Just Transitions in Climate Change Actions: Are States Respecting, Promoting, and Considering Human Rights Obligations in Setting and Implementing NDCs?

Recent exchanges hosted on EJIL:Talk! on climate action and how to go about “mainstreaming” it (see here and here) provide a microcosmic view of the ongoing challenges of State policies to transition and transform economies to reach treaty commitments under the Paris Agreement, including States’ commitments as indicated in their publicly registered nationally determined contributions.  International lawyers making pledges of personal and professional climate actions and prescribing specific climate actions themselves, encounter resistance from others who contest what the professional responsibilities of lawyers are, and whether such prescriptions are consistent with notions of professional responsibility and ethics.  What is really at the source of the dispute there, is no different than the source of the dispute between and within States on who has the authority to decide what climate action, in particular, should be taken.  Whether it is the current logjam in the United States’ efforts to reach agreement on a multi-trillion infrastructure spending bill which certain progressives want to be conditioned on climate change and social protection measures; the most recent Intergovernmental Panel on Climate Change (IPCC) report on food security and climate change and the UN Special Rapporteur on Food Security’s own objections to the unresponsiveness of the UN food systems summit; or the International Energy Agency (IEA) “Net Zero by 2050” report prescribing elimination of fossil fuel use in its roadmap for the global energy sector, and the counterpart objections of IEA member States Japan and Australia to the prohibition against fossil fuel investment — the common thread in today’s climate change debates remains the same: who determines the terms of the global “just transition” (the phrase coined by the International Labor Organization in 2015 when it asked countries to consider impacts on labor conditions and the rights of workers in climate change and sustainability-driven economic transformations)?

While the UN Office of the High Commissioner for Human Rights has long pushed (at least as far back as the UNFCCC Conference of Parties/COP 21) to integrate human rights in climate change actions, and there is an abundant scholarship on the relationship between the two (see among others here, here, here, and here), the density of thinking on this subject focuses on cross-cutting themes, parallels, and issues of state responsibility in addressing climate change vulnerabilities that simultaneously implicate human rights impacts, and the landmark climate change jurisprudence calling for the responsibility of States as well as the private sector (exemplified famously in Urgenda Foundation v Kingdom of the Netherlands and in 2019, Milieudefensie et al. v. Royal Dutch Shell). My observations in this post, however, focus on a more granular and pedestrian matter.  Now that many States have submitted their nationally determined contributions (NDCs) to the public registry established under the 2015 Paris Agreement, are States respecting and promoting all of their human rights obligations in setting forth both their climate ambition targets as well as the pathways to reaching these targets under the NDCs?  In this post, I focus on the NDC submissions of the largest emitters (the United States, China, and the European Union member states taken together) and note the conspicuous absence of spaces for human rights evaluation, monitoring, and compliance in setting the NDCs and deciding on measures that will be taken to implement the NDCs.  This is problematic, because the Paris Agreement itself requires States to respect and promote their human rights obligations in undertaking climate actions.

2015 Paris Agreement and Human Rights

There is only place where the Paris Agreement contains the phrase ‘human rights’, and that is in including respect for, and promotion of, human rights as part of the objects and purposes of this treaty in the eleventh paragraph of the Preamble:

“Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity;” (Italics and emphasis added.)

The language used is deliberate, imperative, specific, and comprehensive in covering all of human rights law.  The duties of State Parties in taking climate change actions or responses require them to respect (e.g. themselves refrain from or avoid any violation of human rights), promote (e.g. advancing awareness of and educating all on human rights, consistent with the right and responsibility of all to promote and protect universally recognized human rights and fundamental freedoms), and consider (e.g. to think carefully about before making a decision) their respective human rights obligations, as well as certain specifically enumerated rights above (e.g. right to health, indigenous peoples’ rights, rights of vulnerable persons, the right to development, etc.).  The fact that this was placed in the Preamble of the Paris Agreement only emphasizes further that these duties form part of the objects and purposes of the treaty, and should be used as part of the interpretation of the Paris Agreement.  This is infinitely a more direct treaty device for integrating human rights into the formulation and assessment of any State Party’s climate action, rather than previous attempts by the UN Special Rapporteur on Human Rights and Environment that focused on drawing an interpretive nexus between human rights obligations and environmental duties of States (see here, here, and here, among others).

Various provisions of the Paris Agreement that require States Parties to take action should thus ensure respect for, promotion of, and consideration of all human rights obligations and the above specifically enumerated rights.  The recognition of the right to development in this enumeration is particularly significant, given that its precise content remains defined under Article 1(1) of the 1986 Declaration on the Right to Development (e.g. “The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”) and its legally binding instrument remains pending (e.g. Article 4(1) of the Draft Convention on the Right to Development refers to: “Every human person and all peoples have the inalienable right to development by virtue of which they are entitled to participate in, contribute to and enjoy economic, social, cultural, civil and political development that is consistent with and based on all other human rights and fundamental freedoms.“).  In either version of the right to development, the desired outcome is development that either enables and fully realizes all human rights (the 1986 version), or development that is itself consistent with and based on all human rights (the pending Draft Convention version). 

By intentionally subjecting all climate actions and responses to climate action to the threshold of respecting, promoting, and considering the most comprehensive scope of human rights, it is not an overreach to state that climate actions themselves must ultimately be consistent or in conformity with all human rights.  Whether it is the Paris Agreement Article 5(1) obligation stating that Parties should take action to conserve and enhance, as appropriate, sinks and reservoirs of greenhouse gases as referred to in Article 4, paragraph 1 (d), of the Convention, including forests”; or the Article 6(2) obligation that Parties “shall apply robust accounting to ensure, inter alia, the avoidance of double counting, consistent with guidance adopted by the Conference of the Parties serving as the meeting of the Parties to this Agreement”; or, as I examine in this post, the Article 4(2) obligation of each Party to “prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions” and Article 4(13) duty of each Party to “account for their nationally determined contributions. In accounting for anthropogenic emissions and removals corresponding to their nationally determined contributions, Parties shall promote environmental integrity, transparency, accuracy, completeness, comparability and consistency, and ensure the avoidance of double counting, in accordance with guidance adopted by the Conference of the Parties serving as the meeting of the Parties to this Agreement” —- all of these mandatory obligations under the Paris Agreement have to be read and interpreted consistently with the object and purpose of the Paris treaty to respect, promote, and consider all human rights when taking action to address climate change.

Silence on Human Rights Consistency and Human Rights Impacts of Climate Actions: Some Examples from NDCs of the Largest Emitters

The set of decisions taken by the Conference of Parties to implement the Paris Agreement did not refer to any need for human rights consistency or assessment of human rights impacts from climate actions and responses.  Neither does it appear that human rights consistency, impacts, and compliance, bear upon the various methods of States Parties’ accounting of emissions and mitigation actions, as seen from the UNFCCC’s Reference Manual for the Enhanced Transparency Framework under the Paris Agreement.  United Nations Secretary-General Antonio Guteres recently noted the strengthened NDCs of the United States, Britain, and the European Union, but that there are still missing new NDCs from China, Saudi Arabia, India, and around 70 countries.

However, an examination of latest and existing submissions by the largest emitters (the United States, China, and of the European Union) indicates that only the European Union is explicitly “integrating the dimensions of human rights and gender equality by States in all their national plans and strategies under the EU Energy Union Governance Regulation” (p. 12 of the EU NDC).  The United States’ own updated NDC, submitted recently when it rejoined the Paris Agreement, prescribes the following sectoral pathways to achieve their nationally determined contributions to greenhouse gas emissions:

“Electricity: The United States has set a goal to reach 100 percent carbon pollution-free electricity by 2035, which could be achieved through multiple cost-effective technology and investment pathways, each resulting in meaningful emissions reductions in this decade. Eliminating greenhouse gases from the electricity sector will also reduce air and water pollution, improving public health while supporting good jobs building modern infrastructure. Policies that contribute to emissions reduction pathways consistent with the NDC include incentives and standards to reduce pollution. The federal government will work with state, local, and tribal governments to support the rapid deployment of carbon pollution-free electricity generating resources, transmission, and energy storage and leverage the carbon pollution-free energy potential of power plants retrofitted with carbon capture and existing nuclear, while ensuring those facilities meet robust and rigorous standards for worker, public, environmental safety and environmental justice. The United States will also support research, development, demonstration, commercialization, and deployment of software and hardware to support a carbon pollution-free, resilient, reliable, and affordable electricity system.

Transportation: The largest sources of emissions from transportation are light-duty vehicles like SUVs, pickup trucks, and cars, followed by heavy trucks, aircraft, rail, and ships. These transportation modes are highly dependent on fossil fuels, with more than 90 percent of transportation energy use coming from petroleum. Transportation provides essential access to services and economic opportunities, but has historically contributed to racial and environmental inequities in the United States. There are many opportunities to reduce greenhouse gas emissions from transportation while also saving money for households, improving environmental quality and health in communities, and providing more choices for moving people and goods. Policies that can contribute to emissions reduction pathways consistent with the NDC include: tailpipe emissions and efficiency standards; incentives for zero emission personal vehicles; funding for charging infrastructure to support multi-unit dwellings, public charging, and long-distance travel; and research, development, demonstration, and deployment efforts to support advances in very low carbon new-generation renewable fuels for applications like aviation, and other cutting-edge transportation technologies across modes. Investment in a wider array of transportation infrastructure will also make more choices available to travelers, including transit, rail, biking, and pedestrian improvements to reduce the need for vehicle miles traveled. While the emissions pathways analyzed focus on domestic emissions reduction, the United States is also exploring ways to support decarbonization of international maritime and aviation energy use through domestic action as well as through the International Maritime Organization (IMO) and International Civil Aviation Organization (ICAO). 

Buildings: Building sector emissions come from electricity use, as well as fossil fuels burned on site for heating air and water and for cooking. There are many options to avoid these emissions while reducing energy cost burden for families and improving health and resilience in communities. The emissions reduction pathways for buildings consider ongoing government support for energy efficiency and efficient electric heating and cooking in buildings via funding for retrofit programs, wider use of heat pumps and induction stoves, and adoption of modern energy codes for new buildings. The United States will also invest in new technologies to reduce emissions associated with construction, including for high-performance electrified buildings.

Industry: Emissions in the heavy industry sector come from energy use, including onsite fuel burning as well as electricity, and direct emissions resulting from industrial processes. The United States government will support research, development, demonstration, commercialization, and deployment of very low- and zero-carbon industrial processes and products. For example, the United States will incentivize carbon capture as well as new sources of hydrogen – produced from renewable energy, nuclear energy, or waste – to power industrial facilities. In addition, the United States government will use its procurement power to support early markets for these very lowand zero-carbon industrial goods.”

All of the above pledged sectoral pathways prescribe very specific transformations to American processes of production, consumption, industry, investment, technology, and energy use, which will generate their corresponding impacts on civil and political rights as well as the enjoyment of the right to health, the right to development, and the human rights of indigenous peoples and vulnerable communities (children, women, persons with disabilities, local communities, among others).  However, as promising as the US NDC is in setting a goal to reach 100% carbon pollution-free electricity by 2035, the NDC is completely silent on conducting counterpart human rights impact assessments, human rights due diligence, and human rights auditing for the intersectional effects of these definitively prescribed sectoral pathways on the multidimensional enjoyment of all human rights.  China’s NDC focuses mainly on creating pathways to a “low-carbon way of life”, without ever discussing whether they will track their climate actions’ consistency and compliance with human rights commitments (such as the International Covenant on Economic, Social and Cultural Rights, to which China is a State Party).

Conclusion

The siloed approach to examining climate change as purely an issue of getting to net zero carbon emissions, as opposed to a global structural transformation that also has the possibility of provoking corresponding Schumpeterian creative destructions on how different demographics and constituencies enjoy their civil, political, economic, social, and cultural rights, suggests a deliberate deafening of climate change approaches to the literal terms of the Paris Agreement which already did set as one of its objects and purposes that climate actions should respect, promote, and consider all human rights law.  The fact that the technical assessments and State-level planning now being made about carbon neutrality largely leave human rights consistency as an afterthought (or as a utilitarian object to be jettisoned at any time in the name of the goal of reaching carbon neutrality), without seriously providing for a system of monitoring, tracking, assessing, and evaluating human rights consistency and compliance for all climate actions, is troubling for those who will be rendered even more vulnerable, more displaced, jobless, or unequal as a result of systemic structural transformations in the global economy.  It is hard enough for human rights constituencies to raise their voices against malignant actions of authoritarian regimes.  It will be even harder when human rights constituencies of the most vulnerable around the world have to make themselves heard to State-level or international decision-makers who can uniformly prescribe – without taking into account differentiated vulnerabilities within populations – that we should use “zero emission personal vehicles”, change barely human rights-compliant housing or dwelling structures to retrofit them for net zero emissions, or be “climate advocates” ourselves without having our baseline human rights respected, promoted, and considered.  There is an urgent, wider, and more inclusive debate that we could all be having about how to get us all to net zero or carbon neutrality as a way of life, without ignoring how carbon neutrality is wed to deliberate choices, values, habits and preferences – and why those, at a minimum, should be framed towards orienting all of us towards human rights consistency and full realization.. The last thing we all need, after the authoritarian proliferation of oppressive measures in this pandemic, is for a new set of oppressive measures to be imposed to reach carbon neutrality at all costs, and in utter disregard of, and indifference to, our individual and collective civil, political, economic, social, and cultural rights.  Climate actions are also about respecting, promoting, and considering all our human rights.  Conditioning climate action on human rights consistency, compliance, and full realization is, and in that process making sure that ALL voices (and not just behemoth States or organizations, but also disempowered vulnerable communities) are meaningfully consulted, heard, and considered before prescribing any climate action, is what should get us to the elusive dream of climate justice based on human rights in this time of global “just transition”.