a Human Rights Approach

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# The Author 2011. Published by Oxford University Press. All rights reserved
doi: 10.1093/chinesejil/jmr003
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Exploring the Legal Basis of
a Human Rights Approach
to Climate Change
Margreet Wewerinke and Curtis F.J. Doebbler*
In this contribution, we consider the relevance of international human
rights law to climate change. We review the widely agreed understanding
that climate change interferes with human rights. We then examine how a
particular State or States may be held responsible for internationally
wrongful acts that are caused by contributions to climate change emanating from activities that are under that State’s or those States’ jurisdiction.
We focus on human beings’ actions that the best available science indicates with a high degree of certainty are responsible for climate change
and the consequential interference with the human rights of individuals
that are caused by the adverse impacts of climate change. We also
explore the consequences of international human rights law for States’
responsibility to cooperate to achieve adequate international action on
climate change.
I. Introduction
1. There is a significant body of evidence indicating that climate change interferes
with internationally protected human rights. The link between human rights and
climate change has been recognized by numerous international human rights
bodies. The United Nations Human Rights Council drew the link between
climate change and human rights in two resolutions and has held a panel on the
issue.1 The Committee on the Elimination of Discrimination against Women
∗
1
Margreet Wewerinke is a PhD candidate at the European University Institute in Florence,
Italy. Curtis F.J. Doebbler is Professor of Law at Webster University in Geneva, Switzerland.
This paper was completed on 31 December 2010.
UN HRC Res 7/14 (27 March 2008) reprinted in UN Human Rights Council, Report of
the Human Rights Council on Its Seventh Session, 39 –45, UN Doc A/HRC/7/78 (14 July
2008), UN HRC Res 10/4 (25 March 2009), reprinted in UN Human Rights Council,
Report of the Human Rights Council on Its Tenth Session, 65 –66, 14 UN Doc A/
HRC/10/L.11 (12 May 2009).
...................................................................................................................................................................
10 Chinese Journal of International Law (2011), 141–160
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Abstract
142 Chinese JIL (2011)
2
3
4
5
6
7
8
UN CEDAW, Statement of the CEDAW Committee on Gender and Climate Change,
adopted at the 44th Session, held in New York, USA, from 20 July to 7 August 2009.
Watt-Cloutier v. United States (The Inuit case), Inter-American Commission for Human
Rights, 16 November 2006.
General Assembly of the Organization of American States, Human Rights and Climate
Change in the Americas, OAS Doc. AG/RES. 2429 (XXXVIII-O/08), adopted at the
Fourth Plenary Session, held on 3 June 2008.
African Commission on Human and Peoples’ Rights, Climate Change and the Need to
Study Its Impacts In Africa, adopted at the 46th Ordinary Session on 25 November 2009.
W. Korey, NGOs and the Universal Declaration of Human Rights (2001), 374.
A.K. Sen, Elements of a Theory of Human Rights, 32 Philosophy & Public Affairs (2004),
315, 326.
International Council on Human Rights Policy, Climate Change and Human Rights: A
Rough Guide (2008), 9.
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adopted a statement on Gender and Climate Change.2 The Inter-American Commission on Human Rights considered an individual communication and held a
hearing on the impact of climate change on human rights.3 The General Assembly
of the Organization of American States adopted a resolution on Human Rights and
Climate Change in the Americas in 2008.4 The African Commission for Human
and Peoples’ Rights adopted a resolution on Climate Change and Human Rights
and the Need to Study Its Impacts in Africa in November 2009.5 This recognition,
however, has remained rather ad hoc and apparently uncoordinated. In other words,
no human rights body has actually applied a human rights approach in a systematic
manner to climate change.
2. In this contribution, we intend to demonstrate that a more systematic application of the human rights approach to climate change is possible and can be
based on existing legal obligations. We submit that these obligations, together
with principles of general international law, may serve as a basis for State responsibility. International human rights bodies may interpret and apply these obligations
to specific situations involving the harm done by climate change and States’ obligations to act. This may include interpreting the general duty to prevent or compensate for harm or interpreting the lex specialis on climate change.
3. The human rights approach has been described in many different ways. One
human rights advocate reportedly described it as a “judgmental contrast” to a “diplomatic approach”.6 Nobel Prize winning development economist Amartya Sen
describes the human rights approach in terms of its demand “that the acknowledged
human rights must be given ethical recognition”.7 The International Council on
Human Rights Policy, in its study on climate change and human rights, refers to
the human rights approach in the context of climate change as being based on “a
set of background ethical assumptions” that provide for equal treatment for all.8
And in her report to the Human Rights Council on climate change and human
rights, the UN High Commissioner for Human Rights, Ms. Navi Pillay, uses the
Wewerinke and Doebbler, A Human Rights Approach to Climate Change 143
phrase only once stating that “the application of a human rights approach in preventing and responding to the effects of climate change serves to empower individuals and groups, who should be perceived as active agents of change and not as
passive victims”.9
4. In this article, we seek to define the human rights approach to climate change by
focusing on: the nature of legally binding human rights obligations (Section II), State
responsibility and human rights (Section III), specific human rights obligations
(Section IV) and the international legal duty of cooperation between States (Section V).
II. The nature of legal obligations
9
10
11
12
13
14
UN Report of the Office of the United Nations High Commissioner for Human Rights on
the relationship between climate change and human rights (Report of OHCHR), UN Doc
A/HRC/10/61 (15 January 2009).
J. Donnelly, Universal Human Rights in Theory and Practice (2nd edn. 2003), 10.
R. Higgins, Policy Considerations and the International Judicial Process, 17 ICLQ (1968),
58–59.
R. Higgins, Problems and Process: International Law and How We Use It (1994), 95.
M.N. Shaw, International Law (5th edn. 2003), 1.
In this regard, it is interesting to note that, with the first steps towards the recent establishment of international human rights texts and bodies in Asia (ASEAN), the Arab world
(League of Arab States) and Islamic world (Organisation of the Islamic Conference),
there are both human rights texts and often mechanisms to promote human rights in
all parts of the world.
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5. The general importance of legal obligations emanates from their character as
legally binding on all States to whom they apply, or to borrow from Jack Donnelly’s
description, the “implications of human rights being rights”.10 To international
lawyers, the legally binding nature of international law in general is self-evident.
Rosalyn Higgins, for example, has argued that international law is a “continuing
process of authoritative decisions”11 that “provides normative indications for states
in their relations with each other”.12 And Malcolm Shaw points out that “law is
that element that binds the members of the community together in their adherence
to recognized values and standards . . . regulating behaviour, and reflecting to some
extent, the ideas and preoccupations of the society in which it functions”.13
6. As a consequence, a State that fails to abide by its international legal obligations
concerning fundamental human rights law commits an international wrongful act
and may even be labelled a pariah State, a hostis humanitis generis or a threat to
the international community. The added value of the legal nature of the human
rights approach is, therefore, especially strong. In other words, no State wants to
be labelled a gross violator of human rights or be accused of not having a significant
concern for the human rights of the people under its jurisdiction.14 Moreover,
according to international law, concrete legal consequences are incurred by a
144 Chinese JIL (2011)
State acting wrongfully. These consequences range from a duty to pay compensation
to injured States to the right of other States to take action against the recalcitrant
State.15
7. The existence of legal obligations also adds value to political processes. The
obligations can enhance the authority of an entity engaged in a political forum—
such as those where the debates over climate change today usually take place—to
influence the action of States to control acts that cause climate change. This
happens because human rights are non-negotiable and cannot be compromised
like mere political values.
8. The human rights approach, or international human rights law, is based on a
foundational system of State responsibility or the legal obligations of States. In
other words, the international law on State responsibility contains the rules for
finding States responsible for violations of international law. The law on State
responsibility for international human rights obligations serves to ensure that
there is always an actor responsible for upholding human rights standards. This is
the case even if private actors are involved. For example, the civil responsibility of
private actors for emissions does not dilute a State’s obligation under international
human rights law to take all necessary measures to protect, respect and fulfil human
rights that are at stake.16 States clearly have a duty to ensure that private actors do
not directly violate human rights.17 This includes a duty to regulate private actors
under a State’s jurisdiction, should this be necessary to prevent these actors from
acting contrary to international human rights law.
9. Christina Voigt explains that “[i]n the context of environmental degradation
and transboundary damage, the law of State responsibility has two functions:
first, to support primary rules established by treaties or customary law which aim
at preventing environmental damages and, second, to provide injured states with
a right to restitution and compensation”.18 The International Law Commission
15 See, for example, Draft Articles on the Responsibility of States for Internationally Wrongful
Acts, annexed to and adopted by UN GA Res, 56/83 (12 December 2001), corrected by UN
Doc A/56/49 (vol. I)/Corr.4 (hereinafter Draft Articles on State Responsibility) art. 31,
reiterating that “[t]he international responsibility of a State which is entailed by an internationally wrongful act [. . .] involves legal consequences [. . .].”
16 See E. De Brabandere, Non-State Actors, State Centrism and Human Rights Obligations, 22
Leiden JIL (2009), 191 –209.
17 J. Ruggie, Report of the Special Representative of the Secretary-General on the Issue of
Human Rights and Transnational Corporations and Other Business Enterprises: Protect,
Respect and Remedy: A Framework for Business and Human Rights, UN Doc A/HRC/
8/5 (2008).
18 C. Voigt, State Responsibility for Climate Change Damages, 77 Nordic JIL (2008), 1– 3.
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III. State responsibility and human rights
Wewerinke and Doebbler, A Human Rights Approach to Climate Change 145
19 Draft Articles on State Responsibility, above n.15.
20 Ibid.
21 See, for example, art. 6 of the Convention on the Elimination of All Forms of Discrimination
against Women, 1249 UNTS 17. Also see C.F.J. Doebbler, International Human Rights
Law: Cases and Materials (2004), 116 –118, and M. Cohen, Affirmative Action and the
Equality Principle in Human Rights Treaties: United States’ Violation of
Its International Obligations, 43 Virginia JIL (2002), 249.
22 Draft Articles on State Responsibility, above n.15, at art. 2.
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(ILC) has agreed that States may be responsible when they commit an internationally wrongful act and that such responsibility entails consequences.19
10. State responsibility has been considered in the ILC Draft Articles on the
Responsibility of States for Internationally Wrongful Acts (Draft Articles on State
Responsibility) that reflects customary international law.20 While these articles
discuss the general principles of State responsibility, they do not provide the substantive qualities of responsibility, nor exclude the lex specialis of principles, such
as the principle of common but differentiated responsibilities and respective capabilities (CBDRRC) that apply in relation to climate change. This principle is an
expression of an exception to the general principle that all States are sovereign
equals, which means that generally all States have the same legal obligations.
Another exception to this general principle is the case of affirmative action, which
is especially relevant to a human rights approach to climate change. This is
because international human rights law has incorporated this principle.21 The principle of affirmative action provides that a State may have to treat right holders differently, if by treating right holders similarly when they are in unequal positions,
inequalities are maintained.
11. State responsibility is invoked when a State acts contrary to an existing legal obligation. To invoke this traditional form of State responsibility, it is necessary to find an
act attributable to a State that violates a legal obligation.22 Attributability requires determining whether a State could have acted to prevent the violation. The legal obligation
may be found in either a treaty or under customary international law, but it must be one
that prohibits an act of a State. This type of State responsibility is relevant to climate
change insofar as an obligation exists not to do a certain act or an obligation exists to
act to ensure that a certain consequence that is unlawful is prevented. An example is
the legal obligations of a developed country party under Article 4(2) of the United
Nations Framework Convention on Climate Change (UNFCCC) that requires it to
adopt national policies and take corresponding measures on the mitigation of
climate change, by limiting its anthropogenic emissions of greenhouse gases (GHGs)
and protecting and enhancing its GHG sinks and reservoirs. If a State party fails to
act when it is in position to do so and knows or should have known that its inaction
will contribute to increased GHGs, it violates its legal obligation under Article 4(2)
of the UNFCCC. We say that the State party has committed an internationally
146 Chinese JIL (2011)
23 Also see Kyoto Protocol to the United Nations Framework Convention on Climate Change,
2303 UNTS 148 (entered into force 16 February 2005) (hereinafter Kyoto Protocol), at art.
3, and United Nations Convention on the Law of the Sea, 1833 UNTS 3 (entered into force
16 November 1994), at art. 194.
24 These data emanate from scientists around the world and are regularly reviewed by the Intergovernmental Panel on Climate Change (IPCC), which was jointly established by the United
Nations Environmental Programme and the World Meteorological Organization in 1988.
25 United Nations Environment Programme (UNEP), Global Environment Outlook 4:
Environment for Development (2007), 367.
26 UNEP, Negotiating Adaptation: International Issues of Equity and Finance, above n.67.
27 See generally Modelling and Assessment of Contributions to Climate Change (MATCH),
Summary Report of the Ad-hoc Group for the Modelling and Assessment of Contributions
to Climate Change (7 November 2008) (www.match-info.net (last accessed 20 August 2010)).
28 United Nations Development Programme (UNDP), Human Development Report 2007/
2008 (Fighting Climate Change: Human Solidarity in a Divided World) (2007), 41.
29 Ibid.
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wrongful act.23 Of course, in such situations, States may disagree about of what their
legal obligations actually consist. This does not, however, negate the obligation or
justify its violation. Instead, it creates a need for an independent and impartial adjudicator to determine the existence or the scope of a specific legal obligation. Unfortunately, the UNFCCC does not provide for such a process of adjudication.
12. Some States have claimed that law cannot be used to apportion responsibility
for climate change because the proximate cause of the damage is too remote. This
reasoning too easily dismisses the existing reliable data.24 These data describe the consequences of climate change, including the adverse impacts, and what countries are
responsible for the historically accumulated concentration of GHGs in the global
atmosphere that causes climate change. The man-made actions that cause the
adverse effects of climate change can be linked for a large part to the emission patterns
of individual countries. These patterns show significant differences between developed and developing countries. In 2004, developed countries had 20 per cent of
the world population while producing 57 per cent of world GDP, based on purchasing power parity, and accounting for 46 per cent of global GHG emissions. Africa’s
share of the GHG emissions was 7.8 per cent, while it had 13 per cent of world population.25 The average per capita emission level for developing countries, including
China and India, was about 25 per cent of developed countries’ levels.26 Taking
into account historic contributions of specific countries to global warming creates
an even more unbalanced picture.27 For example, developed countries emitted 7
out of every 10 tons of carbon dioxide that have been emitted since the start of the
industrial area.28 Historic emissions of carbon dioxide by Britain and the United
States add up to 1100 tons per capita, while historic per capita emissions for
China and India amount to 66 and 23 tons, respectively.29
13. The IPCC has confirmed in several reports that the observed phenomenon of
climate change is man-made and caused by the excessive emission of anthropogenic
Wewerinke and Doebbler, A Human Rights Approach to Climate Change 147
IV. Specific legal obligations
15. The precise obligations that may give rise to State responsibility are spelled out
in treaties and have been elaborated and confirmed in both national and international jurisprudence. This has allowed international human rights standards to
be applied universally and with some degree of consistency. A number of specific
human rights are implicated by climate change. In each case because climate change
can be attributed to the actions of individuals acting on behalf of States or with the
implicit or explicit consent of States, State responsibility for a violation of human
rights may be incurred. Several of these human rights are briefly discussed below.
IV.A. The right to life
16. Without human life, other human rights are meaningless. Thus, even though
the human right to life is inseparably linked to other human rights, it is considered
first. Moreover, the threats to the right to life that have already been directly or
30 UNFCCC Secretariat, Recommendations on Future Financing Options for Enhancing the
Development, Deployment, Diffusion and Transfer of Technologies under the Convention.
Report of the Chair of the Expert Group on Technology Transfer, UN Doc FCCC/SB/
2009/2/Summary (26 May 2009), 36.
31 UNFCCC, 1771 UNTS 107, entered into force 21 March 1994, at art. 1.
32 IPCC, Climate Change 1995. The Science of Climate Change, in: J.T. Houghton, L.G.
Meira Filho, B.A. Callender, N. Harris, A. Kattenberg and K. Maskell (eds.), Contribution
of Working Group I to the Second Assessment Report of the Intergovernmental Panel on
Climate Change (1996).
33 UNFCC, above n.31, Preamble.
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GHGs since industrialization.30 Indeed, 194 States have agreed with this assessment
in ratifying the UNFCCC in which a legal definition of climate change is found in
Article 1 that states “a change of climate which is attributed directly or indirectly to
human activity that alters the composition of the global atmosphere and which is in
addition to natural climate variability observed over comparable time periods”.31
States agreed to this in part because already in 1966 the IPCC had concluded
that there is new increasingly “stronger evidence that most of the warming observed
over the last 50 years is likely to be attributable to human activities”.32 In the Preamble of the UNFCCC, States note that “the largest share of historical and current
global emissions of greenhouse gases has originated in developed countries”.33
14. History, therefore, shows that not only is there evidence that the adverse
effects of climate change are caused by human beings, but generally which
human beings or at least countries have been the greatest contributors to climate
change. As indicated above, this history, as well as the prospect of future damage
emanating from continued actions, is relevant to considering whether international
human rights law requires that affirmative action be taken.
148 Chinese JIL (2011)
34 D.H. Campbell-Lendrum et al., How Much Disease Could Climate Change Cause?, in: A.J.
McMichael et al. (eds.), Climate Change and Health (2003), 152. Also see A.J. McMichael
et al., Global Climate Change, in: M. Ezzati, A.D. Lopez, A. Rodgers and C.J.L. Murray
(eds.), 1 Comparative Quantification of Health Risks: Global and Regional Burden of
Disease Attributable to Selected Major Risk Factors (2005), 1543. “DALY” refers to “disability-adjusted life year”, a measure of overall disease burden, expressed as the number of years
lost due to ill-health, disability or early death.
35 999 UNTS 171, entered into force 23 March 1976.
36 UNGA Res 44/128, UN Doc A/Res/44/128, entered into force 11 July 1991.
37 OAU Doc CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982), entered into force 21 October 1986.
38 1520 UNTS 217 (entered into force 21 October 1986).
39 213 UNTS 222, ETS No. 5, entered into force 3 September 1953, as amended by Protocol
Nos. 3, 5 and 8, which entered into force on 21 September 1970, 20 December 1971 and 1
January 1990, respectively, and Protocol No. 11, which entered into force on 11 May 1994.
40 Adopted 22 May 2004, reprinted in 12 International Human Rights Report (2005), 893,
entered into force 15 March 2008.
41 1577 UNTS 3, entered into force 2 September 1990.
42 Adopted 10 December 1948, UNGA Res 217, UN Doc A/810 (1948), 71.
43 OAS Res XXX, adopted by the Ninth International Conference of American States (1948),
reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System,
OAS Doc No. OEA/Ser.L.V/II.82 doc.6 rev.1 (1992), 17.
44 See, for example, CRC, art. 6; ACHPR, art. 4; the European Convention for the Protection
of Human Rights and Fundamental Freedoms (ECHR), art. 6; ACHR, art. 4; ADRDM,
art. 1; the Arab CHR, art. 5(a).
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indirectly caused by the adverse effects of climate change are extraordinary. Leading
scientists estimate that changes in climate caused up to 150 000 lives per year or
5 500 000 DALYs per year by the year 2000.34
17. Some of the most prominent treaty obligations to respect the human right to life
are found in Article 6 of the International Covenant on Civil and Political Rights
(ICCPR)35 and its Second Optional Protocol,36 Article 4 of the American Convention
on Human Rights (ACHR),37 Article 4 of the African Charter on Human and
Peoples’ Rights (ACHPR),38 Article 2 of the European Convention on Human
Rights (ECHR) and its Sixth and Twelfth Protocols (ECHRP6 and ECHRP12),39
Article 5 of the Arab Charter on Human Rights (Arab CHR)40 and Article 6 of the
Convention on the Rights of the Child (CRC).41 It also appears in Article 3 of the Universal Declaration of Human Rights (UDHR)42 and Article I of the American Declaration of the Rights and Duties of Man (ADRDM).43 In all cases, the right to life protects
against arbitrary deprivation. In the case of the protocols to the ICCPR and the ECHR,
it is the death penalty that is prohibited. The right to life is one of the most fundamental
rights because without it other rights are meaningless. Furthermore, there can be little
doubt that the core right is a principle of customary international law, as virtually every
single State in the international community has undertaken a treaty obligation to
respect this right.
The right to life is protected in the ICCPR as well as in several other international
and regional human rights instruments.44 These instruments impose a positive
Wewerinke and Doebbler, A Human Rights Approach to Climate Change 149
45 Human Rights Committee, General Comment 6: Article 6 (16th Session, 1982), UN Doc
HRI/GEN/1/Rev.6 at 127 (2003).
46 See, for example, López Burgos v. Uruguay, UN Doc HRC/36/40 (29 July 1981), 176. Also
see generally, F. Coomans and M.T. Kamminga (eds.), Extraterritorial Application of
Human Rights Treaties (2004), for discussions of this issue by various authors and in
various international forums.
47 See, for example, B.G. Ramcharan, The Right to Life in International Law (Hague Academy
of International Law, 1985).
48 Para.5 in Human Rights Committee, General Comment 6, art. 6, adopted at the 16th Session
held in 1982 reprinted in the Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 (1994), 6.
49 Para.15, CESCR, General Comment 12, Right to Adequate Food (20th Session, 1999), UN
Doc E/C.12/1999/5 (1999), reprinted in the Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/
GEN/1/Rev.6 (2003), 62.
50 These impacts have been described in several studies. See, for example, The Informal Taskforce on Climate Change of the Inter-Agency Standing Committee and The International
Strategy for Disaster Reduction Disaster Risk Reduction Strategies and Risk Management
Practices, Critical Elements for Adaptation to Climate Change. Submission to the
UNFCCC Ad-Hoc Working Group on Long Term Cooperative Action (2008), 1.
51 See Global Humanitarian Forum, Human Impact Report: The Anatomy of a Silent Crisis
(2009), 1.
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obligation on States to reduce preventable death, including from environmental
factors, and to protect individuals from certain imminent environmental threats
to life.45 This obligation has further been determined to extend beyond State
borders to actions that affect individuals abroad.46 Moreover, the right to life has
been recognized as being of a non-derogable nature and of jus cogens status.47
18. The right to life must not “be understood in a restrictive manner”, but
“requires that States adopt positive measures”.48 Like the other rights discussed
below, States are required to respect, protect and fulfil49 this human right. This
means States must not act to interfere with the exercise of a human right
(respect); must take affirmative action to protect individuals and groups against
human rights violations (protect); and must take positive steps to ensure the enjoyment of basic human rights (fulfil).
19. In some areas of the world, an increase in natural disasters and extreme
weather events, such as tropical cyclones, hurricanes, other storms and heat waves,
directly impact the rights to life of vulnerable people.50 A report launched in
August 2009 by the Global Humanitarian Forum indicates that every year
climate change kills over 300 000 people, while the livelihoods of 325 million
people are seriously affected. The report estimates that four billion people are vulnerable, while 500 million people are at extreme risk.51
20. The right to life may be violated by States that fail to act in relation to matters
where action is possible and which causes a threat to or loss of life. Moreover, the
actions required by States are not mere omission but may include proactive
150 Chinese JIL (2011)
action. And often the actions required to ensure respect for the right to life are interrelated to other human rights such as the right to health or the right to an adequate
standard of living. The Inter-American Court of Human Rights has, for example,
confirmed that the “fundamental right to life includes, not only the right of
every human being not to be deprived of his life arbitrarily, but also the right
that he will not be prevented from having access to the conditions that guarantee
a dignified existence”.52
52 Villagrán-Morales et al. v. Guatemala, Ser. C, No. 63 (19 November 1999), para.144.
53 993 UNTS 3, entered into force 3 January 1976, UNGA Res 2200A, 21 UN GAOR Supp.
(No. 16), UN Doc A/6316 (1966), 49.
54 Art. 25 of the UDHR.
55 660 UNTS 195, entered into force 4 January 1969.
56 1249 UNTS 13, entered into force 3 September 1981.
57 2220 UNTS 93, entered into force 1 July 2003.
58 See, for example, Principle 4 of the Declaration on the Rights of the Child, UNGA Res 1386
(XIV) (29 November 1959); art. 10(f ) of the Declaration on Social Progress and Development, UNGA Res 2542 (XXIV) (11 December 1969); Sec. III(8), Chap. II(A.3) of the Vancouver Declaration on Human Settlements, adopted by the UN Conference on Human
Settlements in 1976; art. 8.1 of the Declaration on the Right to Development, UNGA
Res 41/128 (4 December 1986) and UN Committee on Economic, Social, and Cultural
Rights (CESCR), General Comment No. 4 on the right to adequate housing (art.11 (1)),
UN Doc (13 December 1991).
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IV.B. The right to an adequate standard of living
21. One of the broadest human rights is the right to an adequate standard of living.
The right to an adequate standard of living is recognized in Article 11 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR),53 which
states in relevant part that Pursuant to Article 11(1) of the Covenant, States
parties “recognize the right of everyone to an adequate standard of living for
himself and his family, including adequate food, clothing and housing, and to
the continuous improvement of living conditions”. This right and its constituents
are also found in the UDHR.54 This right expressly consists of several rights,
each of which has been the subject of focus and concern.
22. The right to housing, for example, is found in Article 11, paragraph 1, of the
ICESCR; Article 5(e) of the Convention on International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)55; Article 14 of the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW)56; Article 27 of the CRC; Article 43 of the International Convention
on the Protection of the Rights of All Migrant Workers and Members of Their
Families (MWC).57 This right is also found in assorted international Declarations
and General Comments.58
Wewerinke and Doebbler, A Human Rights Approach to Climate Change 151
59 UN Doc No. E/CN.4/Sub.2/1993/15 at 4, para.7.
60 Ibid., 5, para.9(e).
61 In addition to the ICESCR, the right to food is found in, among others, CRC, art. 24(2)(c);
the European Social Charter (revised), ETS No. 163, entered into force 7 January 1999, art.
4(1); Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (hereinafter the “Protocol of San Salvador”), OAS
Treaty Series No. 69 (1988), signed 17 November 1988, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS Doc OEA/Ser.L.V/II.82
doc.6 rev.1 at 67 (1992), art. 12; ADRDM, art. XI; and the Arab CHR, reprinted in 12
International Human Rights Report (2005), 893, entered into force 15 March 2008, art. 38.
62 These include the ICERD, art. 5(e)(iii); the CEDAW, art. 14(2); the CRC, art. 27(3); the
Convention relating to the Status of Refugees, 189 UNTS 150, entered into force 22
April 1954., art. 21; MWC, art. 43(1); the International Convention on the Protection
and Promotion of the Rights and Dignity of Persons with Disabilities, UNGA Res 61/
106, Annex I, UN GAOR, 61st Session, Supp. No. 49, at 65, UN Doc A/61/49 (2006),
entered into force 3 May 2008, arts. 26, 28; the ADRDM, art. XI; and the Arab CHR,
art. 38.
63 Committee on Economic, Social and Cultural Rights, General Comment 4, The Right to
Adequate Housing (Sixth Session, 1991), UN Doc E/1992/23, Annex III at 114 (1991),
reprinted in the Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6 at 18 (2003).
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23. The UN Special Rapporteur on the human right to housing has pointed out,
for example, that “[i]n spite of the considerable legal foundation of housing rights
that exist . . . housing and living conditions continue to worsen the world over”.59
Of special concern to the Special Rapporteur was “the continued indulgence by
the world’s Governments of citizens who are already better off and the failure to
reorder fiscal policies, including taxation, budgetary allocations and policies for subsidization of the disadvantaged sector, towards meeting the needs of those denied
housing rights remains an area requiring change”.60
24. Another essential human right subsumed in the right to an adequate standard
of living is the right to food. This right is protected through several international
human rights treaties.61 It consists of the obligation to ensure progressive realization
of the right of everyone to food, as well as of a core obligation to ensure that a certain
minimum standard is being met immediately. The core obligation to protect the
right to food has been spelled out in General Comment No. 12 of the CESCR,
which provides that “the right to adequate food is realized when every man,
woman and child, alone or in community with others, have physical and economic
access at all times to adequate food or means for its procurement . . . States have a
core obligation to take the necessary action to mitigate and alleviate hunger as provided for in paragraph 2 of article 11, even in times of natural or other disasters”. In
addition to Article 11 of the ICESCR, the right to housing is found in several universal and regional treaties.62 The right requires “resource allocations and policy
initiatives” and “international cooperation”.63
152 Chinese JIL (2011)
IV.C. The right to health
25. The human right to health has been significantly defined over the past half century.
The preamble to the World Health Organization (WHO) Constitution that was
adopted in 1946 recognizes that the “enjoyment of the highest attainable standard of
health is one of the fundamental rights of every human being”.64 A more often cited
expression of the human right to health is found in the ICESCR65 to which 160
States have consented as of 20 March 2009. Article 12 states that:
26. These obligations are authoritatively interpreted by the CESCR, which in the
future is likely to express its views on individual petitions,67 and the UN Special
Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, a post created by the UN Commission on
Human Rights in 2002.68 A CESCR General Comment explains in more detail
what Article 12 requires from States, stating that “health is a fundamental human
right indispensable for the exercise of other human rights”.69 It goes on to
explain that although “the right to health is not to be understood as a right to be
healthy”,70 it does create States’ obligations71 and these obligations may be
64
65
66
67
68
69
Constitution of WHO adopted at the International Health Conference (1946).
993 UNTS 3, entered into force 3 January 1976 (160 State parties).
Ibid.
Optional Protocol to the ICESCR, UNGA Res 63/117 (2008), not yet entered into force.
UN Commission on Human Rights, Res No. 2002/31 (2002).
CESCR, General Comment 14: The Right to the Highest Attainable Standard of Health
(22nd Session), UN Doc E/C.12/2000/4 (2000), reprinted in the Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc HRI/GEN/1/Rev.6 at 85 (2003), para.1.
70 Ibid., para.8.
71 Ibid., paras.30 –45.
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1. The States Parties to the present Covenant recognize the right of everyone
to the enjoyment of the highest attainable standard of physical and mental
health.
2. The steps to be taken by the States Parties to the present Covenant to
achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial
hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service
and medical attention in the event of sickness.66
Wewerinke and Doebbler, A Human Rights Approach to Climate Change 153
72
73
74
75
76
77
78
79
80
81
82
83
Ibid., paras.46 –52.
Ibid., para.30.
660 UNTS 195, entered into force 4 January1969, at art. 5(e)(iv).
1249 UNTS 13, entered into force 3 September 1981 at arts. 11(1)f, 12 and 14(2)b.
1577 UNTS 3, entered into force 2 September 1990 (193 State parties) at art. 24.
ILO No. 169, adopted at the 76th General Conference of the International Labour Organization on 27 June 1989, entered into force 5 September 1991, especially arts. 7, 20, 25, 30.
UNGA Res 45/158, Annex, 45 UN GAOR Supp. (No. 49A) at 262, UN Doc A/45/49
(1990), entered into force 1 July 2003, especially at art. 28.
UNGA Res 61/106, Annex I, UN GAOR, 61st Session, Supp. No. 49, at 65, UN Doc A/
61/49 (2006), entered into force 3 May 2008, especially at arts. 25, 26.
Art. 16 of the ACHPR, OAU Doc CAB/LEG/67/3 Rev. 5 (1981).
Protocol to the ACHPR on the Rights of Women in Africa, adopted by the Second
Ordinary Session of the Assembly of the African Union, Maputo, AU Doc CAB/LEG/
66.6 (13 September 2000), entered into force 25 November 2005, especially art. 14.
OAU Doc CAB/LEG/24.9/49 (1990), entered into force 29 November 1999, especially
arts. 14 and 11(2)(h).
Additional Protocol of the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, approved by the Final Act of the Ninth Conference of
American States (Washington, DC, 1948), 38 –45.
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violated.72 The duties are defined generally as the “immediate obligations [ . . . to
. . .] guarantee that the right will be exercised without discrimination of any
kind” and to take steps “towards the full realization” of the right that “must be deliberate, concrete and targeted towards the full realization of the right to health”.73 The
General Comment then goes on to specify some health goals that States must take
action towards accomplishing. The General Comment provides significant criteria
for concrete legal obligations.
27. Additional expressions of the right to health are found in special human
rights treaties such as the ICERD,74 the CEDAW,75 the CRC,76 ILO Convention
No. 169 concerning Indigenous and Tribal Peoples in Independent Countries
(1989),77 the MWC78 and the Convention on the Rights of Persons with
Disabilities.79
28. There are even more instruments containing the human right to health in
regional contexts. The 53 States of the Organization of African Unity (today the
African Union) adopted the ACHPR, which provides that “[e]very individual
shall have the right to enjoy the best attainable state of physical and mental
health”.80 In addition, a Protocol to the African Charter concerning Violence
against Women81 and the African Charter on the Rights and Welfare of the
Child82 both reiterate the right to health. In the Inter-American context, the San
Salvador Protocol83 to the ACHR provides that “everyone shall have the right to
health, understood to mean the enjoyment of the highest level of physical,
mental and social well-being [. . . and that . . . i]n order to ensure the exercise
of the right to health, the States Parties agree to recognize health as a public
154 Chinese JIL (2011)
84 Ibid., especially art. 10.
85 529 UNTS 89, entered into force 26 February 1965, especially art. 11; and revised and
adopted as European Social Charter (revised), ETS No. 163, entered into force 7 January
1999, especially arts. 11, 13.
86 Reprinted in the Official Journal of the European Union (C 364/1) (2000), especially art. 35.
87 Arab CHR, adopted by the League of Arab States on 22 May 2004, reprinted in 12 International Human Rights Report (2005), 893, entered into force 15 March 2008, particularly
arts. 38, 39.
88 See generally, the Charter of the Association of South East Asian Nations, adopted on 20
November 2007 in Singapore (www.aseansec.org/21069.pdf (last accessed 12 July 2009))
and ASEAN, Draft Terms of Reference of (an ASEAN Human Rights Body), para.1.4
(15 January 2009) (www.scribd.com/doc/12882981/Draft-of-ASEAN-Human-RightBody?autodown=pdf (last accessed 10 August 2009)). For an analysis, see LIN Chun Hung,
ASEAN Charter: Deeper Regional Integration under International Law?, 9 Chinese JIL
(2010), 821 –837.
89 See art. 17 of the Cairo Declaration on Human Rights in Islam, adopted at the 14th Islamic
Conference of Foreign Ministers, Res No. 49/19-P (1990) and art. 15 of the Covenant on
the Rights of the Child in Islam, adopted in OIC Doc OIC/9-IGGE/HRI/2004/Rep.
Final (2004), not yet entered into force.
90 UN HRC Res No. 11/8, UN Doc. A/HRC/11/L.11 (19 June 2009), 64 –68.
91 See para.15, CESCR, General Comment 14, The Right to the Highest Attainable Standard
of Health (22nd Session, 2000), UN Doc E/C.12/2000/4 (2000), reprinted in the
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good [. . .] ”.84 In the European context, both the European Social Charter85 of the
Council of Europe as well as the Charter of Fundamental Rights of the European
Union86 contain the right to health. More recently, both the League of Arab
States87 and the Association of South East Asian Nations88 have adopted instruments that reaffirm their commitment to human rights, the former explicitly and
the latter implicitly, and recognize the right to health in their respective regional
contexts. In other words, there is no region of the world in which the overwhelming
majority of States have not agreed that health is a human right. Even international
organizations that cut across regional boundaries, such as the Organization of
Islamic States, have endorsed the human right to health.89
29. There are also numerous UN resolutions reiterating the right to health. For
example, in June 2009, the Human Rights Council adopted a resolution on preventable maternal mortality and morbidity and human rights.90 While these resolutions
are not legally binding themselves, they are often authoritative interpretations of the
legally binding obligations created by treaties.
30. The CESCR has clarified that the right to health requires that a State both
refrain from action interfering with the right and take positive action to protect
ensure or fulfil the right for every person under its jurisdiction. It includes “the
requirement to ensure an adequate supply of safe and potable water and basic sanitation; the prevention and reduction of the population’s exposure to harmful substances such as radiation and harmful chemicals or other detrimental
environmental conditions that directly or indirectly impact upon human health.”91
Wewerinke and Doebbler, A Human Rights Approach to Climate Change 155
IV.D. The right to development
31. This right evolved from a number of UN General Assembly resolutions, most
notably the Declaration on the Right to Development that was adopted by an overwhelming majority of States in 1986.97 Starting in 1969, the United Nations and
other international forums adopted a number of declarations linking development
to human rights. Examples include the Declaration on the Establishment of a New
International Economic Order98 and the Charter of Economic Rights and Duties of
States,99 both from 1974. These instruments were based on the ideas of equity,
common interest and interdependence as the basis for the right of countries to
development. The two covenants (ICCPR and ICESCR) contain several rights
that form the basis of development of the individual such as the right to life, the
92
93
94
95
96
97
98
99
Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6 at 85 (2003).
See Paul Hunt, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment
of Physical and Mental Health on Missions to World Bank and the International Monetary
Fund and Uganda, UN Doc A/HRC/7/11/Add.2 (2008).
See P. Hunt and R. Khosla, Right to the Highest Attainable Standard of Health,
in: S. Humphreys (ed.), Human Rights and Climate Change (2010), 252–253.
Ibid.
Ibid.
Ibid., 255.
UNGA Res 41/128, Annex, 41 UN GAOR Supp. (No. 53) at 186, UN Doc A/41/53
(1986).
UNGA Res 3201 (S-VI), S-6 UN GAOR Supp. (No. 1), UN Doc A9556 (1974).
UNGA Res 3281 (XXIX), 29 UN GAOR Supp. (No. 31), UN Doc A/9631 (1974).
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30. The UN Special Rapporteur on the Right of Everyone to the Enjoyment of
Physical and Mental Health, Paul Hunt, has highlighted the international dimensions of the right to health in a detailed report to the UN Human Rights
Council, in which he confirms that international assistance and cooperation in
health are part of a State’s responsibility under international human rights law.92
In a contribution on the link between climate change and the right to health,
Hunt, together with Rajat Khosla, points out that the duty to respect the right to
health gives rise to a negative obligation “to refrain from activities that harm the
composition of the global atmosphere or arbitrarily interfere with healthy environmental conditions”.93 The obligation to protect the right to health means, inter alia,
that States must “take effective steps to ensure that private companies operating in
their jurisdictions do not compromise emission limitation and reduction commitments”.94 The duty to fulfil would include a responsibility of high-income countries
to facilitate access to essential health service as well as adaptation in low-income
States.95 Perhaps most importantly, the authors state that the right to health “also
demands measures that stop and reverse climate change”.96
156 Chinese JIL (2011)
IV.E. The right to self-determination
33. The right to self-determination is the only common human right stated in both
of the two international Covenants (ICESCR and the ICCPR), which stresses its
importance to the international community generally.
34. The Charter of the United Nations also refers to the right in Article 1, paragraph 2, and Article 73 indirectly defines self-determination, albeit in vague terms,
as “self-government” taking “due account of the political aspirations of the
peoples” and assisting “them in the progressive development of their free political
institutions, according to the particular circumstances of each territory and its
peoples and their varying stages of development”. Another reference to self-determination in the Charter appears in Article 55, where it is a qualifier for economic and
social development.
35. The expression of self-determination in the context of colonialism can be
found in UN General Assembly Resolution 1514 on the Declaration on Granting
Independence to Colonial Countries and Peoples103 as well as the Declaration on
Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations.104 The right
100 1249 UNTS 13 at art. 3, entered into force 3 September 1981.
101 See the Report of the Independent Expert on Human Rights and International Solidarity,
UN Doc A/HRC/12/27 (22 July 2009).
102 See Section III(1)(d) discussing the duty to cooperate in more detail.
103 UNGA Res 1514 (XV), 15 UN GAOR Supp. (No. 16) at 66, UN Doc A/4684 (1960).
104 UNGA Res 2625 (XXV), 25 UN GAOR Supp. (No. 28), Annex at 121, UN Doc A/5217
(1970).
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right to an adequate standard of living and right to health. Other human rights
instruments also include provisions on the right to development such as the
CEDAW, which requires States to take all appropriate steps to ensure the development of women.100 Through its reiteration by the overwhelming majority of States
in the international community, it is reasonable to view the right to development as
a rule of customary international law.
32. At a minimum, the right to development requires States to cooperate with
each other to enhance development everywhere in the world. For this reason, the
right to development has been the central focus of the UN Human Rights Council’s
independent expert on human rights and international solidarity, Mr. Rudi
Muhammad Rizki.101 Because climate change has such significant impacts on the
ability of peoples to develop, the duty of cooperation that is inherent in the right
to development is of heightened importance when discussing the consequences of
climate change.102
Wewerinke and Doebbler, A Human Rights Approach to Climate Change 157
has also been reiterated in the resolutions of the Commission on Human Rights, its
successor the Council on Human Rights.105
36. Self-determination is relevant to climate change insofar as the adverse
effects of climate may obstruct a State from existing and thus deny its people
the right to self-determination. Perhaps the most striking examples are some
small island States like the Maldives, which are threatened with extinction by
the rising sea levels. This could deprive hundreds of thousands of individuals
of their human rights to a nationality and self-determination as well as
making them stateless persons or climate change refugees who must flee from
this natural disaster.106
105 This is particularly the case in regard to Palestine, where an annual resolution on the Palestinians’ right to self-determination is adopted.
106 Ibid., 697.
107 See S. McInerney-Lankford, Climate Change and Human Rights: An Introduction to Legal
Issues, Harvard Environmental LR (2009) 431, 438.
108 See UNDP, above n.28, 112.
109 Charter of the United Nations (1945).
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IV.F. The duty of cooperation between States
37. One of the most important legal obligations that form part of the human rights
approach is the duty to cooperate. It is evident that the States with the least ability to
adapt to or mitigate climate change bear the greatest burden of its harmful effects.
The same countries have contributed the least to causing the problem. This creates
an “equity challenge”,107 which is reflected in the CBDRRC principle mentioned
above. However, while it has been recognized that climate change cannot be
addressed effectively without action by all major GHG-emitting countries,108
which States should shoulder the greatest burden of the responsibility remains
contentious.
38. The duty to cooperate is in line with the principle of CBDRRC, which
implies that developed States must take on emission cuts and finance mitigation
and adaptation in developing countries in line with their national responsibilities
for causing climate change and their capacity to assist.
39. States’ duty to cooperate to ensure that a rights-based climate change framework materializes has a legal basis in the UN Charter. Article 1 of the UN Charter
mentions the four purposes of the United Nations. According to Article 1(3), the
purposes of the United Nations include “[t]o achieve international co-operation
in solving international problems of an economic, social, cultural, or humanitarian
character, and in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or
religion”.109
158 Chinese JIL (2011)
40. Article 55 of the UN Charter provides:
With a view to the creation of conditions of stability and well-being which are
necessary for peaceful and friendly relations among nations based on respect
for the principle of equal rights and self-determination of peoples, the United
Nations shall promote:
a. higher standards of living, full employment, and conditions of economic and social progress and development;
b. solutions of international economic, social, health, and related problems [. . .] and
c. universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language, or religion.110
110 Ibid.
111 Ibid.
112 See, generally, S. Steiner, P. Alston and R. Goodman, International Human Rights in
Context: Law, Politics, Morals (2007).
113 UDHR, adopted 10 December 1948, UNGA Res 217, UN Doc A/810 at 71 (1948), art.
28.
114 CESCR, General Comment 4, above n.63.
115 Art. 2(1) of the ICESCR, above n.53.
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41. And Article 56 of the UN Charter provides that “[a]ll Members pledge themselves to take joint and separate action in cooperation with the Organization for the
achievement of the purposes set forth in Article 55”.111
42. The duty to cooperate is further supported by Article 28 of the UDHR,
which is widely acknowledged to reflect customary international law,112 and provides that everyone is entitled to a social and international order in which human
rights can be fully realized.113 The CESCR has also confirmed that “in accordance
with Articles 55 and 56 of the Charter of the United Nations, with well-established
principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic,
social and cultural rights is an obligation of all States”.114
43. This is consistent with Article 2(1) of the ICESCR, which provides that each
State has the obligation to “[undertake] 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”.115 The phrase
“to the maximum of its available resources” has been interpreted as including
resources being made available through international assistance. Notably, the
ICESCR, as opposed to the ICCPR, does not have a jurisdictional clause that
Wewerinke and Doebbler, A Human Rights Approach to Climate Change 159
restricts the scope and application of the ICESCR. Thus, the rights provided in
ICESCR must apply, at least to some extent, extraterritorially.116 This approach
was taken by the CESCR in its General Comment on the Right to Social Security:
States parties should extra-territorially protect the right to social security by
preventing their own citizens and national entities from violating this right
in other countries. Where States parties can take steps to influence third
parties (non-State actors) within their jurisdiction to respect the right,
through legal or political means, such steps should be taken in accordance
with the Charter of the United Nations and applicable international law
[italics in the original].117
V. Conclusion
45. In this article, we have shown the inherent legal basis of the human rights
approach to climate change. As legally binding international norms, human
rights are more than guiding principles with high moral value. Former President
of Ireland and UN High Commissioner for Human Rights, Mary Robinson,
emphasized this when she stated,
[w]e can no longer think of climate change as an issue where we the rich
give charity to the poor to help them cope [. . .]. Climate change has
116 F. Coomans, Some Remarks on the Extraterritorial Application of the International Covenant on Economic, Social and Cultural Rights, in: F. Coomans and M.T. Kamminga
(eds.), Extraterritorial Application of Human Rights Treaties (2004), 183–200.
117 CESCR, General Comment 19: The Right to Social Security (Advance Unedited Version),
UN Doc E/C.12/GC/19 (23 November 2007), para.54.
118 M. Meinshausen et al., Greenhouse-Gas Emission Targets for Limiting Global Warming to
2 8C, 458 Nature (2009), 1158–1162.
119 As defined by the UNFCCC Secretariat. As examples of mitigation measures, the UNFCCC
mentions “using fossil fuels more efficiently for industrial processes or electricity generation,
switching to solar energy or wind power, improving the insulation of buildings, and expanding forests and others ‘sinks’ to remove greater amounts of carbon dioxide from the atmosphere”. See also UNDP, above n.28, 111.
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44. While States enjoy a significant amount of discretion as to how they achieve their
legal obligations, they do not enjoy the discretion of taking no action at all. Some
actions or general patterns of action might be required by the realities of scientific
finding. For example, climate scientists have warned that global emissions amounted
to nine billion tons in 2008, far exceeding the levels corresponding with a trajectory
that would avoid the most severe adverse effects of climate change.118 While the specific
action needed to avoid these adverse impacts has not been defined, there is political and
scientific agreement that deep cuts in global GHG emissions are necessary to avoid
dangerous human interference with the global climate system.119
160 Chinese JIL (2011)
already begun to affect the fulfilment of human rights and our shared human
rights framework entitles and empowers developing countries and impoverished communities to claim protection of these rights.
120 The erga omnes concept was identified by the International Court of Justice inter alia in its
ruling in the Barcelona Traction case. Barcelona Traction, Light and Power Company,
Limited (Belgium v. Spain), ICJ Reports 1970, 3, para.33.
121 C.G. Weeramantry, Achieving Sustainable Justice through International Law, in: M.C.
Cordonier Segger and C.G. Weeramantry (eds.), Sustainable Justice: Reconciling Economic,
Social and Environmental Law (2005), 24. Notably, in the same work, Judge Weeramantry
argues that an erga omnes doctrine is being developed in relation to sustainable development.
122 Speech of Sri Lankan President Mahinda Rajapaksa to the 15th Non-Aligned Movement
Summit delivered on Wednesday, 15 July 2009 (www.priu.gov.lk (last accessed 20 July
2010)).
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46. Widely ratified human rights treaties reflect a common denominator among
States. They are rules that have been agreed upon by more than two-thirds of the
international community of just under 200 States that represent more than six
billion people on the planet earth. Human rights also lie at the basis of the
concept of erga omnes,120 obligations that are “owed towards the entire world and
all its inhabitants”.121
47. The legal duty of all States to cooperate to realize human rights is a particularly relevant obligation, as it cements the legal obligations that States have undertaken under international climate change law. These obligations were highlighted by
Sri Lankan President Mahinda Rajapaksa, who, speaking at the 15th Non-Aligned
Movement Summit, recognized that while developing countries must play their role
in addressing the threat of climate change this should not be done in a manner that
leads to “unfair sacrifices, compromising progress towards poverty alleviation”.122
He pointed out that in an era of increasing concern for human rights, we address
the consequences for the poor of pollution, and ensure mechanisms for compensation when basic rights, for life, for health, for development, are violated.
48. The precise relationship between climate change law—including the
CBDRRC principle—and human rights law needs further clarification. It is clear
at this point, however, that international human rights law requires that negotiated
climate agreement(s) between States enable action by all States to ensure the universal and non-discriminatory protection of human rights in the face of climate change.
49. It also seems that international human rights bodies are in principle able to
deal with claims involving climate change-induced human rights violations. This
might be a significant opportunity for encouraging timely and adequate action
on climate change.
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