Are Human Rights Lost and Damaged?

Haiti after Hurricane Matthew

Haiti after Hurricane Matthew

Loss and Damage (L&D) includes the permanent loss of land, culture, and human life and will escalate existing tensions over increasingly scarce resources. This tension will ultimately incite conflict in many parts of the world. In some places, the loss of habitable land is forcing individuals and families to leave their country, threatening their sovereignty, and some countries are entirely submerged as a result of increasing sea levels. Since human rights include the right to life and the right to health, some have wondered why these aspects of climate change are not considered a violation of human rights.

One reason could stem from traditional human rights violations. Typically, human rights violations must be obviously traceable to an entity. An article in the Bangladesh Chronicle observes that extreme weather events cannot violate human rights through volcanic eruptions, mudslides, or events outside human control. As L&D is defined as the impacts of climate change that people are unable to adapt to, there might be an argument that the consequences are outside human control. Certainly, this is the case for L&D up to a point.

However, the risk of L&D is exacerbated through current inaction. By countries not adopting aggressive mitigation targets, they are not only increasing the already widespread need for adaptation, but they are worsening the situation by exponentially raising the risk posed by more frequent extreme weather events and more extensive slow onset events.  Therefore, there is a direct connection between lackadaisical mitigation reductions and increased risk of L&D. This trend, when coupled with scientific advances that can determine the impact of a specific country’s emission contributions on another’s climate, could provide vulnerable countries with an avenue to seek compensation through the international courts of justice, or some other court with requisite jurisdiction.

Still, in order to bring a claim, the claim must be valid. This is where one of the major criticisms of the Paris Agreement might work toward concerned parties’ advantage. Throughout the negotiation of the Paris Agreement, mentioning human rights in the substantive body of the text remained contentious. Ultimately, the concept was relegated to the preamble and isolated from any significant application to the implementation of the Paris Agreement requirements. Also, under decision 1/CP.21 para 51, the Parties agreed that Article 8 of the Paris Agreement dealing with L&D does not provide a basis for liability or compensation. Theoretically, since human rights are not mentioned in Article 8, a human rights violation resulting from widespread indifference to climate action leading to increased L&D might provide relevant parties with enough of a legal basis to establish liability. The Paris Agreement does not explicitly exempt human rights violation claims founded on L&D. The Paris Agreement and following decisions only prevent L&D grievances rooted within the operative text of Article 8. The specific language states that L&D does not “provide a basis for compensation or liability,” but does not preclude liability founded in human rights. Therefore the Paris Agreement only prevents parties from declaring entitlement to compensation from developed countries based on the mere fact that L&D will occur. It does not preclude liability imposed through claims not covered in the Paris Agreement like human rights violations.

Albeit seemingly outlandish, challenging the unambitious mitigation offers from developed countries with human rights violation claims might prove to be a form of viable motivation so as to adequately protect the most vulnerable countries to climate change. In this narrow window of opportunity, the international community should not wait to mitigate. When that window closes, they can only hope for the best and provide compensation.

A Story of Non-Economic Loss & Damage easiest way to approach loss and damage (L&D) in the face of climate change is to throw money at the problem, because presumably, everything has a price. But most people in who experience the actual L&D from climate change know that this is not the case. There are some losses that cannot be quantified.

Earlier today, COP22 featured a side event on L&D, where the theme throughout was non-economic or intangible loss. It is much easier to develop a fund to help hurricane victims rebuild their homes or to help a family or community relocate because their home is threatened by sea-level rise. But this fund isn’t a catch-all. There are infinite losses and damages that cannot be quantified, such as loss of culture, a sense of community, identify, youth, family, life, burial grounds, and many others.

Two of the presentations on the panel touched on a unique topic within non-economic L&D. Dr. Naomi Joy Godden presented on inequality in non-economic L&D. In her presentation, she touched on how gender issues intersect with loss of livelihood. One case study she highlighted was in Australia, where droughts have caused farmers to lose their crops and their livelihood. In addition to the tangible, quantifiable loss of crops and livelihood, they also lost their sense of identify, which is closely tied to their jobs as farmers. This loss of identity is unquantifiable and is likely experienced elsewhere in the world in the context of L&D.

The second presentation focused on the specific losses and damages felt by youth in informal settlements in Cape Town, South Africa. Phellecitus Montana and Harriet Thew from the University of Leeds presented the results of the unique losses and damages felt by the youth in these settlements, such as loss of identity, lack of institutional trust in the government, and loss of the ability to play. These types of L&D are not often discussed but are important to consider when researching potential solutions for L&D.

Both presentations demonstrate that economic compensation and financial support for L&D, while important, isn’t enough. Non-economic L&D is also an important factor to consider when researching solutions for L&D. The WIM also recognizes the importance of non-economic L&D moving forward under the Paris Agreement. Under its framework five-year workplan in the Executive Committee’s (Excom’s) 2016 Report, non-economic L&D is listed as the second strategic workstream. When the WIM takes up this work in 2017, studies such as the ones presented on in this side event will be vital to the Excom’s research and work in this area moving forward.

Where do Human Rights Belong?

Today marked the first meeting of the ADP Contact Group. Though the meeting started out going over what seemed to be relatively mundane logistical issues, it quickly heated up when human rights were brought up. The problem? Whether human rights issues should be left to the preamble, or given a place in the operational text.

As a refresher, the preamble to an international agreement is not part of the legally binding, operative text of an agreement. Rather, it more or less sets the stage for the agreement and provides a context under which the agreement may be interpreted.

This morning, while addressing Article 7 of the Draft Agreement on Technology Development, Mr. Tosi Mpanu Mpanu, the Facilitator from the Democratic Republic of Congo (DRC), addressed concerns over parties introducing new ideas this late in the game. Specifically, he mentioned that while working on the language of Article 7 Section 3, a party motioned to add language regarding human rights. Mr. Mpanu Mpanu noted that this addition slowed the progress they had been making on the text up to that point. However, because COP21 is a party driven process, Mr. Mpanu Mpanu felt obligated to mention it amongst the larger body., the party in question, immediately responded. “Human rights is not preamble language.” Mexico maintained that human rights issues are operational issues and should thus not be relegated simply to the preamble. They expressed their willingness to be flexible with the placement of human rights, as long as it received a home somewhere within the operational text. In essence, that human rights text would be legally binding within the text. And in response to suggestions that the issue was being newly introduced, Mexico maintained that they have been asking for its inclusion for a long time leading up to these negotiations.

So that leaves the world with a big question. Should human rights be included in a binding agreement on climate change? Undoubtedly, climate change solutions will involve human rights issues. Climate change is about more than weather, it highlights and intensifies inequalities already in place. For this reason, it is likely that an agreement without biding language on human rights will be to some extent incomplete.

Strengthening the Environmental Governance, Climate Change, and Human Rights Dialogue in the UNFCCC Process

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). imgresThe 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 welfareus-climate-change-300x225While 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.

Happy Human Rights Day!

Human Rights Panel

On this day in 1948, the United Nations adopted the Universal Declaration of Human Rights.  To celebrate the anniversary of this historic text and the principles it proclaims, several leaders in the human rights field gave a panel presentation today at COP15.  Panelists included Martin Wagner of Earthjustice and Ulrich Holstein of the U.N. Human Rights Council, as well as distinguished speakers from the Seychelles, Kenya, and the Inuit people of Canada.  They each emphasized the vital importance of taking human rights into account during the climate change negotiations.  The panelists explained that emissions reductions targets are inherently a human rights issue because anything over 1.5 degrees and 350 ppm condemns entire nations to devastating consequences and, in many cases, complete disappearance.  Continue reading