Why climate change is about more than human rights

by Joseph Markus

Can human rights be used to combat climate change? Mr De Schutter thinks so.

Again Olivier De Schutter, UN Special Rapporteur on the right to food, has written in the Guardian advocating the use of human rights as a mechanism for tackling climate change.

This relates closely to my earlier piece about the problems of elitism in the context of environmental protection: bringing in human rights would put the professional lawyers in charge of what remains an environmental phenomenon and would take it out of politics entirely. That is not an obviously desirable development.

The more pressing thing to consider, though, is that he’s wrong. That is, human rights, as an idea, are inadequate to overcome the collective action problems that have prevented agreement on a strategy to combat climate change.

To be sure, human rights will have some utility here. They already have helped numerous individuals throughout Africa and South America under the contexts of the African Commission on Human and Peoples’ Rights and the Inter-American human rights structure. Similarly, they have also failed to help individuals in other locations. The struggle, in India, against the Narmada Valley Dam project is a good example where the courts—and legalising the dispute—failed the people who sought to invoke their rights.

This is the first major difficulty. Human rights are plastic standards that can be warped to fit a number of different ideological agendas. The few words that express the right mean very little in themselves. So applying these rights to climate change—a new and difficult situation—is not necessarily going to result in findings against the phenomenon.

Moreover, and second, this hardly presents a consolidated approach towards the issue. To combat climate change through rights will, I would imagine, rely heavily on socio-economic rights. These are the rights to food, housing and health. They are also the sub-set of rights that are widely disputed by Western states. Some see them as aspirational and unenforceable. Others—unfortunately—still see them as remnants of Communism, put into international law to appease the Soviets. The upshot is that Western states that do not have these rights incorporated into their domestic legal fabric are entirely unlikely to be affected. A good example is the European Social Charter, to which the UK is a party. In December 2010 the UK was in breach of 10 of the 13 provisions of that instrument. So even if the Western world is bound by socio-economic rights, there is nothing to force them to comply with those rights within the spectacularly toothless arena of international law.

The majority of states affected will be those of the global South, in particular those countries covered by one of the regional human rights regimes (Africa is the best example). My concern here is that by encouraging a lop-sided approach to climate change—de facto allowing the Western world to continue buying and exploiting resources while regional human rights bodies restrict the same powers of the Rest—we exacerbate precisely the issue at the heart of the collective action problem.

Third, human rights represent a (largely) individualist philosophy for change. Remember that they are rights held by individuals. In fact one of the primary criticisms of human right from the left has been that they enhance atomism within societies. There are, of course, some exceptions to the rule that human rights are rights of individual humans. The African system has incorporated a number of collective rights (hence the treaty name: the African Charter of Human and Peoples’ Rights) and these have been usefully invoked by a number of indigenous communities. But across much of the world, human rights do not mean much more than one person’s rights as against the state.

Their nature renders them unsuitable to a large extent to play a central role in combating climate change. A human right will under-describe the harms at which it is directed. It will not fully capture all the implications of actions at a local and a global level. One particular problem here is that rights only bind the state. Forcing the issue of climate change through the lens of human rights law forces us to re-conceptualise where responsibility lies. On this understanding private actors—including multi-national oil conglomerates—are stripped of agency and responsibility.

And, fundamentally, human rights exist primarily in the court-room. They are deployed by lawyers on behalf of litigants and in front of judges. Each of those individuals is only concerned with the narrow legal issue at stake as it relates to them. The lawyer wants to argue the point persuasively, using the formalistic language of the law. The litigant wants to be free of the thing which forms the core of his case. The judge simply wants to decide the case put to him as efficiently as he can. This does not add up to effective or joined-up environmental decision-making.

Lastly, De Schutter mentions a move towards imposing a duty to cooperate on states. I fear that this will be one of those duties which will collapse, in due course, to mean little to nothing at all. Keep in mind, too, that the problem is not getting states to negotiate, but getting them to agree. A duty to negotiate, under human rights law, is hardly likely to make that happen.

Human rights clearly have some role to play as part of a wider strategy, but this should not be at the expense of other political methods of combating climate change. Politics can take a number of forms—including the UN-based institutional system—but it by no means has been exhausted. In my view outsourcing the protection of our environment to the lawyers is a risky step. It may not work and may cause heightened dysfunction in future negotiations. We may also risk de-radicalising (or de-funding) alternative political movements and organisations which, as part of a broader strategy, could play a useful role. We haven’t finished with the politics just yet.

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