The most recent public draft of the proposed Copenhagen agreement refers to “human rights” three times. Back in May, my search for “human rights” rendered zero hits. So while a celebrated improvement, the mention of “human rights” in the (unwieldy) negotiating text does not produce any legal obligation to promote or protect human rights.

Nevertheless, it’s important to know how human rights language is being used at this stage in the negotiations process. How legal is it?

The first reference to “human rights” falls under the heading, “A shared vision for long-term cooperative action,” Point 6. It defines specific human rights impacted by climate change:

“[Climate change’s] adverse effects….have a range of direct and indirect implications for the full and effective enjoyment of human rights including the right to self determination, statehood, life, food and health and the right of a people not to be deprived [o]f its own means of subsistence, particularly in developing countries.

The second and third references fall under Annex II on “Enhanced action on adaptation and its means of implementation,”  under the subheading “A: Objectives, scope, and guiding principles,” Point 14 (z) on guiding principles for adaptation frameworks and their sources in international human rights law:

[The respect for, protection and promotion of the fundamental human rights and basic rights as outlined in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, International Covenant on Cultural and Political Rights and other relevant conventions and treaties.]

The human rights language referred to above exceeds a simply moral reference; it’s legalistic, emanating from the core corpus of human rights law. Granted, just because an international human rights declaration or covenant defines something (the right to health, for example) as a human right, does not mean that that right actually exists. The right to health is a perfect example. Even as the right to health is mentioned in the Universal Declaration on Human Rights in Article 25, the International Covenant on Economic, Social and Cultural Rights in Article 12, and even in the draft text language quoted above, the right to health is one of the most undermined of the human rights. In reality, the right to health exists on paper and no where else. Perhaps the point here is that to unleash the legal power of human rights, we must find ways to tap down and work from the base where they interconnect. Then we could use that basis of interlinking rights to make a stronger case for why global states have an obligation to cooperate to protect human rights in a globalized society where no one country can control what happens within its own borders.

Even still, the existence of textually legal human rights language (assuming it does not get stricken) in the agreement text could set the stage for some amount of actual promotion and protection of human rights in a subsequent international legal agreement following the Copenhagen Agreement. Some may argue that this will never happen. But tracking the movement in just a few months from zero references of human rights language in the agreement to three references, there is at least some legitimate basis for inferring that human rights may be part of future international climate policy. [To understand what duties human rights law places on states to regulate climate change, see Three Degrees Conference Presenter John Knox’s article, “Climate Change and Human Rights Law.”]

What version of human rights best applies in the climate context is still being debated. For instance, John Knox asks whether environmental human rights laws are limited to their traditional vertical reach to a single state, or whether it’s possible to operationalize a breed of environmental human rights with a diagonal, extraterritorial reach? For a comprehensive argument on what breed of human rights law we need to cultivate or better implement, I’d recommend reading Marc Limon’s post on Opinio Juris. Marc Limon is the Counsellor to the Permanent Mission of the Maldives to the Human Rights Council, and a Three Degrees Presenter. In sum he argues three castes of human rights law could apply to climate protection contexts.

Marc writes: “One option, which Professor Knox rightly presents as the most practicable, is to strengthen jurisprudence around the concept of the ‘duty of international cooperation.’  Unfortunately, there are doubts as to what real impact this course of action would have on international climate change policy.  A second option is to build on the idea that while it may be the case that States have a primary responsibility to promote and protect human rights within their jurisdiction, other countries carry a concurrent obligation not to interfere with the enjoyment of human rights elsewhere.  For example, the Maldives State may be responsible for protecting the human rights of Maldivians, but other States also have a responsibility to ensure a permissive international environment.  The third option is to go against the logic presented in the OHCHR report and Professor Knox’s paper, by arguing that climate change impacts can indeed be conceived as human rights violations-with identifiable victims and perpetrators (even in a transnational context).  According to this view, the power to protect human rights in the face of climate change rests primarily with large emitting States-States which have undertaken legal commitments to reduce their emissions to ‘safe levels’ (levels consistent with the preservation of the environment and consistent with the full enjoyment of human rights)-and thus these States must bear a responsibility for fulfilling human rights in vulnerable States.  If they renege on that responsibility, they are guilty of violating human rights and should be held accountable.”

Exactly how far off is a future where human rights law evolves to match the transboundary nature of the climate crisis and correct the dominant power-imbalance obstructing any meaningful solutions? Dan Bodansky, an internationally recognized expert on international law and global climate change, predicts that “under the best of circumstances, even the most optimistic observers think there’s little prospect for a legal agreement being completed in Copenhagen.” He predicts a “political agreement” at best.