turn to the actual policies currently on the table. At present the only known effective path to modern development runs directly through intensive carbon usage. It is therefore clear that for countries that currently lack the means to fulfill the human rights of all citizens, a climate regime respectful of human rights must ensure that they (a) continue to have access to carbon as necessary while they strive to attain the fulfilment of basic needs and (b) are proactively delivered clean technologies for future development. These positions are generally considered equitable as many of the the countries in question have tiny carbon footprints and have contributed historically little to climate change. Indeed a rational (e.g., per capita) distribution of sustainable carbon usage would still give considerable space to most Least Developed Countries to continue to increase emissions for a long time to come. As things stand, the island of Manhattan emits more greenhouse gases than the whole of sub-Saharan Africa.
The present reality is very different. Fearful of the extent of cuts that need to be undertaken to meet the problem, developed countries have been seeking desperately to undertake cuts abroad instead. The UK government, for example, recently announced a plan to cut national emissions by 80% by 2050, half of which (i.e. 40%) might be achieved abroad. If a similar approach were to be adopted by all rich countries-that is, if all rich countries expect to achieve half of their emissions cuts in poor countries-the cumulative cuts to be achieved in poor countries , just to meet the rich countries’ offsets will be immense-something like 42% of their current total emissions. Moreover, even these cuts would not be sufficient to achieve global reduction in emissions of 50% by 2050 (a target recently proposed by the G-8). To reach this global goal, poor countries would need to further cut their emissions by 20% in addition to any offsets they make available to the rich world-that is, by a total of 60%, as against the 40% cuts rich countries impose on themselves. Ironically, then, in order for rich countries to meet their own targets, the less wealthy countries would need to cut at greater levels than their richer counterparts: the burden falls on the poor. (Worse, these suggested cuts are unlikely to be deep enough to ward off catastrophic climate change.)
A similar process might be expected if and when a global emissions market is introduced. In principle, an emissions market allows those with the wherewithal to buy the capacity to emit carbon from those who retain that capacity. The latter-those with the capacity to emit-are developing countries with low emissions levels; those needing to buy are richer countries with carbon-intensive lifestyles. It is entirely foreseeable, in such a context, that unscrupulous, corrupt, or merely uninformed or incompetent poor-country governments will sell their future development capacity for an immediate financial injection-that is hand over the ‘subsistence emissions’ of their own populations to feed the ‘luxury emissions’ of rich countries. Again the burden falls on the poorest and most vulnerable. Something similar is imaginable in the REDD regime, which expects that forest and vacant land in many countries will be privatized and preserved (which is to say, forcibly protected from use). The carbon offsets again flow North to rich countries, and notwithstanding payments to governments for those offsets, the principal costs are again borne by those ordinary persons in poor countries who are no longer permitted to use their forests productively.
None of these outcomes are inevitable, of course-and a human rights analysis stands to be relevant in ensuring better outcomes-helping to clarify who will pay the cost of both the impacts of climate change and the measures taken to combat it. Rudimentary human rights safeguards might be introduced in each regime-guarantees of minimal ‘subsistence emissions’ for poor populations, for example, or monitoring and accountability mechanisms to ensure that foreseeable effects do not impact the poorest and most vulnerable. Unfortunately, nothing in international human rights law requires that such safeguards be put in place. But developmental and human rights organizations can nevertheless work hard to ensure that something of this sort happens. At the same time, human rights principles are well suited to mobilize and inform other mechanisms in the climate change regime-adaptation funding and technology transfer in particular-that have so far remained underused. Human rights are relevant to ensure that these mechanisms reach the most vulnerable and are applied on a large enough scale to offset the predicted harms of climate change. Again, there is no legal requirement that this be done: it will be up to interested parties to lobby relentlessly to make it happen. And that requires that they look closely at the regimes now being constructed and ask at all times, who pays the costs?
The Human Rights Council in its resolution 10/4 (25 March 2009) affirms that “human rights obligations and commitments have the potential to inform and strengthen international and national policy-making in the area of climate change”.
International human rights norms and standards do not provide guidance as to specific technical and scientific aspects of climate mitigation and adaptation. Rather, human rights norms and standards set the parameters for how Government should act in response to climate change-related problems. More specifically, the integration of human rights in climate change-related action means giving due consideration to how human rights are affected by climate change impacts and by policies and measures to address climate change. It moves us beyond the aggregate cost benefit analysis which tend to dominate in climate change debates, drawing attention to the need for a more disaggregated and sophisticated analysis to identify who will be affected by climate change and how, with a view to adjusting relevant policy measures accordingly. Equally, the human rights principles of equality, non-discrimination, transparency and accountability provide guidance for design and implementation of climate change policies and measures.
Finally, a human rights analysis further accentuate the urgency of global action. by drawing attention to the the unacceptable consequence of failing to raise to the climate change challenge.
3. HOW CAN DEVELOPMENT PRACTITIONERS BETTER USE THE HUMAN RIGHTS FRAMEWORK IN THEIR WORK ON ADDRESSING CLIMATE CHANGE?
Human rights norms and standards provide important safeguards and guidelines relevant for climate change adaptation programming. For example in situations where people have to be resettled away from hazard zones, international human rights law sets out safeguards related to adequate housing and forced evictions.
Development efforts to strengthen climate change resilience can make use of the international human rights norms and standards to underline how ensuring access to adequate education, health services, etc. is not only indispensable elements of sustainable climate change adaptation but also legal obligations of States under national, regional and international human rights law.
 The United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (UN-REDD Programme)
Documented by Emilie Filmer-Wilson