By Peter Splinter*
September 16, 2021
This post is an on-site edited version of The Geneva Observer Briefing, our newsletter, August 26, 2021 edition. To receive the Briefing directly in your inbox, register here. By registering you are supporting independent journalism and The G|O.
"It is time for the membership of the UN Human Rights Council (HRC) to take climate change much more seriously than it has to date, and to treat the issue with the urgency, deliberation, and action that it demands. The HRC has tools at its disposal, some described below, and it should use them—now."
The Intergovernmental Panel on Climate Change report of 9 August 2021 has made clear beyond doubt the severity of the climate crisis attributable to greenhouse-gas emissions. “[T]he alarm bells are deafening,” according to António Guterres, UN Secretary-General, who has described the report as a “code red for humanity.” In 2019, the UN High Commissioner for Human Rights, Michelle Bachelet, was already speaking of a climate emergency, and her opening statement to the HRC’s 48th session described it as a “planetary crisis.” Since December 2016, over 1,900 governments in 34 countries have made climate emergency declarations. The gravity of the situation could not be clearer.
Emergency, meet bureaucracy
The HRC adopted its first resolution on climate change (Resolution 7/23) in 2008, at a time when the atmospheric concentration of carbon dioxide was 386.29 ppm. Thirteen years later on 14 July 2021, when it adopted its most recent resolution on climate change (47/24) the atmospheric concentration was 416.96 ppm. Resolution 47/24 asks the UN Secretary-General to report to the HRC at its 50th session on the adverse impact of climate change on the human rights of people in vulnerable situations, and calls for a related panel discussion at the same session. It also resolves to hold additional annual panel discussions, starting in 2023, on the adverse impacts of climate change on human rights, and encourages discussions on the possible creation of a new Special Procedure on climate change and human rights—hardly the stuff of emergency response!
Moreover, although resolution 47/24 uses boilerplate language to call on States to “consider [...] human rights within the framework of the United Nations Framework Convention on Climate Change,” it directs no message specifically to COP 26 in November 2021. A lost opportunity? Most definitely.
The HRC is mandated to respond promptly to human rights emergencies. There can be no reasonable doubt about the disastrous consequences of climate change for the enjoyment of many human rights—presently, and with worse certainly to come in the future. A debate that takes place once a year, even with a panel discussion, and results in a routine annual resolution is hardly the way to address the emergency. In the words of a former Special Rapporteur on extreme poverty and human rights, failure by human rights proponents to take concerted action will render them “marginal or irrelevant to humanity’s most pressing short-, medium-, and long-term challenge.”
The HRC has the capacity for action
Since 2008, the HRC resolutions have affirmed year after year that “human rights obligations and commitments have the potential to inform and strengthen international and national policymaking in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes.” It is essential to translate human rights principles and standards into practicable pragmatic measures that can provide that coherence, legitimacy and sustainability—without delay. The relevance of human rights to climate policy must be fully explored, understood and acted on.
So what could the HRC do? The often hidebound Council has demonstrated considerable imagination and innovation in continuing to function during the COVID-19 pandemic whilst other UN bodies almost ground to a halt—and that same creativity must be brought to addressing climate change. In the meantime, there are some measures that the Council could take consistent with established practices.
Making special sessions count
For a start, the Council could convene a special session devoted to developing a Council programme of action on climate change. A special session would allow for a more focussed and thorough discussion than is possible during regular Council sessions, when climate change must compete for attention with numerous other issues.
There is nothing to limit special sessions to country-specific situations. On 22 May 2008, the Council held a special session on the world food crisis, and on 20 February 2009, it held another on the global economic and financial crises, so there is no reason why sixteen members of the Council could not request the convening of a thematic special session devoted to climate change. Russia, China, India, Eritrea and other countries that have recently shown resistance to the discussion of the topic by the Council would not be able to block such an initiative.
To ensure it is productive, the necessary time should be taken to prepare for a special session. The applicable HRC rule says that, in principle, a special session should be held not earlier than two and not later than five working days after the formal receipt of the request for the session. Five days are clearly not enough, but precedent for a longer preparation can be found in the Council’s special session on the world food crisis, which was held eleven working days after being requested. Moreover, with the constructive creativeness that has characterised the Council during the pandemic, ways can surely be found to allow for proper preparation of a session on climate change.
Other tools at the HRC’s disposal
The HRC could also ask its ‘think tank’, the Advisory Committee, to do much-needed groundwork on the effect of climate change on human rights. To date the Council has not asked the Committee to work on climate change, and hence the Committee—which can only act at the request of the Council—has yet to report on the topic. (In August 2015 the Committee considered a reflection paper on climate-induced displacement, but did not take the topic any further, and in March 2021 it proposed a study on climate geo-engineering which awaits the Council’s response.)
A third area where the HRC could make a difference is through the creation of a new Special Procedure dedicated to human rights and climate change. NGOs first proposed the creation of such a mandate in 2010, and it was discussed more recently in connection with resolution 47/24, but the proposal is in abeyance, following obstruction from Russia, India, and other countries.
Although many of the existing thematic Special Procedures have, in fact, examined particular aspects of climate change, each has a broad subject-specific remit that prevents them from giving sustained attention to the relationship between human rights and climate change. A Special Procedure devoted to the issue is needed for continuity, coherence and profile. Furthermore, while discussion about the creation of a Special Procedure has thus far focussed on the establishment of a Special Rapporteur, this topic is simply too large and too complex for any single expert. A working group, consisting of five experts drawn from each of the UN’s five regions, would be the better option, allowing for a broader range of legal and technical expertise as well as sensitivity to regional particularities. That model was followed for the Working Group on discrimination against women and girls.
The mandate of any new Special Procedure must go well beyond identifying how climate change adversely affects the enjoyment of many human rights. The mandate should be forward-looking, pragmatic and focused on action: specifically how to ensure that climate change mitigation and adaptation measures respect, protect and fulfill human rights.
There are, no doubt, additional ways that the Human Rights Council could begin to respond to the climate emergency. But what matters most is that it acts—now—with a sense of urgency, deliberation and pragmatism. The time for dithering is over.
*Peter Splinter is a Geneva-based human rights expert and consultant