Reflections on the Suitability of a Human Rights Approach in the Context of the Climate Change Regime

The different scenarios that the successive reports of the International Panel on the Climate Change have drawn up reveal that human-induced climate change and global warming is one of the most urgent problems that the global society has to address. Over the past few years, as governments realize that the climate change is not just a potential threat in the future, but rather an already ongoing reality that requires response through collective action, it has also become evident that global warming does have a clear impact on the enjoyment of some of the most basic internationally recognized human rights. So far, however, States and international institutions have paid little attention to the potential interaction between international obligations to protect human rights, on the one hand, and the obligations undertaken in the context of the climate change regime, on the other hand. Only in 2008, the UN Human Rights Council commissioned a ‘detailed analytical study on the relationship between climate change and human rights’, which was submitted by the Office of the UN High Commissioner for Human Rights in January 2009. More recently, a thorough study on the international legal dimensions of the relation between human rights and climate change has also been released under the aegis of the World Bank. Drawing on the insights of these studies and the incipient literature on the topic, this paper addresses the question whether –and if so, to what extent– human rights as recognized under widely ratified treaties, such as the International Covenant on Economic, Social and Cultural Rights, may offer a suitable complementary legal basis for international cooperation in the context of mitigation and adaptation measures under the climate change regime. While it is generally recognized that human rights would have the potential of providing a sound moral and philosophical basis for mitigation and adaptation measures that would increase their social acceptance, a major obstacle for a too prominent human rights approach under the climate change regime seems to lie in the deeply divergent rationale in both branches of international law. Be that as it may, even acknowledging the disparity of approaches underlying to these two branches of international law, this paper takes the view that there is room for at least some cross-fertilization between both types of regimes. More specifically, conceived of as thresholds, internationally recognized human rights may very well serve as hermeneutic tools that have the potential to qualify in a significant way the content of the obligations that developed and developing states have undertaken in the framework of the climate change regime. More specifically, the paper addresses how human rights standards may influence the operation of the principles enshrined in article 3 FCCC –namely and foremost, the principles of common but differentiated responsibilities and of precaution– as a way to foster an equitable intra- and inter-generational burden-sharing in the design and implementation of mitigation and adaptation measures. It concludes that, despite playing a modest role in the climate change regime, internationally recognized human rights standards may very well contribute to narrow the discretion of States and international institutions in the normative development and implementation processes of the climate change regime.