{"id":90,"date":"2020-08-19T12:16:03","date_gmt":"2020-08-19T11:16:03","guid":{"rendered":"https:\/\/blogs.ncl.ac.uk\/nelrn\/?p=90"},"modified":"2020-08-19T12:16:03","modified_gmt":"2020-08-19T11:16:03","slug":"from-rhetorical-to-juridical-human-rights-instruments-addressing-climate-change-based-on-the-development-of-environmental-rights","status":"publish","type":"post","link":"https:\/\/blogs.ncl.ac.uk\/nelrn\/2020\/08\/19\/from-rhetorical-to-juridical-human-rights-instruments-addressing-climate-change-based-on-the-development-of-environmental-rights\/","title":{"rendered":"From \u2018Rhetorical\u2019 to \u2018Juridical\u2019: Human Rights Instruments Addressing Climate Change Based on the Development of Environmental Rights"},"content":{"rendered":"\n

Li Wang <\/h3>\n\n\n\n
\"\"<\/a>
This picture is taken from: www.pexels.com<\/a> <\/figcaption><\/figure>\n\n\n\n

The relationship between human rights law and international\nenvironmental law is by no means straightforward. Human rights law,\ncharacterised by \u2018<\/a>absolutes and universals<\/a>\u2019, seems to contradict with international environmental law, which bases\nitself on flexibility and reciprocity. However, due to the inherent linkages\nbetween human rights and environmental protection, human rights law and\ninternational environmental law seem to show a tendency to mutual accommodation,\nparticularly against the climate change backdrop. With the emergence and\ndevelopment of environmental rights, either substantive or procedural, climate\nchange, as the most challenging environmental concern in our age, seems to be\nable to be addressed in the legal framework of human rights. We can see that regional customary\nprocedural environmental rights have developed, especially in Europe, which may\nfurther contribute to the emergence of substantive environmental rights both\nregionally and internationally. Delineating a legal framework for climate\nchange litigation on the ground of human rights infringement could help to\naddress the climate change problem.<\/p>\n\n\n\n

Rhetorical?<\/h2>\n\n\n\n

As a \u2018common concern of humanity<\/a>\u2019, climate change has been\nprimarily addressed through inter-state negotiations on multilateral\nenvironmental agreements, including the UN Framework Convention on Climate\nChange and the Kyoto Protocol,\nwhich call for global solidarity and emission reductions. As the slow progress\nin political negotiation has frustrated environmentalists, human rights approaches, are becoming more attractive.[i]<\/a> Reasons for\narticulating a human rights perspective on climate change can be explored from\nthe lexical, pragmatic and moral levels. With a \u2018lexical priority\u2019,[ii]<\/a> the\n\u2018human rights\u2019 terminology may add \u2018normative strength\u2019 to spur countermeasures\nwhen used in the climate change context.[iii]<\/a>\nThe notion of human rights is considered as a perfect response to the\nfar-reaching climate change issue \u2018at least at a rhetorical level\u2019.[iv]<\/a>\nSimilarly, a human rights approach to climate change provides a \u2018human face\u2019 to\nthose marginalised and vulnerable groups, which in turn can raise empathy and thus\nfacilitate effective solutions to this global issue.[v]<\/a>\nMoreover, human rights stand as the moral threshold to which people are\nentitled.[vi]<\/a>\nWith this moral shield, Simon Caney emphasized the normativity of the  \u2018rights\u2019 approach by claiming  that certain fundamental human rights\nthreatened by climate change are not allowed to be derogated, such as the right\nto life, the right to food, and the right to health of the environmentally\nvulnerable communities, which are easily affected by the climate change risk.[vii]<\/a><\/p>\n\n\n\n

However, these enticing human rights arguments, which imply \u2018rights as\ntrumps\u2019,[viii]<\/a>\nhave oversimplified the relatively complicated environmental issue. Human\nrights approaches fail to consider the \u2018need for collective action\u2019[ix]<\/a>\nin tackling climate change problem. In practice, solutions to international\nenvironmental issues require states cooperation and collaboration. While states\nremain the principal subject of international law, emphasis on \u2018individual behaviour beyond state\nborders\u2019 to solve an environmental problem of global nature is unrealistic.[x]<\/a>\nMeanwhile, the \u2018more legalistic nature\u2019[xi]<\/a>\nof human rights law, which indicates its tendency to prosecution when injustice\noccurs, might narrow the scope for invoking the law.[xii]<\/a>\nAs John Knox notes, not all infringements amount to the\nbreach of legal obligations<\/a>.[xiii]<\/sup><\/a>\nUnder the climate change scenario, where the question \u2018to what degree the\nviolation of human rights caused by climate change can be triggered\u2019 remains\ncontroversial, the application of human rights law to climate change damage\nfaces considerable obstacles. This tricky problem can also be identified in the\nHigh Commissioner\nfor Human Rights (OHCHR) report, which only recognizes climate change\nas an \u2018inherently global threat to human rights\u2019, but refuses to conclude that\n\u2018climate change itself is a human rights violation\u2019.[xiv]<\/a>\nTherefore, the utility of human rights instruments seems to be \u2018rhetorical\nrather than juridical\u2019.[xv]<\/a><\/p>\n\n\n\n

Shift to\nJuridical?<\/h2>\n\n\n\n

However, the growing relationship between\nhuman rights law and international environmental law does provide possibilities\nfor the justiciability of environmental issues, including the issue of climate\nchange. The safeguarding of the environment is necessary for the very existence\nof human beings and the full enjoyment of human rights. As noted by Weeramantry in the GabeTcovo-Nagymaros<\/em> case<\/a>, \u2018protection of the environment is likewise\na vital part of contemporary human rights doctrine, for it is a sine qua non<\/em> for numerous human rights\nsuch as the right to health and the right to life itself\u2019. Undoubtedly,\nenvironmental degradation poses a direct or indirect threat to the enjoyment of\nhuman rights. Anthropogenic climate change, in particular, has \u2018implications for the effective enjoyment of human rights<\/a>\u2019. To be specific, climate change infringes a series of human rights, including the rights\nto life, food, water, health, housing and self-determination.<\/a> Therefore, climate change, as a massive environmental issue, is well\ngrounded to be granted a human rights dimension. <\/p>\n\n\n\n

The common\nground shared by human rights and environment can be identified in legal\ndocuments at the national, regional and international levels. Explicit\nenvironmental rights have been codified in over one hundred countries\u2019\nconstitutions. <\/a>Notions like \u2018right to a general satisfactory\nenvironment\u2019 and \u2018rights to live in a healthy environment\u2019 can be identified in\nregional human rights treaties like the African Charter of Human and People\u2019s Rights<\/a> and the Additional\nProtocol to the American Convention on Human Rights in the Area of Economic,\nSocial, and Cultural Rights<\/a>. Though criticized as weak,\nthese provisions can be argued to indicate an infancy stage of substantive\nenvironmental rights. Notwithstanding the fact that no substantive\nenvironmental rights have been embedded under international law (there are no such\nindications of environmental rights in the 1948 Universal Declaration of Human Rights<\/a>), principle 1 of the 1972 Stockholm Declaration<\/a> asserts the necessity of\nadequate environment protection to the enjoyment of basic human rights. Despite\ntheir non-legally binding character, it is argued that articulating such a\nright will contribute to the creation of a substantive right to a healthy\nenvironment. It could be expected that once such an environmental right is recognised under international human\nrights law, climate change, with the increasing linkages between human rights and climate change\nreiterated by the UN General Assembly and the specialized agencies<\/a>, may constitute a violation if its threat to the rights of the victims\namounts to a breach of legal duty. <\/p>\n\n\n\n

The convergent relationship between human rights law and environmental\nprotection can also be verified in the jurisprudence of the increasing\nenvironmental caseload by human rights tribunals. Noteworthy are cases like L\u00f3pez Ostra<\/em><\/a>, Fadeyeva<\/em><\/a>, \u00d6nery\u0131ld\u0131z<\/em><\/a>, Moreno<\/em><\/a> and Ta\u015fkin<\/em><\/a> from the European Court of Human Rights (ECtHR), which demonstrate\ngovernments\u2019 positive obligation to \u2018regulate environmental risks, enforce\nenvironmental laws or disclose environmental information\u2019[xvi]<\/a>\nbased on the Court\u2019s creative interpretation of Article 2\n\u2018right to life\u2019 and Article 8 \u2018right to respect for private and family life\u2019<\/a>. Furthermore, in Hardy & Maile v. The United Kingdom<\/em><\/a>, the Court agrees that when there exists a risk of explosion, the\nobligation arises even though the potential harm hasn\u2019t been materialised. In <\/a>Budayeva<\/em> v. Russia<\/em><\/a>, the court found that Russia had failed to protect the inhabitants\u2019 right\nto life due to a local authority\u2019s inaction in the foreseeable mudslides\ndisasters. Moreover, in T\u0103tar v. Romania<\/em><\/a>, the Court specifies the state\u2019s obligation of invoking the precautionary\nprinciple for the first time in an environmental issue. In this light, it is\nfair to say that though there is no reference to substantive environmental\nrights under the European Convention on Human Rights, the environmental case\nlaw developed by the ECtHR indicates a national authority\u2019s obligation of\nprocedural environmental safeguards. It may be further argued that such\nprocedural environmental rights supported by the Court have formulated a regional customary\nlaw in Europe,[xvii]<\/a>\nwhich has reinforced the linkages between human rights and climate change.[xviii]<\/a>\nAs mentioned above, climate change has potential threats to the \u2018full enjoyment\nof human rights\u2019;[xix]<\/a>\nspecifically, its adverse effects such as the more frequent extreme weather,\nincluding hurricanes, droughts, floods and heatwaves, which may threaten \u2018the\nright to life\u2019. Therefore, when making decisions and adopting policies related\nto climate change, governments are expected to bear the notion of human rights\nin mind and have an obligation of due diligence. [xx]<\/a> In this regard, procedural rights, as\nKravchenko observes, can make great contributions to combating climate change.[xxi]<\/a><\/p>\n\n\n\n

Apart from courts\u2019 jurisprudence, the well-established procedural rights\nin multilateral environmental agreements (MEAs) are noteworthy, particularly, the UNECE Aarhus\nConvention on Access to Information, Public Participation in Decision-making\nand Access to Justice in Environmental Matters (the Aarhus Convention<\/a>). In spite of recalling Principle 1 of\nStockholm Declaration in its preamble, which claims human\u2019s fundamental right to\nlive in a qualified environment allowing dignity and well-being, the Aarhus\nConvention actually elaborates Principle 10 of the 1992 Rio Declaration by\nfocusing strictly on procedural rights in its content: individuals are granted\nappropriate access to environmental information, encouraged to participate in\nenvironmental decision-making process, and allowed effective access to judicial\nredress and remedy.[xxii]<\/a>\nDespite the endorsement of procedural environmental rights, the Convention is\ncriticised for it \u2018stops short, however, of providing the means for citizens\ndirectly to invoke this right\u2019.[xxiii]<\/a>\nNevertheless, it should be asserted that the Aarhus Convention has largely\nextended environmental rights and the corpus of human rights law.[xxiv]<\/a>\nAs Boyle suggests, \u2018procedural rights are the most important environmental\naddition to human rights law.\u2019[xxv]<\/a> More\nimportantly, the Aarhus Convention\u2019s doctrine on procedural rights, together\nwith its influence in the jurisprudence of the ECtHR, adds persuasiveness to the argument of procedural\nenvironmental rights development as a customary law in Europe, which implies a\nmoving away from a state-focused approach to addressing environmental issues. Additionally,\nboth the Convention and the jurisprudence can be interpreted as facilitating\nthe emergence of a substantive environmental right as a result of the virtuous\ncircle that exists within substantive and procedural rights: a high degree of compliance with\nprocedural environmental duties contributes to the creation and compliance of\nsubstantive environmental obligations<\/a>. Policies and decisions related to the anthropogenic climate change, if\nmade with the participation of the relevant stakeholders, will ensure the compliance\nof procedural rights to an adequate environment and further contribute to the establishment\nof substantive environment rights in a broader level. Therefore, the\ndevelopment of regional customary procedural environmental rights and the\nemergence of substantive environmental rights may broaden the scope for\naddressing climate change under human rights law. Consequently, there is a\npossibility of climate change litigation on the grounds of human rights\nviolation. In this sense, both the regional customary procedural rights and the\nemerging substantive environmental rights, may add a \u2018juridical perspective\u2019 to\nthe climate change problem.<\/p>\n\n\n\n

To conclude, a convergent relationship\nbetween human rights law and international environmental law has developed based\non the inherent linkages between human rights and environmental protection.\nDespite limited substantive environmental rights under the general international\nlaw, the enshrinement of substantive rights in national constitutions and the\nadoption of procedural rights in ECtHR environmental jurisprudence as well as\nin the Aarhus Convention, which can be justified as a regional customary law in\nEurope, may add impetus to the creation of a substantive right to a decent\nenvironment at the international level. In respect to the climate change\nproblem, the development of such procedural environmental rights and moreover,\nthe emergence of the substantive environmental rights are crucial as the notion\nof environmental rights provides the potential to address this unprecedented\nchallenge, which is confronting the whole of humankind currently, in a both rhetorical\nand juridical way.
<\/p>\n\n\n\n

\n\n\n\n

[i]<\/a>\nOle W. Pedersen, \u2018Climate Change and Human\nRights: Amicable or Arrested Development?\u2019 (2010) 1(2) Journal of Human Rights\nand the Environment 236, 240<\/p>\n\n\n\n

[ii]<\/a> <\/a>Simon Caney, \u2018Climate Change, Human Rights and Moral Thresholds\u2019 in\nStephen Humphreys (ed), Human Rights and\nClimate Change<\/em> (CUP 2010) <\/p>\n\n\n\n

[iii]<\/a> Stephen Humphreys, \u2018Introduction: Human Rights and Climate Change\u2019 in\nStephen Humphreys (ed), Human Rights and\nClimate Change<\/em> (CUP 2010)<\/p>\n\n\n\n

[iv]<\/a> Amy Sinden, \u2018Climate Change and Human Right\u2019 (2007) 27(2) J Land\nResources & Envt. L. 255<\/p>\n\n\n\n

[v]<\/a>\nStephen Trully, \u2018Like Oil and Water: A\nSkeptical Appraisal of Climate Change and Human Rights\u2019 (2009) 15 Australian\nInternational Law Journal 213<\/p>\n\n\n\n

[vi]<\/a> Caney (n 2) 72.<\/p>\n\n\n\n

[vii]<\/a> ibid 69.<\/p>\n\n\n\n

[viii]<\/a>\nRonald Dworkin, Taking Rights Seriously<\/em> (Harvard University Press 1978)<\/p>\n\n\n\n

[ix]<\/a> Daniel Bodansky, \u2018Introduction: Climate Change and Human Rights:\nUnpacking the Issues\u2019 (2010) 38 GA.J.INT\u2019L & COMP.L. 511,<\/a> 524<\/p>\n\n\n\n

[x]<\/a>\nPedersen (n1) 242.<\/p>\n\n\n\n

[xi]<\/a> Bodansky (n 9) 515.<\/p>\n\n\n\n

[xii]<\/a> Stephen Humphreys, \u2018Competing Claims, Human Rights and Climate Harms\u2019 in Stephen Humphreys\n(ed), Human Rights and Climate Change<\/em>\n(CUP 2010) 39<\/p>\n\n\n\n

[xiii]<\/a>\nJohn H. Knox, \u2018Climate Change\nand Human Rights Law\u2019 (2009) 50 VA. J. INT’L L. 163<\/p>\n\n\n\n

[xiv]<\/a> John H. Knox, ‘Linking Human Rights and Climate Change at the United\nNations’ (2009) 33 Harvard Environmental Law Review 477<\/p>\n\n\n\n

[xv]<\/a> Alan Boyle, \u2018Human Rights and the Environment: Where Next?\u2019 (2012) 23\nEJIL 613, 619<\/p>\n\n\n\n

[xvi]<\/a> ibid 615.<\/p>\n\n\n\n

[xvii]<\/a> Ole W Pedersen, \u2018European\nEnvironmental Human Rights and Environmental Rights: A Long Time Coming?\u2019 (2008) 21(1)\nGeorgetown Int\u2019L Envt. Law Review 73<\/p>\n\n\n\n

[xviii]<\/a> Pedersen (n 1) 247.<\/p>\n\n\n\n

[xix]<\/a> United\nNations Human Rights Council Resolution 7\/23 (2008)<\/p>\n\n\n\n

[xx]<\/a> Pedersen (n 1) 242.<\/p>\n\n\n\n

[xxi]<\/a> Svitlana Kravchenko, \u2018Procedural Rights\nas a Crucial Tool to Combat Climate Change\u2019 (2009) 38 Ga. J. Int’l & Comp.\nL.613, 648<\/p>\n\n\n\n

[xxii]<\/a> Patricia Birnie, Alan Boyle, Catherine Redgwell, International Law\n& the Environment<\/em> (3rd edn 2009 OUP) 274<\/p>\n\n\n\n

[xxiii]<\/a> Tim Hayward, Constitutional\nEnvironmental Rights<\/em>, (2005 OUP) 180<\/p>\n\n\n\n

[xxiv]<\/a> Birnie, Boyle and Redgwell (n 22) 274.<\/p>\n\n\n\n

[xxv]<\/a> Boyle (n 15) 616.<\/p>\n\n\n\n

Li Wang is a PhD student at Newcastle Law School. Li\u2019s research interests lie in the field of environmental rights, environmental constitutionalism, international environmental governance, and climate change.<\/h3>\n","protected":false},"excerpt":{"rendered":"

Li Wang The relationship between human rights law and international environmental law is by no means straightforward. Human rights law, characterised by \u2018absolutes and universals\u2019, seems to contradict with international environmental law, which bases itself on flexibility and reciprocity. However, … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3730,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[9],"class_list":["post-90","post","type-post","status-publish","format-standard","hentry","category-uncategorised","tag-environmentallaw"],"_links":{"self":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/90","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/users\/3730"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/comments?post=90"}],"version-history":[{"count":1,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/90\/revisions"}],"predecessor-version":[{"id":92,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/90\/revisions\/92"}],"wp:attachment":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/media?parent=90"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/categories?post=90"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/tags?post=90"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}