Human Rights in a Climate Changed World: The Impact of COP21, Nationally Determined Contributions, and National Courts
Climate change has become an active intersection of environmental and human rights law. At the global level, the United Nations Framework Convention on Climate Change (UNFCCC) was created to respond to climate change’s impacts on humans, first by setting greenhouse gas (GHG) mitigation norms to prevent or limit atmospheric warming. More recently, the UNFCCC’s added focus on adaptation recognizes the changes already in play and their disproportionate impact on vulnerable populations. But, while the UNFCCC reflects concern for human rights, neither the original framework convention nor its Kyoto Protocol contains explicit references to specific human rights or human rights laws.
Likewise, early human rights law did not express a right to a healthy environment. The 1948 Universal Declaration of Human Rights and its two covenants adopted in 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), lacked references to specific environmental rights. The first connection between the right to life and the need for a healthy environment appears in the 1972 Stockholm Declaration, which proclaims the natural environment is “essential to . . . the right to life itself.” Since then, many countries have codified the right to a clean and healthy environment in their national constitutions or have become parties to regional conventions that include this right. John Knox, Special Rapporteur on Human Rights and the Environment, has observed “a rapid ‘greening’ of human rights law” as human rights bodies have interpreted the rights to life and health as requiring states to protect the environment. Yet, despite this progress, there still is no global human rights agreement that explicitly includes a right to a healthy environment.
Climate change catalyzed the human rights community to bridge this gap. Human rights groups mounted a campaign advocating for explicit human rights protections in the international climate change agreement adopted in Paris on December 12, 2015. Beginning with the UNFCCC’s sixteenth Conference of the Parties (COP16), held in Cancun, Mexico in 2010, the Convention’s Parties expressly acknowledged climate change’s impacts on human rights. Beginning in 2011, negotiations opened for a new agreement to succeed the Kyoto Protocol in 2020 and they have included human rights language in multiple working drafts. The final Paris Agreement includes express reference to human rights in its preamble. Even though references in operational provisions of the draft agreement were deleted, the Paris Agreement represents the first multilateral environmental agreement to recognize explicitly the intersection of human rights and climate change.
The Paris Agreement also embodies a sea change in international climate change governance. By focusing on “bottom up” nationally determined actions and not on “top down” global mitigation targets, it invites all countries to act on climate change domestically within a treaty architecture that carefully calibrates national sovereignty with international objectives. This evolution in the nature of the UNFCCC Parties’ obligations to one another began at COP15 in Copenhagen in 2009 and gained momentum at COP16 the next year. It culminated at COP17 with the creation of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) and its mandate to “develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” by the end of 2015 at COP21. Thus, at the same time that the relationship of human rights to climate change was under negotiation, so too was the fundamental framework of legally binding UNFCCC commitments.
In December at COP21, the 196 Parties adopted an outcome that creates a structured process for pledging and reviewing nationally determined but internationally promised actions. These actions go beyond mitigation to address adaptation, finance, capacity building, and technology development and transfer—essential components for developing countries to contribute to international climate change mitigation and adaptation according to their “common but differentiated responsibilities and respective capabilities.” The Paris Agreement requires each Party to individually determine and pledge what it deems to be a “fair” contribution, which is then publicly registered on an UNFCCC website. It also requires the Parties to collectively review these pledges, and measure the group effort against the objective of keeping global warming to at least “well below 2°C.” Finally, in a virtuous cycle, it requires Parties to revise pledges every five years in light of collective progress on the global goal and to increase the fairness and ambition of these national pledges each time.
Many have lauded this new approach for its ability to bring all developed and developing country parties into a common and transparent framework of balanced commitments. At the same time, experts recognize that holding sovereign nations accountable for their treaty obligations is hard. The UNFCCC and Kyoto Protocol have used consultative review of Parties’ progress on their commitments to ensure compliance. This approach aims to identify barriers to implementation, share best practices for overcoming them, and lead sovereign decisions to adopt them. But this compliance mechanism did not keep Canada from withdrawing from the Kyoto Protocol during the first commitment period when faced with not achieving its 6% reduction commitment. Likewise, it did not stop Japan, New Zealand, and Russia from choosing not to join a second commitment period. The question now becomes whether the Paris Agreement’s nationally-focused approach can change this dynamic and lead countries to make the hard political and economic domestic changes more than the Kyoto Protocol did.
This Article argues that it can because the very nature of these nationally determined pledges offers new avenues for holding UNFCCC Parties accountable for their international contributions. Where facilitative compliance mechanisms between sovereign treaty members fall short, enforcement actions under domestic laws for the implementation of national pledges developed through international negotiations have potential to fill this accountability gap. How? By focusing on national strategies when formulating their international contributions, Parties necessarily build on national policies and laws. These domestic levers provide political and legal pressure points for advocates seeking to hold their countries responsible for honoring international commitments. For example, civil society organization leaders, like Bill McKibben, underscore the role of national citizen engagement and political activity in nationally determined contributions (NDC) implementation post-COP21.
Recent national climate change suits in UNFCCC member countries build on this political will and show how existing domestic laws can be used to hold Parties accountable for their internationally pledged national contributions. For example, the NGO Urgenda drew on the Netherlands’ tradition of making human rights justiciable in court when it successfully argued that the government’s international climate change pledges were below its capacity and thus failing to protect its citizens’ rights to life and health under national tort law. The June 2015 trial court decision ordering the government to increase its pledges was the first to use domestic law to hold a UNFCCC Party accountable for its international commitments. This case resonated loudly in the climate change advocacy community in the three months leading up to COP21’s negotiations. It is regularly cited as one example of what Marcos Orellana described as using human rights law as a “new tool to address contemporary realities.” Since then, administrative and judicial actions have been filed in six other UNFCCC party countries. There has not been such a spike in cases since the early climate change litigation boomlet in the United States and Australia in the early 2000s. Each of these recent cases seeks different remedies, under different kinds of national laws, with some based on human rights law and some based on domestic climate change legislation. But they all share a common litigation strategy: use international climate change norms to hold individual countries accountable through their domestic courts.
This kind of national litigation will only grow as the dust settles on the Paris Agreement.24 First, the new “bottom up” orientation of international climate change law places authority in nation states for determining the content of these pledges and hence opens the door for making enforcement claims based on the domestic laws and policies used to create them. Second, the absence of a world climate change tribunal or other specific enforcement mechanism in the new Agreement makes domestic courts an attractive venue for addressing non- or low-performance of national obligations. Third, the transparent submission of NDCs will provide ample, available information for bringing suit. Fourth, NDC analysis by third parties like the NGO Climate Action Tracker and the UNFCCC Secretariat, along with the IPCC’s reports on mitigation pathways needed to stay within a predicted carbon budget, provide expert evidence on global norms that national courts may draw on. While threshold procedural issues may impede litigation on the merits, these suits individually—and more so en masse—place the spotlight on national efforts to achieve their NDCs.
To reach these conclusions, this Article first chronicles the growing acknowledgment of climate change’s impacts on human rights and how this movement affected the COP21 negotiations. It next puts this human rights advocacy campaign into the broader context of the new Agreement architecture at the heart of the negotiations. The Article then describes the six national cases brought to date, and analyzes how they use international climate change norms when making domestic law claims. Finally, it concludes with several observations about how the Paris Agreement’s NDCs may ultimately lead to greater treaty compliance via nationally determined enforcement. This method can complement the facilitative international compliance mechanisms inscribed in the new Agreement while closing the accountability gap. In doing so, it also puts into practice the aspirational human rights language in the Paris Agreement’s preamble.
To continue reading, please click here.