Nexus Between International Environmental Law and Human Rights
By: Fatima Tariq
A century ago, the phrases “international environmental law” and “human rights” were rarely uttered in the same room, let alone in the same legal article. Today, the human impact on the environment and climate change are prominent in policy roundtables and press headlines. A few decades back, when people heard about environmental law and pollution, or climate emergencies, they did not necessarily think of human rights violation or human rights protection. To most people, the term “human rights abuses” evokes wrongful imprisonment, torture, murder, etc. It is high time to search for human rights violations in environmental law.
Although the human rights implications of climate change are not yet part of the regular dialogue across the International Institutions, critical perspectives on climate change are becoming more mainstream. Germany has embraced the European and global trend to pass environmental, social, and corporate governance legislation. The “German Act on Corporate Due Diligence in Supply Chains” imposes due diligence obligations to safeguard human rights and environmental standards in supply chains. This new law does not only apply to German companies but also to any foreign companies having either subsidiaries, joint ventures, or even branch offices in Germany. All those Germany-related links result in the application of the Supply Chain Act, provided that their operations meet the thresholds (3,000 and then 1,000 employees).
Human activities in this anthropocentric geological epoch are driving major environmental law-making at national and international platforms, amongst other things. Most environmental issues in the 21st century are emerging as transboundary issues, attracting implementation of international environmental laws from an anthropocentric lens. Violations of environmental rights place the universality of such rights into special conflict with their political implementation because it would seem that acting alone, no single nation or political unit can solve global climate change. Environmental rights therefore would seem to be logically impossible unless the addressee for these rights were to change. However, given whose rights are being protected, keeping sovereign nations as the addressee of such rights is the only way to guarantee their protection. Furthermore, the essential step in providing that guarantee is emphatically not to transfer authority to an international body, but to more deeply institutionalize environmental human rights into the politics of each nation.
The United Nations have a key role in sustainable development and facilitating inclusive intergovernmental negotiations. The latest “Intergovernmental Panel on Climate Change” (IPCC) climate report clearly stated that human activities are changing the Earth’s climate in ways unprecedented in thousands or hundreds of thousands of years, and some of the changes are now inevitable and irreversible.
United Nations treaty bodies, charged with interpreting and monitoring the implementation of human rights conventions, have been instrumental in highlighting the human rights implications of environmental policies and practice through their reviews of state party compliance and their general comments. Since 2015, “the Committee on Economic, Social and Cultural Rights” has issued recommendations to several states addressing environmental policy and climate change. Independent experts appointed by the United Nations have likewise raised their voices in recent years about the relationship between environmental policies and human rights.
Finance institutions are also focusing on the environment and sustainable goals. They are linking fiscal policies, environmental policies, and human rights altogether. The Inter-American Development Bank’s flagship publication in 2013, “More than Revenue: Taxation as Development Tool,” argues that taxes should be designed to promote development, not just raise revenues, and identifies some of the problems with tax systems in the region, including evasion, regressive structures, and the failure to use taxes to improve environmental and social welfare. In February 2018, the first global conference of the “Platform for Collaboration on Tax” was held in New York, to discuss needed reforms in the areas of tax policy and administration to ensure implementation of the Sustainable Development Goals. A joint initiative of the “IMF”, “OECD”, “United Nations”, and the “World Bank Group”, the platform seeks to bolster collaboration between the sponsor institutions, support capacity-building in the area of tax for developing countries, and facilitate the participation of the latter in multilateral dialogues regarding international human rights.
“The Organization for Economic Co-operation and Development” (OECD) observed that the budget cuts required were likely to be between 4 percent and 10 percent of GDP “for most countries.” But, consistent with most such analyses, the report endeavored to soften the impact of such an enormous cut by suggesting that it might be compensated for through greater efficiency, the reduction of fiscal exemptions, and the expansion of environmental taxes. The reality, however, is that greater efficiency rarely results in the maintenance of existing levels of service or assistance, fiscal exemptions are maintained because they benefit the elites, and the revenue gains from environmental taxes will not automatically be diverted back to sustain other budgetary items. Significant reductions in budget expenditures thus require choices to be made and neither the IMF nor the OECD, nor other international actors promoting fiscal consolidation, have been prepared to address the issue of human rights, let alone to identify any specific budget item beyond a nebulously defined “social protection” that should be shielded in the process. In one of the earliest efforts to link fiscal issues explicitly to human rights protection, Holmes and Sunstein made the point that all rights cost money, and thus require public funding. They added that this applies to civil and political rights as much as to social rights including the right to a clean environment. Thus, in the context of the United States, the fact that private liberties have public costs.
A standard human rights approach to an inquiry about human rights begins with the state, the primary actor responsible for providing specific protections, as spelled out in law. Thinking about human rights in international environmental law from the perspective of the individual concerning the state is perhaps the most accessible route into the environment and human rights nexus, even if the framework this presents is ultimately insufficient to the task.
Historic decision made in “The People v Shell” climate case in the Netherlands. A Dutch court ruled that Shell must reduce its carbon emissions levels by 45% by 2030, based on 2019 levels. The court holds Shell liable for damaging the climate, and this is a landmark victory for climate activists across the world. This very case was filed by various activists and citizens. They argued that Shell’s current business model is endangering lives by contradicting the Paris Agreement which set forth the peaking emissions and temperature reduction goals. Additionally, Shell’s current reduction target of 20% by 2030 would be found to be insufficient. It is the first case of its kind in which a multinational corporation has been held accountable for climate change and forced to reduce CO2 emissions beyond its original targets. It’s also a turning point in climate litigation as it is the first time a court has ordered a big polluter to comply with the Paris Agreement. The ruling states that Shell’s current emissions policy “is not concrete, has many caveats and is based on monitoring social developments rather than the company’s responsibility for achieving a CO2 reduction. Therefore, the court has ordered Royal Dutch Shell (RDS) to reduce the emissions of the Shell group, its suppliers, and its customers by a net 45%, as compared to 2019 levels, by the end of 2030”.
This decision symbolizes significant progress in the climate change litigation movement. It should serve as a serious warning to high emitting companies that they cannot continue to fail to act on climate change and the threat of litigation to hold them accountable is a very real risk.
The preceding analysis aimed to delineate the connection between international environmental law and human rights law based on concrete case examples. To reform international environmental policies, it is crucial to understand past practices and whether and why these practices should be considered broken and unjust. Through strategic litigation, civil society could finally obtain something it has not had for too long—a seat at the table with environmentalists and human rights activists. This would increase civil society’s role as a new lobby to counterweight the stakeholders in the environment and human rights, namely, states and corporations.