Written by Sierra Buehlman Barbeau
This article provides background information for our latest podcast episode, The Future of Climate Change and Human Rights, which discusses upcoming international court advisory opinions on human rights and climate change.
Climate change is drastically impacting the human rights of people around the world. As climate change worsens and society devises ways to mitigate the harm and adapt to the changes in temperatures, weather patterns, and landscapes, the risks to human rights increase, especially for those most vulnerable. However, allowing human rights law to inform the responses to climate change can improve the processes and outcomes for everyone involved. [1] Considering human rights norms and treaties in designing the solution can ensure that we also improve the human rights conditions for everyone as we transition to a clean-energy, sustainable economic and social system.
Several international law sources recognize the link between human rights and climate change.[2] First is the Paris Agreement, which acknowledges in its preamble that “climate change is a common concern of humankind,” and that the state parties should “consider their respective obligations on human rights” when considering the actions that they will take.[3] Second, the UN Sustainable Development Goals tie human rights and climate change together by considering both climate change issues in Goal 13 and human rights issues, such as Goal 2: Zero Hunger and Goal 5: Gender Equality.[4] More recently, the right to development and the right to a clean, healthy environment have also been recognized. However, international and regional human rights treaties and domestic human rights laws are the sources of law with the real power to address human rights abuses caused by climate change.
When governments violate human rights because of their environmentally harmful actions or lack of action on climate change, the relevant sources of law usually are not climate change or environmental law sources.[5] In the Urgenda case, for example, the violated rights— life and respect for family life— were unrelated to climate change or the environment. Still, the court found that the Dutch government violated those rights by failing to act on climate change.[6] This case demonstrates that governments’ actions or lack of actions on climate change can become justiciable problems when they affect human rights that governments are obliged to protect.
On a basic level, climate change threatens one of the fundamental guarantees of the Universal Declaration of Human Rights: the right to “a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”[7] Climate change poses a new threat to international order. Under current human rights law, it is not entirely clear how governments should address human rights violations they cause to people not located within their territory.[8] Because our current international and social order is deeply affected by climate change, the rights and freedoms that the UDHR recognizes are under threat for climate migrants, people living in low-lying, developing countries, and everyone else worldwide.
There are many specific rights and freedoms found within human rights treaties that climate change threatens. The number of people affected will likely increase over time. Some rights that climate change impacts regularly include the right to life, health, self-determination, development, food, water and sanitation, and adequate housing.[9] Climate change causes extreme weather events that cause death, increase instances of disease, contaminate water, and destroy food sources.[10] It causes droughts that cause famines and crop failures. The change in sea levels can violate peoples’ rights to adequate housing and clean water as communities are destroyed or damaged and the right to self-determination as communities are forced to move. [11] Managing disasters caused by climate change can impede peoples’ right to development, particularly if the disasters decrease their quality of life.[12]
Furthermore, actions to mitigate or adapt to climate change can harm human rights. [13] For example, as we innovate ways to manage greenhouse gas pollution, the human rights of vulnerable groups are already impacted. Development projects—including clean energy projects—sometimes occupy indigenous people’s land. Developers and states sometimes impede these communities’ rights to participation and to give free, prior, and informed consent.[14] As society manages human rights abuses caused by climate change, we should avoid exacerbating the harms and creating new harms through our mitigation measures.
The example above is only one way that climate change impacts the realization of human rights. However, as briefly demonstrated by the Urgenda case above, human rights treaties can inform and improve our responses. Thanks to the Netherlands’ obligations under the European Convention on Human Rights, harms caused by their inaction on climate change could be remedied to some degree.[15] The Netherlands was required to design its climate change response accounting for its citizens’ right to life and family life.[16] This case demonstrates that since human rights law addresses many of the harms caused by climate change, we should use international and regional treaties to design our mitigation and adaptation responses.[17]
Several views allow lawmakers and policymakers to take a human-rights-based approach in designing the responses to climate change. The first is acknowledging that a clean, healthy environment is essential to realizing many human rights obligations, such as health, food, and clean water.[18] The second is the idea that actors can leverage human rights treaties and dispute mechanisms to address environmental issues.[19] For example, invoking the human right to clean water could promote healthy ecosystems and preserve biodiversity. The third view is that human rights and the environment are connected by the move towards sustainable development, as demonstrated by their mutual integration into the SDGs.[20]
Though these three ideas have their strengths and appeals, the second idea—using human rights treaties to support environmental action—has the best chance of success. [21] There are several reasons for this. First, a “right to a healthy environment” is still a developing human right with less power and recognition than human rights that are found in treaties such as ICESCR, CEDAW, CRC, or ICCPR. [22] This fact could limit the power to invoke the environment to achieve human rights. Second, though it is logical to link the human rights and climate change through the idea of sustainable development, this idea has much less legal power than the others since the SDGs are not legally binding and more aspirational than the human rights treaties. [23]
Using human rights treaties to address environmental issues has the advantage of being grounded in international and regional treaties and national laws that already have enforcement power. [24] Since climate change law is fairly new, no international mechanism or tradition exists for holding perpetrators responsible for violations. In the absence of an “international environmental law court” or other mechanism to enforce environmental treaties, human rights law can be used to enforce climate change law and hold states and private actors accountable for environmental damage. [25] Considering the extensive international human rights enforcement mechanisms and the integration of many human rights into countries’ national laws, when human rights are violated by harmful environmental practices or a failure to prevent harm, the human rights regime is an effective mechanism for addressing these harms. [26]
According to Savaresi and Setzer’s study on rights-based climate litigation, as of 2021, 112 climate change cases have been based on human rights, and a little less than half were successful. [27] These cases have informed government responses to climate change, sometimes in drastic ways. They demonstrate the power that human rights law can have in informing our responses to climate change from a legal perspective and have created a precedent for more rights-based litigation to continue pushing climate change law and policy in a positive direction.
Human rights can also inform our policy responses to climate change outside the legal realm and the courtroom.[28] Court cases like Urgenda have demonstrated that a human rights approach can positively influence countries’ climate change policies. However, a human rights approach can allow for coherent and sustainable policymaking before challenges arise in court. [29] According to the UN Office of the High Commissioner for Human Rights (OHCHR), taking a human rights law approach to climate change policy means that policymakers must consider who are the rights holders in a situation (generally, people or citizens) along with who is a duty holder (typically governments) and what kind of duties they owe.[30] It also means that the main objective of climate change actions should be to fulfill human rights and that the guidelines for these actions should be rooted in the Universal Declaration of Human Rights and other human rights treaties.[31]
These considerations will become important as policymakers design mitigation and adaptation plans. For example, when creating clean energy plans and choosing a site for wind energy farms, policymakers need to ensure that these plans do not interfere with Indigenous peoples’ right to self-determination. Under a human rights-informed approach to climate change, development policy becomes sustainable development, recognizing that there is not an infinite supply of resources and that we must consider the needs of future generations. [32] It focuses less on economic outcomes and more on clean water, good health, and inequalities. [33] Its primary goal is to realize human rights. [34]
As the need for mitigation and adaptation increases and climate change worsens, the possibility that governments, corporations, and other actors will violate human rights will increase unless these actors take a human-rights approach to climate change. Besides the human rights impacts of climate change, adaptation and mitigation activities can also spur negative effects. However, there is also some debate over whether a human rights framework is the best way to view a problem that involves harm to more than just humans.
Some have argued that a human-rights approach to climate change is an anthropocentric perspective that neglects the negative impacts on the environment, ecosystems, and other forms of life on the planet.[35] Critics have questioned OHCHR’s approach of prioritizing human rights in the context of climate change and centering one species in our response.[36] Are we trying to solve the problem of climate change for the sake of humans, or for the sake of all life on the planet? Whatever the answer, this argument highlights the need for a comprehensive approach that prioritizes both human rights and the need to preserve the environment and other living things for ethical reasons. When the two priorities clash, searching for solutions that harmonize their needs while doing as little harm as possible to both is essential.
There is also the problem that a human rights approach might still not capture all the harms that individuals suffer because of climate change.[37] The human rights law regime places duties on states that are owed to people within the territory of that state. The reality of climate change, however, is that the harm perpetrated by states and their policies have harmed individuals beyond their borders; those suffering the most are not citizens of the states that have done the most harm.[38] Human rights law has not historically envisioned tackling diffuse and generalized harms, which is a notable quality of many of the harms society faces from climate change. It also focuses on the harm that has already occurred and tries to provide a remedy for past damages; whereas to address harms from climate change, in many situations we need to address impending harms. Given our current framework, trying to address future harm with human rights law may be challenging.
Despite these important limitations and considerations, given the huge impact that climate change has on the realization of human rights, human rights law must inform our legal and policy responses to climate change. Human rights law can potentially become a baseline for our climate action. To preserve life and ecosystems beyond humans, we may need to go farther in our policies than human rights law requires.[39] However, as we design mitigation and adaptation strategies and face the problems that climate change has brought and will bring, a human rights approach can add incredible strength and legitimacy to our responses.
For more information about this topic, listen to our recent podcast episode, The Future of Climate Change and Human Rights, where we discuss the future of this approach with Professor David Hunter.
Works Cited:
[1] G.A. Res. 41/21 Human Rights and Climate Change 2, U.N. Doc A/HRC/RES/41/21 (July 23, 2019).
[2] Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 171, 172 (Markus Krajewsi et al. eds. 2020).
[3] Paris Agreement, Dec. 12, 2015, 55 I.L.M. 740;
[4] United Nations, The 17 Goals, https://sdgs.un.org/goals; Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 171, 173 (Markus Krajewsi et al. eds. 2020).
[5] Annalisa Savaresi and Joana Setzer, Rights-Based Litigation in the Climate Emergency: Mapping the Landscape and New Knowledge Frontiers, 13 J. of Hum. Rts. & the Env’t. 7, 16-17 (2022).
[6] Id. at 22; The State of the Netherlands v Urgenda Foundation, The Hague Court of Appeal (9 October 2018), case 200.178.245/01.
[7] Universal Declaration on Human Rights art. 28, Dec. 10, 1948, G.A. Res. 217 (III), U.N. Doc. A/777; OHCHR, Frequently Asked Questions on Human Rights and Climate Change 1 (2021) https://www.ohchr.org/sites/default/files/Documents/Publications/FSheet38_FAQ_HR_CC_EN.pdf
[8] Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 171, 182 (Markus Krajewsi et al. eds. 2020).
[9] Frequently Asked Questions on Human Rights and Climate Change 1 (2021), https://www.ohchr.org/sites/default/files/Documents/Publications/FSheet38_FAQ_HR_CC_EN.pdf; Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 171, 177 (Markus Krajewsi et al. eds. 2020); G.A. Res. 41/21 Human Rights and Climate Change 2, U.N. Doc A/HRC/RES/41/21 (July 23, 2019).
[10] Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 171, 172 (Markus Krajewsi et al. eds. 2020).; Christina Leb, The Right to Water in a Transboundary Context: Emergence of Seminal Trends, 37 Water Int’l 640, 640 (2012); G.A. Res. 41/21 Human Rights and Climate Change 2, U.N. Doc A/HRC/RES/41/21 (July 23, 2019).
[11] Frequently Asked Questions on Human Rights and Climate Change 1 (2021), https://www.ohchr.org/sites/default/files/Documents/Publications/FSheet38_FAQ_HR_CC_EN.pdf.
[12] Id. at 7.
[13] Tessa Khan, Promoting Rights-Based Climate Finance for People and Planet, ⁋ 12, U.N. Doc. A/HRC/WG.2/CRP.4 (April 18, 2018).
[14] Id. at ⁋ 13-16.
[15] Annalisa Savaresi and Joana Setzer, Rights-Based Litigation in the Climate Emergency: Mapping the Landscape and New Knowledge Frontiers, 13 J. of Hum. Rts. & the Env’t. 7, 16-17 (2022).
[16] The State of the Netherlands v Urgenda Foundation, The Hague Court of Appeal (9 October 2018), case 200.178.245/01.
[17] OHCHR, The Impacts of Climate Change on the Effective Enjoyment of Human Rights, https://www.ohchr.org/en/climate-change/impacts-climate-change-effective-enjoyment-human-rights.
[18] Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 171, 177 (Markus Krajewsi et al. eds. 2020); Frequently Asked Questions on Human Rights and Climate Change 1 (2021), https://www.ohchr.org/sites/default/files/Documents/Publications/FSheet38_FAQ_HR_CC_EN.pdf.
[19] Id.
[20] Id.
[21] See, Annalisa Savaresi and Joana Setzer, Rights-Based Litigation in the Climate Emergency: Mapping the Landscape and New Knowledge Frontiers, 13 J. of Hum. Rts. & the Env’t. 7, 19 (2022).
[22] Frequently Asked Questions on Human Rights and Climate Change 1 (2021), https://www.ohchr.org/sites/default/files/Documents/Publications/FSheet38_FAQ_HR_CC_EN.pdf.
[23] Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 171, 178 (Markus Krajewsi et al. eds. 2020).
[24] Annalisa Savaresi and Joana Setzer, Rights-Based Litigation in the Climate Emergency: Mapping the Landscape and New Knowledge Frontiers, 13 J. of Hum. Rts. & the Env’t. 7, 8 (2022).
[25] Id. at 13; Tessa Khan, Promoting Rights-Based Climate Finance for People and Planet, ⁋ 22, U.N. Doc. A/HRC/WG.2/CRP.4 (April 18, 2018).
[26] Id. at 31.
[27] Id. at 8; 18.
[28] G.A. Res. 41/21 Human Rights and Climate Change 2, U.N. Doc A/HRC/RES/41/21 (July 23, 2019).
[29] Id.; Annalisa Savaresi and Joana Setzer, Rights-Based Litigation in the Climate Emergency: Mapping the Landscape and New Knowledge Frontiers, 13 J. of Hum. Rts. & the Env’t. 7, 22 (2022).
[30] Frequently Asked Questions on Human Rights and Climate Change 1 (2021), https://www.ohchr.org/sites/default/files/Documents/Publications/FSheet38_FAQ_HR_CC_EN.pdf.
[31] OHCHR, The Impacts of Climate Change on the Effective Enjoyment of Human Rights, https://www.ohchr.org/en/climate-change/impacts-climate-change-effective-enjoyment-human-rights.
[32] Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 173-74 (Markus Krajewsi et al. eds. 2020).
[33] United Nations, The 17 Goals, https://sdgs.un.org/goals.
[34] Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 173-74 (Markus Krajewsi et al. eds. 2020).
[35] Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 173-74 (Markus Krajewsi et al. eds. 2020).
[36] Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 173-74 (Markus Krajewsi et al. eds. 2020).
[37] Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 173-74 (Markus Krajewsi et al. eds. 2020).
[38] Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 173-74 (Markus Krajewsi et al. eds. 2020).
[39] Alan Boyle, Climate Change, Sustainable Development, and Human Rights, in 5 Sustainable Development Goals and Human Rights 173-74 (Markus Krajewsi et al. eds. 2020).