Climate change and international human rights law

International Law in the Era of Climate Change

Volumn , Issue , 2012, Pages 29-57

  Humphreys, Stephen ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

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[No Author keywords available]

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EID: 84881876163     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.4337/9781781006085.00012     Document Type: Chapter

References (97)

1. D. Bodansky, 'Climate Change and Human Rights: Unpacking the Issues' (2010) 38(3) Georgia Journal of International and Comparative Law 511
2. Columbia Law School, Human Rights Institute, Climate Change And The Right To Food: A Comprehensive Study (Berlin: Heinrich Böll Foundation 2009)
3. E. Cameron, 'The Human Dimension of Global Climate Change' (2009) 5(1) HastingsWest-Northwest Journal of Environmental Law and Policy 1
4. Mac Darrow, S. McInerney-Lankford, and L. Rajamani, Human Rights and Climate Change: A Review of the International Legal Dimensions (Washington D.C.: World Bank 2011)
5. J. Hohmann, 'Igloo as Icon: A Human Rights Approach to Climate Change for the Inuit?' (2009) 18 (3) Transnational Law and Contemporary Problems 295
6. International Council on Human Rights Policy [ICHRP], Climate Change and Human Rights: A Rough Guide (Geneva: ICHRP 2008)
7. J.H. Knox, 'Climate Change and Human Rights Law', (2009) 50(2) Virginia Journal of International Law 163
8. J.H. Knox, 'Linking Human Rights and Climate Change at the United Nations', (2009) 33(4) Harvard Environmental Law Review 477
9. M. Limon, 'Human Rights and Climate Change: Constructing a Case for Political Action' (2009) 33(4) Harvard Environmental Law Review 439
10. S. McInerney-Lankford, 'Climate Change and Human Rights: An Introduction to Legal Issues' (2009) 33(4) Harvard Environmental Law Review 437
11. A. Parsons, 'Human Rights and Climate Change: Shifting the Burden to the State?' (2009) 9(1) Sustainable Development Law and Policy 22
12. S. Humphreys (ed.), Human Rights and Climate Change (Cambridge: Cambridge University Press 2009
13. Report of the Office of the High Commissioner for Human Rights on the relationship betweenclimate change and human rights UN Doc. A/HRC/10/61 (15 January 2009) and the OHCHR website, http://www2.ohchr.org/english/issues/climatechange/ (last accessed 19 April 2012).
14. S. Humphreys, 'Introduction: Human Rights and Climate Change' in Humphreys (ed.), Human Rights and Climate Change above n.1.
15. J. Waldron (ed.), Theories of Rights (Oxford: Oxford University Press 1984
16. R. Dworkin, 'Rights as Trumps' 153-67
17. A. Gewirth, 'Are There any Absolute Rights?' 81-109
18. J. Mackie, 'Can There be a Rights-Based Moral Theory?' 168-81.While related to the familiar distinction between deontological and consequentialist ethics, I am here rather referring to the purported origin of human rights as residing in either (i) the human person or (ii) the positive law. The distinction is therefore closer to the jurisprudential distinction between natural and positive law.
19. International Covenant on Civil and Political Rights (ICCPR), Article 2.1.
20. Knox, 'Linking Human Rights and Climate Change at the United Nations' above n.1
21. Caney, 'Climate Change, Human Rights and Moral Thresholds' in Humphreys (ed.), Human Rights and Climate Change above n.1.
22. Knox, 'Climate Change and Human Rights Law', above n. 1
23. Limon, 'Human Rights and Climate Change: Constructing a Case for Political Action' above n. 1.
24. M.L. Parry, O.F. Canziani, J.P. Palutikof, P.J. van der Linden and C.E. Hanson (eds), Technical Summary. Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution ofWorking Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press 2007) 44-47
25. N. Stern, Stern Review on the Economics of Climate Change (London: HM Treasury Office of Climate Change 2006) (Stern Review) 62-76, 102-105.A compilation of predicted human rights-related harms from both the IPCC AR4 and the Stern Review is given in Appendix II to ICHRP 2008. A Fifth Assessment Report is due in 2014: see (last accessed 19 April 2012). http://www.ipcc.ch/pdf/ar5/ar5-outline-compilation.pdf
26. OHCHR Press Release, 'Cancun Climate Summit: UN food expert calls for a "Green Marshall Plan for Agriculture"' (29 November), claiming that by 2080, '600 million additional people could be at risk of hunger as a direct result of climate change'. 2010
27. Öneryildiz v Turkey, Application no. 48939/99, Judgment of 30 November 2004.
28. The Court also found a violation of Protocol 1, Article 1 of the Convention: the right to 'peaceful possession of one's properties'.
29. Knox, 'Climate Change and Human Rights Law' above n. 1.
30. The Inuit Circumpolar Conference 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 (7 December 2005), available at (last accessed 19 April 2012). http://www.earthjustice.org/library/legal_docs/petition-to-the-inter-american-commission-on-human-rightson-behalf-of-the-inuit-circumpolar-conference.pdf
31. P. Hunt and R. Khosla, 'Climate Change and the Right to the Highest Attainable Standard of Health' in S. Humphreys (ed.) Human Rights and Climate Change, above n.1; on food
32. The website of the UN Special Rapporteur on the right to adequate food (www.srfood.org); on water, OHCHR, 'Climate Change and the Human Rights to Water and Sanitation' Report of the Independent Expert on the Human Rights to Water and Adequate Sanitation, (2010) available at http://www2.ohchr.org/english/issues/water/iexpert/docs/Climate_Change_Right_Water_Sanitation.pdf.(last accessed 19 April 2012).
33. H.J. Steiner, P. Alston, and R. Goodman, International Human Rights in Context: Law, Politics, Morals (3rd Edition, Oxford: Oxford University Press 2007
34. World Food Programme, 2010 Annual Report: Fighting Hunger Worldwide, (Rome:World Food Programme) 4.
35. J. Mutter and K.M. Barnard, 'Climate Change, Evolution of Rights and Climate Change, above n. 1
36. Caney, 'Climate Change, Human Rights and Moral Thresholds' above n. 6.
37. T. Pogge, 'Severe Poverty as a Violation of Negative Duties,' (2005) 19(1) Ethics and International Affairs 55-84.
38. López Ostra v Spain, Application no. 16798/90, Judgment of 9 December 1994.
39. Although Article 8 is unique to the ECHR, the American Convention on Human Rights includes rights to privacy (Art. 11) and property (Art. 21); the African Charter on Human and Peoples' Rights likewise includes a right to property (Art. 14) and states, under Article 18 that the family 'shall be protected by the State which shall take care of its physical health and moral.'
40. R. Rayfuse, 'W(h)ither Tuvalu? Oceans Governance and Disappearing States', Ocean Policy Research Foundation Proceedings of the International Symposium on Islands and Oceans 91-93 (March 2009) and [2009] UNSWLRS 9 available at http://law.bepress.com.unswwps/flrps09/art9 (last accessed 19 April 2012)
41. 'International Law and Disappearing States: Utilising Maritime Entitlements to Overcome the Statehood Dilemma' [2010]UNSWLRS 52 available at http://ssrn.com/abstract=1704835 (last accessed 19 April 2012). See also Chapter 10 in this volume.
42. T. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge: Polity Press, 2002
43. 'Severe Poverty as a Violation of Negative Duties' (2005) 19(1) Ethics and International Affairs 55-84
44. M. Salomon, Global Responsibility for Human Rights: World Poverty and the Development of International Law (Oxford: Oxford University Press 2007)
45. M. Gibney and S. Skogly (eds) Universal Human Rights and Extraterritorial Obligations (Philadelphia: University of Pennsylvania Press 2010)
46. M. Langford, M. Scheinin,W.Vandenhole, andW. van Genugten (eds), Global Justice, State Duties: The Extra-Territorial Scope of Economic, Social and Cultural Rights in International Law (Cambridge: Cambridge University Press, forthcoming 2012).
47. This appears to have been a key cause of the 2008 food crisis. See OHCHR, Summary of the report on the global food crisis, presented on 10 September 2008 at the 9th session of the Human Rights Council, in accordance with resolution S-7/1, adopted by the Human Rights Council on 22 May 2008 at its Special Session on the global food crisis. UN Doc. A/HRC/9/23, 8 September 2008.
48. R.H.Wade, 'Is globalization reducing poverty and inequality?' (2004) 32 (4) World Development 567-589.
49. P. Collier, The Bottom Billion (Oxford: Oxford University Press 2007
50. T. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms, above n. 32.
51. SeeWade, 'Is globalisation reducing poverty and inequality?', above n. 34.
52. P. Baer, T. Athanasiou, S. Kartha, and E. Kemp-Benedict, The Greenhouse Development Rights Framework, 2nd revised edition (Berlin: Heinrich Böll Foundation 2008
53. In 2008, global per capita emissions from fuel usage stood at about 4.5 tonnes (t) of CO2. OECD countries used more than twice this amount (10.61t per person) on average. Countries of the Middle East and former Soviet Union also used more than the global average. However, the countries of Africa used very much less on average (0.9t/per capita), as did those of Latin America (2.31t) and Asia excluding China (1.38t; China used about 4.9t per capita). On any account it is difficult to see how the governments of these latter countries could be held responsible for harms experienced due to climate change within their own borders. See International Energy Agency, KeyWorld Energy Statistics 2010 (Paris: OECD/IEA 2010), 49.
54. Globally, greenhouse gas emissions from fuel use were estimated to have increased by at least 40 per cent since 1990 by 2008. The increase came in the mainfrom non-parties to the Kyoto Protocol. Although Kyoto parties as a whole reduced emissions by almost 10 per cent during this period, certain countries (notably Canada and Australia) saw significant increases. See International Energy Agency, CO2 Emissions from Fuel Combustion, Highlights, 2010 edition (Paris: OECD/IEA 2010), 13. By mid-2011, GHG emissions were reported to have increased a further 5 per cent on 2008 levels. John Vidal, 'Carbon levels hit new peak', The Guardian, 31 May 2011. There are many further complexities to be considered here, of course, before state responsibility might be assessed in any given case. See Chapter 13 in this volume.
55. ICCPR, Article 2.1. The relevant wording in the ECHR (Article 1) is 'within its jurisdiction', a formulation that has given rise to extensive controversy over its potential extraterritorial extension.
56. J. Cerone, 'Human Dignity in the Line of Fire: The Application of International Human Rights Law During Armed Conflict, Occupation, and Peace Operations' (2006) 39(4) Vanderbilt Journal of Transnational Law 1447.
57. Decision as to the admissibility of Application no. 52207/99 of 12 December 2001 (Grand Chamber) in the case Bankovic and Others v Belgium and 16 Other Contracting States.
58. In the Court's most recent and definitive ruling on extraterritoriality, Al Skeini v. UK, no reference is made to the 'overall control' test mentioned in Issa, which is cited merely as an example of state agent authority.
59. In Nuclear Weapons, the ICJ noted that in situations of armed conflict, ICCPR Article 6 on the right to life (stating that '[n]o one shall be arbitrarily deprived of his life') should be interpreted not according to prevailing human rights standards but according to the law of armed conflict. The latter permits the killing of civilians as long as their deaths are not 'excessive in relation to the concrete and direct military advantage anticipated'. See Additional Protocol I to the Geneva Conventions (1977), Art. 51(5)(b).
60. At issue in Al Skeini was the state's duty to investigate losses of life under Article 2 (right to life): the Court did not examine alleged breaches of the right itself.
61. C. Droege, 'The Interplay Between International Humanitarian Law and Human Rights Law in Situations of Armed Conflict' (2007) 40(2) Israeli Law Review 310
62. F. Hampson, 'The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body' (2008) 90 (871) International Review of the Red Cross 549.
63. For the relationship between the law of armed conflict and climate change, see Chapter 8 in this volume.
64. On state responsibility see Chapter 13 in this volume.
65. ICESCR Article 14 requires each state to provide 'in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge'.
66. 1992 United Nations Framework Convention on Climate Change, 1771 UNTS 107 (UNFCCC).
67. UNFCCC Article 3.1; see ICHRP (2008), above n. 1, 59-64.
68. UNFCCC Articles 4.3-4.5.
69. R.J.T. Klein, S. Kartha, Å. Persson, P.Watkiss, F. Ackerman, T.E. Downing, B. Kjellén and L. Schipper, Adaptation: Needs, Financing and Institutions (Stockholm: Stockholm Environment Institute 2008).
70. C. McCrudden, 'Mainstreaming and Human Rights,' in C. Harvey (ed.), Human Rights in the Community: Rights as Agents for Change (Oxford: Hart Publishing 2005). The OHCHR successfully mainstreamed human rights into the operational guidelines of UN country teams and many UN agencies, including UNESCO and UNDP. SeeW.G. O'Neill, 'The Current Status of Human Rights Mainstreaming: Review of Selected CCA/UNDAFs and RC Annual Reports' UNSSC (11 April 2003). Some bilateral donors, notably DANIDA and GTZ, embraced human rights mainstreaming.
71. UNSSC, 'Human Rights Mainstreaming within the United Nations' Background Paper for the 3rd Interagency Workshop on Implementing a Human Rights-Based Approach, 1-3 October 2008, Tarrytown, NY, available at http:// www.undg.org/docs/9405/IAW3_background_paper_(HR_mainstreaming).doc (last accessed 19 April 2012)
72. M. Koskenniemi, 'Human Rights Mainstreaming as a Strategy for Institutional Power' (2010) 1(1) Humanity 47-58.
73. M. Darrow, Between Light and Shadow, TheWorld Bank, The International Monetary Fund and International Human Rights Law (Oxford: Hart Publishing 2003)
74. S. Skogly, The Human Rights Obligations of theWorld Bank and the IMF (London: Cavendish 2001)
75. I. Shihata, 'The World Bank and Human Rights' in I. Shihata, The World Bank in a Changing World (London: Martinus Nijhoff 1991).
76. S. Humphreys, Theatre of the Rule of Law (Cambridge: Cambridge University Press 2010).
77. Shihata, 'The World Bank and Human Rights', above n. 63.
78. R.H.Wade, 'Is globalisation reducing poverty and inequality?', above n. 34.
79. The literature produced by the Bank and other affiliated agencies (such as the IFC's Doing Business group) on the centrality for development of creating an 'enabling climate for investment' and what this involves is voluminous. See S. Humphreys, above n. 53, Chapters 4 and 6 and references therein.
80. Stern Review, above n. 8, 442.
81. ICHRP, Climate Change and Human Rights: A Rough Guide, above n. 1, pp. 22-26
82. ICHRP, Human Rights and Climate Technology Policy (Geneva: ICHRP, 2011).
83. UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 2161 UNTS 447.
84. UNFCCC Article 2.
85. P. Baer, T. Athanasiou, S. Kartha, and E. Kemp-Benedict, The Greenhouse Development Rights Framework, above n. 38, at 14
86. J.G.J. Olivier and J.A.H.W. Peters, No growth in total global CO2 emissions in 2009 (Bilthoven: Netherlands Environmental Assessment Agency (PBL) 2010), 5.
87. OHCHR, Summary of the report on the global food crisis, above n. 31. Food price spikes in much of the world in 2010-11 were again attributed in part to biofuel subsidies, notably in the United States. See Steven Rattner, 'The Great Corn Con', The NewYork Times, 24 June 2011
88. Svetlana Kovalyova, 'Climate change, biofuels threaten food security-FAO', Reuters, 7 March 2011
89. FAO, The State of Food and Agriculture 2010-2011 (Rome: FAO 2011), at 78-82.
90. F. Seymour, 'Forests, ClimateChange and Human Rights: Managing Risks and Trade-Offs' in S. Humphreys (ed.), Human Rights and Climate Change, above n. 1.
91. Damian Carrington and Stefano Valentino, 'Biofuels boom in Africa as British firms lead rush on land for plantations', The Guardian, 31 May 2011.
92. L. Lohmann, Carbon Trading (Dag Hammarskjold Foundation 2006)
93. Columbia Law School, Human Rights Institute, Climate Change And The Right To Food: A Comprehensive Study, above n. 1.
94. A solution to this problem is proposed by the Contraction and Convergence Foundation, who suggest harnessing the emissions market into a broader system aiming at ultimate convergence of per capital carbon emissions. See http://www.candcfoundation.org/index.html (last accessed 19 April 2012).
95. If anything, this set of issues has been even more explicitly and actively debated in the case of technology transfer. Whereas the UNFCCC and subsequent instruments call for the 'transfer' of 'environmentally sound technologies' from developed to developing countries, little transfer has actually taken place. This is due in part to definitional disagreement. On one side, some have claimed that transfer involves policy steps from richer countries, such as creating exceptions to IP (intellectual property) protections. On the other side, it is also claimed that transfer involves the creation of an 'enabling environment for investment' including protection of IP rights. Where technologies will be required, in circumstances of climate change, to protect or restore the human rights of affected individuals, it is again foreseeable that such a consideration would challenge the market-based logic, at least to that extent. See ICHRP, Human Rights and Climate Technology Policy (2011).
96. World Food Programme, 2010 Annual Report: Fighting Hunger Worldwide, above n. 18. The number was estimated to have fallen marginally in 2010 but was considered likely to be rising again in 2011 following food price spikes in 2010-2011. See FAO, The State of Food and Agriculture 2010-2011, above n. 77-81.
97. Mike Davis, Planet of Slums (London:Verso 2006).