3. The Link Between Climate Change and Human Rights
Climate change has enormous consequences for nature and the environment. This chapter conceptualises the link between climate and human rights.
There is a clear link between climate risk and the interests that are protected by human rights.1Bugge, Lærebok i miljøforvaltningsrett (5th ed., 2019) p. 113. A damaged climate system will affect nature as we know it, and lead to more droughts, extreme rainfall, storms, sea level rises, heatwaves, wildfires, landslides and floods. This will again have consequences for fundamental human interests.2See Chapter 2 of the report, written by CICERO on commission from NIM. Both people and buildings will fall victim to landslides and floods, the food supply will be threatened, groundwater may become undrinkable as a result of salination, and new diseases will spread.3See Chapter 6 of the report on climate in the UN human rights system. In both the short and long term, a damaged climate system could lead to rising tensions globally. Climate change could also lead to many people being displaced from their homes.4This issue is discussed in more detail in Chapter 8 of the report on climate displaced persons.
At the same time, many would consider it misguided to justify environmental protection with an “anthropocentric” or human perspective, rather than attributing an intrinsic value to nature.5See more detailed criticism of the ecophilosophical criticism of human rights in Bugge (2019) p. 114. We will not enter into this debate here, but point out that human rights can include environmental interests, as illustrated in the jurisprudence of the Inter-American Court of Human Rights (IACtHR). Firstly, human rights can provide protection extending beyond individuals. Articles 2 and 8 of the ECHR, for instance, can provide protection against generalised risks in environmental matters, and Article 112 of the Constitution protects the intrinsic value of nature. Secondly, human beings themselves are part of nature. In the climate field, this is particularly evident. One cannot therefore meaningfully protect human life and health without consideration of climatic conditions for life and health.
Another objection is that climate change is a political issue with such complex causes and effects that it is not suitable for human rights doctrines. Before entering into this discussion (Section 3.3), we will outline how the connection between climate change and human rights manifests in three relations; prevention of climate change (3.2.1), adaptation to climate change (3.2.2) and as boundaries to climate action (3.2.3). The overview will explain why this report leaves certain human rights issues aside for now, and concentrates on issues that appear unresolved.6See the report’s introduction.
3.2. Three human rights aspects
Within international climate cooperation, it is common practice to refer to two different types of actions required to deal with climate change, namely adaptation and mitigation. The Intergovernmental Panel on Climate Change (IPCC) has established various working groups to contribute to its reports, with Working Group II looking at how we need to adapt to climate change to avoid harm, and Working Group III looking at what emissions reductions are required for the climate system to stabilise before the average warming reaches 2 degrees Celsius. Both of these types of actions are covered by the Paris Agreement, where Article 4 deals with reducing greenhouse gas emissions, while Article 7 deals with adaptation to inevitable changes. This distinction is also often referred to in the context of Norwegian climate change policies, e.g. in NOU 2018: 17 Klimarisiko og norsk økonomi.7NOU 2018: 17 Klimarisiko og norsk økonomi, p. 14. In the following we will show how these two situations also have a human rights aspect. In addition, we will highlight how human rights have been emphasised as an important barrier in the choice of means to achieve adaptation and mitigation.
3.2.1. Mitigation of climate change
The relationship between human rights and climate that is most fundamental and, at the same time, the least explored is the responsibility for limiting climate change. This relationship concerns whether the government has a human right obligation to fight climate change, i.e. to refrain from new large greenhouse gas emissions and reduce current emissions.
The question of whether States have human rights obligations to avoid climate change is not new, and today a comprehensive international legal framework exists in this area.8The UN Framework Convention on Climate Change (UNFCCC) was negotiated at the Rio Conference in 1992. This Convention has subsequently been operationalised through the Kyoto Protocol, which regulated emissions from 2008 to 2012. In the Doha Agreement, Norway committed to extend the Kyoto commitment for a second term until 2020. Today, the most important international climate agreement is the Paris Agreement, which was negotiated in 2015. Norway’s participation in international climate cooperation is incorporated into Norwegian law through the Climate Change Act of 2017. Here, Norway has committed to becoming a low-emission society in 2050 in line with the Paris Agreement. This law is based on the two agreements on climate policy from the Norwegian Parliament in 2008 and 2012. The fact that there is a link between human rights and climate is directly evident from climate cooperation. The Paris Agreement’s preamble, paragraph 11, contains a concrete recommendation that States should “consider” their obligations under “human rights” and “intergenerational equity” when taking action to reduce greenhouse gas emissions. The UN Framework Convention on Climate Change (UNFCCC) Article 1 defines “adverse effects of climate change” as changes that will have “significant deleterious effects” on inter alia “human health and welfare”.
In the 1972 Stockholm Declaration, the first part of the first principle adopted said the following:
“Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”9Declaration of the United Nations Conference on the Human Environment, 1972.
A few months earlier, the first proposal for an environmental provision in the Norwegian Constitution had been put forward – the proposal did not get a majority, but started a process leading up to the adoption of what became Article 110b (currently Article 112) of the Constitution.10Regarding the proposal from January 1972, put forward by Helge Seip, member of the Norwegian Parliament, see Bugge, “Grunnlovsbestemmelsen om miljøvern: Hvordan ble den til?” in Fauchald and Smith (eds.) Mellom jus og politikk. Article 112 of the Constitution (2019) pp. 19–40, at pp. 20–21. In 1987, the World Commission on Environment and Development released its report “Our Common Future,” which, among other things, proposed a set of legal principles for environmental protection and sustainable development. The first legal principle proposed was that “[a]ll human beings have the fundamental right to an environment adequate for their health and well being.”11Report of the World Commission on the Environment and Development, Our Common Future (1987). In the 1990s, Article 110b of the Constitution was adopted in Norway (1992) and the Aarhus Convention in Europe (1998), and in addition, the issue of climate and human rights was discussed by legal scholars.12Fauchald, “Miljø og menneskerettigheter”, Kritisk juss 1989 p. 3–17; Fauchald, “Bør retten til miljø anerkjennes som menneskerettighet?”, Retfærd 1991 no. 53, p. 68–70; Bugge, “’Bærekraftig utvikling’ og andre aktuelle perspektiver i miljøretten”, Lov og Rett 1993 no. 8, pp. 485–498, Section 4.1.
Ever since 2008, the UN human rights agencies have dealt with the link between human rights and climate change.13See Chapter 6 of the report on climate in the UN human rights system. In 2016, the UN Special Rapporteur on Human Rights and the Environment pointed out that human rights also relate to the issue of “how much climate protection to pursue.”14A/HRC/31/52, paragraph 33. In recent years, the issue of climate change and human rights has increasingly been raised in legal cases before national and international fora.15See chapter 9 of the report on climate-relate legal cases based on human rights. These cases have necessitated a clarification of what the legal obligations in this area entail. In Chapters 4, 5, 6 and 7, NIM will discuss the commitments to avert climate change that result from the Constitution and the international conventions on human rights that Norway has ratified.
3.2.2. Adaptation to climate change
Another human rights aspect of climate change concerns the obligation to make local adaptation to the climate change that already has or will inevitably occur. This obligation is to a large extent already settled in case law. Given the circumstances, States have an obligation to protect citizens from specific and predictable threats from environmental and natural disasters.16A/HRC/31/52, paragraph 37. Although several natural disasters are inevitable, it is clear that much can be done to avert impact on people’s lives and rights.17See e.g. A/64/255, paragraph 51. Various UN agencies have addressed, among other things, the importance of disaster planning,18UN’s Human Rights Council, CCPR/C/GC/36, paragraph 26, and UN’s Committee on the Elimination of Discrimination against Women, CCPR/C/GC/37, Gender-related dimensions of disaster risk reduction in the context of climate change. that food supply systems need to be reformed,19The UN Special Rapporteur on the right to food, see A/HRC/25/53. and that residential houses must be secured through risk analyses for urban planning and construction.20The UN Special Rapporteur on adequate housing, see A/64/255, paragraph 51.
The European Court of Human Rights (ECtHR) has also on several occasions heard cases relating to States’ obligations in environmental disasters.21 Budayeva et al. v. Russia and Özel et al. v. Turkey. For more, see Chapter 5 of the report on the European Convention on Human Rights and climate. Similar obligations can likely be derived from the parallel provision of rights in Articles 93 and 102 of the Constitution, as well as Article 112. National adaptation is therefore an important human rights obligation in the face of climate change. However, we will only to a limited extent discuss adaptation obligations in this report. The focus rests on the more fundamental commitment to avert any harmful impact on the climate system in the first place.
We will nevertheless address one particular issue concerning adaptation to climate change that has occurred or will inevitably occur, and that is the legal status of climate displaced persons. When the natural environment changes so much that people are forced to leave dangerous areas, it raises the question of whether they have the right to settle in safer areas outside their own country. This is an ever-evolving field that we will discuss in more detail in Chapter 8.22See Chapter 8 of the report on climate displaced persons.
3.2.3. Boundaries to climate action
A third human rights aspect of climate change is the notion of human rights as boundaries or limitations on measures to address climate change. Human rights entail boundaries for political agency in that political goals cannot be implemented in a way that violates human rights. The duty of the government to respect property rights, indigenous rights, protection against discrimination, the protection of privacy, freedom of expression etc., does not cease to apply even if certain acts of government threatening these rights in isolation may have worthy purposes. According to the UN Special Rapporteur on human rights and the environment, this applies also in principle to climate policy.23See e.g. A/HRC/31/52, paragraph 33 ff.
Whether the government’s policies and measures to address climate change are in conflict with other rights depends on how these actions are arranged. Whether rights have been violated will depend on a concrete assessment of the rights in question and the measures in question.24Wewerinke-Singh, State Responsibility, Climate Change and Human Rights under International Law (2019) pp. 125–127. In this report, NIM will not make an abstract assessment of how other rights may be affected by government climate action. We will, however, make two observations that show the tension in the relationship between climate and human rights. Firstly, it is important that the government is aware that climate action can also be in conflict with other rights, and that this is taken seriously in climate change action, as in any other form of exercise of authority. It is not thereby said that climate action cannot interfere with other protected rights. Generally, however, it is important that the authorities consider whether the measure is appropriate, necessary and proportionate before intervening. In connection with large-scale renewable energy projects in indigenous areas, it has been particularly necessary to raise awareness of human rights consequences.25See e.g. Khan, Working paper on promoting rights-based climate finance for people and the planet (A/HRC/WG.2/19/CRP.4) and Bugge (2019) p. 115.
At the same time, it is important to clarify that the protection of the climate is a human rights issue. The preparatory work for Article 112 of the Constitution, for instance, raised the questions whether “the right to a healthy environment is not at least as important to the existence and self-realisation of the individual as the other human rights”.26Document 16 (2011–2012) Report to the Presidency of the Norwegian Parliament from the Human Rights Committee on Human Rights in the Constitution, p. 245. Protecting the climate is therefore a legitimate purpose for the government and this must be given sufficient weight in the face of other considerations and rights. A practical example is that the government could have a duty to intervene in property rights or business interests in order to safeguard climate concerns. In the same way that the restrictions in the right of disposal in property law is not absolute, the proportionality assessment for other rights also addresses the reason why the government is taking action.27See e.g. Bugge (2019) p. 47 ff. When assessing whether interventions in other rights are necessary and proportionate, the purpose of safeguarding commitments to avert climate change will have to be given considerable weight.28See Chapter 4 of the report on Article 112 of the Constitution and Chapter 5 on the European Convention on Human Rights and climate.
3.3. Key issues when mitigation of climate change is understood from a human rights perspective
In this report, there are some issues that appear several times. The first is whether climate is exclusively a political issue and not a legal one. Another issue is whether we have human rights obligations to future generations, given that they will bear the long-term and irreversible consequences of climate change. We will discuss these two issues throughout the report. In the following, we will nevertheless introduce them on a general level, as a framework for further discussions.
3.3.1. Politics or law?
A central objection to applying human rights obligations to the prevention of climate change is that the subject is considered political. This understanding is based on three considerations. The first is that the government’s understanding of and response to climate change is politically contentious. Another objection is that there are various policy instruments that can be applied to prevent further climate change. The choice between instruments is a typical political assessment. This objection is closely linked to the last consideration, which is that combatting climate change is just one of many goals pursued by the government and society at large. It is up to politicians how this goal should be reconciled with other worthy purposes.
The fact that a field is politically contested and depends on priorities is, however, true for many areas where boundaries are set by human rights. One example is immigration policy, in which the prohibition on inhumane treatment and the right to private and family life can limit the State’s right to decide who should be allowed to remain within their territory. The fact that climate change is an area that is at the centre of political debate is in itself not sufficient for this form of exercise of authority to be dissociated from human rights obligations. The fact that greenhouse gas emissions, unlike other fields, could have irreversible consequences for future generations, which are not currently represented in the political system, may also imply that the interests of posterity must be safeguarded through legal limitations or boundaries on the agency of the present majority.
3.3.2. Future generations as rights-bearers
Because climate change is long-term, the impact of current emissions will affect generations who are not yet alive. This raises questions of a more legal philosophical nature about whether the people who will live in the future have human rights, and whether these possible human rights could commit us to climate action today. This is often referred to as a matter of justice across generations (“intergenerational justice/equity”).29Stanford Encyclopedia of Philosophy, Intergenerational Justice, available on https://plato.stanford.edu/entries/justice-intergenerational/ Within international climate cooperation, this future perspective has been clear from the very start. In the preamble to the UN Framework Convention on Climate Change, Art. 3 says that “the Parties should protect the climate system for the benefit of present and future generations of humankind,” and future generations are mentioned specifically in the preamble. The Paris Agreement also states that nations should consider “intergenerational equity” in efforts to avert climate change. As a philosophical question, it typically raises three challenges, which we will discuss in turn. The first of these is often referred to as Parfit’s non-identity problem.
(i) The non-identity problem
The first philosophical challenge associated with future generations as rights holders was put forward by Derek Parfit in the 1980s and concerns our current actions affecting the identities of those who will live in the future.30Parfit, Reasons and Persons (1986) pp. 358–359. This is because the way in which we live today, such as where and what we study and work with, will affect who we meet and when we have children – and thereby also which children are actually born. It therefore appears to be a paradox if these future children were to blame us for our neglect of the climate problem, since the actions that led to the climate problem may be exactly the same actions that allow these individuals to exist. For Parfit, it therefore does not make sense to say that specific future individuals have rights relating to us taking actions that would have led to these individuals not existing.
However, the tension between the interests of specific individuals in having been born and their interests in being born into a stable climate, can be solved if we treat these future individuals as a group.31See e.g. Lindberg, “Fremtidige generasjoner som rettighetsbærere”, Salongen nettidsskrift for filosofi og idéhistorie, published March 30 2020. Accessible on salongen.no. At a group level, there is a difference between a potential group of individuals coming into the world in an environment with a stable climate, and a potential group of individuals coming into the world in an environment where the tipping points of climate catastrophe have been reached. From a collective standpoint, Parfit’s paradox disappears, allowing future generations to possess human rights.
However, as the consequences of climate change draw closer, many argue that the non-identity problem is irrelevant to our understanding of climate change. Children born today will be 80 years old when we reach 2100, and will experience the consequences of our possible failure to avert further climate change.32Year 2100 is often used as a reference year, see chapter 2 of the report, written by CICERO on commission from NIM. What is at stake is therefore whether we wrong those who are already alive, who in turn will have obligations to new generations in their own lifetime, in an unbroken overlapping chain of generations.33Stanczyk, “How quickly should the world reduce its Greenhouse Gas Emissions?” p. 20, Harvard Philosophy As the former UN Special Rapporteur on human rights and the environment, John Knox, has written: “We do not need to look far to see the people whose future lives will be affected by our actions today. They are already here.”34A/HRC/37/58, paragraph 68.
(ii) The necessity of being able to assert one’s right
Another legal philosophical problem that is often raised regarding the status of future generations as rights-holders is that they will not be able to assert their rights – for the simple reason that they do not yet exist. Will theory within rights theory is based on the notion that there is a necessary link between rights and enforcement. It is nevertheless clear that there are several people who cannot enforce their rights but still have rights. The most obvious example is children. In addition, there are rights that one cannot renounce, even if one should want to, such as the right to life or the right not to be subjected to torture. These examples show that the existence of rights does not necessarily depend on whether the rights holder can or will enforce those rights.
The interest theory is an alternative rights theory that links the rights holder to whose interest is at stake. Such a theory could cover children and non-waivable rights – in addition to the interests of future generations. Even if the issue of enforcing the possible rights of future generations raises many questions, the fact that they themselves cannot assert their rights today is not a decisive objection. As we demonstrate in the chapter on Article 112 of the Constitution, their interests can be argued by proxy, see Section 1-4 of the Disputes Act.
(iii) Is it possible to have obligations to future generations?
A final challenge is often how interests that first materialise in the future can be relevant today. The objection seems to be that the future cannot affect the present in such a direct manner. Since rights and obligations are often regarded as two sides of the same coin, such an objection is difficult to understand.35See e.g. Eng, Rettsfilosofi (2007), pp. 145-148 and Smith, Konstitusjonelt demokrati (4th ed. 2019) p. 55. Even if they do not occur simultaneously, they are in a causal relationship with each other. From the perspective of the obligation, the injustice is committed by us in our present,36Stanczyk, p. 16. and the harmful consequences in terms of changing the climate balance in the atmosphere occur immediately.37See Chapter 2 of the report, written by CICERO on commission from NIM. The action is therefore completed on our part in the present, even if the adverse effects will extend into the future. That we must therefore take responsibility for the negative consequences of our actions, when we know that our actions harm fundamental interests of future generations, is accordingly entirely in line with the way that obligations are construed in other areas of law.38Lewis, “Human rights and intergenerational justice” in Ismangil, von der Schaaf and van Trost (eds.), Climate Change, Justice and Human Rights (Amnesty International Netherlands 2020), p. 82. The German Constitutional Court has recently held that the right to life and physical integrity in the German Constitition (article 2.2) places the State under an objective duty to protect future generations, even though they do not have subjective rights.
As with the identity problem mentioned above, we could also answer this temporal objection by referring to the fact that our actions and omissions now have direct consequences for those alive now.39Stanczyk, p. 21. The gap between the injustice being committed and the damage materialising is thereby reduced.
In the following, we will look at possible legal grounds for linking climate risks to States’ human rights obligations. We will first discuss Article 112 of the Constitution, then the ECHR and the UN conventions..