Can We Really Switch Off Human Rights When We Negotiate on Climate?
By Natika Kantaria
On June 11, 2024, the Bonn Climate Change Conference conducted two weeks of intensive negotiations. This conference assessed the progress made in combating climate change, identified existing gaps in implementation, and outlined necessary steps to pave the way for the upcoming COP 29 from November 11 to 29, 2024 in Baku, Azerbaijan. However, despite the verbal commitments of states at conferences and continuous negotiations elevating climate change as a shared global concern, progress in action and withholding commitments continue to trail behind each year. Accountability can be significantly increased if we recognize that climate change is fundamentally a human rights issue.
Over time, climate change negotiations have largely been characterized by what is termed the “technocratic response.” This approach, as understood in the literature, aligns with a broader policy strategy, focused on addressing complex environmental issues through political compromise. It largely constitutes two pillars of response: adaptation and mitigation, with insufficient attention to loss and damage. The emphasis is on cost-benefit analysis, and risk management, rather than on legal frameworks and the protection of fundamental human rights.
The 2023 report by the Intergovernmental Panel on Climate Change (IPCC) focuses on how extreme events cause loss and damage to humans, leading to human mortality and morbidity, as well as creating “health issues and presenting evidence of vector-borne diseases and mental health challenges.” In 2023, there were 46.9 million new instances of internal displacements where 20.3 million were weather-related. In July, the Earth broke its latest record, with July 21 and 22 being the hottest days.
The climate crisis restricts the enjoyment of human rights as understood in the International Bill of Human Rights. Specifically, it restricts access to the right to life; health; water and sanitation; food; a healthy, clean, and sustainable environment; housing; self-determination; and the right to education, and requires the fulfillment of the right to seek justice and the right to remedy. Given the indivisibility and interdependence of these rights, this list is not exhaustive. Climate change disproportionately impacts the most underrepresented communities residing in least-developed countries and low and middle-income countries. Litigation and court decisions further underscore the deep linkages between climate impacts, human rights violations, and states’ obligations.
On June 21, 2024, the UK Supreme Court made a landmark decision increasing barriers to the expansion of oil and gas companies, stating authorities must consider the impact of burning fossil fuels, not just their extraction when approving projects. In the case of KlimaSeniorinnen v. Switzerland, in 2024, the European Court of Human Rights determined that Switzerland breached its positive obligations under the Paris Agreement due to significant shortcomings in establishing an appropriate domestic regulatory framework for cutting its greenhouse gas emissions. The decision will not only impact Switzerland’s decision to be aligned with its Paris Agreement commitments but it will create precedence for 45 other Member States of the Council of Europe. Apart from court rulings, national legal frameworks provide further indication of the interlinkage between climate and human rights. Chile and Colombia, for example, put forward a joint request for an advisory opinion to the Inter-American Court of Human Rights for clarification about the duties and obligations of states response to a climate emergency.
Despite significant developments and landmark cases, as well as numerous calls from the Office of the High Commissioner for Human Rights for human rights-based approaches to climate negotiations, and the latest resolution by the United Nations General Assembly recognizing the right to a healthy, safe, and clean environment, there are no legal references in the decisions and final documents agreed upon and negotiated during climate conferences.
COPs typically avoid references to binding international human rights law, despite the widespread ratification of such documents. The emphasis remains on the Paris Agreement; however, this lacks robust binding mechanisms. Stronger inter-references between climate change and human rights should incorporate binding documents like the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Convention on the Rights of the Child (CRC) and others, in order to reinforce states’ legal commitments and duties to deliver on climate agendas. Reference to legally binding documents would require more commitments from states, potentially increasing their liability, this language is thus often intentionally avoided. Signatories to the UN human rights treaties have obligations to respect, promote, and fulfill all human rights without discrimination. OHCHR in its submission to COP21 states that “Failure to take affirmative measures to prevent human rights harms caused by climate change, including foreseeable long-term harms, breaches this obligation.” In the outcome documents, there is no mention of the word “right”, but we see the more nebulous “economic and non-economic losses.” The boilerplate approach to this wording, right from the outset, fails to elaborate on the significance of non-economic and economic loss and their relationship to human rights. The term limits bringing intersections of human rights and their comprehensive nature, which is another evidence of states intentionally avoiding references to legal frameworks.
Generally, negotiated texts at COPs while speaking human rights mirror the preamble text of the Paris Agreement that introduced human rights language, but just in one paragraph. Reference to human rights in the Paris Agreement is further evidence of the continuation to avoid states international commitments within the climate change negotiations. Specifically, instead of listing specific obligations and duties under international law to respect, protect, and fulfill the Paris Agreement text comes up with a slightly modified wording “Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights…” Replacing the obligation to fulfill with the word to consider makes state obligations softer, potentially reducing the pressure on states to make them liable. While this encourages more parties to be signatory of the agreement, overall it weakens the effectiveness of the negotiations, as well as commitments within the agreements.
While there is a shift toward legal approaches to recognizing climate obligations through court rulings, this will be most effective when climate change is considered a human rights issue in negotiations. The upcoming COP29 is an important place to advocate for change and call for states as well as negotiators to make stronger references and interlinkages to the Bill of Human Rights. Climate change negotiation spaces should actively reach beyond policy negotiations that are neither binding themselves nor reference existing hard law. Human rights should serve as a foundation for our approach and understanding of climate change.
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