United Nations Human Rights Council resolves to conduct panel on human rights and climate change
At the tenth session of the UN Human Rights Council, from March 11-27, the Council passed Resolution L30, which calls upon the Council to hold a panel discussion on the relationship between human rights and climate change at the eleventh session. The Maldives, an island nation southwest of India, proposed Resolution L30. The Maldives has been emerging as a proponent of environmental protection, as evidenced by a July 2007 speech of its President, Abdul Gayoom. The country recently announced a dedication to be carbon neutral by the year 2020. Since 2007, the Maldives has been urging the United Nations to globally address the issue of climate change.
Resolution L30 focuses on the effects of climate change upon economic, social, and cultural rights. The Resolution also requests the United Nations Office of the High Commissioner to conduct a study that focuses on these issues. The study and a subsequent debate will form the bases for negotiations in the Framework Convention on Climate Change (UNFCCC). Abdulla Shahid, the Minister of Foreign Affairs of the Maldives, hailed the passing of the resolution “a vital day for the fight against climate change.” The panel will also focus on implementing the Bali Action plan, which sets the framework for international cooperation and use of available technologies to reduce carbon emissions and combat climate change.
Resolution L30 demonstrates the growing international awareness of the relationship between human rights and climate change. The resolution also exemplifies the understanding that global cooperation is the optimal way to combat climate change. Seventy-five countries supported Resolution L30, including Pakistan, Bangladesh, and Japan, which indicates that climate change is indeed receiving increased global attention.
Human rights-based climate change litigation - a new tool for environmental advocates?
A January 15 UN report on the relationship between climate change and human rights has concluded that while, in theory, global warming may infringe on certain fundamental human rights, individual human rights-based climate lawsuits are not likely to be successful. Nonetheless, environmental advocates may soon be taking up these issues in the courtroom, in part because litigation can bring mass public awareness to climate change issues. This increased exposure may apply added pressure to shape government policy, but is climate change an issue for courts to address?
There are three difficulties generally associated with litigation based on climate change: 1) it is almost impossible to establish a link between the named defendant, usually a State actor, and the alleged injury; 2) it is equally difficult to prove that global warming directly caused the harm; and 3) human rights based actions focus on completed harms, while the harms associated with global warming are usually based in the future. (See Article: “Are Regulatory Findings Admissible Evidence?” discussing issues of causation in climate change lawsuits)
However difficult in practice, human rights litigation based on climate change seems inevitable, as climate change has become an impetus for litigation in other contexts. Internationally, several companies are facing litigation for allegedly causing harm through environmentally unfriendly activities. In Australia, environmental groups lodged a complaint against a company that used the term “clean coal” to describe its power plant. Shell and ExxonMobil are among the defendants in a case in Nigeria that is attempting to stop the use of gas flaring. In the first European climate change litigation, environmental groups in Germany are attempting to compel the government to disclose its contributions to a credit agency that supports projects that allegedly increase greenhouse gas emissions. Canadian environmental groups have sued the Canadian government for inadequately complying with Kyoto. These actions have brought international attention to global climate change issues.
Even if human-rights based climate litigation ultimately fails, it will be a useful tool for environmental advocates who have the resources to bring these actions. According to an International Council on Human Rights report on climate change and human rights, “[l]awsuits draw attention to harmful effects that might otherwise remain below the public radar, put a name and face to the otherwise abstract suffering of individuals and provide impetus and expression to those most affected by the harms of climate change.”
While climate change law may add a new chapter, the story of human rights and the environment is an old one. The UN’s 1972 Stockholm Declaration recognized the “intrinsic link” between human rights and the environment. More recently, a joint seminar between the Office of the High Commissioner on Human Rights (“OHCHR”) and the United Nations Environment Programme (“UNEP”) in 2002 addressed human rights and the environment, and issued a background paper on the existing environmental jurisprudence of human rights bodies, which discussed the effects of human rights law and the environment on particular groups of people.
Oxfam launches "Climate Change Litigation Competition" while declaring that "Litigation is seldom the best way to solve a dispute"
Oxfam’s recent report, Climate Wrongs and Human Rights, advocates a human rights-based approach to climate change. The report largely focuses on the application of human rights principles, defined by Oxfam as a “fundamental moral claim each person has to life’s essentials – such as food, water, shelter, and security,” to international climate policymaking. But it also advocates changes to human rights laws and institutions to overcome what Oxfam cites as barriers to litigation against “countries and corporations that have long been producing excessive greenhouse gas emissions.”
In a section entitled “Litigate or Negotiate?” Oxfam argues (p. 10):
Human-rights laws and institutions must evolve fast to rise to the unprecedented international challenge that climate change creates. Creative human-rights lawyers could push to have courts recognise future injury (because of the delay between emissions and climatic events), and joint liability (since emissions come from multiple sources) in such cases. They could likewise seek to clarify and activate international legal obligations (due to the far-reaching international impacts of greenhouse-gas emissions), and call for an international venue (perhaps under the UNFCCC) where people whose rights are effectively being violated by other countries’ emissions can seek some form of redress.
This proposal raises numerous potential issues, not the least of which is whether there is room for a threshold analysis of specific causation in these “creative” legal theories. That question takes on more significance given the given the suggestion that courts recognize future injury.
Advocacy of the use of human rights principles as a tool in climate litigation is not new. In December 2005, a coalition of Inuit – on behalf of “all Inuit of the Arctic regions of the United States of America and Canada” purportedly “affected by the impacts of climate change,” – petitioned the Inter-American Commission on Human Rights to declare that the United States, “as the largest source of greenhouse gases,” was in violation of the OAS Declaration of the Rights and Duties of Man. Among other things, the 175-page petition asked the Commission to recommend that the United States:
Adopt mandatory measures to limit its emissions of greenhouse gases and cooperate in efforts of the community of nations – as expressed, for example, in activities relating to the United Nations Framework Convention on Climate Change – to limit such emissions at the global level.
After significant lobbying, the Commission invited the lead petitioner, Sheila Watt Cloutier, to present to the Commission on the broad question of the link between climate change and human rights. But the Commission declined to hear the specifics of the petition “laying blame for the Inuit situation.”
On the same day that Oxfam released its recent report, it also launched an international Climate Change Litigation Competition calling “lawyers, academics and law students to come up with the most innovative legal case for a developing country to take legal action on injuries suffered from climate change.”
This competition is somewhat surprising given that the author of the Oxfam report acknowledged that “[l]itigation is seldom the best way to solve a dispute.”
Trying to fashion international climate policy through piecemeal litigation in front of an international tribunal yet to be created or empowered – and unlikely to be created or empowered given the stated endgame of the would-be plaintiffs – may not be the most productive approach to international climate issues. Perhaps a competition for innovative international policy proposals would be a better first step?
We look forward to analyzing the winning entry in a future post.
