John H. Knox
Human Rights Law, Environmental Protection, Civil and Political Rights, Economic, Social and Cultural Rights, Regulate State and Private Conduct, Jurisprudence, Climate Change
This Essay divides the overarching issue—what duties, if any, human rights law imposes with respect to climate change—into three questions. First, what duties has human rights law established with respect to environmental degradation generally? As Part I explains, although only two regional treaties explicitly recognize rights to a healthy or satisfactory environment, human rights bodies have developed an extensive environmental jurisprudence based on already recognized human rights, such as rights to life, health, and property. This jurisprudence takes a two-pronged approach. First, it sets out strict procedural duties, including prior assessment of environmental impacts, access to participation in decision-making, and judicial remedies, which states must follow in deciding how to strike the balance between environmental protection and other societal interests, such as economic development. Second, it defers to the substantive decisions that result from these procedures, as long as the decisions do not result in the reduction of human rights below minimum standards.
The second question, addressed in Part II, asks: how well does this jurisprudence apply to climate change? Although climate change undoubtedly interferes with human rights, any attempt to bring the law of environmental human rights to bear on it faces a formidable obstacle: the jurisprudence construing that law was developed in the context of harm that does not cross an international boundary. In that context, deference to a state’s decision as to how much environmental harm to allow is justifiable because the benefits and the costs of the actions causing the harm are felt within a single polity. If that polity follows procedural safeguards to ensure that all those affected are able to participate fully in the decision-making process, then the resulting decision is entitled to a presumption of legitimacy. But those safeguards do not translate easily to environmental harms such as climate change, which are caused by and affect many different countries. Nevertheless, even in the absence of clear extraterritorial application, human rights law still imposes duties on states to address the internal effects of climate change and constrains their possible responses to it.
The third question, addressed in Part III, asks whether current environmental human rights jurisprudence may extend to address the global threat climate change poses to human rights. Of the potential legal bases for such an extension, this Essay concludes that the best is the duty to cooperate, which requires states to take joint action to promote and protect human rights. This duty requires states to create the equivalent of a single global polity to consider how to respond to the global threat to human rights posed by climate change. The duty to cooperate thus provides a workable basis for the application of the two-pronged environmental human rights jurisprudence to climate change. As long as the international community acts together to adopt decision-making procedures that assess the threat and provide informed access to affected communities, the resulting decisions should receive deference. This deference should not be absolute: even climate agreements that meet these procedural requirements must also satisfy minimum substantive standards for human rights protection.
(2009) 50 Virginia Journal of International Law 163