What do global problems have to do with the individual human rights holder?
On Human Rights Day 2024, the International Court of Justice is charged by the General Assembly with delivering an Advisory Opinion asking, in effect, what does the climate crisis imply for the rights of vulnerable states and people? Researcher Jens Iverson shares his thoughts on this event.
From Paris (1948), to Paris (2015), to The Hague (2024): What do global problems have to do with the individual human rights holder?
On 10 December 1948, the United Nations General Assembly, meeting in Paris, adopted the Universal Declaration of Human Rights (UDHR). Now, 76 years later on Human Rights Day, the International Court of Justice is charged by the General Assembly with delivering an Advisory Opinion asking, in effect, what does the climate crisis imply for the rights of vulnerable states and people? The General Assembly asks this question of the Court not only in light of the 2015 Paris Agreement and Environmental Law, but specifically pursuant to the rights enshrined in the UDHR. Bridging the accomplishment of 1948 UDHR with the ambition of the 2015 Paris Agreement continues a process of legal innovation we have seen elsewhere, where litigants have won cases using the rights to life and quality of life with the obligation of states to ' do their part' to address the climate crisis. In the Netherlands, with the Urgenda judgment demanding that the Netherlands increases its policy ambitions; to the KlimaSeniorinnen v Switzerland case before the European Court of Human Rights; to 157 other cases currently collected at the climate change case chart addressing non-US litigation tying climate change to human rights around the world: courts are resolving disputes as to whether states owe more than their current plans and conduct to protect the human rights of impacted people.
At the heart of scepticism towards this approach (pursuing climate policy change through human rights) may be the complex causality between the global problem and the individual human rights holder. It is not a classic case of a particular state agent physically perpetrating a human rights abuse on a victim, where the government official does not respect the right. Instead, the typical problem is one of omission: the state could act to prevent a third party from contributing to a problem which harms an individual (along with billions of others individuals, current and future), but fails to act. States should protect the holders of human rights, but they do not. Even if they did, the harm would not go away, it would only diminish. The state is asked to impose costs for an indirect result. One can imagine the political argument: 'why should we sacrifice – it won’t really matter unless [X] also occurs,' with [X] being some other contributing factor, such as a change in another state’s conduct, or private conduct, or technological change.
There are technical reasons why this sceptical argument has failed in many courtrooms. Law and science explain what can reasonably be expected from various states. But the heart of our collective response is an older, ethical query, rooted outside the realm of law and science. Philosopher T.M. Scanlon famously asks what we owe to each other, and the question applies with specificity here: we owe each other the effort that, if everyone similarly positioned made it, would mitigate the harm enough to reach our agreed upon goals. Or as an older assertion puts it: 'It is not your duty to finish the work, but neither are you at liberty to neglect it.' The Advisory Opinion will answer this question with respect to states. But it is fair to ask, on Human Rights Day, what this approach asks of every level of society, from city policies to corporate practices to educational policies. Maybe in another 76 years we will have a clearer view of how well we measured up.