Knox: Climate Change and Human Rights Law

John H. Knox (Wake Forest Univ. - Law) has posted Climate Change and Human Rights Law (Virginia Journal of International Law, forthcoming). Here's the abstract:

This article seeks to provide a basis for a better understanding of how human rights law applies to climate change. Its aim is to establish some fundamental points. First, climate change already interferes with the human rights of vulnerable communities and is an enormous threat to human rights everywhere. Second, human rights law imposes duties on states to respond to climate change regardless of whether they can be held responsible for “causing” it. Third, human rights law also constrains states’ responses. Last, and most important, the jurisprudence that human rights tribunals have developed in the context of domestic environmental harm may be applied to global environmental harm, such as climate change, on the basis of the duty of international cooperation.

The environmental human rights jurisprudence has developed strong procedural requirements and deferential substantive standards, which make sense in the context of a single polity experiencing the costs and benefits of activities that cause environmental degradation, but which do not easily apply to transboundary harm. The duty of cooperation would require states to try to act as a single polity at a global level to address the global threat of climate change. It would thus provide a basis for the application of the environmental human rights jurisprudence. That jurisprudence would allow states some flexibility as to the substance of their joint decisions, but only if they follow procedures designed to ensure full, well-informed participation by those most affected. Moreover, the substance of decisions that result from such processes would not be entitled to complete deference: under no conditions could states allow climate change to destroy the human rights of the most vulnerable.