'No Need to Reinvent the Wheel for a Human Rights-Based Approach to Tackling Climate Change: The Contribution of International Biodiversity Law' (Edinburgh School of Law Research Paper No. 2012/15) by Elisa Morgera
offers -
a systematic analysis of the ways in which international biodiversity law contributes to the fight against climate change by assessing and preventing the negative impacts on biodiversity and community livelihoods of measures to address climate change (‘response measures’), and adopting the ecosystem approach to climate change mitigation and adaptation. In highlighting readily available legal avenues for ensuring the mutual supportiveness of the international biodiversity regime and the international climate change regime, the chapter argues that positive interaction between the two regimes can promote a human rights-based approach to the development of the international climate change regime and its implementation at the national level.
Morgera concludes by stating that she has -
sought to draw attention to the abundance of climate change- and human rights-related normative developments under the CBD and its great potential to fill key gaps in the international climate change regime and in its implementation at the national level. Not only has the CBD COP “actively sought to manage the interactions between the two regimes”, revealing itself as “instrumental in highlighting biodiversity concerns in UNFCCC decisions,” but it has also made significant conceptual progress on the politically charged question related to environmentally holistic and human rights-based approaches to climate change mitigation and adaptation. As a result, the normative activity undertaken by the CBD COP can contribute to ensuring coherence between the international climate change regime and international human rights instruments, linking international, national and local levels of governance and reaching into the relations between private entities and indigenous and local communities. Notably, international biodiversity law can provide both procedural and substantive elements of a human rights-based approach to climate change.
It remains to be seen whether these multi-level normative developments under the CBD will be allowed to filter into UNFCCC COP decisions and national-level implementation, although practice under the international climate change regime so far has been disappointing. Given the urgency of constructing an effective international climate change regime, however, reliance on the CBD guidance may save UNFCCC Parties precious negotiating time. Cross-reference to the CBD decisions can also provide a “social justice and development” dimension to the international climate change regime, thus facilitating “intersecting inequalities that contribute to vulnerability and allows for an exploration of a variety of approaches that offer redress and capacity-building to marginalized populations.” In addition, the CBD normative activity provides highly refined and intergovernmentally approved “methodologies for engaging the particiapation of, and consultation with, key stakeholders in the formulation of climate change and development strategies.”
In conclusion, this [paper] represents an invitation not only to climate change lawyers, but also to human rights experts interested in climate change to engage with the normative activity of the governing bodies of international biodiversity-related conventions. In particular such an engagement would be useful to ascertain whether existing guidance under the CBD and related conventions covers all relevant vulnerable groups. It would also be interesting to start a dialogue on the possible value added of supporting a human rights-based approach through the CBD COP decisions. For instance, an argument can be made that the CBD guidelines go beyond human rights instruments in that they do not require an ‘identifiable violation,’ but can rather be triggered by a threat of a negative impact, thereby injecting human rights with a preventive (and even precautionary) approach. In addition, the CBD guidelines can more easily reach across international borders, on the basis of the common concern of humankind, whereas there are significant limitations to the extraterritorial application of human rights instruments. Finally, the CBD can count on a virtually universal membership, whereas different UNFCCC parties are subject to different human rights instruments with varying membership.
Finally, human rights experts, climate lawyers and biodiversity lawyers could engage in a certainly enriching debate on enforcement and compliance. Without explicit and operational links between the international law on climate change, biodiversity and human rights, state compliance with these interconnected obligations cannot be monitored and enforced. Even if these links are established, however, monitoring compliance under the CBD would be very limited. The CBD does not have a compliance committee and does not use Parties’ self- reporting or other types of monitoring to identify shortcomings in individual States’ compliance. In turn, while international human rights instruments have international tribunals and rapporteurs to hear and investigate complaints, not all impacts on human rights arising from climate change response measure may trigger them and not all human rights enforcement mechanisms are necessarily effective. So, another question that merits discussion is whether the compliance mechanism under the international climate change regime has the potential to contribute to the respect of international biodiversity and human rights law between States, within States and possibly even in relations between the private sector and communities.
