Human Rights under the UNFCCC regime

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Date produced: 25/06/2019

Can you provide us with a concise overview on how human rights are addressed under the UNFCCC regime?

Advice:

The international community addresses the relationship between human rights and climate change predominately under the UN Office of the High Commissioner for Human Rights (OHCHR), and the UN Human Rights Council.

In 2009, an OHCHR study on the relationship between climate change and human rights outlined several significant points in relation to this subject. It concluded that States have duties to protect the human rights of those affected by climate change (including those who have been displaced) regardless of whether or not they are ‘responsible’ for the problem (e.g. regardless of their level of GHG emissions).[1]

In 2012, the Human Rights Council established the mandate on human rights and the environment to study, among other tasks, the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. This mandate is carried out in part by the UN Special Rapporteur on human rights and the environment.

In 2016, the Special Rapporteur published a report in which the implications of states’ human rights obligations in relation to climate change are examined.[2] The main points are that:

  • substantive human rights obligations (e.g. the right to life) require that States take both preventative measures and remedial measures. This entails taking action to reduce emissions and to adapt to changes that are foreseeable (e.g. rising sea levels). These obligations also require that States engage in international cooperation about the global and transboundary implications of climate change.
  • Procedural obligations require that States assess the impacts of climate change and measures to address it, and that such information is made public. States must also provide access to remedies for human rights violations related to climate change.
  • Obligations associated with the right to take part in the conduct of public affairs require that states facilitate public participation in decision making over action to tackle climate change. This entails protection of individuals and groups against abuse by third parties.
  • States have heightened obligations towards members of groups particularly vulnerable to environmental harm, such as women, children and indigenous peoples.

Following its report in 2016, the Special Rapporteur developed the Framework Principles on Human Rights and the Environment. These 16 principles set out basic obligations of States under human rights law as they relate to the enjoyment of a safe, clean, healthy and sustainable environment. These principles do not create new obligations; rather, they reflect the application of existing human rights obligations in the environmental context.

The current Special Rapporteur is working to provide additional clarity regarding the substantive obligations relating to a range of elements that are essential to the enjoyment of a safe, clean, healthy and sustainable environment. His first report to the Human Rights Council addressed air pollution and associated obligations.[3] He is now preparing a report on the right to a safe climate, which will be presented to the UN General Assembly in October 2019. States and stakeholders such as Non-Governmental Organisations have been able to contribute to the report.

In addition, there are further regional intergovernmental initiatives and an ever-growing number of non-governmental organisations that advocate for greater integration of human rights and climate change. This includes, for example, the Centre for International Environmental Law (CIEL) and the Human Rights and Climate Change Working Group.[4]

The UNFCCC regime

Under the United Nations Framework Convention on Climate Change (UNFCCC) regime (comprising the UNFCCC, Kyoto Protocol and Paris Agreement), human rights are of lesser relevance. The following provides a general overview.

1992 UNFCCC

The UNFCCC does not directly address obligations to protect human rights that may be impacted by the adverse effects of climate change. However, there are instances where human rights have been alluded to or mentioned in this regime.

In 2010 in Cancun, the Conference of the Parties (COP), noted the 2009 Human Rights Council resolution which recognized that “the adverse effects of climate change have a range of direct and indirect implications for the effective enjoyment of human rights..”.[5] The COP also emphasised that Parties “should, in all climate change related actions, fully respect human rights”.[6]

In Durban in 2011, the COP requested the Subsidiary Body for Implementation (SBI) to further enhance the monitoring and review of the effectiveness of capacity-building by organizing an annual in-session Durban Forum open to all stakeholders. The 7th Durban Forum, on enhancing capacity for implementing nationally determined contributions (NDCs) in the context of the Paris Agreement, took place in conjunction with SBI 48 (May 2018) and focused on, among other things, capacity-building for integrating cross-cutting issues, such as human rights, into NDC implementation. The following relevant key messages emerged from the discussions:

  • while attention to gender aspects and indigenous peoples’ knowledge in the climate change process is increasing less attention is paid to human rights,
  • capacity gaps exist with regard to integrating all the above three issues into NDC implementation,
  • better use of existing sources of information and of the expertise of relevant human rights experts and organizations in the UNFCCC process is needed, and
  • building climate policymakers’ capacity to address cross-cutting issues such as human rights in climate action will contribute to stronger, more effective and more equitable climate outcomes and more coherent policies.

Subsequently, in Paris in 2015, the Paris Committee on Capacity Building (PCCB) was established. The PCCB -an expert-led committee – was mandated by the COP22 (in 2016), among other things, to take into consideration intersectional issues such as human rights when managing and overseeing the capacity-building workplan 2016-2020. Reports on the Durban Forum are included in the inputs into the PCCB. The PCCB regularly holds workshops during meetings of the UNFCCC bodies on the topic of “Building capacity for the integration of human rights into climate change action”. The next one is scheduled for 26 June 2019, in Bonn. The objective of the workshop is to show the importance of integrating human rights, including in the process of developing and implementing NDCs.

The Local Communities and Indigenous Peoples Platform was also established in Paris. Its purpose is to strengthen knowledge, technologies, practices and efforts of local communities and indigenous peoples related to climate change. Considering human rights may become part of the work of this platform as one of three functions it has been tasked to perform refers to objectives that are related to human rights: “facilitate the integration of diverse knowledge systems, practices and innovations in designing and implementing international and national actions, programmes and policies in a manner that respects and promotes the rights and interests of local communities and indigenous peoples”.[7]

Also in Paris, the COP tasked the Executive Committee of the Warsaw International Mechanism for Loss and Damage (WIM) to establish a Task Force on Displacement to develop recommendations to avert, minimize and address displacement related to climate change. It is likely that human rights will play a role in the work of the task force. At COP24 (in 2018), the work of the Task Force lead the Executive Committee to recommend inviting Parties to “consider formulating laws, policies and strategies, … to avert, minimize and address displacement related to .. climate change …, taking into consideration their respective human rights obligations..”.[8]

1997 Kyoto Protocol

While the Kyoto Protocol does not explicitly mention human rights, it introduces the concept of vulnerability – namely, that not all people and countries are equally placed when it comes to decisions about climate change and its impacts. This concept of vulnerability has led to the development of differential treatment, reflected in Article 3 of the Kyoto Protocol which states that “Parties should protect the climate system for the benefit of present and future generations of humankind, based on equity and in accordance with their common but differentiated responsibilities and respective capabilities”. The principle of differential treatment reflects the broader human rights goals of international law, such as the aims of fairness and solidarity.

2015 Paris Agreement

The Preamble to the Paris Agreement states that Parties “when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.” The preamble to the accompanying COP decision adopting the Paris Agreement uses the same language.[9]

The inclusion of this wording may signal a shift towards greater interaction between climate change law and human rights law in the UNFCCC treaty regime. But there is no reference to human rights in the treaty’s operative provisions and it does not set out any measures that specifically address human rights in the context of climate change. So the direct impact of the inclusion of human rights in the preamble of the Paris Agreement is limited. There are, however, operative provisions in the Agreement that indicate connections between climate change and other objectives related to human rights. Article 2, for example, states that the response to climate change should be in the context of eradicating poverty; Article 7 para.5 that adaptation action should take into account vulnerable groups and communities.

In the so-called Paris Agreement rulebook, agreed at COP24, some implicit references to human rights can also be found. For example, in the guidance concerning the preparation of parties’ NDCs, which mentions “domestic institutional arrangements, public participation and engagement with local communities and indigenous peoples, in a gender-responsive manner”.[10] Finally, an increasing part of the work undertaken by bodies and fora created by the COP (e.g. PCCB and WIM, see above) will in the future be carried out under the Paris Agreement and the guidance and authority of the Meeting of Parties to the Paris Agreement (CMA).

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[1] Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights, (2009) UN Doc A/HRC/10/61. [link: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement]

[2] https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session31/Documents/A%20HRC%2031%2052_E.docx

[3] http://www.srenvironment.org/sites/default/files/Reports/2019/UN%20HRC%20Right%20to%20clean%20air.pdf

[4] CIEL website: https://www.ciel.org/issue/human-rights-climate-change/

Human Rights and Climate Change Working Group, Country profiles database: http://climaterights.org/database/

[5] https://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_10_4.pdf

[6] https://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf

[7] see decision 2/CP.23, paragraph 6 for more detail on the functions of the platform: https://unfccc.int/sites/default/files/resource/docs/2017/cop23/eng/11a01.pdf

[8] Decision 10/CP.24, Report of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts, Annex: https://unfccc.int/sites/default/files/resource/10a1.pdf?download

[9] https://unfccc.int/resource/docs/2015/cop21/eng/10a01.pdf

[10] Decision 4/CMA.1: Further guidance in relation to the mitigation section of decision 1/CP.21, Annex I, 4.(a)(i).