27 Jun YJIL Symposium: Human Rights and Climate Change: Perspectives on the Value Added of Human Rights Law
This post is part of the Yale Journal of International Law Volume 37, Issue 2 symposium. Other posts in this series can be found in the related posts below.
[Siobhan McInerney-Lankford is a human rights lawyer and senior policy officer at the World Bank.]
Human rights law can contribute to understanding climate change, particularly in terms of the social and human impacts of climate change. In Avoiding Adaptation Apartheid, Hall and Weiss consider how climate change affects the enjoyment of human rights and employ a legal frame of reference to address the complementary question of how human rights law can inform responses to climate change. By distinguishing how human rights might inform mitigation policies from how they could influence adaptation policies and by focusing on the latter, they get beyond the challenges of establishing causation (due to the aggregate causes and disparate impacts of climate change) and the absence of an established legal basis for what John Knox calls “diagonal environmental rights” between individuals or groups in one country against the government of another country. Instead they highlight the relevance of the ‘vertical dimension’ of human rights law as it governs the relationship between states and their citizens, irrespective of where responsibility for increased emissions should be assigned.
A strength of this approach is its emphasis on existing legal obligations and the enhanced accountability contributed by human rights, since rights imply correlative duties or obligations. A number of additional perspectives are worth highlighting which relate to human rights as the subjects of public international law. As a formal legal matter, it is worth considering how one argues effectively for the applicability of human rights obligations to mitigation responses governed by international environmental law, given the increasingly fragmented nature of international law. One might invoke the importance of international policy coherence to argue for the general relevance of human rights obligations to climate change policy. One might further argue for interpretative reliance on human rights obligations in implementing environmental law obligations where both are binding on a particular government, as for instance where the State were party to both the ICESCR and the UNFCCC. Support could be drawn for this on the principle of systemic integration to argue that human rights law obligations are part of the relevant rules of international law applicable in relations between the parties, within the meaning Article 31 of the Vienna Convention on the Law of Treaties. This normative interplay could be characterized negatively or positively. In negative terms it could be cast as a responsibility to ensure that the interpretation of norms related to climate change not undermine the fulfillment of human rights obligations. From a more positive perspective, human rights obligations could be drawn upon to inform the design and implementation of goals set forth in climate agreements.
In operational terms, the potential implications of such mutual reinforcement are significant – particularly for adaptation, but also conceivably for mitigation. Weiss and Hall note the potential use of human rights as tools for political mobilization, and as a means to promote proactive policy-making, a focus on the poorest and most vulnerable, as well as an emphasis on local level information and procedural standards.
In legal terms, one could also underscore the strength of human rights as substantive and procedural standards backed by the force of law. Human rights law mandates levels of protection for individual rights that can be regarded as minimum acceptable outcomes under a given policy scenario. As such they impose an obligation to ‘do no harm’, such that the actions and omissions of states in the area of climate policy must at least not lower the prevailing standard of human rights enjoyment within that state’s territory or sphere of effective control. Of critical importance is the fact that the standards and benchmarks they establish constitute binding rules (not just principles) under international law.
In practical terms, accepting the relevance of human rights law to climate change policy has concrete ramifications which might include the use of human rights impact assessments (HRIA). HRIA provide an explicitly rights-based process to help duty-bearers understand the potential human right impacts of their actions and orient climate policy to minimize those that are harmful. HRIA may help implement a type of ‘precautionary principle’ or ‘do no harm’ standard, which has particular importance for the human rights law obligation to respect, but which may be apposite also for the obligations to protect and fulfill. HRIA can help operationalize human rights treaty standards by measuring the gap between the commitments made by states and ability of individuals, groups and communities to enjoy their rights. In the context of climate policy they could provide a systematic process to investigate and measure the impact of policies, programmes, projects and interventions on human rights and offer a means of integrating the growing body of relevant human rights indicators into policies. Finally, the outcomes and recommendations of HRIA have additional force because they are based on legal obligations. In these ways, they provide an example of how human rights law provides a frame of reference and a baseline that goes beyond general principles, a “set of pointers” or “rough guidance prone to continual revision”. In addition to the foundational principles of equality, participation, inclusion, empowerment and concern for the most vulnerable which underpin the international human rights framework, it is the strength, stability and visibility of human rights law obligations that make human rights so valuable for adaptation strategies. Thus, it is through exploiting the legally binding structure of human rights law obligations to respect, protect and fulfill that there can be enhanced accountability in climate policy.