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Corporate Responsibility

Pursuing justice in a time of climate disruption

19 February 2015

Climate change, as the World Bank states, is a fundamental threat to sustainable development and the fight against poverty. It threatens to put prosperity out of reach of millions and "roll back decades of development."

Already, changes to our climate are becoming obvious with the summer of 2014 being declared the hottest since records began, and parts of Canada and the United States experiencing extremes of cold. In 2013, the largest storm ever to hit land, Typhoon Haiyan, devastated the Philippines, killing over 6,300 in that country alone.

There is little doubt that climate change directly affects people’s human rights. According to the Intergovernmental Panel on Climate Change, climate change is defined as a preventable, man-made phenomenon, so the impact on human rights could be classed as violations, rather than bad luck (different from, say, a natural disaster such as an earthquake).

While climate change has the potential to affect everyone, its consequences are felt most in countries where poverty is high. The Red Cross estimates, for example, that in areas of rapid urbanisation in the developing world, around one billion people are living in overcrowded slums, making them increasingly vulnerable to the effects of climate change. 

It is against this backdrop that Allen & Overy partner, Michael Reynolds, launched an International Bar Association Task Force on Climate Change Justice and Human Rights back in November 2012, as then incoming IBA president.
 
The Task Force’s comprehensive report and recommendations were published in July 2014, and recently debated at an Allen & Overy seminar on ‘Climate Change & Human Rights: Pursuing Justice in a Time of Climate Disruption’ – to mark International Human Rights Day in December last year.
 
The panel, chaired by A&O Partner and Head of the London Environmental and Regulatory Law Group, Matthew Townsend, was made up of:
  • Gauthier van Thuyne – Allen & Overy Partner, and Member of the IBA Taskforce on Climate Change Justice and Human Rights
  • Dr Stephen Humphreys – London School of Economics, Academic Adviser to the IBA Taskforce on Climate Change Justice and Human Rights
  • Dr Aleksandra Cavoski – University of Birmingham
  • Kate Cook – Barrister, Matrix Chambers

An era of climate disruption

The IBA’s Task Force looked at the impact of climate change on human rights, the strategies for tackling climate change and the limitations of current national and international legal regimes in dealing with climate change justice. The full Task Force report is here: http://www.ibanet.org/PresidentialTaskForceCCJHR2014.aspx

Strategies to tackle climate change centre on two major areas: mitigation (limiting greenhouse gas emissions - GHGs); and adaptation (finding ways to adjust how we live in order to cope with the impact of climate change).

Discussions on both these strategies are being driven by the United Nations Framework Convention on Climate Change (UNFCCC) and implemented through the Kyoto Protocol.
 
State Parties to the UNFCCC agreed in Cancun in 2010 that: "Parties should, in all climate change-related actions, fully respect human rights." But gaining international agreement on these issues is difficult and progress has, so far, been slow. As Dr Aleksandra Cavoski points out, within the official documentation arising from recent discussions in Lima, "human rights language is almost non-existent".
 
Part of the problem is that both mitigation and adaptation strategies themselves have implications for human rights. As the IBA report explains, efforts to limit GHG emissions must take into account the development goals of poorer countries, and while many developing countries have drafted national adaptation policies, the funding for those policies is hard to come by.
 
The development of both mitigation and adaptation strategies must be done with an appreciation of how they impact human rights. But the landscape is incredibly fragmented – so many areas of law, politics, economics and business are relevant to climate justice but few have clear mechanisms to address it. Current human rights treaties do not specifically address climate change, so questions always arise about actionable rights, legal standing and, as Gauthier van Thuyne puts it, "the almost impossible issue of causation". Certainly the law as it stands – whether international law, environmental law, human rights law, state law or trade law – is not set up to provide the safeguards or avenues of recourse needed.
 

The IBA Task Force concludes: "existing laws that address mitigation, adaptation and remediation of climate change are failing to cope with the scale of the global issue and its wide-ranging impact on individuals, leaving many climate change justice issues unaddressed."

Bold action to achieve climate change justice

Nevertheless, progress must be made. The IBA is clear that greater legal responsibilities must be put in place to promote climate change justice. The Task Force’s recommendations urge governments, multinational corporations, legislators and scientists to "take joint, bold action aimed at achieving climate change justice."
 
One question that panellists grappled with is: what rights are we talking we about? The right to food, water, shelter and health are very evidently impacted by climate change. These – in particular the right to food, as Kate Cook argues – are what we should focus on first.
 
The right to food is clearly present in the UN’s International Covenant on Economic, Social and Cultural Rights (ICESCR), which most states have signed up to. It is also in the UN Convention on the Rights of the Child. The FAO’s (Food and Agricultural Organization of the United Nations) guidelines on the right to food even provide a practical list of the things states, corporations and individuals should do. Getting these basic human rights into the culture of climate change, says Kate Cook, is where the focus should be for now.
 
But the Task Force’s report also looks at the broader right to a safe, clean, healthy and sustainable environment and makes a number of recommendations – one of which is for human rights bodies to further clarify and ‘green’ the scope of human rights obligations that relate to a healthy environment. Another is that, with state backing, the Human Rights Council adopt a resolution requesting that the UN Office of the High Commissioner for Human Rights outline a ‘minimum core’ of rights within the right to a healthy environment.
 
Another important consideration is, even if these rights are clarified, what course of action is open to an individual, community or even state if those rights are violated? While many forms of litigation have been attempted for climate change-related claims, none have so far seen much success.
 
A key recommendation from the Task Force is that the IBA Working Group on Climate Change Justice draft a Model Statute on Legal Remedies for Climate Change. The Model Statute would be relevant for developing domestic statutes and consistent international legal standards. States and international bodies should then be encouraged to incorporate legal principles set out in the Model Statute.
 
Some of the common issues to be addressed would be actionable rights affected by climate change; issues around causation and the link with GHG emissions; methods for awarding relief and damages; limitation periods for claims; guidelines on costs awards in climate change cases; and jurisdictional reach of courts to adjudicate climate change claims.
 
Altogether there are some 50 recommendations in the IBA Task Force’s report, only some of which we are able to discuss here. Other important recommendations are made around the increased recognition, accountability and reporting by corporations for the impact that climate change has on human rights. Also, the need for greater knowledge and skills transfer in this area among governments, environmental and human rights lawyers, corporations and even individuals and communities.
 

The need for progress is clear. In January 2015, World Bank Group President, Jim Yong Kim, issued a warning that world leaders must commit to transforming their economies to combat climate change now. In its November 2014 report, the World Bank claims that without concerted action to reduce emissions, the planet is heading for 2°C warming by mid-century and 4°C or more "by the time today’s teenagers are in their 80s". A 4°C warmer world would be marked by extreme heat-waves, declining global food stocks, loss of ecosystems and biodiversity, and life-threatening sea level rises.

 Clearly there are very broad and complex issues for governments to grapple with in order to make progress on these issues. But the IBA Task Force is trying, as Dr Stephen Humphreys puts it, "to put in place achievable goals in terms of evolving or progressing the law, goading the law forward and not just waiting for it to get there."
 
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Key people

Gauthier van Thuyne
Gauthier van Thuyne
Partner
Belgium
Telephone icon+32 2 780 25 75
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Matthew Townsend
Matthew Townsend
Partner
United Kingdom
Telephone icon+44 20 3088 3174
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