Li Wang
The relationship between human rights law and international environmental law is by no means straightforward. Human rights law, characterised by ‘absolutes and universals’, seems to contradict with international environmental law, which bases itself on flexibility and reciprocity. However, due to the inherent linkages between human rights and environmental protection, human rights law and international environmental law seem to show a tendency to mutual accommodation, particularly against the climate change backdrop. With the emergence and development of environmental rights, either substantive or procedural, climate change, as the most challenging environmental concern in our age, seems to be able to be addressed in the legal framework of human rights. We can see that regional customary procedural environmental rights have developed, especially in Europe, which may further contribute to the emergence of substantive environmental rights both regionally and internationally. Delineating a legal framework for climate change litigation on the ground of human rights infringement could help to address the climate change problem.
Rhetorical?
As a ‘common concern of humanity’, climate change has been primarily addressed through inter-state negotiations on multilateral environmental agreements, including the UN Framework Convention on Climate Change and the Kyoto Protocol, which call for global solidarity and emission reductions. As the slow progress in political negotiation has frustrated environmentalists, human rights approaches, are becoming more attractive.[i] Reasons for articulating a human rights perspective on climate change can be explored from the lexical, pragmatic and moral levels. With a ‘lexical priority’,[ii] the ‘human rights’ terminology may add ‘normative strength’ to spur countermeasures when used in the climate change context.[iii] The notion of human rights is considered as a perfect response to the far-reaching climate change issue ‘at least at a rhetorical level’.[iv] Similarly, a human rights approach to climate change provides a ‘human face’ to those marginalised and vulnerable groups, which in turn can raise empathy and thus facilitate effective solutions to this global issue.[v] Moreover, human rights stand as the moral threshold to which people are entitled.[vi] With this moral shield, Simon Caney emphasized the normativity of the ‘rights’ approach by claiming that certain fundamental human rights threatened by climate change are not allowed to be derogated, such as the right to life, the right to food, and the right to health of the environmentally vulnerable communities, which are easily affected by the climate change risk.[vii]
However, these enticing human rights arguments, which imply ‘rights as trumps’,[viii] have oversimplified the relatively complicated environmental issue. Human rights approaches fail to consider the ‘need for collective action’[ix] in tackling climate change problem. In practice, solutions to international environmental issues require states cooperation and collaboration. While states remain the principal subject of international law, emphasis on ‘individual behaviour beyond state borders’ to solve an environmental problem of global nature is unrealistic.[x] Meanwhile, the ‘more legalistic nature’[xi] of human rights law, which indicates its tendency to prosecution when injustice occurs, might narrow the scope for invoking the law.[xii] As John Knox notes, not all infringements amount to the breach of legal obligations.[xiii] Under the climate change scenario, where the question ‘to what degree the violation of human rights caused by climate change can be triggered’ remains controversial, the application of human rights law to climate change damage faces considerable obstacles. This tricky problem can also be identified in the High Commissioner for Human Rights (OHCHR) report, which only recognizes climate change as an ‘inherently global threat to human rights’, but refuses to conclude that ‘climate change itself is a human rights violation’.[xiv] Therefore, the utility of human rights instruments seems to be ‘rhetorical rather than juridical’.[xv]
Shift to Juridical?
However, the growing relationship between human rights law and international environmental law does provide possibilities for the justiciability of environmental issues, including the issue of climate change. The safeguarding of the environment is necessary for the very existence of human beings and the full enjoyment of human rights. As noted by Weeramantry in the GabeTcovo-Nagymaros case, ‘protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself’. Undoubtedly, environmental degradation poses a direct or indirect threat to the enjoyment of human rights. Anthropogenic climate change, in particular, has ‘implications for the effective enjoyment of human rights’. To be specific, climate change infringes a series of human rights, including the rights to life, food, water, health, housing and self-determination. Therefore, climate change, as a massive environmental issue, is well grounded to be granted a human rights dimension.
The common ground shared by human rights and environment can be identified in legal documents at the national, regional and international levels. Explicit environmental rights have been codified in over one hundred countries’ constitutions. Notions like ‘right to a general satisfactory environment’ and ‘rights to live in a healthy environment’ can be identified in regional human rights treaties like the African Charter of Human and People’s Rights and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights. Though criticized as weak, these provisions can be argued to indicate an infancy stage of substantive environmental rights. Notwithstanding the fact that no substantive environmental rights have been embedded under international law (there are no such indications of environmental rights in the 1948 Universal Declaration of Human Rights), principle 1 of the 1972 Stockholm Declaration asserts the necessity of adequate environment protection to the enjoyment of basic human rights. Despite their non-legally binding character, it is argued that articulating such a right will contribute to the creation of a substantive right to a healthy environment. It could be expected that once such an environmental right is recognised under international human rights law, climate change, with the increasing linkages between human rights and climate change reiterated by the UN General Assembly and the specialized agencies, may constitute a violation if its threat to the rights of the victims amounts to a breach of legal duty.
The convergent relationship between human rights law and environmental protection can also be verified in the jurisprudence of the increasing environmental caseload by human rights tribunals. Noteworthy are cases like López Ostra, Fadeyeva, Öneryıldız, Moreno and Taşkin from the European Court of Human Rights (ECtHR), which demonstrate governments’ positive obligation to ‘regulate environmental risks, enforce environmental laws or disclose environmental information’[xvi] based on the Court’s creative interpretation of Article 2 ‘right to life’ and Article 8 ‘right to respect for private and family life’. Furthermore, in Hardy & Maile v. The United Kingdom, the Court agrees that when there exists a risk of explosion, the obligation arises even though the potential harm hasn’t been materialised. In Budayeva v. Russia, the court found that Russia had failed to protect the inhabitants’ right to life due to a local authority’s inaction in the foreseeable mudslides disasters. Moreover, in Tătar v. Romania, the Court specifies the state’s obligation of invoking the precautionary principle for the first time in an environmental issue. In this light, it is fair to say that though there is no reference to substantive environmental rights under the European Convention on Human Rights, the environmental case law developed by the ECtHR indicates a national authority’s obligation of procedural environmental safeguards. It may be further argued that such procedural environmental rights supported by the Court have formulated a regional customary law in Europe,[xvii] which has reinforced the linkages between human rights and climate change.[xviii] As mentioned above, climate change has potential threats to the ‘full enjoyment of human rights’;[xix] specifically, its adverse effects such as the more frequent extreme weather, including hurricanes, droughts, floods and heatwaves, which may threaten ‘the right to life’. Therefore, when making decisions and adopting policies related to climate change, governments are expected to bear the notion of human rights in mind and have an obligation of due diligence. [xx] In this regard, procedural rights, as Kravchenko observes, can make great contributions to combating climate change.[xxi]
Apart from courts’ jurisprudence, the well-established procedural rights in multilateral environmental agreements (MEAs) are noteworthy, particularly, the UNECE Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). In spite of recalling Principle 1 of Stockholm Declaration in its preamble, which claims human’s fundamental right to live in a qualified environment allowing dignity and well-being, the Aarhus Convention actually elaborates Principle 10 of the 1992 Rio Declaration by focusing strictly on procedural rights in its content: individuals are granted appropriate access to environmental information, encouraged to participate in environmental decision-making process, and allowed effective access to judicial redress and remedy.[xxii] Despite the endorsement of procedural environmental rights, the Convention is criticised for it ‘stops short, however, of providing the means for citizens directly to invoke this right’.[xxiii] Nevertheless, it should be asserted that the Aarhus Convention has largely extended environmental rights and the corpus of human rights law.[xxiv] As Boyle suggests, ‘procedural rights are the most important environmental addition to human rights law.’[xxv] More importantly, the Aarhus Convention’s doctrine on procedural rights, together with its influence in the jurisprudence of the ECtHR, adds persuasiveness to the argument of procedural environmental rights development as a customary law in Europe, which implies a moving away from a state-focused approach to addressing environmental issues. Additionally, both the Convention and the jurisprudence can be interpreted as facilitating the emergence of a substantive environmental right as a result of the virtuous circle that exists within substantive and procedural rights: a high degree of compliance with procedural environmental duties contributes to the creation and compliance of substantive environmental obligations. Policies and decisions related to the anthropogenic climate change, if made with the participation of the relevant stakeholders, will ensure the compliance of procedural rights to an adequate environment and further contribute to the establishment of substantive environment rights in a broader level. Therefore, the development of regional customary procedural environmental rights and the emergence of substantive environmental rights may broaden the scope for addressing climate change under human rights law. Consequently, there is a possibility of climate change litigation on the grounds of human rights violation. In this sense, both the regional customary procedural rights and the emerging substantive environmental rights, may add a ‘juridical perspective’ to the climate change problem.
To conclude, a convergent relationship
between human rights law and international environmental law has developed based
on the inherent linkages between human rights and environmental protection.
Despite limited substantive environmental rights under the general international
law, the enshrinement of substantive rights in national constitutions and the
adoption of procedural rights in ECtHR environmental jurisprudence as well as
in the Aarhus Convention, which can be justified as a regional customary law in
Europe, may add impetus to the creation of a substantive right to a decent
environment at the international level. In respect to the climate change
problem, the development of such procedural environmental rights and moreover,
the emergence of the substantive environmental rights are crucial as the notion
of environmental rights provides the potential to address this unprecedented
challenge, which is confronting the whole of humankind currently, in a both rhetorical
and juridical way.
[i] Ole W. Pedersen, ‘Climate Change and Human Rights: Amicable or Arrested Development?’ (2010) 1(2) Journal of Human Rights and the Environment 236, 240
[ii] Simon Caney, ‘Climate Change, Human Rights and Moral Thresholds’ in Stephen Humphreys (ed), Human Rights and Climate Change (CUP 2010)
[iii] Stephen Humphreys, ‘Introduction: Human Rights and Climate Change’ in Stephen Humphreys (ed), Human Rights and Climate Change (CUP 2010)
[iv] Amy Sinden, ‘Climate Change and Human Right’ (2007) 27(2) J Land Resources & Envt. L. 255
[v] Stephen Trully, ‘Like Oil and Water: A Skeptical Appraisal of Climate Change and Human Rights’ (2009) 15 Australian International Law Journal 213
[vi] Caney (n 2) 72.
[vii] ibid 69.
[viii] Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978)
[ix] Daniel Bodansky, ‘Introduction: Climate Change and Human Rights: Unpacking the Issues’ (2010) 38 GA.J.INT’L & COMP.L. 511, 524
[x] Pedersen (n1) 242.
[xi] Bodansky (n 9) 515.
[xii] Stephen Humphreys, ‘Competing Claims, Human Rights and Climate Harms’ in Stephen Humphreys (ed), Human Rights and Climate Change (CUP 2010) 39
[xiii] John H. Knox, ‘Climate Change and Human Rights Law’ (2009) 50 VA. J. INT’L L. 163
[xiv] John H. Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (2009) 33 Harvard Environmental Law Review 477
[xv] Alan Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23 EJIL 613, 619
[xvi] ibid 615.
[xvii] Ole W Pedersen, ‘European Environmental Human Rights and Environmental Rights: A Long Time Coming?’ (2008) 21(1) Georgetown Int’L Envt. Law Review 73
[xviii] Pedersen (n 1) 247.
[xix] United Nations Human Rights Council Resolution 7/23 (2008)
[xx] Pedersen (n 1) 242.
[xxi] Svitlana Kravchenko, ‘Procedural Rights as a Crucial Tool to Combat Climate Change’ (2009) 38 Ga. J. Int’l & Comp. L.613, 648
[xxii] Patricia Birnie, Alan Boyle, Catherine Redgwell, International Law & the Environment (3rd edn 2009 OUP) 274
[xxiii] Tim Hayward, Constitutional Environmental Rights, (2005 OUP) 180
[xxiv] Birnie, Boyle and Redgwell (n 22) 274.
[xxv] Boyle (n 15) 616.