International human rights law and climate change: the case for a duty to mitigate climate change

The dissertation deals with the relationship between climate change and international human rights law. A special focus lies on the question if states have a human rights obligation to mitigate climate change by reducing greenhouse gas-emissions. To this end, the dissertation develops and proposes a risk-based approach that helps overcome the complex issue of causation. After a short introduction (section I), the thesis establishes the framework (section II) by defining climate change on one hand and international human rights law on the other hand, describing roughly the scientific processes and the most pertinent legal instruments. It then puts both element in relation by briefly tracing the history of how scholars and activists have started to apply a human rights approach to the issue of climate change. This relation is further enlarged upon with an analysis of the factual impacts that climate change has on human rights guarantees (section III). Next to established human rights under especially the ICCPR and the ICESCR, the question is discussed if a self-standing right to a healthy environment exists de lege lata. The thesis also briefly describes the issue of climate justice. On this basis, the centrepiece of the dissertation then discusses the resulting human rights obligations (section IV). It notes that so far, there is significant scepticism towards a human rights duty to mitigate and its potential content is rather vague. To strengthen the case for a duty to mitigate, the text proposes a “risk-based” approach: Based mainly on jurisprudence by the European Court of Human Rights, it is argued that states not only have to prevent harm but also reduce mere risks of harm. This way, the issue of causation and attribution which is often seen as the Achilles-heel of a human rights approach to mitigation can be overcome. In the end, it is submitted that states are under a duty to reduce their greenhouse gas-emissions in accordance with the remaining “greenhouse gas-budget”. This argument is further corroborated with regard to climate justice and an extraterritorial perspective on the duty to mitigate (section V). It is argued that the international relevance of the right to self-determination as well as a duty not to interfere with human rights in other countries could require states to take into account not only climate change impacts in their own territory but also abroad. This way, the human rights duty to mitigate is not only reinforced, but can also help to realise a greater degree of climate justice. Lastly, the conclusion (section VI) recaps and summarizes the given argument and concludes that a human rights approach can be useful to compel governments to more decisive mitigation measures.

Grantor

Department of Public Law

Year dc:date.issued

2021

Author dc:creator

• Wendland, Johannes

Advisor dc:contributor.advisor

• Powell, Cathleen

• Public Law

Handle dc:identifier.uri

http://hdl.handle.net/11427/33976

OAI identifier oai:identifier

oai:open.uct.ac.za:11427/33976