Droits humains et changements climatiques : les défis d'un sujet clivant

Gabriel Lagrange, responsable du département géopolitique du changement climatique de l'Institut d'études de géopolitique appliquée (Iega) et Maéva Obiang Ndong, responsable du département droit international et justice internationale de l'Iega, se sont entretenus avec Elisa Morgera, rapporteur spécial des Nations unies sur les droits de l'homme et le changement climatique.

Gabriel Lagrange: What does the role of Special Rapporteur entail?

Special Rapporteur Elisa Morgera: The Special Rapporteurs (SR)'s role is to provide legal advice to States, civil society, UN organizations, and now businesses around human rights obligations and standards in particular areas. The SR develops independent studies and recommendations on the applicable human rights standards to ensure that International Human Rights Law (IHRL) is respected in a particular thematic or geographic context.

In my case, I study the impacts of climate change on human rights through an evidence- and local knowledge-based approach. I also have a role in supporting dialogues between duty-bearers and others about the clarification of IHRL and providing constructive and innovative recommendations. The specificities of my mandate also have to do with supporting the protection of human rights not only in the context of SDG 13, on climate action, but also SDG 14, on the protection of the ocean. The latter is now particularly topical, following the recent advisory opinion of the International Tribunal of Law of the Sea (ITLOS)[1], which makes quite clear how the Law of the Sea itself sets obligations for States to take effective climate action.

Finally, my role is also to provide advice and engage with business entities about their understanding of their responsibility to respect IHRL in their activities or consider when and how States need to review the requirements of their national laws on business conduct in the context of climate change, with a focus on innovation and digital technologies.

G.L: Why did you choose to become a rapporteur?

SR E.M: My whole career has been looking at the interactions between international environmental law and IHRL, focusing on Indigenous people and local communities' human rights, more recently small-scale fishers' human rights, children's human right to a healthy environment, the human rights to health and to science or to a healthy environment. I have been thinking about means of implementation and areas where we need collaboration between IHRL and International Environmental Law. My work has also looked at the role of International Economic Law, notably International Investment Law, related to natural resources development, and governance, with a focus on decision-making processes that can either help or hinder progress in climate mitigation and adaptation.

So, my work has looked at the protection of the environment in a holistic way by looking at the interaction between different bodies of Law, and that's what I wanted to offer as a SR.

G.L: What is the process of selection?

SR E.M: The selection process has been really interesting. First, there is an open announcement that the position is vacant with a specific application template to fill out, singling out specific experiences that spoke to the terms of the mandate. Then, a motivation statement around how, as a SR, I could provide a distinctive contribution to the realization of the mandate. I believe there were around 50 candidates for this position, which was published at the same time as the one for the role of UN Rapporteur on the human right to a healthy environment. A few applicants were shortlisted to be interviewed for both positions, which was also my case.

The interview was conducted by a selection of representatives of States that are part of the Human Rights Council (HRC). They short-listed three candidates for consideration by the President of the HRC. Then, the President recommended one candidate for each position to the Council and conducted informal consultations with States across the HRC to make sure that they were happy with the recommendation. At the very end of the HRC session, States adopted all the recommendations for the SR vacant positions.

Everything is transparent, and you can find information on each step of the process on the UN website, though you need to know your way around the website. I found the interview process helpful and interesting, with important questions around the challenges a SR can face, which role you expect to play as a SR, or which areas and approach you would take.

G.L: The effects of climate change, such as natural disasters, are projected to become more intense/frequent in the coming decades. How does this impact on human rights?

SR E.M: In many regions of the Global South, climate change itself and climate change response measures have already had massive human rights impacts and, in fact, human rights violations for more than a decade, with the most affected countries being the ones that contributed the least to climate change. This was notably exposed during the public hearings held in Barbados and Brazil by the Inter-American Court of Human Rights as part of the proceedings on Advisory opinion on States' climate change obligations[2]. The situation is different in the Global North because our experience with climate effects such as excessive heat or extreme weather events is quite recent.

That divergence of lived experiences is certainly something that makes the conversion more difficult, and we see a different framing between the advisory opinion of the Inter-American Court as "climate crisis". As a SR, it is my role to emphasize that States have been not affected in the same way and help raise awareness about the urgency of preventing and responding to the huge human and economic toll of climate change in the countries most affected by it.

G.L: How does climate change affect the right to a healthy environment? What does that mean? Do you see an evolution of the framing along the years of this concept?

SR E.M: A safe climate is part of the substantive content of a human right to a healthy environment, and thus I am closely coordinating with Astrid Puentes, my SR colleague on the human right to a healthy environment.

My mandate on human rights and climate change implies looking at the specific human right to a healthy environment as well as "more traditional" rights (e.g., civil, political, economic, social, and cultural). Questions arising from this include: How are these all these rights affected by climate change and climate change measures? How do we need to interpret State obligations to protect these human rights in the context of climate change? The work of the UN SR on the human right to a healthy environment to clarify the content and implications of the human right to a healthy environment, so the two mandates are distinctive, but very complementary and mutually influencing.

G.L: We do have an international political recognition of the necessity to protect human rights in the context of the climate change such as at COP. What is your opinion on the actual implementation and application?

SR E.M: The inclusion of human rights in the preamble of the Paris Agreement has been a landmark moment, a first in International Environmental Law to some extent, and very meaningful in recognizing the call for climate justice in a legal way. But, when it comes to "the practice" in terms of how much that reference really influences the content and the modalities of implementation of climate law at the multilateral and national levels, the most widespread view is that we have not seen enough of a change.

I think that we need to keep in mind that climate lawyers and experts have not necessarily been educated with a deep understanding of IHRL. Moreover, Climate Law remains, both nationally and internationally, a highly technical area and this is also a barrier for human rights lawyers to interacting with it. Also, many of the framings of the International Climate Change Law are not conducive to considering duly and fully human rights implications. Another issue is that we cannot do meaningful human rights work without a truly participatory process. It is only through engagement with human rights holders and their lived experiences that we will realize who has been affected and why that is happening. Unfortunately, the international climate regime, unlike other multilateral environmental processes, does not allow for meaningful engagement with human rights holders. To make a comparison, under the Convention on Biological Diversity (CBD), representatives of Indigenous peoples, civil society, and researchers can all sit in negotiating rooms, take the floor in real time, and make textual suggestions. Yet, these international negations remain a State-driven process: at least one of the States needs to support a textual proposal coming from a non-State representative for it to be formally included in the negotiating text.

At the national level, we see climate experts and activists being criminalized, penalized, harassed, and, in some cases, attacked lethally or jailed. This is widely documented: at the most recent session of the HRC, both the UN SR on freedom of expression and the one on freedom of assembly have shared serious concern about how climate activists are subjected to a whole new level of repression across the world and how civil space is being shrunk.

Overall, there is still a prevailing view that human rights are something that we need to do on top of solving the climate crisis, and it may appear as asking too much of climate decision-makers. Yet, in reality, human rights are a lens, an approach that helps take effective as well as inclusive and fair climate change measures. It is the way in which we can take effective and inclusive climate action. The more we close the space for discussing human rights, the more we limit the capacity of decision-makers to rely on human rights for better climate change decision-making, which is a paradox.

G.L: International recognition is not equivalent to the integration of this right within all countries. Which countries/regions are more advanced or lagging behind? Does the gap between countries imply different definitions in different national contexts? Does this represent a threat to the fair application and respect of this right?

SR E.M: There are common challenges in engaging with human rights in a constructive way in the context of climate change. In my first thematic report[3], I brought together the evidence gathered by other UN Special Rapporteurs and Treaty bodies that gives a sense of the full range of human rights concerns that need to be considered for more effective and fair climate change decisions. These considerations range from the negative impact of climate change and climate measures on the human rights of children, migrants, persons with disabilities, peasants, Indigenous peoples, women and girls, and persons with albinism. This shows that we cannot possibly only have climate experts to make climate decisions, but we rather need a broader range of experts, from across civil society, to understand all these different impacts.

On the one hand, it is alarming to think about how much work remains to be done and how big the challenge is. On the other hand, we have learnt a lot about how we can prevent further negative impacts. I think that the reactions to the report have been warmer than I expected. There seems to be a willingness for both duty bearers and civil society to say, "Okay, that is a clear path for us. This is how we can address this complexity." Seeing all the evidence and recommendations together helps to map out the areas of expertise we need to bring together for climate decisions to be different and avoid discriminatory impacts on human rights.

G.L: You talked about the ICJ Advisory opinion as well as the ITLOS' and Inter-American Court's Advisory opinions. How has the jurisprudence evolved to include human rights related to climate change? What would be the future path around that?

SR E.M: There is so much to be learned about how we perceive and understand limitations in legal systems to support effective and appropriate climate measures. Even if the request to ITLOS did not include references to human rights, a significant number of submissions to the Tribunal raised the importance of human rights, and the Tribunal did make a reference to the human rights concerns. In addition, two separate declarations of ITLOS judges indicated that IHRL applies at the ocean-climate nexus, and that ITLOS could have engaged in more explicit legal reasoning based on IHRL, similarly to the European Court of Human Rights (ECtHR) in the KlimaSeniorinnen v Switzerland case[4].

For the ICJ, now we have questions related to human rights[5]. We will have to see how much the Court itself will either build on some of the human rights treaty bodies that have addressed climate change more and more or on the work of Special Rapporteurs. It was interesting to see how much the ECtHR built on that work. One would hope that, as a generalist court, the ICJ will try and clarify as much as possible all the relevant areas of international Law that come into play in the context of climate change.

One thing that would be helpful is for the ICJ to follow the way the ITLOS has framed their advisory opinion, underscoring that compliance with the Paris Agreement in and of itself is not sufficient for States to be in compliance with other relevant sources of International Law in the area of environment and human rights, where we need effective climate action to prevent other environmental harm and human rights violations. Then, clarifying what the implications are in terms of State responsibility, particularly in the context of both individual and collective actions by States considering differentiated responsibilities and differentiated impacts, The later part might be the most complex one, but it is also the one where we need more clarity from a legal perspective.

G.L: From your experience, how do judicial and political bodies work together? Are they siloed or do they collaborate?

SR E.M: I think it is instructive to think about the reaction of the Swiss public authorities regarding the decision of the ECtHR. I guess the lessons learned in this case are that successful litigation, even with such authoritativeness and clarity, might not, in and of itself, lead to increased political will. Thus, one role I would like to play as a SR is to offer advice and expertise to States to ensure a collaborative approach to the implementation of judicial decision arising from climate litigation and where ideally, we can move away from the intrinsically adversarial character of litigation and create a space instead where we can co-develop solutions with human rights holders and civil society. It is important that decision-making spaces do not get even more closed off because of those judicial decisions. We need to fully understand, though this process, what barriers governments and duty-bearers are facing in making progress on climate change.

G.L: What are the avenues for progress?

SR E.M: Civil society has developed so many innovative ways to make progress on climate change, and generally there is so much public awareness about climate change. Many wish to be part of the solution. In addition, the ITLOS' advisory opinion shows us that we can do meaningful climate change work under international forums that we have not yet seen as significant for climate change. The CBD conference in October 2024 can also be a space where we can explore a more holistic understanding of climate change and human rights. All these are crucial opportunities to advance co-development of solutions and pilot innovative ways to make more effective and inclusive decisions on climate change. Then we can bring these new approaches back into the international climate regime and/or share them as good practices that States can follow in their own national processes.

To sum up, my message and my call for action is, "Let's think more broadly about where we can develop more holistic, more inclusive ways to co-develop climate solutions.".

Maéva Obiang Ndong: Can we draw from the resolution on human rights and climate change that was recently adopted without a vote/by consensus by the HRC, that there is, an optimistic shift, even if it is a small one, in awareness of the necessity of fully integrating the 'human rights' perspective in climate actions?

SR E.M: I think there is a genuine curiosity among the States in the Human Rights Council to see how human rights can illuminate a path for effective, inclusive, and fair climate action at all levels – local, national, regional and international. We need to feed this curiosity with solid legal reasoning and examples of good practices that can support governments in piloting different approaches.

There is a willingness to explore and be guided by human rights standards, but there are also tensions around it because of the attacks against climate activists, as opposed to recognizing, valuing, and protecting them as environmental human rights defenders.

M.O.N: Knowing how important it is to hear and learn from the voices of civil society, how does your role play into bringing the voices of Indigenous peoples and vulnerable groups into huge institutions such as the United Nations?

SR E.M: There are, at least, two ways. The first is in my role of independently assessing evidence and receiving inputs from civil society and human rights holders and clarify their importance from an IHRL perspective. Of course, it is not the same as having these human rights holders' views voiced directly, but it might help open doors.

The second way is by supporting and participating in events where human rights holders and advocates can speak directly to duty-bearers and showing how constructive and effective this can be.

Finally, the third aspect, which is the key message from my first report[6], is to open the concept of "climate science" and understand it as including and giving equal weight to the lived experiences of those human rights holders who have suffered the brunt of the negative impacts from climate change. In other words, it is not only about opening decision-making spaces, but also opening up spaces earlier on, at the stage of developing the evidence base upon which decisions are made. This means that climate science should include social sciences, Indigenous knowledge, and other ways of knowing that can help us think holistically about climate change.

[1] On 21 May 2024, the ITLOS issued an Advisory opinion clarifying States' legal obligations in addressing the impacts of climate change on the marine environment. The Tribunal ruled that anthropogenic greenhouse gas emissions absorbed by the oceans constitute marine pollution due to their deleterious effects on the marine environment.

[2] The Inter-American Human Rights Court held first public hearing from 24 to 26 April in Barbados and four additional days of hearings in Brazil in May 2024 on the Request for Advisory Opinion on "The Climate Emergency and Human Rights". Receiving more than 260 written briefs from States, civil society and vulnerable groups, this climate case is shaping up to be the largest climate case to date.

[3] United Nations Human Rights Council (OHCHR), Report of the Special Rapporteur on the promotion and protection of human rights in the context of climate change, Elisa Morgera – Advanced unedited version (21 June 2024) UN Doc A/HRC/56/46, available at: https://www.ohchr.org/en/documents/thematic-reports/ahrc5646-scene-setting-report-report-special-rapporteur-promotion-and.

[4] On 9 April 2024 the ECtHR ruled that, by failing to take sufficient measures for an effective protection of its citizens against the serious adverse effects of climate change on life, health, well-being and quality of life, Switzerland violated its legal obligation under Article 8 of the European Convention on Human Rights (right to respect for private and family life).

[5] On 12 April 2023, the UN General Assembly submitted a request for an Advisory opinion of the ICJ on the obligations of States in respect of climate change.

[6] Op. Cit.