Climate Change and Human Rights Law: Where We Are Now
In 2007, when a group of small island states came together to adopt the Male’ Declaration linking climate change and human rights, the idea that human rights norms could be relevant to climate change still seemed fanciful. Two years earlier, the Inuit had filed a pioneering petition to the Inter-American Human Rights Commission arguing that the United States’ contribution to global warming violated their human rights, but the Commission had declined to consider it. And the main UN human rights bodies had found little to say about the relationship of human rights with environmental issues generally, much less with respect to climate change.
In the last eight years, all that has changed. The signatories to the Male’ Declaration spearheaded an effort in the UN Human Rights Council that led to a series of resolutions stating forcefully that climate change threatens a vast range of human rights. The Office of the UN High Commissioner for Human Rights issued a seminal report explaining the relationship between climate change and human rights. The UN special rapporteurs on human rights have described the effects of climate change on the rights within their purview, and have unanimously called on States “to make sure that human rights are at the core of climate change governance.” The State Parties to the Framework Convention on Climate Change agreed in Cancun that "Parties should, in all climate change related actions, fully respect human rights." Similar language is in the current draft of the agreement to be adopted at Paris this December.
More generally, in 2012 the Human Rights Council appointed an Independent Expert on human rights and the environment. I have the honor of receiving the appointment. (In 2015, the mandate was renewed for another three years and the title changed to Special Rapporteur.) I focused on clarifying the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. I held consultations in every region in the world, researched (with the assistance of many pro bono volunteers) every statement by international human rights bodies on environmental protection, and published a series of reports describing my findings.
The bottom line: human rights law requires States to protect human rights from environmental harm. Their obligations include procedural duties to provide information about environmental hazards, to facilitate participation in environmental decision-making, and to provide effective remedies for harm. States also have substantive duties to ensure that environmental threats do not adversely affect the enjoyment of human rights. States have some discretion to decide how to balance environmental protection against other worthy goals, but they should take into account international standards, make sure they do not weaken standards once achieved, and enforce the laws once they have been adopted. Finally, States can never discriminate in developing and implementing environmental policies, and they have heightened duties to protect those who are most vulnerable to environmental degradation.
Critically, these duties include environmental harm caused by private actors such as corporations. The UN Guiding Principles make clear that States are required to regulate corporations to ensure that they do not cause human rights abuses, and that corporations are required to respect human rights. And the human rights law of environmental protection makes clear that these requirements extend to protection against environmental harm to human rights caused by corporations.
How does this emerging body of human rights law apply to climate change? Some aspects of the answer are obvious. As an enormous environmental threat to human rights, climate change is subject to the same rules that apply to other environmental threats. That means that States are subject to arguments that by not doing more to reduce their emissions, they are violating others’ human rights. At the same time, States must comply with their human rights obligations when they formulate and carry out climate policies, including response actions. For example, REDD+ and CDM projects must comply with human rights obligations.
States are increasingly taking steps to link climate change and human rights more closely in their policies. Countries that take the Geneva Pledge commit to better collaboration between their climate negotiators and their human rights officials. Governments have described steps they are taking to link human rights and climate change in their reports under the UNFCCC and to the Human Rights Council.
There are still questions that need further clarification, such as whether and how human rights law can be raised in legal actions at the regional and national level involving climate change. But it is important to realize that environmental human rights law is maturing rapidly enough that it is already being raised in such actions. The first example may be the Urgenda decision ordering the Netherlands to mitigate its greenhouse gas emissions more rapidly, which if upheld on appeal will have concrete effects on corporate emitters. Another is the recent petition to the Philippine national human rights commission, accusing fifty large corporate emitters of violating the human rights of those subject to harms from climate change.
The application of human rights norms to climate change is a wave in the law that is building rapidly. Corporations should make sure that they are ahead of the curve, not behind it.