CLIMATE CHANGE AND HUMAN RIGHTS
COP has yet to establish any clear mandate for countries, climate finance mechanisms, or other entities to ensure
access to a grievance mechanism for those who are harmed by the impacts of or responses to climate change.
(b) Substantive Obligations
Both the ICESCR and ICCPR contain substantive rights, such as the rights to life, health, and an adequate standard
of living, accompanied by a combination of: (i) negative obligations for states to refrain from taking action that
would interfere with rights, (i.e., a duty to respect rights); and (ii) positive obligations for states to protect and fulfill
rights.112 As noted by the UN General Assembly:
“Each state has a prime responsibility and duty to protect, promote and implement all human rights and
fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions
necessary in the social, economic, political, and other fields, as well as the legal guarantees required to
ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy
all those rights and freedoms in practice.”113
Based on these obligations, the CESCR, regional courts, and UN special rapporteurs have concluded that states have
a general duty to “adopt legal and institutional frameworks that protect against, and respond to, environmental
harm that may or does interfere with the enjoyment of human rights.”114 The framework must ensure that the
state will respect human rights in all of its activities and decisions, and include protections to prevent third parties
from creating environmental harms that interfere with the exercise of human rights.115 In addition, the European
Court of Human Rights (ECtHR) has held that states must also take reasonable measures to protect citizens against
the reasonably foreseeable effects of natural disasters.116
The adverse impacts of climate change clearly qualify as “environmental harms” that can interfere with the exercise
of human rights. Thus, states must enact legal and institutional frameworks to protect against and respond to those
impacts. More specifically, there are at least five types of obligations that may arise in this context: (1) adaptation
obligations, requiring states to enact frameworks for protecting people against the effects of climate change;
(2) domestic mitigation obligations, requiring states to regulate the sources of GHG emissions; (3) international
cooperation obligations, requiring states to participate in international negotiations for an effective global climate
agreement; (4) transboundary mitigation obligations, requiring states to mitigate the effect of their activities on
the human rights of persons outside of their jurisdiction; and (5) an obligation to ensure that mitigation and
adaptation activities do not themselves contribute to human rights violations.
There are at least three overarching principles which apply to all of these obligations. First, states are “obliged to
take measures towards the full realization of economic, social, and cultural rights to the maximum extent of their
available resources.”117 This means that states “must take deliberate, concrete and targeted measures, making
the most efficient use of available resources, to move as expeditiously and effectively as possible towards the full
realization of rights.”118
112 Regarding implementation, the ICESCR specifies that each party shall “take steps, individually and through international assistance and cooperation…
to the maximum of its available resources, with a view to progressively achieving the full realization of” the rights contained therein. ICESCR Art. 2.
The ICCPR contains slightly different language, requiring each party to “respect and to ensure to all individuals within its territory and subject to its
jurisdiction” the rights recognized therein, and to “take the necessary steps…to adopt such laws or other measures as may be necessary to give effect” to
those rights. ICCPR Art. 2, pp. (1)-(2). Based on this language, the treaty bodies have concluded that both agreements contain a combination of positive
and negative obligations. HR Committee General Comment No. 31, pp. 5-7, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004); HRC General Comment No. 6, pp.
1, 5, UN Doc. HRI/GEN/1/Rev.1 (1994); CESCR General Comment No. 3, pp. 1-2 UN Doc. E/1991/23 (Dec. 14, 1990).
113 G.A. Res. 53/144, Art. 2, p. 1, UN Doc. A/RES/53/144 (March 8, 1999).
114 Mapping Report, supra note 64, at pp. 47 (citing statements from these entities to support this proposition). See, e.g., CESCR, General Comment No. 14,
pp. 4, 15, 36, UN Doc. E/C.12/2000/4 (Aug. 11, 2000) (to achieve full realization of right to health, states must adopt measures to protect citizens from
environmental hazards, and implement policies “aimed at reducing and eliminating pollution of air, water and soil”); Fadeyeva v. Russia, 45 Eur. Ct. H.R.
10 (2005); Öneryildiz v. Turkey, 2004-XII European Court of Human Rights 1, ¶p. 89 (“The positive obligation to take all appropriate steps to safeguard life
for the purposes of Article 2… entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide
effective deterrence against threats to the right to life.”); López Ostra v. Spain, 20 Eur. Ct. H.R. 277 (1994); Tătar v. Romania, App. No. 67021/01, Eur. Ct.
H.R. (Jan. 27, 2009); Ogoniland Case (2011), supra note 95; Hatton and Others v. United Kingdom, 37 Eur. Ct. H.R. 28, ¶ 98 (2003). See also GabcíkovoNagymaros (Hungary v. Slovakia), 1997 I.C.J. 7 (Sept. 25) (separate opinion of Judge Weeramantry) (describing the protection of the environment as a
“sine qua non for numerous human rights such as the right to health and the right to life itself”).
115 Mapping Report, supra note 64, at pp. 47-6.
116 See, e.g., Budayeva and Others v. Russia, App. Nos. 15339/02, 21155/02, 20058/02, 11673/02 and 1543/02, Eur. Ct. H.R. (March 20, 2008).
117 OHCHR Report (2009), supra note 71, at p. 75 (citing CESCR General Comment No. 3, pp. 1-2).
118 Id. at p. 76 (citing CESCR General comments No. 3 and No. 14).
T H E O B L I G AT I O N S O F G O V E R N M E N T S A N D P R I VAT E A C T O R S T O R E S P O N D T O T H E H U M A N
R I G H T S I M P L I C AT I O N S O F C L I M AT E C H A N G E
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