Conclusion: Climate Governance as Human Rights Protection

This long read by Marcello Di Paola and Daanika Kamal is the conlusion to thier edited e-book, ‘Climate Change and Human Rights: The 2015 Paris Conference and the Task of Protecting People on a Warming Planet'. Previous contributions from academics and practitioners were serialised on Global Policy. To read them please see here or join the debate on Twitter using #GPclimatechange.

The Paris 2015 International Climate Conference is expected to host a comprehensive re-negotiation of the responsibilities of states against the global and local implications of the current rise in atmospheric temperatures. As climate change accelerates and worsens, its negative impacts on humans escalate. As it impoverishes, evicts, and kills increasing numbers of people, construing climate change as a human rights issue becomes quite plausible both theoretically and politically. It is likely that one set of arguments that will be employed in Paris to justify strong abatement policies will revolve around the notion that climate change violates human rights. This e-book has attempted to sketch the strengths and weaknesses, theoretical as well as practical, of grounding climate governance on human rights protection.

1.

The main appeal of a human rights approach is that it transforms climate change from an environmental into a humanitarian problem. While that does not necessarily mean that human rights will always serve as trumps during climate policy configuration, it is true that once an issue is conceived in human rights terms it is easier to remove it, at least in part, from the turbulent arena of competing political and economic interests - which is where climate policy is currently made.

Construing something as a human rights issue makes it, in some important senses, larger than politics. For instance, while effective climate governance requires a collective effort of all states and is thus ultimately predicated on inter-state reciprocity, a state’s fulfillment of its human rights obligations is not. In a human rights perspective, states have obligations not just to other states but also to people (individuals and groups), and if many negative impacts of climate change on people are human rights violations, then states have climate obligations that are not necessarily conditional on the cooperation of other states.

As John Knox points out in his contribution to this volume, if climate change was seen as a human rights problem, then states would come under pressure by virtue of already existing obligations that they have under international law. This would entail pushing expert committees of human rights lawyers at the center of the stage of climate politics, at the expense of bargaining government representatives. More centrally, the current climate-changing practices of most countries (all powerful emitters, at least) would already count as illegal regardless of whether emission cuts are ever agreed upon by governments, in Paris or elsewhere. In other words, there is a sense in which climate politics, if it took a human rights spin, would be at least to some extent self-effacing.

While many would look favorably at bargaining politics ushering itself from the scene of climate governance, it is clear that many states would not find the move to be particularly desirable, whatever the level of development of the populations that they represent. Given its focus on protecting people, a human rights-based climate governance would decrease the self-determination of states as well as their sovereignty regarding their development choices, as any human rights-based system of governance does.

But both self-determination and development are themselves human rights that are jeopardized by climate change. A globally changing climate may force states to pass and implement national legislation they would not have otherwise configured (as in the case of emergency legislation following some extreme weather event, for example); while the battle against climate change may force states onto specific development paths they would not otherwise have chosen (most clearly when it comes to energy choices).

2.

Many advocates of human rights-based climate governance, particularly from emerging or developing countries, want the rights of self-determination and development to be strenuously protected. This creates something of a paradox, which is most obvious in the case of big emitters that also host large numbers of highly vulnerable people whose human rights could be violated by climate change – such as India, China, and Brazil. These countries would enjoy the restrictions posed on others by human rights-based climate governance, as these restrictions would prevent the deaths and suffering of many of their own citizens; but they would also have to submit to the restrictions that would inevitably be imposed on them, as their emissions also bring about deaths and suffering both within and beyond their borders.

In their contributions to this volume, Sam Adelman, Des Gasper, Samir Saran and Vidisha Mishra, Joyeeta Gupta, and Clement Loo have all considered the situation of emerging and developing countries. For some of these countries, human-rights based climate governance would be no less than a blessing. Small Island Developing States, discussed by Sam Adelman, are at extremely high risk of disappearing under rising sea waters, and yet they currently play an extremely marginal role in climate governance. Adelman makes a compelling case for a more decisive inclusion of these countries in climate negotiations, so that their populations may be provided with fair compensation for the human rights violations they will inescapably have to suffer as their lands sink into the oceans.

Other developing countries face less totalizing risks but would still benefit greatly from the integration of human rights principles and legislation into climate governance. As Des Gasper indicates, they would benefit substantively, insofar as their populations would enjoy increased protection from the risk of climate-induced deaths, hunger, disease and displacements: this is justice to people. But increased attention to people would also promote inter-state climate justice, insofar as these countries would also benefit procedurally. Currently, their representatives are often marginalized during climate or climate-relevant negotiations. This procedural injustice systematically results in substantively unfair distributions of obligations and vulnerabilities – which, in turn, compound substantive climate injustices that already exist, as these relatively poor countries have done (and still do) very little to cause changes in climate. For these countries, making the protection of human rights of their inhabitants a priority of climate governance would mean acquiring the political space that justice demands that they have, but power-politics never fails to deny.

In the case of more advanced developing countries, and of emerging global powers like China and India whose levels of emissions are already monumental, human-rights based climate governance would have more nuanced implications. While human rights principles and legislation would protect the (still) very vulnerable populations of these countries from the worst effects of climate change, they would also constrain their levels of emissions, thus impeding fossil-fueled development paths that may in turn serve to protect the human rights of their citizens – or at least of more of their citizens more quickly.

Our authors have taken a variety of positions on this particularly difficult issue. Focusing on India, Saran and Mishra have argued that under current circumstances the country will just not have the ability to effectively adapt to climate change without continuing to invest in fossil-fuelled economic development. Saran and Mishra maintain that resistance to emissions cuts by India should not be seen as reflecting irresponsibility or lack of political will, but rather as following from the duties that the Indian government has towards its citizens. While this argument has undeniable strengths, it exposes the awkward position in which high aggregate but low per-capita emitters (including also China, Brazil, Mexico, South Africa, Indonesia and others) find themselves today. For the sake of their citizens’ welfare and dignity, these countries must be favourable to (and are often strong advocates of) conceiving climate governance as human rights protection; but at the same time, and also for the sake of their citizens’ welfare and dignity, they often demand exemptions from drastic emission cuts. The problem is that their emissions significantly contribute (and will increasingly contribute in the future) to climate-induced human rights violations beyond their borders (in Small Island Developing States, for instance, and in other poorer, low-emitting developing countries), as well as within.

India is a major contributor to climate change - at the same time, very many Indians are likely to becoming its victims, one way or another. This is a predicament that big historical emitters like the United States, Japan, Canada, and most European countries have not had to face in the past, because their industrialization built the welfare of their citizens and promoted the enjoyment of their human rights while building up climate change. However, the welfare and the enjoyment of the human rights of the citizens of India (and other similarly positioned countries) is being built at significantly higher temperatures – temperatures that are already dangerously high.

The case of high aggregate/low per-capita emitting countries generates a number of problems for human-rights based climate governance. First, it generates a peculiar problem of domestic politics for these countries: explaining to their citizens how it can be right to contribute to a global threat that will dramatically impact them locally. Second, it generates a problem of international politics, insofar as the human rights of citizens of Small Island Developing States and other more vulnerable countries will be violated by climate change regardless of whether the emissions that cause it are measured aggregately or per capita. In other words, they will have well-founded human rights claims against India and Brazil even though they may not have human rights claim against Indians and Brazilians. Third, the case is a puzzle in political theory, insofar as high aggregate/low per-capita emitting countries that favour human rights-based climate governance seem to have a case for appealing to universal principles both in order to obtain governance arrangements that they recognize as desirable, and to obtain a particularistic exemption from these very same arrangements. And it is also, fourth, a moral test for humanity: whether we can find normatively acceptable ways to navigate the space between two extremes that do not seem particularly promising in a global (or intergenerational) perspective - “first come first served” on the one hand, and “fiat iustitia et pereat mundus” on the other.

In their contributions, Joyeeta Gupta and Clement Loo argued for a new, decisively proactive role in climate governance for developing and emerging countries. They justified, on human rights grounds, both the efforts such countries should make and the financial, technological, and operational assistance they should receive from industrialized countries. Their views signal an evolving understanding of the role of developing and emerging countries not just in climate governance but also in global politics more generally, and it is significant (as well as encouraging) that such evolution speaks the language of human rights. While Gupta explored the promises of innovative human rights-based climate litigation, Loo provided a rigorous, human rights-based analysis of the moral and political predicament of developing and emerging countries in the face of climate change, and of their responsibilities moving forward.

Further directions in this regard were given by Paul Harris who, considering the case of developing countries in East Asia, warned that an appeal to human rights when discussing climate governance must be discerning, as an emphasis on certain rights might encourage consumerism and thus accelerate climate change while possibly distracting from other rights - most notably civil and political rights. The enjoyment of these kinds of rights in East Asian countries risks stagnating at relatively low current levels, or even decline as the region becomes more exposed to the negative impacts of climate change and political and other elites attempt to increase their powers under the pretext of force majeure.

3.

If climate governance is construed as human rights protection, further questions will arise. Some among the hardest will have to do with who is responsible for what. Assuming that a genocide and a meteorite strike make the same number of victims and generate the exact same amount of suffering, what marks a genocide as a human rights violation is that, unlike a meteorite strike, it is brought about by humans. In other words, human rights are "human" not only because it is humans who suffer but also because it is humans who impose the suffering. As Stephen Humphreys’ argues in his contribution to this volume, this is also true with climate change, as rising temperatures are not just a natural mishap, like a meteorite strike; its worst effects are also brought about by humans, albeit in a mediated way. Thus, to claim that climate change violates human rights is really to claim that humans violate human rights by contributing to (or via) climate change. The claim has obvious plausibility insofar as climate change will indeed impede the enjoyment of (and consequently violate) many important human rights of numerous people.

However, this does not settle the question of who has the duty to prevent or limit these violations. There are at least two difficulties here. First, agents of all kinds - individuals, governments, local businesses, multinational corporations, regional and global institutions, global agents of other sorts, and generations - are all implicated in the current rise in global temperatures. Second, while climate change will indeed kill people, increasing the atmospheric concentration of a trace gas like carbon dioxide does not directly cause people to drop dead. Vast, complex, multi-scalar physical and social systems mediate between the perturbation of the carbon cycle and the deaths, making causal knowledge or attribution extremely difficult or even practically impossible. What is true of deaths is true of other damages as well: to property, resources, ecosystems, and so forth.

Consider the latter difficulty first. When we say that climate change violates human rights, we mostly mean that it harms humans in fundamental and thus morally and possibly legally unacceptable ways. But while climate change does harm humans, no one in particular seems to be harming anyone specifically by contributing to climate change. Hence, no one seems to be morally or legally responsible for the deaths and damages that occur. Here is one way of reconstructing the problem: all agents are parts of the cause of climate change as they all contribute to it. To be part of a cause, however, is not to be the cause of any specific part of its effect, or any one of its many effects. The emissions produced by my car, for instance, will accumulate with those of the other billion cars in the world, travel across space-time, disperse into the workings and feedbacks of various physical and chemical systems at different scales, and at no point ever cause any specific flood, drought, hurricane, or an inch of sea-level rise. This in turn means that my emissions will not cause any of the harms that these phenomena will bring to people (or property, resources, ecosystems, and so forth).

The non-linear, multi-level causal rollercoaster that goes from emissions up to climate change and from climate change down to deaths and damages ensures that specific instances of the latter cannot be imputed to anyone in particular. This applies to individuals as much as it does to states and other agents. If harm-causation is a primary condition of moral and legal responsibility – and this is what much of the literature connecting climate change to human rights either maintains or assumes – and if such responsibility establishes who has the duty to prevent or limit climate-induced human rights violations, then because no such responsibility can be assigned, no such duty can be assigned either.

Consider now the first difficulty: the variety of agents that are implicated in the current rise in global temperatures. Climate diplomacy is overwhelmingly focused on states. If it was given a human-rights spin, that would mostly mean that states would have to respect human rights by mitigating their emissions, and/or protect human rights by adapting to mutated climatic circumstances, and/or fulfil human rights by assisting other states in mitigating or adapting. One weighty question that arises here (which is also relevant to the case of high aggregate/low per-capita emitting countries discussed above) is whether states would have to fulfil these human rights obligations only within or also across borders – whether each state should take care of “its” humans, or of all humans.

But there are possibly more fundamental worries. Climate change is, in fact, mostly caused by the emissions of non-state actors: individuals and most importantly firms, and multinational energy corporations in particular. Human rights theory and law has traditionally had much more to say about the relations between governments and individuals than about the relations of corporations to both individuals and governments. While this may change (international criminal law, for instance, does show that human rights obligations can be imposed on various non-state actors), it is currently the norm in human rights law to focus only on states. In this, human rights law is consistent with climate diplomacy. Such approach may not be appropriate.

In a landmark 2014 paper, Richard Heede showed that just 90 firms were responsible for 63% of all carbon and methane emissions occurring between 1854 and 2010. 83 of these firms are industrial producers of oil, natural gas, and coal, and 7 are cement manufacturers. Of these 90 firms, 50 are investor-owned, 31 are primarily state-owned, and 9 are entirely government-run. They are headquartered in 43 countries: 54 in industrialized countries and 36 in developing countries. They extract resources everywhere in the world, and the energy and materials they produce are embodied in products that virtually everyone in the world consumes. These firms are all still operative today (with the exception of five, previously headquartered in the old Soviet Union), more than half of their emissions have occurred since 1988, and their emissions continue to rise each year. In some cases, their names are quite familiar: Chevron, Exxon Mobile, Shell, Saudi Aramco, BP, Gazprom, and Statoil. In other cases (particularly in the case of most state-owned firms) they are somewhat less well-known: Iraq National Oil Company, Coal India, PetroChina, Petroleos de Venezuela, Nigerian National Petroleum and the National Iranian Oil Company, among others.

Looking at this reconstruction, the doubt could arise that climate governance may largely be targeting the wrong preys (states as opposed to multinational energy corporations) and also that, even in the current game, there are preys that tend not to be targeted but should (emerging or developing states that run or co-run high-emitting energy corporations). That would mean that the typical state-centric focus of climate governance is largely off the mark, and that the typical rhetoric of rich vs. poor states that underlies much talk of climate justice is at least partly (but significantly) misleading as well. If climate governance is to be conceptualized as human rights protection, it is crucial that it does not miss its marks: it is not just states that hold duties, and more states hold duties than it is usually assumed.

4.

There are at least two further sets of questions that arise when thinking of climate governance as human rights protection, which contributions to this volume have addressed. One is what rights to include on our priority list; the other is who holds those rights - or, in other words, to whom exactly are the duties owed: in particular, are future people owed anything?

It is customary to think that the list of human rights that must be protected from climate change includes the rights to life, health, and subsistence. Many would also want to add the rights to food, shelter, development, and self-determination, and some would also advocate less discussed rights like the right to heritage and the right not to be forcibly evicted or to relocate.

Adapting agriculture to climate change can promote the enjoyment of the human rights to food, subsistence, and life, particularly in poorer countries that are already food-insecure. Currently, the agricultural adaptation that is mostly pursued is knowledge-intensive in the sense of technology-intensive (genetically modified organisms being a clear case in point). This puts the poorest people of the world, most of whom depend entirely on agriculture for their subsistence, at an obvious disadvantage insofar as agricultural technologies can be extremely expensive to purchase and operate. In their contribution to this volume, Timmermann and Felix have argued for a different sort of knowledge-intensive agricultural adaptation, which draws and elaborates on traditional local knowledge. They provided various case studies of local communities re-discovering traditional ways of farming with as few external inputs as possible. What is most promising here is the fact that such traditional farming methods can be reproduced in a vast number of different settings; that re-discovering such methods enables lowering emissions while simultaneously enabling a sustainable, low-input and low-cost means of securing food; and, finally, that producing food in these ways can promote the enjoyment not just of the human rights to food, subsistence, and life, but also of the human right to self-determination and to take part in cultural life (that which technology-intensive agricultural adaptation may not be able to do, at least when it comes to the poorest of the world).

This emphasis on re-discovering the past implies an exhortation to protect it, to keep it available. Typical discussions on climate change tend to focus on its impacts on the present and the future. In his contribution to this volume, Andreas Pantazatos underscored the need to also consider the ways in which climate change can sabotage our past. Given the variety of negative impacts that climate change can have, physical as well as social, the cultural heritage of significant sections of humanity- be it tangible or intangible - is at risk of being lost. When glaciers recede, places like the Sacred Valley of Cuzco will receive less water, and corn cultivations which have been staple in this area for centuries, thanks to most ingenious techniques, will cease to be profitable (or even possible). Young people will migrate, and invaluable chunks of history and culture will be lost forever. So if climate change undermines the human right to our past, it also undermines our human right to the futures that our past could disclose. The right to heritage is a right not just to what used to but also to what may be, as heritage is constantly being transformed by the inscription of new meanings and interpretations and the re-elaboration of concepts and practices.

The most dramatic way in which climate change can violate people’s right to heritage, along with many other human rights, is by displacing them from their lands. Climate-induced migrations will be a constant of the future: the inhabitants of Small Island Developing States may have to move first, but they will soon be followed by many others who live along coasts that will be submerged by the rising seas, or in areas that will be exposed to more frequent floods and hurricanes or prolonged droughts.

As Serena Parekh argued in her contribution, significant and recurrent human displacements should be seen as a predictable outcome of climate change, and measures should therefore be taken to ensure stable and sustainable forms of political belonging on a climatically changing planet. This may mean recognizing the rights of climate refugees- a kind of refugees that presently enjoy no protection under international law.

Considering the specific case of people fleeing from sinking islands, Gianfranco Pellegrino argued that a rigorous interpretation of the definition of refugees provided in the 1951 UN Convention on the Status of Refugees would in fact have to recognize them as such, and thus entitle them to the corresponding rights. Additionally, people arguably have an independent right to occupancy which, if violated, should give them right to relocation as a means of compensation.

David Ritter provided further conceptual tools for reflecting on climate-induced human displacements, by introducing the notion of “climate change migration with dignity”. The strong ethical underpinnings of the concept, which is discussed mainly in connection with migrations within state borders but may also be of wider application, call for an upfront recognition that a human being who has been forcibly evicted from her homeland is one that is forced to live a life that is irreparably disconnected from the original sources of its meaning, but is not thereby turned into a meaningless life.

5.

Other lives that may be worsened by climate change are those that will be lived by future people. No discussion of climate governance can possibly disregard the intergenerational nature of the problem. In the past fifty years, globalized infrastructures of production and consumption powered by technological advancements in key industries have damaged ecosystems, spread pollution, and altered the physiognomy of the planet. This has caused disruptions of Earth’s fundamental systems, including those that govern climate. Because such systems configure the very context of human life on Earth, their alteration inevitably impacts the lives not just of present but of future people as well.

In fact, given the backlogged nature of the problem and the possibility of positive feedbacks being set off beyond certain thresholds of warming (such as the melting of the Arctic permafrost, which currently traps colossal amounts of carbon dioxide and methane into the Earth), it is almost certain that the worst impacts of climate change will be disproportionately suffered by future people. Future humans, that is – with the rights of humans, but no way to claim them as they are relegated to the peripheries of time. This establishes an enormous asymmetry of power. Those on the periphery cannot initiate and conduct political action: they cannot reciprocate, they cannot participate, they cannot protest and they cannot retaliate. Some have argued that the real problem with climate governance is not lack of agreement among countries but rather perfect (if tacit) agreement within each generation to “pass the buck” – to let the generations of the future bear the costs of climate change.

This is possible because future people have no way of making their voices heard. It is rational because presently there are no institutions for the future that sanction inter-generational ‘buck-passing’. And it is hard to change because, in the overwhelming majority of cases, benefiting the future entails opportunity costs for present people, and particularly for those who are most vulnerable. In other words, protecting the human rights of future people may require sacrificing the human rights of present people, and vice-versa.

Human rights-based climate governance will have to work at multiple scales, not just in space but also in time. Currently, the majority of our institutions heavily discount the interests of the future. So do most of us. This is morally dubious. A focus on human rights brings that into sharp relief, as no human is made less of a human by distance, be it spatial or temporal. In his contribution to this volume, Inigo Gonzalez-Ricoy discussed the option of constitutionalizing future people’s human rights, as a way of obviating to their inevitable political speechlessness through judicial means. While this could potentially serve as a strong human rights protection mechanism, constitutional rigidity could threaten the generational sovereignty of future people, who would have to live under laws which they have not chosen for themselves. Henry Shue offered a more general argument for the idea that human rights of future people impose duties on present people. They do so insofar as enjoyment of such rights in the future requires some degree of preparation in the present. This is clearly the case with the rights that may undermined by (or via) climate change, because enjoyment of such rights is jeopardized by climate impacts that are preventable now but may no longer be preventable in the future.

6.

As this volume has highlighted, grounding climate governance on human rights protection presents a number of theoretical and practical challenges. Further work is required before we can fully understand and govern climate change on human rights premises, including a more thorough understanding of the different kinds of vulnerabilities of different populations, deeper investigation of the interplay between local development and international law, more precise approaches to responsibility ascription, clear realization of the intergenerational bearings of our choices and policies, and theoretical and political development of the list of human rights that climate change may violate, and therefore need protection.

Such work is difficult but necessary. A human rights-based approach to climate governance has the invaluable effect of humanizing a problem that, while dramatically impacting people, is still mostly discussed in technical terms and is still largely hostage of power politics and partisan interests. It is the human side of climate change, the pain and burdens that it imposes and will increasingly impose on people, which ultimately justifies the need for inter-state reciprocity, for finding new ways to power our economies, for structuring multi-disciplinary research efforts, for gathering ever more precise scientific data, for caring about the future.

The Paris Climate Conference in 2015 may turn out to be a rite of passage: from a time in which climate change was denied to one in which it has become "the new normal". To recognize a problem is the first and necessary step to facing it effectively. Our political, economic, and social systems have been largely unwilling to recognize the nature, magnitude and urgency of the climate problem. That is not a good thing, but it is also not especially surprising inasmuch as climate change is an unsettling and dangerous "new normal", which may disrupt many aspects of human existence as we presently know it. For this very same reason, however, climate change is also an opportunity for economic, institutional, legal, and lifestyle regeneration. A focus on human rights is a powerful framework for guiding such regeneration. This volume has attempted to sketch the strengths and weaknesses, opportunities and threats inherent in such framework.

Marcello Di Paola teaches Global Justice and Theories of Sustainability at LUISS University in Rome. His main research interests are climate ethics and politics, and the philosophical underpinnings and implications of the notion of the Anthropocene. He has published in a number of academic journals, including Global Policy and Environmental Values, and recently co-edited, with G. Pellegrino, Canned Heat: Theoretical and Practical Challenges of Global Climate Change (Routledge 2014). Daanika Kamal holds an LL.M. in International Development Law and Human Rights from Warwick Law School. She is currently working with the Editorial Team at Global Policy Journal.