Human Rights and the 2015 Agreement

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 24/11/2014

Could you outline some potential approaches (e.g. establishment of a work program on human rights and climate change, institutional linkages with existing human rights expert bodies and the regular review of human rights and climate change issues by the COP and/or meeting of parties to the new agreement) to address and integrate the protection of human rights into the new (Paris) climate agreement?

Summary:

There is a number of means that Parties to the UNFCCC may consider to address and integrate the protection of human rights into the new climate agreement. This note considers four options: 1) establishment of a work program on human rights and climate change; 2) establishment of institutional linkages with existing human rights expert bodies; 3) regular review of human rights and climate change issues by the COP and/or meeting of parties to the new agreement; and 4) including a reference to human rights in the 2015 agreement. It is suggested that options 1) and 4) may be more viable than 2) and 3), even though all will face significant challenges.

Advice:

The Human Rights Council has increasingly drawn attention to the need to take into account the human rights implications of climate change impacts and of climate change response measures, and to the potential of human rights obligations, standards and principles to “inform and strengthen” international, regional and national policymaking in the area of climate change, promoting “policy coherence, legitimacy and sustainable outcomes.”[1] The Independent Expert on Human Rights and the Environment has recently prepared a detailed report on the human rights threatened by climate change and the human rights obligations relating to climate change, as identified by UN human rights treaties and the treaty bodies charged with overseeing them, other UN bodies and mechanisms, and international environmental instruments.[2]

So far there has been little uptake of these human rights considerations in international climate change law-making processes. In its sole reference to human rights to date, the UNFCCC COP has generically recognized that Parties should fully respect human rights “in all climate change related actions.”[3] Since the UNFCCC does not contain any conflict clause, this assertion may be regarded as a significant statement concerning the relationship between the climate and the human rights regimes. As there is no intrinsic priority of one set of obligations over the other, when faced with implementation conflicts, obligations under the UNFCCC should be interpreted in such a way as to support, rather than conflict with, human rights.[4]

This important specification, however, gives little guidance on how to concretely pursue synergies between the climate and human rights law. Most recently, the Human Rights Council called on all States to “enhance international dialogue and cooperation” in relation to the adverse impacts of climate change on the enjoyment of human rights, encouraging relevant special procedures mandate holders to “give consideration” to the issue of climate change and human rights within their respective mandates.[5] Most likely as a result of this exhortation, in a recent Open Letter to UNFCCC State Parties the Human Rights Council Special Procedures mandate-holders called on the UNFCCC Parties to “ensure full coherence” between their human rights obligations and their efforts to address climate change.[6]  More specifically, they invited State Parties to include language in the 2015 climate agreement asserting that “the Parties shall, in all climate change related actions, respect, protect, promote, and fulfil human rights for all.” They furthermore urged the State Parties at COP 20 in Lima to launch a work program to ensure that human rights are integrated into all aspects of climate actions. Finally, they suggested that the responsibilities of the State Parties in all of the above respects should not be viewed as stopping at their borders.

There are, nevertheless, some important limitations to this line of argumentation. The protection awarded by human rights instruments has considerable jurisdictional limitations, which are due to the fact that human rights obligations inherently deal with the relationship between States and subjects within their jurisdiction, rather than the relationship between States.[7] It seems, in other words, difficult to argue that States have specific obligations to undertake positive action to secure the protection of human rights associated with climate change impacts beyond their territorial boundaries, except perhaps for economic, social and cultural rights.[8]

There is, nevertheless, much scope to consider overlaps between States’ human rights obligations towards those in their jurisdiction in relation to the impacts of climate change and of the impacts associated with the implementation of climate change response measures, respectively. There is furthermore much scope to use human rights law as a lens to scrutinize how States address the matter of so-called loss and damage associated with the impacts of climate change in developing countries that are particularly vulnerable to the adverse effects of climate change.[9] It is furthermore important to note that not all Parties to the UNFCCC are also Parties to human rights treaties. Whilst the UNFCCC has 196 Parties, the International Covenant on Civil and Political Rights only has 168 Parties; the International Covenant on Economic, Social and Cultural Rights has 162; and the UN Convention on the Elimination of All Forms of Racial Discrimination has 177. Finally, only 22 States have ratified International Labour Organization Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries. Regional human rights treaties, which have exerted a considerable influence over the interpretation of several human rights that are crucial from a climate change perspective, only enjoy limited membership.

Bearing these caveats in mind, this advice explores four main avenues by which UNFCCC Parties could better integrate human rights into the 2015 agreement:

  • Work program on human rights and climate change;
  • Institutional linkages with existing human rights expert bodies;
  • Regular review of human rights and climate change issues by the COP and/or meeting of parties to the new agreement; and
  • Including a reference to human rights in the 2015 agreement.

1. WORK PROGRAM ON HUMAN RIGHTS AND CLIMATE CHANGE

The creation of a work programme under the UNFCCC SBTA would formally constitute a forum where Parties could exchange views and consider technical papers, reports and submissions on all or some of the following issues:

  • The impact of climate change on the protection of human rights;
  • The impact of climate change response measures on the protection of human rights; and
  • The role of human rights obligations in addressing loss and damage.

The establishment of such a work-programme would provide an ‘institutional’ space for UNFCCC Parties to consider whether and how to better integrate human rights in the climate regime. The decision to establish a work programme under the SBSTA is to be formally taken by the UNFCCC COP.

2. INSTITUTIONAL LINKAGES WITH EXISTING HUMAN RIGHTS EXPERT BODIES

Greater integration between the climate regime and human rights could be obtained by deepening institutional cooperation between the bodies established under the UNFCCC (e.g. the UNFCCC COP and/or its Secretariat) and human rights bodies (e.g. the Human Rights Council). Parties to the UNFCCC, however, have historically been reluctant to establish such inter-institutional linkages. Even when they have done so, for example in the context of the Joint Liaison Group to enhance coordination between the UNFCCC, the Convention on Biological Diversity (CBD) and the United Nations Convention to Combat Desertification (UNCCD), very limited results have been obtained.[12] Whilst in principle the Joint Liaison Group is a forum to facilitate the exchange of information,  and explore options for further cooperation, including the possibility to adopt joint work plans, so far little cooperation has taken place in practice. This is largely due to the opposition of some UNFCCC Parties, who have maintained that the Rio Conventions have a “distinct legal character, mandate and membership.”[13] With specific regard to the work of the Joint Liaison Group, the US has remarked how “it is the responsibility of individual governments to ensure coordination among entities with an interest in deliberations under any specific Convention, whether it is a Rio Convention or otherwise.”[14] So whilst in principle it may be possible to establish some kind of institutional linkage between human rights bodies and the UNFCCC, this seems to be very unlikely in practice. This is especially with regard to human rights, as UNFCCC Parties membership of human rights treaties is even more fragmented than that of the UNFCCC and the CBD – which virtually has the same Parties, with the sole exceptions of the US and Andorra.

  1. REGULAR REVIEW OF HUMAN RIGHTS AND CLIMATE CHANGE ISSUES BY THE COP AND/OR MEETING OF PARTIES TO THE NEW AGREEMENT.

 For the same reasons mentioned under the previous section, it seems very unlikely that UNFCCC Parties will be willing to entrust the COP and/or the meeting of the Parties to the new agreement with specific powers to review issues related to climate change and human rights. This does not however mean that Human Rights Council procedures may not monitor the impact of climate change and of climate change response measures within their extant mandate,[15] and does not preclude the possibility, for example, that the Human Rights Council establish a Special Rapporteur on climate change and human rights.[16]

  1. INCLUDING A REFERENCE TO HUMAN RIGHTS IN THE 2015 AGREEMENT

A more viable approach to better integrating human rights consideration in the climate regime would be that to draw attention to the human rights obligations that UNFCCC Parties have already undertaken. A similar suggestions is included in the International Law Association (ILA) Legal Principles Relating to Climate Change, draft Article 10, at 3(b):

“States and competent international organisations shall respect international human rights when developing and implementing policies and actions at international, national, and subnational levels regarding climate change. In developing and implementing these policies and actions, States shall take into account the differences in vulnerability to climate change of their populations, particularly indigenous peoples, within their borders and take measures to ensure that all their peoples’ rights are fully protected.”[17]

This approach builds upon the premise that, in the implementation of its obligations under the climate regime each Party to the UNFCCC should “formulate, elaborate and implement international law relating to climate change in a mutually supportive manner with other relevant international law.”[18]

The insertion in the 2015 agreement of a conflict clause such as that suggested in the ILA draft Article 10, at 3(b) would be instrumental to ensure that the treaty at issue  “is not to be considered as incompatible with” obligations included in human rights treaties.[19] In this regard, the International Law Commission specifically recommends that States include in treaties guidance as to how to deal with subsequent or prior conflicting treaties, distinguishing seven different typologies for any such clauses.[20] There are, nevertheless, the limits to such clauses, which are oftentimes formulated in such a way that, rather than indicating what should be done in cases of conflict, they merely “push, as it were, the resolution of problems to the future.”[21] Some authors have singled the conflict clause included in the CBD as a case in point.[22] According to Article 22.1 of the CBD:

“The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity. (Emphasis added)”[23]

This provision indicates that the CBD generally assigns priority to other agreements, with the effect to counterbalance arguments based upon the principle lex posterior derogat priori, save for cases when the exercise of inherent rights and obligations would cause a “serious damage or threat to biological diversity.”[24] Wolfrum and Matz, however, remark how no criteria exist to generally establish whether the exercise of rights and obligations could cause a “serious damage or threat to biodiversity.”[25]

Another recent example of conflict clause is found in 2010 Nagoya Protocol to the Convention on Biological Diversity. The relationship between the Nagoya Protocol and other international instruments is rather complex, as the Protocol presents great potential for overlap with other areas of the law.[27] Mindful of these considerations, the Protocol asserts that:

“This Protocol shall be implemented in a mutually supportive manner with other international instruments relevant to this Protocol. Due regard should be paid to useful and relevant ongoing work or practices under such international instruments and relevant international organizations, provided that they are supportive of and do not run counter to the objectives of the Convention and this Protocol. (Emphasis added)”[28]

The Nagoya Protocol thus adopts a pragmatic case-by-case approach to mutual supportiveness, requiring that Parties disqualify interpretative solutions to tensions between the Protocol and other relevant international instruments involving the subordination of one to the other.[29] Also this formulation, however, has been the subject of much criticism.[30]

In sum, whilst the 2015 agreement could include a conflict clause, specific attention should be paid in avoiding the shortcomings in the conflict clauses mentioned above. The suggestion in Draft Article 10 of the ILA Legal Principles Relating to Climate Change seems like a viable compromise and may form part of a specific submission for inclusion in the text of the 2015 agreement.

_____________________________________

[1] Human Rights Council Resolution 10/4 (2009); 18/22 (2011); and 26/L.33 (2014).

[2] Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment. Focus report on human rights and climate change (2014).

[3] See Decision 1/CP.16, 8.

[4] Article 31(3)(c) of the 1960 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (VCLT).

[5] Human Rights Council Resolution 26/L.33 (2014).

[6] Open Letter from Special Procedures mandate-holders of the Human Rights Council to the UNFCCC State Parties on the occasion of the ADP meeting in Bonn (20-25 October 2014), available at: http://newsroom.unfccc.int/media/127348/human-rights-open-letter.pdf

[7] Human Rights Council, Analytical study on the relationship between human rights and the environment. Report of the United Nations High Commissioner for Human Rights (2011) A/HRC/19/34, 64-73; and Human Rights Council, Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (2012) A/HRC/22/43, 48.

[8] See for example, John H. Knox, “Climate Change and Human Rights Law,” Virginia Journal of International Law 50, no. 1 (2009): 163.

[9] Decision 2/CP.19 Warsaw international mechanism for loss and damage associated with climate change impacts (2013).

[12] For an overview on co-operative action, see UNFCCC SBSTA, ‘Summary of Cooperative Activities with United Nations Entities and Intergovernmental Organizations to Contribute to the Work under the Convention,’ UN Doc. FCCC/SBSTA/INF.3 (2011).

[13] See for example the position expressed by the US in Views on the Paper on Options for Enhanced Cooperation Among the Three Rio Conventions, Submissions from Parties, UN Doc. FCCC/SBSTA/ 2006/MISC.4, at 16. The same point was made by Australia, Ibid., at 5.

[14] Ibid.

[15] As already happens and as extensively reported in Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment. Focus report on human rights and climate change (2014).

[16] Cf. the petition launched by Environmental Justice Foundation: http://ejfoundation.org/climate/a-special-rapporteur-on-human-rights-and-climate-change

[17] International Law Association, Washington Conference (2014) Legal Principles Relating to Climate Change, available at: http://www.ila-hq.org/download.cfm/docid/2FE72F08-8E2B-4D98-9259BF3060AC0B3B

[18] Ibid.

[19] Cf. VCLT, Article 30.2.

[20] Namely: clauses that prohibit the conclusion of incompatible subsequent treaties; clauses that expressly permit subsequent “compatible” treaties; clauses in the subsequent treaty providing that it “shall not affect” the earlier treaty; clauses in the subsequent treaty that provide that among the Parties, it overrides earlier treaty; clauses in the subsequent treaty that expressly abrogate the earlier treaty; clauses in the subsequent treaties that expressly maintain earlier compatible treaties; and clauses that promise that future agreements will abrogate earlier treaties. ILC, ‘Report on the Fragmentation of International Law’, at 267-8.

[21] Ibid., at 276.

[22] Wolfrum and Matz, Conflicts in International Environmental Law at 139; and Pavoni, ‘Mutual Supportiveness as a Principle of Interpretation and Law-Making’ at 655.

[23] CBD Article 22.1. For a commentary, see L. Glowka et al., A Guide to the Convention on Biological Diversity (IUCN 1994), at 109.

[24] E. Morgera, M. Buck, and E. Tsioumani (eds), The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective: Implications for International Law and Implementation Challenges (Martinus Nijhoff Publishers 2012).

[25] Wolfrum and Matz, Conflicts in International Environmental Law (supra note 72), at 139. Along similar lines, cf. Pavoni, ‘Mutual Supportiveness as a Principle of Interpretation and Law-Making’ (supra note 82), at 655.

[27] For an overview see Morgera, Buck, and Tsioumani, The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective (supra note 937), Chapters 2-6.

[28] Nagoya Protocol Article 4.3 (emphasis added).

[29] As suggested, for example, in Morgera, Buck, and Tsioumani, The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective (Martinus Nijhoff,  2012)

[30] Morgera, Tsioumani and Buck, Unravelling the Nagoya Protocol (Martinus Nijhoff Publishers, 2014)