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Home Posts tagged "climate change"

Climate Change in the Human Rights Committee

Published on February 18, 2020        Author: 

 

The environment and climate change are amongst the most pressing issues for human rights. High Commissioner for Human Rights Michelle Bachelet has called it “the greatest threat to human rights” and fifteen children submitted a communication before the UN Committee on the Rights of the Child (CRC) in September.

Even though it seems that especially children and young people are leading this long-needed movement, thus seeking help from the CRC, the UN Human Rights Committee seems to be the UN treaty body that has been most active on the topic in the course of the past year.

The Committee has not only addressed issues concerning the interface between human rights and the environment more often than ever before, it has also very quickly intensified its jurisprudence from a mere notion of possible implications of environmental degradation on the right to life in its General Comment No. 36 over expanding this notion on other rights of the International Covenant on Civil and Political Rights (ICCPR), to ruling on the lawfulness of a deportation of a climate migrant less than a year later. This post traces the Committee’s skyrocketing journey over the past year.

General Comment No. 36 and the Right to a Life with Dignity

A bit over a year ago, the Committee finalized its General Comment No. 36 on the Right to Life after working on it for four years. This General Comment raises a variety of interesting issues. One of them is the right to life in the context of environmental harm:

Environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life. (para. 62)

Given the fact that when adopting General Comment No. 36, the Committee had no jurisprudence on the interface between the right to life and the environment, one can easily argue that including environmental degradation and climate change into the General Comment was a bold step. One might even argue that it was a step backwards. A few months earlier, then Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John Knox, had argued for recognizing an independent right to a healthy environment before the Human Rights Council. Thus, by linking environmental harm to one – and only this one – ICCPR-right, the Committee has taken a much more restrictive standpoint.

It has to be noted, however, that General Comment No. 36 does not indicate for environmental degradation and climate change to be understood as threats to life. Statements concerning these issues exclusively allude to the right to live one’s life with dignity (see paras. 3, 62). As will become clear in its following practice, the Committee has created a space for its own interpretation of the elements necessary for a life with dignity, which can include the exercise of other rights, possibly even outside the ICCPR.

Environmental Pollution, the Right to Life and other Rights

In its 126th session this July, the Committee had its chance to use its general ideas of General Comment No. 36 in an individual communication on environmental pollution. In Portillo Cáceres v. Paraguay, it combined approaches of regional human rights mechanisms.

Finding a violation of article 6 ICCPR not only in the case of the deceased Mr. Rubén Portillo Cáceres, but also for the surviving family members, the Committee made use of the tool it had created with General Comment No. 36: Read the rest of this entry…

 

Climate Change as a Trigger of Non-Refoulement Obligations Under International Human Rights Law

Published on February 6, 2020        Author: 

 

The recently published decision of the UN Human Rights Committee (HRC) pursuant to Individual Communication No. 2728/2016 (Teitiota v New Zealand) offers an insight into how the international legal system is coming to address climate change displacement. Teitiota is significant for its recognition that climate change impacts affecting migrants in their State of origin can trigger obligations of non-refoulement binding on the States they enter.

The HRC expounded on the effect of climate change on migrants’ right to life under Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR), and provided guidance on how the applicable test of a ‘real risk of irreparable harm’ is to be deployed in this novel context.

The HRC’s decision concerned a complaint brought under the ICCPR First Optional Protocol by Ioane Teitiota, a Kiribati national, against New Zealand. Teitiota applied for asylum in New Zealand, on the basis that climate change affecting Kiribati exposed himself and his family to inter alia: violent land disputes, a lack of fresh drinking water, an inability to sustain a livelihood via agriculture due to soil salinization, and flooding (paras. 2.5-2.6). The New Zealand Immigration and Protection Tribunal, considering both the Refugee Convention and the ICCPR, rejected his application. His subsequent domestic appeals were also unsuccessful (paras. 2.2, 2.8-2.9).

Teitiota was removed to Kiribati in September 2015, and his family also returned from New Zealand (para. 4.4). His HRC complaint argued his removal placed New Zealand in breach of his Article 6(1) ICCPR right to life. The question before the HRC was whether it could depart from New Zealand’s findings to hold that Teitiota was exposed to a ‘real risk of irreparable harm’ to his right to life in Kiribati (para. 9.3). Only if this question could be answered in the affirmative was a non-refoulement obligation derived from Article 6(1) opposable against, and breached by, New Zealand (see HRC General Comment 31 (2004), para. 12). Read the rest of this entry…

 

Renewable energy incentives: reconciling investment, EU State aid and climate change law

Published on December 18, 2019        Author: 

 

Domestic incentives for renewable energy production

To combat climate change, several States have created so-called ‘renewable energy incentivization schemes’ because they feared that private investors may otherwise not be willing to invest in this industry. Compared to other sectors, renewable energy investment usually requires significant upfront capital investment, while returns may be unsure and take a longer period to materialise.

Renewable energy incentivization schemes typically provide for a secure power price, buy-out options, government-supported loans, etc. By offering feed-in tariffs, for example, the host State commits to buying the generated green power for a certain period of time (25 years or even longer) at a fixed rate, regardless of the real market price.

Some States seem to have been unprepared for the success of these incentivisation schemes and have difficulties in fulfilling the financial aspects of their own schemes. Combined with the budgetary problems caused by the financial crisis and/or a reprimand from the European Commission, which was of the opinion that some of these stimuli formed prohibited subsidies (State aid) under EU law, States have amended or terminated their programmes. Some have even sought to reclaim the sums already transferred to investors. Read the rest of this entry…

 

Bringing Deforestation before an International Court?

Published on December 6, 2019        Author: 

 

Deforestation is a key issue in the fight against climate change. In all areas of the world, forests are being transformed for different uses, all leading to a loss of forest cover “from 31.6 percent of the global land area to 30.6 percent between 1990 and 2015”. Recently, the Amazon fires have caused concern around the globe, not only because of their scale but also because of the importance of the Amazon for everyone, as one of the largest rainforests in the world, and therefore crucial for both mitigating climate change and hosting millions of species. Much concern has been raised at why such fires had intensified compared to previous years. Human-driven deforestation has been shown to be the main reason for the fires, and with less environmental oversight from the current Brazilian government, different political actors have pointed fingers at its responsibility. Brazil is not the only country where important forests are threatened. Other major forested areas in Western and Central Africa and South-East Asia are not spared from large-scale deforestation. The few original forests in Europe are also under threat.

Between legal and illegal deforestation, more forested territory is converted for various uses, from agriculture to mining. Moreover, many areas of major forests are inhabited by indigenous peoples, who suffer directly from the consequences of deforestation. President Bolsonaro has been very clear that he intends to use the land for economic prosperity as he claims that it is his sovereign power to do so. The tension between economic development and environmental protection is not specific to the Amazon and struggles over how to achieve economic development in the forested lands, with people already living and using those lands exist elsewhere too.

One rhetorical question arising from this dramatic situation is whether there are avenues to use the international judicial system to try to hold the states accountable for the deforestation happening in their territory. Is there a chance for interstate litigation to succeed? Read the rest of this entry…

 
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COP 24 and Climate Finance: A Stepping Stone or a Blurred Line?

Published on January 23, 2019        Author: 

In December 2018, the 24th Conference of the Parties (COP 24) to the United Nations Framework Convention on Climate Change (UNFCCC), took place in Katowice, Poland. The main objective of those negotiations was to finalize the so called ‘Paris Rulebook’ [the Paris Agreement Work Programme (PAWP)], which would constitute a set of rules to implement and operationalize the Paris Agreement. The issues at stakes varied from mitigation, adaptation and loss and damage, to more technical issues, such as transparency, climate finance and carbon market mechanisms under the Paris Agreement.

This post will focus on the progress made on the issue of climate finance based on an analysis of the COP 24 decision on the relevant issues. I begin by reiterating the importance of the findings presented by the latest reports of the Intergovernmental Panel on Climate Change (IPCC) and the Standing Committee on Climate Finance (SCF) under the UNFCCC. The SCF report on the biennial climate finance assessment highlighted the current methodological challenges concerning the reporting and verification of public and private climate finance, referring to the existence of uncertainties and gaps regarding the collection of climate finance data. Some of the SCF recommendations to the COP include i) enhancing the transparency, consistency and comparability of data on climate finance, ii) encouraging Parties providing climate finance to enhance their reporting of climate finance provided to developing country Parties and iii) encouraging developing country Parties that provide support to report information on climate finance provided to other developing country Parties.

One of the most ambiguous, but at the same time significant issues of the COP 24, was that of accounting and reporting on climate finance. The Paris Agreement contains two main provisions on financial flows, namely: article 2.1(c) providing for a general framework of making financial flows climate resilient; as article 9, which, apart from the general climate finance obligation, also provides for the ex-post and ex-ante finance transparency. The operationalization of the latter has been one of the main tasks of COP 24. The formal COP 24 agenda provided for the negotiation of the following matters relating to climate finance:

  1. long-term climate finance,
  2. matters relating to the SCF,
  3. the Green Climate Fund (GCF),
  4. the Global Environment Facility (GEF) and
  5. the identification of the information to be provided by Parties in accordance with Article 9, paragraph 5, of the Paris Agreement.

Read the rest of this entry…

 
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Climate Change before the Courts: Urgenda Ruling Redraws the Boundary between Law and Politics

Published on November 16, 2018        Author: 

On the 9th of October, the Hague Court of Appeal upheld the first-instance judgment in the Urgenda case, ordering the Dutch State to reduce greenhouse gas emissions more progressively than planned by the government. The appeal judgment was applauded across the world and welcomed as a source of inspiration for climate change litigation in other jurisdictions. At the same time, the ruling has evoked criticism in the Netherlands, where commentators wondered if the court had not overstepped the boundary between law and politics, violating the separation of powers (eg in Dutch here, here, and here). The ruling raises intricate questions concerning the proper role of domestic courts in securing compliance with the European Convention on Human Rights (ECHR) in matters of general policy. Arguably, the judgment expands the role of courts beyond what Dutch constitutional law allows them to do, but this expansion fits with the increasing emphasis put on the notion of subsidiarity by the Member States of the Council of Europe.

Greenhouse Gas Emissions and Human Rights

The Court of Appeal confirmed that by 2020, the Dutch government should have reduced the cumulative volume of greenhouse gas emissions by at least 25 % compared to the situation in 1990. The government had agreed to a 49 % reduction target for 2030 and a 80-95 % target for 2050 (para 46), but disputed that it was legally obliged to commit to a reduction target of at least 25 % for 2020, in light of the EU’s commitment of 20 %. The appeal court agreed with Urgenda that a reduction of 20 % by 2020 would not be sufficient to meet the 2030 target and that reduction efforts should not be delayed (para 47).

According to the court, the State’s refusal to commit to at least 25 % breached its duty of care under Articles 2 and 8 of the ECHR. In interpreting these Articles, the court ruled that ‘the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life’ (para 43). The court noted ‘a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’ (para 45). In this context, the State’s duty of care required a reduction of at least 25 % (para 73). Read the rest of this entry…

 

Reflections on the US withdrawal from the Paris Climate Change Agreement

Published on June 5, 2017        Author: 

Ending months of fevered speculation, President Donald Trump fulfilled his campaign promise and announced US withdrawal from the 2015 Paris Agreement last week. He did so because in his opinion the Paris Agreement inflicts ‘severe energy restrictions’ on the United States and ‘punishes’ the United States ‘while imposing no meaningful obligations on the world’s leading polluters.’ This post seeks to examine the merits of the US’ stated rationale for withdrawing from the Paris Agreement, and then offers some reflections on next steps for the US in the international climate change regime.

How Valid are Trump’s Criticisms?

President Trump’s remarks reveal a fundamentally flawed understanding of the Paris Agreement. First, his remarks suggest that the Paris Agreement is a prescriptive instrument that ‘inflicts’ restrictions and ‘imposes’ obligations on states. This is not the case. Read the rest of this entry…

 

On the Paris Agreement’s Imminent Entry Into Force (Part II of II)

Published on October 12, 2016        Author: 

This is Part II of a two-part post.

What are the Consequences of the Paris Agreement’s Entering into Force?

The Paris Agreement is to enter into force on 4 November 2016, 30 days after the second of its two thresholds was passed on 5 October 2016. On that day, the emissions covered by those Parties to the Convention that ratified or accepted the Agreement amounted to 56.75% of global total emissions; crossing the 55% bar required by the agreement. (see Part I)

So, what does this mean? I would like to highlight 10 points.

First of all, the Agreement becomes international law. It is an international treaty, i.e. an international agreement concluded between states in written form and will be governed by international law (Art. 2.1 (a) Vienna Convention on the Law of Treaties – VCLT).

While 197 Parties to the UNFCCC adopted the Paris Agreement and 191 signed it so far, it is important to note that it will only bind those 74 states and the EU (as of 7 October 2016) which have expressed their consent to be bound by it through ratification, acceptance or approval. Each of these states for which the Agreement is in force will then become a “Party” to the Agreement. This means that despite the commonly used adage, it is not a universal agreement. Rather, at the time of entry into force, it captures only about 2/5 of the Parties to the Convention, with others hopefully joining over time.

According to the principle of “pacta sunt servanda”, Parties are obliged to keep the treaty and must perform it in good faith (VCLT, Article 26). Good faith suggests that Parties need to take the necessary steps to comply with the object and purpose of the treaty. Neither can Parties invoke restrictions imposed by domestic law as reason for not complying with their treaty obligations. Read the rest of this entry…

 

On the Paris Agreement’s Imminent Entry Into Force (Part I of II)

Published on October 11, 2016        Author: 

This is Part I of a two-part post.

Rapid Entry Into Force or the “Rush to Ratify”

The Paris Agreement will enter into force on 4 November 2016. The agreement requires the deposition of instruments of ratification or acceptance by at least 55 Parties to the UN Framework Convention on Climate Change accounting for at least 55% of global greenhouse gas emissions. With the latest ratifications by the EU, Canada and New Zealand respectively – only a couple of days after India deposited its instrument of ratification – these conditions were fulfilled yesterday, on 5 October 2016. By that day, 72 Parties to the Convention had deposited their instruments accounting in total for 56,75 % of total global greenhouse gas emissions. The agreement will enter into force 30 days from this day – less than a year since its adoption!

Such rapid entry into force arguably is record-breaking; unparalleled in multilateral treaty making – environmental or not.

The adoption of Paris Agreement in December 2015 was hailed as a victory of multilateralism; as a sign of hope that the states of this world can get together and cooperate in the face of a global commons challenge. Yet, in Paris negotiators were in the dark about how long it would take before the agreement would become law; an international treaty. Certainly no-one expected this to happen within less than a year or only a little over six months since it was opened for signature on 22 April 2016 in New York.

It was no small achievement that states managed to reach an agreement on such complex issue as climate change. Yet, garnering their political will behind its legal bindingness is a significant feat which calls for some reflection.

How was it possible? Read the rest of this entry…

 
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