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ABSTRACT
The entire world is experiencing a combination of old threats and new climate-related disasters; they are perceptible in our everyday lives at an unprecedented level. The current pandemic, together with geopolitical instability, has dramatically demonstrated how exposure to multiple risks can disproportionately affect people in vulnerable situations. This article aims to explore how the international human rights framework takes into account the notion of vulnerability, with a view to moving international protection to the centre of dealing with climate change. It takes a closer look at the promises and limitations of embracing vulnerability through a study of the interpretative practice of UN treaty bodies and the evolution of domestic litigation regarding climate change. It selectively reviews how normative pathways that involve multiple interpreters could create new opportunities for defining the route along which to channel climate justice and its temporalities.
Correction Statement
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Notes
1 United Nations Human Rights Council (UN HRC), ‘Note by the Secretary General: Promotion and Protection of Human Rights in the Context of Climate Change’, Report of the Special Rapporteur on the Promotion and Protection of Human Rights in the Context of Climate Change (2022) UN Doc A/77/226 paras 32–33; Pascaline Minet, ‘Climat, l’été de tous les extrêmes’ Le Temps (Geneva, 6 August 2021) 8.
2 UN Secretary General, ‘Secretary-General’s Remarks to the Security Council Debate on “Sea-level Rise: Implications for International Peace and Security”’ (14 February 2023).
3 Ibid.
4 Intergovernmental Panel on Climate Change (IPCC), ‘Climate Change 2022, Impacts, Adaptation and Vulnerability: Working Group II Contribution to the Sixth Assessment Report, Technical Summary’ (2022).
5 Sharona Hoffman, ‘Preparing for Disaster: Protecting the Most Vulnerable in Emergencies’ (2009) 42 Working Paper University of California 1491; Maria Grahn-Farley, ‘The Human Rights Claim in Climate Justice: Children Leading the Way’ (2022) 25 Journal of Gender, Race and Justice 439; Jane McAdam and Tamara Wood, ‘The Concept of “International Protection” in the Global Compacts on Refugees and Migration’ (2021) UNSW Law Research Paper No 21-12.
6 United Nations Human Rights Council, ‘Climate Change and Poverty’ Report of the Special Rapporteur on Extreme Poverty and Human Rights (2019) UN Doc A/HRC/41/39; United Nations Human Rights Council, ‘Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’ (2022) UN Doc A/77/284.
7 Martha A Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law and Feminism 1; Carolina Y Furusho, ‘Uncovering the Human Rights of the Vulnerable Subject and correlated State Duties under Liberalism’ (2016) 5 UCL Journal of Law and Jurisprudence 175.
8 Moritz Baumgaertel, Demanding Rights. Europe’s Supranational Courts and the Dilemma of Migrant Vulnerability (Cambridge University Press 2019) 114; The Lancet Editorial, ‘Redefining Vulnerability in the Era of COVID-19’ (2020) 395 The Lancet; Marc-Henry Soulet (ed), Vulnérabilité: de la fragilité sociale à l’éthique de la solicitude (Academic Press Fribourg 2014).
9 Rob Nixon, Slow Violence and the Environmentalism of the Poor (Harvard University Press 2011) 10.
10 As described by Vleugel, UNTBs, in addition to interpreting rights, supervise compliance and monitor progress by establishing a constructive dialogue with ‘ … their respective States parties, through which Committee members seek to clarify or deepen understanding of issues which have arisen in the periodic reports submitted by States parties, setting out the measures they have adopted to give effects to rights covered in the treaties’: Vincent Willem Vleugel, Culture in the State Reporting Procedure of the UN Human Rights Treaty Bodies (Intersentia 2020) 8; For an analysis of State reporting procedure see Walter Kaelin, ‘Examination of State Reports’ in Helen Keller and Geir Ulfstein (eds), UN Human Rights Treaty Bodies, Law and Legitimacy (Cambridge University Press 2012) 16–72.
11 The primary material analysed is the UNTBs’ Concluding Observations (COs) on state parties’ reviews.
12 Although the link between human rights and the adverse impact of climate change is well established, there is not an agreed definition of ‘climate rights’. The term is therefore used in this article to refer to the interpretation of existing human rights to articulate and give specific content to protection for victims of environmental changes. See for an extensive analysis of complementary routes what Garavito identifies ‘climatizing’ of human rights: César Roriguez-Garavito, ‘Climatizing Human Rights: Economic and Social Rights for the Anthropocene’ in Katherine Young and Malcolm Langdorf (eds), Oxford Handbook of Economic and Social Rights (Oxford University Press 2023). The articles will not discuss the emergence of the right to a healthy environment under international law (Sumudu Atapattu, ‘Environmental Rights and International Human Rights Covenants: What Standards Are Relevant?’ in Stephen J Turner and others (eds), Environmental Rights: The Development of Standards (Oxford University Press 2019)).
13 There are in total nine UNTBs that monitor the international human rights instruments and the UNTBs selected include: the Human Rights Committee (HRC) monitoring the International Covenant on Civil and Political Rights (ICCPR); the Committee on Economic, Social and Cultural Rights (CESCR), monitoring the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Committee on the Elimination of Violence Against Women (CEDAW) monitoring the Convention on the Elimination of all Forms of Violence against Women; the Committee on the Rights of the Child (CRC) monitoring the implementation of the Convention on the Rights of the Child; and the Committee on the Rights of Persons with Disabilities (CRPD) monitoring the Convention on the Rights of Persons with Disabilities. UNTBs’ general comments or recommendations will be included to complement information about the emerging practice and selected individual communications will be mentioned in the part on climate litigation.
14 The Concluding Observations (COs) are adopted as a main result of the dialogue between the state and the UN Treaty Body Committee and they reflect the main concerns and potential recommendations for remedial action. These instruments are a crucial tool for treaty bodies’ interpretation of human rights obligations. As highlighted by Vleugel (n 10) 69, ‘ … although international law, COs are not legally binding instruments under international law, the International Court of Justice (ICJ) has explicitly acknowledged the weight which the interpretative output of treaty bodies carries with regard to the interpretation of treaties’. See the position of the ICJ concerning the role of the UN Human Rights Committee in interpreting the International Covenant on Civil and Political Rights (ICCPR): ‘ … although the Court is in no way obliged, in the exercise of its judicial functions, to model its interpretation of the Covenant on that of the Committee, it believes that is should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty’: ICJ, case concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo); Judgement of 30 November 2010, ICJ Reports 2010, p 639, para 66.
15 For a comprehensive analysis of the distinction between time and temporalities of human rights see Kathryn McNeilly and Ben Warwick (eds), The Times and Temporalities of International Human Rights Law (Hart Publishing 2022).
16 As highlighted by Pahl and others, ‘ … while impacts are already happening, the most significant and far-reaching impacts of climate change lie in the future. Thus there is a distance between our lives now and these future climate change impacts’: Sabien Pahl and others, ‘Perceptions of Time in Relation to Climate Change’ (2014) 5 WIREs Clim Change 375, 376.
17 In their analysis Çalı, Costello and Cunningham reveal how ‘ … multiple normative outputs from UNTBs can reveal a multiplicity of dynamics’ in the interpretation of the principle of non-refoulement: Başak Çalı, Cathryn Costello and Stewart Cunningham, ‘Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies’ (2020) 21 German Law Journal 355, 357; see also Daniel Bedford and Jonathan Herring (eds), Embracing Vulnerability: The Challenges and Implications for Law (Routledge 2020); Sumudu Atapattu, UN Human Rights Institutions and the Environment: Synergies, Challenges, Trajectories (Routledge 2023); Başak Çalı, ‘UN Treaty Body Views: A Distinct Pathway to UN Human Rights Treaty Impact’ in Frans Viljoen and others (eds), A Life Interrupted: Essays in the Honour of Lives and Legacies of Chistoph Heyns (Pretoria University Law Press 2022); Vleugel (n 10); Margaretha Wewerinke-Singh, ‘Litigating Human Rights Violations Related to the Adverse Effects of Climate Change in the Pacific Islands’ in Jolene Lin and Douglas A Kysar (eds), Climate Change Litigation in the Asia Pacific (Cambridge University Press 2020); Margaretha Wewerinke-Singh and Curtis Doebbler, ‘Protecting Human Health from Climate Change: Legal Obligations and Avenues of Redress Under International Law’ (2022) 19 International Journal of Environmental Research and Public Health 5386.
18 Mark Crosweller and Petra Tschakert, ‘Climate Change and Disasters: The Ethics of Leadership’ (2020) 11 WIREs Climate Change 1; Atieno Mboya, ‘Vulnerability and the Climate Change Regime’ (2018) 36 UCLA Journal of Environmental Law and Policy 79; Paul Kadetz and Nancy Mock, ‘Problematizing Vulnerability. Unpacking Gender, Intersectionality, and the Normative Disaster Paradigm’ in Michael Zakour, Nancy Mock and Paul Kadetz (eds), Creating Katrina, Rebuilding Resilience (Elsevier 2018) 215; Anna Grear, ‘The Vulnerable Living Order: Human Rights and the Environment in a Critical and Philosophical Perspective’ (2016) 2 Journal of Human Rights and the Environment 23; Mary Crock, ‘The Protection of Vulnerable Groups’ in Susan C Breau and Katja LH Samuel (eds), Research Handbook on Disasters and International Law (Edward Elgar 2016) 383; Karen O’Brien and others, ‘Why Different Interpretations of Vulnerability Matter in Climate Change Discourses’ (2007) 7 Climate Policy 77.
19 IPCC, ‘Climate Change 2007. Impacts, Adaptation, and Vulnerability: Contribution of Working Group II to the Fifth Assessment Report of the IPCC’ (2007) 783.
20 For instance E. Tendayi Achiume, the UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, in her Report on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance on Ecological Crisis, Climate Change and Racial Justice (A/77/549, 25 October 2022), raises the attention on the newly developed metric, the Multidimensional Vulnerability Index, that measures the ‘economic, geographic, financial and environmental vulnerabilities’ of SIDS (para 33). See also UNDP, ‘Towards a Multidimensional Vulnerability Index: Discussion Paper’ (2021).
21 ‘B.2 Vulnerability of ecosystems and people to climate change differs substantially among and within regions (very high confidence), driven by patterns of intersecting socioeconomic development, unsustainable ocean and land use, inequity, marginalization, historical and ongoing patterns of inequity such as colonialism, and governance (high confidence). Approximately 3.3 to 3.6 billion people live in contexts that are highly vulnerable to climate change (high confidence). A high proportion of species is vulnerable to climate change (high confidence). Human and ecosystem vulnerability are interdependent (high confidence). Current unsustainable development patterns are increasing exposure of ecosystems and people to climate hazards (high confidence). 2.3, 2.4, 3.5, 4.3, 6.2, 8.2, 8.3, 9.4, 9.7, 10.4, 12.3, 14.5, 15.3, CCP5.2, CCP6.2, CCP7.3, CCP7.4, CCB GENDER’: IPCC, ‘Summary for Policymakers’ (2022) 12.
22 In general, vulnerability ‘ … can result from multiple and intersecting forms of discrimination, inequality, and structural and societal dynamics that lead to diminished and unequal levels of power and enjoyment of rights’ (A/HRC/38/21 para 14). See also the excellent analysis of Bryan S Turner, Vulnerability and Human Rights (Pennsylvania State University 2006); Catriona Mackenzie, The Importance of Relational Autonomy and Capabilities for an Ethics of Vulnerability (Oxford University Press 2014); Atieno Mboya, ‘Vulnerability and the Climate Change Regime’ (2018) 36 UCLA Journal of Environmental Law and Policy 79.
23 Paris Agreement to the United Nations Framework Convention on Climate Change, adopted on 12 December 2015, International Legal Materials, 55 (2016) 716. For an overview see Jutta Brunée, Procedure and Substance in International Environmental Law (Brill 2020).
24 Roberto Adorno, ‘Is Vulnerability the Foundation of Human Rights?’ in Aniceto Masferrer and Emilio García-Sánchez (eds), Human Dignity of the Vulnerable in the Age of Rights (Springer 2006) 258.
25 Monika Mayrhofer, ‘The Challenges of the Concept of Vulnerability in the Human Rights Context from a Discourse-Analytical Perspective’ (2020) 14 Zeitschrift für Menschenrechte 156; Lourdes Peroni and Alexandra Timmer, ‘Vulnerable Groups: the Promise of an Emergent Concept in European Human Rights Convention Law’ (2013) 11 International Journal of Constitutional Law 1056; Barbara A Misztal, The Challenges of Vulnerability, In Search of Strategies for a Less Vulnerable Social Life (Palgrave Macmillan 2011).
26 Erinn C Gilson, The Ethics of Vulnerability: A Feminist Analysis of Social Life and Practice (Routledge 2016).
27 Nesa Zimmermann, La notion de vulnérabilité dans la jurisprudence de la Cour européenne des droits de l’homme: Contours et utilité d’un concept en vogue (Schulthess 2022); Judith Butler, Zeynep Gambetti and Leticia Sabsay (eds), Vulnerability in Resistance (Duke University Press 2016); see also Nina A Kohn, ‘Vulnerability Theory and the Role of Government’ (2014) 26 Yale Journal of Law and Feminism 1; Alyson Cole, ‘All of Us are Vulnerable, But Some Are More Vulnerable than Others: The Political Ambiguity of Vulnerability Studies, an Ambivalent Critique’ (2016) 17 Critical Horizons 260.
28 Florencia Luna, ‘Elucidating the Concept of Vulnerability: Layers not Labels’ (2009) 2 International Journal of Feminist Approaches to Bioethics 121.
29 Ibid.
30 Corina Heri, ‘Justifying New Rights: Affectedness, Vulnerability, and the Rights of Peasants’ (2020) 21 German Law Journal 702; Timmer Alexandra, ‘A Quiet Revolution: Vulnerability in the European Court of Human Rights’ in Martha A Fineman and Anna Grear (eds), Vulnerability. Reflections on a New Ethical Foundation for Law and Politics (Ashgate 2013) 148; Fineman Martha Albertson, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20(1) Yale Journal of Law & Feminism, Emory Public Law Research Paper No 8-40; Fineman Martha Albertson, ‘“Elderly” as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility’ (June 20, 2012) Emory Legal Studies Research Paper No 12-224; Aniceto Masferrer and Emilio Garcia-Sánchez, ‘Vulnerability and Human Dignity in the Age of Rights’ in Aniceto Masferrer and Emilio Garcia-Sánchez (eds), Human Dignity of the Vulnerable in the Age of Rights, Ius Gentium: Comparative Perspectives on Law and Justice 55 (Springer 2016).
31 Janna Thompson, ‘Being in Time: Ethics and Temporal Vulnerability’ in Catriona Mackenzie, Wendy Rogers and Susan Dodds (eds), Vulnerability: New Essays in Ethics and Feminist Philosophy (Oxford University Press 2013).
32 Melanie BE Griffiths, ‘The Changing Politics of Time in the UK Immigration System’ in Elizabeth Mavroudi, Anastasia Christou and Ben Page (eds), Timespace and International Migration (Edward Elgar 2017).
33 Julia Dehm, ‘The Temporalities of Environmental Human Rights’ in Kathryn McNeilly and Ben Warwick (eds), The Times and Temporalities of International Human Rights Law (Hart Publishing 2022) 32.
34 Rob Nixon, Slow Violence and the Environmentalism of the Poor (Harvard University Press 2011) 3.
35 Ibid.
36 Ben Anderson and others, ‘Slow Emergencies: Temporality and the Racialized Biopolitics of Emergency Governance’ (2020) 44 Progress in Human Geographies 621.
37 Nixon (n. 34) 2.
38 Elisabeth F Cohen, ‘Citizenship and the Law of Time in the United States’ (2013) 8 Duke Journal of Constitutional Law & Public Policy 53; Samantha Besson, ‘La vulnérabilité et la structure des droits de l’homme: L’exemple de la jurisprudence de la Cour européenne des droits de l’homme’ in Laurence Burgorgue-Larsen (ed), La vulnérabilité saisie par les juges en Europe (Bruylant 2014) 59.
39 Jean d’Aspremont, ‘Time Travel in the Law of International Responsibility’ in Samantha Besson (ed), Theories of International Responsibility Law (Cambridge University Press 2022).
40 Martha A Fineman, ‘The Vulnerable Subject and the Responsive State’ (2010) 60 Emory Law Journal 251.
41 Florencia Luna, ‘Elucidating the Concept of Vulnerability: Layers not Labels’ (2009) 2 International Journal of Feminist Approaches to Bioethics 121.
42 Thérèse O’Donnell, ‘Vulnerability and the International Law Commission's Draft Articles on the Protection of Persons in the Event of Disasters’ (2019) 68 International and Comparative Law Quarterly 573.
43 UN HRC, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (2009) UN Doc A/HRC/10/61.
44 Olivier De Schutter, Changements climatiques et droits humains: L’Affaire Urgenda (2020) CRIDHO Working Paper 1/2020.
45 Ibid. 43 para 80; see also United Nations Human Rights Council (UN HRC), ‘The Slow Onset Effects of Climate Change and Human Rights Protection for Cross Border Migrants’ (2018) A/HRC/37/CRP.4; UN HCR, ‘Addressing Human Rights Protection Gaps in the Context of Migration and Displacement of Persons Across International Borders Resulting from the Adverse Effects of Climate Change and Supporting the Adaptation and Mitigation Plans of Developing Countries to Bridge the Protection Gaps’ (2018) A/HRC/38/21; Emanuele Sommario and Silvia Venier, ‘Human Rights Law and Disaster Risk Reduction’ (2018) 49 QIL Zoom-in 29.
46 As explicitly recognised in the Paris Agreement, all States parties should fully respect their ‘respective obligations’ on human rights in all climate-related actions. The Paris Agreement includes significant provisions not only on mitigation, as the reduction of greenhouse emissions (Paris Agreement, art 4), and but also on adaptation ‘ … to reduce the risks and impacts of climate change’ (art 2); Margaretha Wewerinke-Singh, State Responsibility, Climate Change and Human Rights under International Law (Hart Publishing 2019).
47 UN HRC, ‘Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John Knox: Mapping Report’ (2013) UN Doc A/HRC/25/53; John Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (2009) 33 Harvard Environmental Law Review 477.
48 UN HRC resolutions on human rights and climate change: UN HRC, Resolution 44/7 of 16 July 2020; Human Rights Council resolution 41/21 of 12 July 2019; UN HRC, Resolution 38/4 of 5 July 2018; UN HRC, Resolution 35/20 of 22 June 2017; UN HRC, Resolution 32/33 of 1 July 2016; UN HRC, Resolution 29/15 of 2 July 2015; UN HRC, Resolution 26/27 of 27 June 2014; UN HRC, Resolution 18/22 of 30 September 2011; UN HRC, Resolution 10/4 of 25 March 2009; UN HRC, Resolution 7/23 of 28 March 2008. The UN HRC widely make reference to groups or individuals that could be ‘ … especially vulnerable to the effects of climate change' (UNHRC, 2008). The groups include ‘ … women, children, indigenous peoples and communities, persons with health problems, migrants and non-nationals, persons with disabilities, the poor, older persons and minorities' (UNGA, 2020 para 29-33): Thérèse O’Donnell, ‘Vulnerability and the International Law Commission's Draft Articles on the Protection of Persons in the Event of Disasters’ (2019) 68 International and Comparative Law Quarterly 573.
49 UN High Commissioner for Human Rights, ‘Analytical Study on the Relationship between Climate Change and the Full and Effective Enjoyment for the Rights of the Child’ (2017) UN Doc A/HRC/35/13.
50 UN High Commissioner for Human Rights, ‘Analytical Study on Gender-responsive Climate Action for the Full and Effective Enjoyment of the Rights of Women’ (2019) UN Doc A/HRC/41/26.
51 UN HRC, ‘Addressing Human Rights Protection Gaps in the Context of Migration and Displacement of persons across international borders resulting from the adverse effects of climate change and supporting the adaptation and mitigation plans of developing countries to bridge the protection gaps’ (2018) UN Doc A/HRC/38/21; see also UN Doc A/HRC/37/34 for a definition of the ‘ … concept of “migrants in vulnerable situations”’ paras 12–15.
52 UN High Commissioner for Human Rights, ‘Analytical Study on the Promotion and Protection of the Rights of Persons with Disabilities in the Context of Climate Change’ (2020) UN Doc A/HRC/44/30.
53 UN High Commissioner for Human Rights, ‘Analytical Study on the Promotion and Protection of the Rights of Older Persons in the Context of Climate Change’ (2021) UN Doc A/HRC/47/46.
54 UN HRC, ‘Report of the Secretary General: The Impacts of Climate Change on the Human Rights of People in Vulnerable Situations’ (2022) UN Doc A/HRC/50/57.
55 The findings included in this part are the result of a mapping exercise conducted to identify the role played by the concept of ‘vulnerability’ in the Concluding Observations adopted by UNTBs between 2007 and 2021. The results were identified by using specific keywords connected to vulnerability: ‘climate change’, ‘disaster’, ‘gender’, ‘human rights’, ‘participation’, and ‘justice’. After the identification of pertinent issues, the results were structured into meaningful topics to enable insights on the content of protective duties and describe persisting challenges in the interpretation and monitoring of state parties’ obligations.
56 ILC, ‘Report of the International Law Commission. Sixty-eighth session (2 May–10 June and 4 July–12 August 2016)’ (2016) UN Doc A/71/10 35; Corina Heri, ‘Justifying New Rights: Affectedness, Vulnerability, and the Rights of Peasants’ (2020) 21 German Law Journal 702; Thérèse O’Donnell, ‘Vulnerability and the International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disasters’ (2019) 68 International and Comparative Law Quarterly 573.
57 UN CEDAW Committee, ‘General Recommendation No 37 on Gender Related Dimensions of Disaster Risk Reduction in a Changing Climate’ (2018) UN Doc CEDAW/C/GC/37; see also Gabriele Simm, ‘Gender, Disasters and International Law’ in Susan H Rimmer and Kate Ogg (eds), Research Handbook on Feminist Engagement with International Law (Edward Elgar 2019) 118.
58 UN CEDAW Committee, ‘Concluding Observations on the sixth periodic report of the Bahamas’ (2018) UN Doc CEDAW/C/BHS/CO/6 para 47.
59 UN CEDAW Committee, ‘Concluding Observations on the sixth periodic report of Samoa’ (2018) UN Doc CEDAW/C/WSM/CO/6 para 41.
60 UN CEDAW Committee, ‘Concluding Observations on the fifth periodic report of Fiji’ (2018) UN Doc CEDAW/C/FJI/CO/5 para 50 (c).
61 UN CEDAW Committee, ‘Concluding Observations on the combined initial and second periodic reports of Nauru’ (2017) UN Doc CEDAW/C/NRU/CO/1-2 para 36.
62 UN CEDAW Committee, ‘Concluding Observations on the ninth periodic report of Cabo Verde’ (2019) UN Doc CEDAW/C/CPV/CO/9 para 36.
63 Kirsten Sandberg, ‘The Convention on the Rights of the Child and the Vulnerability of Children’ (2015) 84 Nordic Journal of International Law 221.
64 The concept note is available at <www.ohchr.org/en/documents/general-comments-and-recommendations/draft-general-comment-no-26-childrens-rights-and> (accessed 23 May 2023). See UN CRC Committee, ‘General Comment No. 15 (2013) on the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (art. 24)’ (2013) UN Doc CRC/C/GC/15.
65 UN CRC Committee, ‘Concluding Observations on the combined third to fifth periodic reports of Malawi’ (2017) UN Doc CRC/C/MWI/CO/3-5 para 36 (d).
66 UN CRC Committee, ‘Concluding Observations on the combined fifth and sixth periodic reports of Belgium’ (2019) UN Doc CRC/C/BEL/CO/5-6 para 35 (b).
67 For instance, this recommendation was made to Saint Vincent and the Grenadines (UN CRC Committee, ‘Concluding Observations on the combined second and third periodic reports of Saint Vincent and the Grenadines’ (2017) UN CRC/C/VCT/CO/2-3 para 51 (b)), to Japan (UN CRC Committee, ‘Concluding Observations on the combined fourth and fifth periodic reports of Japan’ (2019) UN Doc CRC/C/JPN/CO/4-5 para 37(a)), to Cabo Verde (UN CRC Committee, ‘Concluding Observations on the second periodic report of Cabo Verde’ (2019) UN CRC/C/CPV/CO/2 para 73 (a)), to Mozambique (UN CRC Committee, ‘Concluding Observations on the combined third and fourth periodic reports of Mozambique’ (2019) UN Doc CRC/C/MOZ/CO/3-4 para 37(a)), to Austria (UN CRC Committee, ‘Concluding Observations on the combined fifth and sixth periodic reports of Austria’ (2020) UN CRC/C/AUT/CO/5-6 para 35 (a)), to Tuvalu (UN CRC Committee, ‘Concluding Observations on the combined second to fifth periodic reports of Tuvalu’ (2020) UN Doc CRC/C/TUV/CO/2-5 para 43 (a)) and to Cook Island (UN CRC Committee, ‘Concluding Observations on the combined second to fifth periodic reports of the Cook Islands’ (2020) UN Doc CRC/C/COK/CO/2-5 para 45 (a)).
68 UN CRC Committee, ‘Concluding Observations on the second periodic report of the Federated States of Micronesia’ (2020) UN Doc CRC/C/FSM/CO/2.
69 CRPD, art 11 states that ‘Situations of risk and humanitarian emergencies: States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.’
70 UN CRPD Committee, ‘Concluding Observations on the initial report of Nepal’ (2018) UN Doc CRPD/C/NPL/CO/1 para 19.
71 UN CRPD Committee, ‘Concluding Observations on the initial report of Australia, adopted by the Committee at its tenth session (2–13 September 2013)’ (2013) UN Doc CRPD/C/AUS/CO/1 para 23; UN CRPD Committee, ‘Concluding Observations on the initial report of Vanuatu’ (2019) UN Doc CRPD/C/VUT/CO/1 para 20. The Committee in the recommendations addressed to Vanuatu highlighted the ‘ … vulnerability of the state’s party to natural disasters' and it raised its concern by the lack of adequate involvement in disaster risk reductions plans at national, provincial and community level.
72 UN CRPD Committee, ‘Concluding Observations on the initial report of Qatar’ (2015) UN Doc CRPD/C/QAT/CO/1 para 22.
73 UN CRPD Committee, ‘Concluding Observations on the initial report of Luxembourg’ (2017) UN Doc CRPD/C/LUX/CO/1.
74 UN CRPD Committee, ‘Concluding Observations on the initial report of Latvia’ (2017) UN Doc CRPD/C/LVA/CO/1 para 19; UN CRPD Committee, ‘Concluding Observations on the initial report of Nepal’ (2018) UN Doc CRPD/C/NPL/CO/1 para 19.
75 UN CRPD Committee, ‘Concluding Observations on the combined second and third periodic reports of Australia’ (2019) UN Doc CRPD/C/AUS/CO/2-3 para 22.
76 In its Concluding Observations on Mauritius the CESCR points out that ‘ … the State party is prone to natural calamities such as cyclones and appreciates the establishment of the National Environment Fund. Natural disasters, in the face of climate change, have had a serious impact on the enjoyment of the Covenant rights, particularly for those living at sea level in the southern part of the country, despite the fact that the State party has made a negligible contribution to climate change’: Committee on Economic, Social and Cultural Rights, ‘Concluding Observations on the fifth periodic report of Mauritius’ (2019) UN Doc E/C.12/MUS/CO/5 para 9.
77 Committee on Economic, Social and Cultural Rights, ‘Concluding Observations on the fifth periodic report of Australia’ (2017) UN Doc E/C.12/AUS/CO/5.
78 Committee on Economic, Social and Cultural Rights, ‘Concluding Observations on the fourth periodic report of New Zealand’ (2018) UN Doc E/C.12/NZL/CO/4.
79 Committee on Economic, Social and Cultural Rights, ‘Concluding Observations on the initial report of Bangladesh’ (2018) UN Doc E/C.12/BGD/CO/1.
80 Already in 2006, while adopting its Concluding Observations on the United States’ response to Hurricane Katrina, the HRC highlighted how devastating effects of disasters are disproportionately borne by the poor, and in this case African Americans particularly. It recommended that additional efforts be made to ensure their rights to housing, education, and healthcare: UN HRC, ‘Consideration of Reports submitted by States Parties under Article 40 of the Covenant. Concluding Observations of the Human Rights Committee. United States of America’ (2006) UN Doc CCPR/C/USA/CO/3/Rev.1 para 26.
81 Human Rights Committee, ‘General comment No 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life’ (2019) UN Doc CCPR/C/GC/36.
82 UN CCPR Committee, ‘Concluding Observations in the absence of the initial report of Dominica’ (2021) UN Doc CCPR/C/DMA/COAR/1 para 24-25; UN CCPR Committee, ‘Concluding Observations on the initial report of Cabo Verde’ (2019) UN Doc CCPR/C/CPV/CO/1/Add.1 para 18.
83 UN CCPR Committee, ‘Concluding Observations on the fourth periodic report of Kenya’ (2021) UN Doc CCPR/C/KEN/CO/4 para 26.
84 Committee on Economic, Social and Cultural Rights, ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) (2000) UN Doc E/C.12/2000/4 para 35.’
85 Alexander HE Morawa, ‘Vulnerability as a Concept of International Human Rights Law’ (2003) 6 Journal of International Relations and Development 139.
86 Mary Crock, ‘The Protection of Vulnerable Groups’ in Susan C Breau and Katja LH Samuel (eds), Research Handbook on Disasters and International Law (Edward Elgar 2016) 385.
87 Margaretha Wewerinke-Singh, State Responsibility, Climate Change and Human Rights under International Law (Hart Publishing 2019) 34.
88 Jacqueline Peel and Hari M Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (2018) 7 Transnational Environmental Law 37; Jaqueline Peel and Jolene Lin, ‘Transnational Climate Change: The Contribution of the Global South’ (2019) 113 American Journal of International Law 679; Jolene Lin and Douglas A Kysar, Climate Change Litigation in the Asia Pacific (Cambridge University Press 2020).
89 Annalisa Savaresi and Joana Setzer, ‘Rights-Based Litigation in the Climate Emergency: Mapping the Landscape and New Knowledge Frontiers’ (2022) 13 Journal of Human Rights and the Environment 7; Annalisa Savaresi, Mariagrazia Alabrese and Joanne Scott, ‘Climate Change Litigation and Human Rights: Stocktaking and a Look at the Future’ (2022) 13 Journal of Human Rights and the Environment 1; Annalisa Savaresi, ‘The Use of Human Rights Arguments in Climate Change Litigation and Its Limitations’ in David Ismangil, Karen van der Schaaf and Lars van Troost, Climate Change, Justice and Human Rights, Changing Perspectives on Human Rights (Strategic Studies 2020) 49).
90 In her analysis Thompson coins the term ‘temporal vulnerability’ to show how temporal issues cannot be detached from the understanding of vulnerability: Janna Thompson, ‘Being in Time: Ethics and Temporal Vulnerability’ in Catriona Mackenzie, Wendy Rogers and Susan Dodds (eds), Vulnerability: New Essays in Ethics and Feminist Philosophy (Oxford University Press 2013).
91 Julia Dehm, ‘The Temporalities of Environmental Human Rights’ in Kathryn McNeilly and Ben Warwick (eds), The Times and Temporalities of International Human Rights Law (Hart Publishing 2022) 49; See also Samuel Moyn ‘Afterword: Between the Times’ in Kathryn McNeilly and Ben Warwick (eds), The Times and Temporalities of International Human Rights Law (Hart Publishing 2022) 231.
92 Dehm, ibid. 37.
93 Başak Çalı, Cathryn Costello and Stewart Cunningham, ‘Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies’ (2020) 21 German Law Journal 355.
94 Michelle Foster and Jane McAdam, ‘Analysis of “Imminence” in International Protection Claims: Teitiota v New Zealand and Beyond’ (2022) 71 International and Comparative Law Quarterly 975. Human Rights Committee, 'Views Adopted by the Committee under Article 5 (4) of the Optional Protocol, Concerning Communication No. 2728/2016' (2020) UN Doc CCPR/C/127/D/2728/2016.
95 James Bells and Briana Collins, ‘Human Rights and Climate Change Litigation: Should Temporal Imminence Form Part of Positive Rights Obligations?’ (2022) 13 Journal of Human Rights and the Environment 212.
96 The matter concerned a group of Torres Strait Islanders who claimed that Australia insufficient efforts to adopt climate adaptation and mitigation actions affected several rights under the International Covenant on Civil and Political Rights (ICCPR): Article 17 (freedom from interference with private, family and home life), Article 27 (Indigenous cultural rights), and Article 6 (right to life). In the views adopted the Committee found that the State party violated article 17 and 27 by failing to adopt adequate adaptation measures. Human Rights Committee, ‘Views Adopted by the Committee under Article 5(4) of the Optional Protocol, Concerning Communication No 3624/2019’ (2022) UN Doc CCPR/C/135/D/3624/2019.
97 ‘It is uncontested that the authors’ lives and cultures are highly dependent on the availability of the limited natural resources to which they have access, and on the predictability of the natural phenomena that surround them. The Committee observes that in light of their limited resources and location, the authors would likely be unable to finance adequate adaptation measures themselves, on an individual or community level, to adjust to actual or expected climate and its effects in order to moderate harm. The Committee therefore considers that the authors are among those who are extremely vulnerable to intensely experiencing severely disruptive climate change impacts’: ibid. para 7.10.
98 The HRC said that it ‘ … considers that such threats may include adverse climate change impacts, and recalls that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life’: ibid. para 8.3.
99 ‘The Committee considers that the information provided by the State party indicates that it is taking adaptive measures to reduce existing vulnerabilities and build resilience to climate change-related harms in the Islands’: ibid. para 8.7.
100 See for instance the landmark judgement of the Supreme Court in the State of Netherlands against Urgenda where climate change mitigation efforts were challenged to be inadequate and to contribute to the detrimental exposure of Dutch citizens to the adverse impacts of climate change. This could affect specifically article 2 – right to life – and article 8 – right to private and family life of the ECHR. In its order, the Supreme Court confirmed that the Netherlands to fulfil its obligations needed to reduce greenhouses emissions with at least 25% by 2020. Urgenda Foundation v The Netherlands (Ministry of Infrastructure and Environment) [2015] The Hague District Court C/09/546689/HA ZA 13-1396.
101 Keina Yoshida and Joana Setzer, ‘The Trends and Challenges of Climate Change Litigation and Human Rights’ (2020) 2 European Human Rights Law Review 161.
102 Leghari v Federation of Pakistan [2015] Lahore High Court, Judge Syed Mansoor Ali Shah, para 6; Jacqueline Peel and Hari M Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (2018) 7 Transnational Environmental Law 37.
103 In particular: the rights to life and human dignity (under arts 9 and 14 of the constitution), the right to a healthy and clean environment. As guiding principles for the interpretation of these rights the case includes: ‘the constitutional values of democracy, equality, and social, economic, and political justice include within their ambit and commitment, international environmental principles of sustainable development, precautionary principle, intergenerational and intergenerational equity, and the doctrine of public trust’: ibid. para 7.
104 Jacqueline Peel and Hari M Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (2018) 7 Transnational Environmental Law 37; Leghari v Federation of Pakistan (n 102) paras 6 and 8.
105 This case invoked the violation of the rights to life, to physical integrity, right to property, and the rights to a future consistent with human dignity (art 1(1) of the Basic Law) and the rights to an ecological minimum standard of living (art 2(2) of the Basic Law). Neubauer, et al v Germany, Order of the First Senate of 24 March 2021; Louis J Kotzé, ‘Neubauer et al versus Germany: Planetary Climate Litigation for the Anthropocene?’ (2021) 22 German Law Journal 1423.
106 Julia Dehm, ‘The Temporalities of Environmental Human Rights’ in Kathryn McNeilly and Ben Warwick (eds), The Times and Temporalities of International Human Rights Law (Hart Publishing 2022) 37.
107 Grahn-Farley (n 5).
108 Verein KlimaSeniorinnen Schweiz v UVEK (Decision of the Federal Supreme Court A-2992-2017).
109 Seline Keller and Basil Bornemann, ‘New Climate Activism between Politics and Law: Analysing the Strategy of the KlimaSeniorinnen Schweiz’ (2021) 9 Politics and Governance 124; Cordelia C Bähr and others, ‘KlimaSeniorinnen: Lessons from the Swiss Senior Women’s Case For Future Climate Litigation’ (2018) 9 Journal of Human Rights and the Environment 194.
110 Right to Life (Swiss Constitution, art 10; European Convention on Human Rights, art 2), and Right to Respect for Private and Family Life (European Convention on Human Rights, art 8).
111 Decision (of the Federal Administrative Court) A-2992/2017, 27 November 2018.
112 Decision (of the Federal Supreme Court) 1C 37/2019, 5 May 2020.
113 Decision (of the Federal Administrative Court) A-2992/2017, 27 November 2018.
114 Unofficial Translation of the judgement 1C_37/2019 para 5.1: Bähr and others (n 109).
115 See the IPCC, ‘Climate Change 2014: Impacts, Adaptation, and Vulnerability, Part A’ (2014) 721. The link between climate change and premature death is ‘likely' to occur. There is for instance a study, published on 7 September 2022 (Kendra R Cicci and others, ‘High Temperatures and Cardiovascular-Related Morbidity: A Scoping Review’ (2022) 19 International Journal of Environmental Research and Public Health 11243) that in its concluding observations states ‘ … age, sex, and gender, and the intensity/duration of exposure to high temperatures (e.g. heat wave exposure versus heat day or high ambient temperature exposure) may also modify the relationship between high temperatures and various CVD (Cardiovascular-Related Morbidity)-related hospital encounters’.
116 UN Special Rapporteur on Violence against Women and Girls, its Causes and Consequences, ‘The Report on violence against women and girls in the context of the climate crisis, including environmental degradation and related disaster risk mitigation and response’ (2022) UN Doc A/77/136.
117 Tiina Pajuste, ‘The Status of the Human Rights of Older Persons’ in Andreas von Arnauld, Kerstin von der Decken and Mart Susi (eds), The Cambridge Handbook of New Human Rights: Recognition, Novelty, Rhetoric (Cambridge University Press 2020) 183.
118 On 27 September 2013, the Human Rights Council adopted resolution 24/20 establishing the mandate of the Independent Expert on the Enjoyment of all Human Rihts by Older Persons. In 2014, the UN Human Rights Council has appointed the first Independent Expert of the Enjoyment of All Human Rights by Older Persons.
119 Importantly, the case is now pending in front of the European Court of Human Rights, claiming the violation of arts 2 and 8, and it will be extremely relevant to see how the ECHR will rely on times issues will be addressed to legitimise (or not) positive climatic obligations. The case Verein KlimaSeniorinnen Schweiz and others v Switzerland (application no 53600/20) had been allocated to the jurisdiction of the Grand Chamber of the European Court of Human Rights on Friday, 29 April 2022; Evelyne Schmid, ‘Victim Status before the ECtHR in Cases of Alleged Omissions: The Swiss Climate Case’ (EJIL: Talk, 30 April 2022) .
120 Margaretha Wewerinke-Singh and others, ‘Human Rights and the Environment in Pacific Island States’ in Margaretha Wewerinke-Singh and Eva Hamman (eds), Environmental Law and Governance in the Pacific: Climate Change, Biodiversity and Communities (Routledge 2020) 237.
121 Jane McAdam, ‘The Emerging New Zealand Jurisprudence on Climate Change, Disasters and Displacement’ (2015) 3 Migration Studies 131; AF (Kiribati) [2013], NZIPT 800413.
122 AC (Tuvalu) [2014], NZIPT, 800517-520, para: 75.
123 Bruce Burson, Richard Bedford and Charlotte Bedford, ‘In the Same Canoe: Building the Case for a Regional Harmonization of Approaches to Humanitarian Entry and Stay in “Our Sea of Islands”’ (2021) Platform on Disaster Displacement 58.
124 McAdam (n 121).
125 A recent example is the decision adopted by a German Higher Administrative Court that included ‘ … environmental conditions, such as the climate and natural disasters’ ‘ … to conduct the positive assessment for granting humanitarian protection to the applicant from Afghanistan (VGH Baden-Wuerttemberg, Judgment of 17 December 2020, A 11 S 2042/20, para 25). For a preliminary analysis, see Camilla Schloss, ‘Climate Migrants: How German Courts Take the Environment into Account when Considering Non-Refoulement’ (Völkerrechtsblog 3 March 2021).
126 Until 2018, the Italian Migration Law included the possibility to grant humanitarian protection in case neither refugee nor subsidiary protection mechanisms were admissible (Article 5(6) of the Italian Consolidated Immigration Act – TU 286/98). This third form of protection was defined as a ‘ … safeguard clause of the Italian system’, to be used to grant the authorisation to stay of vulnerable subject that were not in the position to return. A new law adopted in 2018 (d.l. 113/2018), and modified in 2020 (d.l. 130/2020), included a new kind a permit: the permit for calamity that can be issued in case of sudden-onset disasters (for instance a decision of the Judge of Peace of Bari granted this permit to a citizen from Albania who lost her home during the earthquake that took place in 2019 – Judge of Peace, decision no 3205/2021, 20 May 2021).
127 See the decision no 4455/2018 adopted by Italian Court of Cassation offering a detailed analysis of the vulnerability assessment conducted by the Court for granting humanitarian protection. The Court illustrates the complementary dimensions of vulnerability: the exposure of the country of origin to poverty/famine/drought (situational dimension), and the individual’s exposure to the violation of his/her rights (subjective dimension). In this way, the Court framed an expansive understanding of vulnerability to grant humanitarian protection to individuals affected by the adverse impacts of environmental changes. Italian Court of Cassation, Decision no 4455/2018, 24 February 2018.
128 Tribunal of Milan, RG 8727/2015, 16 September 2015. In its decision the Tribunal expanded the understanding of humanitarian protection to include a situational analysis of countries of origin. By considering geographical vulnerability together with subjective vulnerability, it adopted a human rights analytical framework for the protection of environmental migrants. See also the decision of the Tribunal of Florence, RG 14046/2016, 19 February 2018.
129 Tribunal of Naples, RG 7523/2016, 5 June 2017; Tribunal of L’Aquila, RG 1522/17, 19 February 2018; Tribunal of Genoa, RG 926/2020, 28 February 2020; Italian Court of Cassation, Decision no 25143/20, 10 November 2020.
130 Italian Court of Cassation, Decision no 2563/2020, 4 February 2020.
131 Italian Court of Cassation, Decision no 25143/20, RG 32054/2019, 10 November 2020. Translation provided by the author. Interestingly, another decision that concerned a citizen from Bangladesh was significantly for the vulnerability assessment: it made a distiction between situational and subjective dimensions of vulnerability. In this case the recurring flooding in the country was explicitily acknowledged to ground the implementation of the right to leave (Universal Declaration of Human Rights, art 13) due to poverty, precarity, social exclusion, and economic crisis. Tribunal of Genoa, RG 926/2020, 28 February 2020.
132 Italian Court of Cassation, Decision no 5022/2021, 24 February 2021.
133 Bruce Burson, ‘The Concept of Time and the Assessment of Risk in Refugee Status Determination: Presentation to Kaldor Centre Annual Conference, 18th November 2016’ (Sydney, Australia 2016). A close scrutiny of the time and temporalities of environmental changes is clearly becoming crucial for understanding the adverse impact of slow-onset environmental changes. Determining an alleged breach of human rights, in particular the right to life, has been recently invoked as relevant parameter and standard relating to the assessment of vulnerability and human rights obligations in jurisprudential discussions. Relevant here is the recent decision adopted by the New Zealand Tribunal in the case AW (Kiribati) on 31 October 2022 that conducts a specific examination of the relationship between risk and time. It is becoming more and more relevant to clarify how the nature of harm affects the individual’s vulnerability, the role of a ‘reasonable foreseeable future’ standard, and the corresponding need to prioritise positive and preventive obligations (Immigration and Protection Tribunal New Zealand, AW (Kiribati), 31 October 2022 [2002] NZIPT 802085).
134 Adrienne Anderson and others, ‘Imminence in Refugee and Human Rights Law: A Misplaced Notion for International Protection’ (2019) 68 ICQL 111.
135 McAdam (n 121); AF (Kiribati) [2013], NZIPT 800413.
136 Italian Court of Cassation, Decision no 5022/2021, 24 February 2021.