Climate Change and Human Rights Law

[John H. Knox is a Professor at Wake Forest University School of Law]

My Essay tries to answer a simple question (simple to state, anyway):  What duties, if any, does human rights law place on states to address climate change?  At first, the answer may seem equally simple.  It may seem evident that climate change already violates human rights, including rights to life, health, and property.  As the Arctic warms, survival has become more difficult for the Inuit, for example, and shrinking glaciers endanger mountain communities that depend upon them for water.  If climate change continues unabated, the effect on human rights will grow in scope and severity.  To take the most dramatic example, rising sea levels will force millions of people to abandon their homes and, eventually, require the evacuation of small island states.  Since climate change threatens such massive interference with human rights, it may seem obvious that states must try to ameliorate its effects.

It is more difficult than it may first appear, however, to nail down whether and how climate change triggers obligations under human rights law.  For the most part, that law sets out vertical duties that states owe to their own people, not diagonal duties that they owe to residents of other countries.  There can be no doubt that states have vertical obligations to do what they can to protect their own people from the effects of climate change.  By themselves, however, those duties may not go far enough.  Because of our country’s wealth, size, and location, Americans are very unlikely to suffer harm from climate change as rapidly or drastically as residents of the Maldives, for example, one of the lowest-lying countries in the world.  At the same time, the Maldives cannot protect its citizens from climate change by itself.  Does human rights law impose obligations on the United States to help the Maldivians and others like them?  Are states’ duties under human rights law diagonal as well as vertical?

For the last two years, a group of small island states led by the Maldives has successfully pressed the UN Human Rights Council to consider the implications of climate change for human rights.  In response to a request by the Council, the Office of the High Commissioner for Human Rights (OHCHR) published a report in January 2009 concluding that climate change gives rise to obligations on states that extend not only to their own residents, but also to people living in other countries.  Not all states have accepted this conclusion, however, or its possible implications.

My Essay examines the connection between climate change and human rights law in light of the large and rapidly growing jurisprudence of human rights bodies on environmental rights.  The jurisprudence imposes strict procedural requirements on states, such as a duty to carry out environmental impact assessment, but it largely defers to states’ substantive decisions on environmental standards.  That approach makes sense in the context of the cases that have developed it, which have involved environmental costs and benefits felt within a single polity, which can decide for itself how to balance them.  The approach does not easily apply to harm such as that caused by climate change, however, whose causes and effects concern many different polities.

I argue that the solution is to look to the duty of international cooperation, which requires states to try to act as a single global polity to address the global threat of climate change.  By providing a basis for the application of the environmental human rights jurisprudence, this approach would allow states some flexibility as to the substance of their joint decisions, but only if they follow procedures designed to ensure full, well-informed participation by those most affected.  Moreover, the substance of decisions that result from such processes would not be entitled to complete deference: under no conditions could states allow climate change to destroy the human rights of the most vulnerable.

This issue continues to percolate through the UN human rights system.  In response to the OHCHR report, the Human Rights Council adopted a resolution in March, at its tenth session, encouraging its special rapporteurs and other special mandate-holders to consider climate change within their mandates.  At its next session, in June, the Council held a panel discussion on human rights and climate change, at which a surprisingly large number of governments made statements.  There seemed to be something close to a consensus among them that human rights law does have something to say about climate change.  What exactly that is will become clearer over time . . . although perhaps not quickly enough to help to avert the coming global disaster.