As temperatures outside hovered around the zero mark on a recent Friday last month, the Fordham International Law Journal held its annual symposium, this year titled “On Thin Ice: Climate Change Action From an International Human Rights Perspective” (no correlation asserted here). The symposium, sponsored by the American Bar Association’s Section on Energy, Environment and Resources, convened academics, practitioners and distinguished guests from around the world to discuss legal issues of climate change. The discussion, however, was not confined to the boilerplate rhetoric – greenhouse gases, carbon footprints, fossil fuel emissions and so forth – but rather homed in on the consequences of climate change from a human rights law perspective. A question posed in subtext might have been, “What is the extant legal framework to address the linkages between climate change and human rights, and how is that framework changing?”
That climate change exists is no longer a matter for equivocation. However, as industries and nations argue over the effects of global surface temperature increases – whether at an average of 1°C or 4°C – countries of the Global South are experiencing the brunt of the impact. As Margaux Hall and David Weiss have explained, “Analyzing climate change through a human rights lens is … appropriate because, in the worst-case scenario, climate change spells human catastrophe – rising seas, the spread of disease, and ecosystem collapse – particularly for the most vulnerable persons in the global community. Human rights analyses can frame proactive strategies to try to preempt human harm as well as to respond to such catastrophic events ex post.”
Indeed, the effects of climate change on human rights are substantial and implicate a variety of legal instruments. Food and water shortages, disease and home and community displacement are just some of the human costs of climate change. This potential loss of life, dignity, personhood and self-determination is proscribed under the Universal Declaration of Human Rights, the UN Charter, and the International Covenant on Civil and Political Rights, among other instruments. While states are obligated to fulfill these rights, accountability has been challenging in practice. The most comprehensive international agreement on climate change is the two-decade old United Nations Framework Convention on Climate Change (UNFCCC), adopted at the Earth Summit in Rio de Janeiro in 1992 and entered into force in 1994. Parties to the Convention, which has the distinction of having been ratified by all 193 UN member states, have since met annually at Conferences of the Parties (COP) to review and assess its implementation and enforcement. The climate change conference in Paris at the end of the year (COP21) has the lofty – and many argue unrealistic – ambition of achieving a binding and universal agreement on climate.
International human rights treaties, however, are difficult to enforce, as the success of treaty body monitoring mechanisms is at the mercy of its level of access to information and the cooperation of the states under review. An additional barrier is the issue of financing, as the question of who fronts the money for mitigation and adaptation projects becomes all the more pressing. What is the role of treaties to address the funding gap, if that potential exists at all?
These lingering questions framed the discussion at Fordham’s symposium last month. Three sets of speakers presented on the theoretical framework linking human rights and climate change; the viability of a treaty-based approach to mitigation and adaptation measures; and litigation strategies addressing the human costs of climate change. Some, including Professor Katrina Wyman of New York University School of Law, were skeptical of treaty-based responses on the basis of practical difficulties – e.g., challenges to implementation and enforcement – and lack of moral incentives. Stephen Kass, Chair of the New York City Bar Association’s Special Task Force on Legal Issues of Climate Adaptation, was no more optimistic that the upcoming conference in Paris will be any more successful in yielding firm, binding caps on greenhouse gas emissions levels than previous COPs. As an alternative, rather than pressuring countries to place a cap on their economic development, Kass favored the soft cap approach, whereby countries make corresponding annual payments to adaptation funds if and when they exceed predetermined target emissions levels. Others, including Niranjali Amerasinghe of the Center for International Environmental Law (CIEL), spoke of innovation in litigation, which now has the opportunity to use the latest advances in technology and science to make claims against not just producers, but also emitters of greenhouse gases. Further, rather than adopting merely a rights-based approach to climate change and human rights litigation, attorneys are increasingly looking toward tort law principles by raising claims relating to products liability and using language such as “duty to warn.”
The bottom line remains that countries that are contributing the least to climate change are paying the highest costs. Ahmed Sareer, Ambassador of Maldives to the United States and Permanent Representative of Maldives to the United Nations, represents an archipelago nation where 99 percent of the territory is ocean, with just one percent land. On average, the islands sit only five feet above sea level; the vast majority of residents live on an island not much bigger than Roosevelt Island in New York. Residents of his country have already faced the impact of climate change, with thousands forced to emigrate from the islands when their homes and communities became uninhabitable. In the symposium’s keynote address [video below], Ambassador Sareer stated the international community’s obligation simply and clearly, “We know that neither our country nor any vulnerable nation is capable of fully addressing the climate crisis and human rights of its citizens. It depends on others taking action as well.”
Jennifer Li is a Staff Writer for Rights Wire. She is also the Symposium Editor of the Fordham International Law Journal.
Rights Wire is pleased to present a video recording of the keynote address given by Ahmed Sareer, Ambassador of Maldives to the United States and Permanent Representative of Maldives to the United Nations.