A Response to John Knox by Marc Limon

[Marc Limon is Counsellor of the Mission of the Government of the Maldives to the United Nations, in Geneva, Switzerland]

As Professor Knox recognises in his paper, international human rights law is essentially concerned with the relationship between an individual and his or her own State.  This makes it difficult to usefully leverage human rights law in the context of global climate change, beyond noting that, irrespective of their level of responsibility for global warming, all States retain an obligation to protect the human rights of their citizens from its negative impacts and to do so in a way that is consistent with the full enjoyment of human rights.

For most developed countries in the Human Rights Council, that should be (and indeed, in their mind, is) the end of the matter. For them, conceding that climate change undermines a range of internationally protected human rights is fine, insofar as it serves as a reminder to developing countries that a) they should not use globalised phenomena like climate change as an excuse for backsliding on human rights, and b) countries which observe and respect human rights (especially civil and political rights) are inherently more resilient and adaptable to all crises-including climate change.

However, for most developing country delegations in the Human Rights Council, especially delegations of countries that are most vulnerable to the impacts of climate change, this traditionalist reading of human rights law is not the end of the matter.  These delegations argued, in various interventions during the March and June sessions of the Council, that it is fundamentally unfair, in the context of a globalised concern such as climate change, to suggest that relevant human rights obligations lie solely with the State wherein harm is suffered.  Rather, one must strike a balance between drawing attention to and clarifying human rights obligations applicable within vulnerable States on the one hand (i.e., domestic application), and drawing attention to and clarifying extraterritorial human rights obligations on the other-especially obligations applicable to those countries that bear the major responsibility for having caused climate change.  These countries argue, rightly, that to fail to strike such a balance would be to consign vulnerable States to an ultimately futile attempt to protect human rights in the face of a problem that they cannot control and that will, in the end, consume them.

The question, then, is whether it is possible to strike such a balance.  Can human rights obligations be applied extraterritorially, and can accountability permeate national borders? There is no doubt that attempts to answer and respond to such questions will be extremely difficult.  However, developing countries at the Human Rights Council have proposed a number of options.

One option, which Professor Knox rightly presents as the most practicable, is to strengthen jurisprudence around the concept of the “duty of international cooperation.”  Unfortunately, there are doubts as to what real impact this course of action would have on international climate change policy.  A second option is to build on the idea that while it may be the case that States have a primary responsibility to promote and protect human rights within their jurisdiction, other countries carry a concurrent obligation not to interfere with the enjoyment of human rights elsewhere.  For example, the Maldives State may be responsible for protecting the human rights of Maldivians, but other States also have a responsibility to ensure a permissive international environment.  The third option is to go against the logic presented in the OHCHR report and Professor Knox’s paper, by arguing that climate change impacts can indeed be conceived as human rights violations-with identifiable victims and perpetrators (even in a transnational context).  According to this view, the power to protect human rights in the face of climate change rests primarily with large emitting States-States which have undertaken legal commitments to reduce their emissions to “safe levels” (levels consistent with the preservation of the environment and consistent with the full enjoyment of human rights)-and thus these States must bear a responsibility for fulfilling human rights in vulnerable States.  If they renege on that responsibility, they are guilty of violating human rights and should be held accountable.

All three of these options were advocated during the dedicated panel debate on human rights and climate change that took place during the June 2009 session of the Human Rights Council. The question now facing the main sponsors of that debate, and of the Council’s earlier resolutions on human rights and climate change, is if and how these options should be further explored.

In the longer term, the difficulties posed by the application of human rights law to harm caused by climate change are indicative of a broader systemic tension between the traditional state-centric conceptualisation of human rights, and the realities of individual connectivity in the globalised world.  In the 21st Century, a given State no longer holds the sole power to shape the life of its citizens or to determine their welfare.  Rather, the phenomena which determine the degree to which an individual can enjoy the full range of human rights are increasingly international or extraterritorial in nature.  This tension is visible in a range of issues currently taking up the Human Rights Council’s time, such as the human rights implications of the global food crisis, or the human rights implications of the global financial crisis.  However, of these crises, climate change, with its global character and basis in unequal and even destructive power relationships, is perhaps the globalised challenge which most acutely draws attention to the need for a thorough reconceptualisation of a body of law developed in the post-War world of nation States and unassailed sovereignty.