How Should Human Rights Groups Take on Climate Change?
Hint: Reframing Everything in Rights-Talk Isn’t Enough
The large, international human rights organizations came rather late to see climate change as integral to their mission. I shared this failing — for years I was much more compelled by tangible acts of murder and destruction taking place in front of our faces than the amorphous threat to the planet. As frightening as the prospect of climate change was, it seemed a problem best left to specialist groups and environmental engineers rather than rights activists.
This attitude of yore was inexcusable, but it was partly explained by a conceptual difficulty. When State X tortures someone, we know exactly who suffered what, and who is responsible. Or when State Y dams a river, resulting in crop failure in State Z, the causal relationship is not that hard to parse. Once you know who was harmed and who is responsible, the call to action is straightforward. But when the temperature rises globally, threatening mass extinction and suffering, who exactly caused this, and when? Even harder is the question of who is responsible for the victims. The answers to these questions will be complex and disputed, and will not fall easily into pre-existing constructs of international law.
The safety of the environment was first framed as a right in 1972, at a UN global conference that produced the Stockholm Declaration on the Human Environment. Its first principle states people have “the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.” Usually called the right to a healthy environment, this principle found its way into numerous national constitutions and regional conventions. Regional human rights conventions in Africa and the Arab region recognized the right, and the 1998 Aarhus Convention in the European region and the 2018 Escazú Agreement in Latin America established procedural rights to public participation and access to information in the context of a right for every person and future generations to live in a healthy environment.[1] The UN Human Rights Council also recognized the right in 2021 and established a Special Rapporteur on Human Rights and Climate Change. Most recently, the right was adopted by the UN General Assembly in 2022, and may at some point be taken up as a topic of treaty-making as it appears in none of the standard international human rights treaties.
The incorporation of environmental protection into the human rights canon can be explained by the recognition that without a healthy environment, the right to life (and indeed, all other human rights) ceases to exist. The human rights framework in international and domestic law is also far more built out in terms of judicial precedent, special reporting mechanisms and enforceability than that of international environmental law.[2]
Despite this international momentum on recognizing a human right to a healthy environment, we have miles to go on making the right clear and actionable. Many human rights groups use the right as short-hand for all the ways that human-caused environmental disasters affect other rights. Attacks on environmental activists, however worthy of condemnation, are not attacks on the environment itself,[3] but for a time this was a predominant issue in the environmental programs of human rights groups. Another favorite topic was how very specific polluters (and their enabling governments) harm particular populations, violating their rights to health, food, shelter, livelihood, etc. John Knox, the first Special Rapporteur, issued Framework Principles on Human Rights and the Environment that reflects the instrumental approach of environmental safety as a required enabling condition for other rights. The Framework Principles are stated in very general ways that reflect this — nations should respect a host of rights exercised concerning the environment, protect the rights of those most vulnerable to environmental harm, provide for and facilitate public participation in decision-making related to the environment, etc.
This is all well and good, but it still seems far from the clarity of a law that State X must reduce its greenhouse emissions to a set figure or be guilty of a rights violation. Denominating something as a “right” carries moral cachet, but more critically, it signals there ought to be legal enforceability. When it comes to actual enforcement of commitments, however, the view is discouraging. The Kyoto Protocol failed to achieve its goal of reducing emissions to 5 percent below 1990 levels, and the Paris Agreement allows nationally determined carbon reduction commitments that are unlikely to keep global warming below two degrees Celsius. Since the human rights movement is all about achieving enforcement of rights against steep odds, this should give them an agenda on climate change too.
Environmental legal activists have seized this task. The weakness of international law hasn’t deterred a veritable tidal wave of climate litigation at the national level. Many of these cases have failed, but some produced exactly the result sought: a determination that a given country is not doing enough to protect the global climate for present and future generations. The signature case was Urgenda Foundation, where The Netherlands was found by an appellate court to have breached its duty to protect against “irreversible changes to worldwide ecosystems and liveability of our planet” and the rights harms that would result. The Supreme Court of the Netherlands, ratifying this conclusion, even specified that The Netherlands should cut its emissions by 25 percent by the end of 2020.[4] A subsequent case extended the duty of care to corporations, holding that Royal Dutch Shell PLC had also failed to abide by human rights principles in contributing to global greenhouse emissions. 2023 promises a new barrage of climate action cases, many brought by minors, trying to hold governments to concrete goals on a variety of legal theories, including human rights.
This is one of the more promising avenues to force governments to bite the hand of the fossil fuel industry but advances via litigation are not reproducible in every country, especially as there is no consensus on the precise duties of states or corporations in reducing emissions, or whether the commitments of the 2016 Paris Agreement are domestically enforceable. One important initiative to watch is the UN resolution sponsored by Vanuatu, a country on the front line for climate destruction, asking the International Court of Justice for an advisory opinion as to whether other countries are obligated to prevent harm by reducing their greenhouse gas pollution. Now that the resolution has passed, human rights groups need to brief the issues ferociously.
There are several big obstacles to deriving an international obligation to reduce greenhouse emissions. One is the reluctance of courts to read international human rights instruments as creating duties for a given state to protect the rights of foreigners outside its borders.[5] Another is the problem of prospective harm — in those countries contributing to climate change but not yet suffering its worst effects, you would need to argue the interests of future generations, which is not always a legally recognized basis for a lawsuit. Some have argued that climate change will require a legal conceptualization of the environment as a collective global good that every country must protect for future generations.[6] This would be an important step for a globalizing world, and potentially a precedent for managing other global crises.
The problem of creating a universal duty of every state to protect the global environment for future generations will keep rights theorists busy for quite a while. But we can’t wait. The 2023 report of the Intergovernmental Panel on Climate Change (IPCC), the UN body of climate experts, warns that the world is likely to cross the point where it can head off catastrophic warming unless nations drastically transform their economies and transition from fossil fuels.
The IPCC report grabbed headlines for a day and then vanished as everyone went back to consumption as usual. Human rights groups covered the report and called for government action to shift from fossil fuels. This is a welcome shift from covering the latest attack on environmental activists and calling it an environmental “program,” but it is still about decrying what has been done rather than body-blocking our impending planetary destruction. How can large, well-funded organizations use their leverage to move governments?
That would entail very different types of activism that environmental groups have dug into: grassroots mobilization to counter corporate political clout, impact litigation, and concrete legislative proposals,[7] especially at a national or community level. There is no end to specific demands that can be made, from ceasing to subsidize the fossil fuel industry (a negative demand that some human rights groups have made) to positive measures, such as investing in sustainable industry, or preserving ecosystems that trap carbon.
Human rights groups are on the back foot here, because their research expertise isn’t at the heart of this issue. There is already a scientific consensus on the harms climate change will wreak, and it’s much more precise at calculating impending threats than the normal reports of human rights groups, which are generally retrospective assessments of violations.
What human rights groups can contribute is advocacy, and their talent for story-telling. And there are many stories that will benefit from centering human rights as an entrance point for environmental action. Disasters near and far are unfolding — indeed, many of the weather-inflicted disasters are really a story of human-created climate change. COP27’s historic loss and damage fund to help affected nations adapt is a step forward, but climate refugees are flooding other nations right now, without international protection. To counterbalance the stories of accumulating and impending human disaster, and to thwart the passivity that climate pessimism generates, it is also important that they tell stories that illustrate change and interventions are possible. Their advocacy targets have to become much more specific as well — not just saying that nations must limit emissions, but exactly how and where and by what measures. And these stories should be directed not just at politicians and corporations — the global elite in thrall to the fossil fuel industries — but at the grassroots, with urgency. This is all about advocacy, street by street and city by city. Putting the brakes on climate change requires highly persuasive acts of imagination, because it will entail radical changes to the economy and to our lives. It’s time for the human rights community to talk about the future, and get into the streets.
[1] Yann Aguila, The Right to a Healthy Environment, ICUN, 29 Oct. 2021.
[2] It must be recognized, however, that the enforcement of international law is weak and relies to a great extent on political pressure. There are also critics of subsuming environmentalism into human rights as the former encompasses far more stakeholders (e.g. other species) than the anthropocentric latter. The history of the right to development, and how environmentalism converged and produced a right to sustainable development, is also pertinent, but beyond the scope of this essay.
[3] Such attacks are usually understood as violations of freedom of speech, association, bodily integrity, etc. and have an obvious call to action (arrest! prosecute! reparations!) — not to mention, they put a human face on the otherwise abstract issue of environmental justice.
[4] See case summary, Earth.org at https://earth.org/tag/urgenda/; links to judgements in the case in English at http://climatecasechart.com/non-us-case/urgenda-foundation-v-kingdom-of-the-netherlands/.
[5] This is also an obstacle to obliging one state not to surveille the communications of another state’s population.
[6] See, e.g. Elena Cima, The right to a healthy environment: Reconceptualizing human rights in the face of climate change, https://doi.org/10.1111/reel.12430 and Maiko Meguro, Leiden Journal of International Law , Volume 33 , Issue 4 , December 2020 , pp. 933–951.
DOI: https://doi.org/10.1017/S0922156520000473
[7] To be fair, Amnesty International has called for a Fossil Fuel Non-Proliferation Treaty, which has the support so far of Vanuatu, Tuvalu, the President of Timor-Leste, and a kind mention by the EU. But the fate of the earth likely will be sealed by the time this initiative bears fruit.
