4. Future Trajectories of Human Rights Law: Relational Rights and Reparations

Human rights are not static; they continue to evolve, and this evolution has been informed by the above critiques of human rights, alongside increasing recognition of the impacts of climate change and other environmental harms on human rights. One recent development has been the growing movement for the provision of redress for loss and damage (‘L&D’) caused by climate change. This concept seeks to recognise the contribution of colonialism and extractive imperialism in driving climate change and the disproportionate impact this continues to have on the Global South. L&D litigation and the recent L&D Fund (see Section 4.1) are two mechanisms for providing redress and demanding some accountability from those in the Global North who continue to profit from extractive practices.

Another development, which has gone hand in hand with the shift away from Eurocentrism discussed above, has been a greater appreciation of the centrality of relationships to people’s wellbeing and rights — leading to a stronger focus on communal rights and on rights that better respond to humanity’s deep entanglement with the rest of the biosphere. These ‘relational rights’ seek to protect communities and reciprocal obligations, rather than individuals and extractive rights.

4.1 Redress for Loss and Damage

The concept of L&D was officially recognised in 2013 at the 19th Conference of the Parties (‘COP19’) in Warsaw, but it was not until 2022, at COP27 in Sharm El Sheikh, Egypt, that countries agreed to establish an L&D Fund (and not until 2023, at COP28 in Dubai, that this fund was officially operationalised).^[1] Abhijeet Shrivastava and Renatus Otto Franz Derler argue that the delay in recognising the concept of L&D and in implementing the fund led many stakeholders to seek another avenue for redress and compensation via L&D litigation.^[2] Notable cases include Asmania et al v Holcim, in which Indonesian fishermen sued a multinational company for sea-level rise impacts in Swiss courts; Lliuya v RWE, in which a Peruvian farmer sued RWE, a German electrical company, over glacial flooding threats; and Sacchi et al v Argentina et al (2021), in which the UN CRC accepted the possibility of determining states’ proportional responsibility for climate harm (while dismissing the case because the applicants had failed to exhaust domestic remedies). Daniel Billy has also been described as a L&D case (see the case summary in Section 2.3.1).^[3] Shrivastava and Derler argue that although L&D litigation risks reinforcing Western hegemony, it can provide access to remedies and operate to strengthen the position of delegates from the Global South in UNFCCC negotiations, potentially leading to stronger L&D financing commitments.

4.2 Relational Rights

In contrast to Eurocentric and anthropocentric conceptions of rights (which tend to be individualist, atomised and sometimes competitive) Indigenous ontologies^[4] tend to focus on the relationship between peoples and the natural world. According to Mary Graham, the custodial ethic of Aboriginal people is created through ‘combining and melding together’ two principles: first, ‘the ethical principle of maintaining a respectful, nurturing relationship with Land, Place and community’, and second, ‘the organising governance principle based on autonomy and identity of Place’.^[5] In Aotearoa New Zealand, the Whanganui iwi explain a similar concept with the simple expression: ‘I am the River. The River is me.’^[6] Elizabeth Macpherson notes the emergence of a scholarship around environmental relationality, reflecting ‘ideas of (often kinship-based) relatedness, relationships and “belonging” between people and place’.^[7] She argues that this relational ‘approach can be contrasted with typical Western laws, where humans are perceived as separate to nature, and law’s engagement with nature is fragmented across seemingly arbitrary jurisdictional scales.^[8]

Recent developments in human rights law are increasingly reflecting a deeper understanding of Indigenous peoples’ relationships with the natural world, and the threat posed by climate change to these relationships. For example, in Daniel Billy (the Torres Strait Eight communication), discussed above, the Human Rights Committee noted that climate change-related weather patterns were ‘making it harder for the authors to pass on their traditional ecological knowledge’.^[9] In addition to noting the particular vulnerability of Indigenous peoples to the impacts of climate change, there is a growing recognition of the essential role of Indigenous knowledge in responding to climate change. Daniel Billy represents a turning point in human rights law by recognising and reflecting the significance of Indigenous expertise and relationships with Country in the articulation of the right to culture and the right to privacy, family and home. Nonetheless, this recognition is only the beginning of reimagining the scope, normative content and, indeed, foundational principles, of human rights more generally.