2. The Climate Change Regime
2.6 Human Rights in the Current Climate Regime
Notwithstanding increased recognition that climate change affects the effective implementation of human rights, very little progress has been made in incorporating human rights into climate policy. The UNHRC has issued a number of resolutions, including the
121 Cancun Agreements. Note 64 above. Art. 42-46 and 60.
122 UNFCCC. Note 27 above. Art. 4.3.
123 Paris Agreement. Note 1 above. Art. 13.7.
124 Ibid. Decision text, para. 85-89.
125 Ibid. Art. 13.7.
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resolution 10/4 Human Rights and Climate Change, which recognises that the effective implementation of the UNFCCC is crucial for the realisation of human rights and that human rights obligations have the potential to strengthen policy-making on climate. This resolution and a series of other resolutions have been submitted to the relevant COP meetings, calling for the inclusion of human rights norms within the UNFCCC. This process has been strongly advocated by the vulnerable countries as well as civil society organisations.126 The key message is that climate action can contribute directly to greater human well-being by protecting life, livelihood, and health, if human rights are used as criteria for policy planning.
Climate action - whether in form of mitigation or adaptation - can also negatively affect the human rights if not appropriately planned, regulated and implemented. Considerable attention has been attracted by the Bajo Aguán biogas mitigation project in Honduras. This project was registered under the Clean Development Mechanism (CDM) established under Article 12 of the Kyoto Protocol.127 CDM is currently the largest mitigation instrument in the world, which focuses on emission reduction projects in developing countries.128 In short, the modalities and procedures adopted in the Marrakesh Accords, and further developed by the CDM Executive Board, set out the rules of implementation of the CDM projects. These modalities include stakeholder engagement locally and globally and a requirement that the project contributes to sustainable development of the host country in addition to additional, measurable and verifiable emission reductions.129 The Bajo Aguán biogas project recovers biogas that is produced in the wastewater treatment system of a palm oil mil.130 This project conflicts with the interest of the local people who are claiming their right to land. The background of this conflict is in an agrarian reform, where the government illegally sold land to private entities.131 This took place in 1990s. Since 2004 there have been several armed conflicts between local people and private security companies protecting the plantations leading to the deaths of over 50 people.132 Local nongovernmental organisations brought the issue of human
126 Cameron, E. and Limon, M. (2012). Restoring the Climate by Realizing Rights: The Role of the International Human Rights System. Review of European Comparative & International Environmental Law (21) 204. pp.
207-209.
127 Aguan Biogas Recovery from Palm Oil Mill Effluent (POME) Ponds and Biogas Utilisation—Exportadora del Atla ´ntico, Aguan/Honduras CDM Project number 3197.
128 Obergassel, W. and Shade, J. (2014). Human Rights and the Clean Development Mechanism. Cambridge Review of International Affairs. (4) 27. p. 718.
129 UNFCCC. Decision 17/CP.7. Modalities and procedures for a clean development mechanism, as defined in Article 12 of the Kyoto Protocol. UN Doc. FCCC/CP/2001/13/Add.2, 21 January 2002. (Marrakesh Accords).
130 Note 128 above. p. 724.
131 Ibid.
132 Ibid.
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rights violations to the attention of the CDM Executive Board.133 However, the Board registered the projects as a CDM project, and therefore responsibility to deal with the human rights violations was left to the host country of the project.134
Similarly, other mitigation measures, such as hydropower dams or reforestation projects, could violate human rights or result in a conflict through restricting the access of inhabitants to land to provide for food, income and housing. Mitigation measures implemented by developing country parties can include a variety of measures, which either mitigate emissions or enhance sinks. These measures can be economy-wide, cover several or single sectors, such as energy supply and demand, industry, agriculture, forestry and waste management.135 If not carefully planned or assessed these measures can lead to rights violations.
As Koivuvaara, Duyck and Heinämäki note, the fact that mitigation projects may pose risks to human rights was only acknowledged in COP 16, in Cancun, Mexico.136 The Cancun Agreements state that the parties to the UNFCCC should fully respect human rights.137 This was the first time human rights language found its way into a COP decision. Furthermore, the Cancun Agreements call for the respect of the rights and the knowledge of indigenous people and local community members by considering relevant international obligations, national circumstances and laws in the context of the collaborative programme of the UN on Reduction of Emissions from Deforestation and forest Degradation (REDD).138 Initially, REDD was focused on reducing emissions from deforestation and forest degradation.
However, the Bali Action Plan, established at the COP 13 in 2007, stated that a comprehensive approach to mitigating climate change should enhance conservation and sustainable forest management.139 Subsequently in COP 16 REDD became REDD-plus
133Obergassel. Note 128 above. pp.725-726.
134 Ibid.
135 UNFCCC website on Mitigation. Available at: http://unfccc.int/focus/mitigation/items/7171.php [visited 23/03/2017].
136 Koivuvaara, T Duyck, S. and Heinämäki, L. Climate Change and Human Rights, in Hollo E. Kulovesi, K.
and Mehling, M. eds (2013). Climate Change and the Law. 21 Ius Gentium: Comparative Perspectives on Law and Justice. p. 319.
137 Cancun Agreements. Note 64 above.
138 Cancun Agreements. Note 64 above. Appendix 1. 2(c), Guidance and safeguards for policy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries. Koivuvaara. Note 136 above.
139 Bali Action Plan. Note 62 above. Para. 1 (iii).
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(REDD+), to reflect the new components.140 Regardless of the safeguards established in Cancun, REDD+ activities can have negative impacts, such as degradation of biodiversity, displacement of local communities and destruction of subsistence livelihoods.141 Therefore, human rights considerations are important to regulate climate change action.
There is a need not only to respect, but also to protect and fulfil substantial human rights in all climate action. This has been captured in the new Paris Agreement, the preamble of which reaffirms that ‘climate change is a common concern of humankind’ and further states that parties should in their climate change action ‘respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity’.142 Furthermore, the parties recognise the essential importance of
‘safeguarding food security and ending hunger’, which are fundamental for the implementation of human rights.143
Two important factors arise from the recognition of human rights in the Paris Agreement.
Firstly, this is the first time that human rights are mentioned in a legally binding climate treaty. Secondly, the scope of the human rights referred in the Paris Agreement is wider than in the Cancun Agreements, as it request parties not only to respect human rights, but also to implement active measure through climate change action.144 However, the language used refers to the respective human rights obligations of each party in their climate change action, instead of making the promotion and consideration of human rights a common global goal. It can be argued that the Paris Agreement does not establish any self-standing human rights obligations.145 This is due to the language used and the fact that the only reference to human rights considerations is in the preamble and not in the operative parts of the text and hence these considerations are only guiding. However, as Mayer points out preambles are
140 Cancun Agreements. Note 64 above. Appendix 1. 2(c). Guidance and safeguards for policy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries.
141 Godden, L. and Tehan, M. (2016). REDD+: Climate Justice and Indigenous and Local Community Rights in Era of Climate Disruption. Journal of Energy and Natural Resources Law. 1 (34). p. 99
142 Paris Agreement. Note 1 above. 11th preamble.
143 Ibid.11th preamble.
144 Mayer. Note 31 above. p.113.
145 Ibid. p. 114.
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recognised under international customary law as part of the treaty for purposes of the interpretation.146 Therefore, parties under the Paris Agreement must recognise their specific human rights obligations when implementing their climate change measures.147 This is more or less a confirmation of what should take place in any case, as treaties and laws are typically to be interpreted in mutually compatible manner.148 This means that implemented adaptation measures should be strong enough to guarantee the rights in the face of changing climate. In addition, mitigation measures need to be planned in a way that no rights are violated. Mayer also notes that it is possible to take domestic legal action based on the ‘acknowledgment of human-rights law in the preamble to the Paris Agreement and the provisions that call for integrated consideration of human rights within climate action’ when challenging particular climate change measures implemented by a government. 149
Koivuvaara, Duyck and Heinämäki recommend the enforcement of the procedural rights of the stakeholders and controlling the necessity to respect substantive human rights via working bodies of the current climate regime.150 Similar recommendations were given by the International Bar Association on the Achieving Justice and Human Rights in an Era of Climate Disruption report. This report endorses applying procedural rights and dispute mechanisms to all climate actions and recommends binding language to protect human rights in climate action.151 Furthermore, the report emphasises the importance to monitor compliance.152 Indeed, the UNFCCC poses procedural rights obligations on its parties in addressing climate change, its impacts and in developing adequate response measures. Article 6 of the UNFCCC requires not only training and awareness rising but also public access to information and public participation when carrying out commitments. Similarly the Kyoto Protocol requires facilitation of public awareness and public access to information in its Article 10 (e). Furthermore, the Paris Agreement requires that the capacity building and cooperation efforts should enhance training, education, public awareness and access to information.153 Therefore, African countries are obligated to implement participatory processes when implementing climate change policies, plans and actions.
146 Ibid. p.113.
147 Ibid. p. 114.
148 Mcinerney-Lankford. Note 8 above. pp-23-25.
149 Ibid. p. 117.
150 Koivuvaara. Note 136 above. p. 305.
151 Caddick. Note 32 above. pp. 174-175.
152 Ibid.
153 Paris Agreement. Note 1 above. Art. 11.1 and 12.
41/111 2.7Summary
The current climate change regime provides a legal framework to minimise the risks of climate change globally. It poses substantive obligations on developing countries to formulate and implement adequate mitigation and adaptation measures that take into consideration their socioeconomic contexts. The extent of these measures is determined by the countries themselves. The current global mitigation goal is not ambitious enough in the sense that it will most likely lead to situation in which the effects of climate change will affect negatively the implementation of human rights. Hence, developing countries should ensure through sufficient adaptation measures that the effects on human rights are minimised. Furthermore, the climate change regime requires the parties to measure and report the national emissions, impacts and action to the UNFCCC. Up to 2020, the mitigation measures are expected to take the form of Nationally Appropriate Mitigation Actions and the extent of these measures will depend on financial resources and transfer of technology provided by developed countries.
From 2020 onwards the developing countries are obligated under the Paris Agreement to prepare, communicate, pursue and maintain nationally determined mitigation and adaptation measures. Therefore, it is an obligation of conduct rather than result. Developed countries should continue to provide financial assistance for such measures.
The current climate regime recognises that climate change threatens effective implementation of human rights. The Paris Agreement marks a break through, as human rights have now been mentioned in a legally binding climate treaty.154 However, the current regime only requires countries to recognise their human rights obligations, when implementing mitigation and adaptation measures. Therefore, the international climate change law does not impose any self-standing obligations with respect to human rights, with the exception of procedural rights. Procedural rights, if applied in an extensive form, are important first step in identifying potential rights violations. The burden to safeguard human rights is left to the African countries themselves. As pointed out above some mitigation measures, such as REDD+ and large scale hydrological dams, if not well planned, may result in human rights violations. Similarly, adaptation measures may fail to respond to climate change impacts sufficiently and lead to loss and damage that will violate human rights. Therefore, African states should include human rights considerations in climate change decision making, adopt
154 Mayer. Note 31 above. p.113.
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measures to protect human rights, and enhance awareness of rights in connection to climate change.
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3. Human Rights in Relation to Climate Change
This chapter provides answers to the second research question: What obligations does human rights law impose on African states with respect to climate change? This is undertaken by analysing the relevant human right treaties and respective obligations. Firstly, Subsection 3.1 provides an introduction to the definition of human rights, in which documents they are contained and what type of rights do exist. Secondly, in Subsection 3.2 human rights are described in the context of Africa. Thirdly, Subsection 3.3 describes the state duties arising from the human rights in terms of obligations. Finally, Subsection 3.4 outlines the state obligations related to specific rights: the right to environment, the right to highest attainable standard of health, the right to adequate standard of living and the right to life. These rights are most affected by changing environmental conditions due to climate change.
3.1Mapping the Rights
Human rights refer to the core set of rights recognised under international law on behalf of all individuals. These rights include, among others, rights to equality, life, human dignity, healthy environment, housing and food. The primary source texts are the 1966 International Covenants on Civil and Political Rights (ICCPR) and the Economic, Social and Cultural Rights (ICESCR), both of which derive from the 1948 Universal Declaration on Human Rights. The Universal Declaration on Human Rights was drafted after the Second World War. It is called universal, although only a few countries participated in the drafting. It is a declaration and was initially not intended as an internationally binding agreement.155 However, the dominant current opinion in public international law is that it has become a part of international customary law.156 Human rights, as defined in ICCPR, ICESCR and the Universal Declaration on Human Rights are defined as being equal to every person despite
‘nationality or cultural affiliation’. 157 Furthermore, every person becomes a rights holder ‘by birth’.158 At the international level almost every state nowadays belongs to at least one human
155 Bösl, A. and Diescho J, eds (2009). Human Rights in Africa Legal Perspectives on their Protection and Promotion. Windhoek. Konrad-Adenauer-Stiftung. p 5.
156 Ibid .
157 Sachs, W. (2004). Climate Change and Human Rights. In: Crutzen, P. organiser. Interactions between Global Change and Human Health. Vatican. The Pontifical Academy of Sciences. p 351.
158 Ibid.
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rights treaty. As mentioned before most of the parties to the UNFCCC and the Kyoto Protocol have also ratified international human rights treaties.159 The ICESCR has 164 parties, and the ICCPR has 169 parties160. For ratification details of African countries see Annexure I. Furthermore, several states have adopted human rights in their constitutions.
From the African perspective, the 1982 African Charter is important. With these agreements the international community has created a body of substantive human rights law that sets out obligations and duties to a state. These treaties are legally binding on all states that have ratified them.
Several other human rights treaties exist, for instance: the International Convention on the Elimination of All Forms of Racial Discrimination, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Convention on the Rights of the Child. There are also treaties specific to the African Union, such as Convention Governing Specific Aspects of Refugee Problems in Africa, African Charter on the Rights and Welfare of the Child, and African Charter on Democracy, and Elections and Governance, Protocol on the Rights of Women in Africa. However, these are not considered as part of this thesis since they focus on a specific group or a subject matter.
This thesis focuses on the generic civil, political and socioeconomic rights applicable to all.
Table 2 summarises the rights outlined in the aforementioned treaties, which can be affected by changing climate.
159 There are currently 196 parties to the UNFCCC and 192 to the Kyoto Protocol.
160 Ratification status available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en and https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en [visited 24/03/2017].
45/111 Table 2. Human Rights Affected by Climate Change
Specific Human Right Relevant Article under Specific Legal Instrument ICESCR ICCPR African
Charter Right of self-determination
Including the right to freely pursue economic, social and cultural development.
Including adequate food, clothing and housing.
11
Right to the enjoyment of the highest attainable standard
of physical and mental health 12 16.1
Right to education 13 17. 1
Right to cultural life 15 17. 2
Right to life 6.1 4
Right to liberty and freedom of movement 9.1
12.1
12.1
Right to dignity 5
Right to property 14
Family right
Including provisions of special measures to provide for the needs of elderly and disabled.
23.1 18.1
18.4
Right to freely dispose of wealth and natural resources
(*Including compensation in case of spoliation.) 1.2 21*
Right to national and international peace and security 23.1
Right to generally satisfactory environment 24
3.1.1 Types of Rights
The human rights laid out in these treaties are generally categorised as civil and political rights and social, economic and cultural rights. The former includes individual rights entailing freedom from arbitrary governmental interference and right to life, liberty, freedom of expression and assembly, political participation, access to justice, privacy, property, and protection from torture. They are typically non-derogable.161 The latter includes policies creating conditions enabling individuals to develop to their full potential, that is, right to work, education, social security, food, housing, and enjoyment of the highest attainable
161 Boyle, A. and Anderson, M. eds (1998). Human Rights Approaches to Environmental Protection. Oxford.
Clarendon Press. pp. 17 and 46.
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standard of physical and mental health. They can be derogated under certain circumstances.162 The civil and political rights are typically assured through judicial mechanisms, whereas the social, economic and cultural rights are generally dependent upon domestic policies.163 Also a third categorisation exists, the so-called third generation rights or solidarity rights which, according to Boyle, are collective rights typically entailing peace, development and good environment.164 These rights are directed towards groups rather than individuals and obligate governments and international agencies to cooperate with and assist those whose own resources are inadequate.165 The rights provided in the African Charter are not only individual rights, but also people’s rights. In particular, the social, economic and cultural rights defined in the African Charter are written in a form of ‘all peoples shall’
standard of physical and mental health. They can be derogated under certain circumstances.162 The civil and political rights are typically assured through judicial mechanisms, whereas the social, economic and cultural rights are generally dependent upon domestic policies.163 Also a third categorisation exists, the so-called third generation rights or solidarity rights which, according to Boyle, are collective rights typically entailing peace, development and good environment.164 These rights are directed towards groups rather than individuals and obligate governments and international agencies to cooperate with and assist those whose own resources are inadequate.165 The rights provided in the African Charter are not only individual rights, but also people’s rights. In particular, the social, economic and cultural rights defined in the African Charter are written in a form of ‘all peoples shall’