White Paper: Towards Human Rights Climate Commitments

Right Here, Right Now Global Climate Summit // Dec. 1-4, 2022

Co-hosted by the University of Colorado Boulder, UN Human Rights, and Right Here, Right Now Global Climate Alliance

General

• This document provides a framework for participants in the Right Here, Right Now Global Climate Summit to discuss, collaborate, and develop a new set of Human Rights Climate Commitments (the “Commitments”) based on insights gained at the Summit.
• The framework articulates the key international human rights obligations that should govern climate action and inform the Commitments. A rights-based approach to climate action is required because climate change already affects a broad range of human rights, including the rights to life, self-determination, development, food, water and sanitation, health, housing, education, meaningful and informed participation, as well as the rights of indigenous peoples and future generations (for discussion and figures, see UN Office of the High Commissioner for Human Rights 2015). A safe and stable climate is a fundamental prerequisite for the effective enjoyment of the human right to a clean, healthy and sustainable environment which was recently recognized by the UN General Assembly (resolution 76/300) and the Human Rights Council (resolution 48/13).
• Human rights law creates obligations for duty bearers towards rights holders, namely, individuals and peoples. The main duty bearers under human rights law are States, broadly defined to include all branches, levels, and agencies of government. In addition to addressing States and subnational government within States in the first two sections, this document discusses the duties of business enterprises in its third section and human rights considerations specific to educational institutions in its fourth section.  (The discussion draws from the body of work of the Human Rights Office on human rights and climate change, which is available on its website).
• Articulating the relevant human rights obligations is only the first step in developing the Commitments. The next step is to identify concrete actions that each category of actors should take to meet those obligations. An important goal of this document is to generate discussion about what those concrete actions ought to be. For this purpose, the end of each section includes a table, listing the human rights obligations of the relevant category of actors and inviting Summit participants to list actions they believe correspond. Proposed actions or commitments can be emailed to the Summit organizers at unsummit@colorado.edu.  The content shared by participants and the discussion at the Summit will be used to produce the first draft of the Commitments, which will then be subject to further discussion and inputs.

1. States (National Governments)

• Governments are obligated to respect, protect, and fulfill human rights for all people. They are the primary duty-bearers including with respect to preventing, minimizing and remedying the adverse human rights impacts of climate change. In this context, the terms “respect,” “protect,” and “fulfill” each have a technical meaning, and create distinct and coequal duties.  

Respect

• The duty to respect human rights requires States to avoid actions that violate human rights, that is, it is negative in nature. In a climate context, States should take urgent action to reduce their greenhouse gas (GHG) emissions to the greatest extent possible. State generated emissions include those from the operations of state owned-enterprises, and extraction permits on public lands. They also include upstream emissions from States procurement budgets (for recent efforts to reduce the latter emissions in the U.S., see the Federal Buy Clean Initiative). These emissions foreseeably lead to the violation of a wide range of human rights (see discussion above), such that their current levels are inconsistent with the duty to “respect” human rights.
• State emissions should be reduced in accordance with the Paris Agreement principle of “common but differentiated responsibilities” and capabilities, in light of different national circumstances. That principle puts a heightened burden on developed countries whose resources permit them to support deeper and faster GHG reductions in a manner consistent with a just climate transition, both domestically, and internationally. The COP26 commitment to “pursue efforts to limit temperature increase to 1.5°C above pre-industrial levels” applies to all parties to the convention. The principle of “common but differentiated responsibilities” requires State generated emissions in developed countries to be reduced at a considerably faster pace than that global target (otherwise, reductions at a slower pace by developing countries could leave a global emissions gap). This means States in developed countries should reduce their emissions at a rate considerably faster than 45% by 2030 relative to the 2010 level, and to net zero around mid-century (for the general temperature, and GHG reduction, targets, see Decision -/CP.26 Glasgow Climate Pact, Sections 15, 17).
• The duty to respect human rights also applies when States’ climate change mitigation and adaptation efforts might lead to human rights violations. For example, a State building a hydro-dam to decarbonize its grid will still be in violation of human rights if the hydro-dam endangers the rights of indigenous people. Similarly, a State undertaking a planned relocation as part of its climate adaptation efforts will be in violation of its duty to respect human rights if the rights of persons being relocated or the  current inhabitants of the relocation site are violated, or if the ability of internal-migrants to move to the new and safer location is restricted due to discrimination.  

Protect

• The duty to protect human rights requires affirmative action from the State to create effective rules, regulations, and enforcement mechanisms that prevent human rights violations, including violations by business enterprises and other non-state actors. In a climate change context, the duty to protect calls for the creation of regulations that restrict the use of highly emitting technologies, as well as measures like renewable portfolio standards, carbon taxes, and cap-and-trade systems that limit and disincentivize further GHG emissions.
• As discussed above, for developed countries the principle of “common but differentiated responsibilities” requires decarbonization at a faster pace than the COP26 1.5°C target which calls for at a minimum a global 45% decrease by 2030 and net-zero by midcentury. That more ambitious pace applies not only to States’ duty to reduce their own emissions (the duty to respect), but also their duty to protect through effective regulatory measures to reduce GHG emissions resulting from their overall economic activity.
• Analogously to the discussion above, the right to protect also encompasses human rights violations that may occur as part of non-state actors’ otherwise welcome climate change mitigation and adaptation efforts. For example, the State should protect against a business enterprise seeking a carbon offset from supporting projects that may violate the rights of indigenous peoples to their traditional lands, resources and territories.
• A third aspect of the duty to protect includes making available judicial and other redress mechanisms that ensure access to remedy for harms caused by GHG emissions from States and business enterprises. Strong accountability mechanisms are a critical deterrent of behavior that violates human rights. This should include, for example, mechanisms to ensure accountability and access to effective remedy for those who experience loss and damage as a result of climate change (see, e.g., discussion in Toussaint 2020). Recent decisions on loss and damage at COP27, call for integration of human rights in the work of the expert groups of the Warsaw International Mechanism and technical assistance provided by the Santiago Network on Loss and Damage as well as the establishment of a new fund on loss and damage to be operationalized at COP28.

Fulfill

• The duty to fulfill human rights is also affirmative in nature. It requires States to take action to support the realization of human rights they undertook to respect and protect. The duty to fulfill goes beyond the duty to respect (that concerns the State’s own actions) and the duty to protect (that concerns use of State power to prevent human rights violations by non-State actors). The duty to fulfill is about the State taking affirmative actions to create conditions where human rights can be effectively enjoyed by rights-holders. Consider for example the right to food in the context of famine caused by climate-related crop failure. Assuming the famine was not caused by the State or other non-state actors, the duties to respect and protect do not necessarily compel specific actions. But the State is still bound by the duty to fulfill the right to food, e.g., by taking measures like  providing supplemental nutritional assistance, and supporting climate resilient agriculture.
• The duty to fulfill encompasses climate change mitigation and adaptation as well as efforts to address loss and damage. States are required to engage in ambitious efforts to prevent further global warming, to ensure that rights-holders have the necessary capacity to adapt to the climate change which has already occurred and is expected to worsen considerably even under the most ambitious climate action scenarios, and to make whole those who have experienced human rights harms caused by climate change.
• The duty to fulfill includes the mobilization of “maximum available resources” for all forms of climate action (mitigation, adaptation and loss and damage). States should mobilize resources through diverse and appropriate means including direct spending, grants, tax credits and other tax incentives, loan guarantees on flexible terms, and investment in research and development..
• OHCHR’s fact sheet on human rights and climate change emphasizes that “states should actively support the development, dissemination and transfer of new climate change mitigation and adaptation technologies, including technologies for sustainable production and consumption.” Such action should include, for example, mobilization of resources to ensure broad access to renewable energy, decarbonized transportation, climate resilient crops, and low carbon farming methods. Broad access would, among other things, reduce price shocks to low- and moderate- income communities in the event of rising global prices for carbon as part of a climate transition. OHCHR also highlights the need to ensure that global intellectual property regimes do not obstruct the dissemination of mitigation and adaptation technologies, while maintaining appropriate incentives for innovation (For the UNFCCC Technology Mechanism, see here). Indigenous peoples’ rights to their knowledge, innovations, and practices, must also be respected in this context.   
• Another aspect of States’ duty to fulfill human rights is through international cooperation with other States and international organizations. Such cooperation includes mobilization of resources, sharing of knowledge, and technical assistance. An important example for international cooperation is developed countries’ commitment “…to a goal of mobilizing jointly USD $100 billion a year by 2020 to address the [climate finance] needs of developing countries.” (FCCC/CP/2009/11/Add.1) The full committed amount has yet to be achieved in any year. Even more importantly, commentators have raised a number of issues on the composition of the climate finance that is being provided. These issues include relatively low levels of climate finance to the most vulnerable countries, greater use of loans (that increase financial burdens on recipients) as opposed to grants (that do not), insufficient adaptation finance,, and lack of reporting on gender inclusivity (see recent analysis by Eurodad). Other commentators have pointed out that the lion’s share of climate finance currently counted under the $100 billion goal does not represent “new and additional” finance. Instead, that finance was shifted from other development budgets, thereby decreasing amounts that support human rights and the Sustainable Development Goals (see recent analysis by CARE).
• It is important to highlight that provision of climate finance under the $100 billion goal should be made in accordance with human rights obligations discussed previously in this section. These obligations are directly applicable to States’ providing bilateral public climate finance. Additionally, human rights standards should govern International Financial Institutions (IFI) that are also key providers of climate finance (e.g., multilateral development banks). Inasmuch as IFIs are established and governed by States, they should comply with the human rights standards binding on their constituent States.

2. Subnational Government

• Subnational government has an important role to play in advancing a rights-based approach to climate action. The term “subnational government” is used broadly, to include entities with governmental functions in cities, counties, and regions, as well as states in federal systems.
• International law considers the State as a single entity, and the central government is fully responsible for all acts of State organs and agents, at whatever level or branch of government they occur (see A/HRC/30/49 Role of Local Government in the Promotion and Protection of Human Rights). While the central government bears full legal responsibility for all State actions, the Human Rights Council has highlighted the important role that decentralized forms of government play in the actual implementation of human rights: “Local authorities are actually those who are to translate national human rights strategies and policies into practical application.” (id at Section 22). Within their local competences, subnational governments must therefore comply with the same human rights obligations – to respect, protect, and fulfill – that bind the State (ibid).
• An important aspect of subnational governance is the opportunity for broader participation of stakeholders, with a special focus on the participation of persons, groups and peoples in vulnerable situations (id at Section 43).  Forums creating opportunities for rights-holders to be heard and meaningfully contribute to climate change planning and policy-making help fulfill the human right to participation. Rights-based, meaningful and effective participation also leads to better outcomes for people and planet.
• The role of subnational governments in addressing climate change adaptation and mitigation as well as loss and damage is quite broad, and can include electricity regulation, vehicle regulation, building codes, public transportation, water management, waste management, disaster prevention and management, administration of emergency assistance, natural resource management and more. The table below includes a non-exhaustive list of climate change related actions, consistent with a rights-based approach and their respective mandates, that subnational governments may undertake.

3. Business Enterprises

• Business enterprises have a responsibility to respect human rights and to do no harm (see The Guiding Principles on Business and Human Rights, unanimously endorsed by the Human Rights Council in 2011). The responsibility to respect human rights extends to all operations and business relations, including supply chains. In a climate context, business enterprises should seek to avoid further emissions of GHGs into the atmosphere, because these emissions foreseeably lead to the violation of a wide range of human rights (see above). A business enterprise may take an important step towards meeting these responsibilities by formally committing to a science-based target aimed at limiting global warming to the greatest extent possible and at a minimum consistent with limiting warming to 1.5°C, and delivering on those commitments. Such science-based targets generally aim for cutting emissions by 50% by 2030; Net Zero by 2050; and intermediate targets every few years to ensure the overall carbon budget is not exceeded.
• The definition of a business enterprise’s emissions is broad, and includes its Scope 3 emissions under the GHG Protocol (emissions generated by upstream suppliers and any downstream buyers and customers). Recent years have seen important advances in the accounting and disclosure of GHG emissions throughout the supply chain (see the Carbon Disclosure Project). These advances enable business enterprises to assess a considerably fuller range of their emissions such that those could be included under binding reduction targets.
• Like States, business enterprises’ duty to respect human rights extends to unintended consequences of their climate change mitigation and adaptation efforts. Business enterprises are required to have a human rights due diligence process to identify and avert potential human rights violations. As summarized by OHCHR, human rights due diligence “... is a way for enterprises to proactively manage potential and actual adverse human rights impacts in which they are involved.”   Some types of carbon offset schemes have illustrated the need for due diligence in the context of climate action. For example, a number of carbon offset projects have come under scrutiny for their violation of indigenous peoples’ rights to their traditional lands resources and territories. Such offset schemes may violate human rights despite the otherwise laudable intention to manage the offset-purchaser’s emissions (see, e.g., discussion by YaleEnviorement360 and the Rights + Resources Initiative). Effective human rights due diligence processes will identify human rights risks and avert human rights harms.
• Business enterprises also have a duty to remedy past violations of human rights. This duty is additional to, and independent of, States’ own duty to protect against human right violations by business enterprises and ensure access to remedy. It is noteworthy that while business enterprises’ responsibility to respect human rights is primarily negative in nature, the realities of past emissions create more affirmative obligations with respect to remediation. Specifically, the fact that business enterprises are responsible for the bulk of past and present global GHG emissions means actions must be taken to remediate the harms of these already-existing emissions. Business enterprises should establish internal grievance committees to address claims by climate-affected rights holders and reduce the need for formal litigation. Business enterprises may also pursue affirmative efforts to support rights-based climate action in ways that help address the impacts of their emissions.  
• Private financial institutions – including banks and asset managers— are a subset of private enterprises whose alignment with a 1.5°C target has special significance. These actors provide the capital that other enterprises use to fund their activities. The funding financial institutions provide has long enabled the high GHG emissions of other actors. Today, these institutions should play an equally important role in enabling the transition to a low carbon future. A strong commitment to a 1.5°C target ought to be understood as part of financial institutions’ responsibility to respect human rights, as well as their duty to remediate past (and existing) emissions that are inconsistent with their duty to respect human rights. It is well understood within the climate finance community that the lion’s share of the estimated $100 trillion in need climate investments over the coming decades would have to come from private financial institutions. This understanding is not only a matter of practical necessity, but should be understood as integral to financial institutions’ human rights obligations.
• The Glasgow Financial Alliance for Net Zero (GFANZ) is a voluntary UN-convened initiative to align financial institutions’ lending and investment activities with a 1.5°C target (see, e.g., the commitment letter for its Net-Zero Banking Alliance). While GFANZ has grown in membership and represents institutions with total assets of over $130 trillion, the initiative is in its early days, with practices and guidelines still taking shape. These types of initiatives have the potential to support rights-based climate action if member’s alignment plans are scrutinized to ensure their suitability, and if these plans start to integrate the human rights aspects of climate action discussed in this document together with the focus on GHG reduction targets.
• An important question to consider in this respect is whether voluntary alignment initiatives like GFANZ should be made mandatory by States, through their financial regulators. While financial institutions are often considered as private entities, there is a growing recognition in the policy and scholarly community of their cross-cutting public-private nature. The events of the Global Financial Crisis (2007-09) and the COVID-19 Crisis have brought to the fore the financial system’s reliance on exceptional public supports like liquidity provision by central banks and public deposit insurance.   This public-private nature has corresponding implications for human rights that require further consideration. Mandating financial institutions’ alignment with a 1.5°C target could be an important step towards  human rights objectives related to climate change. 

4. Educational Institutions

• Educational institutions –including higher education, primary education, and vocational schools— have important roles to play in advancing a right-based approach to climate change. As described more fully below, these roles include research  related to climate change, its impacts, and potential solutions, dissemination of that research, and teaching the technical skills required for successful climate action. Importantly, in most countries, a large subset of educational institutions at all levels are operated and funded by the Government. Given their public status, the duties of States to respect, protect, and fulfill human rights apply to such institutions, analogously to the previous discussion of subnational governments. The duty to fulfill human rights (including the right to education) is especially pertinent given that research, knowledge, and technical skills, are all prerequisites to successful climate action, and hence, to the affirmative duty to fulfil the wide range of human rights affected by climate change.
• The lack of adequate climate action across the world is due at least in part to a lack of sufficient knowledge. It is unlikely that sufficient action will be taken to address climate change unless there is more widespread knowledge and concern. The core mission of all educational institutions should include transmitting that knowledge to students including an education with respect for nature as called for by the Convention on the Rights of the Child. That knowledge should include the reality of climate change, its anthropogenic causes, its current trajectory, its human rights impacts, the available solutions, and the relevant avenues (public, and private) for societal decision-making and action.
• Building a global culture of knowledge and inquiry requires educational institutions to teach climate change as a matter of both global and local concern. Students should understand the impacts of climate change in their own communities, as well as in distant communities, that are often considerably more vulnerable than their own. Efforts to fulfill the right to education with respect to climate change should be informed by non-discrimination, and the need for educational systems to advance respect for nature and the cultural rights and traditional knowledge of all people, particularly indigenous peoples. 
• Institutions of higher education should include and prioritize research on climate change and its human impacts, as well as solutions for climate change mitigation, adaptation and loss and damage. Institutions of higher education should not only disseminate knowledge, but also act as key hubs for innovation and knowledge generation.
• Vocational schools should provide students with the crucial technical skills required for successful climate action. Successful climate action will require a large and highly-skilled workforce in areas including renewable energy, green buildings and appliances, sustainable agriculture, and disaster prevention and management.
• Institutions involved in all levels of education, and especially institutions of higher education, should act as “living laboratories” of climate action, spaces where children and young adults can formulate, discuss, and take concrete (age and level appropriate) actions that form part of their institution’s climate action plan. Such “learning by doing” cultivates a sense of agency, community engagement, and public participation, that students carry into adulthood. There should be well articulated policies and forums for students to have input into their institutions’ climate action plans.
• Educational institutions – especially those of higher education— are large actors, with an often considerable GHG footprint of their own. In addition to the duty to fulfill human rights through research, dissemination, and technical training, institutions of higher education are bound by the duty to respect human rights to reduce their own emissions, in line with science-based targets.
• The duty to respect human rights by reducing emissions acquires a special significance in educational institutions. These institutions are sites where life-long habits are formed. As such, they have a heightened responsibility to teach students by example of good climate stewardship. Students who learn responsible habits in their institutions will carry those into adulthood, while students who become desensitized to irresponsible habits, will likely persist in those habits for decades. In this way, the duty to respect human rights by reducing the institution’s GHG emissions is also central to its broader mission to fulfill human rights through research and teaching.
• It is of paramount importance that educational institutions take urgent action to prioritize and accelerate reducing their own emissions. Such efforts include adoption of a quantitative science-based target that includes Scope 3 emissions (currently excluded by most universities), and more comprehensive disclosures including those Scope 3 emissions. Students, regardless of their specific academic and professional trajectories should be able to understand and contribute to their institution’s GHG inventory and climate reduction targets, as well as the key policies set in place to achieve these targets.