The increasing currency and relevance of rights-based perspectives in the international negotiations on climate change

Journal of Environmental Law

Volumn 22, Issue 3, 2010, Pages 391-429

  Rajamani, Lavanya ^a,b  

^a UNIVERSITY OF OXFORD   (United Kingdom)

^b CENTRE FOR POLICY RESEARCH   (India)

Author keywords

Climate change; Human rights; International law; Negotiations

Indexed keywords

CLIMATE CHANGE; CLIMATE EFFECT; ENVIRONMENTAL POLICY; HUMAN RIGHTS; INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE; INTERNATIONAL COOPERATION; INTERNATIONAL LAW; NEGOTIATION PROCESS;

EID: 78049446356     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqq020     Document Type: Article

References (280)

1. UNGA Res (22 December 1989) UN Doc A/Resolution 44/228.
2. The 2007-8 Human Development Report characterised it as the 'the defining human development challenge for the 21st century'. UN Development Programme, 'Human Development Report 2007/8, Fighting Climate Change: Human Solidarity in a Divided World' (2007) [hereinafter Human Development Report 2007/8], accessed 17 September 2010.
3. Human Development Report 2007/8 (n 2) 8.
4. N Stern, Stern Review: The Economics of Climate Change (CUP, Cambridge 2006).
5. UN Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) (1992) 31 ILM 849 (hereinafter FCCC) accessed 17 September 2010.
6. One hundred and ninety-three states and the European Union are Party to the FCCC.
7. Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) (1998) 37 ILM 22 [hereinafter Kyoto Protocol], http://www.unfccc.int accessed 17 September 2010.
8. One hundred and eighty-nine states and the European Union are party to the Kyoto Protocol.
9. The current commitments require industrialised countries to reduce a basket of green house gases (GHG) 5% below 1990 levels in the commitment period 2008-12, see art 3, Kyoto Protocol. The IPCC recommends 25-40% below 1990 levels by 2020 for industrialized countries.
10. see T Barker and others, Climate Change 2007: Mitigation of Climate Change. Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (CUP, Cambridge 2007) Box 13.7 at 776.
11. Two IPCC authors later recommended 15-30% below baseline for developing countries by 2020.
12. see M den Elzen, 'Emission Reduction Trade-Offs for Meeting Concentration Targets' Bonn Climate Change Talks, Presentation at the IPCC in-session workshop, UNFCCC SBSTA 28, 6 June 2008 accessed 17 September 2010.
13. For status of implementation, see 'Annual Compilation and Accounting Report for Annex B Parties under the Kyoto Protocol' FCCC/KP/CMP/2008/9/Rev.1. The EU-15 is currently 2.7% below 1990 levels, Economies in transition are 30-40% below 1990 levels due to economic restructuring, and other industrialized countries are marginally above 1990 levels.
14. The US as a non-Kyoto Party is not part of the analysis.
15. Decision 2/CP.15 Copenhagen Accord in UNFCCC 'Report of the Conference of Parties on its fifteenth session held in Copenhagen from 7 to 19 December 2009, Addendum, Part Two: Action taken by the Conference of the Parties at its fifteenth session' FCCC/CP/2009/11/Add.1 (30 March 2010) 4. (Hereinafter Copenhagen Accord.).
16. Pledges made under the Copenhagen Accord are likely to lead to a temperature increase of more than 38C this century.
17. see J Rogelj and others, 'Copenhagen Accord Pledges are Paltry' (2010) 464 Nature 1126-8.
18. See L Rajamani, 'The Making and Unmaking of the Copenhagen Accord' (2010) 59 ICLQ 824.
19. For a more optimistic view, see D Bodansky, 'The Copenhagen Conference-A Post-Mortem' (2010) 104 AJIL 230.
20. Human Rights Committee, 'Covenant on Civil and Political Rights General Comment No. 6, The Right to Life' (1982) 30/04/82.
21. IPCC, Climate Change 2007: Impacts, Adaptation and Vulnerability, Contribution of Working Group II to the Fourth Assesment Report (CUP, Cambridge 2007) 18.
22. Human Rights Committee, 'Covenant on Economic, Social and Cultural Rights, General Comment 14,The right to the highest attainable standard of health' (2000) E/C 12/2000/4.
23. World Health Organization, 'Protecting Health from Climate Change' (2008) 6 accessed 17 September 2010.
24. S Humphreys, The Human Rights Dimensions of Climate Change: A Rough Guide (International Council on Human Rights Policy, Geneva 2008) (hereinafter the ICHRP Report).
25. This Report explores in some detail the silence on human rights in climate change discourse, including in p 3, fn 4, to the limited references in the IPCC's Fourth Assessment Report to human rights.
26. As an early influential paper written by developing country activists asks '[c]an we really equate the carbon dioxide guzzling automobiles in Europe and North America or, for that matter, anywhere in the Third World with the methane emissions of draught cattle and rice fields of subsistence farmers in West Bengal or Thailand? Do these people not have a right to live?'.
27. See A Agarwal and S Narain, Global Warming in an Unequal World: A Case of Environmental Colonialism (Centre for Science and Environment, New Delhi 1991) 3.
28. Art 4(7) FCCC.
29. UNFCCC, 'Ideas and Proposals on Paragraph 1 of the Bali Action Plan, Revised Note by the Chair' (10 December 2008) FCCC/AWGLCA/2008/16/Rev.1,12 (the right to development/sustainable development was highlighted in the submissions by, among others, Philippines, South Africa, Argentina, Brazil, India, Chile, China, Ecuador, Ghana, G-77/China, in the context of 'principles for a shared vision').
30. The right to development is deeply disputed. The disagreements (broadly between developing and some developed countries) relate to the definition and scope of the term right to development, the correlative duty this right entails, and the subjects to which this right attaches.
31. The United States, in particular, has consistently rejected the notion of a 'right' to development. In 1986, when the UN General Assembly adopted the Declaration on the Right to Development, the United States cast a negative vote, and a few European countries abstained. At Rio, the US entered an interpretative statement to Principle 3 (right to development) which reads, '[t]he United States does not, by joining consensus on the Rio Declaration, change its long-standing opposition to the so-called 'right to development.' Development is not a right.
32. On the contrary, development is a goal we all hold, which depends for its realization in large part on the promotion and protection of the human rights set out in the Universal Declaration of Human Rights.'
33. See United Nations Conference on Environment and Development, 'Report of the United Nations Conference on Environment and Development' (1992) A/CONF 151/26 (vol IV), 20.
34. See also (1992) A/CONF 151/26/Rev 1 (vol II) Ch III, [16].
35. Preamble, FCCC. The Preamble also specifies that states have the sovereign right to exploit their resources pursuant to their environmental and developmental policies; standards and priorities in developing countries should reflect the developmental context to which they apply; and responses to climate change should be coordinated with social and economic development in order to avoid adverse impacts on development.
36. An argument made at length in L Rajamani, Differential Treatment in International Environmental Law (OUP, Oxford 2006) 238-9.
37. See n 75 below.
38. This position is also held by many other developing countries, including in particular India and China.
39. See eg Ministry of Environment and Forests, Government of India, 'Climate Change Negotiations: India's submissions to the United Nations Framework Convention on Climate Change' (Government of India, New Delhi 2009) 11 http://moef.nic.in/downloads/home/UNFCCC-final.pdf.
40. See M Mwandosya, Survival Emissions: A Perspective from the South on Global Climate (EEST & DUP, Dar es Salaam 2000) 74.
41. Global Commons Institute, 'Contraction and Convergence: A Global Solution for a Global Problem' accessed 17 September 2010.
42. P Baer and others, The Right to Development in a Climate Constrained World (2nd edn, Heinrich Boll Foundation, Berlin 2008) accessed 17 September 2010.
43. W Sachs, 'Climate Change and Human Rights' World Economy and Development in Brief (2007) WDEV Special Report 1/200, 3 accessed 17 September 2010.
44. PM's Intervention on Climate Change at Heiligendamm Meeting of G8 plus 5, Heiligendamm, Germany, 8 June 2007 accessed 17 September 2010.
45. Human Development Report 2007/8, Statistics (n 2).
46. Preamble, arts 3 (4) and 4(1), FCCC.
47. The IPCC noted that 'the level of energy intensities in developing countries today is generally comparable with the range of the now-industrialised countries when they had the same level of per capita GDP'.
48. See IPCC, N Nakicenovic and R Swart (eds), IPCC Special Report on Emissions Scenarios (CUP, Cambridge 2000) s 2.4.10.
49. See eg S Watt-Cloutier, 'Climate Change and Human Rights' (2004) 2 Human Rights Dialogue 26.
50. S Watt-Cloutier and others, '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' (2005) accessed 17 September 2010.
51. OAS Res XXX, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, (1992) OEA/Ser L V/II 82 doc 6 rev 1, 17 [hereinafter American Declaration].
52. Quoted in J George, 'ICC Climate Change Petition Rejected' Nunatsiaq News (Iqaluit 15 December 2006) accessed 17 September 2010.
53. Inter-American Commission on Human Rights Press Release, 'IACHR Announces Webcast of Public Hearings of the 127th Regular Period of Sessions' (26 February 2007) Press
54. Release No 8/07 accessed 17 September 2010.
55. J Harrington, 'Climate Change, Human Rights and the Right to be Cold' (2007) 18 Fordham Envtl L Rev 513 (criticising on procedural and substantive grounds the transformation of the ICC petition into a generalised hearing of a particularised claim against an absent state).
56. The ICC petition spawned a host of American law review articles.
57. See eg H Osofsky, 'The Inuit Petition as a Bridge? Beyond the Dialectics of Climate Change and Indigenous Peoples' Rights' (2007) 31 Am Indian L Rev 675.
58. R Abate, 'Climate Change, the United States and the Impacts of Arctic Melting: A Case Study in the Need for Enforceable international Environmental Human Rights' (2007) 26 Stan Envtl LJ 3.
59. See eg statements made in response to the four-year international study leading to the Arctic Climate Impact Assessment (ACIA): Statement by representatives of Arctic Indigenous Peoples Organizations on the Occasion of the 11th Conference of Parties to the Framework Convention on Climate Change (Montreal, Canada, 2005) accessed 17 September 2010.
60. See UNFCC, 'Promoting Effective Participation in the Convention Process, Note by the Secretariat' 16 April 2004 FCCC/SBI/2004/5 [39]-[47].
61. UN Permanent Forum on Indigenous Issues, 'Report on the second session' (12-23 May 2003) Economic and Social Council, E/2003/43, E/C.19/2003/22, 10.
62. UNFCCC, 'Report of the Subsidiary Body for Implementation on its twentieth session, held at Bonn from16 to 25 June 2004' (UNFCC, Geneva, 2004) FCCC/SBI/2004/10, [105].
63. Permanent Forum on Indigenous Issues, 'Report on the seventh session' (21 April-2 May 2008) Economic and Social Council, E/2008/43, e/c.19/2008/13, 3-4.
64. 'Malé Declaration on the Human Dimension of Global Climate Change' (14 November 2007) accessed 17 September 2010.
65. Human Rights Council, 'Human Rights and Climate Change' (28 March 2008) Resolution 7/23 accessed 17 September 2010.
66. Human Rights Council, 'Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship Between Climate Change and Human Rights' (15 January 2009). A/HRC/10/61 accessed 4 October 2010.
67. Human Rights Council, 'Human rights and Climate Change' (25 March 2009) Resolution 10/4
68. General Assembly of the Organisation of American States, 'Human Rights and Climate Change in the Americas' Resolution 2429 (4 June 2008) AG/RES 2429 (XXXVIII-O/08)
69. Centre for Human Rights and Environment Press Release, 'OAS Approves Human Rights and Climate Change Resolution' (4 June 2008) Medellín Colombia
70. This refers to human rights approaches generally - the right to development is seen as integral to the discourse, and numerous developing countries have raised it in their submissions
71. See above (n 18). Maldives does not raise human rights in its submission to the FCCC.
72. See UNFCCC, 'Views regarding the work programme of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Submissions from Parties' (3 March 2008) FCCC/AWGLCA/2008/MISC 1,31
73. All submissions of Parties to the AWG-LCA are available at accessed 17 September 2010.
74. In addition to submissions from Parties, non-state actors such as the International Council on Human Rights Policy, Oxfam, and the former High Commissioner for Human Rights, among others, have in press conferences and other public events, argued for a rights orientation to current climate policy. Above (n 22).
75. OXFAM, 'Climate Wrongs and Human Rights: Putting People at the Heart of Climate Change' (September 2008) accessed 17 September 2010.
76. M Robinson in 'Rights focus sought over climate change' BBC News (11 December 2006) accessed 17 September 2010.
77. UNFCCC Conference of the Parties, 'Report of the Conference of the Parties on its thirteenth session, held in Bali from 3 to 15 December 2007, Addendum, Part Two: Action taken by the Conference of the Parties at its thirteenth session' (14 March 2008) FCCC/CP/2007/6/Add 1, 3
78. UNFCCC AWG-LCA, 'Ideas and Proposals on the Elements Contained in Paragraph 1 of the Bali Action Plan, Submissions from Parties' (10 December 2008) FCCC/AWGLCA/2008/MISC 5/Add 2 Part I, 111
79. UNFCCC AWG-LCA, 'Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan, Submissions from Parties' (27 October 2008) FCCC/AWGLCA/2008/MISC 5, 13
80. UNFCCC AWG-LCA, 'Negotiating Text' (19 May 2009) FCCC/AWGLCA/2009/8, 11 [22]
81. Adaptation projects, such as infrastructure development initiatives on community lands, have the potential, unless appropriately designed, to adversely impact the rights of local communities and indigenous peoples in relation to these lands
82. Internationally designed forest policies implemented in a top-down fashion have the potential, unless appropriately designed, to adversely impact the rights of local communities and indigenous people in relation to participatory decision-making and benefit-sharing
83. UNFCCC AWG-LCA, 'Revised Negotiating Text' (22 June 2009) FCCC/AWGLCA/2009/Inf 1, 8
84. ALBA emerged as an 'alternative to the neo liberal model' which has, they believe, deepened the structural asymmetries to favour the accumulation of wealth in privileged minorities; for further details, http://www.alianzabolivariana.org/.
85. Early versions of the Shared Vision text, December 2009, on file with the author
86. Decision 1/CP 15, Outcome of the work of the AWG-LCA under the Convention, in Report of the Conference of Parties on its 15th session held in Copenhagen from 7 to 19 December 2009, Addendum, Part Two: Action taken by the Conference of the Parties at its fifteenth session, FCCC/CP/2009/11/Add.1 (30 March 2010) at 3.
87. Decision 1/CMP 5, Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol, in Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its fifth session, held in Copenhagen from 7 to 19 December 2009, Addendum, Part Two: Action taken by the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol at its fifth session, FCCC/KP/CMP/2009/21/Add 1 (30 March 2010) at 3
88. See n 12
89. See n 69 (containing a full set of draft decisions)
90. Draft decision/CP 15, Policy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries
91. See Submission by the Plurinational State of Bolivia to the AWG-LCA, 'Additional views on which the Chair may draw in preparing text to facilitate negotiations among Parties, Submissions from Parties' (30 April 2010) FCCC/AWGLCA/2010/MISC 2, 14-39
92. See for further information: ECOSOC Permanent Forum on Indigenous Issues, 'Study on the need to recognize and respect the rights of Mother Earth' (15 January 2010) E/C 19/2010/4
93. See L Rajamani, 'Addressing the Post-Kyoto Stress Disorder: Reflections on the Emerging Legal Architecture of the Climate Regime' (2009) 58 ICLQ 803-34 for a detailed analysis of the various legal form options
94. FCCC/CP/2009/11/Add 1 (n 69)
95. See J Brunneée, 'Coping with Consent: Law-Making under Multilateral Environmental Agreements' (2002) 15 LJIL 1, 32 for an excellent analysis of the legal status of COP decisions
96. See eg M al Attar and R Miller, 'Towards an Emancipatory International Law: The Bolivarian Reconstruction' (2010) 31 ThirdWorld Quart 347
97. Rajamani (n 14)
98. FCCC/AWCLCA/2010/MISC 2 (n 75) 32
99. Parties have yet to agree on Rule 42 (Voting), of the draft Rules of Procedure, which have been applied, with the exception of Rule 42, since 1996. In the absence of agreement, decisions are taken by consensus.
100. See Draft Rules of Procedure of the Conference of the Parties and its Subsidiary Bodies, (22 May 1996) FCCC/CP/1996/2
101. See: UNFCCC AWG-LCA, 'Text to facilitate negotiations among Parties, Note by the Chair' (9 July 2010) FCCC/AWGLCA/2010/8
102. UNFCCC Ad HocWorking Group, 'Text to facilitate negotiations among Parties, Note by the Chair' (17 May 2010) FCCC/AWGLCA/2010/6
103. UNFCCC AWG-LCA,'Negotiating Text, (13 August 2010) FCCC/AWGLCA/2010/14
104. See A Gillespie, International Environmental Law and Policy (OUP, Oxford 1997) 15-8 (arguing that anthropocentrism, despite a few recent developments that buck the trend, remains central to contemporary international environmental policy)
105. See eg UNGA Res 2398 (XXII) (1968)
106. Preamble, Declaration of the United Nations Conference on the Human Environment, A/CONF 48/14/Rev 1 (1972), reprinted in (1972) 11 ILM 1416 Hague Declaration on the Environment, 1989, reprinted in (1990) 28 ILM 1308
107. UNGA Res 45/94 (1990)
108. See eg art 1, Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) reprinted in (1999) 38 ILM 517 (hereinafter 'Aarhus Convention')
109. See eg art 6, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), reprinted in (1967) 6 ILM 368 (hereinafter ICCPR); art 2, European Convention on Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 222; art 4 American Convention on Human Rights (adopted 1969, entered into force 18 July 1978) reprinted in (1970) 9 ILM 673 (where an environmental right might be said to flow from the right to life)
110. see art 8, European Convention, (where an environmental right might be said to flow from the right to private and family life)
111. See generally R Churchill, 'Environmental Rights in Existing Human Rights Treaties' in A Boyle and M Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon Press, Oxford 1996) 89
112. See eg arts 2, 4, 7 and 15, Convention Concerning Indigenous and Tribal Peoples in Independent Countries (adopted 27 June 1989) reprinted in (1989) 28 ILM 1382; art 24, African Charter on Human and Peoples' Rights, (27 June 1981, entered into force 21 October 1986) reprinted in (1982) 21 ILM 58 (hereinafter African Charter); and art 11, Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, (adopted 17 November 1988, entered into force 16 November 1999) reprinted in (1989) 28 ILM 156 (also known as and hereinafter the San Salvador Protocol)
113. See eg s 24, Constitution of the Republic of South Africa, 1996
114. See generally F Ksentini, 'Human Rights and the Environment, Final Report' (1994) E CN 4/Sub 2/1994/9, Annex III, 81-9
115. The Report recommends a list of 'draft principles on human rights and the environment.'
116. An explicit substantive human right relating to the environment can be found in the African Charter and the San Salvador Protocol
117. A general reference to the environment in the context of sustainable development is to be found in the Treaty for the Establishment of the East African Community, (adopted 19 November 1996, entered into force 7 July 2000) accessed 17 September 2010.
118. African Charter (n 101) art 24
119. Decision of the African Commission on Human and People's Rights, Communication 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights/Nigeria, ACHPR/COMM/A004/1 (27 May 2002)
120. Decision of the African Commission on Human and People's Rights, Communication 276/2003, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Coucil v Kenya (17 February 2010)
121. Ksentini (n 102) 59
122. In the Gabcikovo Nagymoros Case, the Separate Opinion of Judge Weeramantry recognised the protection of the environment as a 'sine qua non for numerous human rights such as right to health and the right to life itself' Gabcíkovo Nagymoros (Hungary/Slovakia) (1998) 37 ILM 162, 206 (Separate Opinion of Judge Weeramantry)
123. Lopez Ostra v Spain (1994) 20 EHRR 277
124. See generally P Sands, 'Human Rights, Environment and the Lopez Ostra Case: Context and Consequences' (1996) 6 EHRLR 597, 618
125. See eg Guerra v Italy (1998) 26 EHRR 357; Taskin vTurkey (2006) 42 EHHR 50; Moreno Gomez v Spain (2005) 41 EHRR 40; Fadeyeva v Russia (2007) 45 EHRR 10; Tatar v Romania (App no 67021/01) 27 January 2009
126. Leon and Agnieszka Kania v Poland (App no 12605/03) 21 July 2009
127. Olujić v Croatia (App no 22330/05) 5 February 2009
128. See also cases balancing the societal interest in economic development with the human rights of particular claimants, Rayner and Powell v UK (1990) 12 EHRR 355; Hatton v UK (2002) 34 EHRR 1
129. Kyrtatos v Greece (2003) 36 EHRR 242 [52]
130. See eg Sara and others v Finland, Communication No 431/1990, (1994) UN Doc CCPR/C/50/D/431/1990
131. Chief Bernard Ominayak and Lubicon Lake Band v Canada, Communication No 167/1984, CCPR/C/38/D/167/1984
132. See Organization of American States, Inter-Am Commission on HR, 'Report on the Situation of Human Rights in Ecuador' (24 April 1997) OEA/Ser L/V/II 96, Doc 10, Rev 1
133. Case of the Mayagna (Sumo) Indigenous Community of Awas Tingni, Judgment, (31 August 2001) Inter-Am Ct HR (Ser C) No 79
134. Organization of American States, Inter-Am. Commission on HR, Mossville Environmental Action Now v United States, Report no 43/10, Petition no 242/05, Admissibility, OEA/Ser LV/II 138 (17 March 2010) 5.
135. See A Boyle, 'The Role of International Human Rights Law in the Protection of the Environment' in A Boyle and M Anderson (eds), Human Rights Approaches to Environmental Protection (OUP, Oxford 1996) 43
136. D McGoldrick, 'Sustainable Development and Human Rights: An Integrated Conception' (1996) 45 ICLQ 796, 811
137. Copenhagen Accord, 2009 (n 12) [1]
138. See World Bank, 'World Bank Development Report 2010: Development and Climate Change' (2010) 5
139. C Symon and others (eds), Arctic Climate Impact Assessment Report (2005) http://www.acia.uaf.edu/pages/scientific.html
140. C Redgwell, 'Life, the Universe and Everything: A Critique of Anthropocentric Rights' in A Boyle and M Anderson (eds), Human Rights Approaches to Environmental Protection (OUP, Oxford 1996) 87
141. The existence of these rights is not in dispute; however, there is neither a widely accepted list of which rights constitute 'core rights' nor an agreement on whether, to the extent that they exist, they should be drawn from civil and political rights alone or extend to economic and social rights as well. The notion of core rights also flies in the face of the indivisibility thesis.
142. However influential scholars such as Shue argue from first principles that there are some 'basic rights' that cut across the divide between civil and political rights and economic and social rights, and extend to negative and positive aspects of these rights. Shue argues for an open-ended category of basic rights that includes in the first instance the rights to physical security, subsistence and political participation.
143. See H Shue, Basic Rights, Subsistence, Affluence and US Foreign Policy (2nd edn, Princeton UP, Princeton 1996)
144. J Nickel, Making Sense of Human Rights (2nd edn, Blackwell Publishing, Oxford 2007) 61-5
145. The ICHRP Report documents these in thoughtful detail
146. For an exploration of specific rights that will be at risk through climate impacts, see C Bals and others, 'Climate Change, Food Security and the Right to Adequate Food' (Diakonisches Werk der EKD Stuttgart e V 2008)
147. OXFAM, 'ClimateWrongs and Human Rights: Putting People at the Heart of Climate Change' (September 2008)
148. P Baer and others, 'The Right to Development in a Climate Constrained World' (Heinrich Böll Foundation, Berlin 2008)
149. World Health Organization, 'Protecting Health from Climate Change' (2008)
150. B Saul and J McAdam, 'An Insecure Climate for Human Security? Climate-Induced Displacement and International Law' Legal Studies Research Paper 08/131 (Sydney 2008)
151. J Knox, 'Climate Change as a Global Threat to Human Rights, UN Consultation on the Relationship between Climate Change and Human Rights' (Geneva, 22 October 2008)
152. Status of ratifications of core human rights treaties accessed 17 September 2010.
153. For a discussion of the distinction between the duties to respect, protect and fulfil in the climate change context, see D Bodansky, 'Climate Change and Human Rights: Unpacking the Issues' (2010) 38 Ga J Int'l & Comp L 511
154. Barcelona Traction Light and Power Company Ltd, Second Phase [1970] ICJ Rep 3
155. Art 26, Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) reprinted in 8 ILM 1969
156. lso referred to in Human Rights Committee, Covenant on Civil and Political Rights, 'General Comment 31' CCPR/C/21/Rev 1/Add 13
157. Human Rights Committee, 'Covenant on Civil and Political Rights, General Comment 26, Continuity of Obligations' (1997) CCPR/C/21/Rev 1/Add 8/Rev 1
158. H Steiner and P Alston, International Human Rights in Context: Law, Politics and Morals (2nd edn, OUP, Oxford 2000) 268-300
159. Human Rights Committee, 'Covenant on Economic, Social and Cultural Rights, General Comment 9,The Domestic Application of the Covenant' E/C 12/1998/24 (1998)
160. See generally, S Fredman, Human Rights Transformed: Positive Duties and Positive Rights (OUP, Oxford 2008)
161. Shue (n124)
162. There are 166 Parties to the ICCPR, 160 to the ICESCR, 194 to the FCCC and 190 to the Kyoto Protocol
163. Bolivia has proposed that the REDD provisions operate within the UN Declaration on the Rights of Indigenous Peoples, see FCCC/AWGLCA/2008/16/Rev 1 (n 25)
164. See FCCC/AWGLCA/2010/14 (n 89)
165. See Preamble, Universal Declaration on Human Rights, UNGA Res 217A (1948)
166. Preamble, International Covenant on Economic, Social and Cultural Rights, 1966
167. Preamble, ICCPR; Preamble African Charter; and, art 1(1) Vienna Declaration and Programme of Action (adopted 25 June 1993) reprinted in (1993) 32 ILM 1661
168. M Koskenniemi, 'The Preamble of the Universal Declaration on Human Rights' in G Alfredsson and A Eide (eds), The Universal Declaration of Human Rights: A Common Standard of Achievement (Kluwer Law International, The Hague 1999) 32
169. C Douzinas, Human Rights and the Empire (Routledge-Cavendish, New York 2007) 9-10
170. T Pogge, 'Recognized and Violated by International Law: the Human Rights of the Global Poor' (2005) 18 LJIL 717
171. See eg A Woodcock, 'Jacques Maritain, Natural Law and the Universal Declaration of Human Rights' (2006) 8 J Hist Intl L 245
172. Humphreys (n 22) 79
173. FCCC/AWGLCA/2008/MISC 5 (n 61) 14
174. Preamble, Charter of the United Nations (26 June 1945, entered into force 24 October 1945) 1 UNTS XVI
175. Art 2, FCCC
176. Preamble, Kyoto Protocol
177. See Bernstein and others, 'Climate Change 2007: Synthesis Report' (CUP, Cambridge 2007) 64
178. See also Australia's submissions to the AWG-LCA, 'Views regarding the work programme of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Submissions from Parties' (20 March 2008) FCCC/AWGLCA/2008/MISC 1/Add 2, 3 (noting that 'social and economic conditions (including access to financial and investment flows) and other factors will be relevant' to such a value judgment, 'as will be the availability of affordable low emissions technologies')
179. Sachs (n 33) 3
180. Symon and others (n 122)
181. Sachs (n 33) 7
182. Bodansky (n 127)
183. See art 2, Proposed Protocol to the Convention submitted by Grenada for adoption at the sixteenth session of the Conference of the Parties, Submission by Grenada on behalf of the Alliance of Small Island States, in FCCC/CP/2010/3 (2 June 2010)
184. See Additional views on which the Chair may draw in preparing text to facilitate negotiations among Parties, Submission by Grenada on behalf of the Alliance of Small Island States (30 April 2010) FCCC/CP/2010/Misc 2 61
185. This subsection draws inspiration from S Caney, 'Climate Change, Human Rights and Moral Thresholds' in S Humphreys (ed), Human Rights and Climate Change (CUP, Cambridge 2009) 69
186. S Caney, 'Human Rights, Climate Change and Discounting' (2008) 17 Envtl Politics 536
187. S Caney, 'Global Justice, Rights and Climate Change' (2006) 19 Canadian J L & Jurisprudence 255
188. S Caney, 'Cosmopolitan Justice, Responsibility and Global Climate Change' (2005) 18 LJIL 747
189. Shue (n 124)
190. H Shue, 'Subsistence Emissions and Luxury Emissions' (1993) 15 Law & Pol'y 39
191. H Shue, 'The Unavoidability of Justice' in A Hurrell and B Kingsbury (eds), The International Politics of the Environment (Clarendon Press, Oxford 1992) 397
192. Mwandosya (n 30) 74.
193. Caney (n 159).
194. Shue (n 124) 18.
195. Sachs (n 33).
196. See eg Gbemre v Shell Petroleum Development Co Nigeria Ltd (2005) Federal High Court of Nigeria, Benin Division, Judgement of 14 November 2005, Suit No: FHC/B/CS/53/05.
197. Massachusetts v EPA (2006) WL 558353 (US) (No 05-1120).
198. Native Village of Kivalina and City of Kivalina v Exxon Mobil (2009) 663 F Supp 2d 863 (ND Cal).
199. See the Inuit case (n 39).
200. See generally for scholarly efforts to address climate change damage in international law, C Voigt, 'State Responsibility for Climate Change Damages' (2008) 77 Nordic J Intl L 1.
201. R Verheyen, Climate Change and International Law: Prevention Duties and State Responsibility (Martinus Nijhoff Publishers, Leiden 2005).
202. Gbemre (n 166).
203. See D Hunter, 'The Implications of Climate Change Litigation for International Environmental Law Making' in H Osofsky and W Burns (eds), Adjudicating Climate Control: Sub-National, National And Supra-National Approaches (CUP, Cambridge 2008) and references contained therein.
204. UNDP, 'Human Development Report 2000: Human Rights and Human Development' (2000) accessed 17 September 2010, 25.
205. Prodipto Ghosh, quoted in R Chengappa, 'Apocalypse Now' India Today (23 April 2007) (Ghosh is a former Indian negotiator).
206. India's 700 million rural population depends directly on climate-sensitive sectors (agriculture, forests and fisheries) and natural resources for their subsistence.
207. See J Sathaye and others, 'Climate Change, Sustainable Development and India: Global and National Concerns' (2006) 90 Current Science 314, 318.
208. Office of the Press Secretary of the White House, Text Of A Letter From The President To Senators Hagel, Helms, Craig, and Roberts 1 (13 March 2001).
209. See Submission by the US in Additional Views (n 158) 79.
210. See also earlier submission FCCC/AWGLCA/2008/MISC 5 (27 October 2008) 107.
211. Art 3(1), FCCC.
212. B Kellersmann, Die Gemeinsame, Aber Differenzierte Verantwortlichkeit Von Industriestaaten Und Entwicklungsländern Für Den Schutz Der Globalen Umwelt (English Summary) (Springer Verlag, Berlin 2000) 335.
213. International Law Association, 'International Committee on Legal Aspects of Sustainable Development, Report of the Sixty-Sixth Conference' (ILA, London 1995) 116.
214. Rajamani (n 28) 158-62.
215. Differentiation in certain human rights treaties, although carefully circumscribed, does exist. First, States may and often claim differentiation for themselves through reservations.
216. Second, treaties may use discretionary language such as 'to the maximum of its available resources' (art 2, ICESCR), permitting states leeway in implementation, and therefore recognizing differentiation in implementation.
217. States are also given an opportunity under the ICESCR, ICCPR, CEDAWand the Convention on the Rights of the Child to indicate in their reports to the relevant treaty bodies the 'factors and difficulties' affecting implementation.
218. Among the 'factors and difficulties' most often deployed are economic difficulties, political transition and instability, and traditional practices and customs.
219. See E Brems, Human Rights: Universality and Diversity (Martinus Nijhoff, The Hague 2001) 346-52.
220. References to CBDR are contained in submissions by the Philippines, Rwanda, United States, Pakistan, Australia, Japan, Argentina, Brazil, China, New Zealand, Panama on behalf of Costa Rica, El Salvador, Honduras, Nicaragua and Panama, Singapore, Switzerland, AOSIS, Chile, China, EC and its member States, G77 and China, Indonesia, Pakistan, Venezuela, African Group, Ecuador et al and Ghana.
221. See n 25 at 12.
222. The CBDR principle, in particular as defined in Rio Principle 7, recognises greater responsibility for developed countries in part due to 'the pressures their societies place on the global environment'.
223. Principle 16, Rio Declaration, 1992 reads: '[n]ational authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.'
224. See also OECD Recommendation, 'Environment and Economics: Guiding Principles Concerning International Economic Aspects of Environmental Policies' (1972) C (72) 128.
225. See generally P Sands, Principles of International Environmental Law (2nd edn, CUP, Cambridge 2003) 279-81.
226. The ICJ in The Legality of the Threat or Use of NuclearWeapons Case held: '[t]he existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.'
227. See The Legality of theThreat or Use of NuclearWeapons (Advisory Opinion) [1996] ICJ Rep 241 [29].
228. Words used are 'should endeavor to promote'and 'in principle'.
229. DWirth, 'The Rio Declaration on Environment and Development: Two Steps Forward and One Back, or Vice Versa?' (1995) 29 Ga L Rev 599, 640-5.
230. Pakistan, Switzerland, AOSIS and Ghana, see FCCC/AWGLCA/2008/16/Rev 1 (n 25) 19.
231. 2 emissions surpassed those of the USA by 8%.
232. 2 emissions.
233. USA in second position accessed 17 September 2010.
234. For a thoughtful analysis of the Polluter Pays Principle, see S Caney, 'Climate Change and the Duties of the Advantaged' (2010) 13 Crit Rev Intl Soc & Pol Phil 203, 212.
235. There are diverging views on whether precaution is an approach or a principle.
236. Brazil, AOSIS, Micronesia and Venezuela, FCCC/AWGLCA/2008/16/Rev (n 25) 12.
237. See eg United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995, reprinted in (1995) 34 ILM 1542.
238. The Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 2000, reprinted in 39 ILM 1027; Convention on Biological Diversity, 1992 and the FCCC.
239. See also references to 'prudence and caution' by the International Tribunal on the Law of the Sea in Southern Bluefin Tuna Cases (New Zealand v Japan, Australia v Japan), Provisional Measures, ITLOS, Order of 27 August 1999, (1999) 38 ILM 162 [77].
240. The Mox Plant Case (Ireland v United Kingdom), Provisional Measures, ITLOS, Order of 3 December 2001, (2002) 41 ILM 405 [84].
241. See for references O McIntyre and T Mosedale, 'The Precautionary Principle as a Norm of Customary International Law' (1997) 9 JEL 221.
242. See for an extensive list of references N de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (OUP, Oxford 2002) 90.
243. See generally C Sunstein, Laws of Fear: Beyond the Precautionary Principle (CUP, Cambridge 2005).
244. See European Communities, 'Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291, WT/DS292, WT/DS293' Panel Report (29 September 2006) [7.89] (noting, whilst side-stepping the question, that the question of whether the precautionary principle is a general principle of international law is a 'complex'and 'unsettled' one).
245. Communication from the Commission on the Precautionary Principle, COM (2000)1, 02/02/2000.
246. The Council adopted a resolution endorsing the broad lines of the Commission's communication in December 2000.
247. It acknowledges however that the precautionary principle must be submitted to the principles of proportionality and non-discrimination, to cost-benefit analysis and to review.
248. Caney (n 160).
249. At the unexceptionable end of the spectrum the principle is nothing more than a reflection of the age-old adage better safe than sorry. At the more controversial end of the spectrum an application of the precautionary principle could require that a margin of safety be built into all decision-making.
250. See B Lomborg, The Skeptical Environmentalist (CUP, Cambridge 2001) 348.
251. For a persuasive account see H Shue, 'Deadly Delays, Saving Opportunities: Creating a More Dangerous World?' in S Gardiner and others (eds), Climate Ethics: Essential Readings (OUP, Oxford 2010) 146, 155-8.
252. See generally A Boyle, 'Principle of Cooperation: the Environment' in V Lowe and C Warbrick (eds), United Nations and the Principles of International Law (Routledge, London 1994) 120.
253. Preamble, FCCC.
254. FCCC art 3(5).
255. Human Rights Committee, 'Covenant on Economic, Social and Cultural Rights, General Comment 3' E/1991/23.
256. J Knox, 'Climate Change as a Global Threat to Human Rights' UN Consultation on the Relationship between Climate Change and Human Rights, Geneva, Switzerland, 22 October 2008.
257. FCCC art 4(8).
258. See FCCC/AWGLCA/2008/16/Rev (n 25).
259. See E/1991/23 (n 214).
260. In the environmental field these are reflected in Principle 10 of the 1992 Rio Declaration on Environment and Development, and in the Aarhus Convention.
261. See Chapter 4 of the ICHRP Report (n 22).
262. Aarhus Convention, art 5.
263. See n 45-49.
264. Status of ratifications accessed 17 September 2010.
265. There are 44 Parties to the Convention.
266. See also ICHRP Report (n 22) 50.
267. Harrington (n 43) 513.
268. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep12.
269. J Zielger (ECOSOC, UNCHR) 'Report Submitted by the Special Rapporteur on the Right to Food in Accordance with Commission on Human Rights Resolution 2002/25' (2003) E/CN 4/2003/54 (2003) (by Jean Zielger) [29].
270. See generally S Narula, 'The Right to Food: Holding Global Actors Accountable under International Law' (2006) 44 Columbia J Transnatl L 691.
271. Human Rights Committee, 'Covenant on Economic, Social and Cultural Rights, General Comment 3,The Nature of State Parties Obligations' (art 2(1)), E/1991/3 (1990).
272. For an overview of adaptation activities under the climate treaties, see http://unfccc.int/adaptation/items/
273. FCCC Technical Paper, 'Investment and Financial Flows to Address Climate Change' (26 November 2008) FCCC/TP/2008/7,8, accessed 17 September 2010.
274. A levy is already charged on the Clean Development Mechanism. At COP-14, Poznan, December 2008, an effort was made to extend this to the other market mechanisms, but industrialised countries refused to accept this.
275. Copenhagen Accord, 2009 (n 12) [8].
276. FCCC/AWGLCA/2008/MISC 5 (n 61) 11.
277. B Crouch, 'Tiny Tuvalu in Save Us Plea over Rising Seas' Sunday Mail (5 October 2008).
278. A Revkin, 'Maldives Considers Buying Dry Land if Sea Level Rises' New York Times (NewYork10 November 2008).
279. B Saul and J McAdam, 'An Insecure Climate for Human Security? Climate-Induced Displacement and International Law' Legal Studies Research Paper 08/131 (Sydney, October 2008).