Climate Change, Basic Rights, and International Obligations

Introduction: The Impact of Climate Change on Basic Human Rights

Climate change poses an immense and growing threat to human rights around the world, but national governments have not come together around a global climate change agreement with the force needed to prevent a widespread human rights crisis. Humphreys states it clearly:

“As a matter of simple observation, climate change will undermine—indeed, is already undermining—the realization of a broad range of internationally protected human rights: rights to health and even life; rights to food, water, shelter, and property; rights associated with livelihood and culture; with migration and resettlement; and with personal security in the event of conflict.”[1]

Unmitigated, climate change will lead to human rights violations on a massive scale: millions of individuals worldwide are projected to lose access to food, water, health, and other rights essential to life. In some regions of the world, human rights violations from climate change are already a reality. The Inuit Circumpolar Conference, to cite one example, submitted a petition to the Inter-American Court of Human Rights claiming that emissions from the electricity generation industry in the United States were undermining Inuits’ rights to life, heath, security, subsistence, residence, movement, inviolability of the home, property, and culture.[2] Nevertheless, many policymakers claim that anthropogenic climate change lacks the scientific consensus that would justify committing resources to reducing emissions and empowering adaptation. Indeed, climate doubt has become a credo for many American politicians.[3] Two fundamentally opposed claims – on the one hand that climate change is denying people access to basic rights today, and on the other that we do not yet know enough to act – coexist in policy discussions. This divide shows how far the international community remains from coordinating an effective response.

While national governments are a long way from committing to a comprehensive plan to manage the threat of climate change, they have invested in the creation of intergovernmental institutions meant to inform and coordinate a global response. In 1992, a number of states signed onto a treaty, the United Nations Framework Convention on Climate Change (UNFCCC), agreeing to work cooperatively to curb global warming.[4] The stated goal of the UNFCCC is:

“The stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame that would allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”[5]

The text of the Convention also includes five principles to guide the action taken by the Parties: 1) concern for present and future generations, equity, and “common but differentiated responsibilities”; 2) consideration of the vulnerabilities of developing country Parties; 3) commitment to minimize and mitigate the effects of climate change, with the intention of acting early and in a cost-effective manner, notwithstanding some level of scientific uncertainty about the specific impacts of climate change; 4) respect for the right to sustainable development; and, 5) support for international economic policies that do not unfairly hinder the economic growth of developing states (Article 3). Annually, member states convene at Conferences of the Parties (COPs) to negotiate and plan the international response to control climate change. In 2010, parties agreed to the goal of limiting increases in global average temperature to less than 2 degrees Celsius (UNFCCC, “Essential Background,” 2011). Unfortunately, the opportunity to limit warming to 2 degrees is rapidly disappearing, according to the International Energy Agency. Unless global emissions peak and begin to decline within the next five years, warming will exceed the international target (Harvey, 2011).

Perhaps the better known international climate change regime is the Intergovernmental Panel on Climate Change, or IPCC. The IPCC is a scientific body founded by the United Nations Environment Programme and the World Meteorological Organization in 1988 and charged with reporting on the latest research on the environmental and social risks associated with climate change. The IPCC states that there is little doubt about the basics of climate change. The Summary for Policy Makers on the physical science of climate change, published in 2007, states that it is “very likely”—i.e. there is a 90 to 99 percent probability—that climate change will lead to more heat waves and heavy precipitation, and it is virtually certain to increase average temperature and make hot days more frequent over most land areas. According to the IPCC, there is more than a 66 percent probability that human action has contributed to the warming trend observed in the late 20^th century.[6] In many areas of the world, a warmer climate is believed to be increasing mortality and morbidity, and, looking forward, unchecked climate change is expected to do grave harm to human rights and wellbeing.

Though others, including Humphreys, can provide an extensive list of rights threatened, either directly or indirectly, by climate change, this essay will focus on the risks to the rights to water, food, and health, drawing from evidence in the IPCC’s Fourth Assessment Report. Other rights will very likely be violated, but the risk is less vividly demonstrated in the work of the IPCC. The risks to these rights are also emphasized because they make for uniquely compelling evidence that the human rights regime ought to advocate for greater international cooperation in coping with climate change. However, despite the fact that these rights are essential to survival, their legal status is controversial. Respected scholars of rights like O’Neill (2005) contend that they are not real human rights at all, arguing that real rights create duties obliging other actors not to violate those rights. In the case of liberty, or negative rights (the right not to be subjected to something), all people in a society have a duty not to infringe on particular rights. Economic, social, and cultural rights, by comparison, are rights to be fulfilled. The human right to food, for example, is a right to access to nourishment, rather than a right not to be interfered with. It is difficult to say who exactly has the duty to fulfill this right;[7] it does not impose intelligible correlative duties. The rights to food, water, and health were first recognized at the global level in the International Covenant on Economic, Social and Cultural rights (ICESCR). According to Hamm, economic, social, and cultural rights have been referred to as “second-generation rights” because, it is sometimes argued, they are categorically different from the “first-generation rights” enumerated in the International Covenant on Civil and Political Rights (ICCPR).[8] Civil and political rights are described as creating clear-cut, negative duties to prevent harm, whereas the justifiability of economic, social, and cultural rights is debated, because they supposedly impose positive duties to provide unspecified goods and services. Furthermore, the ICESCR calls upon states to take action “to the maximum of its available resources, with a view to achieving progressively the full realization” of covenant rights.[9] The Covenant does not create a clear standard for the steps a state must take immediately in order to be in compliance.

Nonetheless, jurisprudence on economic, social, and cultural rights has been evolving, clarifying the obligations of states and the international community that are effective immediately under the ICESCR. The Committee on Economic, Social and Cultural Rights (CESCR), the UN body with the authority to interpret and monitor the implementation of the Covenant, has defined the minimum core obligations of states to fulfill economic, social and cultural rights without delay. The CESCR writes:

“A minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.”[10]

While the ICESCR calls upon the international community to assist in the realization of all rights enumerated in the treaty, the CESCR states that international obligations are especially strong in relation to fulfilling the minimum core of rights.[11] Minimum core obligations provide an intelligible standard to which states can be held accountable, along with the international community; the minimum core approach discredits the idea that these rights are not justifiable. Pogge has further challenged the claim that human rights law does not create well-defined obligations in relation to economic, social, and cultural rights. He asserts that extreme poverty is a human rights violation and that participation in the current global institutional order, which has produced more than 300 million premature deaths related to poverty since the end of the Cold War, represents a violation of a negative duty not to deny people their human rights.[12] This point will be discussed at length below.

The rights to food, water, and health are compelling because they are what Shue calls “basic rights”. Shue describes access to adequate food, water, and “minimal preventive health care” as constituents of the right to subsistence, or the right to “have available for consumption what is needed for a decent chance at a reasonably healthy and active life of more or less normal length, barring tragic interventions.”[13] The right to subsistence and the right to security are basic rights, which demand respect because they are the rights upon which the enjoyment of all other rights depends.[14] By this logic, those committed to the realization of any human right should be invested in the fulfillment of these most fundamental entitlements.

In many places, climate change is already undermining the enjoyment of the basic rights to water, food, and health. The IPCC’s Fourth Assessment Report gives a comprehensive account of the current impacts of climate change upon human populations, and although those impacts are not reported in terms of rights lost, it is not difficult to draw connections between environmental change and risks to rights. For example, the IPCC reports that climate change and the El Niño climate pattern have caused very dry areas to double in size worldwide.[15] The expansion of water-depleted areas threatens global access to water and food. Hotter, drier weather has reduced the growing season in the Sahel region and made it more difficult to grow food (IPCC WG II AR4 SPM). Many people are experiencing loss of health and loss of life as a result of climate change. According to the World Health Organization, since the 1970s, climate change has contributed to the deaths of 150,000 people from additional cases of diarrhea, malaria, and malnutrition.[16] The 2003 heat wave in Europe struck during the hottest summer since 1500 and led to between 25,000 and 30,000 deaths.[17]

Left unchecked, climate change will be shockingly destructive to human welfare over the course of the next century. Human Rights and Climate Change, a collection of papers compiled by the International Council on Human Rights Policy in 2010, provides a useful summary of the impact climate change would have over the next hundred years if it were to continue at its current rate. The collection was gathered from the IPCC’s assessment and the Stern Review, an authoritative report on the economic impact of climate change. The summary focuses on the effects of climate change on the rights to water, food, and health.

The right to water will be drastically undermined by climate change if it continues at its current rate. According to the Fourth Assessment Report, one-sixth of world population depends on water from snow and glaciers, stores that are likely to diminish as a result of climate change.[18] Similarly, the Stern Review predicts a water crisis of similar magnitude: climate change and population growth could threaten access to water for billions of people, and current water management strategies fall far short of what is needed to ensure access under future conditions.[19]

Similarly, access to adequate food is a human right; worldwide, the ability to obtain food will be undermined if climate change continues without substantive action. Extreme weather events, warmer temperatures, shifting precipitation patterns, and changes in animal and plant populations will all endanger food sources on which people depend.[20] According to the Fourth Assessment Report, “future climate change is expected to put close to 50 million extra people at risk of hunger by 2020 rising to an additional 132 million and 266 million by 2050 and 2080, respectively.”[21] According to the Stern Review, 12 percent of all people are at risk of hunger and 4 million die from malnutrition each year. If global average temperature increases by 3 degrees, between 250 and 550 million more people may be at risk for hunger.[22]

The predicted health impacts of climate change are diverse and difficult to quantify. The Fourth Assessment Report predicts that climate change could result in a significant increase in the number of deaths from heat exposure, an additional 220 million-400 million people at risk from malaria, a 2 to 5 percent increase in diarrheal diseases in poor countries, and a 4.5 percent increase in deaths related to exposure to ozone. Stern notes that climate change will only add to unequal health outcomes between rich and poor.[23]

These reports show that if world greenhouse gas emissions do not fall, climate change will lead to severe and widespread human rights violations. This claim is vulnerable to the criticism that the non-fulfillment of positive rights to subsistence and health should not be considered genuine human rights violations. Anticipating this argument, Caney intentionally offers a very conservative formulation of several key human rights in order to demonstrate that climate change is, even by those standards, a rights violation.  He cites the right not to be “arbitrarily deprived of…life,” recognized in the ICCPR, and points out that many people will be deprived of life both as the result of sudden-onset and slow-onset environmental disasters caused by climate change, for no other fault than having been born in the wrong region and social position.[24] He also presents more modest formulations of the rights to health and food that entail negative rather than positive duties. The human right “that other people do not act so as to create serious threats to their health” and the right “that other people do not act so as to deprive them of their means of subsistence,” are both violated by climate change. In failing to rein in their emissions, states that produce a large amount of greenhouse gases will knowingly be depriving others of access to these rights.

International action on climate change has so far been totally inadequate. In 1997, parties to the UNFCCC adopted the first world climate treaty, the Kyoto Protocol, under which 37 developed states and the European community committed to reducing their greenhouse gas emissions five percent below 1990 levels between 2008 and 2012.[25] The Kyoto Protocol has been criticized for failing to set forth emissions-reduction goals for developing countries, even fairly affluent states like South Korea, which numbers among the 25 top emitters and the 25 largest economies in terms of GDP.[26] Although the United States signed the treaty, President Bush refused to ratify in 2001, claiming that it would hurt the American economy and that it unfairly exempted developing countries from emissions reductions.[27] The move seriously destabilized the UNFCCC process and dimmed hopes for global commitment to decisive action on climate change going forward. While carbon dioxide emissions in the European Union have remained fairly flat, US emissions have grown almost 20 percent from 1990 levels. Emissions in Asia have grown more than 110 percent, and world emissions have grown by 40 percent.

Progress towards an international agreement to replace Kyoto has been unimpressive. The past two climate conferences, COP 15 in Copenhagen and COP 16 in Cancun, produced only a few commitments by states to reduce their emissions, and a large portion of these commitments are conditional upon action from other states. The European Union, for example, committed to reduce its emissions between 20 and 30 percent below a 1990 baseline, but only if other states, like the United States, make comparable commitments.[28] The United States, anticipating Congress’s passage of climate and energy legislation, committed to reduce its emissions by about 17% by 2020. Congress, however, voted down the bill, and therefore both its commitment and that of the European Union were nullified. Ahead of COP 17, the United States announced that it would reject a commitment to emissions reductions without emissions targets for developing states with large annual emissions, like India, China, and Brazil.[29] The insistence of the United States on this point is not surprising: most of the increase in global emissions in the last 20 years has come from non-OECD countries, and that trend will continue. Though per capita emissions remain much higher in developed countries and developing countries’ capacity to reduce emissions is much lower, the American position remains unchanged.

The slow progress towards an international commitment to limit emissions after the Kyoto Protocol expires in 2012 may explain why adaptation policy has recently received greater attention. The IPCC defines adaptation as “adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities.”[30] As the human impacts of climate change become more widespread, adaptation policy might evolve to prevent violations before they occur or restore access to rights after harm has been incurred. One commitment to emerge from COP 16 was the pledge to provide $100 billion in funding per year by 2020 for a Green Climate Fund for mitigation and adaptation in developing countries. However, the United States, Saudi Arabia, and Venezuela raised concerns about the structure of the Fund at COP 17 and may delay its implementation.[31]

Barring a dramatic reversal in American climate policy, the prospects for an agreement that would prevent “dangerous anthropogenic interference with the climate system” appear bleak. According to Metz, without commitments from the United States and large developing economies, the post-2012 climate regime will most likely lack a global emissions target and formal penalties for those countries lagging. Instead, states will likely participate in a “pledge and review system”, in which they establish individual emissions-reduction goals and accept some minimal international oversight.[32] Such a system is unlikely to create deep cuts in global emissions. The climate regime is not on course to avert widespread rights violations, as climate change will not be adequately slowed.

Human Rights, the UNFCCC, and Responsibility for Climate Adaptation

Scholarship on the relationship between human rights and climate change is emerging, as the need for climate policy to avert rights violations grows more urgent. Dudai notes that, until fairly recently, there has been a strange silence on the part of human rights organizations, lawyers, and scholars on climate change, which he attributes to the fact that resources for human rights organizations are already scarce and that climate change presents an enormous new challenge that they are ill-prepared to confront.[33] There are also conceptual challenges to presenting a human rights-based approach to climate change policy. No international human rights treaty recognizes a right to the environment. For example, the UN has so far characterized the relationship between human rights and the environment as “indirect.” The 1972 Declaration of the United Nations on the Human Environment – the first document in international law to recognize a link between human rights and the environment – does not assert a direct right to the environment, but instead argues that environmental quality is vital for the enjoyment of human rights.[34] Beyond the absence of an internationally-recognized human right to the environment, there exist several challenges in proposing a rights-based response to climate change: 1) whether a rights-based approach should be remedial or preventative; 2) whether large emitters should be treated as having violated human rights; and, 3) whether human rights can propose a system for distributing responsibility for funding climate change adaptation.

To articulate a human rights-based response, one must determine whether the focus should be remediation or prevention of violations. Within climate policy, prevention of climate change through mitigation of emissions and remediation of impacts through adaptation are often treated as two separate ventures. Mitigation policy has received more attention in the UNFCCC because the opportunity to limit climate change to 2 degrees is fast disappearing. The emphasis on mitigation may also be explained by the implicit assumption that curbing emissions must be a global effort, whereas adaptation need not be. It is difficult to imagine limiting carbon dioxide concentrations at 450 ppm without international cooperation, whereas individual states could be left to manage adaptation independently. While all states would be affected by uncontrolled warming, the security of the international community does not depend on universally successful adaptation.

Rights scholars, too, have focused on mitigation. This emphasis is consistent with the traditional role of human rights in ensuring that a states’ particular policy upholds the negative duty to not impede the enjoyment of rights. Many proposed features of mitigation policy—emissions targets for developing states, displacement of communities for the construction of large clean energy projects, rules limiting the use of forests, on which many indigenous people depend—all require careful, rights-based analysis, so as not to deny people access to rights once they are implemented. A human rights-based approach to climate change adaptation is a greater challenge, because it is more likely to impose positive duties to protect, respect, and fulfill human rights. But the international community, and human rights advocates in particular, should not shy away from asserting these positive duties. Climate change is a global threat, to which all nations have contributed: the entire international community should be held accountable for meeting the needs of victims of rights violations.

Another point of contention in human rights and climate change literature is whether states that have produced exceptionally large amounts of greenhouse gas emissions have committed a human rights violation. Jodoin describes a proposal to prosecute individual states for emitting excessive amounts of carbon dioxide, calling it the “liability approach to climate policy.”[35] The idea of prosecuting states with excessive emissions is appealing because it would entitle those who have suffered because of climate change to compensation. However, Jodoin argues that it would prove nearly impossible to establish legal responsibility for rights violations related to climate change.[36] He refers to a section of a 2009 report from the Office of the High Commissioner on Human Rights (OHCHR) on the relationship between climate change and human rights explaining why establishing liability is unrealistic: it is impossible to draw a causal connection between one states’ emissions and a natural disaster that leads to human rights violations. Furthermore, the bulk of the human rights impacts of climate change have not yet been realized, and today we have only predictions of harm, making it difficult to demonstrate that states are committing a human rights violation by emitting.[37] The difficulty of establishing legal responsibility on the basis of a causal contribution to harm makes the liability approach untenable.

With this in mind, Jodoin contrasts the liability approach with a shared-responsibility approach to climate policy, which would call upon the international community to assist in the realization of economic, social, and cultural rights not only for all victims of climate harm, but for all people worldwide.[38] Rather than relying on proof of individual state responsibility to compensate harms to climate victims, this approach draws upon the familiar obligation of international assistance and cooperation described in the ICESCR. States would be expected to help protect and restore rights through climate adaptation not on the basis of their contribution to climate change, but on the basis of universally shared “obligations to fulfill all human rights for all.”[39]

The choice between a violations/liability approach and a shared-responsibility approach is fundamental to the future involvement of the human rights regime in climate politics, but it implies a tragic tradeoff. On the one hand, calling excessive carbon dioxide emissions a human rights violation and acknowledging a legal right to compensation would, in theory, provide a secure source of revenue for climate change adaptation. The cost of restoring access to basic rights to those whose lives have been disrupted by climate change will likely be massive. If there is no mechanism for assuring adequate funding adaptation—that is, if donor states feel no more obligation to provide adaptation assistance than they do to help realize economic, social, and cultural rights—then, many victims will likely go uncompensated and suffer. Therefore, a state-specific duty of compensation is appealing. On the other hand, the liability approach has enormous problems, even beyond the difficulty of establishing legal responsibility for harm. For instance, impacts from climate change would have to be recognized as rights violations on a case-by-case basis. Given that access to food, water, and health care may be threatened for billions of people, any process that considers complaints on a case-by-case basis would be unworkable. A shared-responsibility approach, on the other hand, in which all states would contribute to a global adaptation fund on a voluntary basis, is the more feasible option, but the long history of shirking by donor states suggests that discretionary contributions would not produce adequate adaptation funding.

The situation requires a compromise between the two systems: a shared-responsibility approach that creates clearly defined obligations for individual states and that has enforcement mechanisms. Such a system would reflect the fact that those states in a position to assist are also those most responsible for creating the rights violations in the first place, due to large historical emissions from early industrialization and high per capita emissions. While it’s impossible to establish responsibility for individual climate change-related events, Knox points out that we do know roughly how much individual states have emitted.[40] On the basis of our knowledge of states’ historic fossil fuel consumption and other activities, we can comfortably assert that affluent, industrialized states, which are also donor states, have emitted greenhouse gases at levels disproportionate to their population size. Because climate change is a global phenomenon, all emitters are responsible for some fraction of all impacts;[41] therefore, they should contribute to a global adaptation solution. Under a hybrid liability/shared-responsibility approach, states would be held accountable on an individual basis for contributing to a general adaptation fund. The objective of this fund would be to enable the protection, fulfillment, and restoration of basic economic, social, and cultural rights for all those whose have suffered severe harm, in the form of deprivation of basic human rights, because of climate change.

However, the question that casts the greatest doubt on the plausibility of a rights-based approach to climate policy is whether human rights norms can be used as guidelines for distributing responsibility for funding climate change adaptation. Prominent features of human rights law limit its applicability to the justice problems posed by climate change. Human rights law is state-centric; as Humphreys points out, the rights threats from climate change are the result of actions taken outside of the states that will be the most affected.[42] Furthermore, many of the states that will be most affected lack the resources to carry out adaptation that would protect the basic rights of their citizens, whereas the developed states that have contributed most to the problem have the capability to fund adaptation. To be sufficient, climate remedies would have to be international. The difficult question for human rights law then is: who should pay for climate change adaptation? Dudai claims that human rights analysis is best suited to ensuring that policies do not impose unfair burdens on certain groups, rather than proposing how responsibility for curbing emissions should be distributed. He writes that in creating a global mitigation and adaptation plan:

“There are pros and cons for each course of action, and choosing which to adopt would depend on multiple variables and would be context-sensitive, differing from the clearer right-and-wrong and universal absolutes of much of the human rights framework.”[43]

Given the scale of the threat climate change poses to human rights, such a narrow role for rights standards in climate policy is inappropriate.

It is true, however, that in the past human rights law has seldom been used to promote a particular distribution of burdens to achieve a rights objective. International obligations to assist developing states in fulfilling economic, social, and cultural rights are left very vague in the ICESCR. Indeed, the Covenant says only that states should provide “international assistance and cooperation” to achieve progressively the realization of rights.[44] Because the Covenant does not specify a minimum level of foreign assistance, human rights law has not been read as establishing specific obligations for the international community. Even making good on the oft-reiterated promise by OECD countries to give 0.7% of GNI as official development assistance has rarely been described as a duty under human rights law.

The language of the UNFCCC, on the other hand, makes international obligations central. Equity and “common but differentiated responsibilities” are enshrined principles. As a result, within the climate regime, the obligation to assist poor countries in their mitigation and adaptation efforts is generally accepted but “barely implemented.”[45] However, the UNFCCC does not have the reporting infrastructure of UN human rights organizations. States are never made to stand before a committee and held accountable for the extent to which they have served the cause of equity in accordance with the UNFCCC, as they would be had they ratified a human rights treaty. Furthermore, the Convention has nowhere near the international recognition and credibility of human rights law. Distrust abounds within the UNFCCC, and its dictates have less power to influence policy. Therefore, standard setting for states’ fair share of adaptation payment is desirable; naming and shaming states that avoid their duties may be the strongest means for encouraging compliance, as states will likely shy away from lost political capital.

A less-conventional reading of human rights norms does in fact address the fair distribution of adaptation burden. Caney, writing on mitigation policy, argues that a human rights-based approach would differ dramatically from the current decision-making model employed in the UNFCCC.[46] Caney’s approach would narrow the focus of climate policy to consider only the impact of potential emissions scenarios upon human rights – prioritizing the rights to life, health, and subsistence. According to Caney, emissions reduction goals should not threaten access to human rights like subsistence, healthcare, and education in poor countries.[47] Finally, and more radically, he proposes that states that have contributed more than their fair share in greenhouse gas emissions should be responsible for funding mitigation, adaptation, and compensation for victims.[48]

Salomon also promotes more extensive responsibilities for affluent states in eradicating extreme poverty and fulfilling the minimum core of economic, social, and cultural rights. Ending human rights violations related to extreme poverty poses a problem similar to that of protecting and restoring rights in the wake of climate change. Indeed, in both cases success depends upon greater international assistance. As with climate change, Salomon argues that those most able to help end poverty-related rights violations are also those most responsible for the problem.[49]

To resolve the human rights crisis created by severe poverty, Salomon promotes a doctrine of universal basic rights, a principle that resolves many of the dilemmas in establishing a rights-based approach to climate change and provides a powerful framework for funding adaptation. She asserts that there exists today an obligation within international customary law to ensure access to basic rights.[50] Its inclusion in international law would mean that all people have a right to those goods and services, regardless of whether their national government had signed and ratified the ICESCR. She identifies basic rights as the minimum core content of economic, social, and cultural rights specified by the CESCR.[51] Basic rights now face a global threat from climate change, which only strengthens the case for their recognition in customary international law. All states share some responsibility for creating the problem, and only through a bold, international response are rights likely to be preserved.

Salomon also proposes a method for assigning responsibility for the universal fulfillment of basic rights. In a briefing note to the UN High-Level Task Force on the Implementation of the Right to Development, she writes,

“When all countries…are to contribute to the common objective of eradicating world poverty, the responsibility of a state for the creation of a just institutional order is in accordance largely with its weight and capacity in the global economy. The content of this principle of common but differentiated responsibilities…is informed by the contribution that a state has made to the emergence of the problem.”[52]

This system for distributing responsibility is consistent with the one that Baer, Athanasiou et al present on mitigation in the framework of greenhouse development rights. They argue that responsibility for emissions reductions should be distributed according to a “responsibility and capacity index” – namely, that states ought to be assigned obligations for reducing their emissions based on the amount that they have emitted (“responsibility”) and their ability to reduce their emissions without endangering the livelihoods of their people (“capacity”).[53] A similar index should be used to establish states’ obligatory contributions to a global adaptation fund. Capacity and responsibility would determine funding targets for individual states.

Taken together, Caney’s work and the doctrine of basic rights suggests a way forward: a human rights-based approach that assumes there is an international obligation to prevent a loss of basic rights to climate change. Furthermore, such an approach assigns states differential levels of responsibility for climate assistance as a function of their contribution of emissions, providing a distributive standard for the responsibility for adaptation. Though we lack the ability to pin causality of climate change events on an individual state,[54] and thus establish responsibility for violations in the legally relevant sense, we can assert that states have a responsibility to provide a portion of global adaptation assistance on the basis of their contribution to climate change. To support adaptation worldwide, a global fund should be created, to which states would be expected to contribute annually according to their responsibility and capability. The funds would be distributed to states on the basis of need, as interpreted by a body of climate science experts. This body would be similar to, or an extension of, the IPCC.

Basic Rights as a Standard for Adaptation

Because the magnitude of climate change is unknown, the overall price of restoring access to basic rights in the wake of climate change is impossible to estimate accurately. Even while making assumptions about the magnitude of climate change, local-level impacts are still hard to predict. There have been a number of estimates of the cost of adaptation in the developing world, where rights violations would be greatest, but they have varied enormously, from as little as $4 billion per year to more than $100 billion per year.[55] These estimates figure the cost of adaptation as the cost of “climate-proofing” gross direct investment, foreign direct investment, and official development assistance in developing countries.[56] The damage incurred on these investments is only indirectly related to violations of basic rights. Because a rights-based approach to climate change focuses solely on protecting and restoring access to basic rights, it might seem that the expected cost would be lower. However, the cost estimates do not include the price of eradicating the “adaptation deficit” –  the shortfall in investment and development that leaves basic needs unmet and communities extremely vulnerable to climate change.[57] If the adaptation deficit is not addressed, adaptation efforts will fail.[58] This critique may be more relevant to adaptation policy that focuses on infrastructure and development, rather than basic rights. However, the cost of eradicating the adaptation deficit may be a better proxy for the price of fulfilling basic rights because the Millennium Development Goals, which will cost about $200 billion by 2015, are presented as an effort similar to that of eradicating the deficit.[59] To make up the adaptation deficit, it’s estimated that official development assistance would need to rise to 0.7% GNI, or about $282 billion, from 0.32% GNI in 2010.[60] This price tag covers adaptation outside of basic rights, so $282 billion per year should represent the highest possible cost of a protecting basic rights through adaptation.

So what would a basic rights approach to climate adaptation look like? Focusing on the core basic rights, CESCR General Comment 12, written on the right to adequate food, exemplifies the minimum core content of economic, social, and cultural rights, which would be the focus of rights-based adaptation. The CESCR identifies the basic obligations of States parties to the Covenant that are effective immediately and not subject to progressive realization: to ensure:

“1) the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture; and, 2) the accessibility of such food in ways that are sustainable and do not interfere with the enjoyment of other human rights.”[61]

In the CESCR General Comment 15 on the right to water, the Committee is unequivocal in asserting that international obligations are much more extensive in relation to core obligations. It states,

“For the avoidance of any doubt, the Committee wishes to emphasize that it is particularly incumbent on States parties, and other actors in a position to assist, to provide international assistance and cooperation, especially economic and technical which enables developing countries to fulfill their core obligations indicated…above.”[62]

In order to fulfill these obligations, developing states will surely have to rely on increased international assistance. Because states are required to fulfill these rights immediately, and the CESCR has identified international assistance as integral to the realization of minimum essential rights, the demand for greater international assistance in climate adaptation is justified. The standard articulated by the CESCR for core obligations is generous enough to alleviate the worst hardship related to the scarcity of food; assuming strong international assistance, the obligation of the international community to help meet this standard is well-founded in international law, and is cost-feasible for donor countries. Therefore, it is an appropriate goal for an international adaptation policy.

The challenge for the realization of this doctrine is enforcement. How could policy makers assure that countries’ funding commitments will be treated more seriously than the 0.7 GNI target? Human rights institutions hold some promise. The Optional Protocol to the ICESCR could be used to create greater accountability for states in funding adaptation. Individuals and other states would have a mechanism for making complaints, and states would have to stand before a treaty body to explain their level of compliance and receive criticism.

During the UN Human Rights Council Panel Discussion on the relationship between climate change and human rights, delegates representing Costa Rica, the Philippines, Bangladesh, and the Maldives called for the creation of a special procedure on climate change to hold states accountable for fulfilling their obligations related to climate change under human rights law.[63] Mauritius, Maldives, and the Philippines made the further suggestion that a new standard be established to define the relationship between rights and the environment and entitlements and duties in an increasingly interdependent world.[64] To further encourage compliance, the UNFCCC could also make participation in climate negotiations and programs conditional on a state’s fulfillment of its obligations to fund adaptation. For example, states that have not met their funding target can be excluded from participating in the Clean Development Mechanism (CDM). The CDM is one of the flexibility mechanisms established to help developed countries meet their emissions-reduction commitments at the lowest possible cost by counting clean energy projects carried out in developing countries toward their national quotas.[65] Without access to the CDM, developed countries would have to meet their emissions-reduction targets domestically at higher costs, thus providing an incentive to fund adaptation.

Even these measures, however, are inadequate to compel every powerful state to provide mitigation and adaptation assistance. Monitoring and reporting by human rights bodies would create pressure for compliance, as would criticism from the rest of the international community on the basis of human rights standards. Additionally, barring participation in the CDM would be costly for states. However, none of these measures have the power to compel states to provide more adaptation assistance. Therefore, we must conclude that there may exist powerful countries that choose not to comply, as they may not fear retaliation or costs. Salomon’s doctrine of universal basic rights is the principle needed if the human rights regime is to advocate for adequate adaptation assistance. However, to be realized, it would need to be embraced by powerful states, in addition to the human rights regime.

The problem of enforcement aside, Salomon’s stronger standards for international cooperation may offer insight into the future of human rights norms, if UN human rights organizations cooperate and succeed. There are substantial theoretical and political challenges to the effective involvement of the human rights regime in the creation of climate policy. The extent to which the climate regime makes assertions about the duties of wealthy states in addressing global warming and extreme poverty may teach us both how human rights standards are established and their future role in global affairs.

Conclusion: The Challenges of Implementation

Overall, UN human rights organizations are not advocating as forcefully as is necessary in favor of extensive international assistance in funding climate change adaptation. This should not, in truth, come as a surprise: asserting such responsibilities would be a dramatic step for rights organizations. Taking that step might mean weakening the global consensus around human rights and making donor states like the United States less willing to cooperate with UN human rights initiatives. Attempts to enforce international obligations related to climate change would also commit rights bodies to an array of new monitoring and oversight challenges, which would likely prove very resource-intensive.

It is more surprising that large emitters should publicly dispute the claim that there is a relationship between climate change and human rights, given that UN human rights bodies have so little ability to enforce standards of behavior. Without a dramatic political reversal on the part of the United States, Canada, and other large emitters like China and Russia, enforcing adequate contributions to an adaptation fund appears impossible. Why then the resistance to the very idea of a direct relationship between climate change and human rights? Farer and Gaer raise the same question in relation to the efforts of many governments to limit the growth of human rights norms in general: why stand in the way of an idea if it’s not enforceable? They argue that national governments must feel some fear of the impact of the idea of human rights upon their people. “By their acts they have acknowledged the influence of the idea of human rights has acquired over the minds of their subjects,” they write. “Hypocrisy continues to offer credible evidence of the possibility of virtue.”[66] The behavior of the United States in relation to UNFCCC climate talks is consistent with this hypothesis. The United States government has taken pains to blame China and other rapidly developing states for the failure to reach a global deal, rather than acknowledge its own rejection of obligatory emissions reductions. Were the United States to acknowledge the direct link between climate change and human rights, American popular opinion might change. The outrageously evasive rhetoric of the United States government in relation to human rights and climate change reflects fear of disapproval, or even resistance, from their own people.

Grassroots resistance to irresponsible climate policy in developed countries is growing, but it is doing so too slowly. In the United States, the presently weak economy and the struggle to make ends meet has led many people to act as if there were no climate change, and politicians have distanced themselves from environmental commitments that might hinder economic growth. Over the next few years, the financial crisis in Europe may similarly degrade the EU’s commitment to strong climate policy. The truth is that this is a difficult moment for many industrialized countries to slash their emissions. It is a catastrophe for human rights that in this increasingly globalized world, basic rights in some regions rely heavily on actions taken halfway across the world, and yet vulnerable nations have very little ability to confront those who are undermining the welfare of their people. If human rights are to be realized everywhere, the law must evolve to create stronger and more enforceable international obligations, and civil society must mobilize to compel their governments to heed that law. Without that change, human rights law will become ever more irrelevant for the emergent global threats to basic rights.

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