By Marlies Hesselman, University of Groningen, m.m.e.hesselman@rug.nl

This week leaders of the world gather to negotiate and seal the deal on a new climate change agreement. What can we as citizens expect from it? This post argues that we have a right to effective international negotiations and cooperation for the right to health; the right to health requires and dictates effective negotiations for a good, protective and healthy climate deal.

The human right to health and climate change

The human right to health is enshrined in a range of binding international and regional human rights treaties and typically requires effective protection of the highest attainable standard of health, both in terms of access to health care, and in terms of the ‘underlying determinants of health’. You can read a full analysis of how the right to health is relevant to climate change in this recent GHLG report submitted to the UN High Commissioner for Human Rights (The Human Right to Health and Climate Change: A Legal Perspective (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2688544)’).

The right to health is relevant for climate change, since climate change is expected to severely disrupt the accessibility, availability, affordability and quality of “underlying health determinants”, including access to food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions and a healthy environment, either directly or indirectly. The World Health Organization and the IPCC dub the health effects of climate change as ‘wide-ranging, diverse and overwhelmingly negative’.

Major concerns are: increased and extremer weather-events, heats, colds, desertification, salinification of the sea, rising sea-levels, but air pollution levels, e.g. in China on the first day of COP21, are equally  alarming. Yesterday, Beijing issued its first ‘red alert‘. Other studies suggests that even before 2100 first cities will experience dangerous ‘wet bulb temperatures’, which makes human survival in those areas effectively impossible. Other health effects of climate change are also feared, as evident from the WHO and IPCC reports.

The right to health and COP21 negotiations: what can we (legally) expect from our States?

How does the right to health affect the international negotiations this week? What can we expect as citizens? Well, one important feature of international human rights law, is that States agreed to ‘cooperate internationally’ for human rights protection. These obligations can be found, inter alia, in article 2(1) of the International Covenant on Economic Social and Cultural Rights (ICESCR) or in articles 1 and 55-56 of the UN Charter. In 1993, World Leaders also affirmed in the World Conference on Human Rights that human rights are a ‘priority objective’ in accordance with UN purposes and principles, ‘in particular the purpose of international cooperation’ (para 4 of the Vienna Declaration). Specifically, Article 2(1) ICESCR requires of each State that they will undertake:

to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

164 States are now a party to the ICESCR specifically. Looking at the interpretation of State human rights obligations over the years, a few matters stand out for COP21. First,  States are obliged under human rights law to not interfere with peoples’ right to health  directly or indirectly, or take retrogressive measures (see General Comment 14, paras 20, 33-34, 19, 50; arts. 4-5 ICESCR); States are also under a  binding obligation to effectively regulate other actors who might negatively affect our health, including pollutive industries  (GC 14, para. 35, 51). Explicity, States are expected to ‘ adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health ’ (GC 14, para 33), and to adopt ‘ measures against environmental and occupational health hazards  […] ’(paras. 15, 36). The right to health also implies an active duty to ‘ formulate and implement national policies aimed at reducing and eliminating pollution of air, water and soil … ’ (para 34, 36, 51), which specifically includes  ‘enacting and enforcing laws’ against ‘pollution of water, air and soil by extractive and manufacturing industries ’, which relates to setting safe levels for healthy environments, e.g. regarding emissions. Finally, States are expected to ‘fulfil’ the human right to health  when ‘individuals or a group are unable, for reasons beyond their control, to realize that right themselves by the means at their disposal ’ (GC 14 para). This applies to climate change par excellance: individuals have very limited means to individually guard themselves against climate change; a large group of most vulnerable persons will even bear the (first) brunt, while being mostly reliant on others to act or help out (e.g. small island states, desertification).

The obligations of international cooperation in human rights law

Turning to obligations of international cooperation, the following obligations could be taken to apply directly to COP21. Interpretative General Comment 14 on the right to health by the Committee on Economic Social and Cultural Rights supports on the effective protection of the human right to health, that States (para 39):

• ‘should respect the right to health of persons enjoyed in other countries’;
• ‘should  prevent third parties  from violating the right in other countries, if they are able to influence these third parties by way of legal or political means’;
• ‘should ensure that the  right to health is given due attention in international agreements  and, to that end, should consider the development of further legal instruments’;
• ‘in relation to  the conclusion of other international agreements , States parties should take steps to ensure that these instruments do not adversely impact upon the right to health’;
• ‘have an obligation to ensure that their  actions   as members of international organizations  take due account of the right to health’;
• ‘should facilitate access to essential health facilities, goods and services in other countries,  wherever possible and provide the necessary aid when required (depending on available resources)’.

Specifically,  a State’s failure ‘to take into account its legal obligations regarding the right to health when entering into bilateral or multilateral agreements with other States …’  is understood as a direct violation of the right to health (GC 14, para. 50), as is it’s ‘ failure to enact or enforce laws to prevent the pollution of water, air and soil by extractive and manufacturing industries ’ (GC14, para 51). This makes it  clear that a new climate deal this week should certainly not adversely impact on our rights to health, at home or in other countries. Rather, COP21 negotiations should effectively aim at preventing further interference with health, including through ‘formulating and implementing policies aimed at reducing and eliminating pollution of air, water and soil’ and putting in place effective regulatory and legislative protective frameworks.  States ‘should prevent third parties from violating’ our rights, including in other countries ‘if they are able to influence these third parties by way of legal or political means ’ (para 39). COP21 appears, of course, a prime forum for States to act upon this obligation. Finally, it serves to remind that the current international human rights framework articulates that  States ‘in position to assist’, do so in accordance with their maximum available resources . (e.g. GC 14, para 40, 45)

Conclusion

In short, a range of rights and obligations can be highlighted in international human rights law and the UN Charter, on international cooperation for health and climate change, as an urgent challenge facing people globally. Climate change is a global challenge, and it needs a global solution.  The WHO estimates that currently already tens of thousands premature deaths result annually from climate change. This figure will rise to 250 000 annually between 2030 and 2050. Effective protection of the  right to health sets legally binding expectations, potentially even dictates boundaries, to the negotiations on climate change at COP21. As citizens, rights holders, we can expect effective international cooperation from our governments in respecting, protecting and fulfilling binding human rights obligations. In line with the ICESCR, COP21 could even be understood as a prime opportunity to positively engage with the principle of international cooperation under human rights law, and cooperation under the UN Charter. This means: rather than focusing on purely limiting negative effects on health at a minimum cost, the COP21 negotiations,  a new healthy climate deal, should be geared at (also)  examining the positive human rights gains that can be attained globally this week. This is, arguably, what we are legally entitled to. In any case, let’s hope, or require,  that at least the international duty bearers in the ‘high ambition coalition of 100 states‘ will take human rights commitments seriously, as a part of the deal, but also during the deal.

GHLG recently launched its ‘health and climate change’ research focus. Read  why we think this focus is warranted.

Further resources on this topic, e.g.:

• WHO, Fact sheet N°266 (2015) on ‘Climate change and health’
• IPCC, Fifth Assessment Report (2014) Chapter 11: Human Health: Impacts, Adaptation and Co-benefits
• Commitee on Economic Social and Cultural Rights, General Comment 14 on the Right to Health (2000), UN Doc. E/CN.12/2000.4
• Hesselman and Toebes, ‘The right to health and climate change: A legal perspective’ (31 October 2015), GHLG Working Paper (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2688544)
• Office of the High Commissioner for Human Rights, ‘Human Rights and Climate Change’ overview website