Systemic integration between climate change and human rights in international law?
| Author | Ottavio Quirico |
| Published date | 01 March 2017 |
| Date | 01 March 2017 |
| DOI | http://doi.org/10.1177/0924051917695210 |
| Subject Matter | Articles |
Article
Systemic integration
between climate change
and human rights in
international law?
Ottavio Quirico
School of Law, University of New England, NSW, Australia
Centre for European Studies, Australian National University, Canberra, Australia
European University Institute, Fiesole FI, Italy
Abstract
UN human rights organs have persistently invoked the integration of fundamental rights into the
UNFCCC regime and the Paris Agreement now provides that the ‘Parties should, when taking
action to address climate change, respect, promote and consider their respective obligations on
human rights’. How integration should be achieved is nevertheless a matter of international law
development. At the regional level, a tendency seems to progressively emerge to ground inte-
gration in the fundamental right to a sustainable environment. Against such a background, it is
argued in this article that a third generation environmental claim simplifies the complex estab-
lishment of a causal nexus between anthropogenic greenhouse gas emissions and first and second
generation fundamental rights. This would allow international human rights protection
mechanisms to be triggered based on (minimum) reduction targets under the UNFCCC regime.
The international recognition of a human right to a sustainable environment therefore emerges
as fundamental to determining human rights responsibility for climate change, with particular
regard to States. It thus facilitates systemically integrating fundamental rights into climate change
regulation and taking consequential institutional action. This argument adds strings to the bow of
those scholars who support the idea of intergenerational environmental justice on legal and
moral grounds.
Keywords
climate change regulation, UNFCCC regime, Kyoto Protocol, Paris Agreement, (tripartite) human
rights, UN and regional human rights protection systems, causation, basic right to a sustainable
environment, systemic integration
Corresponding author:
Ottavio Quirico, School of Law, University of New England, NSW 2351, Australia.
Email: oquirico@une.edu.au
Netherlands Quarterly of Human Rights
2017, Vol. 35(1) 31–50
ªThe Author(s) 2017
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DOI: 10.1177/0924051917695210
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1. Introduction
Scientific studies demonstrate that anthropogenic Greenhouse Gas (GHG) Emissions contribute to
increasing atmospheric temperatures, and exceeding the threshold of 2C above pre-industrial
levels would entail serious environmental consequences.
1
The accelerated pace of ice melting,
sea level rise, typhoons, droughts and hurricanes may affect fundamental rights, and compels the
adoption of specific policies, which can have further human rights implications.
2
From an insti-
tutional perspective, in the light of the global nature of climate change and the general reach of
fundamental rights, the main framework for addressing their reciprocal relationship is provided by
the UN. Given the quasi-universal scope of the organisation and its initiatives as to both climate
change and human rights, UN instruments can be considered to foster and crystallise the progres-
sive development of general international law on the matter.
3
However, climate change and human
rights have so far merged only to a limited extent within this context. UN human rights organs,
particularly the Human Rights Council (HRC), have invoked a more integrated approach under the
UN Framework Convention on Climate Change (UNFCCC).
4
This prompted UNFCCC organs to
generally acknowledge the importance of taking human rights into account in both GHG mitiga-
tion and adaptation policies.
5
At the regional level, different approaches have been taken to address the effects of climate
change on human rights. In the Asia-Pacific, where an overarching human rights framework is
missing, among fragmented initiatives, low-lying island States have assumed a critical role, fun-
damentally triggering UN action on the matter.
6
A similar pattern has been followed by the African
Union (AU), which has undertaken a more limited, but meaningful recognition of the relationship
between global warming and human rights, basically invoking the inclusion of fundamental rights
in climate change negotiations.
7
Conversely, although the Organisation of American States (OAS)
has acknowledged the existence of a relationship between climate change and human rights,
8
two
Inuit Petitions upholding State responsibility for the impact of GHG emissions on fundamental
claims have not (yet) prompted a clear answer by the Inter-American Commission on Human
1. IPCC, ‘Climate Change 2007: Synthesis Report’ (2008)
accessed 21 November 2016. The reg-
ar4_syr.pdf> accessed 21 November 2016; IPCC, ‘Climate Change 2014: Synthesis Report’ (2015)
.ipcc.ch/report/ar5/syr> accessed 21 November 2016.
2. IPCC, ‘Climate Change 2014: Impacts, Adaptation and Vulnerability’ (2014)
accessed 21 November 2016.
3. See, for instance, Herbert Hart, The Concept of Law (3rd edn, OUP 2012) 232-33.
4. UNFCCC (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107; see HRC Res 7/23 (2008) UN Doc
A/HRC/RES/7/23; HRC Res 10/4 (2009) UN Doc A/HRC/RES/10/4; UN Special Procedures Mandate Holders, ‘Cli-
mate Change and Human Rights’ (10 December 2014)
.aspx?NewsID¼15393&LangID¼E> accessed 21 November 2016; UN Special Procedures Mandate Holders, ‘Climate
Change and Human Rights’ (5 June 2015) ¼
16049&LangID¼E> accessed 21 November 2016.
5. UNFCCC COP-16, ‘The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group of the COP on
Long-term Cooperative Action under the Convention’ (15 March 2011) UN Doc FCCC/CP/2010/7/Add.1; UNFCCC
COP-21, ‘Adoption of the Paris Agreement’ (12 December 2015) UN Doc FCCC/CP/2015/L.9/Rev.1, Annex.
6. Small Island Developing States (SIDS), ‘Male´ Declaration on the Human Dimension of Global Climate Change’ (14
November 2007) accessed 21 November 2016.
7. AComHPR, ‘Climate Change and Human Rights and the Need to Study Its Impact in Africa’, Res 153 (XLVI) (Banjul,
25 November 2009).
8. OAS, ‘Declaration on Human Rights and Climate Change in the Americas’, UNGA Res 2429-XXXVIII-O/08
(Medellı´n, 3 June 2008).
32 Netherlands Quarterly of Human Rights 35(1)
Rights (IAComHR).
9
Finally, whilst only one dispute has so far raised the problem of State
Responsibility for GHG emissions in the light of human rights obligations within the Council of
Europe system,
10
the EU has developed its climate policies taking into account their implications
for fundamental rights.
11
Altogether, over a time span of around 11 years (2005-2016) a few initiatives have been
undertaken to disentangle the relationship between climate change and human rights and take
relevant action, but the results are deceiving. The two regimes are not yet sufficiently integrated, so
much so that the 2C target set by the UNFCCC is considered to be largely insufficient to protect
fundamental rights.
12
Therefore, more action has been invoked to govern the impact of anthro-
pogenic GHG emissions on basic claims, particularly at the UN level; pledges have been advanced
to put human rights ‘at the core of climate change governance’ .
13
Systemically, though, it is
uncertain what exactly human rights bodies and UNFCCC organs should do to integrate funda-
mental rights into the climate change discourse, and surprisingly the question is rarely posed the
other way around. Against such a background, this article co nsiders the relationship between
climate change and the duty to respect, protect and fulfil human rights
14
from a legal standpoint,
through the lens of core institutional initiatives at the regional and global level. The aim is to
understand if and how international institutions, notably UN organs, can systemically integrate the
two discourses and take consistent action.
15
The analysis demonstrates that institutional cooper-
ation can be achieved if basic substantive questions are preliminarily disentangled; a change in the
behaviour of stakeholders is only possible if the law is properly framed.
9. Inuit Petition Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the
United States (Sheila Watt-Cloutier v US) P-1413-05 (IAComHR, 7 December 2005); Arctic Athabaskan Council
Petition Seeking Relief from Violations of the Rights of Arctic Athabaskan Peoples Resulting from Rapid Arctic
Warming and Melting Caused by Emissions of Black Carbon by Canada (Arctic Athabaskan Council v Canada and
US) (IAComHR, 23 April 2013) accessed
21 November 2016.
10. Marangopoulos Foundation for Human Rights v Greece Complaint No 30/2005 (ECteSR, 24 April 2005).
11. Parliament and Council Directive (EC) 2009/29 amending Directive 2003/87/EC so as to improve and extend the
greenhouse gas emission allowance trading scheme of the Community [2009] OJ L140 63 Preamble, para 50.
12. OHCHR, ‘Report on the Relationship between Climate Change and Human Rights’ (15 January 2009) UN Doc
A/HRC/10/61, para 16; HRC, ‘Report of the Special Rapporteurs Aguilar, Knox, Alston, Heller and Dandan to the
Climate Vulnerable Forum on the Effects of Climate Change on the Full Enjoyment of Human Rights’ (30 April 2015)
para 4 accessed 21 November 2016.
13. UN Special Procedures Mandate Holders ‘Climate Change and Human Rights’ 2014 (n 4); UN Special Procedures
Mandate Holders ‘Climate Change and Human Rights’ 2015 (n 4); Working Group on the Durban Platform for
Enhanced Action, ‘Geneva Pledge on Human Rights in Climate Action’ (13 February 2015)
watch.org/wp-content/uploads/2015/02/The-Geneva-Pledge-13FEB2015.pdf> accessed 21 November 2016; UNGA,
‘Draft Outcome Document of the United Nations Summit for the Adoption of the Post-2015 Development Agenda’ (12
August 2015) para 10 <www.un.org/disabilities/documents/gadocs/a_69_l.85.docx>accessed 21 November 2016;
OHCHR, ‘Understanding Human Rights and Climate Change’, Submission to COP-21 (26 November 2015)
www.ohchr.org/Documents/Issues/ClimateChange/COP21.pdf> accessed 21 November 2016.
14. ‘Respect’ entails refraining from infringements; ‘protection’ implies preventing and punishing human rights violations
by third parties; and ‘fulfilment’ necessitates action to implement human rights (see Human Rights Commission,
‘Report of the Special Rapporteur Asbjørn Eide on the Right to Adequate Food as a Human Right’ (7 July 1987) UN
Doc E/CN.4/Sub.2/1987/23).
15. Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS
331, art 31 and ILC, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion
of International Law’ (13 April 2006) UN Doc A/CN.4/L.682, paras 37-43.
Quirico 33
The article proceeds in three steps. First, a brief presentation of the UN approach to the
relationship between climate change and fundamental rights shows how human rights bodies
and UNFCCC organs are far from systemically integrating the two regimes globally, despite
rhetorical invocation of convergence. Second, the analysis moves to exploring regional initia-
tives on climate change and human rights, with particular regard to the Asia-Pacific, African,
American and European systems, highlighting that institutional action is progressively grounded
in the invocation of a basic right to a sustainable environment. Third, the article focuses on the
substantive implications of the recognition of a fundamental right to a sustainable environment
and shows that this is crucial to establishing a causal nexus between anthropogenic GHG emis-
sions and human rights infringements. In conclusion, it is argued that the move from first and
second generation human rights, that is, individual civil, political, economic, social and cultural
rights, to collective third generation human rights, specifically the right to a sustainable envi-
ronment as part of the right to development,
16
is essential to determining human rights respon-
sibility for global warming, notably as concerns States. Institutional policies on climate change
and fundamental rights should therefore be grounded in the basic right to a sustainable environ-
ment not only regionally, but also globally, with particular regard to UNFCCC organs and UN
human rights bodies.
2. Depolarising the UNFCCC-HRC relationship under general
international law
The UN has grappled with the problem of climate change mainly via the FCCC, which, following
the classical scheme of multilateral environmental agreements, is administered by an annual
Conference of the Parties and implemented via the Kyoto Protocol
17
and the Paris Agreement.
18
The overall aim is the ‘stabilization of greenhouse gas concentrations in the atmosphere at a level
that would prevent dangerous anthropogenic interference with the climate system’.
19
That means
containing anthropogenic GHG emissions so as not to exceed a temperature increase of 2C above
pre-industrial levels.
20
Along these lines, a first commitment period under the Kyoto Protocol,
concerning the time span 2008-2012, was established at the third Conference of the Parties to the
UNFCCC (COP-3) in 1997. It provided an overall reduction target of 5 percent compared to GHG
emission levels in 1990.
21
A second commitment period, concerning the time span 2013-2020, was
outlined at COP-18 in Doha in 2012. It aims to reduce GHG emissions by 18 percent compared to
levels in 1990.
22
Under the Paris Agreement, which has (quasi-)universal effect, States determine
their commitment to GHG reduction targets for the time frame 2020-2025 according to the
estimates of the Intergovernmental Panel on Climate Change (IPCC).
23
The Agreement aims to
16. See Dinah Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991-2) 28 Stanford J Intl L
103, 122-25.
17. Kyoto Protocol (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 148.
18. Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) C.N.63.2016.TREATIES-
XXVII.7.d.
19. UNFCCC (n 4) art 2.
20. IPCC ‘Climate Change 2007’ (n 1); IPCC ‘Climate Change 2014’ (n 1).
21. Kyoto Protocol (n 17) art 3(1).
22. UNFCCC COP-18, ‘Doha Amendment to the Kyoto Protocol Pursuant to Its Art 3(9)’ (8 December 2012) UN Doc 1/
CMP.8, Annex I (c), inserting new paragraph 3.1-bis in the Kyoto Protocol.
23. UNFCCC COP-21 ‘Adoption of the Paris Agreement’ (n 5).
34 Netherlands Quarterly of Human Rights 35(1)
contain global temperature increase within 2C, and possibly 1.5C, above pre-industrial levels.
24
With specific regard to fundamental rights, the Preamble to the UNFCCC recognises the impor-
tance of ‘sustainable social and economic development’, which can be interpreted as an implicit
reference to the relevance of second generation human rights to climate change.
25
This is reaf-
firmed in Article 4(1)(f) of the UNFCCC and in Article 2(3) of the Kyoto Protocol. More expli-
citly, a preambular statement to the Paris Agreement provides that the ‘Parties should, when taking
action to address climate change, respect, promote and consider their respective obligations on
human rights’.
26
Action to recognise the relevance of fundamental rights to global warming has been undertaken
particularly by UN human rights organs. Indeed, the HRC has acknowledged the impact of climate
change on fundamental rights via a set of Resolutions adopted over eight years. Building on each
other, the Resolutions progressively recognise a link between climate change, environmental
protection, and human rights.
27
Based on HRC Resolution 7/23, in 2009 the Office of the UN
High Commissioner for Human Rights (OHCHR) adopted a key Report on the relationship
between climate change and fundamental rights.
28
The first part of the Report assesses the negative
effects of climate change on human rights, whereas the second part develops inferences as to how
fundamental rights can fit in the climate change discourse.
29
In light of the fourth IPCC assessment
on climate change, the Report concludes that global war ming causes environmental
deterioration,
30
and thus affects ‘the full range of human rights’.
31
Particularly threatened by ice
melting, sea level rise, and extreme weather events, the environment emerges as a pivotal element
connecting climate change and fundamental rights.
32
In this regard, although it recognises that
‘universal human rights treaties do not refer to a specific right to a safe and healthy environment’,
33
the Report indicates that the ‘United Nations human rights treaty bodies all recognise the intrinsic
link between the environment and the realisation of a range of human rights’.
34
Building on these
premises, in a more recent study pr epared in view of COP-21, the OHCHR emphasised that
integrating human rights and climate change requires identifying specific right holders and duty
bearers and outlining policies fulfilling such obligations.
35
Along the same lines, within the context
of his work on human rights and the environment, HRC Special Rapporteur John Knox prepared a
few reports on the relationship between climate change and fundamental rights. The reports
consider the importance of environmental protection within the context of the relationship between
24. ibid paras 21-23.
25. HRC, ‘Focus Report by Independent Expert John Knox on Human Rights and Climate Change’ (June 2014) 38
www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/ClimateChange.aspx> accessed 21 November 2016.
26. Paris Agreement (n 18) Preamble.
27. HRC Res 7/23 and 10/4 (n 4); Res 16/11 (2011) A/HRC/RES/16/11; Res 18/22 (2011) A/HRC/RES/18/22; Res 19/10
(2012) A/HRC/RES/19/10; Res 26/L.33 (2014) A/HRC/RES/26/L.33; Res 29/15 (2015) A/HRC/RES/29/15; Res 32/33
(2016) A/HRC/RES/32/33.
28. OHCHR ‘Report on the Relationship’ (n 12).
29. For an analytical presentation of the Report, see Marc Limon, ‘Human Rights Obligations and Accountability in the
Face of Climate Change’ (2009-2010) 38(3) Ga J Intl & Comp L 543, 548-59.
30. OHCHR ‘Report on the Relationship’ (n 12) paras 16-19 and 89-91.
31. ibid para 20.
32. ibid para 8.
33. ibid para 18.
34. ibid.
35. OHCHR ‘Understanding Human Rights’ (n 13) 9.
Quirico 35
climate change and human rights, but do not focus on a fundamental claim to environmental
protection.
36
3. Regional prospects: the emergence of the human right to a
sustainable environment as a basis for institutional cooperation
3.1. The progressive stance of Asia-Pacific small island states and African institutions
The Asia-Pacific is one of the areas most vulnerable to climate change, not only because of the
centrality of the primary sector to its economy,
37
but also owing to the presence of a myriad of low-
lying small island States.
38
The absence of a comprehensive human rights protection system in the
region has nonetheless prevented the definition of a coherent approach to the issue of climate
change and human rights. Instead, fragmented initiatives have flourished, recognising a link
between climate change and fundamental rights more or less consistently. For instance, the South
Asian Association for Regional Cooperation adopted the Declaration on Climate Change in
2008.
39
Other instruments include provisions that can be relied upon to address global warming;
for example, Article 28 of the ASEAN Declaration on Human Rights acknowledges the right to
live in a healthy environment as part of the claim to private and family life.
40
However, the most
significant initiatives have been undertaken by regional low-lying island States, which are threat-
ened with disappearance by sea level rise. Notably, in 2007 a Conference of Small Island States led
by the Maldives adopted the Male´ Declaration on the Human Dimension of Global Climate
Change. This is a concise instrument,
41
whose importance for the recognition of the impact of
global warming on human rights has not yet been adequately understood. Indeed, after the 2005
Inuit Petition to the IAComHR, the Male´ Declaration is the first document to have brought the
effects of climate change on human rights to the attention of the international community.
42
The
Declaration is particularly relevant from an institutional perspective, since it advocates interaction
at the universal level, and thus invites the UNFCCC COP to ‘seek the cooperation of the OHCHR
and the UN HRC in assessing the human rights implications of climate change’.
43
This triggered
the explorative initiatives of the HRC,
44
and ultimately led the Council to invoke the inclusion of
fundamental rights in the Paris Agreement.
Fundamentally, the Preamble to the Male´ Declaration highlights the importance of the ‘envi-
ronment’ as the ‘infrastructure for human civilisation and life’. In practice, based on this premise
36. HRC ‘Focus Report’ (n 25); HRC ‘Report on the Effects’ (n 12); HRC, ‘Report of the Special Rapporteur John Knox on
the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Envi-
ronment: Climate Change’ (1 February 2016) UN Doc A/HRC/31/52.
37. IPCC ‘Climate Change 2014’ (n 2) 1327 and 1371.
38. ibid 1613 and 1655.
39. SAARC, ‘Declaration on Climate Change’ (Dhaka, 3 July 2008)
saarc-declaration_dhaka.pdf> accessed 21 November 2016.
40. ASEAN, ‘Human Rights Declaration’ (Phnom Penh, 19 November 2012) ¼ASEAN-Human-
Rights-Declaration.pdf> accessed 21 November 2016.
41. SIDS ‘Male´ Declaration’ (n 6).
42. It is worth noting that the problem was raised by those people who live in an environment that is particularly affected by
global warming.
43. SIDS ‘Male´ Declaration’ (n 6) para 3.
44. HRC Resolutions (n 27).
36 Netherlands Quarterly of Human Rights 35(1)
and in light of the scientific assessm ents of the IPCC, the Preamble reco gnises that ‘climate
change poses the most immediate, fundamental and far-reaching threa t to the environment’,
particularly that of ‘small island, low-lying coastal, and atoll States’. Legally, this assessment
substantively translates into the acknowledgment that ‘the fundamental right to an environment
capable of supporting human society and the full enjoyment of human rights is recognised, in
varying formulations, in the constitutions of over one hundred States and directly or indirectly in
several international instruments’.
45
Institutionally, the ‘primacy of the UN process’ is under-
scored ‘as the means to address climate change’, and the UNFCCC and the Kyoto Protocol are
considered ‘important initial multilateral efforts to address climate change through global legal
instruments’.
46
This provides a basis for requesting the international community to stabilise
GHG emissions within a 2Crise.
47
A clear pattern thus emerges whereby GHG mitigation and
adaptation measures are considered obligatory to safeguard the en vironment, which is regarded
as a human right necessary to further protect other fundamental claims from the impact of
climate change.
48
A few interconnected initiatives show that a similar approach has been taken by African
countries, which are marginal contributors to GHG emissions but suffer heavily from the effects
of global warming.
49
First, the AU recognised the existence of a relationship between climate
change and human rights in 2007, via a Declaration on Climate Change and Development.
50
This
short document acknowledges the importance of the right to a sustainable environment, at least
implicitly, as part of the right to development
51
and a basis for further protecting human rights:
‘climate change could endanger the future well-being of the population, ecosystems and socio-
economic progress of Africa’.
52
Therefore, the Declaration calls for African States to commit to
regional adaptation strategies and GHG reduction targets under the UNFCCC.
53
Building on these
premises, in 2009 the African Commission on Human and Peoples’ Rights (AComHPR) adopted a
slightly more elaborate instrument, Resolution 153/2009.
54
Notably, the Preamble to the Resolu-
tion recalls the importance for climate change of ‘socially acceptable development policies and
programmes guided by human rights principles, including the right to development and the right of
all peoples to a satisfactory environment favourable to their development’,
55
as recognised in
Article II of the African Convention on the Conservation of Nature and Natural Resources.
56
Furthermore, the Resolution assumes that a lack of reference to human rights in international
climate change negotiations particularly threatens the rights to life, physical integrity and
45. SIDS ‘Male´ Declaration’ (n 6) Preamble (emphasis added).
46. ibid.
47. ibid para 1.
48. See Marc Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’ (2009) 33(2) Harvard
Envtl LR 439.
49. IPCC ‘Climate Change 2014’ (n 2) 1199.
50. AU, ‘Declaration on Climate Change and Development’ (Addis Abeba, 30 January 2007) Assembly/AU/Decl 4-VIII.
51. World Commission on Environment and Development (WCED), ‘Brundtland Report on Our Common Future’ (20
March 1987) UN Doc A/47/427, Annexe 1, Summary of Proposed Legal Principles for Environmental Protection and
Sustainable Development Adopted by the WCED Experts Group on Environmental Law.
52. AU ‘Declaration on Climate Change’ (n 50) Preamble.
53. ibid paras 1-12.
54. AComHPR ‘Climate Change’ (n 7).
55. ibid (emphasis added).
56. Adopted 1 July 2003, not yet into force, 1001 UNTS 3; see AComHPR ‘Climate Change’ (n 7) Preamble.
Quirico 37
livelihood, specifically of vulnerable populations.
57
Accordingly, the Assembly of the Heads of
State and Government of the AU is called upon to protect human rights from global warming and
to include human rights standards in climate change negotiations.
58
This approach is ultimately
underpinned by Article 24 of the African Charter on Human and Peoples’ Rights,
59
in connection
with the right to development under Article 22: ‘All peoples shall have the right to a general
satisfactory environment favourable to their development.’ In Ogoniland, this right was considered
by the AComHPR as preliminary to the enjoyment of other fundamental claims, particularly the
right to health.
60
3.2. Incomplete protection in the Inter-American system
According to the IPCC, on the American continent climate change especially affects human
settlements in the Southern Hemisphere.
61
Furthermore, part of North America is included in the
Arctic Circle, which is an ice-covered region severely harmed by global warming.
62
The continent
also includes two major GHG emitters, both in absolute terms and on a per capita basis. These are
the US and Canada,
63
which are currently not bound by reduction targets under the Kyoto
Protocol,
64
but recently signedthe Paris Agreement. With specificregard to the relationship between
climate change and human rights, the main institutional initiative is Resolution 2429/2008 of the
Organisation of American States (OAS).
65
By means of the Resolution, the OAS committed to
exploring ‘possible links between climate change and human rights’
66
and pursuing GHG adapta-
tion and mitigation policies, specifically aiming to increase the resilience of vulnerable States and
populations.
67
More precisely, the Resolution instructs the IAComHR, the main jurisdictional
body of the OAS, to assess possible connections between climate change and the full enjoyment
of human rights,
68
in collaboration with other regional and international bodies, namely the OAS
Department for Sustainable Development, HRC, OHCHR, and IPCC. In light of the American
Declaration of the Rights and Duties of Man,
69
the American Convention on Human Rights,
70
the
Additional Protocol of San Salvador (PSS),
71
and related human rights instruments, the Preamble
to Resolution 2429/2009 stresses that climate change is ‘a shared concern of all humankind’ and its
effects ‘have an impact on sustainable development and could have consequences for the full
57. AComHPR ‘Climate Change’ (n 7) Preamble.
58. ibid paras 1-4.
59. Adopted 27 June 1981, entered into force 21 October 1986, 1520 UNTS 217.
60. Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria Comm No 155/96
(AComHPR, 27 October 2001) [52]; see further AComHPR, ‘Climate Change and Human Rights’, Res 342 (LVIII)
(Banjul, 20 April 2016) Preamble.
61. IPCC ‘Climate Change 2014’ (n 2) 1499.
62. ibid 1439 and 1567.
63. World Bank Group, ‘State and Trends of Carbon Pricing’ (2014) 19
505431468148506727/pdf/882840AR0REPLA00EPI2102680Box385232.pdf> accessed 21 November 2016.
64. The US has not ratified the Protocol, whereas Canada withdrew in 2011.
65. OAS ‘Declaration on Human Rights’ (n 8).
66. ibid para 3.
67. ibid para 2.
68. ibid para 4.
69. OAS Res XXX (1948) OAS/Ser.L/V/I.4 Rev.9.
70. Adopted 22 November 1969, entered into force 18 July 1978, 1144 UNTS 123.
71. Adopted 17 November 1988, entered into force 16 November 1999, 28 ILM 156 (1989).
38 Netherlands Quarterly of Human Rights 35(1)
enjoyment of human rights’.
72
Most significantly, Article 11 of the PSS provides for ‘everyone’s
right to live in a healthy environment and to have access to basic public services’, to be protected,
preserved, and improved by the State Parties. However, since it is not covered by Article 19(6) of
the PSS, the right to a healthy environment under Article 11 is not subject to the jurisdiction of the
IAComHR and the Inter-American Court of Human Rights. It is thus non-justiciable. Along the
lines of Resolution 2429/2008, in 2011 the IAComHR urged States to give priority to fundamental
rights in climate change nego tiations, as well as in the establishment and impleme ntation of
mitigation and adaptation measures.
73
Surprisingly, though, the Commission has not been partic-
ularly reactive in addressing two crucial Inuit Petitions raising the issue of the impact of climate
change on human rights.
The first Inuit Petition was filed with the IAComHR by the Chair of the Inuit Circumpolar
Council, on behalf of herself and 62 other Inuit of the Arctic regions of the US and Canada, on 7
December 2005.
74
The petitioner claims that climate change has made Arctic lands less accessible
and more dangerous, thus affecting the Inuit lifestyle, and consequently several human rights. In
particular, the petitioner invokes the rights to enjoy traditionally occupied lands and property,
health, physical integrity, life, security, means of subsistence, residence, movement, inviolability
of the home, and culture.
75
Such claims are allegedly affected by environmental degradation,
which, based on the opinion formulate d by Judge Weeramantry in Gabc
ˇı
´
kovo-Nagymaros,is
considered to be covered by a customary and universal right to a sustainable environment under
general international law.
76
Consequently, the Petition upholds the responsibility of the US as a
major GHG emitter, on a per capita basis,
77
under the obligations to respect,
78
protect,
79
and
fulfil
80
human rights, claiming restitution in terms of both mitigation and adaptation measures.
81
The IAComHR, however, dismissed the Petition. The Court simply assumed that ‘the information
provided’ did not allow it to determine whether ‘the alleged facts would tend to characterise a
violation of rights protected by the American Declaration’
82
according to Article 26 of its Rules of
Procedure (Initial Review).
The second Inuit Petition was submitted to the IAComHR by the Arctic Athabaskan Council on
23 April 2013, on behalf of the Arctic Athabaskan people of the US and Canada.
83
The petitioner
claims that Canada has failed to regulate excessive black carbon emissions, thus affecting the
Arctic environment, specifically in breach of the obligation to protect human rights.
84
The no-harm
72. ibid (emphasis added).
73. IAComHR, ‘Annual Report: Legal Bases and Activities’ (2011) para 16
2011/Chap2.doc> accessed 21 November 2016; IAComHR, ‘Press Release on Climate Change and Human Rights’ (2
December 2015) accessed 21 November 2016.
74. Inuit Petition (n 9).
75. ibid 74-96.
76. ibid 74; Gabc
ˇı
´
kovo-Nagymaros Project (Hungary v Slovakia) (Merits) [1997] ICJ Rep 7, Separate Opinion Weer-
amantry 88, 91-2.
77. Inuit Petition (n 9) 69.
78. ibid 103.
79. ibid 105.
80. ibid 72.
81. ibid 103.
82. Inuit Petiton (n 9) Letter to Sheila Watt-Cloutier and others (16 November 2006).
83. Arctic Athabaskan Council Petition (n 9).
84. ibid 49.
Quirico 39
principle and the precautionary principle are crucial to the Petition,
85
although the fundamental
nature of the right to a sustainable environment is only implicitly invoked via Article 11 of the PSS
and OAS Resolution 2429/2008.
86
Environmental protection is also regarded as critical for the
enjoyment of other fundamental individual claims, notably the rights to property, health, means of
subsistence, and culture.
87
In light of this, the petitioner alleges that Canada is responsible not only
because of its quantitatively excessive black carbon emissions, but also owing to its territorial
proximity to the Arctic.
88
Consequently, along the lines of the first Inuit Petition, the Athabaskan
Council claims restitution in terms of both mitigation and adaptation measures.
89
Thus far, how-
ever, the IAComHR has not answered the questions raised by the Petition.
90
From a positivist perspective, it is at least arguable that the absence of recognition of the judicial
enforceability of the basic right to a sustainable environment under the PSS deprived the
IAComHR of a useful tool for considering the Inuit Petitions.
91
Otherwise, it would be difficult
to explain the inertia of the Commission. This is particularly so when considering the Commis-
sion’s mandate to investigate the relationship between climate change and fundamental rights
under OAS Resolution 2429/2008 and its recognition of the importance of States giving priority
to human rights in international negotiations and domestic climate policies. From a legal policy
standpoint, the relative inertia of regional institutions may have been influenced by the critical
stance of the US on the relationship between climate change and human rights. Indeed, supporting
the approach of major oil producing and consuming countries , in 2008 the US opposed the
approval of UN HRC Resolution 7/23, which then triggered the universal process of recognition
of the impact of climate change on fundamental rights.
92
More specifically, the US initially denied
that ‘a right to a ‘‘safe environment’’ or other similarly worded or conceived rights exist under
international law’.
93
Furthermore, the US took ‘the view that a ‘‘human rights approach’’ to
addressing climate change is unlikely to be effective’, since ‘climate change can be more appro-
priately addressed through traditional systems of international cooperation and international
mechanisms [ ...] including the UNFCCC process.’
94
A discrepancy was thus underscored, nota-
bly based on complex causal issues, including human and natural causes of climate change, the
multiplicity of sources and activities generating GHG emissions, and their long-term effect:
[...] climate change is a highly complex environmental issue, characterized by a long chain of steps
between the initial human activities that produce GHG emissions and the eventual physical impacts
that may result from those emissions. Emissions from all sources and all co untries determine the
85. ibid 51-2.
86. ibid 54-5.
87. ibid 57-78.
88. ibid 3.
89. ibid 54.
90. See the Annual Reports of the Commission: accessed 21
November 2016. Surprisingly, scholars have not paid much attention to the Petition either.
91. See Hari HM Osofski, ‘The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change and Indigenous Peoples’
Rights’ in Williams GC Burns and Hari HM Osofski (eds), Adjudicating Climate Change,State, National, and
International Approaches (CUP 2009) 272, 283-84.
92. Text to n 27.
93. US, ‘Observations on the Relationship between Climate Change and Human Rights’ (2008) para 4
www.ohchr.org/Documents/Issues/ClimateChange/Submissions/USA.pdf> accessed 21 November 2016.
94. ibid paras 4 and 12.
40 Netherlands Quarterly of Human Rights 35(1)
overall concentration of these gases in the atmosphere. Once in the atmosphere, each of the different
GHGs imposes a perturbation in the radiative energy budget of the Earth’s climate system (‘radiative
forcing’) which, in turn, increases global average surface temperatures. This warming then leads to the
eventual physical impacts that affect human society, such as changes to rain patterns and the earth’s
hydrological systems.
95
This stance was softened in the course of the process that led to the adoption of HRC Resolution
26/L.33 and later to the inclusion of fundamental rights in the Paris Agreement.
96
However, the US
Permanent Mission in Geneva still took a critical approach to the Resolution, with particular regard
to the recognition of the right to development,
97
which entails both an economic and environmen-
tal component.
98
3.3. The two-pronged European approach
Although it is not the most concerned region, Europe is also affected by climate change, with
significant negative consequences for transport, energy, tourism, agriculture, forestry, and health
systems.
99
The EU has adopted a regional response, committing to ambitious GHG reduction
targets under the UNFCCC,
100
the complementary Kyoto Protocol,
101
and the Paris Agreement.
102
Under the Kyoto Protocol, the EU committed to an 8 percent GHG reduction target by 2012,
compared to emission levels in 1990, and the target has been raised to 20 percent by 2020.
103
Under the Paris Agreement, the EU accepted a 40 percent GHG reduction target by 2030,
104
in
accordance with its 2030 Framework for Climate and Energy Policy,
105
and the Roadmap for
Moving to a Low-Carbon Economy outlines an 80-95 percent reduction commitment by 2050.
106
Currently, EU climate policies are mainly implemented via Directive 2003/87, which establishes
the EU Emission Trading System (ETS),
107
as improved and extended by Directive 2009/29/
95. ibid para 18 (citation omitted); see also paras 4 and 16-26.
96. Text to nn 26 and 27; under the Paris Agreement, the US envisages a 26-28 percent GHG reduction target by 2025,
compared to 2005 (US, ‘Cover Note on Intended Nationally Determined Contributions under the UNFCCC’)
www4.unfccc.int/submissions/indc/Submission%20Pages/submissions.aspx> accessed 21 November 2016.
97. US Delegation, ‘Statement on Human Rights and Climate Change’ (2 July 2015) HRC-29.
98. WCED ‘Brundtland Report’ (n 51).
99. IPCC ‘Climate Change 2014’ (n 2) 1267.
100. Council Decision (EC) 94/69 of 15 December 1993 on the conclusion of the United Nations Framework Convention
on Climate Change [1994] OJ L33 11.
101. Kyoto Protocol (n 17) Annex B; UNFCCC COP-18 ‘Doha Amendment’ (n 22) Annex B.
102. UNFCCC COP-21 ‘Adoption of the Paris Agreement’ (n 5) paras 21-23.
103. Council Decision (EC) 2002/358 of 25 April 2002 on the approval, on behalf of the European Community, of the
Kyoto Protocol to the UNFCCC [2002] OJ L130 1.
104. Latvia and European Commission, ‘Intended Nationally Determined Contribution of the EU and Its Member States’
(6 March 2015) EU2015.LV.
105. Commission ( EU), ‘Climate Ac tion, 2030 Frame work for Climat e and Energy Polic ies’ (2013) tp://
ec.europa.eu/smart-regulation/impact/planned_ia/docs/2013_clima_007_energy_climate_framework_en.pdf>
accessed 21 November 2016; Council (EU), ‘Conclusions on 2030 Climate and Energy Policy Framework’
(24 October 2014) SN 79/14.
106. Commission (EU), ‘Roadmap for Moving to a Low-Carbon Economy in 2050’ (8 March 2011) COM(2011)112.
107. Parliament and Council Directive (EC) 2003/87 establishing a scheme for greenhouse gas emission allowance trading
within the Community and amending Council Directive 96/61/EC [2003] OJ L275 32.
Quirico 41
EC.
108
Fundamentally, the ETS caps GHG emissions in the major EU industrial sectors by means
of tradable GHG allowances. Furthermore, the 2009 Efforts Sharing Decision defines GHG reduc-
tion targets for sectors that are not included in the EU ETS, such as construction, agriculture, and
transport.
109
Directive 2009/29 explicitly underscores the importance of fundamental rights for
climate policies, significantly under the Charter of Fundamental Rights of the European Union
(CFREU):
110
‘The Directive respects the fundamental rights and observes the principles recog-
nised in particular by the Charter of Fundamental Rights of the European Union’.
111
The CFREU was adopted in 2000 as a non-binding document. It subsequently became part of
the rejected Constitution for Europe,
112
and was turned into a binding instrument by means of the
Lisbon Treaty in 2009.
113
The Charter embeds a list of fundamental rights that is largely similar to
114
Besides classical first and second gener-
ation claims, however, the Charter acknowledges the basic status of environmental protection
under Article 37, according to which ‘A high level of environmental protection and the improve-
ment of the quality of the environment must be integrated into the policies of the Union and ensured
in accordance with the principle of sustainable development.’
115
This rule is a ‘twin’ of Article 11
of the Treaty on the Functioning of the European Union (TFEU),
116
which in turn recognises the
importance of environmental protection embedded in several primary rules of the EU: Article
191(2) of the TFEU, establishing a link between ‘environmental protection’ and ‘human health’,
Article 194 of the TFEU, linking energy and environmental preservation, and Articles 3(3) and
21(2) of the Treaty on European Union (TEU).
117
Regardless of whether it is considered to
establish a general principle or a fundamental right,
118
Article 37 of the CFREU provides guidance
for EU climate policies, which have been deemed ‘credible’ in a Report of the EU Directorate for
External Policies on climate change and human rights.
119
Thus, the recognition of the fundamental
role of a principle-right to a high level of environmental protection under Article 37 of the CFREU
has made a significant contribution to shaping climate change measures in the Union.
120
108. Directive 2009/29 (n 11).
109. Parliament and Council Decision (EC) 406/2009 on the effort of Member States to reduce their greenhouse gas
emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020 [2009] OJ L140 136.
110. Adopted 7 December 2000, entered into force 1 December 2009 [2000] OJ C364 1.
111. Directive 2009/29 (n 11) Preamble, para 50.
112. Treaty Establishing a Constitution for Europe [2004] OJ C310 1.
113. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community,
adopted 13 December 2007, entered into force 1 December 2009 [2007] OJ C306 1.
114. Adopted 4 November 1950, entered into force 3 September 1953, 213 UNTS 221.
115. Emphasis added.
116. As amended by the Lisbon Treaty (n 113): ‘Environmental protection requirements must be integrated into the
definition and implementation of the Union’s policies and activities, in particular with a view to promoting sus-
tainable development’ (emphasis added).
117. Adopted 7 February 1992 by means of the Maastricht Treaty, entered into force 1 November 1993 [1992] OJ C191 1.
118. EU Independent Experts on Fundamental Rights, Commentary on the Charter of Fundamental Rights of the European
Union (2006) 315 accessed 21 November 2016; David Anderson and Cian C Murphy,
‘The Charter of Fundamental Rights’ in Andrea Biondi, Piet Eeckhout and Stefanie Ripley (eds), EU Law after Lisbon
(OUP 2012) 155, 166.
119. Chri stel Cournil and others, Climate Change and Human Rights: EU Policy Options (EXPO/B/DROI/20 11/20,
2012) 28.
120. Karen E McDonald, ‘A Right to Healthful Environment – Human Rights and Habitats: Re-thinking Rights in an Age
of Climate Change’ (2008) 17(4) EEELR 213, 218.
42 Netherlands Quarterly of Human Rights 35(1)
As to the case law, within the Council of Europe system action was brought in the European
Committee of Social Rights ( ECteSR) on climate change grounds in Marangopoulos.Inthis
dispute, the Committee was called to make a decision on the allegation that Greece failed to
comply with its duty to protect public health against air pollution under Article 11 of the European
Social Charter (ESC),
121
inter alia, because of excessive GHG emissions inconsistent with the
UNFCCC and the Kyoto Protocol.
122
Assuming that the right to health embedded in Article 11 of
the ESC includes the ‘right to a healthy environment’, the Committee endorsed the claims of the
plaintiffs.
123
This approach follows the jurisprudence of the European Court of Human Rights
(ECtHR). Notably, in Ta
˘tar v Romania the Court upheld State responsibility for not preventing an
environmental accident by means of an extensive interpretation of Article 8 of the ECHR, expand-
ing the scope of the right to private and family life so as to encompass the ‘enjoyment of a healthy
and protected environment’.
124
This basically signals that, in the absence of a clear recognition of a
human right to a sustainable environment, the main human rights bodies in Europe are not fully
equipped to address climate change.
125
Should any case arise based on global warming in the
future, the different human rights organs, namely the ECtHR, will still be compelled to adjudicate
by stretching existing first and second generation individual claims. Such inadequacy was pointed
out in Hatton and others v United Kingdom:
It is true that the original text of the Convention [ECHR] does not yet disclose an awareness of the need
for the protection of environmental human rights [ ...] however [under] the European Union’s Charter
of Fundamental Rights [ ...] the member States of the European Union want a high level of protection
and better protection, and expect the Union to develop policies aimed at those objectives. On a broader
plane the Kyoto Protocol makes it patent that the question of environmental pollution is a supra-
national one, as it knows no respect for the boundaries of national sovereignty.
126
In order to fill the gap, several proposals have been put forward to adopt a Protocol Additional
to the ECHR, explicitly providing for a human right to a sustainable environment, based, inter alia,
on climate change.
127
The Committee of Ministers of the Council of Europe has nevertheless
rejected these proposals, assuming that the ECHR affords sufficient protection to the environment
based on classical first and second generation human rights.
128
Such inertia generates a paradoxical
121. Adopted 18 October 1961, entered into force 26 February 1965, 529 UNTS 89.
122. Marangopoulos Foundation for Human Rights v Greece (Merits) Complaint No 30/2005 (ECteSR, 6 December
2006).
123. ibid [195]-[196] and [221].
124. Ta
˘tar v Romania (App 67021/01) 27 January 2009 [112].
125. McDonald (n 120) 220; Ole W Pedersen, ‘The Janus-Head of Human Rights and Climate Change: Adaptation and
Mitigation’ (2011) 80(4) Nordic J Intl L 403, 411-22.
126. Hatton and others v United Kingdom (2003) EHRR 611, Dissenting Opinion of Judges Costa, Ress, Tu
¨rmen,
Zupancˇicˇ, and Steiner 41, [1] (citations omitted).
127. Parliamentary Assembly of the Council of Europe, ‘Environmental Accounting as a Sustainable Development Tool’
(2 March 2004) Recommendation 1653; ‘Environmentally Induced Migration and Displacement: A Twenty-first
Century Challenge’ (30 January 2009) Recommendations 1655 and 1862; ‘Renewable Energies and the Environment’
(25 June 2009) Recommendation 1879; ‘Challenges Posed by Climate Change’ (29 September 2009) Recommen-
dation 1883; ‘Drafting an Additional Protocol to the European Convention on Human Rights concerning the Right to a
Healthy Environment’ (30 September 2009) Recommendation 1885, paras 1 and 10.1.
128. Council of Europe, ‘Joint Reply of the Committee of Ministers to Recommendations 1883 (2009) and 1885 (2009)’
(18 June 2010) CM/AS(2010)Rec1883-1885.
Quirico 43
situation, whereby the EU, which is not specifically a human rights body, provides more advanced
protection for fundamental claims against climate change than the Council of Europe, a specialised
human rights organ. This antithesis will clearly emerge if the EU accedes to the ECHR, as provided
for in Article 6(2) of the TEU. The recognition of a human right to a sustainable environment in the
ECHR would be particularly meaningful for those States, such as Russia, that are Parties to the
Convention, but not to the EU, and are therefore not bound by the CFREU and EU regulation on
climate change. With specific regard to the possible exit of the UK from the Union, the recognition
of a fundamental right to a sustainable environment in the ECHR would continue to impose a
human rights constraint on the UK to pursue a GHG reduction policy that is currently in line with
EU standards, envisaging an 80 percent reduction target by 2050 under the Climate Change
Act 2008.
4. Achieving institutional integration based on the human right to
a sustainable environment: a systemic approach
Under general international law, the HRC is increasingly defining the relationship between climate
change and human rights within the context of environmental protection, which is nevertheless not
yet recognised as a fundamental right.
129
In fact, none of the Resolutions thus far adopted by the
HRC on climate change and human rights refer to a human right to a sustainable environment.
They only emphasise the effects of global wa rming on civil, political, economic, social, and
cultural rights. On this basis, the HRC is prompting UNFCCC organs to include human rights
in climate change negotiations, which has so far only resulted in a general preambular acknowl-
edgment of the relevance of fundamental rights to climate change. Such an outcome is consistent
with the fact that UN human rights organs, and particularly the HRC, have not yet substantively
disentangled the question of the impact of climate change on fundamental rights and their reci-
procal relevance. This makes it problematic to outline clear guidance for consistent institutional
action.
130
Therefore, the role of HRC special procedure mandate holders is crucial, for instance, to
assessing the impact of climate change on the right to health and taking consistent measures.
131
Fundamentally, however, regional experiences suggest that the main problem is clarifying the
status of the right to a sustainable env ironment under general international law. What would
therefore be the systemic impact of the universal recognition of a third generation fundamental
right to a sustainable environment on climate change?
129. See, for instance, Burns Weston and David Bollier, Green Governance: Ecological Survival, Human Rights, and the
Law of the Commons (CUP 2013) Addendum, 285.
130. See CIEL and CARE, ‘Climate Change: Tackling the Greatest Human Rights Challenge of Our Time’ (2015) 6-7
ulation of trade can provide a blueprint for human rights governance. Art 3.5 UNFCCC states that ‘[m]easures taken to
combat climate change, including unilateral ones, should not constitute a means of arbitrary or unjustifiable dis-
crimination or a disguised restriction on international trade.’ Environmental regulation is then embedded in arts XX
GATT (adopted 15 April 1994, entered into force 1 January 1995, 1867 UNTS 187) and XIV GATS (adopted 15 April
1994, entered into force 1 January 1995, 1869 UNTS 183), which may be interpreted so as to encompass climate
change (WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products (12 October 1998) WT/
DS58/AB/R; Gillian Triggs, ‘World Trade Organisation and Climate Change: A Clash of Civilisations?’ in Rosemary
Lyster (ed), In the Wilds of Climate Law (AAP 2010) 39, 42).
131. HRC ‘Focus Report’ (n 25) 11-37.
44 Netherlands Quarterly of Human Rights 35(1)
Substantively, as stated in the 2009 OHCHR Report, it is not easy to provide evidence of a
causal nexus between anthropogenic GHG emissions and breaches of first and second generation
human rights induced by environmental pollution.
132
In fact, the link between GHG emissions and
specific human rights breaches is blurred by other events, notably rising atmospheric temperatures
(climate change) and further environmental effects (general causation). This makes the breach of
first and second generation human rights a secondary consequence (specific causation) of anthro-
pogenic GHG emissions, according to the following scheme:
(1) anthropogenic GHG emissions !(2) rising atmospheric temperatures (climate change) !(3)
further environmental consequences, for instance, hurricanes (general causation) !(4) legal effects,
including breaches of (human) rights of (present and future) generations (specific causation).
133
Even if in some cases establishing an objective causal nexus is not excessively complex,
specifically, with respect to the right to self-determination,
134
attributing responsibility can still
prove subjectively difficult, in light of the plurality of sources of GHG emissions.
135
This was
clearly underscored by the US District and Appeals Courts for the Northern District of California in
Kivalina.
136
Given that ‘greening’ classical human rights is insufficient to establish responsibility
for GHG emissions, the advantage of recognising a human right to a sustainable environment,
conceived of not only as a moral stance but also as a positive Hohfeldian claim-duty relation,
137
would lead to simplifying causation. In fact, under the obligations to respect, protect, and fulfil the
right to a (climatically)
138
sustainable environment, a State could be held responsible for the sole
fact of emitting excessive GHG into the atmosphere, without proving the breach of any further
individual rights.
139
Specific causation would therefore be excluded and evidence should only be
adduced with respect to general causation, shifting the burden of proof to the defendant.
140
Responsibility could thus be simply attributed proportionately to excessive GHG emissions,
141
based on (minimum) reduction commitments outlined under the UNFCCC regime, directly trig-
gering human rights protection mechanisms.
142
The UNFCCC regime would therefore define the
132. OHCHR ‘Report on the Relationship’ (n 12) para 96.
133. HRC Res 7/23 and 10/4 (n 4); OHCHR ‘Report on the Relationship’ (n 12) para 70 and Annex 131-32.
134. IPCC ‘Climate Change 2014’ (n 2) 1618; OHCHR ‘Report on the Relationship’ (n 12) para 41.
135. OHCHR ‘Report on the Relationship’ (n 12) para 70. For a scholarly viewpoint, see Alan Boyle, ‘Human Rights and
the Environment: Where Next?’(2012) 23(3) Eur J Intl L 613, 640-41.
136. Native Village of Kivalina and City of Kivalina v ExxonMobil Corporation and others (US District Court, Northern
District of California, Oakland Division, Order Granting Defendants’ Motions to Dismiss for Lack of Subject Matter
Jurisdiction) 663 F.Supp.2d 863 (30 September 2009) [32]; Kivalina 696 F.3d 849 (Ninth Circuit Court of Appeals, 21
September 2012).
137. Wesley Newcomb Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26(8) Yale LJ
710; Tim Hayward, Constitutional Environmental Rights (OUP 2005) 38.
138. See Derek Bell, ‘Climate Change and Human Rights’ (2013) 4(3) WIREs Climate Change 159, 163-64, who speaks of
‘a human right to climatic stability’.
139. See Pedersen (n 125) 412.
140. Hayward (n 137) 103-6.
141. Kristin Schrader-Frechette, Taking Action, Saving Lives,Our Duties to Protect Environmental and Public Health
(OUP 2007) 172-75.
142. See Daniel A Farber, ‘Apportioning Climate Change Costs’ (2008) 26(1) UCLA J Envtl L and Poly 21, 40; McDonald
(n 120) 220-22; see also Marangopoulos (n 122) [113]-[114].
Quirico 45
acceptable level of environmental risk posed to fundamental rights by climate change.
143
In other
words, recognising the environment as an object of direct human rights protection, as opposed to
indirect protection via classical first and second generation fundamental rights,
144
would essen-
tially shorten the causal link between GHG emissions and emitters and human rights breaches. This
is the logical consequence of the fact that environmental protection is necessary to enjoy all other
fundamental rights. Therefore, the right to a sustainable environment should be conceived of as a
basic norm (Grundnorm)
145
underpinning all other human rights.
146
Following the interpretation
proposed by James Nickel, this is a powerful argument in support of the indispensability of
recognising a human right to a sustainable environment because it proves that weaker protection
is insufficient to shield fundamental rights from climate change.
147
The international acknowledgement of a fundamental right to a sustainable environment seems
therefore crucial to systemically linking UN regulation on climate change and human rights. This
would ‘only’ require a human rights interpretation of the long-established customary no-harm
rule,
148
which is already embedded in the UNFCCC: ‘States have [ ...] responsibility to ensure
that activities within their jurisdiction or control do not cause damage to the environment of other
States or of areas beyond the limits of national jurisdiction.’
149
For the time being, the no-harm rule
itself can be relied upon as a substitute for a human right to a sustainable environment. A strict
application of such a norm, based on excessive GHG emissions,
150
allows attribution of respon-
sibility irrespective of further environmental consequences and their impact on human rights.
151
Along these lines, in 2002 the Pacific island State of Tuvalu threatened to bring an action in the
International Court of Justice against the US and Australia for not acceding to the Kyoto
Protocol.
152
The District Court of The Hague upheld this approach in Urgenda v The Netherlands,
based on a general duty of care and thus on negligence:
[...] the current global emissions and reduction targets of the signatories to the UN Climate Change
Convention [-20 percent to -30 percent for the EU under the Doha Amendment to the Kyoto Protocol]
are insufficient to realise the 2target [ ...] the State [of the Netherlands] is obliged to take measures in
its own territory to prevent dangerous climate change (mitigation measures) [ ...] the possibility of
143. See James W Nickel, ‘The Human Right to a Safe Environment: Philosophical Perspectives on Its Scope and Jus-
tification’ (1993) 18(1) Yale J Intl L 281, 285.
144. Marcus Du
¨well and Gerhard Bos, ‘Human Rights and Future People — Possibilities of Argumentation’ (2016) 15(2)
JHR 231, 238.
145. See Hans Kelsen, Pure Theory of Law (first published 1934, Max Knight tr, UCP 2008) 193.
146. Shelton (n 16) 112-17; Nickel (n 143) 288; Schrader-Frechette (n 141) 125; Du
¨well and Bos (n 144) 233-44.
147. Nickel (n 143) 291-92; Du
¨well and Bos (n 144) 245.
148. Trail Smelter (US v Canada) (Arbitral Tribunal, 16 April 1938 and 11 March 1941) RIAA vol III 1905; UN Con-
vention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994, 1883 UNTS 3) art
194(2); see also the ‘Declaration of the UN Conference on the Human Environment’ (Stockholm 16 June 1972) UN
Doc A/Conf.48/14/Rev.1, Principle 21; ‘Declaration of the UN Conference on Environment and Development’ (Rio
14 June 1992) UN Doc A/Conf.151/126, Principles 2, 15 and 16; ILC, ‘Draft Articles on Prevention of Trans -
boundary Harm from Hazardous Activities’ in ‘Report of the International Law Commission on the Work of Its
56th Session’ (23 April–1 June and 2 July–10 August 2001) UN Doc A/56/10, 146.
149. Preamble.
150. Farber (n 142) 40.
151. McDonald (n 120) 220-22.
152. Rebecca Elizabeth Jacobs, ‘Treading Deep Waters: Substantive Law Issues in Tuvalu’s Threat to Sue the United
States in the International Court of Justice’ (2005) 14(1) Pac Rim L & Poly J 103.
46 Netherlands Quarterly of Human Rights 35(1)
damages for those whose interests Urgenda represents, including current and future generations of
Dutch nationals, is so great and concrete that, given its duty of care, the State must make an adequate
contribution, greater than its current contribution, to prevent hazardous climate change.
153
Although it is still subject to appeal, this stance was upheld in Kelsey Cascade Rose Juliana and
others v US.
154
In this case, the US District Court of Orego n rejected a motion to dismiss a
complaint for damages caused by excessive CO
2
emissions under the (inter-temporal) constitu-
tional rights to life, liberty, and property, underpinned by a claim to a stable climate.
155
Reversing
Kivalina, the Court assumed that the ‘[US] Environmental Protection Agency’s action/inaction
with respect to the regulation of greenhouse gases allegedly results in the numerous instances of
emissions that purportedly cause or will cause the plaintiffs’ harm’.
156
The task of determining
issues of causation and redress in detail was nevertheless left to the trial judge.
157
Fundamentally,
though, customary and UNFCCC rules have the potential to compel reparation for environmental
damage
158
but do not trigger human rights procedures.
159
Therefore, based on general causation
the no-harm rule permits a proportionate determination of the responsibility of States that do not
respect binding commitments under the Kyoto Protocol, and prospectively the Paris Agreement.
However, specific causation must still be proved to activate human rights enforcement mechan-
isms. Interpreting the no-harm rule as a human right is therefore necessary to provide a direct basis
for action in domestic, regional and universal human rights bodies, particularly the UN HRC.
160
The Special Rapporteur on Human Rights and the Environment has pointed out that the UN and
general international law do not yet recognise a human right to a sustainable environment.
161
However, in light of the fundamental character of environmental prot ection,
162
Knox has not
excluded the possibility of considering such a right a general principle of law.
163
In fact, in addition
to a few regional instruments, particularly the ACHPR and the PSS, since 1976 more than 90 States
have embedded the human right to a sustainable environment in their constitutional texts.
164
So far,
though, the Rapporteur has taken a prudent stance. Knox recognised procedural environmental
rights codified in the Aarhus Convention,
165
but substantively only conceded that ‘States have
153. Urgenda Foundation v The State of The Netherlands C/09/456689/HAZA13-1396 (Hague District Court, 24 June
2015) [4.65] and [4.89] (citations omitted). On the required standard of liability, see also Hayward (n 137) 106-10).
154. Kelsey Cascade Rose Juliana and others v US 6:15-cv-1517-TC (US District Court of Oregon).
155. ibid (Order and Findings and Recommendation, 8 April 2016).
156. ibid 10.
157. ibid 11-2.
158. ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’ in ‘Report on the Work of the 56th
Session’ (n 148) 26.
159. See Caroline Dommen, ‘Claiming Environmental Rights: Some Possibilities Offered by the United Nations’ Human
Rights Mechanisms’ (1998) 11(1) Geo Intl Envtl L Rev 1.
160. CIEL, ‘Human Rights and Climate Change: Practical Steps for Implementation’ (2009)
files/bueros/genf/06598.pdf> accessed 21 November 2016.
161. HRC, ‘Preliminary Report of the Independent Expert John Knox on the Issue of Human Rights Obligations Relating
to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’ (24 December 2012) UN Doc A/HRC/22/
43, para 14.
162. Text to n 146.
163. HRC ‘Preliminary Report’ (n 161) para 14.
164. HRC, ‘ Report of the Independent Expert Jo hn Knox on the Issue of Human Rights Obli gations relating to the
Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’ (3 February 2015) UN Doc A/HRC/28/61,
para 73.
Quirico 47
obligations to protect against environmental harm that interferes with the enjoyment of human
rights’.
166
It therefore seems that practice is heading towards the recognition of a fundamental
claim to environmental protection,
167
which is nevertheless not yet internationally sanctioned.
168
For the time being, acknowledging that environmental sustainability underpins all human rights is
insufficient to trigger human rights protection mechanisms based on excessive GHG emissions.
Thus, proving a further breach of specific first and second generation fundamental claims is
required. For instance, relying, inter alia, on Ogoniland, Knox recognised that environme ntal
protection is particularly important for the enjoyment of the right to health, and imposes on States
an obligation to ‘prevent pollution and ecological degradation from oil production’.
169
Such an
approach, though, is suitable when the source of pollution is localised, as in Ogoniland, where oil
development practices by the State of Nigeria and partner private corporations, for example, Shell
Oil, polluting the environment and causing health problems, were in issue. Nevertheless, this is
inadequate to resolve problems of causation and attribution of responsibility when there are
widespread sources of pollution, as in the case of climate change.
170
The stance of Professor Knox is less progressive than that of his predecessor Fatma Zohra
Ksentini, former UN Special Rapporteur on Prevention of Discrimination and Protection of Mino-
rities. In a 1994 document on Human Rights and the Environment, Ksentini recognised the
existence of an omnium and erga omnes human right ‘to a satisfactory environment [ ...]atthe
regional and universal level’.
171
This view implements the idea of ‘environmental welfare’, along
the lines of a ‘communitarian’ approach to ‘global’ society that is based on trans-border inter-
individual relations, rather than interstate ones. It includes ‘the [precautionary and inter-temporal]
possibility of reciprocity with those not yet born’.
172
With respect to climate change, such an
approach would facilitate holding States responsible before international human rights organs for
exceeding (minimum) GHG emission targets under the UNFCCC regime. Furthermore, this stance
would be conductive to overcoming the problem of the apparent inconsistency between the terri-
torial scope of first and second generation human rights and the transboundary nature of GHG
165. Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environ-
mental Matters (adopted 25 June 1998, entered into force 30 October 2001, 2161 UNTS 447); see the HRC ‘Report on
Human Rights Obligations’ (n 164) paras 25-71.
166. HRC, ‘Mapping Report of th e Independent Expert John Knox on the Issue of Human Rig hts Obligations relating
to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’ (30 December 2013) UN Doc
A/HRC/25/53, para 4 4.
167. Joseph L Sax, Defending the Environment: A Strategy for Citizen Action (Knopf 1971) 160-61. Hayward convincingly
argues that procedural environmental claims necessarily require a substantive human right to a sustainable envi-
ronment, see Hayward (n 137) 58 and 86.
168. Boyle (n 135) 627-28.
169. HRC ‘Mapping Report’ (n 166) para 53.
170. HRC ‘Report on Human Rights Obligations’ (n 164) para 106.
171. HRC, ‘Final Report of the Special Rapporteur Fatma Zohra Ksentini on Human Rights and the Environment’ (6 July
1994) UN Doc E.CN.4/Sub.2/1994/9, para 242 and Annex I, Draft Principles on Human Rights and the Environment
22, pts I and IV; see also Shelton (n 16) 131-2 and Boyle (n 135) 634-35. In practice, locus standi should be conferred
on the State acting on behalf of individuals (Hayward (n 137) 55 and 98).
172. Edith Brown Weiss, ‘Intergenerational Equity: a Legal Framework for Global Environmental Change’ in Edith
Brown Weiss (ed), Environmental Change and International Law (UNUP 1992) 385, 395-412; Wilfred Beckerman
and Joanna Pasek, Justice, Posterity, and the Environment (OUP 2001); Richard P Hiskes, ‘Environmental Human
Rights and Intergenerational Justice’ (2006) 7(3) HR Rev 81, 93; Bridget Lewis, ‘Human Rights Duties towards
Future Generations and the Potential for Achieving Climate Justice’ (2016) 34(3) NQHR 206.
48 Netherlands Quarterly of Human Rights 35(1)
emissions.
173
As to reparation, the Draft Principles include measures aiming ‘at the prevention of
environmental harm, at the provision of adequate remedies, and at the sustainable use of natural
resources’.
174
Along the lines of the general rules established under the ILC’s 2001 Draft Articles
on State Responsibility,
175
these provisions are consistent with the request for mitigation and
adaptation policies formulated in the first and second Inuit Petitions to the IAComHR.
176
The same comprehensive approach as the Ksentini Report has been adopted by other initiatives,
particularly the 1999 UNESCO Bizkaia Declaration on the Human Environment.
177
Outside the
UN, the Draft Statute of the International Environmental Agency and the International Court of the
Environment
178
goes as far as to propose the establishment of a general governance body and an
international jurisdiction in the matter.
179
Without going this far, for the time being violations of
the human right to a sustainable environment could be primarily taken into account in the legis-
lative process and secondarily monitored and adjudicated upon internationally by the UN HRC, or
by UN human rights treaty bodies,
180
depending on the instrument adopted for recognising such
a right.
5. Conclusion
Institutional integration between climate change and human rights is far from achieved regionally
and internationally. Howeve r, a regional tendency is progressively emerging to su bstantively
ground integration in the human right to a sustainable environment. Systemically, such a claim
avoids the complexities of establishing a causal nexus between anthropogenic GHG emissions and
first and second generation human rights, directly triggering international human rights protection
mechanisms based on (minimum) reduction targets under the UNFCCC regime. Arguably, estab-
lishing the human right to a sustainable environment internationally is therefore crucial to deter-
mining human rights responsibility for global warming, with particul ar regard to States. This
would consequently shape the climate policy of UNFCCC agents and UN human rights bodies,
along the lines of the WTO in the field of trade,
181
which would in turn facilitate uniform action by
regional organs.
182
Climate change thus has the potential to decisively prompt the definition of the fundamental
right to a sustainable environment as a basic rule (Grundnorm) within the global human rights
protection system. It therefore adds a few strings to the bow of those scholars who have supported
the idea of intergenerational environmental justice on legal and moral grounds since the 1970s. In
173. OHCHR ‘Report on the Relationship’ (n 12) paras 84-88; HRC ‘Mapping Report’ (n 166) paras 62-8; HRC ‘Report on
Human Rights Obligations’ (n 164) paras 84-92; Shelton (n 16) 134.
174. ILC ‘Final Report’ (n 171) pt IV.
175. ILC ‘Draft Articles’ (n 158) arts 42-48.
176. Text to nn 81 and 89.
177. UN Doc 30 C/INF.11.
178. ICE Coalition,‘Draft Statute ofthe International EnvironmentalAgency and the InternationalCourt of the Environment’
(1992)ite/attachments/article/50/Draft%20Statute%20of%20the%20International%
20Environmental%20Agency%20and%20the%20International%20Court%20of%20the%20Environment%
20p.pdf> accessed 21 November 2016.
179. ibid arts 9-10.
180. Du
¨well and Bos (n 144) 245-46; Kelsen (n 145) 75.
181. Triggs (n 130) 50.
182. As envisaged in HRC Res 32/33 (n 27) Preamble.
Quirico 49
contrast with the long terms of international procedures, and particularly diuturnitas necessary for
the establishment of customary opinio juris,
183
this process should be accelerated. In fact, accord-
ing to IPCC estimates, not much time is left to take action so as to at least contain temperature
increase within 2C,
184
a threshold that is not even considered sufficient to avoid severe harm to
basic rights. The human right to a (climatically) sustainable environment could thus be posited by
simply recognising the fundamental nature of the already universally established no-harm rule.
Acknowledgement
The author is grateful for the advice received during the review process.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publi-
cation of this article.
Funding
The author received financial support for research through the ANU Centre for European Studies Fellowship
Programme.
183. North Sea Continental Shelf (Germany v Denmark, Germany v Netherlands) [1969] ICJ Rep 3 [74].
184. IPCC ‘Climate Change 2007’ (n 1); IPCC ‘Climate Change 2014’ (n 1); HRC Res 32/33 (n 27) Preamble. This raises
the more general question as to whether or not the ‘primitive’ international law-making machinery is adequate to
address the regulatory challenges of the twenty-first century, see Hart (n 3) 227.
50 Netherlands Quarterly of Human Rights 35(1)
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