A Multi-Dimensional Approach to the Climate Crisis
2nd July 2020
Human rights are a powerful tool and provide strong language to tackle the climate crisis. This can be seen in climate case Ireland. Our constitutional rights and the European convention on human rights are being used in this case to challenge Ireland’s national mitigation plan 2017. Climate cases worldwide have had symbolic value and created developments and clarifications in their own countries in several jurisdictions. Although national litigation has a role to play, it is limited in scope. In order to have a strategy effective overall to climate change, a multi-dimensional approach is also needed. We need to examine the limitations that human rights law has in its current formulation. Without being aware of these limitations we are in murky waters where the results of our efforts could be futile in the long term.
There are several criticisms of the human rights approach to the climate crisis. I will outline two: the limitations are useful in creative thinking of how else climate change can be dealt with, while complementing the human rights paradigm.
The first criticism is that there is an anthropocentric bias in climate strategies. This means that international human rights law is too focused on the individual. Climate cases argue that people’s rights will be affected if the climate is to degrade. This does not take the whole eco-system degradation into account. Thus the approach does not take into account the vulnerability of the eco-systems as a whole and the dependence that we have on the earth. Thus it is argued that human rights cannot respond efficiently to the demands and reality of the earth itself.
Academics such as Kotzé have argued for a re-imagining of vulnerability theory in order to protect not only the individual but the environment itself. The author takes Fineman’s vulnerability theory which seeks to re-imagine the vulnerable subject as one who is universally created by social and political decisions. Kotzé argues that vulnerability should not be detached from environmental factors as our dependence on the earth makes us vulnerable. He states that using this theory will open space, much more than the current human rights paradigm, for a focus on the earth’s eco-system in a more comprehensive manner.
“The first criticism is that there is an anthropocentric bias in climate strategies. This means that international human rights law is too focused on the individual”
There is also a movement of giving legal personality to nature. Legal personality means to be capable of having rights and obligations. This provides rights for the resource itself. The idea of nature having legal personality was first written about in 1972 in the book “Should trees have standing”. In the book Stone argues that environmental interests should be recognized separately from human interests and thus nature should have legal standing. It is important to remember here that many other non-human entities have standing. For example, Companies have legal personality, so why shouldn’t nature?
One recent example of this is the Whanganui River in New Zealand which has been declared to be a legal person. The river is one of New Zealand’s most important natural resources and the Maori tribe had been fighting for more than 140 years to get legal protection for the river. Based on this precedent other areas of New Zealand have also been declared to be legal persons. The river has rights and obligations. Two guardians have been appointed to act on behalf of the river- one from the crown and one from the tribe which traditionally use the river. This creates space for the river to be protected as an entity in itself, rather than being protected only when individuals are affected.
This approach creates an alternative to the assumption that people have sovereignty over nature. The Paris agreement recognizes ecosystem integrity and has been argued to have a faint acknowledgement of this discourse. This argument creates an alternative to the individual-centric nature of the human rights approach.
The second criticism is the state-centric focus of international human rights law. Corporations have been left out of the equation. International human rights law is not directly applicable to corporations. This is problematic when fossil fuel corporations have accounted for 91% of the global industrial greenhouse emissions and 70% of all human-made emissions. An upheaval of the economic system is needed. There is a lack of political will to do so at this moment in time.
One asks- is there an international legal framework for business and human rights? The UN guiding principles on business and human rights are the core instrument at the international level. Although the instrument is powerful is is soft law and thus not binding. This means that corporations are not bound by it. Corporations themselves have begun initiatives, however many of them include self-reporting and are voluntary. Some of the biggest players in industries can opt-out of these initiatives. Thus there is a lack of direct obligations placed on corporations. There is a discussion now about a treaty on business and human rights, however, if it is an overarching treaty I believe it will not be supported by states and businesses alike due to their economic interests.
The human rights approach does not seem to be capable of tackling the way in which the global economy operates. Without confronting this, it may not be possible to bring about the system change required. However, in tackling this, specific treaties for particular industries should be focused on. This would allow one to focus and regulate the industries which cause the most emissions and damage. It is doubtful, especially in this economy that this will happen.
Featured photo by ANGELA BENITO