1. Introduction
1.2 Research Questions
In a view of the background information provided above, this thesis will seek to examine the following questions:
1. What kind of obligations does climate change law impose on developing states with respect to human rights?
2. What obligations does human rights law impose on African countries with respect to climate change?
3. How can human rights obligations be applied to national climate change policy (across both mitigation and adaptation) in order to improve the quality of climate change policy?
The thesis has a specific focus on Africa, where the impacts of climate change are anticipated to be most severe. Africa is of interest not only due its ecological vulnerability, but also due to the considerably limited adaptive capacity, aggravated by widespread poverty and low levels of development in the continent.20 Due to the vulnerability of Africa to climate change the Intergovernmental Panel on Climate Change (IPCC) highlighted in its Fifth Assessment
17 Paris Agreement. Note 1 above. Art. 2 (a).
18 Paris Agreement. Note 1 above. 11th preamble.
19 There are currently 196 parties to the UNFCCC, 194 parties to the ICESCR and 168 parties to ICCPR.
20 IPCC. Note 5 above. p. 1211.
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Report, Climate Change 2014: Impacts, Adaptation, and Vulnerability that increased focus should be paid to ‘cultural, ethical, and rights considerations’ in adaptation policy and implementation, in particular, in view of women, youth, poor and vulnerable people.21 The African Charter on Human and Peoples’ Rights (African Charter) provides for extensive socioeconomic rights including the right to a generally satisfactory environment.22 Therefore, building adaptive capacity in Africa requires, among others, increased consideration of rights and participation in adaptation policy and implementation.23
The focus of the research is on existing international climate change and human rights laws.
International environmental treaty law, customary international law and case law are considered insofar that they are needed to clarify certain principles of international environmental law and state obligations. The thesis will use the Republic of South Africa as a case study, due to the fact that it is one of the leading countries in Africa in terms of climate policy development, especially in terms of mitigation actions and related monitoring, reporting and verification.24 Furthermore, the Constitution of the Republic of South Africa guarantees the right to an environment that is not harmful to human health or well-being, by stating in section 24, that everyone has the right:
1. to an environment that is not harmful to their health or well-being; and
2. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that
a. prevent pollution and ecological degradation;
b. promote conservation; and
c. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. 25
This entrenched right makes South Africa an interesting case study.
21 IPCC. Note 5 above. p. 1203.
22 African Charter on Human and Peoples' Rights. Nairobi. 27 June 1981, in force 21 October 1986. (African Charter). Art. 24.
23 IPCC. Note 5 above p. 1203.
24 Mahadevan, B. 2015. Republic of South Africa. An integrated MRV system in South Africa. International Partnership on Mitigation and MRV.
25 Constitutional Assembly. Constitution of the Republic of South Africa. Act 108 of 1996. (Constitution of South Africa).
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This thesis will analyse international climate change law, that is, the UNFCCC, the Kyoto Protocol, and the Paris Agreement to identify what kind of obligations the current climate change regime poses to developing countries in relation to human rights (the first research question). Furthermore, secondary sources such as the related Conference of the Parties (COP) decisions and relevant legal literature are used to support the analysis. Hence, the thesis takes a legal doctrinal research approach to answer the first research question.
The second research question ‘What obligations does human rights law impose on African states with respect to climate change?’ is answered by analysing international and regional human rights treaties. The following treaties are considered: the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), and the African Charter. These treaties are considered to effectively represent the universal and generally applicable human rights that are affected by climate change, and which are relevant for majority of the African countries. In addition, other human rights treaties exist (globally and in Africa) but they are more specific in terms of subject matter or applicability and are not considered in this thesis.26 Furthermore, case law, relevant soft law instruments and legal literature are considered to interpret the above mentioned treaties. Therefore, the second research question is also answered by a legal doctrinal research approach.
Finally, the thesis seeks to analyse how human rights obligations could be considered in national climate change policy in order to improve the quality of the policy (third research question). Both the UNFCCC and the recent Paris Agreement oblige developing countries to formulate plans or programmes to take mitigation measures and to assist adaptation to climate change.27 This question is answered through normative legal analysis by first analysing the relevant communications, decisions, strategies and plans on climate change of the African Union and South Africa, in view of the findings of Chapters 2 and 3. The following documents from the African Union are considered: Draft African Strategy on
26 For example, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Convention on the Rights of the Child.
27 Paris Agreement. Note 1 above. Art. 4 and 7. United Nations Framework Convention for Climate Change.
Rio de Janeiro. 4 June 1992, in force 21 March 1994. Art 4.1 (b). (UNFCCC).
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Climate Change; Declaration on Climate Change and Development in Africa, Decision on the Accession of the African Union to UNFCCC and Kyoto Protocol, Decision on the African Common Position on Climate Change, Decision on the High Level Work Programme on Climate Change Action in Africa and Preparations for the Global Climate Change Events in 2014, as well as Common African Position on the Post 2015 Development Agenda and Agenda 2063 -The Africa We Want. For the South African case study following documents of climate change are analysed: National Climate Change Response White Paper, South Africa's Second National Communication under the United Nations Framework Convention on Climate Change, South Africa’s Intended Nationally Determined Contribution, Draft National Greenhouse Gas Emission Reporting Regulations, Draft Carbon Tax Bill, Draft Carbon Offset Regulations and South Africa’s Draft National Adaptation Strategy.
1.4Outline of the Thesis
Chapter 2 introduces the climate change regime and prescribes the relevant principles of climate change law. Chapter 2 also analyses the different types of obligations the climate change treaties establish with respect to human rights. This is done by analysing the commitments on mitigation, adaptation, loss and damage, and transparency, and then specifically considering how human rights have been incorporated in the climate change regime. Chapter 2 aims to answer the first research question. Chapter 3 defines what the rights are, how these rights obligate African countries, and more specifically, what do these obligations mean in regards to their climate change action. Therefore, Chapter 3 aims to answer the second research question. Chapter 4 analyses how the rights and obligations could be integrated into national or regional climate change strategies and plans to guide domestic climate change action. This is done by first analysing the relevant communications, decisions, strategies and plans on climate change of the African Union and South Africa to see, if and how the rights considerations have been included in them. After the South African case study, Chapter 4 considers how human rights obligations could be applied to national climate change policy to improve the quality of the climate change policy (research question 3).
Chapter 5 concludes that African countries are not only obligated to respect human rights in their climate action, but also actively to promote human rights in their climate policy. The right to generally satisfactory environment, as provided in the African Charter, possess procedural rights on African states to assess the environmental and socioeconomic impacts
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including the impact of climate change on human rights when implementing climate change measures.
2. The Climate Change Regime
This Chapter introduces the climate change regime and describes the relevant principles of climate change law. It also analyses the different types of obligations the climate change treaties establish on developing states with respect to human rights. Therefore this chapter aims to answer the first research question. This is done by analysing the commitments on mitigation, adaptation, loss and damage, and transparency, and then considering how human rights have been incorporated in the climate change regime.
2.1Background
The United Nations Framework Convention on Climate Change (UNFCCC) was established to reduce GHG emissions to prevent adverse consequences of climate change. The UNFCCC was adopted at the United Nations Conference on Environment and Development, held in Rio de Janeiro in June 1992 and entered into force in March 21, 1994.28 All the African Union members have ratified the UNFCCC, with the sole exception of the Sahrawi Arab Democratic Republic, which has not been recognised by the United Nations (UN) as a sovereign state.29 In the preamble of the UNFCCC, all the states that have signed and ratified the framework treaty acknowledge that climate change is a factual threat and ‘common concern to humankind’.30 Furthermore, the parties have obligated themselves to the stabilisation of GHG emissions to a level that will not lead to a dangerous disturbance in the climate system, in a time frame sufficient to allow ecosystems to adapt naturally and according to the principles of no harm, intergenerational equity, sustainable development, precautionary measures and common but different responsibilities. These principles are important as they guide the international climate change regime by providing a basis for
28 UNFCCC ratification status, available at:
http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php [20/03/2017].
29African Union member status, available at:
http://www.au.int/en/member_states/countryprofiles [20/03/2017]. The Convention only accepts states that are members of UN or parties to the International Court of Justice. (UNFCCC. Note 27 above. Art. 20). The Sahrawi Arab Democratic Republic has only been recognised by some countries, with majority of them African Union member states. The Sahrawi Arab Democratic Republic is better known as a part of Western Sahara.
30 UNFCCC. Note 27 above. 1st paragraph of the preamble.
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climate change negotiations as well as tools of interpretation for courts in case of climate change litigation. These principles are widely used to guide national environmental and climate change policies.
The no harm principle is referenced in the preamble of the UNFCCC but not in its Article 3, which establishes the obligations. However, preambles are recognised under international customary law as part of the treaty for purposes of interpretation.31 Furthermore, the no harm principle is considered as customary rule, and hence should apply in all international conduct.32 The no harm principle prohibits any state from causing significant transboundary damage and it requires every state of origin to take adequate measures to control and reduce such damage in advance.33 In the context of climate change and human rights, this should mean that any emitting country should limit their emissions to a level that does not lead to adverse effects of climate change resulting in human rights violations elsewhere. Some scholars argue that it is possible to establish such extraterritorial responsibilities between major emitting countries and countries suffering from the adverse impacts.34
The UNFCCC acknowledges the risk of climate change to future generations by requesting parties to protect the climate system ‘for the benefit of present and future generations’.35This principle is also known as an intergenerational equity principle, and it is central to the concept of sustainable development. Generally, however, intergenerational equity is not recognised as a binding legal rule in international environment law.36 However, some national constitutions include this principle making it more enforceable.37
The principle of sustainable development is widely referred in international law, but the exact definition of it seems to be unclear.38 In December 2015, the parties to the UNFCCC adopted
31 Mayer, B. (2016). Human Rights in the Paris Agreement. Climate Law. p.113.
32 Caddick, H, ed. (2014). Achieving Justice and Human Rights in an Era of Climate Disruption. London.
International Bar Association. p. 45.
33 Beyerlin, U. and Marauhn, T. (2011). International Environmental Law. Kindle Edition. Oxford: Hart Publishing. pp. 40-41.
34 Knox, J. (2014). Climate ethics and human rights. Journal of Human Rights and the Environment (5). pp. 32-33. Voigt, C. (2008). States Responsibility for Climate Change Damage. Nordic Journal of International Law.
(77). pp. 7-9 Burkett, M. (2009). Climate Reparations. Melbourne Journal of International Law. (10). pp. 9 and 22. 35 UNFCCC. Note 27 above. Art. 3.1.
36 Anstee-Wedderburn, J. (2004). Giving a Voice to Future Generations. Australian Journal of Environmental Law. 1 (1). pp. 39-42.
37 Constitution of South Africa. Note 25 above. Section 24.
38 Humphreys. Note 8 above. pp. 73-74.Caddick. Note 32 above. p. 66.
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the Paris Agreement, which entered into force on 4 November 2016.39 The Paris Agreement is a global effort by the parties to fight against human-induced climate change after 2020 and to stabilize global mean temperature rise ‘well below 2°C’.40 The commitments under the Paris Agreement are to be implemented in the context of sustainable development.41 The International Law Association has clarified the meaning of sustainable development in its Declaration of Legal Principles Relating to Climate Change as a requirement which balances economic and social development with the protection of the climate system. This declaration also supports the realisation of the right to adequate living standard and equitable distribution of benefits of all human beings. It further explains that where economic and social development may result in significant emission or environmental damage, the states have the duty to prevent such damage, or at least to employ due diligence in efforts to mitigate such impacts.42 However, the principle lacks effect as a legal rule and should rather be seen as a political goal in the context of the UNFCCC.43 Again some national constitutions include this principle which makes it more enforceable.44
The principle of precautionary measure, also called the precautionary approach, is similar to sustainable development, in that it is widely referenced in international law, but its exact definition is disputed.45 Article 3.3 of the UNFCCC states that precautionary measure should be applied to prevent or to minimise the adverse effects of climate change.46 The lack of full scientific certainty should not be used as a motivation for postponing such action and the policies and measures implemented should take into consideration the different socioeconomic contexts of the parties.47 Therefore, the concept of precautionary measure provides the basis for early action to address climate change damage in cases where there is scientific uncertainty regarding these damages or threats. In the context of human rights, this principle should require action to prevent human rights violations due to the impacts of climate change, even in cases where the exact impacts are unknown. However, the
39 On 5th of October 2016, 73 of the 197 parties to the treaty, accounting for 56.87 % of the world’s GHG emissions, deposited their instruments of ratification, which lead to automatic entry into force 30 days later. In February 2017, 129 parties had ratified the agreement. Ratification status available at:
http://unfccc.int/paris_agreement/items/9444.php.
40 Paris Agreement. Note 1 above. Art. 2 and Art. 21.
41 Paris Agreement. Note 1 above. Art. 2, 3, 5-8.
42 The International Law Association, Declaration of Legal Principles Relating to Climate Change. April 2014.
Resolution 2/2014.Art 3.3 and 3.5.
43 Beyerlin. Note 33 above ,p. 78.
44 Constitution of South Africa. Note 25 above. Section 24.
45 Rajamani. Note 12 above. p 432.
46 UNFCCC. Note 27above. Art. 3.3.
47 Ibid. Art. 3.3.
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precautionary approach is an emerging rule in international environmental law and uncertainties remain regarding its legal effect. There are no examples in the treaty which infer that this principle imposes a duty of action on states. Furthermore, the international courts have shown reluctance to apply this principle.48
Common but differentiated responsibilities is a principle of international environmental law, which has shaped the developed – developing country relations especially in terms of cooperation, solidarity and mutual aid.49 The principle was first referred as Principle 7 in 1992 in the Rio Declaration on Environment and Development.50 Both the 1992 UNFCCC and the thereto related 1997 Kyoto Protocol explicitly refer to common but differentiated responsibilities.51 In terms of climate change this principle means that mitigating climate change and adapting to it is a common global responsibility. However, due to historically different contributions of GHG emitted, the extent of responsibilities is also different.
Nevertheless, this principle does not create a legal obligation in itself, but it should be used as legal and philosophical basis to interpret existing obligations.52 This means that the principle requires a consideration of differential treatment between the parties in applying the obligations of the UNFCCC.
In 1997 the parties to the UNFCCC adopted the Kyoto Protocol. For the first time in the history of environmental law the Kyoto Protocol applied the common but differentiated responsibilities principle in its most extensive form, by imposing GHG emission reduction obligations only on industrialised countries (the so-called annex I countries) and further requesting these countries to ‘promote, facilitate and finance’ relevant technology and know-how transfer to developing countries (so-called non-annex I countries).53 The Paris Agreement also pursues the principle of common but differentiated responsibilities. However, it ends the era of dividing countries into industrialised and non-industrialised states, as the Paris Agreement requires climate action by all parties based on their Intended Nationally
48 Beyerlin. Note 33 above. pp.50-51.
49 Ibid. p. 61.
50 Rio Declaration on Environment and Development. Rio de Janeiro. 3-14 June, 1992. (Rio Declaration).
51 UNFCCC. Note 27 above. Art 3.1 and 4. Kyoto Protocol. Note 16 above. Art. 10.
52 Rajamani, L. (2000). The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime. Review of European, Comparative & International Environmental Law. 9 (2) pp. 124. Beyerlin. Note 33 above. p. 70.
53 Kyoto Protocol. Note 16 above. Art. 3, 10 and 28.
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Determined Contributions.54 Voigt and Ferreira describe differentiation in the Paris Agreement as ‘amalgamation of country specific responsibilities, capabilities and circumstances’ which differ in regards to each climate action: mitigation, adaptation, support and transparency.55
2.2Mitigation Commitments
Article 4 of the UNFCCC determines the commitments. According to Article 4.1, all parties of the UNFCCC shall formulate and publish measures to mitigate climate change. This means reduction of the sources of GHG emission and enhancement of the sinks of GHGs.56 These commitments apply according to the common but differentiated responsibilities principle and specific development priorities.57 The extent to which developing country parties will effectively implement their commitments under the UNFCCC will depend on the effective implementation of developed country party commitments related to financial resources and technology transfer under the UNFCCC.58 Mitigation is not a voluntary measure but a substantive obligation on all parties. However, developing country obligations are subject to additional financial resources provided by developed countries.
The Kyoto Protocol established quantified legally binding obligations for developed countries to reduce their emissions for the first commitment period (2008-2012)59. In terms of the developed country perspective, it should be noted that Article 10 requires all parties of the Kyoto Protocol to formulate, implement, publish and update measures to mitigate climate change, to facilitate adaptation, and to cooperate.60 This is to be done in accordance with the common but differentiated responsibilities, specific development priorities, objectives and circumstances. In terms of the developing country obligations the Kyoto Protocol mainly repeats what was set in Article 4 of the UNFCCC.
54 Obergassel, W. et all (2016). Phoenix from the Ashes — An Analysis of the Paris Agreement. Wuppertal.
54 Obergassel, W. et all (2016). Phoenix from the Ashes — An Analysis of the Paris Agreement. Wuppertal.