, G,4

Academic Requirement for Natural Resources and Environmental Law

1.

Write a 1,000-word journal article review of "Climate Change and Human

Rights: An lntrod.uction to Legal lssues". The 1,000-word limit excludes
your referenc'es.

2.

Use at least five (5) references to support your critical assessment of the

article.
3.

You may follbw the tips on "Wr.iting a Journal Article Review" of the
Australian National University.

4.

When using the ideas or academic works of others to support your

argument, always paraphrase and observe proper attribution.

5.

Deadline for'submission ,rHOrtober 2OL4 (Saturday) at the close of

office hours. Kindly have your hardcopy submission received by any of
the working scholars of the College of Law.

6.

Also, submit'an electronic copy of your journal article review through

email at u3206253@anu.edu.au.

For those interested to learn more about climate change, you may check this website
https://www.sdsnedu.org/learn/clirnate-change-science-and-negotiations-october-2014
fer a
free online course.

CLIMATE CHANGE AND HUMAN RIGHTS: AN

INTRODUCTION TO LEGAL ISSUES
S iobhdn

M c I ne rney - Lankfo rdx

I. INrRooucnoN
.:,
The varied consequences of rapidly increasing climate change are already having a dramatic effect on poor and margin alized, people all over the
world, reinforcing existing vulnerabilities and deepening inequalities.r The
fact that those who are already vulnerable will be impacted disproportionately enhances the human urgency of the problem; the fact that those likely
to suffer mbst from the impacts of climate change are those who have contributed least to the problem adds what can be described as an equity challenge. International human rights law is potentially well placed to address
that challenge and highlight some of the human and equity dimensions of
climate change.
This short Paper lays out some of the legal questions that are implicated
in the emerging debate on climate change and human rights and suggests
ways in which international human rights law could be approached in order
to promote clarity in the discourse of human rights and climate change. In
Part II, it outlines some of the context that defines the intersection of human
rights and climate change; in Part III, it delineates the different types of
questions raised by the interface; and, in Part fV, it offers potential conceptualizations of the relationship between human rights and climate change.
II.

CoNrExr oF THE LrNrs BprweEN Cr-rvrere

Cuexcp eNo HuuaN RrcHrs

The current discussion of human rights obligations in the context of

climate change can be traced to the well-established body of literature connecting human rights and the environment,2 and efforts to establish a free-

x Counsel, World Bank Legal Department. The views expressed herein are those of the
author and should not be attributed to the institution for which she works. Thanks to Charles
Di Leva and Saskia Fronabarger for comments on an earlier draft of this Paper. This Paper is
submitted as part of the Harvard Environmental Law Review symposium "Climate Change
and Global Justice: Crafting Fair Solutions for'Nations and Peoples." The author served as

moderator of the panel titled "International Human Rights Obligations."

I See, e.g., Wonr-p Bl.Nr,
Wonrp Dpver-opvmNr Rsponr 2010: Dnver-opMENT rN A
CneNcmc CurlarB: CoNcerr Nore (2008), available at http:llsiteresources.worldbank.org/
INTWDR201 0/ResourceV5287 67 8-1226014527 9 53 I 555 5566- 12260 | 4549 17 7 /WDR201 0_CN
*octl4v3.pdf-(discussing World Bank report forthcoming in October 2009).
2
See, e.g., HuueN Rlcrrrs Appnoecnss ro ErwRor.rNreNrer- PnorecrroN ($.lan E. Boyle
& Michael R. Anderson eds., 1996); LwrrNc HuuaN Rrcnrs AND rHE ENvrnoNN{sNr
(Romina Picolotti & Jorge Daniel Taillant eds., 2003); Dominic McGoldrick, Sustainable Development and Human Rights: An Integroted Conception,45 h.rrl- & Corrap. L.Q. 796 (1996).

432

Harvard Environmqntal Law Review

lVol.

33

standing right to a clean and healthy environment.3 More recently, it can be

identified in efforts specifically aimed at highlighting the human dimension
of climate change.a That discourse has seen a sharpening of focus around
human rights and climate change, with a number of important initiatives
underscoring this specific link.
In particular, efforts surrounding the 2007 Bali Conference of the Parties, such as the address of the u.N. Deputy High commissioner for Human
Rightss and the statement of the u.N. office of the High commissioner for
Human Rights ("OHCHR"), highlight the connection.6 Each of these is notable for the way it frames the challenge of climate change as a social and
human problem, going beyond environmental or technical analysis. In addition, each is unequivocal in connecting human rights and climate change
explicitly, thereby introducing a normative and moral, if not a clearly established legal, dimension. Also relevant was the 2008 U.N. Human Rights
Council Resolution ll23 on Human Rights and climate Change, *tich
called for a study to be undertaken by the OHCHR.? The ensuing-oHcHR
s!udy,8 along with other recent scholarshipe devoted specifically to the question of human rights and climate change, has helped advance the conceptual
understanding and legal underpinnings of this area. In March 2009, the
Human Rights Council adopted Resolution lol4,1o which noted the effects of
climate change on the enjoyment of human rights, and reaffirmed the potential of human rights obligations and commitments to inform and strengthen
3
convention on the Rights of the chitd art.24, adopted Nov. 20, rggg, 1577 u.N.T.s. 3
(signed but not yet ratified by United States); Convention Conceming Indigenous and Tlibal
Peoples in Independent Countries arts. 4, 7, 15, June 2i, l98g,2g I.L.M. 13gI; African charter
on Human and Peoples' Rights art. 24, }une 27,198r,21 I.L.M. 5g; Additional protocol to the
American Convention on Human Rights in the Area of Economic, Social and Cultural Rights
("Protocol of San Salvador") art. 11, doneNav.17, 1988, 28 I.L.M. 156; see also JohnLee,
The Underlying Legal
\rory to Support a Well-Defined Human Right to a Healthy Environment^as-a Principle of customary Intemational lnw,25 cor-uu. J. ENvrr_. L. 2gi (2000).
aMale' Declaration on the Human Dimension
of Global Climate Change, adopiedNov.
14, 2007 , available at httpllwww.ciel.org/Publications/Male_Declaration_N-ov07.pdf.

Karg, Depury High Comm]r for Human nights, Offici of the'U.N. High
^ '[yl*g-_yha
Comm'r
for Human Rights, Address at the Conference of the Farties to the U.N. Framewoik
Convention on Climate Change and its Kyoto Protocol (Dec. 14,2007), available at httpll
www.unhchr.chlhuricane/truricane.nsf/view01/013DC0FAA475EC87Ct25i3B100747g6A?

opendocument.
6
U.N. Joint Press Kit for Bali Climate Change Conference, OHCHR, The Human Rights
Impact of Climate Change, U.N. Doc. DPI|2483 (Nov. 2007), available at http;llwww.un.6.gl
climatechange/pdfs/balilohchr-bali07- 1 9.pdf.

u.N Human Rights Council pes.1tzz,,r? u.N. Human Rights Council, Repprt of the
Human Rights council on lts seventh session 65-66 jt 1, u.N. Doc. NrRC/7/7'a'1rrty t+,
7

2008).
8

o{cryR, _4qrry of the oHCHR on the Relationship Between climate change and
Humgn Rights, U.N. Doc. A/I{RC/10/61 (Jan. 15, 2009).
e
hvrl- CouNCIL oN HunaaN Rtcrrrs Por-rcy , Clruane CHaNcp eNo HuraaN Rrcrrs: A
Rouc^n Guoe (2008), available at httpllwww.ichrp.org/fite slreports/361136_report.pdf.
_ ]: u.N. !ITu" Rights council Rea. 10/4, ln U.N. Human Rights councit, tiraftheport of
thg Human Rights council on its Tenth session 13, u.N. noC errRcltoL.ti
fuar. :i,
2009).

20091

Mclnerney-Lankford, Introduction to Legal Issues

433

international and national policy making. In that resolution, the Council announced its decision to hold a panel discussion on the relationship between
climate change and human rights, welcomed the exchange of information
between the OHCHR and the U.N. Framework Convention on Climate
Change ("UNFCCC") Secretariat, and encouraged the High Commissioner
to participate in the fifteenth UNFCCC Conference of the Parties.rr

m.

TVpes

or

CoNsroERATroNS oN THE LrNx Berwe,eN HunanN

Rrcnrs Rl.ro Clrvrere CHaNcp

In pursuing an inquiry into the nexus between human rights and climate
change, it is important to disaggregate the different types of questions and
considerations in play, since both areas have evolved separately over time
with different assumptions and premises, analytic approaches, and
methodologies.

A.

ConceptualQuestions

Despite the momentum surrounding the human rights-climate change

discourse, conceptual and analytic questions persist about how to link the
two issues in a coherent manner. At this level, the challenge remains how to
link the pervasive phenomenon of climate change, with its aggregated causes
and dispersed effects, to the legal and normative constructs of correlative
right and duty under the international human rights framework.l2 How does
one connect the physical manifestations of climate change with peoples' entitlements to certain rights and freedoms and the responsibilities of states,
including to persons residing outside their jurisdictions in light of the resistance of many states to the very notion of extra-territorial obligation?13 Connected with the contested boundaries of human rights duties are the complex
questions of causation in relation to climate change, which compound the
difficulty of questions related to attribution and responsibility.
Other conceptual issues include the need to specify the sources of the
rights and duties under consideration. Invoking the notion of human rights
entails both rights and duties, and in each case, for human rights to have
meaning, one must identify a right-holder and a duty-bearer so as to permit
an actionable claim. Ideally, each should be identified in corresponding legal terms according to one of the traditional sources of public international

Id. j[[ 1,4,5.

See Asbjam Eide, Economic, Social'and Cultural Rights as Human Rights, in EcoNoMrc, SocrAr, eNo Cur-runal Rrcnrs 9, 9 (Asbj6m Eide et al. eds., 2d rey. ed. 2001);
Bemard Mayo,What Are Human Rights?, uz Poqrrrcar- Trcony AND THE Rrcms or MaN 68,
72 (D.D. Raphael ed., 1967) (discussing "correlativity of rights and duties").
13
StcnuN Sroclv, BevoNo NauoNar BonosRs: Sranrs'HuuaN Rrcrrs OsI-rcanroNs
rN INrsnNa.rroNar CoopenarrcN 5112 (2006).

"

t2

Harvard Environmental Law Review

434

lVol.

33

law as specified under article 38 of the Statute of the International Court of

Justice,la or at least some relevant provision of domestic law.
Finally, there is a need for some cogent articulation of what is distinct
about addressing climate change through a human rights lens and what distinguishes a human rights approach froln one that simply addresses the social or human impacts of climate change. Is there a meaningful difference
between the human impacts of climate change and the human rights impacts
of climate change? If so, how is it best understood? There is therefore a
need to explain what a human rights perspective brings to the problem of
climate change, including what it offers in legal terms. Precisely how can an
approach predicated on human rights improve the understanding of climate
change and make measures to address it more effective? An answer is still
needed to the question of the "value-added" of human rights for an international lega1 and policy dialogue that is already complex and fraught with
political sensitivities.

B.

Legal and Policy Questions Pertaining to the Relevant

International Law Frameworks

At a more applied level, climate change and human rights are governed
by international regimes that have evolved separately, with different premises underlying the legal frameworks of multilateral environmental agreements Qike the UNFCCC)15 and human rights treaties (such as the
International Covenant on Economic, Social and Cultural Rights
("ICESCR")).'6 For instance, one may contrast the relatively clear "vertical'? application of human rights treaty provisions between a State Party and
its citizens or persons within its jurisdiction, with the more "horizontal"
operation of environmental agreements like the UNFCCC governing stateto-state relations and burden sharing between countries in relation to emissions.l7 In each case, the application of rights and duties under the various
instruments reflects different iterations of state-centricity. Other contrasting
premises and principles include the concept of violations in relation to
human rights and an outlook that is more oriented toward past harms than
future harms, as is the case with respect to climate change. Such contrasts
should not occlude the potential complementarities and points of convergence that may be identified between the two frameworks and that may be
ra

Statute of the Intemational Court of Justice art. 38, Jlune 26, 1945, 59 Stat. 1055, 3
Bevans 1153 (naming as sources of law "intemational conventions,.. . intematioqal custom,
as evidence of a general practice accepted as law, . . . and the general principles of law recognized by civilized nations").
ts UNFCCC^, opened
for signature May 9, 1992, S. Thpary Doc. No. 102-38, l77l
U.N.T.S. lO7, ai amended by Kyoto Protocol to the United Nations Framework Convention on
Climate Change, opened for si'gnature Mar. 16, 1998,2303 U.N.T.S. 148 (entered into force
Feb. 16,2005).
16
ICESCR, opened for signature Dec. I 6, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3,
1976).

"

E.g., UNFCCC, supra note 15, art. 3(l).

20091

Mclnerney-Lanlcford, Introduction to Legal Issues

435

relevant to an understanding of States Parties' obligations. There may be

compatibility in terms of a focus on treaty obligations, which is particularly
relevant for States Parties to Tireaties under both regimes. Moreover, there
may be complementarity identifiable in principles, which can be identified in
both the UNFCCC and the ICESCR, such as the duty of cooperation,l8 'rdo

no

harm,"1e

or

equity.2o

C.

Political and Institutional Questions

A different type of consideration emerges in relation to the political and

institutional realities of promoting the connection between climate change
and human rights. Considering the complexity and sharp contrasts between
states' positions in relation to climate change negotiations, and taking into
account similar cleavages surrounding certain human rights debates, there is
much to suggest that divergences might be replicated, if not reinforced,
where the two intersect. This is particularly true of approaches that seek to
link climate change impacts in one country to the enforceable human rights
obligations of another, or strategies that aim to connect human rights obligations with the rendering of financial asSistance (e.g., for adaptation). Practical questions also exist about the capacity of institutions seized with the
issues of climate change and human rights to engage more fully with one
another and create space for mutual ieinforcement within their respective
institutional frameworks and processes. Finally, how can international actors like the World Bank or U.N. Environment Programme, working on climate change but operating somewhat outside the traditional international
human rights processes, be engaged by an approach predicated upon human
rights?

***

This brief introductidn to the range of questions that present themselves

makes for a sobering assessment of the potential for initiatives linking
human rights and climate change within the framework of international
human rights law as it currently stands.

IV.

PenspecrrvEs oN rsB LrNr BprwpsN

RIcnrs aNo Cr-naere CHaNce

HuulN

Beyond identifying the types of questions underpinning the connection

between human rights and climate change, it is apposite to disaggregate the
various ways in which the connection can be characterized under international law.
tsUNFCCC, supranote 15, art.3(5); ICESCR, supra note 16, art.2{l).
le This was first identified in the Tiail
Smelter Case (U.S. v. Can.), 3 R. Inf I Arb. Awards
1905 (I|ail Smelter Arb. tib. 1941), but more recently argued to inhere beyond the realm of
environmental harm to human rights-related harm.
'o E.g., UNFCCC, supra rrota 15, art. 3(l); see a/so ICESCR, supra note 16, art.2(2).

Harvard Environmental Law Review

436

A.

[Vol.

33

Climate Change Affects the Enjoyment of Human Righx

A strong starting point for conceptualizing the connection between climate change and human rights is to focus on the plethora of rights that will
be impacted adversely by climate change. The U.N. Human Rights Council
resolution and the OHCHR study emphasize how climate change will negatively impact (and already is negatively impacting) the enjoyment of specific
human rights in many codntries around the world, with the starkest examples
emerging in small island and low-lying states and areas at risk for increased
desertification and drought. These include the right to life, food, water,
health, housing, and self determination; they may also include rights under
threat because of climate change-related conflict or displacement. The impacts will also affect the rights of certain vulnerable groups disproportionately, with factors such as poverty, gender, age, indigenous or minority
status, and disability reinforcing the disparate impacts.2l

B.

Measures to Address Climate Change May Affect the

Enjoyment of Human Rights

A subset of the impacts discussion targets the "secondary" human

rights impacts resulting from measures aimed at addressing climate change.
That is, certain measures to address climate change may impact the realization of certain fundamental rights or affect the capacity of countries to realize rights. Examples include measures aimed at reducing greenhouse gases
ttrough increased reliance on bio-fuels, potentially impacting the right to
food, or programs that support of reduced emissions from deforestation and
degradation may provide inadequate protection for the rights of certain indigenous peoples reliant on forests.

C.

Human Rights Have Relevance,'to Responses to Climate Change

At another level, human rights may be relevant to the design and implementation of responses to climate change, whether in relation to adaptation
and mitigation. From a more positive and forward-looking perspective, one
may argue that human rights can usefully inform approaches to climate
change in policy and legal terms. This dimension may include arguments
based on human rights obligations of states under a variety of international
law instruments. These range from the integration of human rights into
country strategies in terms of priority entitlements to be protected from the
impacts of climate change (e.g., right to health, housing, water, or food), or
more procedural human rights that are relevant to the design and implementation of policies related to climate change (e.g., right to information, partici-

2r

OHCI{R, supra note

8,11 42.

20091

.,.

Mclnerney-LanWrd, Introduction to Legal

Issues

437

pation, or access to decision making).22 Under this view, human rights

obligations may provide a legal baseline for how climate change is tackled
and what must be protected from its impacts. From this, it may bq possible
to identify ways in which addressing climate change can help realize human
rights and how realizing rights can help ensure greater capacity to adapt to
climate change, underscoring a core compatibility of aims and outcomes between addressing climate change and realizing human rights.

V.

CoNcr-usroNs

The foregoing discussion highlights a number of significant challenges,

but it also points to a number of opportunities. Whether those opportunities
can be seized upon and taken forward will depend in part on the clarity and
cogence that human rights lawyers can contribute to this discourse through
differentiating the types of considerations in play and articulating the specific nature of the connection being argued for between human rights and
climate change. Different types of considerations require different approaches, analyses, and strategies, many of them non-legal. Similarly, distinct perspectives on the link between climate change and human rights
entail very different approaches to the relevant human rights obligations
under international law; each reveals the current limitations on the ability of
the law to address the human and social impacts of climate change. However, these observations should not obscure the potential of international law
to contribute to this context, nor the ways in which human rights can add
value to the ongoing search for solutions to the myriad challenges of climate
change and foster change at the three basic levels identified above. It is
equally clear that a successful strategy to persuade various constituencies of
the link between these two critical issues will require concerted, coordinated
action and multi-disciplinary efforts at all three levels. Preventing both further environmental degradation and threats to human rights resulting from
climate charige will rely on harnessing the moral, political, institutional, and
legal potential of human rights discourse.

u 8.g., UNECE Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters, June 25, 1998,2161 U.N.T.S. 447.

@HUTI

Writing ajournal

THE

A'STBAUAI{ I{ATIONAL U]{rVERSTTT

article review

oslc
L--

You may be asked to.write a journ,al article review. Although this may be an unfamiliar exercise,

it

task as writing an essay requiring a lot of llbrary research,

is

an! not the

is

ACADEMIC
SKlLtS .,'r -r
LEAR NI N G

not as complex a

same as a review in The Csnberro Iimes which

written for the general reader.

Your journal article review is written for a reader (eg, your supervisor, lecturer or tutor) who is knowledgeable in the

discipline and is interested notjust in the coverage and content of the article being reviewed, but also in your critical
assessment

of the ideas and aigument that are being presented by the author.

Your review might therefore be guided by the.foilowing questions:

Writing

journal article revlew

Objectives

Wha't does the article set out to do?

Theory

ls there an explicit theoretical framework? lf not, are there important

theoretica I assum ptions?

Concepts

What are the central conceptsT Are they clearly defined?

Argument

What

Method

What methods are employed to test these?

Evidence

ls evidence provided? How adequate is it?

Volues

is

the central argument? Are there specific hypotheses?

Are value positions clear or are they implicit?

fit into the wider literature?

Literoture

How does the work

Contribution

How well does the work advance our knowledge of the subjecti

Style

How clear is the author's languagelstyle/expressionT

Conclusion

A brief overall assessment.

So how can you'begin

to meet these demands?

Step 1: Get to knbw |he Srticle,you are reviewing:

Look at the title, the table of contents, the abstiact.and the introduction. These should give you some idea of the

central focus and the coverage of the article and the author's reasons for writing the article.
Skim quickiy through ttre wtrote article, running your eye over opening sentences of paragraphs and glancing at
any tables, illustrations or other graphic materials.
Read more closely

the first section, which should tell you the main

issues

to

be discussed and indicate the

theoretical or conceptual ftamework within which the author proposes to work.

Read closely the

final section, which should cover tfre author's conclusions and summarise the main reasons why

these conclusions'have bedn reached.

tt

F:*

i I *: **x

** m

sfi

rs

$qi I I

s.

r"'i

* *d
"

r.r . m m

Now that you are familiar with the text, read the whole text thoroughly to deyelop a basis on which to critically
review it.

Step 2: Decide which aspects of the article you wish to discuss in detail in your review: the theoretical approach?
the content or case studies?.the selection and interpretation of evidence? the range of coverageT the style of

-'l
Usually you will discuss the main issues which the author has specifically examined. Sometimes you may choose

particular issue because it has importance foryou and the course you are studying, even if it is not the main issue

for the author.

Step 3: Now, on the basis of .your overall knowledge of the article and your decision about which issues you will
discuss, read in closer.detail the sections which are relevant

to these issues. Make notes of the main points and key

quotations.

lf

necessary read other articles or books which are relev'ant to your topic, possibly to provide supporting evidence or

alternative theoretical models or interpretations of data.

You may also want to g.lancd a't,other reviews of the article in recent academic journals in order to get a feel for

the way the article has been received within the discipline. However only use these reviews to support your own
evaluation; don't merely copy or imitate them. .

Now you are ready to start drafting and writing your

The structure

ofyour review should

an initial identification of the article (;uthor, title of article, title of journal, year of pu blication, and other
details that seem important, eg, it i5 originally a French edition, etc), and an indication of the major aspects of

the article you will be discussing.

a brief summary of the range, contehts and argument of the article. Occasionally you may summarise section
by section, but in a short review (t,ooo-t,soo words) you usually pick up the main themes only. This section

should not normally take up more than a third of th total review.

a critical discussion of 2-3 key issues raised in the article. This section is the core of your review. You need
to make clear the authorls own argument before,you criticise and evaluate it. Also you must support your
criticisms with evidence from the text or from other writings. You may also want to indicate gaps in the

author's treatment of a topic; but it is seldom useful to criticise a writer for not doing something they never

final evaluation of the overall contributisn that the article has made to your understanding of the topic (and

maybe its importance to thedevelopment of knowledge in this particular area or discipline, setting

it in the

context of other writings in the field).

Checklist for your final draft:

.
o

Have
ls

you identified the article clearly,.right at the start?

the author's argument clearly and'objectiVely qummarised so that your reader can recognise the theoretical

approach and the range of material covered? (About a third of a short review.)

.
r
o

Are the 2-3 key issues raised in this article clearly identified and discussedl (About 50-600/o of the revieu)
Have you given reasonsJor your criticism and your approval
ls

of the article?

there a final evaluation of the article's importance, based on your earlier discussionT

ANU CRICOS Provider Number 00120C o 2009 Academic Skills.and Learning Centre (ASLC), The Australian National University
This handout may be used and changed for educational purposes, so long as ASLC is appropr;ately acknowledged.

https :li*rmdem icskifis.m nu.cdx

-m