A rights-based approach to climate change policy : what does it mean for Africa?

A Rights Based Approach to Climate Change Policy:

What does it mean for Africa?

Laura Lahti Student number 260461

21 April 2017

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Master's Degree Programme in Environmental Policy and Law Environment, Natural Resources and Climate Change

Faculty Law School

Unit

Environmental Policy and Law Author

Laura Aleksandra Lahti

Title of the Thesis

A Rights Based Approach to Climate Change Policy: What does it mean for Africa?

Major

Environmental and Climate Change Law

Description Date

21 April 2017

Page amount

111

Abstract

Climate change is one of the most urgent environmental problems today and its effects, such as crop decline in Tanzania, decreased water levels in the Lake Victoria basin, and loss of pastoral livestock due to droughts in Kenya, are already observed. The climate change and human rights regime pose obligations to developing country parties to adapt to climate change in order to avoid or, at least to minimise negative impacts. However, only a little research has been devoted to exploring the precise developing state obligations arising from human rights law in the context of climate change, and how these obligations should guide climate change policy in developing states. This thesis is dedicated to study such questions.

The thesis applies the method of doctrinal legal approach to answer such questions by analysing first international climate change law that is, the United Nations Framework Convention on Climate Change, 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 thesis also analyses the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the African Charter on Human and Peoples to define the developing country obligations arising from these international and regional human rights treaties. Furthermore, case law, relevant soft law instruments, and legal literature are considered to interpret the above mentioned treaties.

This study 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. The African Charter on Human and Peoples’ Rights provides for extensive socioeconomic rights including the right to generally satisfactory environment. Building adaptive capacity in Africa requires, among others, increased consideration of rights and participation in climate change policy and implementation. The thesis uses the Republic of South Africa as a case study, which has guaranteed the right to clean and healthy environment in its Constitution.

The thesis concludes that the climate change regime obligates developing countries to formulate and implement adaptation and mitigation measures to prevent and minimise the effects of climate change. Furthermore, it requires the parties to include climate change considerations into their social, economic and environmental policies and actions, and to invite the public to participate in carrying out these commitments. The climate change regime recognises that climate change threatens the effective implementation of human rights. However, it does not pose any self-standing human rights obligations. The human rights regime generates substantive obligations to respect, protect, fulfil and promote human rights. The African Charter obligates African countries to adopt legislative, administrative, financial, educational and social measures that will guarantee people’s rights in the era of a changing climate. At a minimum level, countries are required to guarantee the right to life as well as the minimum core obligations arising from the underlying determinants of the right to life, such as access to food, housing, safe drinking water and sanitation that are safe and culturally adequate. The right to generally satisfactory environment further obligates countries to take measures to uphold certain environmental quality.

Key words: climate change, climate change law, human rights law, human rights obligations, African Charter on Human and Peoples’ Rights, right to environment, UNFCCC.

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Table of Contents

List of Abbreviations ... 14

1. Introduction ... 15

1.1 Climate Change Impacts Human Rights ... 15

1.2 Research Questions ... 19

1.3 Methodology ... 21

1.4 Outline of the Thesis ... 22

2. The Climate Change Regime ... 23

2.1 Background ... 23

2.2 Mitigation Commitments ... 27

2.3 Adaptation Commitments ... 30

2.4 Loss and Damage ... 33

2.5 Transparency of Action ... 35

2.6 Human Rights in the Current Climate Regime ... 36

2.7 Summary ... 41

3. Human Rights in Relation to Climate Change ... 43

3.1 Mapping the Rights ... 43

3.1.1 Types of Rights ... 45

3.2 The Relevance of Rights in the African Context ... 47

3.3 State Duties ... 49

3.3.1 Who is Obligated? ... 53

3.3.2 Realisation of Rights ... 54

3.4 Climate Change and Specific Rights ... 56

3.4.1 Right to Environment ... 56

3.4.2 Right to Highest Attainable Standard of Physical and Mental Health ... 60

3.4.3 Right to an Adequate Standard of Living ... 62

3.4.4 Right to Life ... 63

3.5 Summary ... 65

4. Adopting Human Rights Based Processes ... 67

4.1 African Union Climate Change Policy ... 67

4.2 South African Climate Change Response ... 73

4.2.1 The Basis of Environmental Protection ... 73

4.2.2 Climate Change Policy ... 74

4.2.3 South Africa’s First Climate Change Litigation ... 82

4.3 Are Climate Change and Human Rights Obligations Fulfilled? ... 84

4.4 Can Rights Qualitatively Improve Climate Policy? ... 86

5. Conclusions ... 89

ANNEXURE I. Status of Ratification of Human Rights Treaties by African Sates ... 92

ANNEXURE II. The Strategic Goals and Actions of African Union on Climate Change. ... 94

ANNEXURE III. Goals Provided in South Africa’s National Climate Change Response Strategy .. 106

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List of Abbreviations

AfCHPR African Court on Human and Peoples' Rights ACHPR African Commission on Human and Peoples' Rights AMCEN African Ministerial Conference on the Environment AOSIS Alliance of Small Island Sates

AU African Union

CAHOSCC Committee of African Heads of State and Government on Climate Change CDM Clean Development Mechanism

CESCR Committee on Economic, Social and Cultural Rights COP Conference of Parties

GHG Greenhouse Gas

ICESCR International Covenant on Economic, Social and Cultural Rights ICCPR International Covenant on Civil and Political Rights

IPCC Intergovernmental Panel on Climate Change MRV Measurement, Reporting and Verification NAMA Nationally Appropriate Mitigation Action

OECD Organisation for Economic Cooperation and Development

REDD Reduction of Emissions from Deforestation and Forest Degradation SIDS Small Island Developing States

UN United Nations

UNEP United Nations Environmental Programme

UNFCCC United Nations Framework Convention on Climate Change UNHRC United Nations Human Rights Council

OHCHR United Nations High Commissioner for Human Rights

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1. Introduction

1.1Climate Change Impacts Human Rights

Climate change is one of the most urgent environmental problems today and has attracted the attention of public and governments around the world. It is significant, not only due to the identified adverse effects and consequences, but also for its ability to test whether the international community is able to take collective responsibility and action to address this global challenge. Any delay in ambitious climate change mitigation actions to meet the multilaterally agreed global goal to restrict the global warming well below 2 degrees of Celsius (°C) before the end of the century¹ will shift the required action from mitigation to adaptation and the responsibility of wealthy nations to the most vulnerable. The effects of climate change - such as crop decline in Tanzania, decreased water levels in the Lake Victoria basin, and loss of pastoral livestock due to droughts in Kenya²- can already be observed in the developing world. Therefore, as Robinson suggests: ‘We need to change the debate on climate change: to move beyond its construct as a scientific or environmental problem and to realize that it is in essence an issue of development and of rights…’.³

The impacts of climate change are well established and include changes in rainfall patterns, sea level rise, increase or decrease of water temperature, modified run-off, coral reef degradation, floods, draughts, cyclones, heat extremes, etc.⁴ In Africa, the temperature increase is likely to exceed 2°C by the end of the century and the temperature rise is expected to be faster than the global land average, particularly in the more arid regions.⁵ The temperature increase will not only affect ecosystems, but also agriculture, food production, food security, health (via increased malnutrition as well as increased water and vector-borne

1A temperature increase above 2°C of the pre-industrial levels has been estimated to have severe consequences on life and ecosystems. (See IPCC. (2007). Fourth Assessment Report: Climate Change 2007, Working Group III: Mitigation of Climate Change. Cambridge. Cambridge University Press. Section 1.2.2. Paris Agreement to the United Nations Framework Convention on Climate Change. Paris. 30 November to 11 December 2015, in force 4 November 2016. (Paris Agreement). Art 2. (a)).

2 Mwiturubani, D. and van Wyk, J. (2010). Climate Change and Natural Resources Conflicts in Africa. Institute for Security Studies. Monograph 170. pp. 65, 189-190. Maghimbi, S. Recent Changes in Crop Patterns in the Kilimanjaro Region of Tanzania, African Study Monographs. No 35. March 2007, p. 76.

3 Robinson, M. (2014). Social and Legal Aspects of Climate change. Journal of Human Rights and the Environment. Special issue (3). p. 15.

4 IPCC. (2014). Fifth Assessment Report, Summary for Policy Makers, Climate Change 2014: Impacts, Adaptation, and Vulnerability. Cambridge. Cambridge University Press. p. 7 and 30.

5 IPCC. (2014). Fifth Assessment Report, Climate Change 2014: Impacts, Adaptation, and Vulnerability.

Cambridge. Cambridge University Press. p. 1202.

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diseases), energy safety and migration.⁶ Several rights are affected, such as the right to life, right to adequate food, right to water, right to health, right to adequate housing and right to self-determination, with most acute effects on those segments of the population who are already in vulnerable situations due to factors such as poverty, gender, age, minority status, and disability.⁷ In the past few years the legal problem of linking human rights considerations with climate change has received some attention. More specifically, issues such as the impacts of climate change on human rights and what constitutes a rights violation have received attention from legal scholars, and therefore are not discussed here in detail.⁸ However, Table 1 gives examples of the rights that can be affected by changing climate. The question is how well human beings, communities, and countries are able to adapt to the changing environment and related losses to guarantee that no right violations occur.

Table 1. Human Rights Affected by Climate Change⁹

Climate Impact

Climate Stressor

Human Impact

Human Stressor

Rights Affected

Change of precipitation

• Draughts

• Floods

• Modified quantity and seasonality of run- off

• Increased/

decreased river flow

• Reduced rates of ground water recharge

• Erosion

• Decreased access to safe drinking water

• Decreased crop yield or loss of crop

• Change in vector-borne diseases

• Damage to infrastructure and property

• Increased water stress

• Increased food insecurity and hunger

• Decrease in access to reliable electricity source

• Decrease of overall population’s health and life expectancy

• Adequate standard of living including adequate food, and housing and water

• Highest attainable standard of physical and mental health including food, housing, water, sanitation and healthy

environment

• Life

• Work and gain living

• Self-determination including freedom to pursue economic development

• Cultural life

6 Schaeffer, M. et all. (2013). Africa Adaptation Gap Technical Report: Climate Change Impacts, Adaptation Challenges and Costs for Africa. UNEP. pp. 4-10.

7 UNHRC. Human Rights and Climate Change. 25 March 2009. Res. 10/4. pp. 8-15.

8See, for instance: McInerney-Lankford, S., Darrow, M. and L. Rajamani. (2011). Human Rights and Climate Change, A review of the International Legal Dimensions. Washington, D.C. World Bank. Humphreys, S.

(2009). Climate Change and Human Rights: A Rough Guide. Geneva. International Council on Human Rights Policy. Jodoin, S. and Lofts, K. (2013). Economic, Social and Cultural Rights and Climate Change: A Legal Reference Guide. New Haven. Centre of International Sustainable Development Law.

9Adopted from: Centre for International Environmental Law, Climate Change & Human Rights: A Primer, Annex of the Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights (Jodoin. Note 8 above), and appendix 1 of Africa Adaptation Gap Report (note 6 above).

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Climate Impact

Climate Stressor

Human Impact

Human Stressor

Rights Affected

Sea Level Rise

• Salination of land and water

• Loss of land

• Damage to coastal infrastructure and property

• Decreased access to safe drinking water

• Decrease of agricultural land

• Loss of habitation

• Dislocation of population

• Drowning and injury

• Increased water stress

• Increased food insecurity and hunger

• Decrease of overall populations health and life expectancy

• Increased economic damages

• Decreased access to education

• Increased migration

• Adequate standard of living

• Highest attainable standard of physical and mental health

• Life

• Work and gain living

• Self-determination

• Education

• Cultural life

• Property

• Family including special measures to provide for the needs of elderly and disabled

• Freedom to dispose of their wealth and natural resources inc.

compensation in case of spoliation

• Generally satisfactory environment

• National and international peace and security

Temperature Increase (including increase of sea temperature)

• Coral reef degradation, enhanced toxic algal growth

• Migration of species, establishment of invasive species

• Loss of biodiversity

• Loss of yield leading to decreased access to fish protein

• Spread of disease

• Threat to tourism

• Increased food insecurity and hunger

• Decrease of overall populations health and life expectancy

• Decreased economic benefits

• Adequate standard of living

• Enjoyment of the highest attainable standard of physical and mental health

• Life

• Work and gainful living

• Self-determination

Extreme Events

• Heat extremes

• Cyclones and floods

• Sea surges

• Erosion / land slides

• Decreased crop yield or loss of crop

• Decreased access to safe drinking

• Increased transmission of diseases

• Dislocation of population

• Drowning and injury

• Damage to infrastructure and property

• Increased food insecurity and hunger

• Increased water stress

• Decrease of overall populations health and life expectancy

• Increased immigration

• Increased economic damages

• Decreased access to education

• Adequate standard of living

• Enjoyment of the highest attainable standard of physical and mental health

• Life

• Dignity

• Work and gainful living

• Self-determination

• Education

• Property

• Family right

• Generally satisfactory environment

• National and international peace and security

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In recent years, human rights centred approaches have been brought forward to tackle the climate change problem. This dimension attracted substantial international attention following the Inuit petition to the Inter-American Commission on Human Rights in 2005, which suggested that the United States of America was violating its human rights obligations by failing to reduce its greenhouse gas (GHG) emissions.¹⁰ Two years later the Small Island Developing States (SIDS) bought the matter to the attention of the international community through the Male Declaration on the Human Dimension of Global Climate Change.¹¹ Both the Inuit and the SIDS, in particular the Maldives, claimed that the impacts of climate change violated their fundamental human rights.¹² In 2009, the United Nations Human Rights Council (UNHRC) adopted the resolution 10/4 Human Rights and Climate Change, recognising that climate change will affect the ‘effective enjoyment of human rights’.¹³ The resolution further recognised that the effective implementation of the United Nations Framework Convention on Climate Change¹⁴ (UNFCCC) is crucial for the realisation of human rights affected by impacts of climate change, and that human rights obligations have the potential to strengthen policy-making on climate change.¹⁵

In spite of the well-established scientific information and global recognition of the climate change problem, the recent years have been overshadowed by a lack of clarity around a follow up to the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol) to the United Nations Framework Convention on Climate Change, which is the legally binding international treaty on GHG reduction, of which the first commitment period expired at the end of 2012.¹⁶ Finally in December 2015 the parties to the UNFCCC adopted the Paris Agreement to the United Nations Framework Convention on Climate Change (Paris Agreement), which regulates the reduction of post-2020 emissions with an aim of limiting the temperature increase well below 2 °C compared to pre-industrial

10Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omission of the United States. 7 December 2005. Submitted by S. Watt- Cloutier with the support of the Inuit Circumpolar Conference. (Inuit Petition).

11Male Declaration on the Human Dimension of Global Climate Change. Male. 13-14 November 2007. (Male Declaration).

12 Rajamani, L. (2010). The Increasing Currency and Relevance of Rights-Based Perspectives in the International Negotiations on Climate Change. Journal of Environmental Law. 3 (22). pp 398-399.

13 UNHRC. Note 7 above.

14The UNFCCC, adopted in 1992, is -as the name proposes - a Framework Convention on Climate Change, and a parent treaty of the 1997 Kyoto Protocol and the 2015 Paris Agreement. The UNFCC has near universal membership with 197 parties, 196 States and the European Union have ratified the Convention.

15UNHRC. Note 7 above.

16 Kyoto Protocol to the United Nations Framework Convention on Climate Change. Kyoto. 10 December 1997, in force 16 February 2005. (Kyoto Protocol). Art.3, para 1 and 7.

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levels.¹⁷ The Paris Agreement contains the first reference to human rights in a climate treaty by stating in its preamble that parties should in their climate change action ‘respect, promote and consider their respective obligations on human rights...’.¹⁸

Most parties to the UNFCCC have also signed and ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR).¹⁹ The climate change and human rights regime pose obligations to developing country parties to adapt to climate change in order to avoid or, at least, minimise the negative impacts. However, little research has been devoted to exploring the precise developing state obligations arising from human rights law in the context of climate change and how these obligations should guide climate change policy in developing states. This constitutes the main question to be studied in this thesis.

1.2Research 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. 11^th 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).

21/111 1.3Methodology

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. 1^st 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 5^th 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.