Is climate change a human rights issue?

24 April 2012 by David Hart KC

In his thought-provoking Guardian post Climate change is a human rights issue – and that’s how we can solve it, Olivier De Schutter, UN Special Rapporteur on the right to food, makes a case for human rights playing a radical new part in our response to climate change.

His argument involves a number of propositions:

(i) global climate talks have reached an impasse;

• yes, indeed, and from today’s perspective, there is no obvious way through that impasse;

(ii) carbon emissions cannot possibly be stalled or reversed until our politicians recognise that continued economic growth is inconsistent with a long-term climate change strategy;

• many would agree that we can spend a bit of time deck-chair re-arranging or limiting increases in emissions, but the time will come when the world economies have to stop growing;

(iii) if that direction is not going to come from our politicians, then

 those political processes are clearly not fit for purpose.

Does this mean that democracy has failed, and must be sacrificed for authoritarian solutions? The solution may in fact be the polar opposite. A system where failing governance procedures are forced to think long-term does not necessarily require anti-democratic “climate tzars”. Instead, this revolution can be hyper-democratic and guided by human rights.

Climate change represents an enormous threat to a whole host of human rights: the right to food, the right to water and sanitation, the right to development. There is therefore huge scope for human rights courts and non-judicial human rights bodies to treat climate change as the immediate threat to human rights that it is. Such bodies could therefore take government policy to task when it is too short-sighted, too unambitious, or too narrowly focused on its own constituents at the expense of those elsewhere. Fossil fuel mining, deforestation, the disturbance of carbon sinks, and the degradation of the oceans are developments that can be blocked on human rights grounds.

Whoa, slow down!

Many of us would not quarrel with the premise that climate change is a threat to our existence, if unchecked, and that one response to that threat can be expressed in rights terms. But how do we get to the position of making such rights enforceable? De Schutter argues that the agent of change is human rights principles. But those principles have to have some democratic backing somewhere.

At a domestic level, the various rights to food or water or development would have to be integrated into our political system. And that involves giving those rights some hard-edged status in our law-making and law-enforcing processes, such that they are capable of taking on and winning against other currently accepted rights or interests, such as the right to own and use property or make money or sell goods or develop land or run companies abroad. Of course any democracy can (and to a certain extent does) place restrictions on those rights. But we would have to find some democratically endorsed way of resolving those conflicts of rights or interests, whether it be a rights judiciary or some other adjudicative body in whom enough of us would place our trust.

The alternative is of course embedding those rights at the international level. But that is not enough by itself without a sufficient number of world states, developing and developed, backing those rights and, more importantly, their enforceability, whether in a supra-national or national context. And if there is grid-lock about the, let’s face it, fairly innocent set of measures which has been up for debate at the recent international conferences, it is unlikely that a human rights regime with the sort of teeth contemplated by De Schutter will gain much traction at the negotiating table.

The other common theme in a lot of the more radical responses to climate change is that in some way it is just the fault of the multi-nationals chewing up our natural resources to make things or generate energy. But our response has to go a bit deeper than that. Multi-nationals, in destroying or harming things, make things that people want to buy. They create energy which people want to consume. They employ people who spend their income on the products of other multinationals.  And clobbering the multi-national without modifying the demands of the people who buy from the multi-national is only addressing half the problem.

Don’t misunderstand me. I am not gloomy about the processes of international change (e.g. see my recent post on the Erika), or indeed national change, though I think that enough of us will have to have the wits terrified out of us before widespread action of the radical nature advocated in De Schutter’s post can occur. The alternative, I agree, is grim. What concentration of carbon emissions must occur in the atmosphere before the government has to dust off the pre-WWII Defence of the Realm Acts and declare a state of emergency? In 30 years time, will we be rationing water or energy use by the person or the family?  Doing it by the family is of course a scary way of countering population increase, the other agent of increasing emissions.

The difficulty lies in the pretence that there is anything in the law and politics of human rights by themselves that can make a real difference to these massive issues. Enough of the ordinary people in the world have got to support the values encapsulated by those rights when those values clash with other things those people want, like cheap energy or tellies or travel. Or, put it another way, what does De Schutter really mean by the “hyper-democratic” nature of the human rights litigation he contemplates? If it is hyper-democratic, why do we need litigation about it – we can get governmental change about it. Well-placed strategic human rights litigation can of course shift public opinion by the debate which it engenders – but it cannot simply supplant it.

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