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Climate change – the greatest human rights challenge of our time

Mary Robinson, former UN High Commissioner for Human Rights has recently declared climate to be “the biggest human rights issue in the world”. 13 million deaths could be prevented every year by improving environmental protections.  Despite growing evidence of a direct link between the impacts of climate change and human rights, engagement across these two fields has only just begun.  Recognition of rights has been largely absent within the international negotiations on climate change under the UN Framework Convention on Climate Change (UNFCCC) initiated in Rio de Janeiro in 1992.

However, a sea change in prioritisation is underway, exemplified by the actions of human rights and climate advocacy at the 21st Session of the Conference of the Parties in Paris (COP 21)John Knox, the first UN Special Rapporteur (Independent Expert) on Human Rights and the Environment, has declared that “states’ human rights obligations also encompass climate change” and has urged them to adopt a rights perspective in tackling environmental issues.  UNICEF has highlighted climate change as a severe threat to children’s most basic rights, including those related to survival and wellbeing.  COP21 has set out a framework for climate change action from 2020.

Academic and pragmatic critique is an essential aspect of this important shift in thinking, exemplified by the efforts of climate and human rights advocates such as John Knox and practitioners working within a range of UN agencies, government bureaucracies and NGOs.  There is much scope for mutual reciprocity across these two traditionally distinct policy areas.  There is also a role for the academy in this endeavour, especially in efforts to place human rights and environmental protection on a sound doctrinal and policy footing, and highlighting areas of compatibility, as well as potential tensions.  Emergent efforts to cross-fertilise across fields of practice and scholarship also promise to provide a powerful statement on the value of cross-sectoral collaboration in human rights and environmental protection policy-formation, advocacy and research.

Many regard it as essential that respect for human rights informs the decisions, actions and investments that flow from the COP21 framework which will be translated into national legislation in the UK and elsewhere.  In realising the potential for the two distinct fields of human rights and environmental protection to mutually reinforce one another, legal experimentation by dedicated litigants as well as identifying creative channels for public policy delivery will be particularly important.

Human rights can serve as a powerful tool for mobilisation efforts on environmental protection, particularly on issues such as constraints on the abuse of power, procedural guarantees of remedy, social activism as a basis for change, and human wellbeing as the ethical core of a sustainable response to climate change.  For its part, environmental advocacy promises to reinvigorate the foundations of human rights discourse and action by expanding its normative reach to engage the greatest governance challenge facing the world today. However, integration across these two fields is not without its challenges. The safeguarding of natural resources may require human rights advocates to revisit questions of private property, privacy rights, governmental regulation and due process, as well as rearticulate the relationship between the human and nonhuman living community.  In turn, environmental advocacy has not always given sufficient regard to human wellbeing.  The impact of climate change is likely to be particularly hard on vulnerable groups, including those living in poverty, women, children and indigenous peoples.

A key challenge and pending question is whether human rights are compatible with safeguarding of natural resources and environmental protection?  For scholars, such as Conor Gearty, the human rights model – as currently conceived – displays serious omissions which raise the possibility of incompatibility.  Antiquated rights categories, civil and political, ESCRs and groups rights, do not offer a compelling language for the safeguarding of natural resources.  He argues that human rights advocates will have to transform long held rights touchstones, especially concerning property, privacy rights, governmental regulation and due process, if they are to come up with actionable policy prescriptions capable of providing a robust response to climate change while safeguarding human rights.

The actors, mechanisms, and processes of the global human rights apparatus have their antecedents in a desire to prevent massive violence and warfare.  However, the remit has rapidly evolved to encompass a range of global policy challenges, from universal health provision to environmental protection.   This is exemplified by the decision of the Human Rights Council in 2012 to appoint an independent expert on human rights and the environment.  The human rights regime is codified in a dense array of treaties, institutions, networks and standards and we now see normative running code beginning to bind human rights and environmental protection.  Importantly, human rights language is for the first time made explicit in the preamble of the Paris Agreement:

…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…

This shift reflects broader trends towards expansion and increased intrusiveness of global human rights norms in recent decades, especially in the legitimation of concern for the welfare of individuals and state behaviour regarding domestic human rights practices.   Specifically, states are directed to consider not only environmental law but also international human rights law in addressing climate change.  For John Knox, human rights brings three central benefits to the climate change debate: (1) it clarifies what is at stake, (2) it provides guidance for developing robust, effective climate policies, and (3) it provides additional forums to address the adverse effects of climate change.

Attention now turns to implementation in practice.  This will likely depend upon enabling pro-compliance domestic constituencies to effectively leverage Paris Agreement commitments with a view to both improving practices on the ground and holding government to account for failures to act effectively.  While environmental protection within a rights-respecting framework may be the objective, we must not lose sight of the two halves of the implementation puzzle: strategy and execution.  A formidably long series of steps separates UN deliberations in New York or Geneva from ensuring the proper conduct of local state officials in countries such as Brazil or Malaysia that are facing illegal destruction of rainforests.  Accountability and remedy mechanisms at the national level present a new battleground for advancing human rights and environmental protections to the bounds, or even beyond, of state agreement.  Indeed, as John Knox has observed, even if governments meet their current commitments under the Paris Agreement, they will not satisfy their human rights obligations.  As such, it will be necessary to advance upon the current intended pledges which resulted from the Paris meeting.

A new generation of human rights practitioners, advocates and scholars are setting their sights on leveraging this rapidly changing strategic environment to devise global policy interventions which actually work.  The scientific consensus is that time is running out if we are to prevent a catastrophic rise in global average temperature.  However, political action by public authorities at all levels should not come at the expense of human rights protections.  The temptation to side-line human rights should an emergency situation be declared in the future will be great.  Such an eventuality must be resisted.  The response to climate change must prioritise the avoidance of potential harm to actual persons.  In this way, human rights provides the overarching ethical imperative to guide the difficult task which lies ahead: motivating collective action on an unprecedented scale through sustained and serious engagement with politics and power.

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