Right to a proper climate in the system of the right to an environment and the equation of fundamental human rights

Author:Mircea Dutu
Position:PhD, Professor, Chairman of Bucharest Ecological University, Director of the 'Acad. Andrei Radulescu' Legal Research Institute of the Romanian Academy
Pages:4-23
SUMMARY

The affirmation of the process of climate change and their irreversible consequences generates dangers and major negative outcomes to the exercise of the fundamental human rights. Human civilization is tightly linked to climate stability, conclusion confirmed by the reality that the last 10.000-12.000, relatively balanced from a climate point of view, have favored its development. At the same time, the perspective of global warming leading to a change in the climate system and the passage to a new stage creates the menace of the extinction of man, as species among species. Such a fact generates the need to self-limitation of human action (mainly the emission of greenhouse gas) and human self-defense, by the recognition of a new fundamental human right: the right to a proper climate, having two components: the right to climate stability, and the right to reasonable adaptation to climate changes. It belongs to the system of the right to environment (next to the right to water, to clean air etc.) and, being based on the principle of precaution; it affirms itself autonomously and innovatively in the equation of the institution of human rights. The existing legal premises (mainly the Framework Convention on Climate Change of 1992 and the documents adopted in its enforcement) need to be developed, including the recognition and adaptation of such a right. The long awaited Paris Agreement, scheduled for December 2015, can play a major role in this regard. Keywords: public law, the right to a proper climate, UNCCC, Kyoto, COP-21, climate stability, adaptation to climate change, the right to environment

 
CONTENT
4 MIRCEA DUŢU
ARTICLES (STUDIES, DISCUSSIONS, COMMENTS)
RIGHT TO A PROPER CLIMATE IN THE SYSTEM
OF THE RIGHT TO AN ENVIRONMENT AND THE EQUATION
OF FUNDAMENTAL HUMAN RIGHTS
Mircea DU^U
PhD, Professor,
Chairman of Bucharest Ecological University,
Director of the “Acad. Andrei R?dulescu”
Legal Research Institute of the Romanian Academy
Abstract
The affirmation of the process of climate change and their irreversible consequences generates
dangers and major negative outcomes to the exercise of the fundamental human rights. Human
civilization is tightly linked to climate stability, conclusion confirmed by the rea lity that the last
10.000-12.000, relatively balanced from a climate point of view, have favored its development. At the
same time, the perspective of global warming leading to a change in the climate system and the
passage to a new stage creates the menace of the extinction of man, as species among species. Such a
fact generates the need to self-limitation of human action (mainly the emission of greenhouse gas)
and human self-defense, by the recognition of a new fundamental human right: the right to a proper
climate, having two components: the right to climate stability, and the right to reasonable adaptation
to climate changes. It belongs to the system of the right to environment (next to the right to water, to
clean air etc.) and, being based on the principle of precaution; it affirms itself autonomously and
innovatively in the equation of the institution of human rights. The existing legal premises (mainly
the Framework Convention on Climate Change of 1992 and the documents adopted in its
enforcement) need to be developed, including the recognition and adaptation of such a right. The long
awaited Paris Agreement, scheduled for December 2015, can play a major role in this regard.
Keywords: public law, the right to a proper climate, UNCCC, Kyoto, COP-21, climate
stability, adaptation to climate change, the right to environment.
1. Preliminary remarks
Global warming and its consequences, the climate changes, are present today
as a major issue for the species’ survival and perpetuation, and development of
human civilization. As integrant part of nature and as reasoning being gradually
E-mail: mircea.dutu@gmail.com.
Law Review vol. IV, issue 2, July-December 2014, p. 4-23
Right to a proper climate in the system of the right to an environment … 5
detached from its animality, as a result of a strong evolutional process during the
last hundred thousands of years and under relatively constant climate conditions,
human being has always had an interdependency relation with the eco-climatic
environment, more noticeable after the great last glacial period.
After the “invention” of agriculture – which became practicable due to a
certain climatic stability – and the related cultural evolution, starting with the
1800s, the industrialization stage followed, based on extraction and use of fossil
fuels, which inevitably entailed also a process of alteration of the atmosphere, due
to a more intense and diverse pollution.1
The ecological “footprint”, including the “carbon footprint” of the human
species, intensified and extended gradually to the entire planet and its layers – soil,
water, air – and became more and more unbearable, up to the point of seeing the
fundamental ecological balances threatened with destruction.
The climate fluctuations during the previous periods, no matter how intense,
remain modest compared to the eco-climatic mutation announced by the climatic
abnormality in progress.2 It is deemed thus that given the interactions between the
regions of the globe – affected by meteorological and climatic disasters – and on
the impulse of the globalization phenomenon, in full development, all the
catastrophes could reunite and mutually potentiate in order to express themselves
as a “global catastrophe”.
From the climate science point of view, and along with the consequences
related to the social and political approach and solution, the issues regarding the
global warming and anthropic climate changes have a double aspect: on one hand,
the aspect regarding the concentrations of the greenhouse gases (GHG), and on the
other hand, the aspect regarding the amount of emissions during a certain period.
The eco-climate changes in progress, likely to occur entirely within one
century, announce and indicate the serious reality: that we are about to lose the
balance to which the whole biosphere has progressively adapted to in more than
ten thousand years, and this questions the capacity to face this again, in a more
complex and radical context. As a matter of fact, the planet as such has always
adapted to any changes, but in Terra’s history the failure to adapt sometimes
rhymed with massive, generalized extinction of the existing living species. An
increasing number of specialists, even almost all of them, think that it could be
possible through global warming and its effects that we, human beings, become
contemporary with, but also responsible for, the sixth largest disappearance of
species from the planet’s natural history, the one that could question also the
human species, which became a geological force, in Anthropocene.
Thus, the human being survival and the persistence of his civilization are at
stake, given the constant deterioration of the planet’s ecological condition, which is
1 P. Acot, Histoire du climat, Ed. Perrin, Paris, 2009, p. 140.
2 R. Kandel, M. Kandel, La catastrophe climatique, Ed. Hachette, Paris, 2009, p. 8.
6 MIRCEA DUŢU
the indispensable milieu of their existence. Therefore it is not only the question of
saving the planet as such, as it is a quasi-unalterable fact, but to save human being
and humankind, which raises the question of becoming aware and choosing
between what is right to keep and what has to be abandoned in our way of living
until now on mother Earth. The risk of an eco-climatic catastrophe being
increasingly present, due to anthropic reasons, can no longer be disputed in a
convincing manner and what is to be done responsibly is to mitigate the effects
and to adapt ourselves to the new conditions of planetary existence.
The effects of climate changes, still modest compared to what could be in store
for us, are visible and perceptible not only in the curves of the planetary
environments, but also in the actual plan of the local environment, not only at the
level of the Arctic Ocean, but also in the continental, sub-regional and national
context. Moreover, losses of actual civilizations are already foreseen, through the
extreme actions that certain countries, such as Kiribati and Maldives, islands in the
Pacific Ocean, were forced to take in relation to the climate changes, in view of
leaving in the near future their territory and migrating towards other territories.
For the beginning it could be a “climate disorder”, with consequences still
limited to an increase of the frequency and intensity of extreme meteorological
phenomena whose effects must be diminished to the largest extent possible and it
is necessary to apply rapid adaptation measures. But beside such perceptible
alterations, which are already a true tendency, on an average and long term it
becomes increasingly probable and possible an occurrence of some major changes,
which may represent a mutation of the climate system at a global scale, with
significant consequences on the planet’s eco-system.3
The occurrence of such evolutions, with extreme consequences for the human
condition and its unique civilization, up to its annihilation, requires proper legal
answers, among which a significant place is occupied by the recognition and
guaranty of a new fundamental human right, the right to proper climate, attached
to the major trunk of the right to a healthy and ecologically balanced environment.
Thus, the theoretical effort supposes the emergence and affirmation of new
technical, legal and economical concepts, notions and mechanisms: reassessment
and adaptation of the existing ones to the requirements and evolutions in this field.
In such context, the philosopher Michel Serres, member of French Academy,
affirmed: “law can save nature... Law may be a bad solution to save the
environment, but there’s no other”.4 Its role to this effect adds to and prevails over
the role of the stable sciences – physics, chemistry, biochemistry, climatology and
so on –, consisting in measuring, noticing, assessing (for example, the GHG
concentrations), so its preoccupations are to formulate and answer the question:
how (is it polluted)?, ignoring the question at least as important: “for what?” which
3 R. Kandel, M. Kandel, op. cit., p. 10; p. 97; p. 225-226.
4 Le droit peut sauver la nature, entretien avec Michel Serres, in magazine “Pouvoirs”, no. 127 –
Droit et environnement, 2008, p. 8-9.
Right to a proper climate in the system of the right to an environment … 7
inevitably refers to law, the only one supposing a rule and a penalty that, in this
case, is not applied by man, but by the world.5 Among the instruments through
which law can and understands to play its part as “rescuer” of the environment, of
the stability and balance of the climate system, it is certainly the recognition and
guarantee of an independent fundamental human right to a proper climate,
essential for human personality growth and sustainable development of society.
2. Climate and human condition
Among the environmental elements and factors, the climate and its actions
influence the most the culture and civilization of human societies. The history of
human communities is to a great extent the history of the variability in time and
space of eco-climatic conditions. The adaptation to environmental conditions
represented the decisive factor of the hominization, crystallization and
development of human civilization. It was not accidentally that the latter one has
rapidly asserted in its full splendor during the last 10,000 to 12,000 years, which
was a period with a relative stability of the climate (some significant diversions
took place in the sense of its cooling) and allowed thus the leap from the Neolithic
to Anthropocene that is now at its acceleration stage. As an anthropologic impulse,
the climate and its irregularities influenced the personality, physiology and
psychology of human being, by the assertion of obvious particularities as regards
the species, marked social practices, spiritual life and forms of artistic expression of
the communities, in one word their cultural identity. Indeed, par excellence, the
eco-climatic environment is a fundamental support and background for life –
individual and collective, social –, for perpetuity and continuous adaptation of
human species, which gives this one a major anthropological function. Besides its
material value, of providing the related services, the influences of life’s natural
background have a powerful cultural role in the human condition, and contribute
to shaping human personality as individual and his evolution as species among
species.
Thus, the eco-climatic environment has a double function on human being – at
individual and society level – on one hand a material, economic function, and on
the other hand and in addition to this one, and maybe more important, a cultural
and civilizational function. The economic size resides mainly in the values of using
nature, while the cultural aspects allow the perpetuation of civilization and the
development of human creation. Such cultural size of the natural environment’s
influence requires that man, as individual, and humankind, as planet’s dominant
species, have the responsibility and the duty to keep and improve the eco-climatic
existence conditions, secure them also for the future generations, so that
humankind continues its natural affirmation and the development of the
civilization whose holder this one is.
5 Le droit peut sauver la nature…, op. cit., p. 11-12.
8 MIRCEA DUŢU
The (relatively) constant and balanced climate, meaning proper, contributes
significantly also to the quality of the general background of the society’s life.
Human rights and fundamental freedoms are recognized and guaranteed in order
to allow the individual to live in conditions worthy of his status as human being
and to enjoy an increasingly complete freedom. To live in a relatively constant
climate, having possibility to adapt oneself to the rhythms and forms of its
changes, without affecting the substance of the living conditions are aspects of the
right to live in honorable conditions, as such, as for example the right to health, to
private life or the right to express the cultural identity.
But human rights do not tend only to meet the conditions of the natural bases
of the human being, such as the right to life, water or food, but affirms also its
entitlement to sufficient living conditions for the purpose of ensuring the
development of the individual’s personality within a collective. Compared to the
first category of rights, the latter one seems to be a necessary consequence and a
complement in their becoming.
Both categories of fundamental human rights, one related to the survival itself
of the human being, as individual and/or as species among species, the other one
related to the growth of his personality, are increasingly influenced while they are
accomplished, by the phenomena of climate disorder under the impact of global
warming. As such, to provide a constant, balanced climate with evolutions that
allow natural human adaptation entails the provision of the conditions for the
human being’s survival, his capacities to face new threats and, at the same time,
favors keeping and improving the milieu for living and development of human
personality.
If the climate’s stability and variability within natural, acceptable limits
represent an indispensable condition for accomplishing the fundamental human
rights, the legal answer suitable for the related issues necessarily includes also the
establishment of a new fundamental human right related to the need to protect
human being from the effects of a global phenomenon, of planetary dimensions,
able to influence significantly and implacably the human condition in the near
future and even the actual form of life on Earth. Indeed, the extent and the possible
developments within less than one century of the anthropic climate changes
phenomenon and the major consequences for the natural environment and the
human civilization as well as the endangerment of the existence of human being as
species among species require a proper legal reaction also as regards the human
rights.6
6 According to the most recent IPCC report, of 2 November 2014, “The risk for the global
warming to have severe, generalized and irreversible effects on the planet by the end of 21st century is
high and even very high”; the increase of the average temperatures by 2.5°C compared to the
preindustrial era would cause the loss of 2% of the global income. According to the World Health
Organization’s estimates, the climate changes additionally lead to 250,000 deaths each year.
Right to a proper climate in the system of the right to an environment … 9
The general international (traditional) obligation of each State to observe the
human rights includes therefore also the initiation and performance of a complex
process of developing legal regulations for the purpose of classifying the global
warming within certain limits (not exceeding by more than 2° C the average global
temperature existing at the moment when the industrial revolution began), the
occurrence of climate changes in a rhythm that allow the fullest natural adaptation
of human societies, the limitation to the largest extent possible of the global
warming effects and their efficient management, in the context of a sustainable
development.
From such perspective, if natural variability of the climate cannot be subject to
a legal regulation, by virtue of the ethical self-limitation necessity when assuming
liability for his own future and prospecting his own dignity, human being has the
basic duty to limit and reduce GHG emissions, to include the climate changes in a
framework that does not endanger the human rights and their defining meanings,
by virtue of conscientiousness.
3. Eco-climatic environment and human rights
The planet’s global environment is a complex and fluctuant ensemble,
interacting with various physical, chemical and biological processes which define
care the climate, being understood as “average conditions of temperature, wind,
precipitations or humidity with which we are confronted, as well as their most
regular variations such as the seasons’ cycle”7. In the relation between
environment, including its climatic factor, and the human rights, as recognized and
guaranteed by law within the society, the latter ones are obviously depending on
the first one, and the preservation of the eco-climatic balances are an essential
condition for the actual accomplishment of all human rights and freedoms, which
can exist and be exercised only under favorable natural conditions. Such
interdependency between the condition and the degradation of the environment
and the human rights was presented by the specialty doctrine, demonstrated by
scientific studies and officially assumed under pertinent international documents.
Under the influence of the Stockholm Declaration8, the founding document of
the ecological period and of the environmental law, even since 1980, C.A. Kiss
underlined that “the degradation of the natural environment is contrary to the
human rights because it imposes living conditions less good for the development
of the personality and maintenance of physical and moral health, which contribute
to human dignity and welfare”9. Also, a series of official international reports,
drafted especially under the aegis of UN, have accepted and promoted the thesis
according to which the accomplishment of human rights is reliant on the status of
7 H. Le Treut, J.-M. Jancovici, L’effet de serre, Ed. Champ Flammarion, Paris, 2004, p. 13.
8 Especially principle 1 of the document.
9 C.-A. Kiss, Définitions et nature juridique d’un droit de l’Homme a l’environnement, in vol.
„Environnement et droits de l’homme”, P. Kromarek (sous la direction de), UNESCO, Paris, 1987, p. 16.
10 MIRCEA DUŢU
the environment10, and lately also its aspect consisting in the global warming’s
implications in the human condition in general and, in particular, the direct
affectation of certain specific rights, such as the right to life, to food, to health or the
right to housing11. The threat menaces first of all the aboriginal peoples or those whose
small insular countries which are thus dispossessed of the right to self-determination
defined as “the right of a people not to be deprived from its own subsistence
means”.12
The actual connection between the quality of environment and the human
rights is proved by the real nature of the consequences of the nature’s degradation
on human condition, which is also revealed by the case-law of the International
Court of Justice, according to which “environment is not an abstraction, but
represents the living space, the quality of life and the very health of human beings,
including generations unborn”.13
Within the same context, the global warming and the climate changes that this
one generates have actual effects on the daily life of people and contribute to
human sufferance.14
Indeed, people have the fundamental interest of not incurring the effects of the
global warming, such as: drought, heat waves, infectious diseases, flooding, rapid,
unpredictable and significant changes in their natural, social and economic
environment, generated by the climate changes. And from here the vital interest to
maintain the stability of the climate and to naturally adapt to the largest extent
possible to its evolutions, which would entail the people’s right to not suffer the
inconveniences caused by the climate changes.15 This exceptional situation, which
threatens with another wave of species’ extinction at planetary level, gives rise to
the natural right of the human being, as individual, and of the humankind, as
species among species, the fundamental right to a proper (adequate) climate,
equivalent to their right to existence. It is a (self)defense right of the species, even if
this one is guilty for causing eco-climatic unbalances by carrying-out polluting
activities, the consequences of which such right protect it.
From the perspective of its defining meanings – keeping the eco-climatic
conditions of survival – the right to a proper climate is found among the essential
human rights for the human being’s survival and represents the most important
area of the right to a healthy and ecologically balanced environment.
10 As, for example, the special report regarding the environment and the human rights, drafted
under the aegis of UN Commission on Human Rights, 46ème session, E/CN.4/Sub 2/1994/9, 6 juillet
1994.
11 Report drafted upon request of the UN High Commissioner for human rights under resolution
7/23 of 28 March 2008, Doc. A/HRC/10/61.
12 Déclaration des Nations Unies sur les droits de peuples autochtones du 13 septembre 2007.
13 Recueil CIJ, 1996, p. 242-243.
14 Climate Change and Human Right: A Rough Guide, 2008, international Council on Human Right
Policy, Versoix, Switzerland.
15 S. Carney, Cosmopolitan justice, responsibility and global climate change, in “Leiden Journal of
International Law”, Cambridge University Press, no. 18, 2005, p. 766-771.
Right to a proper climate in the system of the right to an environment … 11
Recognizing such fundamental human right and promoting equity as an
associated value would imply, inter alia, for instance, the use of the criterion
related to the GHG emissions per/capita as main benchmark in the strategies for
the reduction of the emissions and mitigation of the effects caused by the climate
changes, based on the principle of joint, but differentiated liability of individuals,
not only of the States. As a matter of fact, it should be noticed that the approach at
countries’ level hides, in certain respects, such major discrepancy at individual
level: when, on average in the developed countries there are emissions of 14.5t CO2
equivalent/inhabitant, in the developing countries the average indicates only 4t
equivalent/inhabitant. In such context, it is remarkable the proposition of S.
Chakravarty about a practical framework to allot objectives for the reduction of
CO2 emissions worldwide, being defined especially at individual level and less at
national level, using mostly the distribution of incomes within one population.16
The perception of such trends and the promotion of such legal solutions, as
recognition and guarantee of the right to a proper, constant climate, with a
(natural) variability which allows human adaptation in reasonable terms, exclude
the messianic approaches that incline to treat human rights and the related
documents as a revealed text imposed on Terra or the scientism perspective which
imposes the interpretation of the laws on human behavior as established from an
exclusively scientific point of view. Between a fundamentalist humanism and an
exacerbated naturalism, the golden mean of certain legal instruments and concepts
meant to self-limit human action and to direct it towards the compliance of the
bearability limits of the living environment, towards its own profit seems evidently
be the most appropriate one.
4. Climate – “common asset”, “common heritage of humankind”
“Climate is the archetype of the global collective asset in a globalized
economy. The institutional structure of Kyoto Protocol should become, sooner or
later, the best global governance”.17 If the institutional reflex did not have many
chances to succeed, after the expiry of the validity term of the Protocol (31st
December 2012) and the continuation of its partial and voluntary enforcement (first
of all by EU), its capacity of “planetary common asset” offers new perspectives for
the legal, economic or philosophical approach. As regards the issue that concerns
us, it is obvious that the universal size of the “common assets” reflects also on the
fundamental rights.18 The new category of assets produces new fundamental
rights, such as, in our case, the right to a proper climate, or at least compels us to
16 S. Chakravarty et al., Saring global CO2 emission reduction among one billion high emitters, in
PNAS, no. 29, 2009, p. 11884-11888.
17 R. Guesnevie, Kyoto et l’économie de l’effet de serre, Rapport au conseil d’analyse économique,
janvier, 2003, p. 6.
18 B. Parance, J. de Saint Victor, Introduction, “Repenser les biens communs”, sous la direction de
B. Parance, J. De Saint Victor, CNRS Editions, Paris, 2014, p. 27.
12 MIRCEA DUŢU
conceive differently certain fundamental rights whose philosophical roots are
found in the individualism of the Western modernism. From such perspective, as
the environment, the climate represents also “a common heritage of humankind”,
a status based on which everyone and all may equally enjoy its stability, and from
a procedural point of view, its protection may occur through individual or
collective claims which call for the use or denounce the adverse effect of its status.
The reflection on “the common asset” expresses a concrete collective reasoning
complementary to the reflection on the individual’s fundamental rights and a
rethink in the sense of the intra- and inter-generational solidarity.
5. A pattern: crystallization and affirmation of the right to environment
The pattern of the right to environment may be used in the process of
recognition, crystallization of its own dimensions, as well as in the legal and
institutional establishment of a fundamental human right to a proper climate. The
legal recognition and the procedural guarantee of a fundamental right to a healthy
and ecologically balanced environment are the result of a relatively long process of
assimilation and legitimation of the ecological values, as a maximum importance
and generality interest. The environment has rapidly become and was recognized
as “a third fundamental value of humankind, along with peace and human rights...
any action serving to their safeguard must be as an action serving the humankind’s
general interest”.19 This was formally initiated in 1972, when the UN Conference
on the Human Environment was organized, and inaugurated “the ecological era”
and represented, based on the documents that were enacted (Declaration of
principles and Action Program), the “birth certificate” of the environmental law.
For the first time in the history of law, principle no. 1 of the Stockholm Declaration
expressly provided that: “Man has the fundamental right to freedom, equality and
adequate conditions of life, in an environment of a quality that permits a life of
dignity and well-being”20. By impulse of the decisions made at “the Stockholm
moment”, firstly a wave has started for the constitutionalization and
instutionalization of the concerns about the environment. Its results are expressed
by the fact that today 177 Constitutions include express references to environment,
meaning that the fundamental laws of more than 90% of the world States, out of
which 93 proclaim the existence of a subjective right to environment, among which
the Romanian Constitution too (art. 35 inserted by the amendment of 2003).21
19 A. Kiss, Les effets de la protection de l’environnement sur le droit inter national, in „Mélanges en
l’honneur de Michel Prieur. Pour un droit commun de l’environnement”, Ed. Dalloz, Paris, 2007,
p. 207.
20 The principle was resumed by the UN General Assembly Resolution no. 45/94 of 14 December
1990 according to which “Everyone has the right to an adequate standard of living for his or her own
health and wellbeing” (Doc. No. A/RES/45/94). At its turn, Principle 1 of the Rio Declaration (1992 )
affirms: “Human beings are at the center of concerns for sustainable development. They are entitled to
a healthy and productive life in harmony with nature”.
21 D. R. Boyd, The environment rights revolution, a global study of constitutions, human rights and the
environment, UBC press, Vancouver, 2012, p. 7.
Right to a proper climate in the system of the right to an environment … 13
At international level, the right to environment conceived as a human right
was then asserted through a series of declarations and conventions as regards the
latter ones, there are mainly several regional documents on human rights: the
African Charter of Human and Peoples’ Rights, signed in Nairobi, on 28 June 1981,
the first international convention in this field which recognizes the right to a
healthy environment22 and the Protocol of San Salvador of 17 November 1988 to
the American Convention of Human Rights, proclaiming the individual right to a
healthy environment.23
On the contrary, the European Convention on Human Fundamental Rights
and Freedoms of 1951 remains indifferent to such issues, despite the numerous
propositions for amendments or protocols aiming at including among its
provisions the right to environment. However, this situation was partially
corrected, under the pressure of the social and ecological realities, through the
case-law of the European Court of Human Rights (ECHR) which has assimilated
and gradually established, especially after 1990, in an indirect manner, the
environment as fundamental right so that, after being announced under the
decision of 27 January 2000 in the case T?tar and T?tar vs. Romania (no. 67021/01),
it was clearly expressed in the decision of 30 March 2010 (case B?cil? vs. Romania)
by reference to “the right of those people to enjoy a balanced environment which
respects human health” (no. 19234/04).
Last but not least, the enactment on 25 June 1998, in Aarhus, of the Convention
on access to information, public participation in decision-making and access to
justice in environmental matters, on one hand there were established the
procedural rights related to the right to environment, and on the other hand, for
the States that ratified it, everyone’s right to live in its own environment to ensure
its health and wellbeing, as provided at art. 1 of the document, has acquired the
nature of a supra-legislative rule.
As it may be noticed, it is essentially a question of a human right, as any other
right, even if the environmental protection supposes a much larger perspective
which includes the living and the biosphere. However, by protecting the human
environment, the nature surrounding it is implicitly protected, both elements
forming a unitary entity that entails, inter alia, granting the natural elements a
certain legal status in order to be protected under the law. As these are not subjects
of law, they cannot be protected separately, but through a human right to a healthy
environment, they are provided a certain safety. Thus, a new philosophy in this
field has been developed, with a globalizing and integrating nature, in the sense of
the recognition and guarantee of a right of the human species (as species among
22 Art. 24: “All peoples shall have the right to a general satisfactory environment favorable to
their development”.
23 Art. 11: “1. Everyone shall have the right to live in a healthy environment and to have access to
basic public services. 2. The States Parties shall promote the protection, preservation, and
improvement of the environment”.
14 MIRCEA DUŢU
species) which protects both the human being (individually and collectively) and
the entire environment where this one lives, at planetary level. It supposes the
gradual extension, by multiplication of the protecting meanings of the related
human right, to all components and environment factors.
The right to a constant climate and eco-climatic adaptation appears on this
common branch and develops its own meanings, recognized by the relevant legal
texts.
6. Emergence of a legal corpus regarding the climate and prefiguration of a
right to proper climate
The inclusion of the climate changes among the eco-global issues regulated at
international level was made under the United Nations Framework Convention on
Climate Change, concluded on 9 May 1992 in New York24, included in the category
of the framework conventions concluded/initiated under the aegis of the UN
Conference on Environment and Development of June 1992, held in Rio de
Janeiro.25 It is the international treaty setting forth the general legal background of
the world action in the field of “protecting climate system for the benefit of present
and future generations” and provides the principles and technical mechanism of
development on this basis of “the climate changes law” around the fundamental
right to a constant, balanced natural climate allowing human adaptation ... to the
eco-climatic environment in progress.
As a preliminary remark, it is necessary to mention that according to the legal
regulation “climate changes” mean “climate changes that are directly or indirectly
attributed to a human activity that alters the atmosphere composition at global
level and which is added to the natural variability of the climate noticed during
certain similar periods” (art. 1 pct. 2), in other words anthropic climate changes.
The “ultimate objective” of the Framework Convention “and of all related
legal instruments that the Conference of the Parties may adopt”26 is “to a achieve
stabilization ... of greenhouse gas concentrations in the atmosphere at a level that
would prevent dangerous anthropogenic interference with the climate system”. It
should be mentioned that, according to this document, the climate system refers to
“the totality of the atmosphere, hydrosphere, biosphere and geosphere and their
interactions” (art. 1 pct. 3).
At the same time, it is mentioned that it is agreed to achieve such objective
“within a time-frame sufficient to allow ecosystems to adapt naturally to climate
changes, to ensure that food production is not threatened and to enable economic
development to proceed in a sustainable manner”.
24 Signed on 5 June 1992 in Rio de Janeiro and entered into force as of 21 March 1994. Romania
ratified the Convention by Law No. 24 of 6 May 1994, published in the Official Gazette Pa rt I, no. 119
of 12 May 1994.
25 It is the Convention regarding the biodiversity and the Convention regarding the fight against
desertification.
26 Pursuant to art. 7 and 15 of the Convention.
Right to a proper climate in the system of the right to an environment … 15
From the positive law perspective, as outlined, a couple of major conclusions
are reached. Thus, according to the Preamble to the Framework Convention, the
planet’s climate changes have adverse effects27 and, therefore, represent a “reason
to be concerned about the entire humankind”, as their global nature infers the need
for all countries to cooperate and be involved in the international action of fight
against and manage their consequences, while the legal regulation undertakes the
mission “to protect the climate system for present and future generations”.
7. Legal background for affirmation
The legal background for the recognition, guarantee, expression and
manifestation of the significances of the right to a proper climate is outlined by an
increasingly complex and better structured group of regulations at the intersection
and connection of several issues – technological, energetic, ecological, economical,
and so on –, which is about to constitute “the climate changes law”. The planetary
extent of the concerned natural phenomenon and the global nature of the related
social and legal issues made the legal approach to start and rely on the
international background, and the main legal instrument employed to be the
framework convention, complemented, detailed and enforced by means of
additional protocols, according to a permanent adaptation mechanism, of suitable
negotiations. Concretely, the Framework Convention on climate changes (Rio,
1992) was actuated and specifically enforced for the period 2008-2012 and
afterwards partially by the Kyoto Protocol (1997), and the periodic Conferences of
the Parties resulted in the conclusion of the Copenhagen Accord (2009) and the
hope is to define and establish in December 2015, in Paris, a new global legal and
institutional background for eco-climatic action. A major place is occupied in this
background by “the energy-climate legislative package”, similar to the package
that was subject to a political agreement between the heads of States and
Governments of the European Union member States (the European Council of
December 2008) and which had appropriate developments in the internal policies
and law of the 28 member States.28 As a matter of fact, the association between both
domains was expressed also at institutional level, European Commission-2014
27 Adverse effects of the climate changes: the changes in the physical environment or biota
resulting from climate changes which have significant deleterious effects on the composition,
resilience or productivity of natural and managed ecosystems or on the operation of socio-economic
systems or on human health and welfare (art. 1, item 1 of the Framework Convention on climate
changes).
28 The document imposes the EU for year 2020 a triple objective, known as “20-20-20”, w hich
aims at reducing GHG emissions by at least 20% compared to the level in 1990 (even by 30% in case of
an international agreement), a contribution of 20% from the renewable energies to the global
consumption of the Union and will rise to 20% the energetic efficiency of Europe. These objectives
were resumed in the action plan “Europe 2000 – A strategy for an intelligent, s ustainable and
inclusive development”, rearranged and reassessed for the horizon of 2030. For the contents of the
main texts in this filed: C. Cheneviere, C. Musialski, Code européen. Energie-Climat, Ed. Bruylant,
Bruxelles, 2014.
16 MIRCEA DUŢU
including a commissioner in charge with the climatic action and the energy
(previously only with the climate changes).
Internally, it is the energy-climate law discussed in USA Congress or the draft
of law on the energetic transition in France (July 2014). In order to enforce and
develop the international and European Union regulations, a significant corpus of
regulatory deeds has been enacted at national level, forming what could be called
“the climate changes law”. Indeed, this general regulatory framework does not
unfortunately include provisions which expressly refer to a human right to a
proper climate or which thus remind its components, but creates the general legal
premises of its emergence in the near future.
8. The right to o proper climate in the system of the right to environment
Further to the evolutions towards the recognition and guarantee of its
meanings at the level of the Constitutions, internal legislation, EU law, and
international law, the right to environment has been significantly developed both
in the sense of its definition and diversification of its contents and components. Its
defining matrix, generally accepted, is as “the right to a healthy and ecologically
balanced environment”, which includes its ambivalence: on one hand, the
anthropocentric aspect (environment healthy for human being and favorable to his
personality growth) and, on the other hand, the ecological aspect as “environment
ecologically balanced” (expressing the requirement to preserve great natural
balances), which are interdependent, as inseparable faces of the same fundamental
interest for protection, preservation and improvement of the human living milieu.
At the same time, under the influence of various factors, starting with the
natural and anthropic ones, new aspects have been permanently developed, for the
particularization of the meanings of the right to environment as regards its
components and the related human needs, which emphasize, enhance the specific
nature and have the tendency to become autonomous within a system increasingly
better structured.
The phenomenon occurred at first by “the diversity of the constitutional
commitments”, which were taken-over and developed in their significances by
ordinary legislation and had certain international effects.
Thus, we may firstly notice the mention of and references to the principle of
sustainable development in most of the States’ fundamental laws, and the mention
of a sustainable balance between nature – especially its regeneration capacity – and
the use of its resources by the human being has a special implication (for example,
art. 73 of Switzerland Constitution). Being still an undefined concept, it allows a
variable construal according to the political situation of the country which enforces
it sometimes in order to present the environment as an extension of the economic
and social rights, and less as a new generation of human rights.29
29 J. Morand-Deviller, L’environnement dans les constitutions étrangers, « Les nouveaux cahiers du
Conseil Constitutionnel”, Dosier: La Constitution et l’environnement, no. 43, avril 2014, p. 84-85.
Right to a proper climate in the system of the right to an environment … 17
As regards the rights subsequent to the (general) right to environment, it
should be mentioned the references to the right to water, from the mere mention of
using water (art. 76 of the Swiss Constitution), to stipulating that water is a “vital
natural resource”, the access to drinkable water and the access to sanitation
represent “a fundamental human right”, and the joint management of water
resources, based on citizenship participation and on the sustainability principle,
shall be exclusively and directly provided by public legal entities (art. 47 of
Uruguay Constitution) or the recognition of “the right to water guaranteed by the
State” (art. 44 of Tunisia Constitution of 26 January 2014). These references to
Constitutions are complemented by the international process encouraged within
UN by the resolution made by the UN General Assembly of 28 July 2010
A/64/292, for the establishment of the right to access to drinkable water and the
new perspective of perceiving water’s legal status as vital source for life and
human civilization.30
The protection of forests is also expressly mentioned in a series of fundamental
laws; the Constitution of China provides the obligation of the State to organize and
encourage planting trees (art. 46), the Constitution of Greece (art. 24) and of
Cambodia (art. 59) refer to safeguarding the forest, the Constitution of Brazil
includes several provisions about the protection and sustainable management of
the (equatorial) forest, and the Constitution of Bhutan provides that at least 60% of
its territory shall have to be kept planted with trees (art. 5).
The “right to a good way of living” and also „the natural rights” have the
tendency to become autonomous under the Constitution, as these are expressly
recognized by Ecuador Constitution of 2007 which, for the first time, stipulates that
“the existence of nature has to be observed, and vital cycles, structures, functions
and evolution-related processes must be maintained and regenerated” (art. 71).
Finally, there are references to the protection against nuclear energy
(constitutional law on the nuclear energy enacted by Austria in 1999), links
between the environment and land planning (Greece) or human establishments
(Republic of Korea).
In this general evolving context, in which to the constitutional aspects
mentioned above there are added the internal and international legislative
developments, we can also find the initiation of the process for the recognition and
guarantee of the right to a proper climate. This one arises from the affirmation of
the incontestable interest of the entire present and future humankind in keeping
the climatic balance, the current eco-climatic conditions and preventing some
radical changes of the same, which could make the adaptation impossible and
endanger life existence on the planet. The regulatory process was initiated, due to
the global perception and assertion of the reference issues, at the level of its
30 M. Dubuy, Le droit à l’eau potable et a l’assainissement et le droit international, in “Revue de droit
international public”, no. 2, avril-juin 2012, p. 275-318.
18 MIRCEA DUŢU
premises within an international background and with a major contribution of the
scientific domain, being afterwards developed in the EU law and the national law
of the States. The time elapsed since the social commitment and the legal
affirmation of the issues regarding global warming and climate changes (under the
Framework Convention of 1992) has not allowed its constitutionalization, and the
grounds of a legislative emergence of such law are still at the beginning. Anyway,
it is outlined as a new dimension of the fundamental human right to a healthy and
ecologically balanced environment, having the same dual perspective – ecological,
by the condition of a constant climate, and anthropocentric, by the guarantee of the
conditions for the natural adaptation to the new eco-climatic conditions – and
integrating itself in the general significances of the first one. Thus, the term proper
involves, first of all, the character favorable to human being in general, to meeting
his fundamental needs as individual and providing the conditions for his
civilization’s affirmation. At the same time, the stability of the climate is also
favorable in its current balance, as proved during the last 10,000-12,000 years and
its maintenance at an average global temperature that do not increase by more
than 2° C compared to its value in the preindustrial era, as above this value the
human society’s capacity to adapt to the eco-climatic conditions would be
compromised.
9. An individual right, a right of the species, of the peoples and of the future
generations
For a classical approach of this topic, an important issue is appointing the
beneficiaries of the right to a proper climate. As any fundamental human right, the
first beneficiary of such right is the human being, and this time as creature living
on the planet, regardless race, age, nationality, social status, etc. At the same time,
to ensure climate stability and the possibility to adapt to the effects of the global
warming is a duty, a correlative individual responsibility, using proper conducts
and attitudes, in the sense of saving resources, energy, which are environmental
friendly and in favor of improving the quality of its components.
At the same time, the climate changes are a global stake having planetary
consequences on all of us, fact that entails the historical responsibility of the
industrialized countries (legally recognized by UNCCC of 1992), express an
absolute interdependency that supposes a worldwide cooperation and involves
“the need for law” of the legal regulation. A threat of such extent is: “The end of
modern political rationality and the transition to a new and unknown era... Only
such global, final threats, recognized by all of us, may generate forces likely to
bring together in a political community the divided and conflicting human kind”.31
According to this reasoning, law has to express such interdependency, a solidarity
31 F. Cerutti, Le réchauffement de la planète et les gé nérations futures, in magazine “Pouvoirs”,
no. 127, 2008, p. 108.
Right to a proper climate in the system of the right to an environment … 19
that is in fact equally ecological, economic or political, the climate-related interest
of a “community” extended to planetary level, to biosphere level. One of the first
and main formulas to do this is undoubtedly to recognize the law and the
responsibility to provide a proper climate, in favor/at the charge of humankind as
species among species, liable for the occurrence of anthropic climate changes and
entitled to survive, under such aspect, by a rational management and by
eliminating the causes that produce it and creating the conditions for natural
adaptation to its unavoidable effects. Because on the way to the recognition and
promotion of its meanings the tendency is to correct the injustice by admitting the
historical responsibility of the industrialized countries for having caused the
anthropic global warming and the joint, but different liability of the countries for
accomplishing the guarantees for the right to a proper climate, this one is also a
right of the world’s peoples to live in eco-climatic conditions that allow them to
develop, according to their long term interests and the identity characterizing
them.
Finally, the issue of equity, climatic justice involves, besides a North-South
dimension, also an intergenerational one, due to the GHG accumulation in the
atmosphere, their lifespan (persistence) and the damages that could be generated
by the global warming on average and long term. From such perspective, future
generations must become beneficiaries of the right to a proper climate, recognized
and guaranteed in an imperfect formula. Indeed, it is mostly question of a time
discrepancy between the moments when the entitlement and the correlative duty
are exercised, as these are the terms of the equation for the new fundamental
human right.
Thus, from the point of view of the positive law we are in the presence of an
imperfect manifestation of such law, only under the form of the obligations that the
current generations have to take the necessary actions for the purpose of stabilizing
the GHG concentrations at a level which prevents dangerous climate disturbances
and allows the adaptation of the present and future generations to the eco-climatic
conditions during their evolution. The right to a proper climate, by keeping the
related natural premises, is to be actually exercised at the moment when such
future generations shall appear in the natural history arena.
10. Non-regression and the progress in the climate changes law
One main engine of the gradual process for the recognition and guarantee of
the right to a proper climate is the non-regression principle, meaning that the eco-
climatic policies and the actions undertaken in favor of their enforcement are
irreversible. The natural necessity and the will to stabilize the climate express a
contrario the denial of any deferment and of any reconsideration of an action for
the protection of the planetary system (for instance, aiming at the reduction of the
GHG emissions). It is what UN entities refer to in the international documents in
this field as representing the obligation of “progress” related to human rights.
20 MIRCEA DUŢU
In the field at hand, the principle of non-regression of the related law acquires
a special meaning, given the irreversible nature of the climate changes effects and
even the possibility to transfer towards a new condition of the climatic system.
From such perspective, the non-regression condition is correlatively
complemented by the obligation to have a regulatory progress in this field for the
purpose of avoiding the ecological catastrophe. Thus, the irreversibility and the
progress become a dominant principle of the climate changes law.
Indeed, the existence of a “tilt over point” (established when the average
global temperature of the atmosphere increase by more than 2° C), and above this
one the human adaptation to the new eco-climatic conditions would become
impossible and the Earth’s system would change its balance, and would go
towards a new status, represent the fundamental benchmarks of the action and the
new philosophy of conceiving the part to be played by the related law. Taking into
account that the transfer would be towards an average temperature of the
environment higher by 5°-8° C, this fact would entail also a new equation of life on
Earth and we don’t know whether humankind, in anyway in its actual formula,
would be part of. Anyhow, to live in Anthropocene means to live in a subsidiary
and less predictable world as regards the reactions of the planetary system to the
disturbances caused by the actions of the human species.
In this context, to ensure progress of the recognition and guarantee of a human
right to a climate proper for the perpetuation of human species and the
development of his civilization represents a natural necessity and an obligation for
the entire human community, justified by the statute of sole alternative for his
surviving.
11. Role of soft law in the assertion of the new fundamental human right
Being defined as all the (regulatory) instruments having for object changing or
directing the behaviors of their beneficiaries, by provoking, to the extent possible,
their adhesion, which do not create per se any rights or obligations for these ones
and present, by their contents and conceiving manner, a level of formality and
structuring that belong to the rules of law32, the main domains where the soft law
is active are the environmental law in general, and the climate changes law in
particular. The accentuated technical and specialized expertize features of the
issues have a contribution and suppose the permanent involvement in the
negotiations and debates related to drafting and affirming the rule of law (either
soft or hard) as partner with “equal”, but specific rights of the scientific community
(represented mainly by the intergovernmental group for the evolution of the
climate (GIEC/IPCC) and end in transforming the related legal rules into a true
“sciento-jus”. The legitimization of its conclusions about the climate’s extreme
32 Conseil d’Etat, Le droit souple, Etude annuelle 2013, La documentation Française, Paris, 2013,
p. 61.
Right to a proper climate in the system of the right to an environment … 21
evolutions and the dangers thus generated for the existence conditions of the
human being and his civilization (included in the 5 reports drafted and published
until now) (the representatives – specialists and officials – of 195 States, parties to
the Framework Convention on climate changes of 1992 IPCC being also a recipient
of the 2007 Nobel Prize for Peace) represent a strong factor of adhesion to the
actions aiming at the reduction of GHG emissions and the adaptation to the effects
of the global warming, the influence for that purpose of the official attitudes and
individual behaviors. The preventive, dissuasive nature of the position towards
these ones and for compliance with their prescriptions result thus not from the fear
of a legal penalty that may occur, regardless its form, but from the concern
regarding the direct and actual consequences that climate changes might have, in
the near future, at individual, collective and global level, for the present and future
generations. From such perspective, the use of “soft law” in order to schedule and
change States’ position and individuals’ behaviors towards the environment and to
promote the guarantees for the right to a proper climate represent a special
importance and a manner adequate for the particularities in this field. All the
strategies, action plans, codes of conduct, technical rules and so on, related to the
problems of preventing climate changes and managing in a sustainable manner
their effects contribute to the creation of the legal premises for the recognition and
assertion of the right to proper climate, the development of the legal and
institutional conditions for its guarantee.
Conclusions
The Anthropocene concept renews profoundly the perspective on the
contemporary “environmental crisis”, and thus opens new perspectives for the
approach of human rights in relation to the eco-climatic conditions for their
exercise. Instead of environment, the key-concept becomes Terra system.
Anthropocene is an event, a point of no return.33 As the philosopher Bruno Latour
wrote: “Anthropocene is the most decisive philosophical, religious,
anthropological and political concept, yet produced as an alternative to the very
notion of modernity”.34 From the perspective of the systemic ecology, which
includes human activities in the study of the ecosystems and biosphere
functioning, the notion of Anthropocene cancels the break between nature and
culture, between human history and history of life on Terra. It means that even the
total separation of the social and human sciences, of the science of law and the
sciences of nature, becomes artificial, and an appropriate approach of the future
supposes a unity of vision and action also to this respect.
The climate changes in progress, having irreversible effects, mark the end of
climate stability regime which lasted for more than 10,000 years and the passage to
33 Ch. Bonneuil, J.-B. Fressoz, L’événement Anthropocene, Editions du Seuil, Paris, 2013, p. 36.
34 B. Latour, Facins Gaia, Six lectures on the political theology of nature, Gifford Lectures, 2013, p. 79.
22 MIRCEA DUŢU
a regime of violent and contrasting fluctuations. This implies radical and rapid
transformations of the eco-climatic conditions and a major adaptation effort of the
species, starting with human species, to the new data of the living environment,
but including the perspective of this one’s failure. Such evolutions require the
significant involvement of law as an instrument for accomplishing the
fundamental human needs, for the purpose of maintaining also an “environment
for the species’ development” adapted to the needs of the eco-climatic reality and
based on a rational and humanized use of ecosystems. To this effect, a global,
adequate and efficient climatic governance supposes a merger too, by specific
benchmarks, of three legal entities: development law, environmental law and
human rights, and has to consequently leave room to collective rights, by inducing
their international legal recognition and the need to make them opposable to and
mandatory for the States.35
Among them, it is the foreseen right to a proper climate which plays a
primordial part. Being grafted on its increasingly strong body of the right to
environment, whose sector developments (the right to drinkable water, to clean
air, and so on) incline to form their own system, this one gradually builds its
specific profile. By consensus with the binary structure of the first one –
anthropocentric and ecological – the right to proper climate also means, on one
hand, the right to a constant climate, and on the other hand, the right to a natural
variability that allows human adaptation to this one’s evolutions. Its material
guarantee supposes, first of all to avoid any dangerous anthropic interference with
the climatic system, which implies that the escalation of the global warming
phenomenon to be stopped below 2° C by reference to the average temperature of
the preindustrial era, and this is an objective established by the 2008 G-8 reunion in
Aquila (Italy) and taken-over by the Copenhagen Accord (2009). In order to
develop specific procedural guarantees, it is necessary for the embryo of the
existing legal regime to expressly establish it and to set forth a proper legal
background for its exercise, an important model being that of the recognition and
guarantee of the right to environment.
The law and the humankind’s possibility to act on the climate when promoting
is own interest justify the implementation of a right to finality aiming at precise
objectives and adequate measures falling into the observance of the need to
maintain a climate proper for human existence and the conditions for the
possibility of the individual and of the species to adapt to environment.
To this effect, the announced Accord that is expected to result from the 21
st
Conference of the Parties to the Framework Convention on climate changes
(COP-21) to take place in December 2015, in Paris, may play a decisive part.
Among others, this one should develop a set of adequate and efficient legal
instruments for the purpose of ensuring the accomplishment of the objectives that
35 M. Abbas, Economie politique globale des changements climatiques, Presses universitaires de
Grenoble, 2010, p. 96.
Right to a proper climate in the system of the right to an environment … 23
were undertaken, and not omitting the provision of a constant climate, variable
within the limits of humankind’s capacity to adapt and up to its bearability limits.
Indeed, the most expected progress would be to formulate, if not to recognize, the
right to a proper climate, and thus opening wide its assertion path in the human
rights’ equation.
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