Groningen Journal of International Law

International Law Under Construction

The Missing Human Rights Nexus in Climate Change Governance

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Aisha Binte Abdur Rob \ aisha.rob@bracu.ac.bd

I.  Introduction

There is increasing recognition of the human costs of climate change as cumulating evidence is solidifying the links between, for instance, rising global temperatures and destroyed livelihoods. The adverse impacts on health, food, housing and other fundamental human needs are now manifest. However, despite their obvious human rights implications, these concerns have only recently begun to be effectively articulated in the language of human rights. The past decade’s robust human rights scholarship and activism have successfully raised human rights onto the climate change agenda, such that the links between climate change and the rights to health, food and housing, among others, are now widely known. Nevertheless, human rights remain relatively peripheral in efforts to counter climate change. Indeed, it has been argued that human rights can only offer scant contribution to the climate movement, given their limited capacity to deliver systemic and structural change, particularly in a context as intricately entangled in political and scientific complexities as climate change.

Against this backdrop, this post presents a conception of human rights which can usefully contribute to the climate movement. It is argued that human rights comprise guiding norms for rights-based State administration that may hold promise for diminishing the human costs of climate change. The next section offers a critical survey of the current human rights approaches to addressing climate change. The third section explains how human rights norms offer a blueprint for State institutions in climate change governance. The case of Bangladesh is then studied as an illustration of a climate change governance framework that evinces the consequences of a missing human rights foundation. The final section concludes the post with a brief consideration of the future possibilities.

II. Limits of Current Human Rights Approaches to Climate Change

There are three principal ways that human rights have sought to influence the climate change agenda. The first is by disseminating evidence on the human rights impact of climate change. Thus, the Alston report, earlier this year, caused massive uproar with its prediction of a climate apartheid and most recently, the Safe Climate Report has underscored State obligations to mitigate the effects of climate change on human life and ensure greater human adaptivity. Such initiatives can catalyze adaptative measures that reduce the hardships of those most vulnerable to climate change. However, one observes no special gain made by casting these issues in human rights terms, as opposed to, for instance, humanitarian ones, vis-à-vis elevating the interests of vulnerable persons on the agenda for combatting climate change.

A second more systematic approach is the utilization of the UN human rights machinery in the international arena, whether in the use of complaints’ procedures under Convention Protocols, or the making of concluding observations by treaty monitoring bodies. Such initiatives rely on the standard “naming and shaming” strategy in human rights advocacy which explicitly identifies human rights violations, thereby applying political pressure on violators to take remedial steps. This reactive approach to address climate change also fails to constructively prevent adverse human rights impacts of climate change.

Finally, strategic human rights litigation is perhaps the most potent human rights approach to climate change. Indeed, one may observe an increase of human rights lawsuits being filed in order to address climate wrongs. However, there are limits to what can be achieved by litigation. Firstly, human rights litigation takes a “violations approach” to assessing claims i.e. it seeks clear evidence of a causal link between the purportedly violative conduct and the non-fulfilment of the human right in question. However, given the political and scientific complexity of attributing causes in climate change, legal claims to vindicate human rights in this context cannot easily be sustained. Moreover, the litigative nature of reasoning is limited to addressing narrowly framed issues and thus, cannot address the broader systemic and structural causes of human rights’ non-fulfilment, especially in the climate change crisis which is a global phenomenon, and hence, the responsibilities and harms it entails are not limited by jurisdictions.

As demonstrated through this survey of the prevalent human rights approaches to climate change, there is much politicisation and judicialization of human rights claims, but relatively little exploration of human rights administration. This potential for human rights to institute climate change governance in a form that can fortify rights is now explored.

III. Constitutive Human Rights for Climate Change Governance

Human rights embody specific entitlements such as rights to food, work and housing, and securing the enjoyment of the objects of these rights are central to the prevalent approaches to human rights advocacy for climate change, as outlined above. However, human rights also comprise norms that structure the relationship of the individual right-holder with the body politic and these norms have a distinct potential in climate governance that is underexplored. This constitutive understanding of human rights, as conceptualised by Donnelly, has three components. Firstly, there is a specific bond between the right-bearer and the entity bound to effectuate the right which may entail responsibility, answerability and accountability. Secondly, human rights command precedence over other priorities of the duty-bearer and will normally override contending claims. Finally, human rights recognize the agency of the individual human being. Hence the rights-bearer does not simply benefit from the execution of the corresponding duty but is an active agent in its realization, shaping its terms of fulfilment.

These principles have much to offer in the design of governance institutions in the climate change context. Through the explicit identification of correlative duty-bearers for the human rights of those most vulnerable, it is possible to integrate accountability mechanisms that ensure that institutions are answerable to individuals in terms of progressive action taken for enhancing adaptability to climate change, the environmental impact of policy decisions, etc. Similarly, recognizing the primacy of human rights ensures that alternative State aims, such as maintaining economic growth in the face of climatic disasters, are not sought at the expense of human rights. Finally, upholding the agency of individual human rights-holders can ensure that governance in the climate change context is genuinely based on the inclusion and interests of these individuals, for instance, in developing adaptive livelihood options, reflecting individuals’ priorities and preferences (rather than broader developmental ones).

IV: Tracing the Missing Link: The Case of Bangladesh

In order to illustrate the untapped administrative potential of human rights in the climate change context, it is useful to consider the case of Bangladesh, a State especially vulnerable to climate change. Bangladesh is globally recognized for its array of adaptative measures that mitigate climate change risks and promote resilience as part of an ambitious agenda to “climate-proof” the country. However, although Bangladesh is an ostensible case of success in climate change governance, a closer scrutiny reveals a governance framework that does little to lessen the burden of climate change for those on whom the burden falls heaviest.

There are two key instruments constituting Bangladesh’s climate change governance framework – the National Adaptation Programme of Action (NAPA) and the Bangladesh Climate Change Strategy and Action Plan (BCCSAP). Both instruments approach climate change as an environmental and developmental concern and aim to protect the country from adverse impacts of climate change and maintain stable economic growth.

Firstly, no correlation is established between the human rights of those affected by climate change and the State as the duty-bearer. Despite the paramount danger to human rights posed by climate change,  the framework targets environmental and infrastructural resilience. Thus, one of the most severe and immediate consequences of climate change that seriously jeopardises human rights is climate-induced displacement, and yet, NAPA does not so much as acknowledge it as a governance concern. BCCSAP marks some progress as climate-induced displacement is recognised. However, this is addressed merely as a future risk, indicating the lack of genuine effort to assess the impact of climate change on individuals’ human rights. Moreover, despite the acknowledged need to adopt adaptive measures for climate-induced displacement, BCCSAP offers no programmes to this end.

Moreover, there is lack of responsiveness to the impact of adaptive measures on human rights. Thus, NAPA’s afforestation scheme has inadvertently facilitated elite land-grabbing, leaving approximately half the rural population either completely landless or with inadequate land for crop cultivation. Similarly, the Coastal Development Strategy has exacerbated the plight of those most vulnerable, both through inadvertent facilitation of land-grabbing and poor coordination with cross-cutting planning schemes.

Primacy is manifestly not accorded to human rights as the framework is aimed towards infrastructural and environmental adaptation. Indeed, Bangladesh’s governance scheme has worsened socioeconomic conditions for the vulnerable.For instance, shrimp zone and coastal development policies have entrusted control to private actors, to the detriment of the poor and powerless. Likewise, the failure to address socio-structural aggravators of vulnerability has entrenched gender, class and ethnic hierarchies and has facilitated the exploitation of the vulnerable. Several studies on climate-induced displacement have found that the poorest were forced to sell their valuables to secure basic necessities like water and food.

Finally, the ‘needs’ of vulnerable groups are stated priorities, and this implicit denial of agency translates into decision-making processes that systematically exclude those most directly and severely affected. Moreover, the lack of provisions for governmental oversight over community-level adaptation has aggravated social stratification and rendered the powerless even weaker, marginalising them in adaptation processes for climate change.

V. Conclusion

Human rights have successfully entered the sphere of climate change politics and governance. However, the limits of the present political and legal approaches of human rights in the climate change context are clear. Thus, the structural potential of human rights in the administration of climate change governance offers an important means of lessening the sufferings inflicted by the climate crisis.  In order to realize this underexplored potential of human rights, it is necessary to institute mechanisms for monitoring and evaluating existing administrative frameworks for climate change governance and advocating reforms to governance frameworks based on the structural attributes of human rights. This post sought to draw attention to the lacuna in conceptions of human rights in the climate context but much work is still needed before the case for an administrative conception of human rights can be given concrete form across different cultures and contexts of climate change.

Author pic (isha)
Aisha Binte Abdur Rob is a Research Associate at the Centre for Peace and Justice, BRAC University (Bangladesh). She is currently engaged in a research collaboration between CPJ and the World Faiths Development Dialogue, Georgetown University (USA), which explores the faith dimensions of development. She is also an Adjunct Researcher at the Bangladesh Institute of Peace and Security Studies and a Consultant at the Council of Minorities. Ms. Rob holds an LL. B from the University of London (UK) and an LL.M in Human Rights and Transitional Justice from the Transitional Justice Institute, Ulster University (Northern Ireland, UK). She has participated in various conferences and has publications on a wide range of topics including transitional justice, global governance and sustainable development.

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