Part of the excitement of attending a COP is attending cutting-edge side events and workshops. This past Saturday, I spent my first day at the UNFCCC COP 19 attending the workshop “Rights, Governance and Climate Change,” jointly organized Yale University’s Governance and Environmental Markets Initiative (GEM) and the United Nations Institute for Training and Research (UNITAR) in collaboration with the University of Warsaw’s Faculty of Law and the Centre for International Sustainable Development Law (CISDL) This workshop brought together policy makers, scholars, practitioners and stakeholder from diverse fields and countries. The main focus of the workshop was to examine substantive and procedural rights in environmental governance, particularly for the climate change regime, and how they can enhance and support equitable solutions in environmental governance. In particular, the workshop aimed to provide outcomes to further innovative research in the climate change, rights, and governance fields.
Background to the Climate Change and Human Rights Nexus
Over the past few years, the international and human rights community has recognized the linkage between human rights and climate change (UN document). In 2007, the Small Island Developing States (SIDS) called on the international community to recognize the connections between climate change and human rights implications in the UNFCCC and Kyoto Protocol, known as the Malé Declaration. The international community responded. The UNFCCC COP16/CMP 6 in Cancun, Mexico and the United Nations Human Rights Council affirmed the linkages between key human rights, such as the right to adequate housing, and adverse climate change impacts on these substantive rights. Furthermore, the international environmental field has recognized procedural rights— the right to participation, access to justice and access to information— in the UNFCCC (Doha Work Programme Art. 6) and the 1992 Rio Declaration and the Rio +20 document. The international community wants to further strengthen these substantive and procedural rights in the Millennium Development Goals, Sustainable Development and in the UNFCCC regime.
Rights-Based Language in the UNFCCC
Climate change mitigation, adaptation, and loss and damage programs have and will impact human rights in numerous ways, in programs like the Clean Development Mechanism (CDM), REDD + , loss and damage and National Adaptation Plans (NAPs). The workshop examined topics on linkages between human Rights and climate Change; the potential of human rights and legal mobilization for addressing climate change; human rights, safeguards, and climate change; procedural rights initiatives at the global and regional level: creating linkages; and opportunities for further linkages and moving the climate change and rights-based regime forward, particularly for the post-2015 regime.
Utilizing Litigation to further the Climate Change Agenda
One of the most intriguing discussions of the day centered on using rights-based, legal methods to bring about action on climate change. This talk, given by Dr. Lisa Vanhala, analyzed legal mobilization and the use of substantive or procedural rights in climate change mitigation. She conducted a survey of climate change litigation across the common law developed countries of Australia, UK, Canada, US as well as international litigation. While international cases have mostly been symbolic rather than holding any entity or country liable for climate change harms, Dr. Vanhala found that domestic litigations were most successful when they have a combination of two instances: the suit was based on a constitutional provision or a statute, that the civil society organization bringing the suit had adequate resources, and the legal opportunity structure enabled the suit to progress through standing, third-party intervenor, legal aid, or timeliness, to name a few examples.
Understanding the elements of a successful or unsuccessful climate change litigation is very useful for pushing the climate change agenda, especially in countries like the US where the political climate remains hostile to most federal-level climate change measures. In the U.S., the most noted case, Massachusetts v. EPA, still presents the key to climate change litigation. This lawsuit surpassed the procedural barriers of standing and justiciability. Importantly, the case established that the EPA does not have the discretion to not ignore “endangerment finding,” that carbon dioxide is a harmful pollutant, as defined in the Clean Air Act, because it endangers public health or welfare. While this case had no human rights implications, Mass v. EPA demonstrated how climate change ligation can succeed in the U.S. Potentially, the case highlights the avenues to further legal action to spur the US to change practices, perhaps using a rights-based based on the right to health or the right to life? That would be a good topic for a thesis! However, it should be noted, that litigation is only one tool in the toolshed to combat climate change. In the meantime, climate change lawsuits remain the exception, not the norm. One of the main questions, however, is whether a country can mobilize human rights and climate change without resorting to litigation? That question remains unresolved for now, perhaps until some sort of international treaty arises or rights-based language gains more traction in the UNFCCC texts.