Juan Quintana

Public International Law

Nov 30, 2020

Climate Justice in International Environmental Law:

A new paradigm in the face of crisis?
Climate Change is one of if not the most pressing matter of our time. The latest report
from the IPCC is very clear: unless there is profound and immediate action, human and natural
systems are bound to suffer dire consequences and many of the climate-related risks are already
visible.​1 Even if some of the goals recommended by the Panel were to be enacted tomorrow
(halve emissions by 2030 and achieve net-zero by 2050), the long term impact on people and the
planet is irreversible and unpredictable. The reality and urgency of the climate crisis is bringing
changes to politics, culture, economics and, given that the concern for humankind transcends
national borders, to international law. With rising sea levels and temperatures, new challenges to
the ​lex lata ​arise as well. ​One of them is the change in the temporal perspective that climate
change entails. When laws and their enforcement today can radically affect living conditions in
the next century, and the effects can be measured and predicted with ever more precision, the
question of the rights of the inhabitants of the future becomes central, leading us to ask the
question: to what extent does climate change prompt a paradigm shift in principles of
international law by leveraging intergenerational justice and children's rights?
For the purposes of this paper, “climate change” will be understood as stipulated in
Article 1 of the United Nations Framework Convention on Climate Change as “a change of
climate which is attributed directly directly or indirectly to human activity that alters the
composition of the global atmosphere and which is in addition to natural climate variability
observed over comparable time periods”​2​.“Paradigm shift” will be taken to mean a fundamental
change in approach. “Environmental International Law” shall be understood as the area of public
international law marked by the application of principles (i.e precautionary, no harm principles)
which have evolved in the environmental context as well as draw from principles within the
general corpus of public international law (i.e exercise of state jurisdiction)​3​. The concept of
“intergenerational justice” also known as intergenerational equity will be understood by its
original conceptualization to mean ‘fairness in access to planetary resources across time’, taking
into account the relationship between past, present and future generations; and the relationship
between humans and nature.​4 Finally, children’s rights shall be understood under the framework
of the Convention for the Rights of the Child (CRC) which stipulates that children’s best
interests should be a primary consideration for authorities at the private and public level​5​.
In order to answer the question of whether climate change has prompted a paradigm shift
in principles of international environmental law by leveraging intergenerational justice and
children’s rights, I will first describe how international environmental law has evolved until now
1
​Special Report on the impacts of global warming of 1.5 °C Summary for Policymakers, p.5.
2
Intergovernmental Panel on Climate change, Framework Convention on Climate Change (UNFCCC), Art.
3
Catherine Redgwell, “International Environmental Law” in Malcolm D. Evans (2019), p. 657.
4
​Edith Brown Weiss, The Planetary Trust: Conservation and Intergenerational Equity, 11
ECOLOGY L.Q. 495, 499 (1984); Edith Brown Weiss, Our Rights and Obligations to Future Generations
for the Environment, 84 AM. J. INT’L L. 198, 199–200 (1990).
5
United Nations, Convention on the Rights of the Child (UNGA Res. 44/25, November 1989), Article 3.
Juan Quintana
Public International Law
Nov 30, 2020
and how the context of climate change has challenged the utility and scope of its existing legal
instruments. This section will focus on intergenerational justice and how it has created new ways
of conceptualizing international environmental law. Secondly, I will discuss how existing human
rights conventions, specifically the Convention of the Rights of the Child (CRC), has played a
role in leveraging conventions on climate change, and vice versa. In this section I will focus on
the intersection between an evolving holistic environmental protection approach and an already
widely established human rights approach that is suddenly open to new interpretations. I will
conclude by introducing the potential of this climate change induced paradigm shift in
transforming the focus of public international law.
Climate change is a global phenomena. It´s implications and dimensions are often
complex and all-encompassing, which introduces an uncharted characteristic to previous
applications of international environmental law (IEL): a temporal dimension. As opposed to
economic and political crises, the climate crisis has been disrupting natural and human systems
and processes for a couple of decades now and will continue to wreak havoc for centuries to
come. Its primordial cause, greenhouse gas emissions, cannot be as easily controlled as
fluorocarbons were with the Montreal Protocol of 1987. Carbon dioxide and methane are emitted
in almost every activity that we relate to economic development and quality of life, like
agriculture, transportation and electricity generation.​6 This means there is a direct and relation
between the economic activities of today and the environmental conditions of tomorrow. This
context of climate change introduces the need to think about intergenerational justice, prompting
the necessity for new conceptualizations of previously applied principles of international
environmental law.
The history of international environmental law is relatively recent compared to other
parcels of public international law and is usually divided into three (sometimes 4) stages. The
first stage encompasses the period before the 1972 Stockholm conference that was characterized
by sparse and reactive legal responses to issues arising from resource use and their related
economic concerns. The second stage comprehends the period of increased global treaty-making
from 1945 to 1972, that allowed for a more conservationist approach towards environmental
protection, even if this approach was unsystematic and fragmented. The third stage happens
around 1992 when the Rio Conference of Environment and Sustainable Development takes place
and concludes in a declaration of principles and two major treaties, including the 1992 UN
Convention on Biological Diversity. This stage sought to undertake a more holistic and
precautionary approach, combining the need for environmental protection with the need for
economic development and consequently, embracing the principle of sustainable development​7​.
Before this stage there existed no global legal instruments that regulated the interaction of
species, ecosystems and habitats in a holistic way, a gap that was filled by the 1992 UN
Convention on Biological Diversity and the 1992 UN Framework Convention on Climate
Change adopted following the Rio Conference.

6
Jacqueline Peel, “The Practice of Shared Responsibility in relation to Climate Change”, SHARES
research paper 71 (2015), p.1.
7
​Development that meets the needs of the present without compromising the ability of future generations
to meet their own needs and balances social, economic and environmental concerns (WCED, 1987)WCED, 1987:
Our Common Future. World Commission on Environment and Development (WCED), Geneva, Switzerland, 400
pp., doi:10.2307/2621529.
Juan Quintana
Public International Law
Nov 30, 2020
The adoption of these new principles into IEL were of great importance because they
introduced environmental regulation as global issues that concerned humankind, transcending
State borders, and because they introduced an intertemporal concern that would begin the
conversation around intergenerational justice. Furthermore, the concerns introduced by climate
change have posed a challenge to the scope and utility of IEL instruments, which has led to a
new conceptualization of previous guiding principles. For example, in the context of climate
change, the principle of State responsibility​8 presented a challenge in policy making because
sources of greenhouse gas emissions are spread around the globe, and even though the
responsibility is shared between major emitters of GHG whose independent actions contribute to
climate change (cumulative responsibility), it is difficult to attribute a particular instance of
damage to specific actions. The principle of cooperative responsibility, which shares
responsibility for joint actions, evolved to a preventive and precautionary approach that
characterized treaties such as the 1997 Kyoto Protocol. Even with this ex ante approach in IEL
treaties, there are already irreversible effects of climate change that fall disproportionately on
developing countries and poor communities. This issue introduces the necessity for climate
justice, to compensate communities that have the least responsibility and are the most affected.
The introduction of climate justice and intertemporal concerns, which combine into such
necessary concepts such as intergenerational justice widen the scope and utility of existing
instruments of public international law.
The new context of climate change in IEL has also shed a new light in previously
established institutional frameworks in other areas of international law, such as Children’s rights.
In turn, Children’s rights can be used to leverage climate change adaptation and mitigation
measures because their ability to claim climate justice, seeing as young people are
disproportionately affected by climate disasters and diseases as well as intragenerational justice
(their childhood, health, physiological and mental health, future and participation are at stake in
the context of climate change)​9​. In fact, the UN Convention on Climate Change and the 1989
Convention on the Rights of the child , Article 6 of the text adopted by the 1989 Convention on
the Rights of the Child stipulates that “​States Parties shall ensure to the maximum extent possible
the survival and development of the child”. Article 24, pertaining to children's health
prerogatives, includes “the provision of nutritious food and clean drinking water, taking into
account the dangers and risks of environmental pollution”.
The principles that undergrid the Convention of the Rights of the Child have been
affected by climate change in multiple already established rights: the right to health, survival and
development, accountability and the rule of law, children’s right to equality and
non-discrimination and the principle of best interests of the child. One example is climate change
constrains access to clean water resources, weakens food sovereignty in rural areas, which has
direct effects on malnutrition in Children. According to the International Food Policy Research
Institute by 20050 there will be 20% more malnourished children than there would be if there
wasn’t a climate change context​10​. Another example is that climate change discriminates against

8
​Peel, J. (2015). The Practice of Shared Responsibility in relation to Climate Change.
9
Gibbons, E. D. (2014, July 01). Climate Change, Children's Rights, and the Pursuit of Intergenerational Climate
Justice.
10
GC Nelson, M Rosegrant, J Koo, et al. Climate change: Impact on agriculture and costs of adaptation (IFPRI,
Washington, DC 2009) p.vii.
Juan Quintana
Public International Law
Nov 30, 2020
children because they are even less responsible for emissions than the communities they live in.
The human rights principle guides States to direct resources and focus on the most affected
people and countries, but at the international level, children suffer from de jure exclusion of their
concerns and participation in global UNFCCC instruments and policy making processes.
Children's rights are a specially relevant case for leverage in climate negotiations for the near
future. As the 1.5 °C mark approaches, the children who are born this decade will still be
children by 2030 according to UN standards and will be the same to which the 2018 report refers
as a vulnerable group.​11 The immediacy of the dramatic transformation in atmospheric conditions
for the coming decades will reshape the discussion on children's rights as the impact on today's
children is beginning to be felt.
As it has been discussed, Climate Change will impact the future of International Law
beyond environmental treaties and agreements. For example, according to Bridget Lewis (2017),
the need to establish rights for the future generations might as well broaden the definition of
human rights. And although there is no explicit mention of rights for future generations in the
Paris Agreement of 2015 or on any international law, the author is optimistic for some other
signs, like the 2013 Report of the UN Secretary-General on Intergenerational Solidarity and the
Needs of Future Generations. She even suggests the creation of a High Commissioner (or an
analogous position) to work exclusively on Future Generation´s rights.​12 The need to rethink the
pillars of International Law vis a vis the climate crisis may even go further and modify the
anthropocentric ontology that perpetuates the instrumentalist rationality that pervades not only
IEL but also the Sustainable Development Goals.​13 Climate Change may be the next paradigm
shift that defines International Law for the decades to come. As we now remember the horrors of
the war as the cause for the focus on human rights post-1945, future generations may look back
at the 2020´s as the pivotal moment in which a an unfolding crisis became an opportunity to
expand protections and rethink the purpose of International Public Law.

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11
IPCC, Global Warming of 1.5 °C , p. 55.
12
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13
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Juan Quintana
Public International Law
Nov 30, 2020
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