Shining the spotlight on human rights at COP24 and beyond
The preamble to the Paris Agreement specifies that Parties “should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights…”. By acknowledging the importance of climate change to the realisation of human rights, the Paris Agreement became the first international environmental treaty to explicitly reference human rights. Quite how far Parties will honour their human rights commitments when taking climate action will become clearer this month at the COP24 UN Climate Change Conference in Katowice, Poland, where finalised guidelines for the implementation of the Paris Agreement are expected to be adopted. The need to align action to address climate change with state and corporate human rights obligations has also recently gained significant prominence in climate change litigation at the national level.
Human rights and international climate diplomacy
Negotiations over the guidelines for implementing the Paris Agreement provide the first real test of Parties’ commitment to achieving greater action on climate change, which in turn can reduce negative impacts on human rights. The UN High Commissioner for Human Rights and some Parties have expressed support for the inclusion of references to human rights in the guidelines in the hope that using human rights language when referring to transparency over climate action, the global stocktake of progress in implementing the Paris Agreement, and Parties’ nationally determined contributions will ensure that Parties heed their existing human rights commitments when implementing the Agreement. Negotiations on the guidelines have been slow, however, and it is possible that they will not be completed at COP24 (the deadline set at COP22 in 2016). It remains to be seen whether and to what extent human rights considerations will be included.
Elsewhere, the matter of climate change has gained increasing prominence in the work of international human rights bodies. Since 2009, a long string of Human Rights Council (HRC) resolutions have emphasised the potential of existing human rights obligations to “inform and strengthen” climate change law- and policymaking, by “promoting policy coherence, legitimacy and sustainable outcomes”. The HRC has also called upon states to integrate human rights into climate action.
Most recently, the UN Human Rights Committee’s latest General Comment, providing guidance on the interpretation of the right to life under the 1966 International Covenant on Civil and Political Rights, acknowledged that environmental degradation, climate change and unsustainable development constitute “some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life”. The General Comment emphasises how implementation of the obligation to respect and ensure the right to life depends on measures taken by states to “preserve the environment and protect it against harm, pollution and climate change caused by public and private actors”.
Litigation on climate change and human rights
At the national level, climate change lawsuits are increasingly using human rights arguments.
In 2015 environmental group Urgenda and more than 800 Dutch citizens secured an historical court victory against the Dutch government, which they had sued for not taking sufficiently ambitious action to reduce emissions in the Netherlands. The Dutch Government appealed the decision but on 9 October 2018 the Dutch Court of Appeals ruled again in favour of Urgenda, this time supporting its ruling with human rights arguments. In particular, the Court of Appeal noted that, by not taking adequate action to reduce emissions, the state had failed to fulfil its duty of care pursuant to the right to life and the right to respect for private and family life under the European Convention on Human Rights.
A landmark statement was recently issued in a similar case: Friends of the Irish Environment CLG versus the Government of Ireland. Assessing the case, the UN Special Rapporteur on Human Rights and Environment, Professor David Boyd, drew attention to Ireland’s clear, positive and enforceable obligations to protect its citizens against the infringement of human rights caused by climate change. His statement unequivocally concluded that the Government of Ireland “must reduce emissions as rapidly as possible, applying the maximum available resources”.
Similar arguments are being made in the context of the so-called People’s climate case, currently pending hearing before the Court of Justice of the European Union.
Can global corporations be held accountable too?
As we reported last month, the specific responsibilities of corporations in relation to the impacts of climate change on the enjoyment of human rights are at the centre of an inquiry being led by the Commission on Human Rights of the Philippines. The National Inquiry on Climate Change is the world’s first investigation of its kind and aims to establish whether the largest emitters – the so-called ‘Carbon Majors’ – are responsible for human rights violations resulting from the impacts of climate change in the Philippines. The inquiry, initiated in 2015, recently entered the final phase with a round of hearings at LSE in London that saw expert witnesses giving evidence, most saliently on causation and attribution of damage arising from climate change. In the case of the Philippines, recent damage has been caused by a series of devastating typhoons.
Recent years have witnessed a surge in climate-related litigation, including requests for compensation for harm associated with the impacts of climate change. Through these test cases, litigants around the world are pushing the boundaries of tort, public, and administrative law remedies to obtain redress for damage to persons, property and/or the environment associated with climate change. Only a few such cases have been argued on the basis of human rights law obligations. However, human rights may be used as a gap filler until other areas of law can satisfactorily address the complex liability questions associated with the adverse impacts of climate change.
The Philippines investigation therefore has significant potential for influence. Even if the Commission does not have the power to compensate victims, it can declare that human rights have been violated and provide recommendations on how to address and redress these violations. With climate law suits against corporations being filed all over the world, acknowledgment of the responsibility of corporations would set a precedent, and could eventually contribute to momentum leading to the provision of compensation by courts. The Commission’s very decision to investigate human rights violations allegedly perpetrated by corporations headquartered outside the Philippines has already broken new ground. Although the Carbon Majors did not participate in any of the hearings, the inquiry was initiated with the hope to “help establish processes for hearing human rights victims especially with regard to transboundary harm, clarify standards for corporate reporting and help identify basic rights and duties relative to climate change”.
The National Inquiry on Climate Change is set to conclude in 2019, with the Philippines Human Rights Commission delivering recommendations for governments, corporations, particularly major carbon emitters, and citizens. Meanwhile the inquiry is working as a powerful reminder of the impacts of climate change by focusing on damage that has already occurred, and of the need to find the means to address this. It is also a timely prompt for negotiators in Katowice on the urgency for more ambitious and rights-based action to address climate change.
We will discuss some of these issues at COP24. You can find us at there at: www.lse.ac.uk/GranthamInstitute/cop24/
Joana Setzer is a research officer in Governance and Legislation at the Grantham Research Institute, Annalisa Savaresi is a lecturer in Environmental Law at the University of Stirling and Rebecca Byrnes is a Policy Analyst at the Grantham Research Institute. The views in this commentary are those of the authors and do not necessarily represent those of the Grantham Research Institute.
At the London hearings, LSE and the University of Stirling launched a student competition to support the drafting of the Philippines Human Rights Commission’s recommendations. University undergraduate and graduate students from around the world can take part, individually or in a group, by submitting entries of up to 1,000 words on the content of the Commission’s recommendations. Shortlisted entries will be judged by a group of academic experts. The best submission will feature in Ratio, LSE’s law magazine. The winner will also receive a certificate issued by the Commission on Human Rights of the Philippines, and a £250 prize. Entries should be emailed to <firstname.lastname@example.org> by Friday 1 March 2019. More details on how to enter are available here.