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The Paris Agreement and human rights: is sustainable development the ‘new human right’?

Sumudu Atapattu

Keywords: Paris Agreement; sustainable development; human rights; vulnerable communities; social justice; climate change; environmental justice

The Paris Agreement will go down in history as the first binding global environmental treaty to include a specific provision on human rights. While the preambular reference could have been better drafted, the explicit textual inclusion of human rights in an environmental treaty is a major step forward. This article discusses the human rights provision in the Paris Agreement in the wider context of sustainable development and reflects upon whether the concept of sustainable development is a useful tool that can be deployed by advocates of human rights. The article discusses sustainable development and its evolution, and examines the meaning of its three pillars as endorsed in the Johannesburg Declaration on Sustainable Development – economic development, environmental protection and social development. This article argues that these references to sustainable development might be another avenue by which to bring human rights into the Paris Agreement. Sustainable development includes human rights and, therefore, by implication, the Paris Agreement should be interpreted as including human rights that are encompassed in the social pillar of sustainable development.

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1 INTRODUCTION

The Paris Agreement will go down in history as the first binding global environmental treaty to include a specific provision on human rights. While the preambular reference could have been better drafted, the explicit textual inclusion of human rights in an environmental treaty is a major step forward. 1 This inclusion is particularly significant because the recognition of the link between climate change and human rights by the human rights community is a relatively recent development. 2

Academics and nongovernmental organizations have long advocated for the inclusion of human rights in the various climate change instruments 3 hitherto adopted by the Conference of Parties (COP) to the UN Framework Convention on Climate Change (UNFCCC). 4 Despite the catastrophic nature of the consequences of climate change, especially for the inhabitants of small island states, low-lying areas and other vulnerable communities, 5 these documents failed to give a human face to the climate crisis. In 2010, at COP 16 in Cancún, state parties emphasized, for the first time, the link between climate change and human rights: ‘Parties should in all climate change related actions, fully respect human rights’. 6 In addition, COP 16 acknowledged the need to adopt country-driven, gender sensitive, participatory and fully transparent approaches, and the need to protect vulnerable communities. 7 The link between human rights and climate change thereafter slowly gained momentum and many scholars and activists hoped that a provision on human rights would be included in the Paris Agreement.

This article discusses the human rights provision in the Paris Agreement in the wider context of sustainable development and reflects upon whether the concept of sustainable development is a useful tool that can be deployed by advocates of human rights. This article discusses how the Paris Agreement is replete with references to sustainable development and argues that these references to sustainable development might be another avenue by which to bring human rights into the Paris Agreement if states are not willing to accept that they have obligations under human rights law to protect their citizens against the adverse consequences of climate change. Section 2 of this article discusses the link between climate change and human rights in relation to the Paris Agreement. Section 3 contains a brief discussion of sustainable development and its evolution, and an examination of the meaning of its three pillars endorsed in the Johannesburg Declaration on Sustainable Development. 8 Section 4 discusses the references to sustainable development in the Paris Agreement and ties these to a consideration of climate change and human rights. As the discussion in Section 3 reveals, sustainable development includes human rights and, therefore, by implication, the Paris Agreement should be interpreted as including human rights that are encompassed in the social pillar of sustainable development.

2 CLIMATE CHANGE AND HUMAN RIGHTS

The link between climate change and human rights has received considerable attention in recent years. 9 From academic writings 10 to advocacy efforts by NGOs and other civil society actors, 11 consensus has emerged that climate change will undermine most, if not all, protected rights, 12 although what this means for the obligations of states in relation to mitigation and adaptation is still being discussed. 13 Moreover, the obligation of states to redress damage caused by historic emissions has remained contentious and unresolved. This lack of resolution is mainly due to archaic legal principles adopted long before climate change was recognized as a fundamental global problem. 14 A notable area of concern is state responsibility principles that are primarily bilateral in nature. Unlike sophisticated national legal systems that have developed novel theories of liability, international law lacks collective theories of liability to accommodate a phenomenon as complex as climate change. 15 Similarly, establishing the chain of causation required for claiming damages is complex given that climate change is a global phenomenon that has resulted from the accumulation of greenhouse gases from virtually every member of the international community. 16 Moreover, the global North has consistently refused to take responsibility for its contribution to anthropogenic global warming. Contention also surrounds the human rights obligations that states may or may not have beyond their own territory – the current debate on extra-territoriality. 17 There is a tension concerning territorial sovereignty and human rights because human rights are generally applicable territorially 18 and, therefore, are considered to be unsuited to apply to environmental issues that are transboundary or global in nature. 19 Despite these limitations and areas of tension, human rights law nevertheless imposes a general obligation on states to respect, protect and fulfil their human rights obligations when taking action relating to climate change. 20 States are required to ensure that mitigation and adaptation measures and policies do not violate peoples’ rights, 21 particularly those of vulnerable groups like women, children and indigenous peoples. 22 And although international human rights law does not yet recognize a distinct right to a healthy environment, the human rights framework has been used creatively by environmental and human rights lawyers to seek redress for damage caused by environmental issues. 23 Regional human rights bodies have been the foci of action relating to this convergence 24 and their jurisprudence has contributed to the emergence of a human right to a healthy environment. 25

In the run up to the Paris Conference, UN special procedures mandate holders issued a statement calling upon the Conference of Parties to include human rights protection in the new climate agreement:

We urge the State Parties to the UNFCCC to recognise the adverse effects of climate change on the enjoyment of human rights, and to adopt urgent and ambitious mitigation and adaptation measures to prevent further harm. We call on the State Parties to include language in the 2015 climate agreement that provides that the Parties shall, in all climate change related actions, respect, protect, promote, and fulfil human rights for all. 26

Against this backdrop, the inclusion of an explicit reference to human rights in the Paris Agreement is significant, if only for symbolic reasons. Its inclusion also helps to address the critiques that human rights are not relevant when addressing climate change. While neither human rights law nor environmental law operates in a vacuum, the Paris Agreement acknowledges that climate change can undermine protected rights and that states have a legal duty to take their human rights obligations into account when acting on climate change. 27 This explicit recognition of the link between climate change and human rights in a binding climate treaty is significant because it is unprecedented. 28 However, many environmentalists have lamented the fact that human rights was moved from the operative part of the agreement to the Preamble during the final days of the negotiations. 29 While this is unfortunate, it of course does not mean that states’ human rights obligations are not relevant. On the contrary, whether or not the Paris Agreement had referred explicitly to human rights at all, states do have a legal duty to ensure that rights are not violated when taking action on climate change. Contrary to what some states believed and despite the opposition of some states to including a reference to human rights in the operative text, 30 the Paris Agreement made the link between climate change and human rights explicit. Quite apart from the fact this is the first global environmental treaty to include a reference to human rights, reinforcing the need to respect human rights when taking action on climate change – even in the watered down version relegated to the Preamble – is significant because it reminds states that human rights obligations are relevant and enforceable. This article argues that human rights are even more relevant, however, as an integral component of sustainable development.

An earlier draft of the Agreement contained references to human rights in both the Preamble and Article 2. Draft Article 2 with brackets indicating that the text was subject to further negotiation read as follows:

[This Agreement shall be implemented on the basis of equity and science, in [full] accordance with the principles of equity and common but differentiated responsibilities and respective capabilities[, in light of national circumstances][the principles and provisions of the Convention], while ensuring the integrity and resilience of natural ecosystems, [the integrity of Mother Earth, protection of health, a just transition of the workforce and creation of decent work and quality of jobs in accordance with nationally defined development priorities] and the respect, protection, promotion and fulfillment of human rights for all, including the right to health and sustainable development, [including the right of people under occupation] and to ensure gender equality and the full and equal participation of women, [and intergenerational equity].] 31

However, in the final version of the Agreement, human rights were relegated to the Preamble, as were the references to climate justice and to Mother Nature. The Preamble reads as follows:

Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity. 32

The Preamble also refers to climate justice, the importance of information and public participation and the role of environmental education. 33 With regard to adaptation, the Agreement reiterates the need to follow ‘a country-driven, gender responsive, participatory and fully transparent approach, taking into consideration vulnerable groups, communities and ecosystems’. 34 These are important provisions that link climate change and human rights.

Some consider climate change to be the biggest threat to human rights in the twenty-first century. 35 It has the potential to undermine all protected rights recognized under international human rights law – rights that the international community has taken decades to articulate and refine. By incorporating rights language in the Paris Agreement, the international community has recognized the intrinsic link between climate change and human rights. Even if this language is confined to the Preamble, its inclusion signifies the importance that the majority of the international community places on protecting the rights of people. As Knox noted, ‘the Paris Agreement will be remembered not only as the first major climate agreement of the century, but also as the first international environmental agreement to recognize that human rights are part of the framework it creates’. 36

Despite the broadly acknowledged link between climate change and human rights and the fact that the effects of climate change are already causing infringements of people's rights, 37 the specific obligations that international human rights law imposes on states with regard to climate change remains a less widely discussed issue. 38 Although international human rights law does not generally recognize a distinct right to a healthy environment, 39 two regional human rights treaties do so. 40 A distinct body of jurisprudence has emerged on environmental rights. Regional human rights institutions and national judiciaries in particular have articulated environmental rights by adopting an expansive interpretation of existing rights such as rights to food, water, health, an adequate standard of living and even the right to life, by recognizing that environmental degradation can interfere with the enjoyment of protected rights. 41 Procedural rights – the right to access to information, the right to a remedy and the right to participate in the decision-making process – have played an important role in complaints to regional human rights bodies as well as to treaty bodies. 42 Moreover, human rights provide additional safeguards for vulnerable groups such as women, children and indigenous peoples. 43

We can draw on this jurisprudence to extrapolate human rights obligations specifically relating to climate change, which is considered to be ‘a particularly grave type of environmental harm’. 44 Simply put, states have an obligation to protect their citizens against the adverse consequences of climate change irrespective of their portion of global greenhouse gas emissions. 45 The obligation of states to protect their citizens from the adverse effects of climate change should be applied in relation to both mitigation and adaptation. With regard to mitigation efforts that states have pledged to take pursuant to their commitments under the climate regime, 46 states should evaluate the impact that these measures have on protected rights. Two particular areas of contention merit mention here: projects approved under the Clean Development Mechanism (CDM) and the Reducing Emissions from Deforestation and Forest Degradation (REDD) programme where there have been allegations that these mitigation measures have caused human rights violations. 47 Similarly, in relation to measures undertaken by states to help communities adapt to the consequences of climate change, including severe weather events and slow onset events, states should apply a rights-based approach and ensure the participation of affected communities before such measures are adopted.

However, it is much harder to establish that states are responsible for the damage caused by climate change. Due to the vertical nature of human rights, victims of rights violations are restricted to bringing actions against their own states. 48 Where the damage in question is caused by another state, or, as in the case of climate change, where the alleged rights violation results from the cumulative impact of emissions by every state, human rights law offers limited options for victims to obtain relief, as was demonstrated by the Inuit petition to the Inter-American Court of Human Rights. 49 The fact that human rights law does not, as a general principle, operate extra-territoriality, has thus been a key barrier to bringing such claims. 50

Having examined the link between climate change and human rights and the significance of the inclusion of human rights in the Paris Agreement, I now turn to a discussion of another important principle included in the Paris Agreement: sustainable development.

3 SUSTAINABLE DEVELOPMENT AND SOCIAL JUSTICE: FROM TWO PILLARS TO THREE

In contrast to the controversy surrounding the inclusion of human rights in the Paris Agreement, the negotiators were quite liberal with the phrase ‘sustainable development’, which is mentioned 15 times in the Agreement and the Decision 51 attached to the Agreement. 52 This section briefly discusses the evolution of the concept of sustainable development, and what its inclusion in the Paris Agreement signifies. I explore how the concept of sustainable development has expanded from two pillars, encompassing economic development and environmental protection, to three pillars, with the addition of the third social pillar encompassing poverty eradication and other human rights. In particular, this section analyses the social pillar of sustainable development, which remains underdeveloped in literature. I argue that the social pillar of sustainable development has clear ramifications for the discussion of human rights and climate change, as it includes the protection of human rights and thus could provide another avenue by which to bring human rights into the Paris Agreement.

3.1 The evolution of sustainable development

Sustainable development provides an overarching framework for environmental governance 53 and a potential alternative to neoliberalism. It has come a long way since it was first popularized by the World Commission on Environment and Development (WCED) in 1987. 54 Defined as ‘development that meets the needs of the present without compromising the ability of future generations to meet their needs’, 55 sustainable development was formulated to reconcile two pillars when it was first articulated – economic development and environmental protection. 56 The International Court of Justice adopted this interpretation of sustainable development in the Case Concerning the Gabcikovo Nagymaros Project, holding that the ‘need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development’. 57

The binary nature of sustainable development changed in 1995 at the World Summit for Social Development, when social development was formally added as the third pillar of sustainable development. The Summit statement read:

We are deeply convinced that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development, which is the framework for our efforts to achieve a higher quality of life for all people. Equitable social development that recognizes empowering of the poor to utilize environmental resources sustainably is a necessary foundation for sustainable development. We also recognize that broad-based and sustained economic growth in the context of sustainable development is necessary to sustain social development and social justice. 58

While poverty alleviation was a major focus of the Brundtland Commission established by the UN General Assembly in 1983, it was the World Summit on Social Development of 1995 in Copenhagen that formally recognized social rights as a third pillar of sustainable development, acknowledging the need to combat poverty, address consumption patterns, protect health and promote sustainable human settlements as elements of the social and economic dimensions of sustainable development. 59 This statement clearly influenced the Johannesburg Declaration on Sustainable Development adopted in 2002, 60 in which world leaders affirmed ‘a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development – economic development, social development and environmental protection – at the local, national, regional and global levels’. 61

The New Delhi Declaration of Principles of International Law Relating to Sustainable Development, adopted in 2002 by the International Law Association (ILA), was a further major step forward in elaborating on the principles of sustainable development despite its status as a soft law instrument. 62 The Declaration notes that the realization of economic, social, cultural, civil and political rights and peoples’ rights ‘is central to the pursuance of sustainable development’. 63 It further provides that sustainable development involves a comprehensive and integrated approach to economic, social and political processes, thus endorsing and expanding on the principle of integration discussed above. The Declaration identifies seven principles forming part of sustainable development: (a) the duty of states to ensure sustainable use of natural resources; (b) the principle of equity and the eradication of poverty; (c) the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC); 64 (d) the precautionary approach to human health, natural resources and ecosystems; (e) the principle of public participation and access to information and justice; (f) good governance; and (g) the principle of integration and interrelationship, in particular in relation to human rights and social, economic and environmental objectives. 65 The precautionary principle and CBDR-RC along with good governance can be considered as tools necessary to achieve sustainable development. 66

By endorsing sustainable development as a common concern of humankind, 67 the ILA Declaration recognized sustainable development as an erga omnes obligation, given that unsustainable developmental practices by one country can have implications for the international community as a whole – a reality well illustrated by the problems of acid rain, climate change and ozone depletion. Moreover, the Declaration recognized that the principle of integration ‘reflects the interdependence of social, economic, financial, environmental and human rights aspects of principles and rules of international law relating to sustainable development as well as of the interdependence of the needs of current and future generations of humankind’. 68 This suggests that all aspects of sustainable development should be given equal weight, including the rights of future generations. Achieving this, however, is quite a challenge as the current economic model still rewards unsustainable exploitation and consumption of resources. 69

3.2 Scope and content of sustainable development

While the formulation of sustainable development in the Gabcikovo case is influential, it remains rather simplistic. Instead of viewing sustainable development as a balance between economic development and environmental protection, it is more accurate to consider it as an umbrella term 70 that encompasses both substantive and procedural components. 71 While scholars differ on the exact components, the substantive component comprises the following: the principle of integration, inter- and intra-generational equity, sustainable use of natural resources, and the right to development. 72 The procedural component comprises obligations vis-à-vis other states (cooperation, exchange of information, notification of and providing assistance during emergencies, and negotiation in good faith) and those vis-à-vis citizens (provision of information, public participation and access to remedies). 73 The latter obligations overlap with international human rights law and are now entrenched in international environmental law. 74 Of the substantive components, the principle of integration, sustainable use of natural resources, and the inter- and intra-generational equity principle are widely accepted principles but the status of the right to development has long been contentious and support for it is divided along North-South lines. 75 Birnie et al. point out that the Rio Declaration brought the substantive and procedural components together in a more systematic form than hitherto 76 and that the procedural components have never before secured such ‘widespread support’ from the international community. 77 According to Birnie et al.:

Although it is possible to identify the main elements of the concept of sustainable development, it is far from certain what their specific normative implications are, or indeed, how they relate to each other, or to human rights law and international economic law … [I]nternational law cannot be applied in a fragmented way, and sustainable development has no more claim to priority than any other element. 78

Other scholars have questioned whether there is a hierarchy amongst various norms in different areas of international law and their relationship with sustainable development. 79 Thus, does economic development trump environmental protection or social development? Achieving coherence is necessary but the challenge has been how to balance competing norms. Some scholars substitute the social pillar with international human rights law. 80 For others, international environmental law forms the central pillar of sustainable development, which also needs support from the other two pillars – international human rights law and international economic law. 81 Yet others consider international sustainable development law to be ‘at the intersection of three principal fields of international law, each of which contribute to sustainable development’ 82 – international economic law, international social law and international environmental law. 83 This, however, is a very wide interpretation of international sustainable development law.

3.3 Legal implications of sustainable development

Despite the criticisms aimed against sustainable development 84 – that it lacks clarity and legal standing – it is clear that most of its components impose obligations on states. 85 Moreover, its message is clear and simple – that unlimited economic growth is not possible, that we have to respect planetary boundaries, and that we are moving towards planetary tipping points. 86 As Birnie et al. point out, ‘the most potentially far-reaching aspect of sustainable development is that for the first time it makes a state's management of its own domestic environment a matter of international concern in a systematic way’. 87 Sustainable development, therefore, has potential implications for the future development of other areas of law such as international economic law and human rights law. 88 Thus, if sustainability is a norm that is recognized under international law, and certainly the evolution of sustainable development points to that conclusion, then how states develop is a question for international law and not just subject to the sovereign prerogative of states. 89 Moreover, states are required to provide for public participation, and for access to information with regard to development activities that will have implications for not just the current generation but for future ones as well. 90

Nonetheless, many challenges remain in formulating and actualizing these principles, 91 a reality with a direct bearing on whether sustainable development can be considered a legal principle. 92 These challenges have been identified as: (a) delineating the concept and bringing more clarity on its exact legal substance, including translating the relevant principles and rules into concrete tasks and obligations; (b) addressing the fragmentation of international law relating to sustainable development and creating a coherent basis for its development; (c) aligning international development law with a balanced and coherent international law on sustainable development; (d) expanding the circle of legal participants to include non-state actors as states can no longer stand alone; and most importantly, (e) implementing obligations at the national level and setting up monitoring instruments. 93

If sustainable development is intended to hold states accountable at the international and national level for achieving sustainability, clear criteria are required to measure such compliance, which would include adopting standards in relation to various activities and the environment. 94 Perhaps the Sustainable Development Goals (SDGs) adopted by the UN General Assembly in 2015 with 17 goals and 169 targets can fill this void. 95 The international community is working on indicators to supplement these goals and targets, and these indicators have the potential to assist in measuring states’ compliance with sustainability, though at present a normative lacuna concerning the explicit implications of sustainable development persists. The current neoliberal economic model, which prioritizes free markets over ecological sustainability, is ill suited to achieving sustainable development.

3.4 Fleshing out the social pillar

Sustainable development embraces the ‘triple bottom line approach to human wellbeing’ 96 and aims to combine economic development, environmental sustainability and social inclusion. While there is no consensus on how to balance these three objectives or what the trade-offs or synergies across the objectives are, ‘a shared focus on economic, environmental, and social goals is a hallmark of sustainable development and represents a broad consensus on which the world can build’. 97 But what does social development mean? This third pillar remains under-theorized 98 but appears to encompass the fulfilment of basic needs such as access to food, water, healthcare, shelter and education as a means of alleviating poverty. 99 The social pillar intersects with human rights given that many basic needs are expressed in rights language. 100

The Copenhagen Declaration elaborates on the concept of social development. It asserts that social development and social justice cannot be achieved in the absence of respect for all human rights and fundamental freedoms, 101 reflecting the intertwined relationship between social justice, human rights and social development. The Declaration further notes that poverty, unemployment and social exclusion represent profound social problems that affect every country. 102 The social pillar can be explained through the commitments that states included in the Copenhagen Declaration: creating an economic, political, social, cultural and legal environment that will enable people to achieve social development; eradicating poverty; promoting full employment and enabling men and women to attain sustainable livelihoods; promoting social integration by fostering societies that are stable, safe and just based on the promotion and protection of all human rights and non-discrimination; promoting full respect for human dignity and achieving equality and equity between men and women; and promoting universal and equitable access to quality education and the highest attainable standard of physical and mental health. Protecting and promoting human rights, especially economic, social and cultural rights, achieving gender equality, promoting participation, eradicating poverty and achieving universal education clearly come within the ambit of social development. Environmental justice – and by implication climate justice 103 – is recognized as encompassing distributive justice, corrective justice, remedial justice and social justice, 104 and also overlaps with the social pillar. I argue that the numerous references to sustainable development in the Paris Agreement should be interpreted within this broader context: human rights should inform the commitments that states made – whether voluntary or not – under the Paris Agreement.

While states have the ‘sovereign right to exploit their own resources pursuant to their own environmental and developmental policies’, 105 this right is neither absolute nor limitless. It ‘cannot lawfully be exercised without regard for the detrimental impact on human rights or the environment’. 106 If sustainable development resembles a three-legged stool, giving equal weight to each leg (environmental protection, economic development and social development) is necessary to ensure that the stool is stable. In other words, no single ‘leg’ should be prioritized over the other two – but in practice this does not happen. Often, economic development is given more weight at the expense of environmental protection and social development. The current ecological crisis in the form of climate change is precisely due to this order of priorities. Moreover, the depiction of sustainable development as a three-legged stool has been criticized because it places humanity outside the environment and fails to encourage us to recognize our place within the biosphere: 107

It perpetuates an even older myth that the environment is something apart from humanity, humanity's economy, and its social well-being. We do not discuss whether sustainable development itself is an oxymoronic concept. We do assume that sustainable development represents a real change in the way humans choose to live so that the viability and subsistence of all living species and their places are ensured. 108

This observation deserves more merit and in-depth analysis than space permits. It acknowledges that:

humanity can have neither an economy nor social well-being without the environment. Thus, the environment is not and cannot be a leg of the sustainable development stool. It is the floor upon which the stool, or any sustainable development model, must stand. It is the foundation of any economy and social well-being that humanity is fortunate enough to achieve. 109

Since humanity and the economy depend for their survival on nature, environmental protection must be the foundation of all development activities. 110 Critics question whether we will ever understand our place on the planet and choose to live within the limits set by the biosphere. 111 We cannot do this by relying on the three-legged stool model of sustainable development because ‘it continues to place us outside the limits set by nature. And while we may be able to think outside the limits, we cannot live outside the limits’. 112 We are trying to ‘fix’ the problem by relying on the same economic system that caused the problem without examining the underlying causes as to why we are in this predicament today. Tinkering at the margins will not solve the climate crisis. We need a drastic reorientation of our economy.

3.5 Adoption of Sustainable Development Goals (SDGs)

The adoption of SDGs and the 2030 Agenda has provided states with a good opportunity to reiterate their commitment to sustainable development. The SDGs are significant because their adoption was the first time that the international community included all aspects of sustainable development in one document. All but five 113 of the sustainable development goals relate to the social pillar, 114 although some of them overlap with the economic pillar. Despite the criticisms levelled against sustainable development and the challenges inherent in achieving sustainability, it would seem that sustainable development ‘came of age’ with the adoption of SDGs. A brief discussion of SDGs is useful here.

The international community endorsed 17 SDGs and 169 targets in 2015. The General Assembly (GA) resolution adopting the goals and the 2030 development agenda noted: ‘We recognize that eradicating poverty in all its forms and dimensions, including extreme poverty, is the greatest global challenge and an indispensable requirement for sustainable development’. 115 The SDGs, building upon the Millennium Development Goals (MDGs), seek to realize human rights for all and to achieve gender equality and the empowerment of all women and girls. The GA resolution notes that SDGs are integrated and indivisible and seek to balance the three dimensions of sustainable development: economic, social and environmental. Furthermore, the SDGs are based on five Ps: People – ending poverty and hunger and ensuring that human beings can fulfil their potential in dignity and equality and in a healthy environment; Planet – protecting the planet from degradation, an aim including action on climate change; Prosperity – ensuring that people may enjoy prosperous and fulfilling lives; Peace – achieving peaceful, just and inclusive societies free from violence – no sustainable development without peace, no peace without sustainable development; Partnership – developing global partnerships for sustainable development and solidarity. The global community seems to have rejected the three-legged stool depiction of sustainable development when the 2030 Agenda recognized that ‘social and economic development depends on the sustainable management of our planet's natural resources’. 116

Goal 13 on climate change contains targets relating to: strengthening resilience and adaptive capacity to climate-related hazards and disasters; integrating climate change measures into national policies, strategies and planning; improving education, awareness-raising and human and institutional capacity on mitigation, adaptation, impact reduction and early warning; implementing the commitment made by developed countries to a goal of mobilizing $100 billion annually by 2020 to address the needs of developing countries for mitigation action; and promoting mechanisms for raising capacity in least developed countries and small island developing states, including focusing on women, young people and local and marginalized communities. It is clear that these targets have a strong human rights component to the extent that they relate to protecting people, especially vulnerable groups – notably those in states that are particularly vulnerable to the adverse consequences of climate change.

However, the fact that the international community has moved from 8 MDGs to 17 SDGs raises questions about the feasibility of achieving the SDGs, since the track record with regard to achieving MDGs has left much to be desired. It must, however, be pointed out that SDGs are already having an impact on human rights approaches. In its concluding observations on the country report of Australia, the Committee on Economic, Social and Cultural Rights recommended that:

the state party take fully into account its obligations under the Covenant and ensure the full enjoyment of the rights enshrined there in the implementation of the 2030 sustainable development agenda at the national level, with international assistance and cooperation when needed. Principles of participation, accountability and non-discrimination should ensure that no one is left behind. 117

Of course, achieving the SDGs will require the mobilization of large sums of money, and the pledge by the international community to raise $100 billion per year by 2020 for climate action is significant, although a similar pledge was made at the Copenhagen summit. 118 However, in addition to mobilizing funding (which is a major obstacle), the international community needs to re-think the current economic model and renew international commitment to sustainable development, not simply pay lip service to such changes. Even with the best of intentions, achieving sustainable development is not easy and implementing SDGs at the national level requires serious reorienting of the way states do business.

4 PARIS AGREEMENT, SUSTAINABLE DEVELOPMENT AND ENVIRONMENTAL JUSTICE

Having explored the history, critiques and content of the principle of sustainable development, I now turn to consider what the numerous references to sustainable development in the Paris Agreement mean. Given that sustainable development includes a social dimension, the Paris Agreement, by including references to sustainable development must, by implication, be read as including human rights. The Copenhagen Declaration on Social Development, discussed above, makes it clear that respect for human rights is necessary to achieve sustainable development. Iqbal and Pierson argue that:

If the primary goals of environmentally sustainable development are freedom from poverty, secure livelihoods, good health and quality of life, then socially responsible development has to deal with such needs as food, basic housing, access to good water, health care (especially for children and older members of society), sanitation, education, energy in the form of fuel, transport, etc. 119

In other words, the social pillar of sustainable development seeks to ensure that people have a decent standard of living, are provided with relevant information, are given an opportunity to participate in decisions that affect their lives, are provided with opportunities to be consulted about those decisions, and have remedies when these rights are infringed. The social pillar is concerned with equity for current generations as well as with the well-being of future generations. Eradicating poverty is possibly the biggest challenge that the international community faces (together with climate change), and improving the living standards of people has been on the UN agenda since its inception. 120 However, eradicating poverty has become more challenging as the consequences of climate change threaten to undermine the little progress that has been achieved so far. 121 All these issues are intertwined and cannot be addressed in isolation from one another. As noted earlier, environmental protection provides the foundation on which both humanity and its economic system depend. 122

There is also a close relationship between sustainable development and environmental (and climate) justice. Environmental justice scholars articulate four distinct components of environmental justice: 123 (a) distributive justice – lowering and equalizing existing risks and equal distribution of benefits; (b) procedural justice – which requires the participation of all stakeholders in decisions that affect them; (c) corrective justice – fairness in punishing wrongdoers and remedying harm inflicted on individuals and communities; and (d) social justice – which is closely related to the social pillar of sustainable development and recognizes that environmental justice cannot be separated from struggles for other forms of justice. 124 The focus on justice is particularly important in the context of climate change because those who are least responsible for creating the problem are generally most vulnerable to its impacts and least able to deal with it. 125 The human rights framework does not quite capture this unevenness, essentially due to the vertical nature of human rights. 126 A diplomat from Bangladesh articulated this concern in his remarks at a consultation held by the Human Rights Council and the Office of the High Commissioner for Human Rights on climate change and human rights in 2009:

Bangladesh noted that in dealing with the global problem of climate change, too much emphasis was put on national responsibility. The least developed countries and small island States would be the worst affected by climate change, although they had contributed least to global greenhouse gas emissions. It was not only unfair, but also unjustified, to hold these countries responsible fully for protecting their populations. While human rights based efforts [in regard] to adaptation and mitigation were useful, such an approach should not only focus on the obligations of national authorities as duty bearers for protecting individuals’ human rights. 127

As argued in this article, achieving social development and social rights is an objective of sustainable development. Given the great disparity in the global community in terms of wealth, gender and living standards, achieving social justice, as distinct from social development and social rights, is also an urgent imperative. Human rights, which emphasizes non-discrimination and the protection of marginalized and subordinate groups, is a tool for achieving social rights, social justice and social development. The social pillar of sustainable development, which includes all three aspects – social development, social rights and social justice – has thus brought international human rights law within the sustainable development paradigm, and, by implication, within the Paris Agreement.

5 CONCLUSION: PROTECTING HUMAN RIGHTS THROUGH SUSTAINABLE DEVELOPMENT

In addition to the preambular reference, several other provisions in the Paris Agreement have implications for the enjoyment of human rights.

Article 2 calls on state parties to take action to hold the average global temperature increase to well below 2 °C above pre-industrial levels and to pursue efforts to limit the increase to 1.5 °C. Although these targets do not appear at first glance to relate to human rights, they have a direct bearing on them. There is consensus that a temperature increase above these levels will have huge implications for humanity, particularly for vulnerable communities and those living in vulnerable areas. 128 The provisions in the Agreement that urge states to submit increasingly ambitious Nationally Determined Contributions, conserve and enhance sinks and reservoirs of greenhouse gases, increase cooperation among states, and provide for assistance to developing countries, including technology transfer, all reflect the concern that the current commitments made by states are insufficient to protect these vulnerable communities. 129 These provisions could contribute towards protecting the rights of communities that are particularly at risk. Increasing the level of ambition and enhancing sinks will reduce greenhouse gases in the atmosphere and, in the long run, most adverse consequences of climate change unless they are irreversible. 130 Similarly, technology transfer and increased cooperation will help developing countries to protect their vulnerable communities through early warning systems, greater access to resources and better adaptation strategies.

Other more direct provisions in the Paris Agreement are: the loss and damage mechanism, 131 raising public awareness and engagement, 132 provision of information and education, 133 public participation, 134 and requiring adaptation measures to be country-driven, gender responsive, participatory and fully transparent, taking into account vulnerable groups, communities and ecosystems. 135 This last provision is particularly important. Ecosystems provide essential ‘services’ to human beings such as water purification and decomposition of waste matter: it is a simple empirical fact that human beings cannot survive without the essential ecosystem functions necessary for life and flourishing. 136 Biodiversity and healthy ecosystems are thus prerequisites for the realization of human rights, and recently a clear and important functional link between human rights, ‘ecosystem services’ and biodiversity was explicitly articulated by the UN Special Rapporteur on Human Rights and Environment, John Knox. 137

Finally, despite the rather half-hearted nature of the reference to climate justice in the Preamble, the explicit nature of the reference at least provides an additional hook upon which human rights advocates can pin their claims, 138 with important implications for the achievement of climate justice. As was discussed earlier in the present article, climate change raises significant justice issues, as the main perpetrators are not the main victims. 139

If human rights were grudgingly included in the Paris Agreement, this was not the case with sustainable development. The repeated references to poverty and sustainable development throughout the Agreement raise questions regarding their significance. Did states refer so extensively to sustainable development because they believed that the concept was too vague to offer meaningful avenues of redress to victims of human rights violations? Or did they do so because they identified synergies with the SDGs adopted three months prior to the Paris Agreement? In my view, it is more likely that states did not attach any legal significance to the term – if they thought its inclusion was likely to endorse human rights in relation to climate change, it is doubtful that states would have used the term quite so liberally. Given how controversial the inclusion of human rights in the negotiations in Paris was, the question arises whether the abundant references to sustainable development can be read in a way that enables human rights scholars, activists and others to bring human rights into the Agreement through the back door.

There is a clear link between climate justice, the social pillar of sustainable development, and human rights, as the Copenhagen Declaration of Social Development demonstrated. Goal 13 in the SDGs recognizes the relationship between climate change and development. 140 And the international community has affirmed its commitment to ‘achieving sustainable development in its three dimensions – economic, social and environmental – in a balanced and integrated manner’. 141 While achieving balance between three pillars of sustainability has proved to be difficult in practice, the principle of integration is an integral aspect of sustainable development, 142 and can be considered to be the glue that holds the different components together. The SDGs are grounded in the Universal Declaration of Human Rights, human rights treaties, principles in the Rio Declaration on Environment and Development, outcomes of major conferences such as, inter alia, the Rio Conference, the World Summit on Sustainable Development, the World Summit for Social Development, the Beijing Platform for Action, and the United Nations Conference on Sustainable Development. Respect for human rights and human dignity are thus essential features of sustainable development, and the Paris Agreement should be interpreted in this light. It can, therefore, be argued that, far from being confined to the Preamble, human rights underpin the entire Agreement as an integral component of sustainable development.

  • 1

    See J Knox, ‘The Paris Agreement as a Human Rights Treaty’, in D Roser (ed), Human Rights in the 21st Century (Oxford University Press, Oxford forthcoming).

  • 2

    Report of the Office of the High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights (2009) <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement> last accessed 10 June 2017.

  • 3

    See

    Atapattu S , Human Rights Approaches to Climate Change: Challenges and Opportunities , (Routledge, Abingdon 2015 ).

    Knox J , '‘Human Rights Principles and Climate Change’', in C Carlarne, K Gray and R Tarasofsky (eds), The Oxford Handbook of International Climate Change Law , (Oxford University Press, Oxford 2016 ) 213 .

    International Bar Association, Achieving Justice and Human Rights in an Era of Climate Disruption (2014) <http://www.ibanet.org/PresidentialTaskForceCCJHR2014.aspx> last accessed 12 June 2017; Mary Robinson Foundation – Climate Justice <http://www.mrfcj.org/> last accessed 15 June 2017.

  • 5

    See Atapattu (n 3), chapters 6 (climate refugees), 7 (indigenous peoples), 8 (women) and 9 (small island states). See Intergovernmental Panel on Climate Change, 5th Assessment Report, Summary for Policymakers (2014) <https://www.ipcc.ch/pdf/assessment-report/ar5/wg3/ipcc_wg3_ar5_summary-for-policymakers.pdf> last accessed 10 June 2017.

  • 6

    Report of the Conference of Parties at its Sixteenth Session, held in Cancún, 2010 (March 2011), FCCC/CP/2010/7/Add.1 <http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf#page=4> last accessed 12 June 2017 (emphasis added).

  • 7

    Ibid.

  • 8

    Adopted at the World Summit on Sustainable Development, 2002 <http://www.un-documents.net/jburgdec.htm> last accessed 12 June 2017.

  • 9

    See OHCHR Report (n 2) and the citations in note 12.

  • 10

    There is a remarkable wealth of scholarly writings on the topic. See

    S Humphreys (ed), Human Rights and Climate Change , (Cambridge University Press, Cambridge 2010 ).

    R Rayfuse and S Scott (eds), International Law in the Era of Climate Change , (Edward Elgar Publishing, Cheltenham, UK and Northampton, MA, USA 2012 ).

    O Quirico and M Boumghar (eds), Climate Change and Human Rights: An International and Comparative Law Perspective , (Routledge, Abingdon 2015 ).

    and the references in chapter 3 of Atapattu (n 3).

  • 11

    See OHCHR Report (n 2).

  • 12

    See ‘Understanding Human Rights and Climate Change’, Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the UNFCCC (2015) which notes that ‘Climate change impacts, directly and indirectly, an array of internationally guaranteed human rights’. See also Atapattu (n 3); J Knox, ‘Human Rights Principles and Climate Change’ (n 3); P Cullet, ‘Human Rights and Climate Change: Broadening the Right to Environment’ in Carlarne et al. (eds) (n 3), 495.

  • 13

    See Knox (n 1).

  • 14

    See Atapattu (n 3), ch 11.

  • 15

    Atapattu S , '‘Climate Change, Differentiated Responsibilities and State Responsibility: Devising Novel Legal Strategies for Damage Caused by Climate Change’', in B Richardson (ed), Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy , (Edward Elgar Publishing, Cheltenham, UK and Northampton, MA, USA 2009 ).

  • 16

    The petition submitted by the Inuit of US and Canada to the Inter-American Commission of Human Rights in 2005 showed the complexity of the issue. Summary of Petition available at: <http://www.inuitcircumpolar.com/uploads/3/0/5/4/30542564/finalpetitionsummary.pdf> last accessed 10 October 2017.

  • 17

    See J Knox, ‘Climate Change and Human Rights’ (2009) 50(1) Virginia Journal of International Law 163, 196.

  • 18

    Ibid.

  • 19

    Ibid.

  • 20

    Atapattu (n 3), chs 3 and 5.

  • 21

    Ibid, ch 5.

  • 22

    See J Knox, Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (Mapping Report), Human Rights Council, A/HRC/25/53 (December 30, 2013).

  • 23

    See D Shelton, ‘Developing Substantive Environmental Rights’ (2010) 1(1) Journal of Human Rights and the Environment 89.

  • 24

    See D Shelton, ‘Whiplash and Backlash: Reflections on a Human Rights Approach to Environmental Protection’ (2015) 13 Santa Clara Journal of International Law 12.

  • 25

    Opinion is divided on the issue over whether a right to a healthy environment is emerging. See Knox (n 17);

    Kravchenko S Bonine JE , Human Rights and the Environment: Cases, Law, and Policy , (Carolina Academic Press, North Carolina 2008 ).

    Anton DK Shelton D , Environmental Protection and Human Rights , (Cambridge University Press, New York 2011 ).

    In this regard, the efforts by the French President to get a UN General Assembly resolution on the topic is noteworthy <https://www.reuters.com/article/us-world-climatechange-macron-idUSKBN19F0LG> last accessed 30 August 2017.

  • 26

    Statement of the United Nations Special Procedures Mandate Holders on the occasion of the Human Rights Day Geneva, 10 December 2014 <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15393&LangID=E> last accessed 15 June 2017.

  • 27

    See 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, February 1, 2016 (A/HRC/31/52) <http://www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/SRenvironmentIndex.aspx> last accessed 12 June 2017.

  • 28

    Ibid.

  • 29

    ‘Climate Talks: Anger Over Removal of Human Rights Reference from Final Draft’ The Guardian, December 11, 2015 <https://www.theguardian.com/global-development/2015/dec/11/paris-climate-talks-anger-removal-reference-human-rights-from-final-draft> last accessed 12 June 2017.

  • 30

    Ibid. United States, Norway and Britain opposed the inclusion of a provision on human rights in the operative part of the Paris Agreement. Another report said that the US, Saudi Arabia and Norway opposed it, see Human Rights Watch, Human Rights in Paris Pact Under Fire (December 7, 2015) <https://www.hrw.org/news/2015/12/07/human-rights-climate-pact-under-fire> last accessed 14 September 2017.

  • 31

    Draft Agreement and Draft Decision on Workstreams 1 and 2 of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (version of 6 November 2015), emphasis added <https://unfccc.int/resource/docs/2015/adp2/eng/11infnot.pdf> last accessed 15 June 2017.

  • 32

    Preamble, Paris Agreement (2015), available at: <http://unfccc.int/files/home/application/pdf/paris_agreement.pdf> last accessed 15 June 2017.

  • 33

    Ibid.

  • 34

    Ibid, Article 7.

  • 35

    See Mary Robinson Foundation – Environmental Justice <https://www.ted.com/talks/mary_robinson_why_climate_change_is_a_threat_to_human_rights> last accessed 15 June 2017.

  • 36

    Knox (n 1).

  • 37

    Atapattu (n 3).

  • 38

    See Knox (n 1).

  • 39

    See Knox (n 1); Atapattu (n 3), 46.

  • 40

    African Charter on Human and People's Rights and the San Salvador Protocol to the American Convention on Human Rights. See

    Hunter D Salzman J Zaelke D , International Environmental Law and Policy , (Foundation Press, St Paul, MN 2015 ).

    ch 18 (hereinafter Hunter et al.).

  • 41

    Knox, however, believes that human rights bodies have been more deferential with respect to substantive obligations. States have the discretion to strike a balance between environmental protection and economic development, although this discretion is not unlimited and has to be exercised in a reasonable and non-discriminatory manner.

  • 42

    See Principle 10 of the Rio Declaration on Environment and Development (1992) <http://www.unesco.org/education/pdf/RIO_E.PDF> last accessed 10 June 2017 (Rio Declaration), and Economic Commission for Europe, Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) (1998) <http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf> last accessed 12 September 2017.

  • 43

    Knox, Mapping Report (n 22).

  • 44

    Knox (n 1).

  • 46

    Under the Paris Agreement, these are voluntary commitments. Under the Kyoto Protocol, these were binding obligations.

  • 47

    See S Atapattu (n 3), pp. 134–40.

  • 48

    J Knox (n 17).

  • 49

    The Petition to the Inter American Commission on Human Rights Seeking Relief from Violation Resulting from Global Warming Caused by Acts and Omissions of the United States, Summary of the Petition (2005). Full petition <http://earthjustice.org/sites/default/files/library/legal_docs/petition-to-the-inter-american-commission-on-human-rights-on-behalf-of-the-inuit-circumpolar-conference.pdf> last accessed 15 June 2017.

  • 50

    Knox, Mapping Report (n 22); Atapattu (n 3), 89.

  • 51

    Decision 1/CP.21, Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13 December 2015, FCCC/CP/2015/10/Add.1, 29 January 2016, available at: <https://unfccc.int/resource/docs/2015/cop21/eng/10a01.pdf> last accessed 10 October 2017.

  • 52

    See P Galvao Ferreira, ‘Did the Paris Agreement Fail to Incorporate Human Rights in Operative Provisions? Not If You Consider the 2016 SDGs’, CIGI Papers No 113 – October 2016 <https://www.cigionline.org/sites/default/files/documents/Paper%20no.113.pdf> last accessed 15 June 2017.

  • 53

    See Hunter et al. (n 40), 114.

  • 54

    WCED , Our Common Future, Report of the World Commission on Environment and Development , (Oxford University Press, Oxford 1987 ).

    The WCED was established by the UN General Assembly in 1983 in an effort to reconcile the increasing polarization between developing countries and developed countries with regard to environmental protection. The Commission was asked, inter alia, to find ways to reconcile economic development with environmental protection.

  • 55

    Ibid, 43.

  • 56

    Ibid.

  • 57

    Case Concerning the Gabcikovo Nagymaros Project (Hungary v Slovakia), ICJ Reports (1997) (‘the Gabcikovo case’).

  • 58

    Copenhagen Declaration on Social Development <http://www.unesco.org/education/pdf/COPENHAG.PDF> last accessed 15 June 2017.

  • 59

    Earth Summit Agenda 21, United Nations Programme of Action from Rio (1992) <https://sustainabledevelopment.un.org/content/documents/Agenda21.pdf> last accessed 12 June 2017.

  • 60

    Johannesburg Declaration on Sustainable Development (2002) <http://www.un-documents.net/jburgdec.htm> last accessed 12 June 2017.

  • 61

    Ibid, para 5.

  • 62

    Resolution 3/2002, New Delhi Declaration of Principles of International Law Relating to Sustainable Development, adopted by the International Law Association in 2002 (hereinafter ILA Declaration) <http://cisdl.org/tribunals/pdf/NewDelhiDeclaration.pdf> last accessed 10 June 2017.

  • 63

    Preamble, ILA Declaration, ibid.

  • 64

    The Paris Agreement added the phrase ‘in the light of different national circumstances’, which may be a significant concession for developing countries. See Preamble, Paris Agreement (n 32).

  • 65

    Ibid.

  • 66

    Atapattu S , Emerging Principles of International Environmental Law , (Transnational Publishers, New York 2006 ).

    ch 2.

  • 67

    See F Soltau, ‘Common Concern of Humankind’ in Carlane, Gray and Tarasofsky (n 3), 202.

  • 68

    ILA Declaration (n 62), Principle 7.1.

  • 69

    See

    Klein N , This Changes Everything: Capitalism vs. The Climate , (Simon & Schuster, New York 2014 ) 18 .

  • 70

    See

    Birnie P Boyle A Redgwell C , International Law and the Environment , (OUP, Oxford 2012 ).

    (hereinafter Birnie et al.).

  • 71

    Atapattu (n 66), ch 2.

  • 72

    Ibid.

  • 73

    Aarhus Convention (n 42).

  • 74

    Ibid. These are referred to as ‘access rights’ or three pillars of environmental democracy; see Hunter et al. (n 40), 1357.

  • 75

    See S Atapattu and M Toering Sanders, Foreword, ‘Development, Environment, and Globalization: Perspectives from North and South. The Dichotomy Between Developed and Developing Countries’ (2006) 2(2) McGill International Journal of Sustainable Development Law and Policy 83.

  • 76

    See Birnie et al. (n 70), 116.

  • 77

    Ibid.

  • 78

    Ibid, 125.

  • 79

    See

    Lowe V , '‘Sustainable Development and Unsustainable Arguments’', in A Boyle and D Freestone (eds), International Law and Sustainable Development , (Oxford University Press, Oxford 1999 ).

    ch 2.

  • 80

    D McGoldrick, ‘Sustainable Development and Human Rights: An Integrated Conception’ (1996) 45 International and Comparative Law Quarterly 796, 797.

  • 81

    N Dawe and K Ryan, ‘The Faulty Three-Legged-Stool Model of Sustainable Development’ (2003) 17 Conservation Biology 1458, who critique the theory of the three-legged stool of sustainable development.

  • 82

    Segger M Cordonier Khalfan A , Sustainable Development Law: Principles, Practices, & Prospects , (Oxford University Press, Oxford 2004 ) 51 .

  • 83

    Ibid, ch 4.

  • 84

    Sustainable development has attracted attention both positive and negative. See generally,

    M Redclift and D Springett (eds), Routledge International Handbook of Sustainable Development , (Routledge, Abingdon 2015 ).

    A Boyle and D Freestone (eds), International Law and Sustainable Development , (Oxford University Press, Oxford 1999 ).

    FAO , Law and Sustainable Development Since Rio , (FAO, 2002 ).

    R Revesz, P Sands and R Stewart (eds), Environmental Law, the Economy and Sustainable Development , (Cambridge University Press, Cambridge 2000 ).

    Voigt C , Sustainable Development as a Principle of International Law: Resolving Conflicts between Climate Measures and WTO Law , (Martinus Nijhoff, Leiden 2008 ).

    European Commission, The Law of Sustainable Development: General Principles (2000);

    Porras I , '‘The Rio Declaration: A New Basis for International Cooperation’', in P Sands (ed), Greening International Law , (New Press, New York 1994 ) 20 .

    S Atapattu (n 66), ch 2.

  • 85

    See Birnie et al. (n 70), 124.

  • 86

    Hunter et al. (n 40), 26–7.

  • 87

    Ibid.

  • 88

    Ibid, 125.

  • 89

    See

    Voigt C. , Sustainable Development as a Principle of International Law: Resolving Conflicts between Climate Measures and WTO Law , (Martinus Nijhoff, Leiden 2008 ) 16 .

    where she notes: ‘one of the most controversial issues related to the development path for developing countries’.

  • 90

    See

    Schrijver N , The Evolution of Sustainable Development in International Law: Inception, Meaning and Status , (Martinus Nijhoff, Leiden 2008 ) 214 .

  • 91

    Ibid, 221. Schrijver believes that international legal instruments are still inadequate for realizing the MDGs (and by implication, SDGs) and the Johannesburg Plan of Implementation.

  • 92

    See

    Lowe V , '‘Sustainable Development and Unsustainable Arguments’', in A Boyle and D Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges , (Oxford University Press, Oxford 1999 ) 19 .

    and

    Sands P , Principles of International Environmental Law , (Cambridge University Press, Cambridge 2003 ) 252 .

    See Schrijver (n 90).

  • 93

    Schrijver (n 90), 221–30.

  • 94

    Birnie et al. (n 70), 125.

  • 95

    Transforming Our World: The 2030 Agenda for Sustainable Development (2015), UN General Assembly, A/RES/70/1 <http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E> last accessed 15 June 2017.

  • 96

    J Sachs, Viewpoint: ‘From Millennium Development Goals to Sustainable Development Goals’ (2012) 379 The Lancet 2206.

  • 97

    Ibid.

  • 98

    C Gonzalez, ‘Environmental Justice, Human Rights and the Global South’ (2015) 13 Santa Clara Journal of International Law 151.

  • 99

    See Copenhagen Declaration on Social Development (n 58).

  • 100

    See J Knox, ‘Human Rights, Environmental Protection and Sustainable Development Goals’ (2015) 24 Washington International Law Journal 517 at 518, who argues that while the SDGs set out many worthwhile goals, ‘the targets often do not contain language that is concrete and focused enough to effectively promote human rights or environmental protection’. Knox was discussing a draft text but his comments apply to the version adopted by the UN General Assembly later that year.

  • 101

    See Copenhagen Declaration on Social Development (n 58).

  • 102

    Ibid (n 58), para 2, n 69.

  • 103

    There is considerable literature on climate justice. See International Bar Association, Achieving Justice and Human Rights in an Era of Climate Disruption, Climate Change Justice and Human Rights Task Force Report (2014) 35 <http://www.ibanet.org/Article/Detail.aspx?ArticleUid=96b93592-3761-4418-8a52-54a81b02c5f1> last accessed 15 June 2017;

    Posner E Weisbach D , Climate Change Justice , (Princeton University Press, Princeton 2010 ).

    D Farber, ‘Climate Change Justice by Eric A. Posner and David Weisbach: Princeton University Press 2010’ (2012) 110 Michigan Law Review 985; E Cameron, T Shine and W Bevins (2013) Climate Justice: Equity and Justice Informing a New Climate Agreement, Climate Justice Working Paper, World Resources Institute & Mary Robinson Foundation <http://www.wri.org/sites/default/files/climate_justice_equity_and_justice_informing_a_new_climate_agreement.pdf> last accessed 15 June 2017.

  • 104

    R Kuehn, ‘A Taxonomy of Environmental Justice’ (2000) 30 Environmental Law Reporter 10681.

  • 105

    Principle 2, Rio Declaration (n 42).

  • 106

    See Birnie et al. (n 70), 115.

  • 107

    See Dawe and Ryan (n 81).

  • 108

    Ibid.

  • 109

    Ibid, 1459.

  • 110

    See Hunter et al. (n 40).

  • 111

    See Dawe and Ryan (n 81).

  • 112

    Ibid.

  • 113

    These are Goal 9 (building resilient infrastructure, promoting sustainable industrialization and fostering innovation); Goal 13 (taking urgent action on climate change); Goal 14 (the conservation and sustainable use of the oceans), Goal 15 (protecting terrestrial ecosystems and biodiversity); and Goal 17 (strengthening global partnerships for sustainable development).

  • 114

    These include ending poverty and hunger; promoting healthy lives, quality education, gender equality, clean water and sanitation; ensuring access to modern energy and decent work; reducing inequality; and promoting sustainable cities, access to justice and peaceful inclusive societies.

  • 115

    2030 Agenda (n 95).

  • 116

    Ibid.

  • 117

    See Economic and Social Council, Committee on Economic, Social and Cultural Rights, Concluding Observations on the Fifth Periodic Report of Australia, E/C.12/AUS/CO/5, July 11, 2007, para 61 <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E/C.12/AUS/CO/5&Lang=En> last accessed 14 September 2017.

  • 118

    2030 Agenda, Goal 13a. Copenhagen Accord, Article 8 (2009) <http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf> last accessed 24 October 2017.

  • 119

    See I Iqbal and C Pierson, ‘The 2016 Sustainable Development Goals: A North-South Struggle: Political and Economic Obstacles to Sustainable Development’ (2016) 16 Sustainable Development Law & Policy 16.

  • 120

    See Art 55 of the UN Charter and UN Department of Economic and Social Affairs, UN Development Agenda: Development for All (2007) <http://www.un.org/esa/devagenda/UNDA1.pdf> last accessed 13 September 2017.

  • 121

    UNDP, Human Development Report, 2007/08, Executive Summary <http://hdr.undp.org/sites/default/files/hdr_20072008_summary_english.pdf> last accessed 10 June 2017. The 2030 Agenda also recognizes the importance of addressing poverty (n 95). While Millennium Development Goals were successful to some extent, the international community failed to achieve all of them. See Millennium Development Goals Report Summary, 2015, available at: <http://www.un.org/millenniumgoals/2015_MDG_Report/pdf/MDG%202015%20Summary%20web_english.pdf> last accessed 12 September 2017.

  • 122

    UNDP report, ibid.

  • 123

    See Kuehn (n 104); and

    Gonzalez C , '‘Environmental Justice and International Environmental law’', in S Alam (ed), Routledge Handbook of International Environmental Law , (Routledge, New York 2013 ) 79 .

    For a different definition of environmental justice, see H Osofsky, ‘Learning from Environmental Justice: A New Model for International Environmental Rights’ (2005) 24 Stanford Environmental Law Journal 71.

  • 124

    See

    Atapattu S , '‘Justice for Small Island Nations: Intersections of Equity, Human Rights, and Environmental Justice’', in R Abate (ed), Climate Justice: Case Studies in Global and Regional Governance Challenges , (Environmental Law Institute, Washington DC 2016 ) 299 .

    310.

  • 125

    See OHCHR Report (n 2), 5.

  • 126

    While there is some discussion of the horizontal application of human rights and the South African Constitution as the leading example of this evolution, this does not solve the issue with climate change where the main culprits are not the main victims. A diagonal application of human rights is necessary in this situation. See Knox (n 17), 196.

  • 127

    Summary of the Human Rights Council's interactive panel on human rights and climate change (June 2009) <http://www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/Panel.aspx> last accessed 10 June 2017.

  • 128

    IPCC (n 5).

  • 129

    See B Ugochukwu, ‘Implementing the Paris Agreement: The Relevance of Human Rights to Climate Action’, Conference report, Feb 29, 2016, CIGI <https://www.cigionline.org/publications/implementing-paris-agreement-relevance-human-rights-climate-action> last accessed 15 June 2017, 4.

  • 130

    The inundation of small island states would be an irreversible damage.

  • 131

    Art 8, Paris Agreement.

  • 132

    Preamble, Paris Agreement.

  • 133

    Ibid.

  • 134

    Ibid.

  • 135

    Art 7, Paris Agreement.

  • 136

    See Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, 19 January 2017 A/HRC/34/49.

  • 137

    Ibid. He notes, while acknowledging that biodiversity has intrinsic value: ‘The full enjoyment of human rights, including the rights to life, health, food and water, depends on the services provided by ecosystems. The provision of ecosystem services depends on the health and sustainability of ecosystems, which in turn depend on biodiversity. The full enjoyment of human rights thus depends on biodiversity, and the degradation and loss of biodiversity undermine the ability of human beings to enjoy their human rights’ (para 5).

  • 138

    S Atapattu, ‘Climate Change, Human Rights and COP 21: One Step Forward and Two Steps Back or Vice Versa?’ (2016) XVII Georgetown Journal of International Affairs 47.

  • 139

    See Atapattu (n 124), 299.

  • 140

    Sustainable Development Goals (n 95).

  • 141

    Ibid.

  • 142

    See Voigt (n 84), 36, who argues that ‘[d]espite the variability of approaches to categorizing elements of sustainable development, the principle of integration remains the most fundamental and operationally significant’. The principle of integration is also reflected in Principle 4 of the Rio Declaration.

Affiliations

Atapattu, Sumudu - Director, Research Centers, University of Wisconsin Law School; Executive Director, UW-Madison Human Rights Program and Lead Counsel for Human Rights, Center for International Sustainable Development Law, Montreal