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 59

CONCEPTUALISING CLIMATE CHANGE IN LAW

AS A THREAT TO INTERNATIONAL SECURITY AND
HUMAN RIGHTS
ANETA PERETKO*

ABSTRACT

The language of the climate change debate is obsessed with rights and risks. Does the
right to clean water outweigh the risk of conflict over limited resources? Does the right to
adequate housing outweigh the risks caused by climate-related population displacement?
Does the right of one State to pollute its way to prosperity outweigh the risk of rising
sea levels erasing one of its neighbours? The international community has struggled to
deal with these questions of shared hazards, and struggled to emphasise climate change
as a real threat causing human suffering and instability. It is no surprise then, that what
has long been a stale debate over international and domestic environmental law has been
revived through a number of alternative conceptions, particularly the characterisation of
climate change as either a threat to international security or a violation of international
human rights law. This article attempts to expound precisely what the stakes are for
security risks and human rights when it comes to climate change, and precisely how
the focus on security risks and human rights enhances or detracts from global action on
climate change, drawing conclusions about how best to start mitigating and adapting to
survive.

I INTRODUCTION
Since at least the mid-2000s, there has been a discernible shift in the way we talk and think
about climate change. For years, the very real harm that climate change caused was addressed,
if at all, through a labyrinth of international environmental law' and domestic environmental
law.2 The coercive aspects of domestic law complemented the consent-based international
system, while the international environmental law aspect of the framework attempted to fill
in gaps to address matters such as trans-boundary pollution, which is out of jurisdiction in
domestic law, by including obligations for States to ensure that their activities do not cause
environmental damage beyond their own borders.' These existing approaches have had the

LLB/LP (Hons I), BInSt (Hons I); Senior Federal Prosecutor, Commonwealth Director of Public Prosecutions.
Stephen Tully, 'Like Oil and Water: A Sceptical Appraisal of Climate Change and Human Rights' (2008) 15 Austra-
lian InternationalLaw journal213, 215.
2 Sara Aminzadeh, 'A Moral Imperative: The Human Rights Implications of Climate Change' (2007) 30 Hastings
Internationaland Comparative Law Journal231, 234.
Henry McGee, 'Litigating Global Warming: Substantive Law in Search of a Forum' (2004) 16 FordhamEnvironmen-
tal Law Review 371, 389-9 1.
Declaration of the UN Conference on the Human Environment, 21" plen mtg, UN Doc A/CONE48/14 (16 June
1972); Legality ofthe 7hreat or Use ofNuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 241-2.
60 AUSTRALIAN INTERNATIONAL LAW JOURNAL

advantage of being underpinned by municipal administrative law and constitutional and

torts law, and to the complainants' credit, litigation undertaken pursuant to them has offered
real community relief, not to mention increasing public awareness and executive action.' But
in a rapidly greenhouse gas-emitting world, these existing approaches have become, at best,
a tourniquet. They offer remedial relief rather than preventative and proactive management
of climate change,' have very little political clout, and lag when it comes to inspiring the
necessary sense of urgency to co-ordinate global action. In response to these shortcomings, and
with the real life consequences of climate change having well and truly begun to materialise,
we now think of climate change in many new ways, be it as an economic issue, a political one,
a technical one, an ecological one, or most often, a combination of these.7 For the purposes
of this article, however, the two most significant alternative conceptions of climate change
are its metamorphosis into a threat to international security (a risk-based conception), and a
threat to international human rights law (a rights-based conception).
In many ways, as this article will demonstrate, these particular characterisations are
a natural fit. They are both conceptions which are internationalised, high profile and
encompass a multitude of concerns. They come with their own monitoring and enforcement
mechanisms, and existing bodies of reports, research and international instruments which
offer a number of opportunities to address climate change and disaster management in ways
that the existing frameworks have been unable to do. This article will start by briefly outlining
the high stakes for the global community in the struggle against climate change, noting that
many of these stakes can be characterised as relating either (or both) to risks or rights. Then,
it will consider the characterisation of climate change as a threat to international security
and as a threat to international human rights, doing so by analysing both strengths and
weaknesses in each approach. As will be seen, the problem that the international community
faces is not its inability to identify the actor or actors most culpable for the state of the
climate we find ourselves in, but rather, it is the inadequacy of international law to hold those
parties responsible. And while neither conception is particularly well suited to remedying
this ongoing challenge, both offer as much utility in rhetoric as in action. A securitised
threat of tangible risk forces us to consider the relationship between seemingly unconnected
occurrences in a more holistic way, whereas an international human rights law framework
forces us to think about the long-term consequences of climate change in the future, on
rights that we may not even be acutely aware of.' This enables both frameworks to span
changes in governments and economies, not just in the letter of the law, and offer a broader-
reaching vision and direction in determining the next act. 0

5 Consider, for example, the Dutch activists in 2015 who used tort law to successfully sue the government into cutting
carbon emissions, or the lawsuit launched the same year by children and teenagers in Oregon, USA against the federal
government in an attempt to force climate change action.
6 For a deeper critique of the human rights approach, see Tully, 'Like Oil and Water', above n 1.
, Mostafa Mahmud Naser and Tanzim Afroz, 'Human Rights Implications of Climate Changed Induced Displace-
ment' (2009) 21(3) Bond Law Review 139, 140. See also Meinhard Doelle, 'Climate Change and Human Rights:
The Role of the International Human Rights in Motivating States to take Climate Change Seriously' (2004) 1(2)
MacquarieJournalofInternationaland ComparativeEnvironmentalLaw 179; Aminzadeh, above n 2.
8 Zackary Stillings, 'Human Rights and the New Reality of Climate Change: Adaptation's Limitations in Achieving
Climate Justice' (2014) 35 MichiganJournalofInternationalLaw 637, 665.
9 Ibid, 652; Stephen Tully, 'The Contribution of Human Rights as an Additional Perspective on Climate Change
Impacts Within the Pacific' (2007) 5 New ZealandJournal ofPublic and InternationalLaw 169, 182.
J0 Alan Boyle, 'Human Rights and the Environment: Where Next?' (2012) 23 EuropeanJournalofInternationalLaw
 CONCEPTUALISING CLIMATE CHANGE IN LAW 61I

II WHAT ISAT STAKE INTERMS OF CLIMATE CHANGE

Few challenges in history have been as all-consuming as the challenge posed by climate
change. There is no doubt that some States are both more responsible than others for its
occurrence and more capable of addressing it. Nevertheless, the international system struggles
to achieve even the most insignificant agreement on the topic, and remains constantly mired
by bickering States desperate to protect their own interests. This article focuses on States
as the primary actors in the climate change space, as States are the only actors realistically
capable of co-ordinating individual behaviour to the level required to address stakes this
high." And indeed, the stakes for individual States and for the international community
are enormously high, immeasurable for their uncertainty in many respects, and far too vast
to list here. In keeping with the focus on the security and human rights implications of
climate change, they can be summarised neatly as a combination of risk-related stakes and
rights-related stakes, with a significant overlap in the pair. Both characterisations are intuitive
in many ways, and unfortunately, both characterisations also confirm that climate change
disproportionately affects developing nations and the global poor.12
As to the risk-related stakes, the risk of conflict, whether individualised violent crime
or larger scale political instability, increases as average temperature increases and rainfall
declines,1 3 and climate change then continues to affect the physical environment in which
conflict-related security operations take place, and the capabilities, infrastructure and
resources necessary to carrying them out. Commonly identified security risks include the
increase of frequency and severity of natural disasters; the limited and declining availability
of medicine, food and water; and the increasing movement of people due to climate-
related disruptions. 4 While these may not be the kind of issues traditionally thought of as
international security risks, these occurrences exist alongside and compound existing stress
points, such as population growth, limited resources and economic and political changes,
and lead to greater competition for resources and burdens on governance. Countries already
struggling to provide basic services are simply not equipped to deal with either sudden
events, such as 'natural' disasters, or slow-onset events, such as rising sea levels. Likewise,
they are not equipped to deal with the likely civil unrest following sustained failure to
provide basic services." For these reasons, the developed world is increasingly linking
climate change, migration and insecurity to conflict in poorer regions,1 6 and even the most

613, 618-9.
See David Miller, 'Global Justice and Climate Change: How Should Responsibilities Be Distributed?' The Tanner
Lectures on Human Values, Beijing, 24-5 March 2008, 121 <http://tannerlectures.utah.edu/_documents/a-to-z/m/
Miller_08.pdf>. This is not to overlook the role of corporations in the emission of greenhouse gasses, however.
12 Human Rights and Climate Change, HRC Res 7/23, UN HRCOR, 7 h sess, 41s mtg, UN Doc A/HRC/7/23 (28
March 2008). See also Lavanya Rajamani, 'The Increasing Currency and Relevance of Rights-Based Perspectives in
the International Negotiations on Climate Change' (2010) 22 JournalofEnvironmentalLaw 391, 392; Thomas F Ho-
mer-Dixon, 'Environmental Scarcities and Violent Conflict: Evidence from Cases' (1994) 19 InternationalSecurity 5.
13 See, e.g. Marshall Burke, Solomon M Hsiang and Edward Miguel, 'Climate and Conflict' (2015) 7 Annual Review
ofEconomics 577.
" Donald J Wuebbles, Aman Chitkara and Clay Matheny, 'Potential Effects of Climate Change on Global Security'
(2014) 34 EnvironmentSystems and Decisions 564, 569.
1 Naser and Afroz, above n 7, 139.
16 Coral Davenport, 'Climate Change Deemed Growing Security Threat by Military Researchers', 7he New York Times
(online), 13 May 2014 <http://www.nytimes.com/2014/05/14/us/politics/climate-change-deemed-growing-securi-
62 AUSTRALIAN INTERNATIONAL LAW JOURNAL

stable States in the world now include climate change on their security agendas.17 Ten of
the peacekeeping operations mandated by the UN Security Council respond to conflicts
where resources were depleted," and in 2011, there was serious consideration of a 'green
helmet' peacekeeping force.' In States already suffering from instability, violence can quickly
escalate from a convergence of poverty and climate change, and if those conflicts are on the
rise, then peacekeeping operations may find themselves increasing too. 20 And where severe
weather does not contribute to the outbreak of conflict, the shortages it will cause are likely
to aggravate existing instability, 21 as the conflict-riddled parts of the Middle East and Africa
demonstrate. Any new issue can be the final straw in such settings. 22
Larger disputes, including those over territory and natural resources, have contributed
to more than one conflict, 23 and melting sea ice and extreme weather could further shrink
already struggling territory, or conversely, open up territory, such as previously inaccessible
transportation routes or areas of resource exploration. 24 Additionally, the question of large-
scale population displacement is a significant concern for both security and human rights
reasons. Developing and low-lying island countries, including coastal Sub-Saharan Africa
and the Pacific Islands, will cease to exist if sea levels continue to rise. 2 5 In addition to those
populations, persons reliant on land for income and survival, and those who find themselves
experiencing heatwaves, are also likely candidates for climate-related migration. Murmurs of
'climate change refugees' have emerged, though since this class of people is not fleeing from
persecution (and efforts to redefine the term refugee, while ongoing, are yet to succeed), 26
the Convention Relating to the Status of Refugees does not apply.2 7 A more apt title may be
'climate change displaced persons', which unlike the term 'refugee', also covers persons who
are internally displaced. 28 Some States are already preparing to move to safer and higher

ty-threat-by-military-researchers.html>.
17 Cinnamon Carlarne, 'Risky Business: The Ups and Downs of Mixing Economics, Security and Climate Change'
(2009) 10 MelbourneJournalofInternationalLaw 439, 459.
i UN Security Council, 'Security Council, in Statement, Says 'Contextual Information' on Possible Security Implica-
tions of Climate Change Important When Climate Impacts Drive Conflict', SC/10332, 6587th mtg, 20 July 2011
<http://www.un.org/press/en/2011/scl0332.doc.htm>.
9 See, e.g., Suzanne Goldenberg, 'UN Security Council to Consider Climate Change Peacekeeping', The Guardian
(online), 20 July 2011 <http://www.theguardian.com/environment/201 1/jul/20/un-climate-change-peacekeeping>.
20 Shirley Scott, 'The Securitization of Climate Change in World Politics' (2012) 21 Review ofEuropean Community and
InternationalEnvironmentalLaw 220, 224.
21 Wuebbles, Chitkara and Matheny, above n 14, 569.
22 Ibid 572.
23 See, e.g., John Hagan and Joshua Kaiser, 'The Displaced and Dispossessed of Darfur: Explaining the Sources of a

Continuing State-Led Genocide' (2001) 62 BritishJournalofSociology 1; Betsy Hartmann, 'Rethinking Climate Ref-
ugees and Climate Conflict: Rhetoric, Reality and the Politics of Policy Discourse' (2010) 22 JournalofInternational
Development 233 on the environmental and political forces that converged to cause the genocide in Darfur.
24 Joshua W Busby, 'Who Cares about the Weather? Climate Change and U.S. National Security' (2008) 17 Security
Studies 468, 477.
25 United Nations Framework Convention on Climate Change, opened for signature on 4 June 1992, 1771 UNTS 107
(entered into force 21 March 1994) ('UNFCCC), preamble. See also Tully, 'The Contribution of Human Rights',
above n 9.
26 Carlarne, above n 17, 462.
27 Convention Relating to the Status Of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into

force 22 April 1954) art 1, amended by ProtocolRelating to the Status ofRejugees, opened for signature on 31 January
1967, 606 UNTS 267 (entered into force 4 October 1967) art 1.
28 See, eg, David Keane, 'The Environmental Causes and Consequences of Migration: A Search for the Meaning
of "Environmental Refugees"' (2004) 16 Georgia International Environmental Law Review 209. See also Lauren
Nishimura, "'Climate Change Migrants": Impediments to a Protection Framework' (2015) 27 InternationalJournal
 CONCEPTUALISING CLIMATE CHANGE IN LAW 63

land.29 There is also the risk of conflict erupting between local and migrant communities. 0
As for rights-based stakes, discussion of substantive human rights within climate change
generally focuses either on a new specific right to a healthy environment, or on an already
recognised right which is affected by climate change. 1 Both approaches rely on an assumption
that displeases many environmental activists, specifically that any incorporation of a human
rights context emphasises the value of the environment to humans, rather than assigning
intrinsic value to the environment itself.32 Without commenting on the validity of such an
approach, this article relies on a 'green' interpretation of existing human rights and focuses
on the already recognised basic human rights that are reliant on a healthy environment.
This method can force action immediately, rather than hoping to one day amend existing
international treaties with a new human right, or the environment's own rights. As to the
human rights most likely to be affected by climate change, there is now ample commentary
on the matter and this article does not propose to analyse them in any great depth. Briefly,
insofar as enjoyment of human rights depends on a 'supportive environment', all human
rights are subject to climate change, 5 though the human rights most often mentioned as
particularly susceptible are those with a clearer chain of evidence linking them to climate
change, including the right to an adequate standard of living, food, water, health, 6 and
in grave situations, the right to life. 7 There is also a question of minority, indigenous and
cultural rights - climate change impact on cultural minorities and indigenous peoples who
have particularly close connections to their territories is particularly deeply felt and risks the
loss of some of the oldest cultural traditions in the world.38

ofRefugee Law 107.

29 In 2012, Kiribati's President launched talks with Fiji to purchase a parcel of land on which his entire nation could be

resettled, and in 2016, the US Department of Housing and Urban Development granted $48 million to resettling
residents of a small island belonging to Louisiana, to assist communities to adapt to climate change.
30 Wuebbles, Chitkara and Matheny, above n 14, 575.
3 John H Knox, Report ofthe IndependentExpert on the Issue ofHuman Rights Obligations Relating to the Enjoyment ofa
Safe, Clean, Healthy andSustainableEnvironment, Preliminary Report, UN Doc A/HRC/22/43 (24 December 2012)
[11]-[51].
32 Ibid [53]. See also Aminzadeh, above n 2, 263.
3 See, e.g., Margaux J. Hall and David C. Weiss, Avoiding Adaptation Apartheid: Climate Change Adaptation and
Human Rights Law' (2012) 37 Yale JournalofInternationalLaw 309, 322; David B. Hunter, 'Human Rights Impli-
cations for Climate Change Negotiations' (2009) 11 Oregon Review ofInternationalLaw 331, 332-33; Marc Limon,
'Human Rights and Climate Change: Constructing a Case for Political Action' (2009) 33 HarvardEnvironmental
Law Review 439, 446.
3 Knox, above n 31, [19]. For a full discussion of UN Statements and Resolutions affirming which human rights are
susceptible to climate change, see [18]-[24] of the same document.
3 Hurricanes destroying schools and thus the right to an education; see Naser and Afroz, above n 7, 144.
36 UN Committee on Economic, Social and Cultural Rights, General Comment No 12: On the Right to Adequate Food,
UN Doc, E/1999/5 (12 May 1999) confirms that the right to health cannot be met without a healthy environment.
3 These are contained in International Covenant on Economic, Social and Cultural Rights, opened for signature 16
December 1966, 993 UNTS 3 (entered into force 3 November 1976) arts 11 and 12 (article 11 makes explicit the
right to be free from hunger and mentions terms such as nutrition, clothing and housing, as well as the continuous im-
provement ofliving conditions); InternationalCovenanton Civil andPoliticalRights, opened for signature 16 December
1966, 999 UNTS 171 (entered into force 23 March 1976) art 6; and UniversalDeclaration ofHuman Rights, GA Res
217A (III), UN GAOR, 3" sess, 18 3 " plen mtg, UN Doc A/810 (10 December 1948). For a detailed discussion on
the particular rights in question, see, eg, Naser and Afroz, above n 7, 145-9; John von Doussa, Allison Corkery and
Renee Chartres, 'Human Rights and Climate Change' (2007) 14 Australian InternationalLaw Journal 161, 164-8.
An increasingly dire example is the indigenous population in the Amazon, which relies significantly on the resources
of that region and is highly vulnerable to its destruction, much more so than the population of greater Brazil. See,
eg, Sylvia Maus, 'Hand in Hand against Climate Change: Cultural Human Rights and the Protection of Cultural
64 AUSTRALIAN INTERNATIONAL LAW JOURNAL

Another category comprises the rights that protect the existence of a climate change
debate. Where would this discourse be without freedom of expression and association, the
right to legal remedies and to receive information and participate in decision-making, as
well as obligations on States to investigate and study an issue as part of the decision-making
process?" These notions relate to the concept of rights, but are not tied to the environment
specifically.40 Their exercise helps ensure that the structures in society which hold decision-
making powers adopt processes conducive to fair and inclusive decisions on environmental
issues. 1 Additional international instruments guarantee rights to seek, obtain and disseminate
information about human rights, draw attention to their observance, meet to promote and
protect them, have access to information and remedies for violations, 42 review of resulting
decisions, and participation in decision-making by those who are likely to be affected.4 ' These
procedures encourage policy-making which reflects the views of those most marginalised and
most at risk,44 enabling decision-makers to better balance of environmental, social, economic
and security interests, and in particular, various risks and rights associated with climate
change.4' Environmental defenders work tirelessly on this debate, and have been assaulted,
threatened, kidnapped and even murdered when attempting to exercise their rights in
relation to climate change.46 Individuals and communities feel the effects of these violations
immediately, but the secondary effect is on the very thing that the individual human rights
defenders were attempting to protect - the environment, and all who depend on it for the
fulfilment of human rights.47

Ill CHARACTERISING CLIMATE CHANGE ASA RISK IN

INTERNATIONAL SECURITY
While scientists are trying to determine how much global warming the planet can take,
States are trying to determine how much a community can take without suffering significant

Heritage' (2014) 27 Cambridge Review ofInternationalAffairs699, 701.

9 Knox, above n 31, [41]. See also Takin v Turkey (2006) 42 EHRR 50.
o Knox, above n 31, [26].
UN High Commissioner for Human Rights, Analytical Study on the Relationship between Human Rights and the
Environment, UN Doc A/HRC/19/34 (16 December 2011) [8].
42 Declaration on the Right and Responsibility ofIndividuals, Groups and Organs ofSociety to Promote and Protect Uni-

versally Recognized Human Rights and FundamentalFreedoms, GA Res 53/133, UN GAOR, 53 rd sess, UN Doc A/
RES/53/144 (8 March 1999).
3 Convention on Access to Information, Public Participationin Decision-Makingand Access to justice in Environmental
Matters, opened for signature on 25 June 1998, 2161 UNTS 447 (entered into force 30 October 2001) arts 6, 9(3),
(4), and 15.
" Naser and Afroz, above n 7, 152.
5 Knox, above n 31, 10 [25] and 12 [34]; Boyle, above n 10, 625.
.6 Dai Qing, an activist opposed to the Three Gorges Dam in China, was imprisoned in 1989. Ken Saro-Wiwa was
executed in Nigeria in 1995 for his activism against the degradation of the Niger Delta by crude oil extraction. An-
ti-logging environmentalists Rodolfo Montiel and Teodoro Cabrera were arrested in Mexico and allegedly beaten and
tortured on fabricated charges in 1999. Russia's Grigory Pasko, a journalist who reported on dumping of radioactive
waste, was convicted of treason and sentenced to four years in prison in 2001. Sister Dorothy Stang, an activist for
protection of the Amazon, was shot and killed in 2005. Korea's Yul Choi endured house arrest after speaking on
nuclear waste disposal, and in 2013 was imprisoned for opposing a government development that would have nega-
tively impacted the environment. India's Medha Patkar was arrested and beaten many times in her long career as an
anti-dam activist, as was Nobel Peace Prize laureate and Kenyan environmentalist Wangari Maathai. See Margaret
Sekaggya, Report of the Special Rapporteuron the Situation of Human Rights Defenders, UN HRCOR, 1 9
,h sess, UN
Doc A/HRC/19/55 (21 December 2011) [64] - [92].
7 Ibid [28].
 CONCEPTUALISING CLIMATE CHANGE IN LAW 65

disruptions." Academics theorised as early as the 1990s that environmental scarcities could
trigger violence and the idea gained political traction in the US during the mid-2000s,
thanks in part to post-9/11 attention to the variously friendly and hostile regimes in the
Middle East associated with oil dependence. Internationally, the 'securitisation' of climate
change became official in 2007 in the UN Security Council, when the UK called the first
debate on the impact of climate change on security. 9 That debate identified a number of the
specific security risks associated with climate change already discussed, including population
movement and displacement, food and water insecurity, and infrastructure damage. 0 The US
Department of Defense released its own report on the matter in 2011," and the UN officially
embraced the characterisation in 2014, when, for the first time, its Intergovernmental Panel
on Climate Change (IPCC) Report included a chapter on security.
The push to securitise climate change does achieve at least some of the direly needed reforms
in the debate on climate change. In a global debate where some still deny the anthropogenic
nature of climate change, the characterisation of it as a risk factor in international security gives
it a certain sense of validity.5 2 In its consideration of rainfall patterns, desertification trends
and gradual rising sea levels, it has a conceptual benefit over the human rights framework,
which tends to consider environmental concerns only when they immediately and directly
relate to humans.53 Furthermore, the sense of urgency inspired by 'international security'
is unmatched - after all, the very term implies a risk to survival, a category of policy that
occupies the highest echelons of governments and tends to attract the attention of 'political
heavyweights' and open up the possibility of emergency measures.54 In part, it has done
this in tandem with human rights concerns; with climate change being a threat on so many
different levels, security concerns inevitably overlap with human rights ones, and the security
characterisation has invigorated discussion over our ability to maintain existing human rights
standards in a rapidly changing environment.5 5 But there may also be too much urgency.
National security policy often includes military responses, and there is doubt that a military
response to climate change is necessary, let alone beneficial.5 ' To be sure, this is a somewhat
simplistic assumption - interaction between the military and society is far more nuanced
than weapons, tactics and war, and militaries around the world have supported developing
technologies, the energy and resources sector, and civilian leadership in matters such as racial
integration, and humanitarian work.5 7 Nevertheless, the focus on security could have the
effect of quickly forcing through extraordinary measures to address the threat, measures at

8 Carlarne, above n 17, 458.

9 Busby, above n 24, 469.
50 UN Security Council, 'Security Council Holds First-Ever Debate on Impact of Climate Change on Peace, Security,
Hearing Over 50 Speakers', SC/9000, 5663d mtg (16 April 2007) <http://www.un.org/press/en/2007/sc9000.doc.
htm>.
' US Department of Defense, Trends and Implicationsof Climate Changefor Nationaland InternationalSecurity (Wash-
ington, DC, 2011).
52 Sarah E Light, 'Valuing National Security: Climate Change, the Military, and Society' (2014) 61 UCLA Law Review
1772, 1797.
5 Knox, above n 31, 17 [53].
Busby, above n 24, 469; Scott, above n 20, 229; Richard Mathew, 'Is Climate Change a National Security Issue?'
(2011) Issues in Science and Technology 49, 49.
5 Carlarne, above n 17, 465.
56 Hartmann, above n 23, 240; Scott, above n 20, 228.
5 Light, above n 52, 1774-6.
66 AUSTRALIAN INTERNATIONAL LAW JOURNAL

odds with those working in science, development, and even environmental protection itself.
How do these links play out in practice? It may well be, as one commentator pointed
out, that the US$3 billion peacekeeping operation in Darfur would have been better spent
on the basic causes of the conflict, including drought and desertification." But in every legal
context, from security to human rights, the causal relationship between climate change and
a specific security-related event is difficult to establish and often indirect. This is an oddity in
the security realm, as security threats tend to emanate from human agents who intentionally
seek to inflict damage on State interests. The securitisation of climate change has created a
security threat that lacks the equivalent of a national security mens rea.o Considering the
extremity of measures taken in the name of national security, and especially the militarised
nature of the solutions, this aspect of the characterisation is problematic. 1 Partially for this
reason, the acceptance of climate change and security depends not just on how convincing
and logical the relationship is. It also depends on what States believe the ramifications of
that acceptance might be in terms of their own power and obligations, and those of the
international community and its associated institutions.62 This too tends to highlight the
disparity between developed and developing countries. For example, the developed countries
that are permanent members of the UN Security Council could shore up their powers at the
international level by characterising climate change as a security risk and therefore placing
it in a domain where their vote is outsized and their veto is absolute, rather than the more
democratic UN General Assembly. On the other hand, even within the Security Council,
countries risk further empowering the US as the military superpower if they concede that
climate change requires a response of that nature; China and Russia, two States that opposed
climate change securitisation during the initial UN debate in 2007, have comparatively little
focus on climate change in their own military planning. Meanwhile, developing countries
may fear that securitisation of climate change could lead to the imposition of strict limits
on their economic activity in an attempt to address a phenomenon that they had little part
in creating. Indeed, during the 2007 UN Security Council debate, a coalition of developing
States raised concerns that the Security Council was not the appropriate forum to address
the topic, and emphasised sustainable development and distinguished obligations while
downplaying climate security risks."6
Another issue is imprecision. Climate security could describe threats to international
security as outlined above, but also generally to human security, to economic security, and
to national security. The absence of a firm definition creates room for political manipulation
to apply the term to whatever tangentially-related policy is on offer. 5 Another reason that
developing countries in particular have resisted securitisation is for its potential justification

5 Mathew, above n 54, 57.

5 Scott, above n 20, 224.
60 Busby, above n 24, 471.
61 Mathew, above n 54, 59.
62 Scott, above n 20, 226.
63 See Michael Brzoska, 'Climate Change and the Military in China, Russia, the United Kingdom, and the United
States' (2012) 68 Bulletin of theAtomic Scientists 43.
6. UN Security Council, 'Security Council Holds First-Ever Debate on Impact of Climate Change on Peace, Security,
Hearing Over 50 Speakers', SC/9000, 5663d mtg (16 April 2007) <http://www.un.org/press/en/2007/sc9000.doc.
htm>.
65 Carlarne, above n 17, 466.
 CONCEPTUALISING CLIMATE CHANGE IN LAW 67

of military intervention, whether to enforce as-yet-undefined legal obligations or otherwise. 6

And this imprecision applies to leadership, too. Is this the purview of the UN Security Council,
or is it national defence departments, or someone or something else entirely? Certainly, any
national approach is doomed to fail in addressing this international concern, as reliance on
domestic law produces an inevitably fragmented approach that focuses more on domestic
agendas than on climate change as a concern on a global scale. 7 Realistically, this means that
if securitisation continued to a point that the UN Security Council essentially 'took over', the
matter may well be dealt with in a more efficient way." States already know what is required
to mitigate climate change, and to adapt to it; the issue is how to bring about that action
when it is politically unpopular in developed countries. There is some precedent for the UN
Security Council using its Chapter VII powers to decree binding obligations upon States

-
for example, Resolution 1373/2001 on terrorism, following the 9/11 attacks. 9 However, it
may well be in the interest of developing countries especially to continue treating climate
change as a question of development, which has assistance and special funds attached to it,
rather than punting it to the UN Security Council for veto by the five permanent members,
a group comprising the largest greenhouse gas emitters in the world. 70 Regardless, since there
is no agreement on what the term encompasses, there is no clear body to be responsible, and
without that consensus, the UN Security Council is unlikely to take it up, nor is it likely
that there will be a new international agreement.71 In this regard, it is unclear whether the
urgency of climate change as a security concern has much practical effect on the international
community. Many States have enthusiastically embraced climate change securitisation in their
domestic defence framework, but the lack of clarity has stalled the international community.
That being so, climate treaty negotiations and existing obligations may represent the better
chance of forcing action on the requisite global scale. 72 Despite the survivalist immediacy of
security rhetoric when it comes to climate change, actual security-driven responses still seem
far behind the perceived urgency of the threat, suggesting that perhaps the usefulness of that
7 3
rhetoric is overestimated.
Perhaps the most significant issue with securitisation is that it tends to obsess over
projected migration statistics, emergence of diseases, and levels of conflict or violence, and
thus focuses on the symptoms rather than the disease - on adaptive measures that respond to
the consequences of climate change, rather than the causes. In 2014, the US Department of
Defense released the Climate ChangeAdaptation Roadmap, which set out how it planned to
adapt to rising sea levels, drought and storms. Amongst the measures discussed were reducing
outdoor training exercises due to heatwaves, testing equipment to ensure functionality in
extreme weather, incorporating climate-related risks into broader strategy, and assessing the
vulnerability of military bases, particularly in low-lying locations, where generators were
66 Scott, above n 20, 228.
67 Carlarne, above n 17, 466.
68 Scott, above n 20, 228.
69 Threats to InternationalPeace and Security Caused by TerroristActs, SC Res 1373, UN SCOR, ,h mtg, UN Doc S/
4385
RES/1373 (28 September 2001). See also United Nations Peacekeeping, SC Res 1422, UN SCOR, 4 5 7 2 n mtg, UN
Doc S/RES/1422 (12 July 2002); Non-proliferationofWeapons ofMass Destruction, SC Res 1540, UN SCOR 4956 h
mtg, UN Doc S/RES/1540 (28 April 2004).
70 Mathew, above n 54, 57.
71 Carlarne, above n 17, 466.
72 Ibid.
7 Scott, above n 20, 230.
68 AUSTRALIAN INTERNATIONAL LAW JOURNAL

moved, sandbags were added, and construction plans were shelved. 4 But only a year later,
despite the military's outlook, the US was insisting on non-binding targets for emissions
reduction in the Paris Accord,75 and in 2017, the US announced its withdrawal from the
treaty altogether. Across the Pacific, China's military has explicit responsibility for disaster
relief, which is also an adaptive measure, and also holds responsibility for promoting economic
development, which has contributed to, rather than mitigated, the causes of climate change.76
Of course, climate change is hardly the only global issue that has global actors focusing
on tourniquets rather than long term strategies. The international movement of refugees
raises many similar considerations, particularly in the current context of mass conflict-related
exodus. With the knowledge that climate change could escalate that migration significantly,
governments increasingly see the flood of asylum seekers as a question of national security
rather than human rights. Governments routinely approve action based on the perceived
security threat of refugees, but they do so to address the immediate impact and consequences
of their arrival, rather than a broader consideration of why there is an international refugee
crisis. The same is true for securitised climate threats - governments are willing to act on
the consequences rather than the causes, and even then, action on said consequences may
cause more harm than good. For example, it is conceivable to think that the securitisation
of climate change may be used by States to ignore a foreseen consequence of climate change,
by denying responsibility for and assistance to climate-related displaced populations due to
security concerns.7 7 On one hand, this enables action without establishing a strict causality,
something that human rights approaches to mitigation have never been able to overcome. But
adaptive measures are useless without a complementary mitigation strategy, especially since
adaptation will not slow down the process of climate change, and the adaptation measures
adopted may very well become obsolete as climate change becomes larger and faster and
more difficult to adapt to. Within the international context, theoretically the UN Security
Council could identify climate change itselfas a threat to the peace and use its Chapter VII
powers accordingly, and in such a scenario, the objections would be political rather than legal.
But currently or in the near future, it is unlikely that any State would acquiesce to another
leading such an effort in the UN Security Council, let alone leading such an effort itself.'
What the security model overlooks is the mitigating aspect of climate change as a long-term
phenomenon. Without a mitigation strategy to reduce the acceleration of greenhouse gas
emissions and to store carbon, the effects of climate change will eventually wholly exceed the
adaptive capabilities of most States.79
Conversely, one important thing that the security paradigm offers far more than the
human rights paradigm is the way it facilitates recognition of 'the common origins of what
may otherwise appear as unconnected phenomena.so Both the public and policy makers

7 US Department of Defense, 2014 Climate Change Adaptation Roadmap (Washington, DC, 2014).
7 Charles Parker and Christer Karlsson, 'The UN Climate Change Negotiations and the Role of the United States:
Assessing American Leadership from Copenhagen to Paris' (2018) 27(3) EnvironmentalPolitics519, 523; Raymond
C16mencon, 'The Two Sides of the Paris Climate Agreement: Dismal Failure or Historic Breakthrough?' (2016) 25
The JournalofEnvironment and Development 3, 6.
76 Brzoska, above n 63, 50. However, China's strategy does also involve planting trees for mitigation.
n Nishimura, above n 28, 127.
7 Scott, above n 20, 224.
7 Busby, above n 24, 502.
so Scott, above n 20, 229.
 CONCEPTUALISING CLIMATE CHANGE IN LAW 69

would be better served by remembering that climate change impacts the availability of, for
example, food and water, and that scarcity plays an important role in exacerbating existing
tensions between the rich and the poor and the urban and the rural. Having this entire chain
of consequences in mind may inspire the political will necessary to focus on longer-term
mitigation and adaptation measures, especially since, in a domestic setting, national security
concerns have long been drivers of any particular State's body politic. However, clearly, there
are also problems with the security model. Linking climate change to international security
concerns risks compromising the response to climate change, confusing the justification of
security, and reducing much needed developmental aid if military resources are prioritised.82
The 2014 IPCC Report, the first IPCC report to include that security element, acknowledged
that climate change put both human security and human rights at risk, but argued that
human security was inclusive of political, sociocultural and economic rights rather than
merely legal ones. It added that 'framing the issue of rights specifies minimum standards
that apply universally, and such rights are often not realized in national and international law
and practice or neglect the harm or rights of nonhuman species'." This seemed to suggest
settling for the lower bar of national security because the lofty standards of human rights
were unattainable. This article will now turn to the human rights framework to examine
whether that is the case.

IV CHARACTERISING CLIMATE CHANGE ASA STRUGGLE

FOR HUMAN RIGHTS
The relationship between climate change and human rights in international law is well-
established," having emerged soon after the UN's acknowledgment of the relationship
between climate change and security. The UN Human Rights Council adopted its first
resolution on climate change and human rights in 2008, requesting that the Office of the High
Commissioner for Human Rights undertake a detailed analytical study of the relationship
between the pair and formally recognised that climate change 'poses an immediate and far-
reaching threat to people and communities around the world and has implications for the
full enjoyment of human rights'." It was followed by a further resolution in 2009, which
listed the rights to life, adequate food and drinking water, health standards and sanitation,
adequate housing and self-determination as specific rights affected by climate change." The
link between the two has remained on the Human Rights Council and Office of the High

' Light, above n 52, 1809.

82 Mathew, above n 54, 57.
8 Intergovernmental Panel on Climate Change, Climate Change 2014: Impacts, Adaptation, and Vulnerability (Cam-
bridge University Press, Cambridge, 2014), pp. 759.
8 The UN's Statements on human rights and the environment date back to as early as 2003 and a particular resolution,
Human Rights and the Environment, HRC Res 19/10, HRCOR, 19h sess, 53r mtg, UN Doc A/HRC/RES/19/10 (19
April 2012) identifies the following pertinent resolutions: HRC Res 2003/71 (25 April 2003), HRC Res 2005/60
(20 April 2005), HRC Res 7/23 (28 March 2008), HRC Res 9/1 (24 September 2008), HRC Res 10/4 (25 March
2009), HRC Res 12/18 (2 October 2009), HRC Res 16/11 (24 March2011), HRC Res 18/11 (29 September 2011)
and HRC Res 18/22 (30 September 2011).
Human Rights and Climate Change, HRC Res 7/23, UN HRCOR, 7 h sess, 41s mtg, UN Doc A/HRC/7/23 (28
March 2008) preambular [1].
86 Human Rights and Climate Change, HRC Res 10/4, UN HRCOR, 10,h sess, 41smtg, UN Doc A/HRC/10/L. 11 (12
May 2009) preambular [7].
70 AUSTRALIAN INTERNATIONAL LAW JOURNAL

Commissioner for Human Rights' radars ever since, 7 and is reflected by various human
rights treaty bodies, as well as in the text of the United Nations Framework Convention on
Climate Change ('UNFCCC')," the principal environmental treaty, which incorporates
general principles that States are to respect in their action on climate change" and specific
principles that States pledge to undertake regarding mitigation, education, resources and
information on climate change. 0
This is perhaps surprising. After all, when the major international human rights
instruments emerged, environmental rights were not included and the link between human
actions, human dependence on the environment and degradation of that environment were
not well understood." There is no broadly recognised right to a healthy environment, and
efforts to create one have consistently stalled.92 Theoretically, to make full use of the existing
legal system of international human rights law, treaties would need to be updated. However,
rather than attempting the near-impossible feat of adding environmental protection to
existing international human rights law treaties, this article relies on creative reinterpretation.
After all, existing international instruments offer an array of rights and concepts intimately
related to climate change, and need only to be re-read in such a fashion that was not
necessarily envisaged at the time of their negotiation." This framework relies on recognising
and analysing the environmental impacts on human beings rather than on the State or on
the environment itself - on life, on health, on private property for human beings. 4 From
the abovementioned resolutions, it is clear that this process is already underway. Numerous
international judgments, particularly by the European Court of Human Rights on
environmental threats to, among others, the right to life, the right to respect of private and
family life and home, and the right to an effective remedy, likewise show judicial willingness
for such reinterpretation.
There is a number of common areas that encourage a synergy between climate change
and human rights. A significant one is the dependence on both international cooperation
and concern for humanity generally." There is also something compelling about human
rights, particularly to democratic States, which often consider them, at least in principle,
to be inalienable, universal, inviolable and integral to society, in ways that other laws and
regulations, including international and domestic environmental laws and regulations, are
not. 7 On a philosophical level, the human rights approach caters to a number of different

8 See, eg, Human Rights and Climate Change, HRC Res 18/22, UN HRCOR, 18,h sess, 37 h mtg, UN Doc A/
HRC/18/2 (20 September 2011); Report of the Office of the United Nations High Commissionerfor Human Rights
on the Relationship Between Climate Change and Human Rights, UN GAOR, 10,h sess, UN Doc A/HRC/10/61 (15
January 2009).
" UNFCCC. See also Tully, 'The Contribution of Human Rights', above n 9, 179.
9 UNFCCC, art 3.
90 UNFCCC, art 4.
1 Knox, above n 31, 4 [7]. See also Aminzadeh, above n 2, 259; von Doussa, Corkery and Chartres, above n 37, 163.
92 Carlarne, above n 17, 464.

9 Rajamani, above n 12, 406. See also Tully, 'Like Oil and Water', above n 1, 218.
Boyle, above n 10, 613.
9 See, eg, in the respective order of the right to life, the right to respect of private and family life and home, and the
right to effective remedy: Oneryildiz v Turkey [2004] ECHR 657; Guerra v Italy [1998] ECHR 7; Kolyadenko v Russia
[2012] ECHR 338.
96 Laura Horn and Steven Freeland, 'More than Hot Air: Reflections on the Relationship Between Climate Change and
Human Rights' (2009) 13 University ofWestern Sydney Law Review 101.
9 Andrea Schapper and Markus Lederer, 'Introduction: Human Rights and Climate Change: Mapping Institutional
 CONCEPTUALISING CLIMATE CHANGE IN LAW 71

conceptions of justice: international justice between developing and developed, generational

justice for a sustainable future, and societal justice for groups within a community that are
most vulnerable to climate change." The approach offers a moral counter to policies based
on politics, security or even economics." It also offers one that crosses borders. By and
large, developed countries are only mobilising to fulfil their own commitments, including
their UNFCCC obligations. States generally do not owe human rights treaty obligations to
individuals beyond their own jurisdiction,100 and existing human rights instruments define
their jurisdiction within various parameters, 101 an endless difficulty for any category of
international law. Yet the environmentally corrosive acts of one State spread easily to others,
with open paths through air and water. The human rights approach is global in nature, and
it represents the first attempt to address the problem collectively rather than on an individual
State basis, the latter of which is doomed to fail. It also imposes State obligations towards
not just to the citizens of the State, but also non-nationals present in its borders, which is
significant considering the global movement of people caused precisely by climate change.10 2
Many UN materials further recognise that climate change requires global co-operation, 03
and calling on international co-operation is natural within this network of human rights,
much more so than say, State-to-State economic problems. And while States function in a
consent-based system and retain a discretion as to whether to enter treaties,1 04 many core
human rights have attained customary law status and a level of universal agreement that
securitised conceptions of climate change cannot match.
The great advantage of this approach is access to a rich history of laws, obligations and
language codified in various human rights instruments that countries are already party to. 05
The UNFCCC interplays with this tradition in a number of ways - from being assisted in
determining the level of climate change that is 'dangerous' within the meaning of art 2 of
the UNFCCC,o' to the domestic obligation of States to legislate protection against threats
to human life in the context of the environment.1 7 For example, the European Court of
Human Rights has found breaches of the right to life in almost all cases of environmental
damage threatening human life and resulting from violations of domestic legislation, and it
is plausible to consider that such principles would apply to implementing legislation for the

Inter-Linkages' (2014) 24 Cambridge Review ofInternationalAffairs 666, 667. Nevertheless, it is worth noting that
some human rights treaties expressly provide that States can derogate from various obligations, and some rights are
subject to proportionate limitation vis-i-vis the rights of others or other societal interests.
98 Ibid, 667.
9 Stillings, above n 8, 651-2; Hunter, above n 33, 347.
ioo Tully, 'Like Oil and Water', above n 1, 220. International jurisprudence has confirmed extended jurisdiction beyond
a government's territory in certain circumstances, for example in the Al-Skeini case before the European Court of
Human Rights. Customary law, as opposed to treaty law, may also reach beyond traditional borders and jurisdictional
limits.
ios Knox, above n 31, [48].
102 Naser and Afroz, above n 7, 150.
03 See, eg, UNFCCC, preamble; Human Rights and Climate Change, HRC Res 7/23, UN HRCOR, 41st mtg, UN Doc
A/HRC/Res/7/23 (28 March 2008); UN High Commissioner for Human Rights, Analytical Study on the Relationship
between Human Rights and the Environment, UN Doc A/HRC/19/34 (16 December 2011) [65].
J0n Horn and Freeland, above n 96, 111.
105 Naser and Afroz, above n 7, 152.
106 See, eg, Simon Caney, 'Climate Change, Human Rights and Moral Thresholds' in Stephen Humphreys (ed), Human
Rights and Climate Change (Cambridge University Press, 2009) 69, 69-71.
107 See, eg, Osman v United Kingdom (2000) EHRR 245 [115]; Ilhan v Turkey [2000] ECHR 354; Mahmut Kaya v
Turkey [2000] ECHR 129.
72 AUSTRALIAN INTERNATIONAL LAW JOURNAL

UNFCCC.os Through existing international human rights law mechanisms, obligations can
be interpreted, General Comments or Recommendations can be made by UN treaty bodies,
Advisory Opinions can be issued by regional human rights bodies, and an endless stream
of reports, press releases and statements can continue to add to public information.0 9 The
Human Rights Council can call on a State or group of States to address particular issues
or cause further investigation and reporting, though unlike its more powerful sister, the
Security Council, the Human Rights Council has limited concrete action at its disposal and
focuses essentially on public pressure. And because all government organs have obligations
under international law in relation to climate change,110 incorporating human rights is
useful in empowering the judiciary to rely on human rights law in arbitrating environmental
rights. This is particularly valuable as the judiciary is one of the least politicised branches
of government in many countries, and is thus less likely to argue the partisan context of
environmental protection. Examples have already emerged in Europe, where several courts
have used language from the European Convention on Human Rights in deciding cases
that deal with environment and human rights."' This could set precedent for other regional
human rights courts and tribunals in the absence of a central, international judicial organ
that has the appropriate jurisdiction. Additionally, this utilises the vast human rights agencies
for monitoring, which although not as sophisticated as national and international security
monitoring, are still much more developed than environmental law monitoring.112
The most vexing issue in the human rights system is its limited capacity for enforcement.11
Here, the near impossibility of establishing an evidentiary and causal chain between a particular
human rights violation and a particular climate change event and a particular State or actor
is a significant impediment." The 'polluter pays' principle in international environmental
law attempts to allocate responsibility for the impact of climate change," requiring the actor
who caused the harm to 'pay for' the damage. But in terms of transnational incidents, the
principle has been applied only to particular and identifiable sites of pollution."' Climate
change evades those circumstances with its long onset and collective contribution from many
large polluters, not to mention that the polluter in such a calculation would invariably be a
large, developed and powerful State, or group of States, who would be politically resistant to
accepting that responsibility.1 1 7 It is also difficult to determine with precision which aspects
or impacts of climate change are due to anthropogenic emissions, and which are natural

10 MargarethaWewerinke, Climate Change, Human Rights and the InternationalLegal Order: The Role of the UN Human
Rights Council, Cambridge Centre for Climate Change Mitigation Research, Working Paper No 4, 2013, 5.
109 Ibid 9.
iio von Doussa, Corkery and Chartres, above n 37, 168.
H] See Margaret Demerieux, 'Deriving Environmental Rights from the European Convention for the Protection of
Human Rights and Fundamental Freedoms' (2001) 21 Oxford Journal of Legal Studies 521. Demerieux argue that
the common practice of using human rights law in environmental cases shows that there do not need to be explicit
additions of environmental rights to the Convention This article generally agrees with that proposition and thus does
not dwell on seeking to add a formal 'right to a healthy environment' into the Convention or other existing treaties.
The view of this article is that such a task would be exceedingly difficult and not necessary, but though this discussion
is related to this article, it is ultimately beyond its narrow scope.
112 Aminzadeh, above n 2, 259.
113 Horn and Freeland, above n 96, 108.
" Boyle, above n 10, 618.
"5 Rafael Reuveny, 'Climate Change-Induced Migration and Violent Conflict' (2007) 26 PoliticalGeography 656, 669.
116 See Miller, above n 11.
1" Ibid; Reuveny, above n 115, 669; Nishimura, above n 28, 124.
 CONCEPTUALISING CLIMATE CHANGE IN LAW 73

occurrences. The relationship between the human acts that cause emissions and the physical
impact those emissions have is long and complex, and as a causal link, legally problematic.
It also spans over such a long period of time that the individuals who contributed to
emissions that are still present in the atmosphere today may now be long dead." Because
environmental conditions alone are rarely the sole factor responsible for human rights
violations, this challenge extends to linking climate change to particular State intervention
options and specific remedies, not to mention the complexity of jurisdictional issues, and
litigation strategies.' 9 In part, this is what precludes the International Court of Justice from
hearing environmental concerns - it would be difficult to establish which particular State is
responsible for the damage, and the broad language of the UNFCCC would complicate the
task of selecting a particular breach of duty. Of course, the cost of litigation in that arena also
contributes to making it prohibitive to many small States.120
The answer to the conundrum of apportionment may lie in what we consider State
obligations to be. For now, this article has considered the use of international human rights
law to hold nations accountable for failure to mitigate climate change harms. The alternative
is to use international human rights law as a means of holding nations responsible for
failing to adapt to climate change, with a focus on 'acts taken by a State in preparation
for climate change-related threats to its citizenry. 121 Adaptation measures can be proactive
ones such as disaster planning, dam management and crop diversification, or reactive like
emergency responses and relocation efforts. 122 Any long-long term strategy for addressing
climate change requires both mitigation and adaptation because, considering the current
state of climate change, mitigation alone is unlikely to solve the problem. 123 The concept is
an interesting one, in that it asks States to accept legal obligations towards a problem that
they have not been found to be responsible for.1 24 But in Buddayeva v Russia,1 2 5 a case in
which the authorities received information about mudslides damaging a dam but failed to
authorise repairs, with the dam eventually being destroyed and causing multiple deaths, the
European Court of Human Rights held that States were duty-bound to safeguard against
threats to life. Likewise, in Oneryildiz v Turkey, the European Court of Human Rights held
that the government failed to guarantee respect for the right to life when it did not warn a
slum community about a potential gas explosion nearby. 126 With the focus on adaptation, the
apportionment problem becomes obsolete because it is no longer necessary to causally link
particular emissions with particular consequences. An individual merely has to show that the
government 'did not properly adapt to climate change harms', 127 whether that government or
State caused the harm or not.

Hs United States of America, Observations by the United States of America on the Relationship between Climate
Change and Human Rights, Submission to the Office of the High Commissioner for Human Rights, 31 December
2008 <http://www.ohchr.org/Documents/Issues/climatechange/Submissions/USA.pdf>.
119 Aminzadeh, above n 2, 264.
120 Horn and Freeland, above n 96, 120.
121 See Stillings, above n 8, 640, fn 25.
122 Hunter, above n 33, 359.
123 Daniel H Cole, 'Climate Change, Adaptation, and Development' (2008) 26 UCLA Journal of Environmental Law
and Policy 1, 2.
124 Stillings, above n 8, 660-1.
125 [2008] ECHR 216.
126 Oneryildiz v Turkey [2004] ECHR 657.
127 Stillings, above n 8, 657.
74 AUSTRALIAN INTERNATIONAL LAW JOURNAL

Of course, the adaptation approach, like the mitigation approach, has its own weaknesses.
Many developed countries have resisted the notion of a human rights framework to address
climate change, and would presumably resist implementation of such a framework. Since
the US, historically the largest emitter of greenhouse gas, is not a party to the International
Covenant on Economic, Social and Cultural Rights, litigation possibilities are limited under
that instrument. Meanwhile, the less developed countries, who tend to be most enthusiastic
about the human rights framework, and who used their limited political capital to support
the human rights approach, and who face the most hardships related to climate change, have
the least to spend on reactive or proactive initiatives when they are found liable for adaptive
failure. As a matter of principle, the ability to hold those truly responsible for the situation
we find ourselves in, effectively disappears.128
Finally, like the securitisation of climate change, the human rights framework for climate
change creates greater interest in a political debate that has become stagnant,129 though
arguably, it does not create the same urgency as a question of national security. Considering
the technical language present in treaties such as the Kyoto Protocol, the focus on human
rights enriches a science-driven discussion with the real life effects of climate change on
people who will suffer as a result of it."o The political value of a human rights approach is
as compelling as the political value of securitisation, though in a different way - by giving a
'human face"' to the reality of climate change, it instantly creates a moral imperative and
could substantially increase international scrutiny.132 Human rights violations sound much
graver, politically, than environmental harm, and this relates back to the very issues at stake
as being not just the right to food or water, but the right to freedom of speech or public
information, rights that protect and foster our ability to engage in a genuine climate change
and disaster law debate. 3 Connecting procedural rights with substantive rights strengthens
the overall mechanism of international human rights as a means of tackling climate change,
and it creates a self-fulfilling system: protecting procedural rights encourages better policies,
which in turn protect substantive rights. Failing to protect procedural rights results in the
opposite." This nexus shows that tackling climate change in a human rights context focuses
not just the individual's right to a healthy environment, but also the power of the individual
to ensure these rights are met. Incorporating a human rights framework on climate change
opens up procedural human rights as tools to address the environment.3

V CONCLUSION
This article has sought to address the implications of considering climate change in an
international security paradigm and in an international human rights law paradigm. Climate
change is changing the very nature of the world we live in, and those changes are becoming
more radical as time passes. Climate change interplays with existing social stressors,

128 Ibid, 663-5.

129 Aminzadeh, above n 2, 258.
130 Limon, above n 33, 451; Hunter, above n 33, 332.
131 von Doussa, Corkery and Chartres, above n 37, 173.
132 Aminzadeh, above n 2, 260. See also Tully, 'Like Oil and Water', above n 1, 216.
133 Aminzadeh, above n 2, 245.
1 Knox, above n 31, 13 [40], 14 [42].
'35 UN High Commissioner for Human Rights, Analytical Study on the Relationship between Human Rights and the
Environment, UN Doc A/HRC/19/34 (16 December 2011) [8].
 CONCEPTUALISING CLIMATE CHANGE IN LAW 75

disproportionately affects the least developed countries on earth and incorporates a wide
range of international issues, including human security, development and migration, as well
as a wide range of human rights, from environmentally-dependent rights to the types of
rights that enrich our climate change debates and policies. 3 6 Given that climate change
increasingly affects international security and human rights, there is every reason to inject
that analysis into this debate, in the hopes of working towards a broader solution. By utilising
the existing frameworks of legal and procedural mechanisms, the avenues for redress against
climate change increase dramatically, and the added political pressure and sense of urgency
clarifies the debate and enlivens it.
Certainly, criticisms of both of these new approaches remain, and there is no easy way to
state which one is preferable. Does the conception of international security provide a 'useful
analytical construct', 7 or does it muddy an already highly charged political battleground?
Are human rights too aspirational, too rigid, too rooted in notions of morals and ethics that
may not be universal, no matter how hard we proclaim them to be? And on a practical level,
where do these constructs fall? In terms of international assistance, whether it is an obligation
or an act of charity, the human rights approach advocates the notion that States should
commit to certain obligations, 1 3 and that same sense of commitment is unlikely to result
from policies that are inward-looking and focused on protecting a State's own interests to the
exclusion of others. On the other hand, what the human rights approach lacks, and what a
security risk brings with it, is high levels of public validity and, often, the significant resources
attached to defence and military technology and capability. On the international stage, in
both the Security and Human Rights Councils of the UN, questions of climate change are
routinely plagued with protracted politicking and power imbalances. As one small island
State submitted, international multilateral negotiations result in States with little political
capital bargaining against political heavyweights, and heavyweight emitters, 'in an attempt
to preserve what should otherwise be rights entitled to all humans'.139 In contrast to small,
developing States, who emit little and can therefore offer little in terms of reductions, it seems
particularly perverse that these large emitters have the position of power precisely due to
having emissions that they can reduce.140 Effective action is unlikely to be forced by the moral
imperative of human rights alone, nor is it likely to lead to sound policy if it is committed to
within a military decision-making process. 4
At the outset, this article stated that assigning blame was not the difficulty faced by the
international system - rather, it was actually holding parties responsible in a meaningful
way. A securitised notion of climate change is ill suited to overcoming this challenge, as is
the more practical adaptation-based approach of the human rights framework. The causal
connection between a particular act or aspect to climate change, and a particular violation
of human rights or a particular security-related event, is almost impossible to establish. On

136 Schapper and Lederer, above n 97, 667.

'37 Busby, above n 24, 70.
13 For some, a human rights law legal regime best addresses climate change-induced migration - see Hartmann, above
n 23, 238.
'39 The Marshall Islands, National Communication regardingthe Relationship Between Human Rights and 7he Impacts of
Climate Change, Submission to the Office of the High Commissioner for Human Rights, 31 December 2008 <http://
www.ohchr.org/Documents/Issues/climatechange/Submissions/Republic-of the MarshalljIslands.doc>.
i40 Stillings, above n 8, 648.
"' Nishimura, above n 28, 129.
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a philosophical level, this is deeply unsatisfactory, but in terms of daily practice, removing
the 'blame game' from the equation may in fact make it easier to act on climate change,
especially since these two conceptions are capable of coexistence, with one form of analysis
complementing the other.14 2 The human rights context helps identify where States should
focus their attention, so regardless of the cause of the human rights violations, the obligations
of human rights instruments upon States are positive.' That means the State has more than
a negative obligation not to cause human rights abuse, but rather to actively prevent it. The
security context can then clarify the short, medium, and long-term consequences of climate
change in a more holistic way, linking seemingly unrelated societal conflicts and other social
pressures to the ongoing process of climate change, and better informing us of the real risks
we face.

142 Scott, above n 20, 228.

1n UN Committee on Economic, Social and Cultural Rights, General Comment No 3: On the Nature of State Parties'
Obligations,UN Doc, E/1991/23 (1990). The positive nature of the obligation to protect rights, rather than merely
a negative obligation not to infringe upon them, is long-standing and has been confirmed several times by the Eu-
ropean Court of Human Rights - for a good description of some of the relevant cases, see von Doussa, Corkery and
Chartres, above n 37, 169.