Equality Among Unequals in International Environmental Law

Equality Among Unequals in International Environmental Law

CHAPTER ONE

Objectives Of Study

to discuss climate change in international environmental law
to discuss equality among unequals in international environmental law

CHAPTER TWO

UNDERSTANDING HUMAN RIGHTS IN CLIMATE CHANGE

This chapter provides an overview of equality among unequals to tackling climate change. The chapter examines the legal framework for human rights in climate change, the evolution of the approach, and identifies specific human rights with linkages to climate change.

An Overview of the Legal Framework for human rights in climate Change

This section provides an overview of the laws and instruments that support human rights in climate change. These laws include international human rights instruments, international environmental law instruments, international climate law instruments, regional human right instruments, national constitutions and other domestic laws. It is also pertinent to note that these instruments are referred to in climate litigation cases that adopt a human rights approach. In addition to treaties, equality among unequals draws from other sources of international law including customary international law principles such as the prevention principle, no-harm principle, precautionary principle, among other principles.

The instruments in this section are analysed using a positivist state-centric approach. However, there are alternate ways of theorizing the binding nature of international legal instruments.

International Human Rights Law

The Universal Declaration of Human Rights (UDHR) – The UDHR is an international instrument embodying human rights, which was ratified in 1948.⁸² The UDHR is generally understood to be the foundation of international human rights law.⁸³ It contains rights which are affected by climate change such as the rights to life, liberty, security of the human person, health, equality, property, among other rights. Although the UDHR was not originally intended to be a binding instrument, some of the principles laid down therein may have attained the status of customary international law (which is binding)⁸⁴ and these principles are usually invoked by litigants and petitioners in support of complaints against human rights violations occasioned by climate change.⁸⁵

The International Covenant on Economic, Social and Cultural Rights (ICESCR) – The ICESCR is another instrument under international human rights law that embodies human rights affected by climate change such as the right to self-determination, equality, food, health, adequate standard of living, a means of livelihood, the utilization of natural resources, among other rights.⁸⁶ The ICESCR came into force in 1976. It expounded the rights under the UDHR and is legally binding on the 170 party states (through ratification, accession and succession).⁸⁷ The ICESCR is one of the instruments that forms the basis of human rights in climate change, and has been relied upon by litigants in human rights-based climate litigation cases.

CHAPTER THREE

THE RELATIONSHIP BETWEEN THE RIGHT TO A HEALTHY ENVIRONMENT AND CLIMATE CHANGE

The chapter highlights the right to a healthy environment as one of the key components of equality among unequals. The chapter examines the need for a right to a healthy environment and theoretical justifications of the right. The chapter thereafter examine the benefits of adopting equality among unequals and the arguments against the approach.

The Case for Recognition of the Right to a Healthy Environment

There have been divided opinions on the establishment of a distinct right to a healthy environment. Some scholars against the recognition of the right have contended that recognizing the right to a healthy environment would amount to endorsing an anthropocentric approach to environmental protection.¹⁸⁷ The response to this concern would be that equality among unequals can be remodelled to protect other species and unborn generations and can be employed alongside other approaches. Others have argued that the right to a healthy environment should not be recognized due to the difficulty in defining the right.¹⁸⁸ The response to this is that the difficulty in defining the right is not a sufficient reason for rejecting the right, especially since there are other rights that are recognized despite the difficulty defining them.¹⁸⁹ Also, the difficulty in delineating human rights has been observed to be exaggerated. On the basis that the proliferation of human rights would trivialise the significance of the human rights framework in its entirety.¹⁹² The discussions on the justification of the right to a healthy environment in the next section is therefore instructive, as they shed light on the need for recognition of the right.

It has been suggested that not only should the right to a healthy environment be recognised and codified, but it should be constitutionalized. Boyd observes that the inclusion of environmental rights in the constitution is “catalytic for stronger environmental laws/regulation and the enforcement thereof” and that “nations with green constitutions have smaller ecological footprints and have reduced air pollution up to 10 times faster than nations without environmental provisions in their constitutions.”¹⁹³ According to Boyd, the existence of provisions suggestive of environmental rights in laws other than the constitution does not suffice because “they are far weaker legally, politically and symbolically than constitutional recognition of the right to a healthy environment would be.”¹⁹⁴ On the other hand, there are also concerns that constitutionalizing environmental rights leaves decision-making on environmental matters (which is largely a policy issue) to the interpretation of the court, thereby undermining executive discretion.¹⁹⁵ The view in this thesis is that mere recognition of the right under domestic laws (other than the constitution) by states does not suffice. An important point to keep in mind is that acts that threaten a healthy environment are not necessarily illegal as they are oftentimes backed by law. It is therefore somewhat difficult to contradict express provisions of the law with rights implied from the rights to life, health, among other rights. Thus, constitutional recognition of the right could bring more clarity and potentially elevate the protection of the right above contradictory provisions of other laws that directly or indirectly empower environment-unfriendly acts.

CHAPTER FOUR

THE PRINCIPLE OF INTERGENERATIONAL EQUITY: MEANING, RECOGNITION AND IMPORTANCE

This chapter takes a look at the meaning of the principle of intergenerational equity and situates this principle within the context of climate change. As stated in the preceding chapter, the principle is found in the Rio Declaration as well as other international instruments.The aim of this chapter is to examine the recognition of this principle within international human rights, climate and environmental law and to examine its intersection with equality among unequals. A significant portion of the discussions on the meaning of intergenerational equity is drawn from the work of Edith Bowrn Weiss whose works are very instructive on intergenerational equity.

It is contended in this chapter that intergenerational equity is integral to human rights in climate change. The chapter begins by defining the concept of intergenerational equity as well as its components and nuances. This examines the recognition of the concept in international law, reviews some of the theoretical discussions on the rights of future generations, highlights the interrelationship between the principle and equality among unequals, and concludes by providing an overview of the intergenerational equity approach to climate litigation.

Understanding the Concept of Intergenerational Equity

Elements of Intergenerational Equity

Weiss outlines four criteria behind the theory of intergenerational equity. For any principle to be in line with intergenerational equity, the following criteria must be met.

Equitability among generations: such principle should be equitable among generations such that it would neither authorize “the present generation to exploit resources to the exclusion of future generations,” nor impose “unreasonable burdens on the present generation to meet indeterminate future ”²⁷⁶
Value-Neutrality: principles of intergenerational equity “must give future generations the flexibility to achieve their own goals according to their own values.”²⁷⁷
Clarity: principles of intergenerational equity “should be reasonably clear in application to foreseeable situations.”²⁷⁸
Acceptability: principles of intergenerational equity “must be generally shared by different cultural traditions and be generally acceptable to different economic and political ”²⁷⁹

CHAPTER FIVE

CONCLUSION

This chapter provides a summary of the discussions in preceding chapters and ultimately highlights recommendations for addressing issues arising from human rights in climate change as it relates to intergenerational equity and climate litigation.

Summary

The focus of this thesis is to appraise equality among unequals to environmental law, particularly as it relates to intergenerational equity and the right to a healthy environment. The thesis examines how the concept of intergenerational equity fits within equality among unequals to environmental law. The thesis begins by examining human rights in climate change. It undertakes an overview of the legal framework for human rights in climate change in order to determine the laws and instruments forming the basis of equality among unequals under international environmental, human rights and climate law. The UDHR, ICCPR, ICESCR, UNDRIP, UNCRC are some of the major international human rights instruments supporting human rights in climate litigation. An important point to note regarding the international human law instruments is the absence of an express right to a healthy environment. The thesis recognises that the regional human rights instruments and national constitutions are essential to human rights in climate litigation, especially as the right to a healthy environment are recognised in some of the regional instruments and national constitutions. The Stockholm Declaration, Rio Declaration and the UNSDGs are identified as some of the key international environmental law instruments relevant to human rights in climate change. It is observed that these international environmental law instruments are soft law instruments which in themselves are not binding, but could become binding once they unarguably attain the status of customary international law.⁶⁶¹ Within the international climate law framework, the UNFCCC, the Kyoto Protocol, the 2009 Copenhagen Accord, the 2010 Cancun Agreement and the Paris Agreement are the main instruments relevant to human rights in climate change. However, these international law instruments do not emphasize a human rights approach to climate change.

Conclusion

Equality among unequals and intergenerational equity approach to climate litigation has largely changed the climate change discourse in a positive way and has the potential to do even more. However, there are several setbacks that must be addressed for these perspectives to not only be fully integrated into the climate change, but to effectively address climate change. The intergenerational equity and human rights perspectives are complementary to each other, and ought to be treated as such. These two perspectives hold a lot of promise towards addressing climate change. It is therefore important that both approaches are properly harnessed to effectively address climate change.

REFERENCES

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