1. Climate Change and Human Rights

At the 1972 UN Conference on the Human Environment, it was acknowledged that humanity ‘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’.^[1] Since then, there has been a ‘greening’ of human rights: a growing acceptance of the fact that a healthy environment is a necessary enabling condition for the full enjoyment of human rights, that environmental degradation interferes with human rights, and that measures to protect the environment must be rights compliant. In a historic resolution in July 2022, the United Nations General Assembly (‘UNGA’) recognised ‘the right to a clean, healthy and sustainable environment as a human right’.^[2]

The protection of internationally recognised human rights is threatened in the context of climate change, including rights to life, culture, health, food, and an adequate standard of living for individuals and communities across the world, among other rights. As the UN Special Rapporteur on human rights and the environment has observed: ‘climate change is having a major impact on a wide range of human rights today and could have a cataclysmic impact in the future unless ambitious actions are undertaken immediately’.^[3] The human rights impacts of climate change are unequally distributed, with those that have contributed least to the greenhouse gas emissions that cause climate change often hit first and worst by its adverse impacts.^[4] In particular, climate change threatens the human rights of those living in poverty or those individuals and communities who experience vulnerability due to ‘marginalization [and] historical and ongoing patterns of inequity such as colonialism’.^[5] There are many warnings from human rights experts that ‘climate change will exacerbate existing poverty and inequality’ and could lead to ‘climate apartheid’ where ‘the wealthy pay to escape overheating, hunger and conflict, while the rest of the world is left to suffer’.^[6]

There is a risk that certain measures to respond to climate change may affect the protection of human rights. For example, large-scale renewable energy projects, while important to achieve emissions reductions, might challenge or be inconsistent with the rights of local communities if these rights are not respected and free prior and informed consent (‘FPIC’) is not sought.^[7] Similarly, measures to mitigate climate change by protecting forests — whether to reduce greenhouse gas emissions involved with deforestation and forest degradation or to preserve the role of forests in sequestering carbon dioxide — can interfere with the rights of forest communities and Indigenous peoples living in these forest areas.^[8] Another example is measures to adapt to climate change by relocating people from areas vulnerable to rising sea levels, which interfere with rights to self-determination, culture and freedom of movement if not implemented with proper human rights safeguards, procedural protections and consultation processes. A further tension between protecting the climate system and protecting human rights may arise when realising certain rights, especially some socio-economic rights, involves increasing greenhouse gas emissions. For example, constructing new housing to realise the right to housing of the 1.6 billion people globally who are homeless or lack adequate housing will generate significant emissions.^[9] Addressing climate change, therefore, involves a complex balancing of different rights and consideration of how to allocate financial and technical resources accordingly.

There is an emerging international consensus that actions to address climate change should be compliant with, and should promote the protection of, human rights. Notably, the preamble to the 2015 Paris Agreement affirmed that states

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.^[10]

Human rights provide a powerful moral language for describing harms that have been experienced, especially by vulnerable and marginalised groups, and for advancing claims. Human rights also provide a framework to articulate the obligations imposed on various actors, including the obligations of states (and private actors) to respect, protect and fulfil human rights. Under this standard, states must respect human rights and avoid policies and actions that would breach them; they also must protect human rights by ensuring that private actors, such as corporations and financial institutions, are not able to infringe the rights of others; and they must fulfil human rights by taking positive steps towards their full realisation. A human rights framework may also provide forums in which to complain about violations of human rights and mechanisms through which to seek redress. Indeed, individuals are increasingly initiating proceedings before courts and other complaints bodies claiming their human rights have been violated as a result of climate change. In the process, existing human rights have begun to be interpreted to take account of the way harms to the environment impact human rights, and the rights to a healthy environment and a safe climate have emerged for international recognition.

The application of these rights to Australia occurs via our participation in international human rights treaties and other UN mechanisms. They are also considered through state and territory human rights legislation and federal, state and territory anti-discrimination laws. These processes and the emerging jurisprudence are discussed in sections 2.2, 2.3.1 and 2.3.2.