Human rights in the draft climate change agreement

Published on: December 10, 2015

Filed Under: Commentary, COP 21

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“There are no human rights on a dead planet”[1]

An odd but interesting division between states has emerged over whether and how to refer to human rights in the proposed Paris outcome document on climate change. It is clear that climate change will have very serious impacts on a wide range of already-recognised human rights, such as the right to life, to food, to water, to sanitation, to health, to housing, and the right to development. Rights in relation to property and resources will clearly also be affected, and any related social unrest is likely to cause even more human rights problems. It is also clear that mitigation and adaptation measures to combat climate change and its effects can also adversely affect a range of human rights, particularly discrimination. With this in mind, it is not surprising that a reference to human rights was placed up front in the draft Paris text. Indeed, it has been included in earlier drafts of the text that emerged out of the meetings in Geneva and Bonn.

The draft Preambular paragraph 10 as of Dec 8 provides:

“Emphasizing the importance of promoting, protecting and respecting all human rights, the right to development, the right to health, and the rights of indigenous peoples, migrants, children, persons with disabilities and people in vulnerable climate situations [, and under occupation,] as well as promoting gender equality and the empowerment of women”

In the Dec 9 revised text, that is now:

“[Emphasizing the importance of Parties promoting, protecting and respecting all human rights, the right to health, and the rights of indigenous peoples, migrants, children, persons with disabilities and people in vulnerable situations and under occupation, and the right to development, in accordance with their obligations, as well as promoting gender equality and the empowerment of women, when taking action to address climate change,]”

Most importantly, Article 2 – Purpose – gives prominence to human rights and the implementation of the Agreement in its second paragraph. This has been the subject of a suprising amount of disagreement.  The Dec 8 draft of Article 2.2 provided:

[This Agreement shall be implemented on the basis of equity and science, and in accordance with the principle of equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances, and on the basis of respect for human rights and the promotion of gender equality [and the right of peoples under occupation].]

The square brackets in this quoted text indicates that states have not yet agreed on these suggestions. It is most interesting to see which states are disagreeing with what and why.

The champions of the references to human rights are – perhaps unsurprisingly – those identifying as “climate vulnerable” and who want a strong climate agreement. Examples of such countries are the Philippines, Mexico and other Latin American countries (such as Costa Rica, Peru, Chile, and Guatemala), and Pacific nations.

Perhaps surprisingly, the 3 countries most vocally opposing the inclusion of human rights in Article 2.2 are Norway, Saudi Arabia and the United States. They are reportedly supported by other states such as China.

A previous iteration of Article 2.2 referred not only to “respect for human rights” but “respect for human rights, including rights of indigenous peoples”. The reference to indigenous rights was removed in this latest draft and this is being strongly objected to by indigenous peoples and some supporting states. While indigenous peoples are referred to in other places in the document (such as in Preambular paragraph 10 and in Article 4.5), Victoria Tauli-Corpuz, the UN Special Rapporteur on the Rights of Indigenous Peoples, is calling for it to be returned   to article 2.2. She notes that a report released last week was determined that a conservative estimate is that “forests on indigenous territories store at least 20% of the carbon in tropical forests worldwide.” If indigenous peoples are unable to protect the forests, not only will this prevent climate change mitigation, it will destroy indigenous rights and the peoples themselves. While it is clear that indigenous rights are included within human rights generally, the UN Special Rapporteur makes a case for a specific identification.

The draft the released on Dec 9 has shortened Article 2.2:

“[This Agreement will be implemented on the basis of equity and in accordance with the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances and on the basis of respect for human rights.]”

What has been removed is the reference to women’s rights and to people under occupation. I suggest that this results in a cleaner provision and one more likely to be acceptable to a wider range of states. Given the references in Preambular paragraph 10 to a range of specific rights-holders, plus that the mention of one set of rights-holders produces calls for others to also be referenced, this is a much easier provision to negotiate over.

The new draft Article 2.2 still has brackets around the whole provision, so it is not yet agreed to by all states.  A significant objector to this article is still reportedly the USA. According to Amnesty International (USA):

“The United States has spoken in favour of human rights language but has opposed the reference to human rights in the purpose of the agreement, diminishing the importance of a central role of respect for human rights in the response to climate change.”

There has been an interesting coalition of non-governmental organisations adopt a significant last-minute lobbying effort: the AFL-CIO, the main labour organization in the US (12.5 million members) called on people to call the White House and demand that the US support and even champion the inclusion of human rights in the agreement. Amnesty International (USA) and Human Rights Watch then relayed the call.

Many non-governmental organisations and individuals are pushing strongly for the inclusion of a reference to human rights and a duty to uphold them, even in the face of the need to take climate change measures. The impacts both of climate change and of measures taken to combat it could have a huge effects upon and implications for human rights.

As a result of pressure from non-governmental groups, Norway has released a statement claiming to support including human rights in the main section of the pact, but not in Article 2. However, as Amnesty (USA and Human Rights Watch comment, Norway “does not identify where it should be included, and it is nearly too late to include such a reference elsewhere that would reflect its relevance to all aspects of climate change.”

NGOS have been particularly active on the topic of climate change and human rights. There have been several different statements on climate change and human rights promulgated by different groups during 2015. For example, the Global Network on Human Rights and the Environment recently released a Draft Declaration on Human Rights and Climate Change , President Hollande issued the French Declaration of Humankind’s Rights, the Commonwealth Forum of National Human Rights Institutions issued the St Julian’s Declaration on Climate Justice, all on top of The Oslo Principles on Global Climate Change Obligations that were released much earlier in 2015.

At the time of writing, I have been unable to determine what New Zealand’s position is on the inclusion of reference to human rights in the Agreement. However, I cannot see any reason for New Zealand to disagree with their inclusion. The human rights provisions are unlike other provisions that will take more effort for New Zealand to uphold and on which New Zealand’s position has been roundly criticised.

This paper will be updated as state positions and the draft text become clearer in relation to the inclusion of references to human rights.

By Catherine Iorns (Victoria University of Wellington Law School and member of the Global Network on Human Rights and the Environment) | Image by AJ Batac
Written for World Human Rights Day, 10 December 2015

[1] Title of a speech and article by Kumi Naidoo, former Executive Director of Greenpeace International.

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