Systemic integration between climate change and human rights in international law?

Abstract

UN human rights organs have persistently invoked the integration of fundamental rights into the UNFCCC regime and the Paris Agreement now provides that the ‘Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’. How integration should be achieved is nevertheless a matter of international law development. At the regional level, a tendency seems to progressively emerge to ground integration in the fundamental right to a sustainable environment. Against such a background, it is argued in this article that a third generation environmental claim simplifies the complex establishment of a causal nexus between anthropogenic greenhouse gas emissions and first and second generation fundamental rights. This would allow international human rights protection mechanisms to be triggered based on (minimum) reduction targets under the UNFCCC regime. The international recognition of a human right to a sustainable environment therefore emerges as fundamental to determining human rights responsibility for climate change, with particular regard to States. It thus facilitates systemically integrating fundamental rights into climate change regulation and taking consequential institutional action. This argument adds strings to the bow of those scholars who support the idea of intergenerational environmental justice on legal and moral grounds.

1. Introduction

Scientific studies demonstrate that anthropogenic Greenhouse Gas (GHG) Emissions contribute to increasing atmospheric temperatures, and exceeding the threshold of 2°C above pre-industrial levels would entail serious environmental consequences. ¹ The accelerated pace of ice melting, sea level rise, typhoons, droughts and hurricanes may affect fundamental rights, and compels the adoption of specific policies, which can have further human rights implications. ² From an institutional perspective, in the light of the global nature of climate change and the general reach of fundamental rights, the main framework for addressing their reciprocal relationship is provided by the UN. Given the quasi-universal scope of the organisation and its initiatives as to both climate change and human rights, UN instruments can be considered to foster and crystallise the progressive development of general international law on the matter. ³ However, climate change and human rights have so far merged only to a limited extent within this context. UN human rights organs, particularly the Human Rights Council (HRC), have invoked a more integrated approach under the UN Framework Convention on Climate Change (UNFCCC). ⁴ This prompted UNFCCC organs to generally acknowledge the importance of taking human rights into account in both GHG mitigation and adaptation policies. ⁵

At the regional level, different approaches have been taken to address the effects of climate change on human rights. In the Asia-Pacific, where an overarching human rights framework is missing, among fragmented initiatives, low-lying island States have assumed a critical role, fundamentally triggering UN action on the matter. ⁶ A similar pattern has been followed by the African Union (AU), which has undertaken a more limited, but meaningful recognition of the relationship between global warming and human rights, basically invoking the inclusion of fundamental rights in climate change negotiations. ⁷ Conversely, although the Organisation of American States (OAS) has acknowledged the existence of a relationship between climate change and human rights, ⁸ two Inuit Petitions upholding State responsibility for the impact of GHG emissions on fundamental claims have not (yet) prompted a clear answer by the Inter-American Commission on Human Rights (IAComHR). ⁹ Finally, whilst only one dispute has so far raised the problem of State Responsibility for GHG emissions in the light of human rights obligations within the Council of Europe system, ¹⁰ the EU has developed its climate policies taking into account their implications for fundamental rights. ¹¹

Altogether, over a time span of around 11 years (2005-2016) a few initiatives have been undertaken to disentangle the relationship between climate change and human rights and take relevant action, but the results are deceiving. The two regimes are not yet sufficiently integrated, so much so that the 2°C target set by the UNFCCC is considered to be largely insufficient to protect fundamental rights. ¹² Therefore, more action has been invoked to govern the impact of anthropogenic GHG emissions on basic claims, particularly at the UN level; pledges have been advanced to put human rights ‘at the core of climate change governance’. ¹³ Systemically, though, it is uncertain what exactly human rights bodies and UNFCCC organs should do to integrate fundamental rights into the climate change discourse, and surprisingly the question is rarely posed the other way around. Against such a background, this article considers the relationship between climate change and the duty to respect, protect and fulfil human rights ¹⁴ from a legal standpoint, through the lens of core institutional initiatives at the regional and global level. The aim is to understand if and how international institutions, notably UN organs, can systemically integrate the two discourses and take consistent action. ¹⁵ The analysis demonstrates that institutional cooperation can be achieved if basic substantive questions are preliminarily disentangled; a change in the behaviour of stakeholders is only possible if the law is properly framed.

The article proceeds in three steps. First, a brief presentation of the UN approach to the relationship between climate change and fundamental rights shows how human rights bodies and UNFCCC organs are far from systemically integrating the two regimes globally, despite rhetorical invocation of convergence. Second, the analysis moves to exploring regional initiatives on climate change and human rights, with particular regard to the Asia-Pacific, African, American and European systems, highlighting that institutional action is progressively grounded in the invocation of a basic right to a sustainable environment. Third, the article focuses on the substantive implications of the recognition of a fundamental right to a sustainable environment and shows that this is crucial to establishing a causal nexus between anthropogenic GHG emissions and human rights infringements. In conclusion, it is argued that the move from first and second generation human rights, that is, individual civil, political, economic, social and cultural rights, to collective third generation human rights, specifically the right to a sustainable environment as part of the right to development, ¹⁶ is essential to determining human rights responsibility for global warming, notably as concerns States. Institutional policies on climate change and fundamental rights should therefore be grounded in the basic right to a sustainable environment not only regionally, but also globally, with particular regard to UNFCCC organs and UN human rights bodies.

2. Depolarising the UNFCCC-HRC relationship under general international law

The UN has grappled with the problem of climate change mainly via the FCCC, which, following the classical scheme of multilateral environmental agreements, is administered by an annual Conference of the Parties and implemented via the Kyoto Protocol ¹⁷ and the Paris Agreement. ¹⁸ The overall aim is the ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’. ¹⁹ That means containing anthropogenic GHG emissions so as not to exceed a temperature increase of 2°C above pre-industrial levels. ²⁰ Along these lines, a first commitment period under the Kyoto Protocol, concerning the time span 2008-2012, was established at the third Conference of the Parties to the UNFCCC (COP-3) in 1997. It provided an overall reduction target of 5 percent compared to GHG emission levels in 1990. ²¹ A second commitment period, concerning the time span 2013-2020, was outlined at COP-18 in Doha in 2012. It aims to reduce GHG emissions by 18 percent compared to levels in 1990. ²² Under the Paris Agreement, which has (quasi-)universal effect, States determine their commitment to GHG reduction targets for the time frame 2020-2025 according to the estimates of the Intergovernmental Panel on Climate Change (IPCC). ²³ The Agreement aims to contain global temperature increase within 2°C, and possibly 1.5°C, above pre-industrial levels. ²⁴ With specific regard to fundamental rights, the Preamble to the UNFCCC recognises the importance of ‘sustainable social and economic development’, which can be interpreted as an implicit reference to the relevance of second generation human rights to climate change. ²⁵ This is reaffirmed in Article 4(1)(f) of the UNFCCC and in Article 2(3) of the Kyoto Protocol. More explicitly, a preambular statement to the Paris Agreement provides that the ‘Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’. ²⁶

Action to recognise the relevance of fundamental rights to global warming has been undertaken particularly by UN human rights organs. Indeed, the HRC has acknowledged the impact of climate change on fundamental rights via a set of Resolutions adopted over eight years. Building on each other, the Resolutions progressively recognise a link between climate change, environmental protection, and human rights. ²⁷ Based on HRC Resolution 7/23, in 2009 the Office of the UN High Commissioner for Human Rights (OHCHR) adopted a key Report on the relationship between climate change and fundamental rights. ²⁸ The first part of the Report assesses the negative effects of climate change on human rights, whereas the second part develops inferences as to how fundamental rights can fit in the climate change discourse. ²⁹ In light of the fourth IPCC assessment on climate change, the Report concludes that global warming causes environmental deterioration, ³⁰ and thus affects ‘the full range of human rights’. ³¹ Particularly threatened by ice melting, sea level rise, and extreme weather events, the environment emerges as a pivotal element connecting climate change and fundamental rights. ³² In this regard, although it recognises that ‘universal human rights treaties do not refer to a specific right to a safe and healthy environment’, ³³ the Report indicates that the ‘United Nations human rights treaty bodies all recognise the intrinsic link between the environment and the realisation of a range of human rights’. ³⁴ Building on these premises, in a more recent study prepared in view of COP-21, the OHCHR emphasised that integrating human rights and climate change requires identifying specific right holders and duty bearers and outlining policies fulfilling such obligations. ³⁵ Along the same lines, within the context of his work on human rights and the environment, HRC Special Rapporteur John Knox prepared a few reports on the relationship between climate change and fundamental rights. The reports consider the importance of environmental protection within the context of the relationship between climate change and human rights, but do not focus on a fundamental claim to environmental protection. ³⁶

3. Regional prospects: the emergence of the human right to a sustainable environment as a basis for institutional cooperation

3.1. The progressive stance of Asia-Pacific small island states and African institutions

The Asia-Pacific is one of the areas most vulnerable to climate change, not only because of the centrality of the primary sector to its economy, ³⁷ but also owing to the presence of a myriad of low-lying small island States. ³⁸ The absence of a comprehensive human rights protection system in the region has nonetheless prevented the definition of a coherent approach to the issue of climate change and human rights. Instead, fragmented initiatives have flourished, recognising a link between climate change and fundamental rights more or less consistently. For instance, the South Asian Association for Regional Cooperation adopted the Declaration on Climate Change in 2008. ³⁹ Other instruments include provisions that can be relied upon to address global warming; for example, Article 28 of the ASEAN Declaration on Human Rights acknowledges the right to live in a healthy environment as part of the claim to private and family life. ⁴⁰ However, the most significant initiatives have been undertaken by regional low-lying island States, which are threatened with disappearance by sea level rise. Notably, in 2007 a Conference of Small Island States led by the Maldives adopted the Malé Declaration on the Human Dimension of Global Climate Change. This is a concise instrument, ⁴¹ whose importance for the recognition of the impact of global warming on human rights has not yet been adequately understood. Indeed, after the 2005 Inuit Petition to the IAComHR, the Malé Declaration is the first document to have brought the effects of climate change on human rights to the attention of the international community. ⁴² The Declaration is particularly relevant from an institutional perspective, since it advocates interaction at the universal level, and thus invites the UNFCCC COP to ‘seek the cooperation of the OHCHR and the UN HRC in assessing the human rights implications of climate change’. ⁴³ This triggered the explorative initiatives of the HRC, ⁴⁴ and ultimately led the Council to invoke the inclusion of fundamental rights in the Paris Agreement.

Fundamentally, the Preamble to the Malé Declaration highlights the importance of the ‘environment’ as the ‘infrastructure for human civilisation and life’. In practice, based on this premise and in light of the scientific assessments of the IPCC, the Preamble recognises that ‘climate change poses the most immediate, fundamental and far-reaching threat to the environment’, particularly that of ‘small island, low-lying coastal, and atoll States’. Legally, this assessment substantively translates into the acknowledgment that ‘the fundamental right to an environment capable of supporting human society and the full enjoyment of human rights is recognised, in varying formulations, in the constitutions of over one hundred States and directly or indirectly in several international instruments’. ⁴⁵ Institutionally, the ‘primacy of the UN process’ is underscored ‘as the means to address climate change’, and the UNFCCC and the Kyoto Protocol are considered ‘important initial multilateral efforts to address climate change through global legal instruments’. ⁴⁶ This provides a basis for requesting the international community to stabilise GHG emissions within a 2°C rise. ⁴⁷ A clear pattern thus emerges whereby GHG mitigation and adaptation measures are considered obligatory to safeguard the environment, which is regarded as a human right necessary to further protect other fundamental claims from the impact of climate change. ⁴⁸

A few interconnected initiatives show that a similar approach has been taken by African countries, which are marginal contributors to GHG emissions but suffer heavily from the effects of global warming. ⁴⁹ First, the AU recognised the existence of a relationship between climate change and human rights in 2007, via a Declaration on Climate Change and Development. ⁵⁰ This short document acknowledges the importance of the right to a sustainable environment, at least implicitly, as part of the right to development ⁵¹ and a basis for further protecting human rights: ‘climate change could endanger the future well-being of the population, ecosystems and socio-economic progress of Africa’. ⁵² Therefore, the Declaration calls for African States to commit to regional adaptation strategies and GHG reduction targets under the UNFCCC. ⁵³ Building on these premises, in 2009 the African Commission on Human and Peoples’ Rights (AComHPR) adopted a slightly more elaborate instrument, Resolution 153/2009. ⁵⁴ Notably, the Preamble to the Resolution recalls the importance for climate change of ‘socially acceptable development policies and programmes guided by human rights principles, including the right to development and the right of all peoples to a satisfactory environment favourable to their development’, ⁵⁵ as recognised in Article II of the African Convention on the Conservation of Nature and Natural Resources. ⁵⁶ Furthermore, the Resolution assumes that a lack of reference to human rights in international climate change negotiations particularly threatens the rights to life, physical integrity and livelihood, specifically of vulnerable populations. ⁵⁷ Accordingly, the Assembly of the Heads of State and Government of the AU is called upon to protect human rights from global warming and to include human rights standards in climate change negotiations. ⁵⁸ This approach is ultimately underpinned by Article 24 of the African Charter on Human and Peoples’ Rights, ⁵⁹ in connection with the right to development under Article 22: ‘All peoples shall have the right to a general satisfactory environment favourable to their development.’ In Ogoniland, this right was considered by the AComHPR as preliminary to the enjoyment of other fundamental claims, particularly the right to health. ⁶⁰

3.2. Incomplete protection in the Inter-American system

According to the IPCC, on the American continent climate change especially affects human settlements in the Southern Hemisphere. ⁶¹ Furthermore, part of North America is included in the Arctic Circle, which is an ice-covered region severely harmed by global warming. ⁶² The continent also includes two major GHG emitters, both in absolute terms and on a per capita basis. These are the US and Canada, ⁶³ which are currently not bound by reduction targets under the Kyoto Protocol, ⁶⁴ but recently signed the Paris Agreement. With specific regard to the relationship between climate change and human rights, the main institutional initiative is Resolution 2429/2008 of the Organisation of American States (OAS). ⁶⁵ By means of the Resolution, the OAS committed to exploring ‘possible links between climate change and human rights’ ⁶⁶ and pursuing GHG adaptation and mitigation policies, specifically aiming to increase the resilience of vulnerable States and populations. ⁶⁷ More precisely, the Resolution instructs the IAComHR, the main jurisdictional body of the OAS, to assess possible connections between climate change and the full enjoyment of human rights, ⁶⁸ in collaboration with other regional and international bodies, namely the OAS Department for Sustainable Development, HRC, OHCHR, and IPCC. In light of the American Declaration of the Rights and Duties of Man, ⁶⁹ the American Convention on Human Rights, ⁷⁰ the Additional Protocol of San Salvador (PSS), ⁷¹ and related human rights instruments, the Preamble to Resolution 2429/2009 stresses that climate change is ‘a shared concern of all humankind’ and its effects ‘have an impact on sustainable development and could have consequences for the full enjoyment of human rights’. ⁷² Most significantly, Article 11 of the PSS provides for ‘everyone’s right to live in a healthy environment and to have access to basic public services’, to be protected, preserved, and improved by the State Parties. However, since it is not covered by Article 19(6) of the PSS, the right to a healthy environment under Article 11 is not subject to the jurisdiction of the IAComHR and the Inter-American Court of Human Rights. It is thus non-justiciable. Along the lines of Resolution 2429/2008, in 2011 the IAComHR urged States to give priority to fundamental rights in climate change negotiations, as well as in the establishment and implementation of mitigation and adaptation measures. ⁷³ Surprisingly, though, the Commission has not been particularly reactive in addressing two crucial Inuit Petitions raising the issue of the impact of climate change on human rights.

The first Inuit Petition was filed with the IAComHR by the Chair of the Inuit Circumpolar Council, on behalf of herself and 62 other Inuit of the Arctic regions of the US and Canada, on 7 December 2005. ⁷⁴ The petitioner claims that climate change has made Arctic lands less accessible and more dangerous, thus affecting the Inuit lifestyle, and consequently several human rights. In particular, the petitioner invokes the rights to enjoy traditionally occupied lands and property, health, physical integrity, life, security, means of subsistence, residence, movement, inviolability of the home, and culture. ⁷⁵ Such claims are allegedly affected by environmental degradation, which, based on the opinion formulated by Judge Weeramantry in Gabčíkovo-Nagymaros, is considered to be covered by a customary and universal right to a sustainable environment under general international law. ⁷⁶ Consequently, the Petition upholds the responsibility of the US as a major GHG emitter, on a per capita basis, ⁷⁷ under the obligations to respect, ⁷⁸ protect, ⁷⁹ and fulfil ⁸⁰ human rights, claiming restitution in terms of both mitigation and adaptation measures. ⁸¹ The IAComHR, however, dismissed the Petition. The Court simply assumed that ‘the information provided’ did not allow it to determine whether ‘the alleged facts would tend to characterise a violation of rights protected by the American Declaration’ ⁸² according to Article 26 of its Rules of Procedure (Initial Review).

The second Inuit Petition was submitted to the IAComHR by the Arctic Athabaskan Council on 23 April 2013, on behalf of the Arctic Athabaskan people of the US and Canada. ⁸³ The petitioner claims that Canada has failed to regulate excessive black carbon emissions, thus affecting the Arctic environment, specifically in breach of the obligation to protect human rights. ⁸⁴ The no-harm principle and the precautionary principle are crucial to the Petition, ⁸⁵ although the fundamental nature of the right to a sustainable environment is only implicitly invoked via Article 11 of the PSS and OAS Resolution 2429/2008. ⁸⁶ Environmental protection is also regarded as critical for the enjoyment of other fundamental individual claims, notably the rights to property, health, means of subsistence, and culture. ⁸⁷ In light of this, the petitioner alleges that Canada is responsible not only because of its quantitatively excessive black carbon emissions, but also owing to its territorial proximity to the Arctic. ⁸⁸ Consequently, along the lines of the first Inuit Petition, the Athabaskan Council claims restitution in terms of both mitigation and adaptation measures. ⁸⁹ Thus far, however, the IAComHR has not answered the questions raised by the Petition. ⁹⁰

From a positivist perspective, it is at least arguable that the absence of recognition of the judicial enforceability of the basic right to a sustainable environment under the PSS deprived the IAComHR of a useful tool for considering the Inuit Petitions. ⁹¹ Otherwise, it would be difficult to explain the inertia of the Commission. This is particularly so when considering the Commission’s mandate to investigate the relationship between climate change and fundamental rights under OAS Resolution 2429/2008 and its recognition of the importance of States giving priority to human rights in international negotiations and domestic climate policies. From a legal policy standpoint, the relative inertia of regional institutions may have been influenced by the critical stance of the US on the relationship between climate change and human rights. Indeed, supporting the approach of major oil producing and consuming countries, in 2008 the US opposed the approval of UN HRC Resolution 7/23, which then triggered the universal process of recognition of the impact of climate change on fundamental rights. ⁹² More specifically, the US initially denied that ‘a right to a “safe environment” or other similarly worded or conceived rights exist under international law’. ⁹³ Furthermore, the US took ‘the view that a “human rights approach” to addressing climate change is unlikely to be effective’, since ‘climate change can be more appropriately addressed through traditional systems of international cooperation and international mechanisms […] including the UNFCCC process.’ ⁹⁴ A discrepancy was thus underscored, notably based on complex causal issues, including human and natural causes of climate change, the multiplicity of sources and activities generating GHG emissions, and their long-term effect:

[…] climate change is a highly complex environmental issue, characterized by a long chain of steps between the initial human activities that produce GHG emissions and the eventual physical impacts that may result from those emissions. Emissions from all sources and all countries determine the overall concentration of these gases in the atmosphere. Once in the atmosphere, each of the different GHGs imposes a perturbation in the radiative energy budget of the Earth’s climate system (‘radiative forcing’) which, in turn, increases global average surface temperatures. This warming then leads to the eventual physical impacts that affect human society, such as changes to rain patterns and the earth’s hydrological systems. ⁹⁵

This stance was softened in the course of the process that led to the adoption of HRC Resolution 26/L.33 and later to the inclusion of fundamental rights in the Paris Agreement. ⁹⁶ However, the US Permanent Mission in Geneva still took a critical approach to the Resolution, with particular regard to the recognition of the right to development, ⁹⁷ which entails both an economic and environmental component. ⁹⁸

3.3. The two-pronged European approach

Although it is not the most concerned region, Europe is also affected by climate change, with significant negative consequences for transport, energy, tourism, agriculture, forestry, and health systems. ⁹⁹ The EU has adopted a regional response, committing to ambitious GHG reduction targets under the UNFCCC, ¹⁰⁰ the complementary Kyoto Protocol, ¹⁰¹ and the Paris Agreement. ¹⁰² Under the Kyoto Protocol, the EU committed to an 8 percent GHG reduction target by 2012, compared to emission levels in 1990, and the target has been raised to 20 percent by 2020. ¹⁰³ Under the Paris Agreement, the EU accepted a 40 percent GHG reduction target by 2030, ¹⁰⁴ in accordance with its 2030 Framework for Climate and Energy Policy, ¹⁰⁵ and the Roadmap for Moving to a Low-Carbon Economy outlines an 80-95 percent reduction commitment by 2050. ¹⁰⁶ Currently, EU climate policies are mainly implemented via Directive 2003/87, which establishes the EU Emission Trading System (ETS), ¹⁰⁷ as improved and extended by Directive 2009/29/EC. ¹⁰⁸ Fundamentally, the ETS caps GHG emissions in the major EU industrial sectors by means of tradable GHG allowances. Furthermore, the 2009 Efforts Sharing Decision defines GHG reduction targets for sectors that are not included in the EU ETS, such as construction, agriculture, and transport. ¹⁰⁹ Directive 2009/29 explicitly underscores the importance of fundamental rights for climate policies, significantly under the Charter of Fundamental Rights of the European Union (CFREU): ¹¹⁰ ‘The Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union’. ¹¹¹

The CFREU was adopted in 2000 as a non-binding document. It subsequently became part of the rejected Constitution for Europe, ¹¹² and was turned into a binding instrument by means of the Lisbon Treaty in 2009. ¹¹³ The Charter embeds a list of fundamental rights that is largely similar to the European Convention on Human Rights (ECHR). ¹¹⁴ Besides classical first and second generation claims, however, the Charter acknowledges the basic status of environmental protection under Article 37, according to which ‘A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.’ ¹¹⁵ This rule is a ‘twin’ of Article 11 of the Treaty on the Functioning of the European Union (TFEU), ¹¹⁶ which in turn recognises the importance of environmental protection embedded in several primary rules of the EU: Article 191(2) of the TFEU, establishing a link between ‘environmental protection’ and ‘human health’, Article 194 of the TFEU, linking energy and environmental preservation, and Articles 3(3) and 21(2) of the Treaty on European Union (TEU). ¹¹⁷ Regardless of whether it is considered to establish a general principle or a fundamental right, ¹¹⁸ Article 37 of the CFREU provides guidance for EU climate policies, which have been deemed ‘credible’ in a Report of the EU Directorate for External Policies on climate change and human rights. ¹¹⁹ Thus, the recognition of the fundamental role of a principle-right to a high level of environmental protection under Article 37 of the CFREU has made a significant contribution to shaping climate change measures in the Union. ¹²⁰

As to the case law, within the Council of Europe system action was brought in the European Committee of Social Rights (ECteSR) on climate change grounds in Marangopoulos. In this dispute, the Committee was called to make a decision on the allegation that Greece failed to comply with its duty to protect public health against air pollution under Article 11 of the European Social Charter (ESC), ¹²¹ inter alia, because of excessive GHG emissions inconsistent with the UNFCCC and the Kyoto Protocol. ¹²² Assuming that the right to health embedded in Article 11 of the ESC includes the ‘right to a healthy environment’, the Committee endorsed the claims of the plaintiffs. ¹²³ This approach follows the jurisprudence of the European Court of Human Rights (ECtHR). Notably, in Tătar v Romania the Court upheld State responsibility for not preventing an environmental accident by means of an extensive interpretation of Article 8 of the ECHR, expanding the scope of the right to private and family life so as to encompass the ‘enjoyment of a healthy and protected environment’. ¹²⁴ This basically signals that, in the absence of a clear recognition of a human right to a sustainable environment, the main human rights bodies in Europe are not fully equipped to address climate change. ¹²⁵ Should any case arise based on global warming in the future, the different human rights organs, namely the ECtHR, will still be compelled to adjudicate by stretching existing first and second generation individual claims. Such inadequacy was pointed out in Hatton and others v United Kingdom:

It is true that the original text of the Convention [ECHR] does not yet disclose an awareness of the need for the protection of environmental human rights […] however [under] the European Union’s Charter of Fundamental Rights […] the member States of the European Union want a high level of protection and better protection, and expect the Union to develop policies aimed at those objectives. On a broader plane the Kyoto Protocol makes it patent that the question of environmental pollution is a supra-national one, as it knows no respect for the boundaries of national sovereignty. ¹²⁶

In order to fill the gap, several proposals have been put forward to adopt a Protocol Additional to the ECHR, explicitly providing for a human right to a sustainable environment, based, inter alia, on climate change. ¹²⁷ The Committee of Ministers of the Council of Europe has nevertheless rejected these proposals, assuming that the ECHR affords sufficient protection to the environment based on classical first and second generation human rights. ¹²⁸ Such inertia generates a paradoxical situation, whereby the EU, which is not specifically a human rights body, provides more advanced protection for fundamental claims against climate change than the Council of Europe, a specialised human rights organ. This antithesis will clearly emerge if the EU accedes to the ECHR, as provided for in Article 6(2) of the TEU. The recognition of a human right to a sustainable environment in the ECHR would be particularly meaningful for those States, such as Russia, that are Parties to the Convention, but not to the EU, and are therefore not bound by the CFREU and EU regulation on climate change. With specific regard to the possible exit of the UK from the Union, the recognition of a fundamental right to a sustainable environment in the ECHR would continue to impose a human rights constraint on the UK to pursue a GHG reduction policy that is currently in line with EU standards, envisaging an 80 percent reduction target by 2050 under the Climate Change Act 2008.

4. Achieving institutional integration based on the human right to a sustainable environment: a systemic approach

Under general international law, the HRC is increasingly defining the relationship between climate change and human rights within the context of environmental protection, which is nevertheless not yet recognised as a fundamental right. ¹²⁹ In fact, none of the Resolutions thus far adopted by the HRC on climate change and human rights refer to a human right to a sustainable environment. They only emphasise the effects of global warming on civil, political, economic, social, and cultural rights. On this basis, the HRC is prompting UNFCCC organs to include human rights in climate change negotiations, which has so far only resulted in a general preambular acknowledgment of the relevance of fundamental rights to climate change. Such an outcome is consistent with the fact that UN human rights organs, and particularly the HRC, have not yet substantively disentangled the question of the impact of climate change on fundamental rights and their reciprocal relevance. This makes it problematic to outline clear guidance for consistent institutional action. ¹³⁰ Therefore, the role of HRC special procedure mandate holders is crucial, for instance, to assessing the impact of climate change on the right to health and taking consistent measures. ¹³¹ Fundamentally, however, regional experiences suggest that the main problem is clarifying the status of the right to a sustainable environment under general international law. What would therefore be the systemic impact of the universal recognition of a third generation fundamental right to a sustainable environment on climate change?

Substantively, as stated in the 2009 OHCHR Report, it is not easy to provide evidence of a causal nexus between anthropogenic GHG emissions and breaches of first and second generation human rights induced by environmental pollution. ¹³² In fact, the link between GHG emissions and specific human rights breaches is blurred by other events, notably rising atmospheric temperatures (climate change) and further environmental effects (general causation). This makes the breach of first and second generation human rights a secondary consequence (specific causation) of anthropogenic GHG emissions, according to the following scheme:

(1) anthropogenic GHG emissions → (2) rising atmospheric temperatures (climate change) → (3) further environmental consequences, for instance, hurricanes (general causation) → (4) legal effects, including breaches of (human) rights of (present and future) generations (specific causation). ¹³³

Even if in some cases establishing an objective causal nexus is not excessively complex, specifically, with respect to the right to self-determination, ¹³⁴ attributing responsibility can still prove subjectively difficult, in light of the plurality of sources of GHG emissions. ¹³⁵ This was clearly underscored by the US District and Appeals Courts for the Northern District of California in Kivalina. ¹³⁶ Given that ‘greening’ classical human rights is insufficient to establish responsibility for GHG emissions, the advantage of recognising a human right to a sustainable environment, conceived of not only as a moral stance but also as a positive Hohfeldian claim-duty relation, ¹³⁷ would lead to simplifying causation. In fact, under the obligations to respect, protect, and fulfil the right to a (climatically) ¹³⁸ sustainable environment, a State could be held responsible for the sole fact of emitting excessive GHG into the atmosphere, without proving the breach of any further individual rights. ¹³⁹ Specific causation would therefore be excluded and evidence should only be adduced with respect to general causation, shifting the burden of proof to the defendant. ¹⁴⁰ Responsibility could thus be simply attributed proportionately to excessive GHG emissions, ¹⁴¹ based on (minimum) reduction commitments outlined under the UNFCCC regime, directly triggering human rights protection mechanisms. ¹⁴² The UNFCCC regime would therefore define the acceptable level of environmental risk posed to fundamental rights by climate change. ¹⁴³ In other words, recognising the environment as an object of direct human rights protection, as opposed to indirect protection via classical first and second generation fundamental rights, ¹⁴⁴ would essentially shorten the causal link between GHG emissions and emitters and human rights breaches. This is the logical consequence of the fact that environmental protection is necessary to enjoy all other fundamental rights. Therefore, the right to a sustainable environment should be conceived of as a basic norm (Grundnorm) ¹⁴⁵ underpinning all other human rights. ¹⁴⁶ Following the interpretation proposed by James Nickel, this is a powerful argument in support of the indispensability of recognising a human right to a sustainable environment because it proves that weaker protection is insufficient to shield fundamental rights from climate change. ¹⁴⁷

The international acknowledgement of a fundamental right to a sustainable environment seems therefore crucial to systemically linking UN regulation on climate change and human rights. This would ‘only’ require a human rights interpretation of the long-established customary no-harm rule, ¹⁴⁸ which is already embedded in the UNFCCC: ‘States have […] responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.’ ¹⁴⁹ For the time being, the no-harm rule itself can be relied upon as a substitute for a human right to a sustainable environment. A strict application of such a norm, based on excessive GHG emissions, ¹⁵⁰ allows attribution of responsibility irrespective of further environmental consequences and their impact on human rights. ¹⁵¹ Along these lines, in 2002 the Pacific island State of Tuvalu threatened to bring an action in the International Court of Justice against the US and Australia for not acceding to the Kyoto Protocol. ¹⁵² The District Court of The Hague upheld this approach in Urgenda v The Netherlands, based on a general duty of care and thus on negligence:

[…] the current global emissions and reduction targets of the signatories to the UN Climate Change Convention [-20 percent to -30 percent for the EU under the Doha Amendment to the Kyoto Protocol] are insufficient to realise the 2° target […] the State [of the Netherlands] is obliged to take measures in its own territory to prevent dangerous climate change (mitigation measures) […] the possibility of damages for those whose interests Urgenda represents, including current and future generations of Dutch nationals, is so great and concrete that, given its duty of care, the State must make an adequate contribution, greater than its current contribution, to prevent hazardous climate change. ¹⁵³

Although it is still subject to appeal, this stance was upheld in Kelsey Cascade Rose Juliana and others v US. ¹⁵⁴ In this case, the US District Court of Oregon rejected a motion to dismiss a complaint for damages caused by excessive CO₂ emissions under the (inter-temporal) constitutional rights to life, liberty, and property, underpinned by a claim to a stable climate. ¹⁵⁵ Reversing Kivalina, the Court assumed that the ‘[US] Environmental Protection Agency’s action/inaction with respect to the regulation of greenhouse gases allegedly results in the numerous instances of emissions that purportedly cause or will cause the plaintiffs’ harm’. ¹⁵⁶ The task of determining issues of causation and redress in detail was nevertheless left to the trial judge. ¹⁵⁷ Fundamentally, though, customary and UNFCCC rules have the potential to compel reparation for environmental damage ¹⁵⁸ but do not trigger human rights procedures. ¹⁵⁹ Therefore, based on general causation the no-harm rule permits a proportionate determination of the responsibility of States that do not respect binding commitments under the Kyoto Protocol, and prospectively the Paris Agreement. However, specific causation must still be proved to activate human rights enforcement mechanisms. Interpreting the no-harm rule as a human right is therefore necessary to provide a direct basis for action in domestic, regional and universal human rights bodies, particularly the UN HRC. ¹⁶⁰

The Special Rapporteur on Human Rights and the Environment has pointed out that the UN and general international law do not yet recognise a human right to a sustainable environment. ¹⁶¹ However, in light of the fundamental character of environmental protection, ¹⁶² Knox has not excluded the possibility of considering such a right a general principle of law. ¹⁶³ In fact, in addition to a few regional instruments, particularly the ACHPR and the PSS, since 1976 more than 90 States have embedded the human right to a sustainable environment in their constitutional texts. ¹⁶⁴ So far, though, the Rapporteur has taken a prudent stance. Knox recognised procedural environmental rights codified in the Aarhus Convention, ¹⁶⁵ but substantively only conceded that ‘States have obligations to protect against environmental harm that interferes with the enjoyment of human rights’. ¹⁶⁶ It therefore seems that practice is heading towards the recognition of a fundamental claim to environmental protection, ¹⁶⁷ which is nevertheless not yet internationally sanctioned. ¹⁶⁸ For the time being, acknowledging that environmental sustainability underpins all human rights is insufficient to trigger human rights protection mechanisms based on excessive GHG emissions. Thus, proving a further breach of specific first and second generation fundamental claims is required. For instance, relying, inter alia, on Ogoniland, Knox recognised that environmental protection is particularly important for the enjoyment of the right to health, and imposes on States an obligation to ‘prevent pollution and ecological degradation from oil production’. ¹⁶⁹ Such an approach, though, is suitable when the source of pollution is localised, as in Ogoniland, where oil development practices by the State of Nigeria and partner private corporations, for example, Shell Oil, polluting the environment and causing health problems, were in issue. Nevertheless, this is inadequate to resolve problems of causation and attribution of responsibility when there are widespread sources of pollution, as in the case of climate change. ¹⁷⁰

The stance of Professor Knox is less progressive than that of his predecessor Fatma Zohra Ksentini, former UN Special Rapporteur on Prevention of Discrimination and Protection of Minorities. In a 1994 document on Human Rights and the Environment, Ksentini recognised the existence of an omnium and erga omnes human right ‘to a satisfactory environment […] at the regional and universal level’. ¹⁷¹ This view implements the idea of ‘environmental welfare’, along the lines of a ‘communitarian’ approach to ‘global’ society that is based on trans-border inter-individual relations, rather than interstate ones. It includes ‘the [precautionary and inter-temporal] possibility of reciprocity with those not yet born’. ¹⁷² With respect to climate change, such an approach would facilitate holding States responsible before international human rights organs for exceeding (minimum) GHG emission targets under the UNFCCC regime. Furthermore, this stance would be conductive to overcoming the problem of the apparent inconsistency between the territorial scope of first and second generation human rights and the transboundary nature of GHG emissions. ¹⁷³ As to reparation, the Draft Principles include measures aiming ‘at the prevention of environmental harm, at the provision of adequate remedies, and at the sustainable use of natural resources’. ¹⁷⁴ Along the lines of the general rules established under the ILC’s 2001 Draft Articles on State Responsibility, ¹⁷⁵ these provisions are consistent with the request for mitigation and adaptation policies formulated in the first and second Inuit Petitions to the IAComHR. ¹⁷⁶

The same comprehensive approach as the Ksentini Report has been adopted by other initiatives, particularly the 1999 UNESCO Bizkaia Declaration on the Human Environment. ¹⁷⁷ Outside the UN, the Draft Statute of the International Environmental Agency and the International Court of the Environment ¹⁷⁸ goes as far as to propose the establishment of a general governance body and an international jurisdiction in the matter. ¹⁷⁹ Without going this far, for the time being violations of the human right to a sustainable environment could be primarily taken into account in the legislative process and secondarily monitored and adjudicated upon internationally by the UN HRC, or by UN human rights treaty bodies, ¹⁸⁰ depending on the instrument adopted for recognising such a right.

5. Conclusion

Institutional integration between climate change and human rights is far from achieved regionally and internationally. However, a regional tendency is progressively emerging to substantively ground integration in the human right to a sustainable environment. Systemically, such a claim avoids the complexities of establishing a causal nexus between anthropogenic GHG emissions and first and second generation human rights, directly triggering international human rights protection mechanisms based on (minimum) reduction targets under the UNFCCC regime. Arguably, establishing the human right to a sustainable environment internationally is therefore crucial to determining human rights responsibility for global warming, with particular regard to States. This would consequently shape the climate policy of UNFCCC agents and UN human rights bodies, along the lines of the WTO in the field of trade, ¹⁸¹ which would in turn facilitate uniform action by regional organs. ¹⁸²

Climate change thus has the potential to decisively prompt the definition of the fundamental right to a sustainable environment as a basic rule (Grundnorm) within the global human rights protection system. It therefore adds a few strings to the bow of those scholars who have supported the idea of intergenerational environmental justice on legal and moral grounds since the 1970s. In contrast with the long terms of international procedures, and particularly diuturnitas necessary for the establishment of customary opinio juris, ¹⁸³ this process should be accelerated. In fact, according to IPCC estimates, not much time is left to take action so as to at least contain temperature increase within 2°C, ¹⁸⁴ a threshold that is not even considered sufficient to avoid severe harm to basic rights. The human right to a (climatically) sustainable environment could thus be posited by simply recognising the fundamental nature of the already universally established no-harm rule.