Expanding Human Rights Obligations to Facilitate Climate Justice? A Note on Shortcomings and Risks

COP26 in Glasgow has reinvigorated the already vibrant and urgent discussions about climate justice, what it means, and how to achieve it. One strategy that enjoys significant traction is the idea that expanding states’ human obligations will close the accountability gap in climate law or facilitate climate justice. Recent trends in climate change litigation, in particular, have witnessed a ‘rights turn’. An increasing share of cases filed make use of human rights arguments or institutions and the overall trend is accelerating. Over a hundred human rights cases have been captured in relevant climate law databases to date, with over a third of those brought within the past two years (see here at page 32). This post considers the prospects and problems of relying on human rights in litigation to facilitate climate justice and to close the accountability gap in climate law.

Human rights are powerful tools for advocacy: they can give voice to the voiceless, protect vital individual interests against overriding economic concerns, and – at their best – can be transformative and subversive of the very systems that created them. Especially (but not only) in the hands of sophisticated public interest lawyers, human rights-based climate and environmental litigation has brought about important successes: The Dutch Urgenda case, the German Bundesverfassungsgericht’s judgment in Neubauer, and the Endorois Communication decided by the African Commission on Human Rights as early as 2009 are examples. To my mind, human rights are an important aspect of legal and political responses to climate change. They draw our attention to otherwise overlooked interests when devising policies – including those to curb emissions and to achieve climate justice.

However, relying on human rights in this context has some limitations. I want to highlight two of these: one shortcoming, and one risk. The shortcoming is related to the structure of international human rights law, and specifically to recent litigation on its extraterritorial application. The risk has to do with the concept of human rights and how it relates to broader concerns of distributive justice.

The Shortcoming: Limited Use of Extraterritoriality

Human rights are primarily a national affair. Even internationally protected human rights must be claimed against a state, and paradigmatically this remains the territorial state where a human right is being violated. But climate change is a global problem. In particular, the worst emitters, who are causing the violation of human rights of residents of, say, Barbados or the Maldives, are precisely not the states where these individuals live. On the contrary, large, rich, and powerful countries such as the UK, the US, and Germany are the worst offenders when it comes to cumulative emissions over time. Claiming human rights violations against these nations requires that these states owe obligations to individuals outside their territory. This is known as extraterritoriality or extraterritorial jurisdiction in international human rights law. The global trend is to widen this aspect of human rights protection – examples are the IACtHR’s Advisory Opinion on Human Rights and the Environment and more recently the UNCRC accepting extraterritorial human rights obligations relating to climate change in Sacchi and others v Argentina and others (although the communication was inadmissible due to non-exhaustion of domestic remedies. Analysis here).

But the regional human rights system that would be able to hold some of the worst emitters responsible – the ECHR – is an outlier in this regard because it has not unequivocally accepted such an expansion of extraterritorial jurisdiction. Instead, it has sent mixed signals. There are some recent signs that the ECtHR may be persuaded to relax the standards for imposing negative human rights obligations abroad. In Carter v Russia, it found that effective control – a criterion it has so far placed significant weight on, and that commentators (including myself) have been taking issue with for some time – may no longer be the gold standard in this regard (see here). To my mind, this could potentially be helpful when bringing cases on harms occurring in the wake of systemic failures to address emissions, both domestically and abroad.

However, the Court contracted the scope of extraterritoriality in relevant ways in another recent case: Georgia v Russia (II) (analysis here, and here). The case involved the armed conflict and active hostilities between the two states, and the ECtHR declined to apply extraterritorial human rights obligations in some respects partly because it involved complex fact patterns and an overwhelming amount of evidence, as well as a large number of potential victims and the fact that law other than the Convention is applicable (at para 141). While the somewhat dubious notion of a ‘context of chaos’ played a major role in the Court’s reasoning in this case and may not be as relevant for climate cases, it is also true that complex fact patterns, potentially large numbers of victims, and the relevance of other areas of law (for example environmental regulation) are precisely some of their key characteristics. It is thus possible that the Court could and would rely on similar arguments as those advanced in Georgia v Russia (II) to decline adjudicating such disputes. This means that expanding the extraterritorial human rights duties of states – while potentially useful – is currently unlikely to close the accountability gap between major emitters and geographically distant victims.

The Risk: Crowding out Arguments based on Distributive Justice

The risk I want to draw attention to is both more conceptual and more insidious. Even if we can establish a major emitter as a duty bearer against whom human rights can be claimed, there remains the problem that human rights do not exhaustively address substantive concerns of climate justice. This is because climate justice is primarily a distributive issue. Adapting to and mitigating climate change requires resources to be pooled – most likely globally, and ideally based on which actors contributed most to the current state of affairs – and then distributed in a principled manner. To be considered fair and appropriate, these principles should take into account criteria such as the ability to contribute and imminent need, and then come up with an order of priority based on these criteria.

Human rights can of course assist in evaluating the imminence of a particular need, or they could guard against overriding vital individual interests in the face of cumulative priorities. But they do not, in and of themselves, provide those principles of priority that are needed to distribute resources fairly in the first place. Arguments in climate litigation centering appropriateness or fairness, or those aiming to establish how much each state would need to contribute in order to reach a postulated goal, are already taking these concerns into account (for examples of strategies, see here at page 17). But as long as such litigation makes use of human rights as opposed to distributive justice claims, the articulation of principles remains implicit and thus potentially weaker than it could be. For example, an individual’s or community’s fair share of resources to adapt to climate change may well be much more than what the right to life as enshrined in international human rights law mandates.

My recommendation would thus be to look for ways to incorporate distributive justice concerns on priorities more explicitly. One avenue within the human rights paradigm would be to rely on non-discrimination to challenge inequities in how climate change mitigation or adaptation affect different groups. The Portuguese Youth Case pending before the ECtHR is an example of this: the application makes use of article 14 of the ECHR to claim a violation of intergenerational distributive justice (see discussions here and here). There are some limitations to this approach particularly because other Convention rights have to be implicated, meaning that not every concern of priority and distribution can be advanced in this way.

Of course, none of this is a failure of human rights or of international human rights law as such. No concept or tool could be reasonably expected to address all potential problems. My concern is a different one. I worry that this limitation of human rights is too rarely acknowledged. If we allow human rights to dominate the conversation about climate justice, they could crowd out the – in my view – more fundamental, more important, and also much more difficult conversation about how to pool and distribute resources. This conversation is difficult because it accepts and reminds us of the fact that not everybody will get what they want or need, at the very least not right away, and that many people and communities already have and/or will experience serious losses.

All of this means that my answer to the question of whether it is a good idea to expand human rights obligations to close the accountability gap in climate law or to facilitate climate justice would be to say: yes, but human rights are only a start, and they can only ever be one aspect of many. We – by which I mean academics and practitioners concerned about climate change – would do well to remember that.