By Elisa Morgera, UN Special Rapporteur on Climate Change and Human Rights

The historic advisory opinion of the International Tribunal for the Law of the Sea (ITLOS) on States’ climate change obligations should be remembered, first and foremost, for a crucial legal clarification. Climate action that may be in compliance with the Paris Agreement on climate change does not exempt States from complying with obligations to mitigate and adapt to climate change under other international treaties. In other words, even if climate action may be considered sufficient under the Paris Agreement, it may be inadequate if, because of its limited ambition or ineffectiveness, it undermines the objectives and obligations under the law of the sea.

The same can be said for international human rights treaties. Insufficient or ineffective climate action, even if it is considered in compliance with the Paris Agreement, does not shield States from the international responsibility that arises from breaching their international human rights obligations. This legal clarification is crucial in the face of the mounting evidence of the impacts on climate change on human rights.

What have we learnt about the impacts of climate change on human rights?

Over the years, several UN human rights bodies and experts have documented widespread and severe negative impacts on human rights linked to climate change that would have been unimaginable at the time of the adoption of the UNFCCC. They also turned out to be much more severe and widespread than expected at the time of the adoption of the Paris Agreement.

There is growing evidence of severe negative impacts on the human rights of Indigenous Peoples, peasants and small-scale fishers, People of African Descent, women and girls, children, youth, older persons, persons with disabilities, persons with albinism, persons in poverty, and frontline communities in small island developing States (SIDS), internally displaced persons and migrants, and others that are vulnerable to climate change. These negative impacts can amount to a violation of the rights to life, food, health, education, housing, water, sanitation, work, as well as cultural rights and the right to a clean, healthy, and sustainable environment – within and beyond a State’s boundaries. These impacts are also compounded by and intensify human trafficking, violence against women and girls, and modern forms of slavery.

In addition, with more climate-induced human mobility (migration as well as internal displacement and planned relocation), the negative impacts of climate change are compounded with racism and other forms of discrimination. This mounting body of evidence on climate-related human rights impacts is harrowing. It must now be considered an essential component of the evidence base for climate change decision making. These once unexpected human rights impacts are now foreseeable and preventable. States are thus duty-bound to protect human rights from foreseeable harm when such harm can be attributed to their conduct. They must also prevent further negative impacts on human rights. To that end, they must effectively regulate and monitor business entities that may be involved in these violations, including in the context of the just transition.

What are we learning about the negative human rights impacts of certain climate solutions?

Human rights are not only negatively impacted by climate change itself. They are also impacted by some climate change response measures and just transition initiatives, such as climate technologies, carbon markets, the search for critical minerals, or large-scale renewable projects that harm biodiversity, freshwater, and the ocean, destroy cultural heritage, displace people, and release toxic substances. Because of these negative impacts, climate solutions are also ineffective in achieving their intended climate mitigation and adaptation objectives, when one takes into account the destruction of nature’s contribution to climate regulation, and of culture that supports people’s resilience. In many instances, these climate response measures constitute yet another wave of violations of Indigenous Peoples’ human rights, replicating violation patterns they have experienced for generations.

These missed connections in climate action have also been underscored by ITLOS. In addition to considering greenhouse gas (GHG) emissions from every source as a form of marine pollution, the Tribunal discussed how the protection and restoration of marine biodiversity contributes to mitigation and adaptation. This is something that the 196 parties to the Convention on Biological Diversity (CBD) have already committed to. CBD parties have been developing progressively extensive guidance on how the ecosystem and precautionary approaches and underlying CBD obligations need to apply to climate change mitigation and adaptation since 2010. But so far, these recommendations do not seem to have significantly shaped priority actions under the Paris Agreement.

This is even more clearly the case in relation to geoengineering, which was subjected to a moratorium under the CBD already in 2010. More recently, international human rights processes have underscored the severe human rights concerns arising from these technologies. ITLOS indicated that geoengineering is not lawful under the UN Convention on the Law of the Sea (UNCLOS) when it transforms one type of pollution into another and is incompatible with the obligation to take all measures to prevent, reduce, and control marine pollution resulting from the use of technologies under States’ jurisdiction or control. In addition, I have clarified that based on the ITLOS advisory opinion, geoengineering should also be considered contrary to the Convention when it is incompatible with States’ obligations related to the protection of marine biodiversity for the purposes of climate change mitigation and adaptation, given that harm to ecosystems negatively affects the enjoyment of human rights.

The call for reparations

The public hearings of the Inter-American Court of Human Rights (IACtHR) in Barbados, and Brasilia and Manaus in Brazil already offer a formidable sense of how vast and deep are the climate-related human rights impacts experienced over a decade in the Latin American and Caribbean (LAC) region. These include the negative impacts of internationally funded climate projects and the continued insufficiency of climate finance to help people adapt to climate change.

As already highlighted above, this evidence should be carefully analyzed by all States to ensure prevention of further, foreseeable negative impacts on human rights. This evidence may also trigger other international human rights obligation – the obligation to provide effective remedies to the harm that has and continues to be caused.

As stressed by the UN Secretary-General, countries that benefited the least from the Industrial Revolution have been left without the support necessary to protect their people and environments. Poverty exacerbates such risks, compelling work even in unsafe temperatures leading to loss of life. In addition, globally, historical emissions leading to modern climate change are interlinked with exploitative economic models, legacies of colonialism, and structural racism. Inequities within States further deepen risks, leading, for example, to higher mortality of people in poverty and unsafe housing in the context of floods, both in developed and developing countries.

While the impacts of inequality on mortality and other massive human rights impacts of climate change are now felt everywhere, in the case of the Global South it should be understood in the context of crippling foreign debt, which is not paused during times of climate-related crisis. That should lead us to question the use of loans instead of grants in climate finance, including the Loss and Damage Fund, which keeps most affected countries in a loop of financial inability to recover and protect their populations.

Conservative estimates of the annual economic cost of loss and damage in developing countries amount to USD 435 billion in 2020, and are expected to rise to USD 580 billion by 2030, excluding non-economic losses and damages. There is, therefore, widespread concern among countries in the Global North that these figures will be used in the potential international recognition of the obligation of compensation through the two pending advisory opinions by the IACtHR and the International Court of Justice (ICJ). Countries could be held accountable for failing to regulate and control the 78 fossil fuels and cement producers that have contributed to over 70% of global emissions since the Industrial Revolution. Many of these companies have undertaken extensive efforts to mislead the public and investors about their knowledge of the global warming effects of their products and to undermine, obstruct, and delay climate action, policies, and legislation.

The pushback against expectations of financial compensation is evident in the UN climate process where the Loss and Damage Fund specifically excludes liability or compensation. On the other hand, local and international human rights efforts show that climate finance is being used for climate action that leads to a whole separate series of human rights violations, on top of the negative impacts of climate change itself. Therefore, the question of the quantity of international finance, of whatever nature, and of its quality (its priorities, recipients, impacts, transparency, and accountability) should be urgently and constructively looked at from an international human rights law perspective, both for the purpose of ensuring effectiveness of climate action and to ensure prevention and remediation of negative human rights impacts.

A broader range of remedies

As discussed in another blog post in this series, the range of possible consequences arising from the violation of international obligations related to climate change – under international climate change law, but also other areas of international environmental law – is wider than financial compensation. International human rights law provides further clarifications of the consequences of such violations, namely obligations arising from the right to remedy. These legal obligations are understood to arise from human rights violations linked to loss and damage by the UN Secretary-General, the Committee on the Rights of the Child, and the UN Special Rapporteur on the Right to Development, among others. As mentioned above, there are also negative human rights impacts arising from climate change adaptation and mitigation action, as well as just transition activities, that should also be effectively remedied.

Under international human rights law, reparations include restitution, compensation and rehabilitation, satisfaction, and guarantees of non-repetition. One remedy that has not received sufficient attention is the guarantees of non-repetition. One of the most crucial contributions of human rights experts in the context of climate change has been to document when climate action has “gone wrong” on the basis of lived experiences of those who have already suffered the most severe human rights impacts. This evidence base now allows to clearly identify what mistakes should not be repeated to prevent foreseeable harm and thus constitute the necessary guarantees of non-repetition. In other words, engaging with the identification of guarantees of non-repetition provides a potentially transformative opportunity to “take a step back,” reassess the dominant directions of climate action, and co-develop new directions for national and international action that draw on the learning arising from human rights violations experienced.

Human rights evidence can help to identify climate action that ensures protection of human rights and co-benefits in terms of other environmental objectives and delivery of the SDGs. Such action should be prioritized, possibly also as a form of rehabilitation. Interestingly, such a remedy would imply prioritizing compliance with pre-existing obligations of States under other international environmental treaties. These obligations relate to conservation and sustainable use of biodiversity in the context of agriculture, fisheries, infrastructure, ecosystem restoration, safe chemicals management, and protection of the marine environment. This should be coupled with an immediate phase out of fossil fuel production, which appears necessary on the basis of obligations to protect everyone’s human rights in the context of the multiple planetary crisis, and is an essential guarantee of non-repetition.

The engagement with the right to remedy under international human rights law calls for a re-evaluation of the priorities and modalities that have been dominating action on climate change so far but have not helped prevent loss and damage despite all the mitigation and adaptation efforts. Instead, climate action should be reoriented towards prioritizing solutions that make sense for, are co-developed with, and are led by frontline communities, moving away from the current focus on “social acceptability” of top-down solutions.

It is of note that international human rights experts caution against overreliance on the private sector in this endeavor as this could lead to a scenario in which the wealthy pay to escape climate impacts. Rather, there is a need to value and engage with the lived experiences of frontline communities and individuals who should be guaranteed inclusive, safe, informed, and meaningful participation in identifying the most meaningful remedies. Unfortunately, the conditions for co-development and its promises of transformation seem antithetical, at the moment, to the shrinking civic space experience in the international climate system and the increasing vilification, repression, and lethal attacks against climate and environmental human rights defenders at the national level.

Transitional justice to support transformation

Whether the pending advisory opinions and other diplomatic efforts will lead us to a place where there can be openness to fulfil the right to effective remedies, we cannot expect the dialogue between the Global North and the Global South to be any easier than it has been so far. For that reason, the UN Secretary-General has proposed to engage in a transitional justice process to help societies “come to terms with a legacy of large-scale past abuses, to ensure accountability, serve justice, and achieve reconciliation through truth seeking and guarantees of non-repetition.”

This process could rely on human rights evidence, tools, and approaches to support an integrated understanding of the root causes of climate change and potential solutions, with a deep understanding of the full extent of loss and damage and the lock-in and barriers for different countries and regions. It could also provide an innovative space for learning from Indigenous Peoples’ knowledge and local knowledge systems, as well as engaging with attribution science and the lived experiences of those whose human rights have been disproportionately affected by climate change. This process could ultimately support the co-development of systemic climate reparations among Global North/Global South States and frontline communities. It could illuminate, through mutual learning, empathy, and imagination, the transformative path towards a safe climate we urgently need for present and future generations.

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This Guest Article is part of a project that seeks to raise awareness and build momentum and knowledge around the ICJ advisory opinion on obligations of States in respect of climate change and to promote a better understanding of the implications of the advisory opinion among sustainable development decision makers.