1. INTRODUCTION
The dire consequences of climate change – which including extreme weather events, rising sea levels and associated displacement – pose a considerable challenge for international environmental law (IEL).Footnote 1 IEL can make an important contribution to climate change adaptation and mitigation, but it is not well suited for offering remedies to victims of the harmful consequences of climate change. International human rights law (IHRL) arguably may offer an alternative.Footnote 2
IHRL allocates obligations to the territorial state concerned through the notion of jurisdiction, and focuses on causation to establish responsibility for violations. However, climate change is caused by global phenomena that are not limited to the territorial state, and it is often difficult to identify any direct causal link to certain acts or omissions by a particular state. The territorial tenets of IHRL have been identified as a major shortcoming in the context of the human rights-environment discourse.Footnote 3 The doctrinal focus of IHRL on territoriality has undergone modest changes in restricted cases, where extraterritorial jurisdiction has been recognized. However, even an embrace by IHRL of extraterritorial jurisdiction would not allow for a suitable response to the consequences of climate change. Extraterritorial jurisdiction requires either control over territory or a person or, as a minimum, a direct causal link. Climate change impacts are characterized by the absence of any of these factors. Jurisdiction remains an inadequate attribution mechanism in the face of the global nature of climate change. Recourse to IHRL for the purpose of remedying climate change-related harm is therefore doomed to fail. As such, climate change fundamentally challenges the central tenets of IHRL.
As it is dominated by issues of a truly global nature, IEL has the potential to offer conceptual inspiration for moving beyond the constraints of jurisdiction that characterize IHRL. We argue that it is particularly the common concern of humankind (CCH) concept in IEL, geared towards the establishment of burden-sharing regimes based on the capacity to respond to global common interests, that warrants attention. The Preambles to the United Nations Framework Convention on Climate Change (UNFCCC)Footnote 4 and Paris AgreementFootnote 5 designate the consequences of climate change as a CCH, and accordingly provide for differential treatment through the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC). The designation of climate change and its effects as a common concern imply that adverse effects on the observance of human rights fall under the purview of the common concern. This recognition points towards a conceptual link between the common concern and IHRL. A transposition of relevant facets of CCH to IHRL may be useful to operationalize the global human rights obligations of states.
This article responds to the jurisdictional challenge of IHRL in the context of the human rights-environment relationship, particularly on the issue of the consequences of climate change for victims of its harmful impacts. Accordingly, the second section of the article briefly introduces the relationship between human rights and environmental protection, in order to consider the potential contribution of IHRL to addressing climate change impacts. This section acknowledges the limitations of jurisdiction in IHRL, which diminishes the utility of the IHRL framework in the context of climate change. The recognition of the limitations of IHRL for environmental protection leads us to reflect, in the third section of the article, on the promise held by the global obligations concept in the Maastricht Principles. A need to clarify the content of global obligations then directs our gaze to the conceptual lessons offered by the burden-sharing mechanism in terms of the CCH concept in IEL. Thus, the fourth section explores how these notions could be integrated into IHRL. We argue for a reconfiguration of the jurisdictional tenets of IHRL, which moves beyond the notion of (extra)territorial jurisdiction to respond to global challenges. It is only in this manner that IHRL may be able to respond to climate change in a meaningful way. As such, we advocate a revision of the doctrinal bedrock of IHRL, so that this field of law may be used to complement IEL. To support our discussion, the fifth section of the article uses a hypothetical case of gradual migration between developing states, in which the adverse impacts of climate change play a significant role. The phenomenon of climate change migration appropriately illustrates some of the problems with causation and territoriality under traditional IHRL models. Section 6 concludes the discussion.
2. IHRL AND IEL IN THE ERA OF CLIMATE CHANGE: BETWEEN RESONANCE AND DISSONANCE
The complex relationship between environmental protection and IHRL has gained prominence in IEL.Footnote 6 Treating environmental protection as a human rights issue implies that the consequences of environmental degradation on individuals may be addressed directly through a human rights framework.Footnote 7 Furthermore, the utilization of the human rights framework may secure higher environmental standards that are based on state obligations to control pollution.Footnote 8 Another aspect of the environmental dimension of IHRL is the idea that an environmental right should exist on the international plane.Footnote 9
Environmental rights have been incorporated in various constitutions,Footnote 10 as well as regional instruments such as the African Charter on Human and Peoples’ Rights,Footnote 11 but insufficient support exists for such a right at the international level.Footnote 12 The importance of the link between environmental protection and human rights was already recognized in the 1972 Stockholm Declaration.Footnote 13 However, subsequent IEL instruments, particularly multilateral environmental agreements, ignored this link. A number of resolutions of the United Nations (UN) Human Rights Council (HRC) have dealt with the interrelationship between the environment and human rights;Footnote 14 more recently, these have focused specifically on human rights and climate change.Footnote 15 The international climate change regime has also taken note of the relationship between human rights and climate change.Footnote 16 The Preamble to the Paris Agreement of 2015 acknowledges that ‘[p]arties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’.Footnote 17
In his 2016 Annual Report to the UN HRC on human rights obligations relating to climate change, the Special Rapporteur on human rights and the environment at the time, John Knox, identified ‘the obligation to protect against the infringement of human rights by climate change’.Footnote 18 Given the foreseeable nature of the adverse impacts of climate change on human rights, human rights obligations extend to climate protection measures, including those with regard to mitigation and adaptation.Footnote 19 One other overture linking human rights to climate change may materialize if the right to a healthy and clean environment, as proposed by Knox in the context of the Framework Principles on Human Rights and the Environment, is recognized internationally by states.Footnote 20
In fact, the Inter-American Court of Human Rights (IACtHR) has already broken ground in this respect. In its 2017 Advisory Opinion OC 23/17 on the environment and human rights, the Court noted that the right to a healthy environment is ‘included among the economic, social and cultural rights protected by Article 2684 of the American Convention’.Footnote 21 A more recent expression is included in the Court's 2020 judgment in the case of Lhaka Honhat (Nuestra Tierra) v. Argentina, in which the Court recognized the right to a healthy environment and the obligations of states to respect and protect this right, particularly in respect of communities who depend on the environment for their livelihoods and are therefore in a more vulnerable situation.Footnote 22
2.1. Contribution of International Human Rights Law to International Environmental Law
Human rights law can serve to highlight the human aspects of predominantly environmental issues, such as climate change, and assist in formulating responses in three ways. Firstly, human rights law focuses on the rights-holder as its central concern in response to asymmetries and power imbalances. Secondly, rights-based approaches can bring non-discrimination, empowerment, participation, and accountability as guiding principles to climate change-related issues. Thirdly, human rights law offers a more specific protection toolkit against vulnerability in the context of climate change, particularly in conceptualizing a right to an effective remedy.
The conceptual basis of human rights rests on the centrality of the rights-holder. Being the holder of rights that should be respected, protected, fulfilled and promoted is important, as rights accord protection and entitlements, as well as remedies when such protection and entitlements are found wanting.Footnote 23 The centrality of the rights-holder in human rights, when extrapolated to climate change-related issues, may serve as a basis to guide human-centred responses.
Treating climate change as a human rights problem subject to a legal duty of cooperation helps to ensure that governments do not lose sight of the effects that climate change has on people and communities, including those abroad. IHRL illuminates the procedural requirements that underlie global solutions to climate change. For instance, as Knox has noted, IHRL clarifies not only the standard that a climate agreement must meet, but also the process leading to that agreement.Footnote 24 In this respect a human rights-based approach may provide human-centred principles to anchor policymaking, including in the domain of IEL, on issues such as climate change migration. A rights-based approach centres on the rights of the rights-holders and the corresponding obligations imposed on duty-bearers, and seeks to empower rights-holders and demand accountability and transparency from duty-bearers.Footnote 25 The key features of a rights-based approach are participation, equality and non-discrimination, accountability and transparency, empowerment of rights-holders, and legality (the so-called PANEL principles).Footnote 26 As Boyle underscores, ‘the importance of public participation in environmental decision-making, access to information, and access to justice’ is a core component of the link between IHRL and IEL.Footnote 27
The adverse impacts of climate change are expected to fall disproportionately, earlier, and more intensely on economically disadvantaged and marginalized people who have a lower ‘ability to cope and recover’.Footnote 28 A rights-based approach to climate change may in fact shine a light on marginalization and intersectionality, and act as a corrective. Firstly, marginalization and intersectionality become visible through the perspective of rights. Disproportionate vulnerability to the impacts of climate change gives rise to corresponding obligations. Secondly, non-discrimination, being a central tenet of the rights-based approach, would mean that the rights of individuals and groups prone to marginalization are protected against falling through the cracks. At a more substantive level, a rights-based approach also emphasizes the applicability and the application of climate change-related obligations as set out in the international human rights frameworks.
Finally, since the proclamation of the Universal Declaration of Human Rights (UDHR),Footnote 29 IHRL has espoused the right to an effective remedy, although its rise to prominence is far more recent.Footnote 30 The right to an effective remedy is recognized as a key component of accountability, which ensures the enforceability of norms and standards.Footnote 31 The right to an effective remedy has featured prominently in responses to contemporary human rights problems – a prime example being the UN Guiding Principles on Business and Human Rights,Footnote 32 which has designated remedy as one of its three pillars. The right to an effective remedy has two facets: (i) the procedural possibility for rights-holders to bring claims of rights violations before competent bodies, and (ii) actual access to remediation or compensation.Footnote 33 The recognition of a right to an effective remedy is an important contribution that IHRL can make to IEL in dealing with the impacts of climate change.Footnote 34 In fact, the importance of access to a remedy has already been recognized in IEL through the UN Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention).Footnote 35 One must concede, however, that the enforcement system of IHRL as it stands is far from perfect. There are restrictions on public interest litigation particularly because claimants need to be identified. The possibility of launching collective complaints on behalf of unidentified individuals or communities that are adversely affected by breaches of human rights duties remains limited. In addition, existing enforcement mechanisms often focus on individual remediation but not on collective reparations that can be offered to communities, although national climate change litigation has worked to circumvent this problem to an extent.Footnote 36
2.2. Challenges for IHRL in the Context of Climate Change
Climate change is the quintessential border-defying governance problem. The application of a human rights approach to climate change is therefore not unproblematic. Knox aptly observes that ‘[f]or human rights law to require states to address the entire range of harms caused by climate change, it must impose duties on states with respect to those living outside their territory’.Footnote 37 The analytical study conducted by the Office of the High Commissioner for Human Rights (OHCHR) on the relationship between human rights and the environment affirms that ‘the key question with regard to the extraterritorial dimension of human rights and environment is the spatial scope of the application of human rights law instruments’.Footnote 38 In the section on the ‘extraterritorial dimensions of human rights and the environment’,Footnote 39 the study stresses that this issue provides ‘fertile ground for further inquiry’Footnote 40 in relation to global environmental issues such as climate change.Footnote 41 Hence, ‘[o]nly by addressing and generating greater understanding about these central questions will vulnerable states and international human rights mechanisms be able to more effectively leverage international human rights law as an effective additional means (outside the UNFCCC) of responding to climate change’.Footnote 42 Thus, the utility of IHRL to protect the environment and address the consequences of climate change diminishes considerably if IHRL does not manage to speak to the fundamentally border-defying nature of climate change.
Jurisdiction, as the concept that denotes whether a state can be considered a duty-bearer,Footnote 43 is considered to be primarily territorial in mainstream IHRL. If a state has jurisdiction over an individual or a situation, that state is considered a duty-bearer. The traditional case in which this happens is when an individual is within the territory of a state.
This primary territorial orientation clearly falls short in responding to a borderless challenge such as climate change. Several impediments exist to the development of the extraterritorial dimension of human rights in the context of climate change.Footnote 44 Apart from the political opposition to such an extension, especially from developed states, the circumstances surrounding responsibility for the adverse impacts of climate change cause difficulties. It is difficult to establish direct and conclusive causation by high-emitting states of the adverse human rights impacts of climate change in affected states. Nonetheless, ‘the international community has already agreed that some states bear more responsibility for climate change than others’.Footnote 45 It is therefore highly problematic to locate human rights obligations exclusively within the territorial state, which in many instances has hardly (or not at all) contributed to the human rights threats arising from climate change. There is a clear need to revisit the understanding of who the duty-bearer is in IHRL, so as to be able to engage the responsibility of the emitting states.
In truth, the mainstream understanding of IHRL as being concerned only with the rights of individuals within a state's borders has been challenged over the last decades through the notion of extraterritorial obligations – that is, human rights obligations of states outside their borders.Footnote 46 Human rights monitoring bodies, too, increasingly recognize the existence of such extraterritorial obligations.Footnote 47 Yet, human rights courts have dealt mainly with extraterritorial obligations in the field of civil and political rights, and have been reluctant to recognize such obligations outside exceptional circumstances. Such exceptional circumstances, in which the establishment of extraterritorial jurisdiction has been accepted, are considered to exist only when a foreign state exercises effective control over persons or territory outside its own borders – in particular, in the case law of the European Court of Human Rights (ECtHR).Footnote 48 A cause-and-effect approach to extraterritorial jurisdiction can be found primarily in the case law of other human rights enforcement bodies, in particular the UN HRC and the Inter-American Commission on Human Rights (IACHR). A cause-and-effect understanding of jurisdiction means that ‘anyone adversely affected by an act imputable to a Contracting State, wherever in the world that act may have been committed or its consequences felt, is thereby brought within the jurisdiction of that State’.Footnote 49 The HRC, in Munaf, submitted that:
[a state] may be responsible for extra-territorial violations of the [International] Covenant [on Civil and Political Rights], if it is a link in the causal chain that would make possible violations in another jurisdiction. Thus, the risk of an extra-territorial violation must be a necessary and foreseeable consequence and must be judged on the knowledge the State party had at the time.Footnote 50
A state may also be ‘considered responsible as a result of a failure to exercise reasonable due diligence over the relevant extraterritorial activities of … corporations [that are under that state's jurisdiction]’.Footnote 51 For the IACHR, too, what matters is ‘whether there is a causal nexus between the extraterritorial conduct of the State and the alleged violation’.Footnote 52
A further step forward in conceptualizing the human rights obligations of foreign states in the field of economic, social and cultural (ESC) rights was taken with the adoption of the Maastricht Principles on the Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011 (Maastricht Principles).Footnote 53 These principles expand the notion of jurisdiction in IHRL, as they go beyond traditional jurisdictional allocation models of control over persons or territory to include situations in which state actions or omissions bring about foreseeable effects. This additional jurisdictional ‘hook’ allows for a cause-and-effect reading of jurisdiction. In its 2017 Advisory Opinion on the environment and human rights, the IACtHR accepted a similar additional jurisdictional link (beyond spatial and personal jurisdiction) based on the causal link between conduct on a state's territory and a human rights violation occurring outside its borders.Footnote 54 The IACtHR did this in the context of recognizing the right to a healthy environment as an autonomous right and as part of the ESC rights guaranteed by the American Convention on Human Rights (ACHR).Footnote 55 This entails, for example, that states can – without necessarily occupying another state's territory or controlling individuals in that state – violate the human right to water in other riparian states, for instance, by reducing the quality or quantity of shared water resources.Footnote 56 Similarly, they can violate the right to a healthy environment without any action outside their territory by failing to prevent transboundary environmental harm that originates in their territory.Footnote 57 In such instances the spatial and personal models of jurisdiction fall short, as there is no previous link (be it control over persons or territory) between the state and the individual harmed. Even cause-and-effect jurisdiction falls short of addressing the borderless adverse effects of climate change on human rights, where causal links are far more remote. We argue, therefore, that in the context of climate change, there is a need for a new attribution ground rather than an artificial stretching of extraterritorial jurisdiction.
3. BEYOND EXTRATERRITORIALITY: GLOBAL OBLIGATIONS
Over the last two decades an initially territorial approach to jurisdiction has undergone a slow and only very limited expansion to circumscribed cases of extraterritorial jurisdiction.Footnote 58 Even recent developments towards a cause-and-effect jurisdiction do not capture the conceptual challenges posed by climate change, namely, to move beyond causation-based attribution.
Let us consider a hypothetical case of cross-border migration between developing states, to which slow-onset effects of anthropogenic climate change – such as intensifying droughts or recurring floods – are a significant contributing factor. Such a case of climate change migration aptly illustrates the shortcomings of the human rights framework in the instance of climate change, as the absence of an (extraterritorial) jurisdictional link will prevent climate change migrants from claiming fulfilment of their ESC rights from states that have contributed to greenhouse gas (GHG) emissions.Footnote 59 The authors acknowledge broader debates over how population movement related to climate change impacts is to be conceptualized, the characterization of the causal role of climate change, the relationship of these framings to political narratives and processes, and whether such migration represents a set of phenomena that should be addressed distinctly from other forms of migration and/or from other human rights impacts of climate change.Footnote 60 This article does not intend to revisit these debates, or to assert that the form of migration described should be addressed as a priority over other human rights effects of climate change. Rather, the specific climate migration phenomenon described – which is already occurring and is expected to grow, and which, while multi-causal, also bears a recognized relationship with the impacts of anthropogenic climate changeFootnote 61 – has been chosen to illustrate a situation where difficulties in establishing the international responsibilities of emitting states under IHRL are revealed as especially problematic.
In a number of developing countries rural people are suffering from erosion of their livelihoods as a result of slow-onset weather-related disasters, which are intensifying with climate change. Therefore, many are gradually migrating in search of improved livelihood opportunities – mostly within their state of origin, but also across borders to neighbouring developing countries.Footnote 62 When crossing an international border, they will not benefit from refugee status and often are not eligible for humanitarian protection arrangements for disaster-displaced persons;Footnote 63 although the Nansen Initiative's Agenda for Protection has aimed to address this gap by, inter alia, calling for increased use of these and other legal arrangements for migration, this remains an entirely voluntary framework.Footnote 64 Any claims based on non-refoulement are unlikely to meet the very high required threshold of risk to the right to life (even though the possibility of such a risk arising from the impacts of climate change has been recognized in principle).Footnote 65 As such, the migrants in question may become particularly vulnerable to human rights abuses while migrating via an irregular process. Notions of extraterritorial jurisdiction, however, will not extend to engaging the responsibility of emitting states. We circle back to this scenario in Section 5 to illustrate how our further analysis may address this situation.
It is worth mentioning at this point that the Maastricht Principles also consider extraterritorial jurisdiction to be held by states beyond effective control. These include situations in which ‘[s]tate acts or omissions bring about foreseeable effects on the enjoyment of economic, social and cultural rights, whether within or outside its territory’ or when a state is (merely) in a position to exercise decisive influence or to take measures to realize human rights extraterritorially.Footnote 66 The jurisdictional hook regarding the capacity to realize human rights extraterritorially may be the most relevant in the context of climate change, as it allows the attribution of human rights obligations beyond any direct causal link, to address adverse human rights impacts of climate change. This jurisdictional hook was introduced to allow for what is considered a subcategory of extraterritorial obligations in the Maastricht Principles – that is, obligations of a global character ‘to take action, separately, and jointly through international cooperation, to realize human rights universally’.Footnote 67
We contend that these global obligations and the corresponding jurisdictional hook are of a qualitatively different nature, as they go beyond any directly causal relationship and focus instead on ability to act. From a conceptual point of view, they have therefore inappropriately and somewhat misleadingly been subsumed under extraterritorial obligations by the drafters of the Maastricht Principles. In the Commentary to the Maastricht Principles they are referred to as ‘obligations of international cooperation’.Footnote 68 The jurisdictional hook of ‘capacity to make a positive contribution’ opens up the possibility for attribution of an obligation regardless of causation, and thereby renders the jurisdictional link between the victim and the state(s) indeed rather remote. It would be better, in our view, not to include these kinds of situation artificially in the notion of jurisdiction. Given the tradition of a highly restrictive interpretation of extraterritorial jursisdiction by human rights monitoring bodies, based on control or direct causation, we suggest an alternative attribution ground rather than an attempt at interpretative expansion of extraterritorial jurisdiction.
The issue of climate change is illustrative of such potentially remote or even absent links, as emitting states do not control the territory of the affected state or the individuals within the territory; nor do they directly cause, for example, climate change migration. Nevertheless, high-emitting states can have a negative impact on the environment in that state in a general and indirect way. They can also aid in mitigating negative impacts. In the context of capacity to make a positive contribution, such links are similarly absent. Thus, concepts of jurisdiction remain inadequate to explain the positive obligations that states may have to protect or fulfil human rights abroad. Positive obligations beyond a state's territory to protect or fulfil would typically be breached through an omission, thereby making it even more difficult to attribute these obligations to a particular state. Hence, there is a need for a different, additional attribution ground, such as capacity, and the need for global obligations. Knox distinguishes not only an obligation to protect, but also a duty to cooperate internationally.Footnote 69 Knox's conclusion on a duty to cooperate with regard to climate change centres squarely on the transnational nature of the problem itself and the impossibility of tackling it within national borders.Footnote 70
International cooperation, as foreseen under Article 55 of the UN CharterFootnote 71 and in human rights treaties such as the International Covenant on Economic, Social and Cultural Rights (ICESCR)Footnote 72 or the Convention on the Rights of the Child (CRC),Footnote 73 is an indispensable component of any response to adverse climate change impacts.Footnote 74 Under IHRL, the duty to cooperate internationally in addressing climate change is a logical consequence of the obligation to protect against the infringement of human rights by climate change. In essence, the obligation to protect cannot be considered to be confined by national borders, given the nature of climate change and the impossibility of formulating effective responses within any single territorial jurisdiction. As Knox aptly remarks, the duty to cooperate ‘requires states to create the equivalent of a single global polity to consider how to respond to the global threat to human rights posed by climate change’.Footnote 75
However, the content of global obligations is not yet clear and settled, and IHRL seems to face existential limits in defining such obligations. This is why, in the next section, we suggest turning to IEL for inspiration, especially as principles for the distributional allocation of obligations (and responsibility for violations) are still in their infancy. The implications in practice of the attribution of obligations to multiple states, as well as the consequences for responsibility for violations, require further elaboration. Which foreign states would be considered to have the capacity to act, and hence to bear obligations for climate change? How would their obligations relate to the obligations of the territorial state? How would responsibility for violations be established and distributed? Would it be preferable to have a regime of independent responsibility (whereby each state can be held responsible in solidum for the full human rights violation), or rather one of common or shared responsibility (whereby each state is responsible only for its share of the violation)?
Several avenues may be explored to address the question of attribution of responsibility to a number of states. Scholars have begun to identify the problems that shared decision making and joint action create for the notion of independent international responsibility as the sole basis for attributing responsibility. Independent responsibility is unable to accommodate the complexities of today's world – an era characterized by joint and coordinated (rather than independent) action, where responsibility therefore often needs to be allocated between multiple actors.Footnote 76 Van der Have has proposed a burden-sharing mechanism ‘on the basis of which it would become possible to ascertain what the scope of obligations of any given state is with regard to a certain situation, [which would undercut] difficulties related to establishing a causal link after a breach has taken place’.Footnote 77 A law of shared responsibility remains to be developed in order to provide answers to issues regarding (the lack of) international cooperation between states. The existence of shared responsibility in instances where individuals are affected by climate change has been acknowledged to some extent. The OHCHR, for example, finds that:
[s]tates (duty-bearers) have an affirmative obligation to take effective measures to prevent and redress these climate impacts, and therefore, to mitigate climate change, and to ensure that all human beings (rights-holders) have the necessary capacity to adapt to the climate crisis.Footnote 78
In other words, the obligations of states in the context of climate change and other types of environmental harm extend to all rights-holders and to harm that occurs both inside and beyond boundaries. States should be accountable to rights-holders for their contributions to climate change, including for failure to adequately regulate the emissions of businesses under their jurisdiction, regardless of where such emissions or their harmful consequences actually occur.Footnote 79
International and regional human rights enforcement mechanisms have so far fallen short of establishing state responsibility for climate-related human rights violations, and the barriers are considerable.Footnote 80 In the domestic sphere, the Dutch Urgenda case shows nonetheless ‘how a Court can determine responsibilities of an individual state, notwithstanding the fact that climate change is caused by a multiplicity of other actors who share responsibility for its harmful effects’.Footnote 81 With regard to international cooperation to realize ESC rights, the Committee on Economic, Social and Cultural Rights (CESCR) has stressed its mandatory nature, especially on states in a position to help others. However, some developed states have challenged this view, and enforcement would in any case be difficult.Footnote 82 Currently, two petitions pending before the UN human rights treaty bodies seek to establish the responsibility of states with significant GHG emissions for the harmful impacts of climate change.Footnote 83 One such petition – Sacchi et al. v. Argentina et al., before the Committee on the Rights of the Child – seeks to invoke extraterritorial human rights obligations (based on a cause-and-effect approach) as well as the duty of international cooperation.Footnote 84 In a joint statement, five UN human rights treaty bodies have recognized these obligations as applicable in principle to the prevention and/or mitigation of the harmful effects of climate change.Footnote 85 At the time of writing, however, it remains to be seen whether the elements of the claim based on extraterritorial or international cooperation obligations will be declared admissible.
In sum, initial ideas have been developed on attributing human rights obligations in the context of climate change according to the capacity to act, rather than on the basis of harm caused, and on coining global obligations. All this, however, is in a very embryonic stage, and is by way of exception. So far, IHRL has fallen short of structurally rethinking who the duty-bearers are and how they may share responsibility for remote effects of climate change. It is thus not yet well equipped to play a role in protecting those affected by climate change. We therefore now turn to IEL for inspirational guidance.
4. COMMON CONCERN OF HUMANKIND IN INTERNATIONAL ENVIRONMENTAL LAW
It is evident that the potential application of the human rights approach may not constitute a suitable response to the truly global nature of climate change, as it could result in reducing the problem to a ‘series of individual transboundary harms’ and a ‘state-by-state consideration of extraterritorial effects of domestic actions’.Footnote 86 In order to inform the further development of the human rights responsibility framework, it is useful to consider the CCH concept in IEL as embodied in the Preamble to the UNFCCC, which acknowledges that ‘change in the Earth's climate and its adverse effects are a common concern of humankind’.Footnote 87 The Preamble thus clearly designates the adverse effects of climate change as being subject to the CCH, and affirms the human rights dimension of environmental protection. CCH is a facet of ‘common interest’, which may induce normative development in relation to issues of common interest.Footnote 88 The concept of CCH provides the international community with a legitimate interest in global environmental resources and a common responsibility of assistance to ensure the sustainable development thereof.Footnote 89 The concept aptly responds to a common problem through a global regime. One should, of course, be cautious in asserting the potential of the CCH, as it has been noted that:
current systems for the protection of global common interests are imperfect, and, when evaluated on their own merits, are only partially effective in achieving their objectives. Nevertheless, some aspects of these systems are of interest from a human rights perspective, particularly those dealing with the assignment, sharing and monitoring of responsibilities of various actors.Footnote 90
The common interest in international law indicates that there is more at stake in international law than the individual self-interest of states. One of the most important consequences of the CCH is the provision for differential burden sharing.Footnote 91 Differentiation was conceived to foster increased participation of less capacitated states and to raise the effectiveness of international agreements. Both are pivotal elements in IEL and governance,Footnote 92 and hold particular relevance for addressing global commons problems or common concerns such as climate change.Footnote 93
4.1. Common But Differentiated Responsibilities (and Respective Capabilities) and the Paris Agreement
The principle which clearly reflects the essence of differential treatment in IEL is the principle of common but differentiated responsibilities (CBDR).Footnote 94 The factor of differentiation included in the definition of the principle represents the aim of both addressing and bridging the gap between the formal sovereign equality of states – the point of departure in international lawFootnote 95 – and the de facto deep inequalities that exist among states following decolonization.Footnote 96 This forms the normative basis for the burden-sharing agreements (and differential treatment) in the older UNFCCC and its Kyoto Protocol.Footnote 97 The newer principle of CBDR-RC not only reflects pragmatism, but also stems from the basic principle of equity.Footnote 98 The adherence of international law to formal equality and reciprocal obligations, as per Article 2(1) of the UN Charter,Footnote 99 is not conducive to resolving global environmental degradation, which requires the universal participation of states in accordance with differential capabilities and responsibilities. Hence, equity is required to remedy the adherence to formal equality. Within the framework of international climate governance, the CBDR is articulated in Principle 7 of the Rio Declaration.Footnote 100
More recently, the suffix ‘-RC’ (respective capabilities) was added to the principle, thereby putting the component of respective ‘capabilities’ on an equal footing with ‘responsibilities’ in the further conceptualization of CBDR in creating burden-sharing agreements.Footnote 101 This entails that the CBDR-RC principle not only addresses inequality related to ‘asymmetry in contribution’, but also that related to ‘capacity to mitigate’ and ‘power to decide’.Footnote 102
‘Common responsibility’ is included in both the mitigation and adaptation sections of the Paris Agreement.Footnote 103 With regard to mitigation, a common goal of ‘[h]olding the increase in the global average temperature to well below 2°C (degrees Celsius) above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change’Footnote 104 is established in the form of a collective obligation, imposing a duty on all parties to move towards this goal.Footnote 105 However, by employing self-differentiation to determine the ‘level of responsibility’ within the established transnational objective, individual states have escaped the commonality of responsibility as defined by the Paris Agreement. States are allowed to define their own levels of contribution, flanked by procedural obligations. This results in an obligation of conduct, not of result, and a good-faith expectation of achieving progress, which may in time be incited by a tightening ambition cycle.Footnote 106
To identify the appropriate level of obligation, the principle of ‘highest possible ambition’ could be an important instrument in delineating the human rights responsibility of individual states for the harmful effects of climate change.Footnote 107 The ‘highest possible ambition’ is also used as a benchmark in assessing and relating it to a collective level of ambition through global stocktaking every five years.Footnote 108 Voigt and Fernandez have posited that ‘what constitutes an equitable and proportionate effort is still to be settled’ but, combined with civil society assessments of the level of ambition and the logic of improvement over time, it adds content to the substantive responsibility of states under the climate agreement.Footnote 109 Articles 7(13) and 9(1) of the Paris Agreement illustrate that developed countries have legally binding commitments under the Convention to provide financial resources to developing countries (adaptation and finance). While Article 8, on loss and damage, avoids explicit wording that implies liability or compensation for loss and damage caused by climate change, it also does not exclude legally binding commitments.Footnote 110
In sum, the common responsibility of states derives from the nature of the shared environmental challenge. Fundamentally, in addressing the harm and vulnerabilities brought about by climate change, the component of common responsibility could inform IHRL on how to advance on assigning and distributing states’ extraterritorial human rights obligations and move from individual harm and responsibility to shared responsibility.Footnote 111 The next important issue relates to the determination of obligations of individual states under the shared responsibility matrix.
The second element of CBDR-RC is the notion of differing circumstances of states, which vary in relation both to their contribution to the environmental problem and their ability to address the problem for themselves or for others. The Paris Agreement therefore offers a varied array of approaches in respect of the uniquely different position of every state. It dispenses with the binary separation between developed and developing states and tailors ‘differentiation to the specificities of each of the Durban pillars: mitigation, adaptation, finance, technology, capacity building and transparency’.Footnote 112 For every specific mechanism in the Paris Agreement, different types of differentiation apply, either in the form of contextual obligations, grace periods for states, or obligations for states to assist others in implementation.Footnote 113 Article 9, for instance, provides strong differentiation in terms of financial and other support for both mitigation and adaptation.
While the historical and static differentiation on the basis on development statusFootnote 114 has been renounced, the phrase ‘in the light of different national circumstances’ still evokes deprecated forms of distinction and, by extension, introduces a wide array of new grounds for differentiation, such as ‘variations of (historic) level of emissions, human development, financial, technological capabilities, population, and other criteria potentially relevant for a fair distribution of the benefits and costs of addressing climate change’.Footnote 115 Moreover, despite the omission of any definition or list of developing countries, the Agreement does name specific categories of states – such as ‘least developed states’, ‘small developing island states’ or ‘states particularly vulnerable to the adverse effects of climate change’ – which can influence the determination of differentiation.Footnote 116
Academic literature that has examined the development of CBDR-RC concludes that its application is context-based and remains legally open.Footnote 117 Sands and Peel observed that ‘in practical terms differentiated responsibility may result in different legal obligations’,Footnote 118 which involves the challenge of uncertain legal consequences.Footnote 119 The latter is the new normal in the light of the dynamic nature of burden sharing.
4.2. Dynamic Nature and Flexibility of Burden Sharing
The dynamic nature and progressive development of the CBDR-RC principle is a more recent phenomenon, and represents a move away from the static Annex B in the Kyoto Protocol towards a vast array of different circumstances that can change over time, as articulated in the Paris Agreement. The phrase ‘in the light of different national circumstances’ has been interpreted as implying flexibility and dynamism with regard to social, political, and economic circumstances that are constantly evolving.Footnote 120 This innovation in the Paris Agreement was necessary because of the ‘hot situation’ created by climate change – characterized by complexity, with polycentric causes and impacts both locally and globally, and enmeshed in socio-political conflicts. As climate change is quite unpredictable and the exact nature of the (sub)problem(s) and the corresponding obligations are hard to identify, it was difficult to agree on a fixed and fair burden sharing.Footnote 121 Therefore, the Paris Agreement does not apply in a static manner, but it evolves and is open to change.Footnote 122 Its new formula opens up possibilities for establishing further evolutionary and flexible differentiations that are compatible with the changeable nature of national developments and dynamics. In this respect Cullet has argued that differentiation is ideally based on environmental and social indicators such as resilience, human development and environmental needs, instead of relying on a country's economic development strategy and a distribution of ‘rights to pollute’.Footnote 123 These indicators and needs change over time and can be linked to funding needs.
The Planetary Security Initiative, a policy initiative of the Dutch government, emphasizes the importance of ‘enhancing cooperation on migration and providing funding programmes’ in Action 2 of its Hague Declaration on Planetary Security.Footnote 124 Here, the understanding of burden sharing is based on notions of ‘solidarity’ and improving developing states’ ‘capacity to act’ rather than on forms of responsibility derived from the state of the national economy or causation. Capacity and needs can change fast; hence, related responsibility should evolve along the same lines, reflecting this aspect of dynamism.
4.3. Implications for Human Rights Law
A human rights regime that allocates shared responsibility beyond territorial borders and narrowly constructed extraterritorial jurisdiction may be inspired by new, more relational or interactive interpretations of sovereignty, such as custodial sovereigntyFootnote 125 or states as sovereigns of humanity,Footnote 126 which brings in a much more explicit solidarity approach. In particular, the CCH, as a facet of common interest, may constitute a suitable basis for the extraterritorial human rights obligations of states. It could inform IHRL on how to advance in assigning and distributing such obligations, moving from individual harm and responsibility to shared responsibility.Footnote 127 Operationally, IHRL can draw lessons from the CBDR-RC principle in environmental and climate law on at least three levels. Firstly, CBDR-RC can contribute to structuring and conceptualizing a notion of common responsibility for common interest issues. The CBDR principle can be seen as a manifestation of the emerging principle of interstate solidarity in IEL.Footnote 128 Solidarity in the human rights context is indicative of the interdependence of states and the need to take collective action to promote and protect human rights, as individual states do not have the capacity to solve common problems. The interdependence of states could constitute a basis for reconfiguring certain human rights obligations as not falling necessarily under the jurisdiction of a single state. Theoretically, both the concept of global obligations as elaborated in the Maastricht Principles and the right to development capture this idea of solidarity. However, the notion of global obligations has remained theoretically underdeveloped, notwithstanding the groundbreaking work undertaken by Salomon.Footnote 129 The right to development, for its part, has focused on a developing-developed state binary, and negotiations on this right at the global level, also for this reason, have remained at a political deadlock.Footnote 130 Moreover, these concepts have often become strongly politicized, given the emphasis on past causation.
Therefore, a detailed differentiation of human rights obligations based on restorative, distributive and procedural justice (depending on the category of operation) may be needed, and the recent clarification under the Paris Agreement of what a dynamic and flexible scheme of burden sharing could look like is most useful. Whereas the acknowledgement of the inequalities among countries provides the basis for redistributive measures pursuant to distributive justice,Footnote 131 it does so in a less polarizing way by moving beyond the binary categorization of developed and developing states. To the extent that direct and linear causation is difficult or impossible to establish, the shift in emphasis to particular vulnerabilities and capacity to act may be a more fruitful way forward. However, questions of causation and power should not be silenced, and unequal power to take political decisions should be part of the analysis.
Furthermore, the dynamic nature of the allocation and differentiation of obligations shows a system that can adapt to new circumstances. An abstract and static distributional allocation of obligations may indeed not be possible or desirable. On the other hand, the dynamic nature of the exercise means that the allocation of obligations (and the corresponding responsibility for violations) is constantly negotiated (between states) or decided (by a mechanism), which means that power inequalities may be constantly in play.
Thus, despite the lack of a human rights-based approach in the Paris Agreement,Footnote 132 the instrument could inspire a regime of dynamic global human rights obligations for ESC rights as part of CBDR-RC in the field of climate change migration.
5. ILLUSTRATION: ADDRESSING ESC RIGHTS IN CROSS-BORDER CLIMATE MIGRATION SITUATIONS AMONG DEVELOPING STATES
In the gradual, cross-border climate migration scenario outlined in Section 2, both the destination state and state of origin, as developing states, may lack capacity to address the situation without international cooperation, and neither is likely to bear significant responsibility for the harmful impacts of climate change which contributed to the situation. Furthermore, as these harmful impacts of climate change number among multiple factors leading to migration, and are disconnected from any specific, localized activity, it is problematic to locate a duty-bearer among emitting states, or to establish causation of associated harm under the traditional model of state responsibility.Footnote 133
As outlined, IEL – as opposed to IHRL – is not equipped to provide protection or a remedy for individuals and groups who are exposed to the harmful effects of climate change. In such a situation, how can IHRL alleviate the situation of migrants, if neither the state of origin nor the destination state has the capacity to do so, and neither has contributed significantly to creating the significant conditions that pushed migrants to leave their homes?
This scenario illustrates the key challenges for IHRL and IEL in addressing climate change harm. The prevailing human rights-environment approach would not be very helpful in this instance, as the territorial nature of jurisdiction does not allow for the allocation of responsibility to foreign states that have contributed to the emission of GHGs or to foreign states that have the capacity to alleviate the plight of migrants through, for example, financial assistance. While Principle 9 of the Maastricht Principles may form the basis for a determination of jurisdiction based on capacity (grounded in solidarity), this is not yet considered to represent binding law; furthermore, the attribution of responsibility among a multitude of potentially responsible states remains difficult. The international cooperation obligation contained in the ICESCR may prove similarly challenging to invoke as a basis for responsibility, given that some states refute its binding nature, as well as the very limited avenues for enforcement.
The potential of – and need for – a burden-sharing approach becomes evident in relation to such a transboundary scenario, which lacks a traditional jurisdictional link to the states responsible. The CCH regime in IEL presents interesting insights in this respect. One of the central aspects of this regime is the globalization of a response to a common concern through burden sharing in response to a common interest. The Preambles to the UNFCCC and the Paris Agreement affirm that the plight of climate migrants is a common concern, as climate change is a contributing factor to migration. The CBDR-RC principle constitutes the central approach to the determination of differential burden sharing in relation to common interest. CBDR-RC places a specific focus on the differential capabilities that exist in relation to a common concern. CBDR-RC recognizes inequality and strives for equity on the basis of solidarity. The inclusion of a ‘tweaked’ version of CBDR-RC in the Paris Agreement points to the flexible nature thereof and the potential to provide valuable insights in relation to the distributional allocation of obligations in terms of burden sharing of ESC rights. This implies that states with the capacity to act must respond to the adaptation needs of the rural climate migrants through, for example, financial assistance to pursue sustainable development. In respect of cross-border climate migration particularly, the CBDR-RC principle may thus provide a compelling basis for arguments as to why emitting states must more actively cooperate with affected states to realize measures such as those proposed in the voluntary Nansen Initiative Agenda for Protection – for example, by improving disaster risk management in countries of origin, including by facilitating adaptive migration with dignity, and improving planned relocation processes.Footnote 134 Thus, the call to action in the Agenda for Protection, based on a need for greater solidarity and cooperation in this area, may be solidified and operationalized in legal terms.
6. CONCLUSION
IHRL has already permeated IEL as environmental protection, in particular concerning climate change, is viewed as a human rights issue. The human rights-environment nexus means that IHRL may be used to address directly the consequences of climate change. We have indicated that IHRL may indeed play a meaningful role in this respect. However, the human rights-environment project may be doomed from the outset as a result of the jurisdictional tenets of IHRL. Climate change is a truly global issue that requires the global cooperation of all states to respond to this dire problem. The requirement for direct causality between state and victim does not accord with the scenario of climate change. As such, territorial jurisdiction poses a considerable hurdle for the utilization of IHRL in response to climate change. The gradual development of extraterritorial jurisdiction may be promising but still does not go far enough to respond to the complex climate change scenario. The territorial mould of IHRL is not up to the task. It is evident that IHRL developed in response to human rights problems linked to control over territory or people, and this shaped the theoretical tenets of this subject field. IEL developed in response to global environmental degradation and therefore has a more global outlook. The global basis of IEL is abundantly evident in the CCH regime, which constitutes the basis for burden sharing concerning global environmental problems. In IHRL the Maastricht Principles include global obligations that exceed the territorial focus and are more in line with the gist of the CCH regime. These proposed global obligations present an amphora that may facilitate the fermentation of human rights obligations attuned to the needs of a climate change response. The CCH regime provides the catalyst for such development through the CBDR-RC, which operationalizes burden sharing. CCH focuses on international cooperation based on differential capacity. The tweaked version of CBDR-RC in the Paris Agreement attests to the embrace of a dynamic and flexible approach grounded in the moral principle of solidarity. Hence, this approach could be useful to further develop the proposed IHRL global obligations.
The foregoing discussion affirms the need for the progressive development of IHRL to respond to the harmful effects of climate change. It is only in this manner that the human rights-environment nexus may come to fruition. We are fully aware that our proposal hinges on the conceptual development of a notion that is de lege ferenda and that may encounter resistance from doctrinal corners. However, addressing climate change is an urgent imperative that requires global cooperation. This implies that states must have the political will to accept burden sharing that deviates from the doctrinal tenets of IHRL. It is only in this manner that a global solution may be found for a growing crisis and imminent human catastrophe. IHRL must undergo radical reform to permit the human rights-environment nexus to contribute to saving current and succeeding generations from the scourge of climate change, which will bring untold sorrow to humankind.Footnote 135
