Intended Nationally Determined Contributions and Human Rights

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 However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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: 27/02/2015

Does the voluntary nature of INDCs conflict with States’ obligations on human rights?

Summary:

States’ human rights obligations are generally owed to individuals within their jurisdictions and not to other States. Accordingly, to the extent that human rights oblige States to address climate change, any such obligation is owed to individuals and does not require States to make legally binding commitments to other States. On the other hand, developing international environmental legal principles may require States to make such commitments, albeit along a spectrum in line with their differentiated responsibilities.

Advice:

At Lima, the Conference of the Parties reiterated “its invitation to each Party to communicate to the secretariat its intended nationally determined contribution [“INDC”] towards achieving the objective of the Convention as set out in its Article 2”.[1] The arrangements in this decision are “without prejudice to the legal nature and content of the intended nationally determined contributions”.

This advice will consider the human rights contained in the primary international and regional human rights instruments. This advice will not consider purely domestic human rights such as those in national constitutions.

States’ human rights obligations will depend upon which international and regional human rights instruments they are party to and upon their domestic legal frameworks. Accordingly, each Party is advised to seek separate advice on its particular human rights obligations.

The primary international human rights instruments are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The primary regional instruments include the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights and the Association of Southeast Asian Nations Human Rights Declaration.

While the majority of these instruments were drafted before climate change was recognised as a threat to human security, they nevertheless contain human rights obligations that are relevant to climate change, including the right to life, the right to adequate food, the right to water, the right to health, the right to adequate housing, the right to self-determination and the rights of indigenous peoples.[2] The more recent African Charter contains a specific right to a satisfactory environment.[3]

For the purpose of this advice, it is assumed that some or all of the above rights are potentially engaged by climate change. It is also assumed that any rights engaged give rise to positive obligations on States to take certain action (as opposed to negative obligations to refrain from taking certain action). The question remains, though, whether any such positive obligations require States to make binding international commitments to achieve the stabilization of greenhouse gas concentrations.

The international and regional instruments create human rights obligations that the State Parties owe to individuals within their jurisdictions (whether on their territory or under their authority and control). The instruments do not generally create human rights obligations owed to other States. The obligations exist on the State-individual plane and not on the international (or inter-State) plane.

State Parties to human rights instruments may owe duties to individuals to address climate change. These duties could be substantive, such as a duty not to exceed a certain level of GHG emissions. Or these duties could be procedural, such as a duty to provide information about climate change. Were such duties to be breached, individuals may be able to seek redress against the State. Importantly, though, the human rights instruments create no corresponding substantive or procedural duties owed to other State Parties.[4]

It might be argued that while States’ human rights obligations are owed to individuals and not to States, the content of those obligations owed to individuals might include a requirement to make a binding commitment to other States. In other words, if States owe obligations to individuals within their jurisdictions to address climate change, these obligations may include a requirement to make a binding international commitment to address climate change.

This argument though is problematic for at least four reasons. First, neither the human rights instruments themselves nor the bodies charged with their interpretation appear to provide authority for the proposition that States Parties’ human rights obligations require them to make binding agreements with other States. Secondly, it does not follow that because a State owes obligations to individuals within its jurisdiction to address climate change, it is required to make a binding international commitment to do so. As explained above, a State’s human rights obligations owed to individuals within its jurisdiction may require it not to exceed a certain level of GHG emissions. But this does not mean the State is also required to make a binding commitment to other States not to exceed that level of emissions. Thirdly, the argument in essence is that obligations a State owes to individuals require the State to create obligations owed to other States. This argument elides the established distinction between State-individual and State-State obligations.[5] Fourthly and finally, it would be a surprising result if a State’s obligations under a particular human rights instrument required it to make a binding international commitment to States that are not parties to the same instrument. This would be the result if, for example, a State’s obligations under a regional human rights instrument required it to make a binding international commitment to States outside of that region that are not parties to the instrument.

This advice has so far considered the primary international and regional human rights instruments. These instruments form part of the international human rights law regime. This advice does not consider in detail the international environmental law regime, and whether the voluntary nature of INDCs conflicts with States’ international environmental law obligations. This advice does though briefly consider two of the principles set out in the International Law Association’s 2014 Declaration of Legal Principles Relating to Climate Change, namely “International Cooperation” and “Common but Differentiated Responsibilities and Respective Capabilities”.

The principle of International Cooperation is also found in international human rights law, for example in Article 2(1) of the International Covenant on Economic, Social and Cultural Rights.[6] According to the ILA’s Declaration, States must cooperate with each other in good faith to address climate change and its adverse effects, including in developing and reviewing the international legal framework relating to climate change (Draft Article 8(1), (2) and (8)). However, the Declaration does not suggest that the principle of International Cooperation requires States to make binding international commitments to achieve the stabilization of greenhouse gas emissions. The principle of International Cooperation is better understood as a principle of process rather than of result.

The principle of “Common But Differentiated Responsibilities and Respective Capabilities” (CBDRRC), as described in the ILA’s Declaration, suggests that there may be an international obligation on all States to make commitments to address climate change. Draft Article 5, paragraph 3 reads that developed States “shall take the lead in addressing climate change by adopting more stringent mitigation commitments and in assisting developing States”, while developing States “shall be subject to less stringent mitigation commitments and benefit from… assistance”. Draft Article 5 consequently suggests all States may be obliged to make mitigation commitments, in other words that such commitments are not voluntary. However, States’ commitments “fall along a spectrum”, and “Developing States, in particular the least developed among them, small island developing States, and other vulnerable States shall be subject to less stringent mitigation commitments”. The Commentary to Draft Article 5 asserts that “any future legal regime must be consistent with the CBDRRC principle in order to meet the requirements of the Convention, as well as the duties to perform and interpret a treaty in good faith.” In other words, the ILA’s Commentary suggests that all States are obliged to make mitigation commitments, and that this obligation derives from the CBDRRC principle in Article 4 of the Convention.

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[1] “Lima call for climate action”, Decision -/CP.20, [8], [9].

[2] See the Legal Response Initiative advice “States’ duties and obligations vis-à-vis other States and their own population in the climate change context”. And see Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States, Submitted by Sheila Watt-Cloutier, with the Support of the Inuit Circumpolar Conference, on Behalf of All Inuit of the Arctic Regions of the United States and Canada (7 December 2005).

[3] Article 24.

[4] The human rights instrument may enable State Parties to refer to the relevant court or body alleged breaches by another State party, but this does not affect the nature of the obligations allegedly breached, namely obligations owed by the States Parties to individuals (see for example Article 33 of the European Convention on Human Rights).

[5] See the discussion in “Achieving Justice and Human Rights in an Era of Climate Disruption”, International Bar Association Climate Change Justice and Human Rights Task Force Report, July 2014, including pp. 66-69.

[6] “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” See also Humphreys, Stephen, “Human Rights and Climate Change” (Cambridge University Press, 2010), pp. 11-12.