COP26, climate justice and human rights: towards a grounds-up international law?

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By: Claudia Ituarte-Lima

In a powerful speech at the COP26 climate summit opening ceremony, Prime Minister of Barbados Mia Mottley said that unfulfilled climate adaptation commitments are “measured in lives and livelihoods in our communities and that, my friends, is immoral and unjust”.

In the context of the Anthropocene, humans have become the single most influential species on the world, causing significant global warming, sea-level rise, ecosystems degradation and other changes in social-ecological systems. However, not all humans have caused and are affected in the same way by these crises. People who have caused the least environmental harm are the ones disproportionally affected: from  people in small island states in the Pacific and the Caribbean and people being forcibly displaced, to children and future generations.

According to the World Bank, if the trajectory of inequality and high greenhouse gas emissions continues unchallenged, an average of 170 million people across six regions will be subjected to internal migration by 2050.

Climate Justice and Human Rights are Interconnected

Climate justice and human rights are inseparable – and States should treat them as such. All humanity relies is on a healthy environment for the food we eat, water we drink, and overall wellbeing. To realise our human rights, we require a safe, clean, healthy and sustainable environment. And at the same time, sustainable development and good climate governance requires respect for human rights. The two are interdependent and indivisible.

In its preamble, the Paris Agreement acknowledges that climate change is a common concern of humankind, and makes explicit reference to “obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children … as well as gender equality, empowerment of women and intergenerational equity”. In practice, however, there is an accountability gap. The connections between a safe climate and human rights may be most dramatically apparent with the situation of people around the world who defend a healthy environment. According to Global Witness -an international civil society organization- they are increasingly at risk with more than 220 environmental defenders killed in 2020.

Human Rights for Climate Justice

In a world where injustice is too prevalent, what are pathways for climate justice? Can human rights law help in trajectories towards climate justice and tackling the accountability gap? In October 8th 2021, for the first time ever, the United Nations Human Rights Council Resolution 48/13, recognised that a clean, healthy and sustainable environment is a human right. While being a UN Human Rights Council Resolution  negotiated and adopted by States,  more than 1,300 civil society organizations and indigenous peoples and youth groups had a critical role in generating the momentum for the recognition of this right. Through resolution (48/14), the Human Rights Council also strengthened its special procedures mechanism to work on the human rights impacts of climate change by establishing a Special Rapporteur on human rights and climate change.

To realize the right to a healthy environment for all and achieve climate justice, interdependency is key. Access to justice is interdependent to access to information, and public participation and their dynamic interaction matter for the ground-up development of international law. For instance, Thailand’s high vulnerability to flooding disaster has led to an increased recognition that communities need access to reliable, understandable, and trusted information. Along the U Tapao River in Hat Yai City, the municipal government and civil society engaged with community members who undertook various trainings, developed flood risk mapping and community action plans which were distributed widely within communities facing significant climate-related risks.

Both Right-Holders and Duty-Bearers Together

Importantly, while States are the main duty-bearers of human rights, innovative practices on access to climate information are not only led by duty-bearers but also by rights-holders. For example, a right-holders ground-up initiative, The May Doe Kabar Myanmar Rural Women’s network has launched a mobile phone app that offers climate-related information sharing and networking services among rural women. Women’s agency and collaboration is vital as women often have major responsibilities in sustaining livelihoods and family wellbeing not least during critical periods of disasters and extreme weather events, which are increasing in the context of climate change.

Right-holders or duty-bearers alone will not be able to tackle the climate change crises. Synergies between right-holders and duty-bearers are vital for overcoming bottlenecks on as shown in the RWI report, “Prosperous and green in the Anthropocene: The human right to a healthy environment in Southeast Asia”.  Dialogue among and between duty-bearers and right-holders on risks and vulnerabilities and co-developing information about these risks can contribute to understand and enhance multilevel level climate governance. In this process, connecting Constitutional rights and international law is relevant. For instance, the “Health National Adaptation Plan (H-NAP) Climate Change Health Adaptation Strategies and Action Plans of Nepal (2017-2021)” weaves the right to a healthy environment recognized in Nepal’s Constitution with international climate commitments.

Like in the case of climate adaptation, human rights law is also being used by right-holders to catalyse climate mitigation action for climate justice. In welcoming Urgenda Foundation v. Netherlands decision by the Netherlands’ highest court decision, Michelle Bachelet, the UN High Commissioner for Human Rights, highlighted that cases such as this one provide a legal basis to compel stronger and more rapid action by governments.

‘We Also Need Adapatation Measures’

Mia Mottley, in her COP26 climate summit speech highlighted the urgency of both adaptation and mitigation measures and said “simply put: when will leaders lead?” The countries and organizations supporting the UN recognition of the right to a healthy environment through HRC resolution 43/13 have the opportunity to spearhead the incorporation of human rights in COP26 commitments. Furthermore, States must go beyond pledges and declarations to respecting, protecting and fulfilling people’s right to a healthy environment in practice -then and only then we will be in the right pathway to inter and intra-generational climate justice. For all environmental human rights defenders, implementing human rights obligations would send a clear signal that their efforts for environmental justice matter and that they are not alone in defending the foundations of life upon which we all depend.

 

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