DYANTHA BOXUM

In 2008, the United Nations Human Rights Council (UNHRC) adopted Resolution 7/23, for the first time recognizing that climate change poses a threat to the universal enjoyment of human rights. Since its adoption, however, this resolution continues to raise questions about the UNHRC’s functionality in protecting human rights impacted by climate change. This post explores the UNHRC’s ongoing and potential role in this respect.

What has the UNHRC done for climate change?

In 2008, the UNHRC began to actively link human rights and climate change within its mandate, adopting various resolutions on climate change (UNHRC 10/4, 2009; UNHRC 18/22, 2011; UNHRC 32/33, 2016 [draft]). On top of that, other resolutions on human rights and the environment briefly mention climate change (UNHRC 31/8, 2016). As a follow-up to Resolution 7/23, in 2009 the Office of the High Commissioner for Human Rights (OHCHR) compiled a report that elaborated on the legal and practical implications of linking human rights to climate change. Outside the UN, the African Union has adopted resolutions urging states to include human rights in any legal text on climate change in order to create hard legal obligations (OHCHR, 2014).

Limon argues that the UNHRC provided the necessary platform not only for the international community to express its concern that human rights are threatened by climate change, but also for this concern to be formulated and confirmed at the highest level in an official UN resolution (2009: 439-450). The UNHRC has thus been instrumental as a forum for the issue, legitimizing its role in the field of human rights and climate change, even though member states tended to be the initiators and thus agenda-setters. However, the above-mentioned reports and resolutions were also intended to improve practical efforts to secure human rights threatened by climate change. In this regard, the UNHRC has been less successful, even though Resolution 7/23 left no doubt that climate change fell within the UNHRC’s mandate. Wewerinke (2014: 26-28) provides two explanations for the lack of action within UNHRC.

First, the existence of a parallel development on human rights and the environment has diverted attention away from climate change and has led to the appointment of a Special Rapporteur for Human Rights and the Environment. The fact that climate change is only mentioned briefly in the UNHRC’s resolutions on human rights and the environment (e.g. UNHRC 31/8, 2016; UNHRC 28/11, 2015; UNHRC 25/21, 2014; UNHRC 19/10, 2012) supports the view that within the field of environment and human rights not enough attention is paid to climate change. That is why different actors argue for a separate Special Rapporteur on Human Rights and Climate Change, on the basis that climate change is “so serious that it requires special attention” (Wewerinke, 2014: 27). In any case, climate change is an important part of the mandate of the Special Rapporteur for Human Rights and the Environment: he has been involved in panel discussions and engaged with the UN Framework Convention on Climate Change (UNFCCC) (OHCHR). His appointment, therefore, can be seen as a practical improvement. Nevertheless, a Special Rapporteur on Human Rights and Climate Change could be an even more significant contribution to the matter.

Second, Wewerinke points out that the legal implications of bringing climate change under the UNHRC’s mandate interferes with its ability to further the practical efforts to secure human rights threatened by climate change. The 2009 OHCRH report includes efforts to deduce concrete legal obligations from previously established, separate obligations on climate change and human rights. These efforts, however, have been insufficient for the UNHRC to convince states to uphold the establishment of legal obligations (Knox, 2009).

In assessing the role of the UNHRC regarding climate change, it is important to study how its approach includes vulnerable groups. In Resolution 7/23, the UNHRC mentions the poor as the sole vulnerable group. However, in resolutions 10/4, 18/22 and 32/33, further vulnerable groups ‒ defined by factors including gender, indigenous status and disability ‒ are specifically identified in a standard clause. Furthermore, in the most recent resolution (32/33, 2016), special attention is paid to children as a particularly vulnerable group, asking the OHCHR to write a separate report on the impact of climate change on children’s rights. Therefore, after the adoption of Resolution 10/4, specific attention to vulnerable groups has increased, a trend that continues to permeate current resolutions on climate change.

The UNHRC has encouraged the Special Procedures to incorporate climate change in their agenda, a recommendation that several procedures have followed. For instance, the Special Rapporteur on the Right to Food has written a report on the impact of climate change on the Right to Food (A/70/287, 2015). On the other hand, it has incorporated climate change in recent country reports as an “emerging challenge”, thus portraying climate change as a separate, distant threat, instead of mainstreaming it throughout the reports (A/HRC/31/51/Add.2, 2016; A/HRC/31/51/Add.1, 2016). In country reports compiled by the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, climate change is incorporated as well (A/HRC/33/49/Add.1, 2016; A/HRC/33/49/Add.3, 2016). However, in similar reports by the Special Rapporteur on the Human Rights of Migrants, climate change tend not to be mentioned (A/HRC/29/36, 2015; A/HRC/29/36/Add.1, 2015; A/HRC/29/36/Add.2, 2015; A/HRC/29/36/Add.3, 2015). This suggests that the UNHRC has been somewhat successful in introducing climate change into Special Procedures’ reporting, yet it remains far from being a consistent and mainstreamed practice.

At present, climate change is increasingly gaining attention throughout the UNHRC, but has not reached its required level of urgency, because of the parallel development of the field of human rights and the environment and the Council’s inability to lay down legal obligations. That being said, does the UNHRC have the potential to increase its practical efforts in order to ensure human rights threatened by climate change?

The UNHRC’s potential for the future

As a central body in international human rights, the UNHRC inherently invites broad and frequent critique from the human rights community, which can impinge on the effectiveness of its work, including in the area of human rights and climate change. Unfortunately, the UNHRC is criticised for many similar issues as its predecessor, the UN Human Rights Commission.

The main critique concerns its politicization (Freedman, 2011). This is extremely relevant for climate change and human rights, as climate change is a highly politicized issue among member states, which has contributed to a history of inaction. What is needed to spurn pragmatic action is a more independent body that is not affected by politicization, or ‒ more realistically ‒ less affected. To deal with politicization the Universal Periodic Review (UPR) was introduced, as it is based on the premises of universality and equality: every state has to go through the UPR every few years and is expected to cooperate. However, this procedure has not been able to exclude politics from the UNHRC, and the UPR is now criticized for failing to incite the urgency for serious consideration among member states, and it is therefore not conducive to an improved commitment to human rights, reducing the credibility of the Council (Gomez, 2016).

Nonetheless, the International Bar Association advocates for the use of the UPR to draw attention to climate issues by incorporating them in the review (2014: 157). By recognizing the politicized, state-driven nature of the UPR, the Association sees a role for civil society to encourage urgency within member states’ consideration of climate change as a serious threat, by incorporating it in shadow reports. This parallels the potential a Special Rapporteur would have: even though concrete legal obligations to monitor do not yet exist, he/she could investigate human rights threatened by climate change and provide recommendations to states to ensure these human rights, much like the Special Rapporteur on Human Rights and Environment does regarding human rights threatened by environmental issues.

Since climate change is a highly political issue, it will take time to reach a solution. That is why a human rights-based approach to climate change, which is the application of international human rights standards to the issue of climate change, could install an urgency in states by transforming vague government promises into concrete, tangible obligations to protect human rights from climate change (Limon, 2009: 450-456). Applying these standards to climate change would create human rights obligations for states to deal with climate change. Therefore, it is of utmost importance that the exact legal obligations for states that result from combining human rights and climate change are clarified. Wewerinke  suggests that the UNHRC requests another report by the OHCHR (2014: 28). Nevertheless, to increase human rights protection on a relatively short term the UNHRC can improve the use of the tools that are most independent of politics, namely Special Rapporteurs, whose independence means they can also act swifter.

The UNHRC can also improve the UPR to be more depoliticized and thus more effective. Establishing a Special Rapporteur on Human Rights and Climate Change could create a genuine mainstreaming of climate change through its role in reporting, country visits, and advocacy. This would significantly increase the capability of the Council to act globally and purposefully. The UNHRC has played a meaningful role in setting the stage for climate change and human rights to increase global awareness. However, it has not reached yet its full potential to improve practical efforts to ensure human rights protection from the threat of climate change.

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Meet the author

Dyantha Boxum (E.MA 2016/2017) has a master in International Relations and International Organization from the University of Groningen in the Netherlands, in which she specialized in environmental issues. Dyantha’s passion for human rights and the environment has grown through her voluntary work with WWF, Stop Ecocide and Amnesty International as well as her internship at the Wildlife Justice Commission.