economic, social and human development with “ecosystem conservation, regeneration and restoration and resilience in the face of new and emerging challenges.” 2
The nature of the linkages between the environment and humanrights has been debated for years. However, it has long been recognized that a clean, healthy and functional environment is integral to the enjoyment of humanrights, such as the rights to life, health, food and an adequate standard of living. This recognition offers one reason the international community has banded together through multilateral environmental agreements (MEAs) to prohibit illegal trade in wildlife, to preserve biodiversity and marine and terrestrial habitats, to reduce transboundary pollution, and to prevent other behaviors that harm the planet and its residents. In short: Environmental protection protects humanrights. At the same time, adherence to humanrights—such as those that ensure public access to information and participation in decision making—contributes to more just decisions about the utilization and protection of environmental resources, and protects against the potential for abuse under the auspices of environmental action. Thus, domestic environmental laws and MEAs can both be strengthened through the incorporation of humanrights principles, even as they contribute to the ongoing realization of humanrights. Anthropogenic climatechange is the largest, most pervasive threat to the natural environment and humanrights of our time. Climatechange has already begun to have far-reaching environmental impacts, including many adverse effects on wildlife, natural resources and the ecological processes that support access to clean water, food, and other basic human needs. These impacts, combined with direct harms to people, property, and physical infrastructure, pose a serious threat to the enjoyment and exercise of humanrights across the world. 3 The mandate
17 Office of the High Commissioner for HumanRights (OHCHR), Report on the Relationship between ClimateChange and HumanRights, UN Doc A/HRC/10/61 (15 January 2009) http://daccess-dds-ny.un.org/ doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement. Scholars have also paid increasing attention to the topic. See e.g. John Knox and Ramin Pejan, ‘HumanRights Principles, ClimateChange and the Rights of the Child’ in The Challenges of ClimateChange: Children on the Front Line (UNICEF Office of Research and Innocenti Insight, Florence, 2014); Edward Cameron and Marc Limon, ‘Restoring the Climate by Realizing Rights: The Role of the International HumanRights System’ (2012) 21 Review of European Community and International Environmental Law 204; Stephen Humphreys (ed), HumanRights and ClimateChange (Cambridge University Press, Cambridge, 2010); International Council on HumanRights Policy, ‘ClimateChange and HumanRights: A Rough Guide’ (Report, 2008) http://www.ichrp.org/files/reports/45/136_report.pdf; Daniel Bodansky, ‘Introduction: ClimateChange and HumanRights: Unpacking the Issues’ (2010) 38 Georgia Journal of International and Comparative Law 511; John H Knox, ‘ClimateChange and HumanRights Law’ (2009) 50 Virginia Journal of International Law 163; Ole W Pedersen, ‘The Janus-Head of HumanRights and ClimateChange: Adaptation and Mitigation’ (2011) 80 Nordic Journal of International Law 403; Pamela Stephens, ‘Applying HumanRights Norms to ClimateChange: The Elusive Remedy’ (2010) 21 Colorado Journal of International Environmental Law and Policy 49.
In order to perform their core functions of pro- moting and protecting humanrights, 2 NHRIs carry
out essential educational, investigative, and advice- giving activities. As independent bodies charged with delivering policy advice and holding duty- bearers to account, both domestically and through regional and international humanrights review mechanisms, NHRIs are uniquely placed to ensure adoption of effective action that incorpo rates a humanrights-based approach to climatechange. The purpose of this handbook is to spark greater engagement by NHRIs on climatechange. It pre- sents examples of different forms of action that NHRIs can take concerning climatechange and highlights good practices. The examples presented are not exhaustive; rather, they illustrate both past and ongoing NHRI initiatives to encourage con- versation among NHRIs on common elements of climatechange work.
effects, such as rising sea levels, is indisputably foreseeable as a result of the legal definitions contained in the UNFCCC and based on the UNFCCC reports. As regards specific injury suffered, the evidence cited in Sections 1.3 and 3.3 indicates that a broad range of climatechange-related risks and harm could be considered as reasonably foreseeable consequences of climatechange and the human activities that are known to cause it. Moreover, in the light of the principle of effectiveness, it is appropriate to shift at least part of the risk of uncertainty or lack of proof to the State where it can be established with a reasonable degree of certainty that specific injury has occurred as a result of global warming. 885 This supports the proposition of a commentator who states that the correlation between greenhouse gas emissions, atmospheric chemistry and global warming has probably ‘been demonstrated with sufficient confidence that it seems unlikely that an adjudicator would require a complainant, in order to obtain relief, to demonstrate what would not be possible — that a specific emission of greenhouse gases by State S directly caused the specific impact in State I’. 886 All this means, that existing evidence (including that reviewed in Sections 1.3 and 3.3) may well be sufficient to substantiate claims for reparation for climatechange-related State conduct that constitutes a violation of international humanrights law. As the science of attribution evolves, the chances that the victims of such wrongful conduct will be able to ascertain their entitlement to reparations should increase. Moreover, where State responsibility is invoked through individual complaint procedures under humanrights treaties, victims have usually been identified in a claim’s admissibility stage. This means that a link between State conduct and the individual’s situation will already have been established once a case reaches the reparations stage. 887
• Climatechange undermining the realisation of a broad range of humanrights (right to health, life, food, water, shelter, culture, livelihood, property) • Traditionally little recognition of HR impacts in climate negotiation (and literature) and vice versa - disciplinary gap HR law and cc law/ path
economic, and political factors that expose people to climatic hazards and also limit their capacity to cope with it (Cutter, 1996; Adger, 2006; Wisner et al., 2006). This approach concedes to the claim that climatechange will affect various humanrights including the rights to life, food, housing, shelter, and culture. However, greater weight is placed on issues of marginalisation and other forms of pre-existing injustices that serve to heighten the vulnerability of people under a climatechange scenario. The central thesis of this approach is that there is a multiplication of humanrights infringements, not caused by the physical events of climatechange, but by the social, economic, and political processes that make people vulnerable or unable to cope with the impacts of those events (Barnett, 2010). In some countries, for example, poor neighbourhoods are targeted as potential locations for toxic waste which could worsen the already poor standard of living and humanrights conditions in those communities, thus making them even more vulnerable to the impact of climatechange. Under humanrights law, states are legally bound to address such vulnerability in accordance with the principle of equality and non-discrimination (OHCHR, 2009 para. 42). The vulnerability approach also recognizes that measures to mitigate or adapt to climatechange may infringe on humanrights (Humphrey, 2010). For instance, the reliance of some nations on maize as bio-fuel could potentially increase some people’s vulnerability to food insecurity. Also, certain flood mitigation measures in coastal areas may create new vulnerabilities or lead to outright displacement of poor communities, thereby affecting their rights to housing and social security. This understanding has led a number of authors to suggest a humanrights-based approach to reducing vulnerability to climatechange impacts (Boyce, 2000; Sarewitz et al., 2003; Yamin et al., 2005; Barnett, 2010).
Global climatechange has a profound impact on the survival and development of mankind thus it is one of the greatest threats to humanrights of our generation, posing a serious risk to the fundamental rights such as right to life, right to health, right to food and an adequate standard of living of individuals and communities across the world because climatechange does not respect borders, it does not care who you are – rich or poor, small or big, white or black. In January 2009, the office of the U.N. High Commissioner for HumanRights (“OHCHR”) became the first international humanrights body to examine the relation between climatechange and humanrights. 3
The functional account of humanrights set out in Chapter 2 directs our attention not only to the threat posed by climatechange inundation to the humanrights of atoll islanders, but also to the reasons that others have for and against acting to address this threat. This section examines the reasons that states might have for implementing a planned migration strategy to ensure that the humanrights of atoll islanders are protected from the threat of climatechange inundation. As explained earlier, this strategy is chosen for its pragmatic approach to humanrights protection. It recognises the urgent interests at stake but also caps the costs imposed upon those who assist displaced islanders by requiring them to act only within existing legal frameworks and only in response to severe threats to individual humanrights. As recognised by participants in a recent expert roundtable discussion, ‘the needs and interests of host communities need to be respected and carefully balanced in this process’. 356
ClimateChange today has been the burning issue as the planet on which the life survives is degrading and becoming unworthy of sustaining life. Entire world is worried about the climate changes taking place, adversely affecting humanrights of billions living on the planet. This paper primarily focuses on challenges of a special class of people i.e. indigenous people, who are most affected of not only climatechange but also by measures taken to combat climatechange. As far as impact of climatechange is concerned, they are first to face the consequences of climatechange owing to their absolute dependence on natural resources and this affect indigenous peoples in multiple ways. ClimateChange poses threat to their survival even though it is a proved that their contribution is least among anthropogenic factors responsible for climatechange. There is seen evidence that even asingle act of climatechange disrupts their life. Astonishing to note is that, they are even more affected by ClimateChange Mitigation Measures. There has often seen a failure to consult indigenous people even when their land, natural resources, and lifestyles are directly impacted whereby there is gross violation of their humanrights in the form of massive displacements, forced migrations, loss of habitat, loss of livelihood, etc. Massive increase in hydroelectric projects lead to loss of traditional territories of indigenous people, nuclear waste is usually stored in areas inhabited by indigenous people, biofuel plantationsfor palm oil, REDD(Reducing Emissions from Deforestation and Forest Degradation) are some of the mitigation projects detrimental to interests of indigenous people. These projects are executed without complying with the international norms to be followed before implementing these measures. Their
they share with humanrights are rarely examined. Ultimately, whether humanrights can remain relevant in assisting transitions to low-carbon societies is in question.
This article seeks to illustrate a humanrights based approach to climatechange in Norway based on neo-Gramscian critical theory, which offers two main insights. Firstly, it distinguishes between ‘problem-solving’ and ‘critical’ theory’. Problem-solving theory ‘takes the world’ – its social relations and institutions – ‘as it finds it’, addressing issues within existing disciplinary boundaries. As Cox suggests, such positivism is not ‘value-free’ as these parameters are themselves ‘value-bound’; thus, often unconsciously, we accept historical, normative assumptions built into existing ideas and institutions that acquire hegemonic ‘commonsense status’. Issues become ‘sources of trouble’ to be resolved using paradigmatic disciplinary assumptions aimed at making existing systems ‘work smoothly’. Contrastingly, critical theory ‘stands apart from the prevailing order’, asking ‘how that order came about’. Importantly, ‘because it deals with a changing reality’, critical theory ‘continually adjust[s]’ to shifting social relations, rather than projecting itself as ahistorical. Secondly, and following on from these distinctions, given critical theory recognises all theory is normative (explicitly or implicitly), it deliberately highlights counter-hegemonic discourses challenging the ‘prevailing order by seeking out, analysing, and … assisting social processes’ for ‘emancipatory change’ through examining interactions between social forces, ideas and institutions. 24 Crucially, as critical theory acknowledges that even critical ideas can become problem-solving when fixed into ‘static’, ‘ahistorical’ systems, 25 concepts like humanrights, green economy and climate justice themselves require an ‘immanent critique … to expose contradictions and tensions between ideas and practices’ providing opportunities for social change. 26 Thus, critical theory is concerned with how social actors and movements promote, or oppose, emancipatory change.
It is the purpose of this paper to examine how the non-governmental development organisation ActionAid Australia (AAA) might best establish a presence in the Pacific Island nations of Papua New Guinea and the Solomon Islands, in the area of women’s rights and climatechange. This examination will be explicitly informed by two key frameworks. The first of these will be the humanrights based approach to development (HRBA). The HRBA is a development paradigm and normative philosophy which explains poverty as a phenomenon that is directly caused by structural inequities within and between societies, as well as by direct violations of fundamental humanrights (Uvin, 2004). A review of the current academic literature on the HRBA will offer the analysis a firm theoretical grounding, and will ultimately inform the conclusions made in the final sections of the paper.
Based on these considerations, the second hypothesis of the thesis considers that the prospects for two actors to project their bilateral partnership to the multilateral level is limited by their compatibility of approaches towards multilateralism. The first precondition is, therefore, the shared understanding that international relations should be based on the principle of multilateralism. Achieving the fulfillment of this criterion, however, is not enough for level-linkage. Actors need to have a convergent view on how to shape this multilateralism, agreeing on the content of its norms and rules, even if their motivations to support multilateral cooperation may differ. The way to assess this convergence is to break down the discussion on “support to multilateralism” into different regimes. That is because the same degree of compatibility of approaches may not apply to all areas. Addressing this issue, this thesis analyses how the EU and Brazil perceive multilateralism in the specific case of climatechange, trade and humanrights. In order to do so, it takes into account the support of each actor to multilateralism in broad terms, but also looks at the principles and norms they support within the three regimes, including their agendas for negotiations
Further, a special commission was appointed for giving separate attention to the humanrights issue. This commission was contemplated by Charter‘s Article 68, which provides that one of the UN organs, the Economic and Social fields and for the promotion of humanrights. In 1946, ECOSOC established the Commission on HumanRights which evolved over the decades to become the world‘s single most important humanrights organ. At its inception, the new commission was charged primarily with submitting reports and proposals on an international bill of rights. The Universal Declaration is meant to precede more detailed and comprehensive provisions in a single convention that would be approved by the General Assembly and submit to the states for ratification. 29 However, UNDHR lacks formal authority of a treaty that could bind parties under international law. Nonetheless it remains in some sense the constitution of the ent ire regime, as well as the single most cited humanrights instrument 30 . In such situation it is evident that UNDHR also does not deal with climatechange as human right issue, assuming it indirectly relates to it still it lacks sanction and hence is ineffective.
Due diligence entails a comprehensive duty of prevention. 135 Prevention may include active steps to adopt legislation, public poli- cies, and forms of regulation to prevent harm to the environment. 136 The duty to prevent harm is also of broad scope when it pertains to groups which may be considered vulnerable or at risk to climatechange, including women, children, and older persons. 137 The duty to prevent is particularly key to any analysis concerning climatechange, since many private actors are responsible for the greenhouse gas emissions that are producing the rising temperatures. 138 In the realm of corporations, the UN Ruggie principles already highlight an over- arching set of obligations states have to appropriately supervise the activity of corporations, which includes preventing harm. 139 The IACHR has also indicated that prevention is insufficient when it comes to corporations, which may entail supervision and regulation in the execution of investment, extraction, and tourism projects. 140 This is very connected with the requirement of knowledge and how states can be held in violation of international humanrights when they could have foreseen or knew of harm and did not properly intervene. 141 Even though there are components of climatechange that cannot be controlled or predicted, the activity of corporations can
In rights-based climate cases, shifting the burden of uncertainty from plain- tiffs to state defendants helps to safeguard procedural fairness. At the same time, accepting that millions of victims may be entitled to reparations for hu- man rights violations related to climatechange triggers a new question: how should responsibility for reparations be apportioned between states, including in cases where the responsibility of multiple states is invoked at once? This question takes us into unchartered territory in international humanrights law,69 and raises a number of legal and evidentiary complexities.70 One ap- proach to this question is to allocate responsibility for reparations according to states’ respective contributions to historical emissions. This approach is currently being tested in Lliuya v. rwe,71 where the petitioner is seeking con- tributions to reparations proportionate to the defendant’s contributions to historical greenhouse gas emissions.72 The plaintiff has submitted evidence demonstrating that this contribution amounted to 0.47 per cent of the global total. To replicate this approach in cases against states, data is needed on states’ respective contributions to historical greenhouse gas emissions. While there are reliable data on Annex i emissions from 1990,73 the data on non-Annex i emissions and pre-1990 data for all states suffers from holes and uncertain- ties. However, data are available on states’ respective historical per capita and gross CO 2 emissions since 1750.74 Courts confronted with reparations claims in
Minister Abul Hassan Mahmood Ali called for States to take a humanrights perspective and focus on the impacts of climatechange on the poorest communitiesand countries. Mithika Mwenda compared the plight of humanity in the face of climatechange to that of passengers struggling for survival during the sinking of the Titanic: the weak might suffer and die first but, in the end, everyone would sink. Given this reality, he called for a paradigm shift to address climatechange and transition to low-carbon economies in an equitable, fair and ecologically sound manner that permitted continued growth in developing countries. Renan Dalisay also emphasized that climatechange takes lives and had a disproportionate impact on the poorest and most marginalized. During the interactive discussion that followed the panel presentations, delegations called for mitigation and adaptation efforts to place people at the centre, be gender sensitive and ensure the rights of persons, groups and people in vulnerable situations, including women, children, indigenous peoples and the poor.
The contest between humanrights and economic interests also faces other challenges. First, the humanrights platform has limitations in the context of climatechange. Second, the realization of humanrights requires responsiveness from the state, which, when faced with a choice between promoting economic interests or advancing humanrights, tends to choose the former. Third, the realization of humanrights has historically been tied to the existence of an economic foundation that can support those rights and many developing countries lack such a foundation. Finally, for a climate justice platform to succeed, a broader basis for state responsiveness beyond the narrow, limited focus on rights may be required, one that more fully responds to the human dimension of the rights discourse. While such a basis has not yet taken hold in law, scholars are beginning to push jurisprudential boundaries by drawing on the concept of human vulnerability. 160