Climate displacement in India: exploring the current legal framework and proposed legal initiatives

Human rights have not played a significant role in the international law and politics of climate change to date. However, there has been increasing interest among legal scholars and moral and political philosophers in a human rights approach to climate change. This review focuses on the new literature in moral and political philosophy that has begun to explore the connections between human rights and climate change. The attractions of a human rights approach to climate change are explained. The idea of a moral conception of human rights is introduced and distinguished from human rights recognized in international and national law. The key features of moral human rights are identified and an important distinction between negative and positive rights is explained. The three main arguments in the literature connecting human rights and climate change are introduced and critical discussions of them are presented. The first argument (associated with Steve Vanderheiden) claims that there is a human right to a stable climate, which can be derived from a human right to an adequate environment. The second argument (associated with Simon Caney) claims that anthropogenic climate change violates basic human (negative) rights to life, health, and subsistence. The third argument claims that there is a human right to emit greenhouse gases. This argument has two versions. The first version claims that there is a human right to equal per capita emissions. The second version claims that there is a human right to subsistence emissions. WIREs Clim Change 2013, 4:159–170. doi: 10.1002/wcc.218This article is categorized under: Climate, Nature, and Ethics > Climate Change and Global Justice Climate, Nature, and Ethics > Climate Change and Human Rights Climate, Nature, and Ethics > Ethics and Climate Change

Climate change can no longer be viewed through the singular environmental lens; its impact on human rights must be considered to gain a comprehensive understanding of its consequences. Not only is climate change devastating the environment, it is depriving many of the enjoyment of their homes and basic human necessities. Consideration must be given to the potential benefits human rights law can offer in the fight against the consequences of climate change. Unfortunately, there appears to be hesitation about implementing the human rights approach. Some arguments have leaned in favour of the environmental approach due to concerns about the inability to assign accountability and the possibility that including the human rights approach will obscure the innate value of the environment. Hence, the objective of this article is to explore the importance and benefits of adopting a human rights approach to foster a balance between the two approaches. This article focuses on India which, due to its significant climatic disturbances, serves as an ideal example of the human rights violations resulting from climate change. The method used in the study underpinning this article was a doctrinal review of the relevant literature, including journal articles, legislation, and international legal documents. The debate of which approach is more effective may continue for years to come, with both sides presenting plausible arguments. However, the solely environmental approach has not proved to be the most effective. Implementing the human rights approach to climate change should be intentionally considered without nullifying the environmental approach.

It is axiomatic that the climate impacts documented by the Intergovernmental Panel on Climate Change are likely to undermine the realisation of a range of protected human rights. Yet it is only in the recent past that an explicit human rights approach has been brought to bear on the climate change problem. Scholars and human rights bodies have begun to advocate a human rights-centred approach to climate change—an approach which would place the individual at the centre of inquiry, and draw attention to the impact that climate change could have on human rights protection. This article focuses on the human rights claims raised in the climate negotiations, the implications these claims may have and the interests they may serve. The article argues that human rights approaches, taken in their entirety, have the potential to bring much needed attention to individual welfare as well as to provide ethical moorings in inter-governmental climate negotiations currently characterised by self-interested deal-seeking. Human rights approaches provide benchmarks against which states’ actions can be evaluated and they offer the possibility of holding authorities to account. Human rights approaches may also offer additional criteria for the interpretation of applicable principles and obligations that states have to each other, to their own citizens, and to the citizens of other states in relation to climate change. This article seeks to provide initial insights into the ways in which human-rights-based interpretations of applicable principles and obligations may serve to influence some of the current debates in the climate negotiations.

The longstanding debate in refugee law about the meaning of persecution has been largely resolved in favour of the human rights approach – the idea that basic human rights serve as an objective yardstick for evaluating whether a particular act might constitute persecution. However, the human rights approach produces several dilemmas, not least the question of which human rights are ‘basic’ human rights, and how to ascertain whether a given human rights violation reaches the threshold for persecution. These dilemmas have spawned various, sometimes competing, theories within refugee law scholarship. Meanwhile, a distinctive strain of child rights scholarship has emerged within refugee law, concerned with how to adapt the status determination procedure and refugee definition to children. Building upon that work, this article systematically examines the implications of the general human rights approach to persecution, and its various dilemmas, for the development of a child rights approach. The central thesis is that the human rights approach to persecution erects hidden barriers to the acceptance that violations of child rights (also) constitute persecution. Part 2 makes some preliminary observations on children’s rights that serve as a backdrop to exploring and critiquing, in part 3, the key features of the human rights approach to persecution and its implications for the rights of the child. Part 4 is a case study, based on the text of the European Union Qualification Directive and the case law of the Court of Justice of the European Union, of how the child rights implications identified in part 3 play out ‘in the real world’. It is found that when the human rights approach, based on lex generalis, is superimposed on the lex specialis that is the rights of the child, the results are disappointing. Nonetheless, the article identifies how the human rights approach to persecution can be adjusted so as to accommodate the rights of the child.

Climate change can be litigated through tort, common law, statute/policy, public trust doctrine or human rights among others. While climate change litigation appears to have developed in states of the Global North, its use is still relatively recent in states of the Global South. Nor has it been seriously considered from the perspective of international tribunals from the Global South. Therefore, this study examines a human rights approach to climate change litigation in the Economic Community of West African States Court of Justice (ECOWAS Court). This study finds that there are some developments in certain jurisdictions which make a human rights approach promising in terms of locus standi, justiciability, causation and separation of powers and that they can be related to the jurisprudence of the ECOWAS Court. It also finds that the doctrine of exhaustion of local remedies does not apply to the ECOWAS Court. Based on these findings, it is argued that a human rights approach can be successfully deployed to litigate climate change before the ECOWAS Court and that it can wake up West African States from their lethargy in terms of policy on, and treatment of, climate issues. The study concludes that individuals and NGOs may adopt a human rights approach before the ECOWAS Court to influence policy change and/or state behaviour in West African States.

Energy is central to both the 2030 Agenda for Sustainable Development and the Paris Agreement and a prerequisite to the realization of human rights for billions of people. Yet the nexus between human rights, climate change and energy remains underdeveloped in international law and practice. This article considers the potential and limitations of a ‘human rights approach’ to energy to accelerate progress towards universal access to modern energy services while addressing climate change and inequalities. It considers three distinct elements of a human rights approach to energy: a discursive element; a mainstreaming element; and a litigation element. In exploring the potential contributions of each of these elements to a just energy transition, it demonstrates how a human rights approach to energy can help to address some of the shortcomings of the Sustainable Development Goals related to energy and climate.

In recent years, the phenomenon of climate change has emerged as a critical global issue that poses a significant threat to human survival. Industries such as fossil fuels, manufacturing, and agriculture have been identified as major sources of greenhouse gas emissions. Corporate activities have played a role in triggering legal actions holding them accountable for their contribution to climate change. Therefore, this research analyses the prospects and challenges of climate change litigation against corporations in Indonesia using human rights approach. This research has adopted normative legal research with a statutory and historical approach. Descriptive analysis is applied to analyze the data. This paper reveals that the use of human rights approach can strengthen arguments against corporations over climate change. This paper concludes that despite the challenge that may arise, there is a big chance for successful climate change litigation against corporations in Indonesia by using human rights approach as the main claim.

This article examines local communities’ participation in sustainable tourism development in Sleman Regency with a Human Rights (HAM) approach. In the context of the problem, fast-growing tourism often ignores the rights and participation of local communities, so a more inclusive and sustainable approach is needed. This study aims to evaluate the level of community participation and identify factors that support or hinder their involvement.The method used is qualitative with a case study approach. Data were collected through in-depth interviews, participatory observations, and document analysis. Participation theory and human rights are used as the framework of analysis.The study results show that local community participation still needs to improve and is influenced by factors such as lack of information, low education, and the dominance of external parties. However, local initiatives show great potential for sustainable tourism development if supported by the right policies.In conclusion, a human rights approach can increase community participation in sustainable tourism. This research’s novelty lies in integrating human rights perspectives into the analysis of community participation in tourism, which provides new insights for more inclusive and equitable tourism policies.

This chapter reviews the broad strategy to link human rights and climate change, focusing specifically on how well the strategy works to strengthen obligations on developed countries to transfer technology that can reduce or mitigate the effects of increased carbon emissions. The chapter posits that the state-centered “development” approach that has dominated both economic development and climate discourse to date has failed to provide a sufficient foundation for realistically addressing the issue of technology transfer. This chapter argues that the human rights approach solves two key problems that the development framework does not. First, it enables differentiation to take place, not between states, but between more vulnerable and less vulnerable populations within countries. It thus enables a focus on the most vulnerable populations, and in doing so also provides a basis for limiting the scope and nature of the demand for technologies to address climate change. Second, by limiting the scope of needed technologies, a human rights approach makes it more likely that such technologies will be made available to populations in need. If they are not, and lower-resource governments must act to secure climate change mitigation technologies for their citizens, the human rights approach will limit the grounds upon which actors in developed countries can challenge these decisions.

We have produced a practical guide with the British Institute of Human Rights to address the challenges associated with ethical decision making at end-of-life. Despite recommendations from the Francis Report, we continue to hear about poor experience of end-of-life care and a significant number of acute hospitals continue to fail this aspect of inspection. We believe a human rights approach to end-of-life care not only meets our legal duty to comply with the Human Rights Act but also addresses the learnings from the Francis Inquiry and the failings of the Liverpool Care Pathway. Being treated with dignity and respect at end of life is central to the Five Priorities for Care (DH 2014) and the NICE Quality Standard (2015). The Care Quality Commission utilise a Human Rights Approach to the regulation of services, with particular reference to the right to life and the rights of staff and they also plan to utilise human rights within the assessment framework. The guide, ‘A Human Rights Approach to End of Life Care’, was written to help individuals feel confident to embrace human rights as an integral component to end of life care. The use of flowcharts and colour encourages readers to dip in and out of specific topics. We aim to develop this learning resource further by delivering face to face training sessions. We will use case scenarios to build on existing knowledge and experience and encourage open discussion and debate to embed key principles, aid decision making, and effect change and ensure compassion and dignity are at the heart of personalised care. A formal evaluation study will be undertaken to measure outcomes. On completion, we expect learners to be empowered to deliver sustainable improvements in care and transfer learning to practice.

Human rights law is a powerful legal tool to protect health, including tobacco control. The International Covenant on Economic, Social and Cultural Rights (IESCR) obliges States to produce results and is enforceable. Although a human rights approach would have many advantages for Latin American tobacco control, it has not been appropriately used for advocacy purposes yet. Human rights law is a powerful legal tool to protect health, including tobacco control and smoking cessation. Therefore, I appreciate this article by Meier et al. [1]. I will briefly comment on some additional aspects, both generally and as they relate to the current situation in Latin America. Are human rights enforceable? In theory, yes. Human rights are inherent to human beings and empower individuals (rights holders) to demand that States (duty holders) comply with the obligations of those rights. However, an “artificial” contrast has been raised about differences in enforceability between civil and political rights (e.g. the right to life, liberty, property, etc.) and economic, social and cultural rights (ESCR), related to living conditions and access to material and cultural goods (including the right to health). Civil and political rights confer an obligation of results and no one disputes they are enforceable. ESCR confer obligations of means or behaviour and can be viewed as enforceable only to the extent that the State has sufficient resources; they are, therefore, often regarded as “expectations” [2]. For most Latin American law, the fact that ESCR must be fulfilled according to the available resources does not imply they are not enforceable. The obligation to use “the maximum” of the “available resources,” together with the obligation of progressive satisfaction and the need to the results to the appropriate technical or political standards, would make ESCR enforceable. In addition, international law imposes a fundamental rule: pacta sunt servanda, which means that “contracts are to be fulfilled.” Traditionally, the human rights State obligations were classified into positive obligations (to carry out certain activities leading to compliance; in the case of civilians and politicians) and negative obligations (to refrain from actions that violated them; in the case of ESCR). Currently, the Van Hoof classification describes three types of human rights State obligations: to respect (refrain from interfering directly or indirectly), to protect (take measures to prevent third parties from interfering), and to comply (adopt all legislative, administrative, budgetary and other measures appropriate for its realization) [2]. Although ESCR are considered enforceable rights, they are threatened by the doctrine, linked to economic liberalism, which aims to make the State cheaper, often at the cost of social policies. Additionally, although a human rights approach would have many advantages for Latin American tobacco control, this approach has traditionally not been used by tobacco control advocates, but by rather by the tobacco industry (e.g. arguing freedom of expression violation) to attack tobacco control policies [3]. A human rights approach currently has limited relevance for tobacco control policies in Latin America. As Meier et al. point out, human rights law has a prominent role in political and regulatory discourses, and some countries have already established a connection between tobacco control and the fundamental right to health. Because most Latin American countries belong to the civil law tradition, controlling private actors through civil liability litigation is underdeveloped. However, Latin America also has a strong tradition of controlling State action through fundamental rights litigation. Likewise, the Inter-American Human Rights System provides a way to demand human rights State responsibility. Although the current relevance of a human rights approach in Latin America may be limited, it seems a promising approach that ought to be explored [2]. None. None.

In this chapter I use sole parents in Australia as a focus to examine what it would mean to take a gendered, human rights approach to interpreting the international law right to social security. While this approach supports the ongoing provision of social security in the form of cash transfers as a safety net for immediate alleviation of income poverty, the human rights approach points to complementary measures that are also needed. Social security is to be understood as a right that requires the state to enable sole parents to undertake their caring roles but also protect themselves against ongoing poverty in all its dimensions. Cash assistance has been the primary form of support and is essential. But cash alone is not enough.Sole parents are a useful focus for exploring this engendered human rights approach to social security. In Australia, as in many countries, sole parent households are the family unit that most intensely experiences the competing demands of paid work and care responsibilities. They thus represent a litmus test for whether the state ensures that citizens with caring responsibilities are protected against economic and social vulnerability.An engendered human rights approach provides principles for evaluating and guiding a state’s fulfilment of its obligation to provide social security. The human rights lens casts the state obligations wider than merely treating sole parents as ‘citizen workers.’ Human rights inhere in individuals because of their humanity, not because of their labour. A human rights approach therefore calls for support for sole parents to keep them from poverty but also enables them to engage in care and in society, including but not limited to the labour market. I make the argument for a wider range of supports for sole parents in three parts: (I) a brief outline of Australia’s general revenue based tax-transfer system of social security through which sole parents have been traditionally supported through a cash transfer; (II) an examination of reasons why sole parents in Australia have a low rate of employment and the role the state has played in creating, reinforcing and more recently trying to address this; and (III) how family un-friendly work conditions act as a barrier to sole parent workforce participation and how labour laws and policies contribute to these.

Human dignity: A fundamental guiding value for a human rights approach to fisheries?

Disaster management strategies have often relied on a humanitarian approach which responds to societal needs through the use of support and assistance. A growing trend has been to apply a human rights approach to disaster management, which emphasizes human dignity, participation, equitable use of resources, transparency, accountability, and the obligations of governments to protect people’s rights during disasters. In this paper, I introduce the reader to the human rights approach, and international human rights bodies that have operated during disasters, as well as to the international laws and guidelines that have been produced by these bodies in relation to disasters. Then I examine the ways in which a human rights approach has been used during disaster mitigation, preparation, response and recovery efforts, and how a human rights approach can be enhanced in these efforts in the future. Finally, I make a case for why social workers should consider using a human rights approach to disaster management, and discuss how social work practitioners, researchers, and advocates can promote this approach in their disaster-related work.

Climate change is one of the most urgent environmental problems of the 21st century and one of the major challenges facing the international community as the greatest threat to human rights. The Paris Agreement, adopted in December 2015, is the most important result of efforts to address the challenge. The Paris Agreement is the first climate change treaty to include a reference to human rights and, moreover, the first multilateral environmental agreement(MEA) that explicitly mentions human rights. The Paris Agreement, of course, is not a human rights treaty in the general sense. The Paris Agreement does not include provisions on human rights in its operative provisions, but refers to human rights only in the Preamble. The Paris Agreement, in its preamble, recognizes that “climate change is a common concern of humankind,” and “Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights.” The Paris Convention was the first international environmental agreement to recognize that human rights obligations are an integral part of the United Nations climate system. The explicit mention of human rights in the Paris Agreement is a decade-long advocacy of the international community that has raised awareness about the adverse impacts of human rights on climate change and the human rights of actions to respond to climate change. The Paris Agreement, however, does not specifically state human rights obligations of States Parties, and their role in respecting, promoting, protecting and realizing human rights in action to address climate change is very limited. Nevertheless, by referring to human rights, the Paris Agreement will also contribute to the advancement of political narratives that justify climate action. This article first examines the Cancun Agreement and subsequent human rights discussions. secondly, It analyzes the content and legal implications of the human rights-related provisions included in the Paris Agreement adopted by the 21st Conference of the Parties(COP21) to the UN Climate Change Convention held in Paris in December 2015. Finally, I will examine and assess the importance of a human rights approach in the implementation of the Paris Convention