Protecting Human Rights During the Climate Crisis

This blogpost was inspired by a question that arose in an international climate case concerning emissions reductions obligations under human rights law. During the oral proceedings of KlimaSeniorinnen and Others v. Switzerland before the Grand Chamber of the European Court of Human Rights (ECtHR), Judge Georges Ravarani asked,

‘[c]an the applicants imagine interactive measures more targeted than the ones asked, which are very general and global, in order to remedy their complaints?’

The applicants in this case sought a general measures order from the ECtHR requiring the Swiss government to undertake more ambitious mitigation action in response to the climate crisis. In response to the question from Judge Ravarani, the counsel for the applicant said that it would be difficult for the ECtHR to drill down to a more detailed or precise figure of emissions reductions expected from the Swiss government. The applicants’ position was thus that the Court should order that the respondent to limit their emissions within a range that represents its fair share of emissions reductions (estimated based on research by Climate Action Tracker and Rajamani et al.). This answer by the counsel responds to a different question than that posed by the judge. The counsel seemed to have confused the judge’s use of the word ‘targeted’ for precise. What Judge Ravarani was interested in knowing, was whether the applicants’ alleged violations could be remedied through local adaptation measures instead of mitigation measures. In other words, the question concerns whether a state’s obligations under international human rights law in the wake of the climate crisis are satisfied through the implementation of measures for local adaptation rather than (global) mitigation. This blogpost provides a negative answer to this question and explains the reasons for the same.

The Dilemma: To Mitigate or Adapt?

Mitigation means reducing the sources of greenhouse gas emissions and removing greenhouse gases from the atmosphere. Adaptation, in simple terms, means taking other steps that will reduce or eliminate the brunt of the impacts of climate change, e.g. enhancing healthcare infrastructure to deal with climate change related health risks, or constructing sea walls to fight sea level rise (IPCC, AR5 Glossary). Mitigation and adaptation are regarded as policy substitutesand only a limited number of examples exist of measures that fall within both categories. It is safe to say that the two kinds of actions compete for resources in most cases. Henry Shue exemplifies the trade-off between mitigation and adaptation in the following manner:

[S]uppose that in the end more of Shanghai could be saved from the actual eventual rise in sea level due to global warming if China simply began work immediately on an elaborate and massive, Dutch-style system of sea walls, dikes, canals, and sophisticated floodgates—a kind of Great Sea Wall of China—rather than spending its severely constrained resources on, say, purification technologies for its new coal-fueled electricity-generating plants (…). From a strictly Chinese point of view, the Great Sea Wall might be preferable even if China’s refusal to contribute to the prevention efforts resulted in a higher sea level at Shanghai than would result if the Chinese did cooperate with prevention (…). (Shue, p. 205)

Local vs Global Measures Under International Human Rights Law

Arguably, a territorial interpretation of international human rights treaties, which limits the obligations of parties to individuals within their ‘jurisdiction,’ would support a stance that prioritizes adaptation over mitigation (Raible, p.53). This is because the benefits of the latter will be diffused across the globe and those of the former will benefit the local population the most.

However, one can rebut this by citing the conclusions of the Child Rights Committee in  Sacchi et al.. The Committee was of the view that the human rights obligations implicated by climate change, are owed to all individuals affected by climate change so long as there is a causal link between activities within states’ control contributing towards the problem and the harm suffered by the concerned individuals (para.10.7). The Committee reiterated this view in its recent General Comment No. 26 on children’s rights, the environment and climate change (para. 84). This is an expansive interpretation of who falls within a states’ jurisdiction and consequently, is owed obligations under international human rights law. This must be read together with the importance that human rights treaty bodies place on the notion that priority must be given to vulnerable, disadvantaged, or marginalized groups or persons in the realization of human rights (Nishimura, p.118, e.g. here at para. 23, here at para. 16 and here at para. 40).  Based on this, state policy that prizes local adaptation to the detriment of global mitigation action and meaningful cooperation with vulnerable countries in enhancing adaptation runs counter to the objectives of international human rights law.

However, this is not particularly helpful when the quandary is about whether a state’s failure to take sufficient mitigation measures can be said to have created local victims of human rights violations. Arguably, its failure to take local protective measures could be framed as a more proximate contributor to their victim status. In the Torres Strait Islanders case, the Human Rights Committee found that Australia had violated the islanders’ rights under Articles 17 and 27 of the International Covenant on Civil and Political Rights (ICCPR) on account of the government’s lackadaisical approach towards constructing sea walls and taking other adaptation measures (para. 8.12). The decision was controversial (among other reasons) because the complainants had claimed that the violations resulted from the government’s failures in relation to both mitigation and adaptation measures, but the Committee did not address the former. Thus, the committee missed an opportunity to shed some light on the mitigation-adaptation dilemma. This does not mean that there is no international obligation to reduce emissions following from international human rights law. The Intergovernmental Panel on Climate Change (IPCC) has noted that a strategy that pursues adaptation in opposition to, rather than complementary to mitigation, is harmful because of our planet’s biophysical limits. That is, after a certain point of change in the world’s climate, the pursuit of adaption will be futile. At the very least, what can be concluded based on this information is that limiting the content of climate-related human rights obligations to local adaptation actions is a myopic view. Should the ECtHR choose to limit its inquiry and potentially, its general measures order in KlimaSeniorinnen to Switzerland’s adaptation action, it would be calling for treating a fracture with a band-aid instead of a cast.

The Balance Between Mitigation and Adaptation

However, reviewing decisions of individual states on how mitigation and local adaptation efforts need to be balanced requires further consideration of the relevant rules international law. Whilst being sensitive to the urgency of adaptation for vulnerable countries and the need for developed countries to provide support in that respect, international climate change treaties clearly emphasize mitigation obligations as more important. This is because their purpose is not to set out a normative framework for responding to climate change, but rather for the prevention of ‘dangerous anthropogenic interference with the climate system’ (Article 2, UNFCCC). The Paris Agreement (PA) sets a global temperature target and a collective net-zero goal with the expectation that parties will align their individual commitments to meet these goals (Articles 2.1 and 4.1). However, it leaves the answer to the dilemma between mitigation and adaptation for each party to the Paris Agreement to determine on its own.

International law can, at best, only provide a direction but not a solution. Rajamani et al. have argued that the mitigation target that each state ought to align its conduct with, based on a systemic application of different international law norms (expressed in terms of a national ‘fair share’ range) can be ascertained (pp. 992-994). Similarly, as to the balancing of mitigation and local adaptation efforts, each state must arrive at a solution, (a) taking into account the ‘based on the best available science’ (preamble para. 4, Articles 4.1 and 7.5, PA); and (b) adopting a systemic approach (i.e. considering a broader range of norms than merely those found in international human rights law). States must consider how the balance between mitigation and adaptation in their climate action strategy comports with the international environmental law principles of precaution and inter-generational equity. These principles require states to be critical and cautious in the face of uncertain risks associated with rising temperatures. These, as well as risks associated with the rising frequency and severity of climate-induced adverse events, cannot be abated without mitigation. Interests that are far broader than the immediate protection of the local population, such as the long-term benefits of mitigation as compared to adaptation, and the ability of the state to affect the well-being of individuals residing in other states through its climate policies, ought to be duly considered. Finally, considering the general principle of good faith in pursuance of international obligations related to climate change, states cannot justify an environmental and social impact assessment that starts from a presumption that all other states will behave like ‘free riders’ and prioritise adaptation over mitigation. Even if international law can only provide a direction, the normative requirements are so strong that an egoistic prioritisation of adaptation measures over mitigation clearly runs counter to the standard of conduct expected under international law.