This is a guest post by Jelena Belic, Lecturer in Political Theory at Leiden University, and Margaretha Wewerinke-Singh, Assistant Professor of Public International Law at Leiden University. It discusses their reflections on the place of human rights in action on climate change following a recent conference they hosted on these issues.
As other means of tackling the problem of climate change, including inter-state negotiations, do not deliver what is needed, there is an increasing turn toward framing the effects of climate change in terms of human rights violations and searching for remedies. But can human rights as we know them deliver what is expected of them? Scholars and practitioners from different disciplines and corners of the world gathered to examine this multi-faceted question during a 2-day conference organized by the newly established research group on human rights and climate change as part of the Global Transformations and Governance Challenges programme at Leiden University.
While the speakers engaged with multiple questions and offered diverse perspectives, they agreed that human rights in their current legal form and the mechanisms that are supposed to protect them need to undergo a significant transformation if they are to serve important purposes in addressing the harms of climate change. Here we would like to note three avenues of the human rights ongoing transformations concerning their normative foundations, content, and the rise of climate litigation.
To begin with, the normative foundations of human rights are often objected to as being inadequate for these rights to serve their purpose in the context of climate change. Human rights are inherently anthropocentric in the sense that they are aimed to protect the fundamental interests of human beings. Some worry that as such, human rights cannot provide sufficient protection to the environment since the prioritization of human interests implies instrumentalization of the environment for the sake of fulfilling those interests. The newest legal developments, however, challenge this understanding as they enable individuals and communities to, for instance, seek the legal protection of the environment that is increasingly perceived as a public good to be protected, rather than a resource to be further exploited. Moreover, the anthropocentric justification is compatible with characterizing environmental degradation as one of the most serious crimes, as the newly proposed legal definition to amend the Rome Statute to recognize the crime of ecocide shows. All of this is not to say that ecocentric challenges to the anthropocentric foundations of human rights necessarily fail. To the contrary, they challenge us to rethink the anthropocentric foundations of human rights and also make a strong case for attempting to reconcile them with ecocentric considerations.
Human rights also face a charge of being too individualistic by virtue of primarily protecting individual interests and as such being unable to account for aggregate environmental harm. Individualism is also bound with short-termism in the sense of protecting the rights of living humans, and therefore, making human rights allegedly unsuitable to address the concerns of intergenerational justice. This concern is not to be taken lightly, but it can be addressed not by giving up on individual rights, but by questioning the dominant interpretation of individual interests as short-term interests of living humans. Indeed, an interpretation of human rights as extending to future generations is gaining ground in legal scholarship and in a growing number of court cases. This progressive interpretation of human rights aligns with many traditions worldwide which recognise and value the intergenerational dimension of human existence in the sense of being connected to one’s ancestors and also transferring valuable skills and knowledge to future generations. Therefore, what is predominantly seen as an individual interest narrowly construed can be interpreted in broader temporal terms to encompass the interests of future generations too.
Another avenue of human rights transformations concerns the progressive interpretation of the existing human rights as well as the emergence of new ones. Namely, one direction of change concerns the trend of “greening” the well-established human rights in the sense of showing how climate change impairs the enjoyment of these rights. This direction can go only so far since, from a legal point of view, such environmental impacts are not always easy to prove, especially if they have not yet materialised. Against this backdrop, there is a parallel trend of recognizing new human rights, with the recent recognition of the right to a clean, healthy and sustainable environment by the UN Human Rights Council constituting a particularly important breakthrough. To what extent this new right actually introduces new normative content is debatable, as the right may be seen as a prerequisite to the enjoyment of other human rights. However, experiences in domestic litigation show that the recognition of the right to a healthy environment can help those seeking to enforce rights for environmental purposes overcome evidential and procedural obstacles.
Finally, the conference reflected on developments regarding climate litigation and the rise of ‘systemic mitigation cases’, which concern the state’s compliance with its self-imposed commitments concerning the mitigation of emissions. When states fail to meet such self-imposed obligations, as most of them do, what is the role of courts? Moreover, the science on climate change shows that the existing commitments do not suffice to ensure that massive human rights violations do not take place. If state legislators fail to take the actions necessary to guarantee human rights in the face of the climate crisis, does this undermine their legitimacy? Do courts have normative standing to challenge such policies, bearing in mind that most judges are not popularly elected? There seems to be room for the judiciary not only to hold governments accountable for failing to comply with their self-imposed commitments, but also to make sure that such commitments are made in a procedurally appropriate way. Another, more general issue concerns whether readjustment of the human rights framework in the context of climate change is compatible with a growing tendency of weakening state institutions in the context of global transformations whereby economic forces often take over the institutional ones. Can human rights be as robust as we may want them to be if the state institutions are getting weaker? What is the added value of normative developments towards responsibilities of private actors to respect human rights in this context?
The rich discussion at this first inaugural conference revealed many conceptual and practical questions that merit further interdisciplinary exchange. Broadly speaking, however, diverse views converged around the evident potential for the conceptual redefinition and progressive legal interpretation of human rights so that they can serve an important role in addressing the urgent problem of climate change.