Human Rights Approaches to Climate Change

Challenges and Opportunities

Sumudu Atapattu

• Publisher: Routledge
• Year: 2015
• eBook ISBN: 9781317910602
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

Despite the clear link between climate change and human rights with the potential for virtually all protected rights to be undermined as a result of climate change, its catastrophic impact on human beings was not really understood as a human rights issue until recently.

This book examines the link between climate change and human rights in a comprehensive manner. It looks at human rights approaches to climate change, including the jurisprudential bases for human rights and the environment, the theoretical framework governing human rights and the environment, and the different approaches to this including benchmarks. In addition to a discussion of human rights implications of international environmental law principles in the climate change regime, the book explores how the human rights framework can be used in relation to mitigation, adaption, and adjudication. Other chapters examine how vulnerable groups –women, indigenous peoples and climate "refugees" – would be disproportionately affected by climate change. The book then goes on to discuss a new category of people created by climate change, those who will be rendered stateless as a result of states disappearing and displaced by climate change, and whether human rights law can adequately address these emerging issues.

Part I Legal aspects and human rights framework

1 International legal framework governing climate change A human rights assessment

DOI: 10.4324/9781315849683-1

The accumulation of greenhouse gases in the atmosphere leading to possible changes in the climate emerged as a concern in the late 1970s. The first World Climate Conference was convened by the WMO in 1979. Work on a possible legal framework governing climate change commenced in 1990 after the second World Climate Conference. The first session of the Intergovernmental Negotiating Committee for a framework convention was held in 1990. The UN Framework Convention on Climate Change (UNFCCC) was opened for signature at the Rio Conference on Environment and Development in 1992 and entered into force soon afterwards in 1994.¹ While some scholars are of the view that the climate change regime does not go far enough, others have referred to the two decades since the 1980s as having seen a “remarkable evolution” in relation to climate change law.²

1 For a chronological discussion relating to climate change, see Hunter, D., Salzman, J. and Zaelke, D. (2011) International Environmental Law and Policy (4th edn), New York: Foundation Press, p. 677 (hereinafter Hunter et al.). 2 See Bodansky, D. and Rajamani, L. (2013) ‘The Evolution and Governance Architecture of the Climate Change Regime’ in Urs, L. and Sprinz, D. (eds) International Relations and Global Climate Change (2nd edn), Cambridge, MA: MIT Press.

It is not the intention of this chapter to provide a detailed analysis of the legal regime governing climate change – this has been covered extensively in literature.³ Rather, this chapter will present a summary of the legal framework, with a brief mention of the various milestones in order to ascertain whether it identifies any human rights issues relating to climate change. Thus, the legal framework will be assessed through a human rights lens in order to ascertain to what extent human rights informs the UNFCCC process.

3 See Wold, C., Hunter, D. and Powers, M. (2009) Climate Change and the Law, LexisNexis (hereinafter Wold et al.); Hunter et al., Ch. 11; Rayfuse, R. and Scott, S. (eds) (2012) International Law in the Era of Climate Change, Northampton, MA: Edward Elgar Publishing; Hollo, E., Kulovesi K. and Mehling M. (eds) (2013) Climate Change and the Law, Berlin: Springer; Richardson, B. J. et al. (eds) (2009) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy, Northampton, MA: Edward Elgar Publishing; Osofsky, H. and McAllister, L. (2012) Climate Change Law and Policy, New York: Aspen Publishers; Carlarne, C. (2010) Climate Change Law and Policy: EU and US Approaches, Oxford: Oxford University Press; Brunnee, J., Doelle, M. and Rajamani, L. (2012) Promoting Compliance in an Evolving Climate Regime, Cambridge: Cambridge University Press.

The legal regime governing climate change adopts a framework-protocol approach,⁴ similar to the approach taken in relation to many other environmental issues: acid rain⁵ and ozone depletion⁶ are good examples. There are many advantages and disadvantages of this approach. While flexibility, buying more time to consolidate political support, particularly if there is scientific uncertainty, and information exchange and further research are some of the advantages,⁷ vagueness, delay and lack of precise obligations in the framework convention are some of the disadvantages.⁸ A good example of a legal regime that adopted a framework-protocol approach in the face of scientific uncertainty and lack of political consensus is provided by the regime governing ozone depletion. The Vienna Convention on the Protection of the Ozone Layer⁹ was adopted in 1985 despite the fact that the causal link between ozone depletion and chlorofluorocarbons (CFCs) was not clearly established; barely two years later, the Montreal Protocol on Substances that Deplete the Ozone Layer¹⁰ was adopted. This is the only environmental treaty regime to have achieved universal participation¹¹ and is widely regarded as a success story in international environmental law.¹²

4 See Hunter et al., supra note 1, pp. 295–296. 5 Ibid., Chapter 9. 6 Ibid., p. 596. 7 Ibid., p. 296. 8 Ibid. 9 UNEP, The Vienna Convention for the Protection of the Ozone Layer. Available online at: http://ozone.unep.org/new_site/en/Treaties/treaties_decisions-hb.php?sec_id=155 (accessed 14 January 2015). 10 UNEP, The Montreal Protocol on Substances that Deplete the Ozone Layer. Available online at: http://ozone.unep.org/new_site/en/Treaties/treaties_decisions-hb.php?sec_id=5 (accessed 14 January 2015). 11 See Hunter et al., supra note 1, p. 533. The UNFCCC has near universal participation with 194 parties, p. 170. 12 Ibid., p. 532.

The climate regime sought to replicate this model, but that is probably where the similarities end – the UNFCCC was adopted at the Rio Conference in 1992 but it took five years for the international community to adopt a protocol with more stringent obligations.¹³ It has been noted that the UNFCCC is clearly more self-conscious as a framework convention than the Vienna Convention.¹⁴ While an elaborate roadmap was adopted at Bali in 2007 to govern the new legal regime when the first commitment period ended in 2012, the international community was unable to reach a consensus to do so. Despite high expectations that a protocol would be adopted at Copenhagen, only a soft law instrument was adopted and that too was outside the formal negotiating process.¹⁵ As no protocol was forthcoming, parties agreed in 2012 to extend the Kyoto Protocol, despite its drawbacks, for another commitment period (2013–20) with the international community agreeing to draft a protocol by 2015 which would become operational by 2020.¹⁶ The question, of course, is whether the international community could afford to wait until 2020 to adopt a post-Kyoto regime, eight years after the obligations under Kyoto were set to expire.

13 See Kyoto Protocol to the UN Framework Convention on Climate Change. Available online at: http://unfccc.int/resource/docs/convkp/kpeng.pdf (accessed 13 June 2014); Hunter et al., supra note 1, p. 533, believe that the Montreal Protocol provides a useful model for other global environmental problems such as climate change. 14 See Hunter et al., supra note 1, p. 684. 15 See discussion in Section 5.2. 16 UNFCCC (2012) Doha Amendment to Kyoto Protocol. Available online at: http://unfccc.int/files/kyoto_protocol/application/pdf/kp_doha_amendment_english.pdf (accessed 24 November 2014).

An interesting feature of the climate regime is the definite tendency to adopt soft law instruments.¹⁷ While the two earlier instruments on climate change squarely fall within hard law (although it is difficult to refer to commitments in framework conventions as hard law, nonetheless they are embodied in a treaty, and are hence binding), the latter instruments all fall within the realm of soft law, raising the issue whether this trend will continue. Certainly, in some fields of international law such as environmental protection, soft law instruments have played a significant role.¹⁸ However, the commitments in these soft law instruments cannot be enforced and no repercussions attach to non-compliance. On the other hand, there is no denying that these instruments are flexible and politically more palatable, precisely because they are non-binding. It is far easier to adopt a non-binding document than a treaty, and therefore speedy adoption for issues that require speedy action is an attractive feature. Alarmed perhaps by the important role that these soft law instruments are playing in shaping international law and state practice, states have begun to attach “interpretative statements” to these instruments.¹⁹ No doubt, both hard law and soft law have their own advantages and disadvantages,²⁰ and perhaps a combination of both should inform a process as complex as climate change, in order to give states the flexibility they need and at the same time ensure that some obligations remain hard and that non-compliance can be addressed.

17 See Vihma, A. (2013) ‘Analyzing Soft Law and Hard Law in Climate Change in Climate Change and the Law’ in Hollo, Kulovesi and Mehling, supra note 3, p. 143, who notes that “there is a notable turn toward soft law in developed country commitments in climate mitigation.” See also Bodansky, D. (2011) The Art and Craft of International Environmental Law, Cambridge, MA: Harvard University Press, p. 102. 18 See Atapattu, S. (2012) ‘International Environmental Law and Soft Law: A New Direction or a Contradiction?’ in Bailliet, C. M. (ed.) Non-State Actors, Soft Law and Protective Regimes: From the Margins, Cambridge: Cambridge University Press, p. 200. 19 A good example is the interpretative statement made by the US to Principle 7 of the Rio Declaration; see Hunter et al., supra note 1, p. 466. The US also attached a similar statement to the General Assembly resolution on the Right to Development adopted in 1986. 20 Atapattu, S. ‘International Environmental Law and Soft Law,’ supra note 18, p. 210.

Furthermore, possible fragmentation of international law by climate change law has attracted the attention of the international legal community.²¹ When legal systems mature, it is inevitable that certain areas become specialized with their sui generis systems and concerns are raised about possible fragmentation. Not only have areas that were hitherto unknown in international law become a separate branch of international law, but topics within those specialized areas have assumed a life of their own. Thus, for example, not only has international environmental law become a specialized branch of international law in its own right, but topics such as biodiversity, climate change, ozone depletion and hazardous waste have become specialized topics as well. Not only that, we have further specialization within climate change itself, showing just how complex this issue has become within a short span of time (REDD, climate migration, carbon trading, clean development mechanisms are some of the topics, not to mention women and climate change, indigenous groups and climate change, the Artic and climate change – the list goes on). Just how quickly this area of law has grown and branched out into some complex areas is itself pretty remarkable.²²

21 See Asselt, H., Sindico, F. and Mehling, M. A. (2008) ‘Global Climate Change and the Fragmentation of International Law,’ Law and Policy, vol. 30, no. 4, p. 423; see also Rayfuse, R. and Scott, S. (eds) (2012) International Law in the Era of Climate Change, Northampton, MA: Edward Elgar Publishing, p. 5; Asselt, H., Sindico, F. and Mehling, M. A. (2008) ‘Managing the Fragmentation of Intern...

Table of contents

• Cover Page
• Half Title Page
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Foreword
• Acknowledgements
• About the author
• Abbreviations
• Introduction: Framing the issues
• PART I Legal aspects and human rights framework
• PART II Human rights and vulnerable groups
• PART III Human rights implications of international legal issues
• Bibliography
• Table of treaties and international instruments
• Table of cases
• Index