Climate change represents the biggest danger for human life and human health. Despite this, international law has yet to provide a legal framework that links climate and health. Even the Paris Agreement, celebrated as a historic achievement for climate law, missed the opportunity to look at climate change as a human rights issue.
In the past year health and healthcare have become the main focus of every debate. Not only has the Coronavirus pandemic highlighted the fragility of our health as individuals and the weakness of our public health systems, but it has also exacerbated the already existing inequalities, both within and among countries.
While States are working and investing to overcome this public health emergency, they seem to have temporarily set aside their fight against climate change, which de facto constitutes the most severe global health emergency that we are called to face.
As COP26 in 2021 marks the fifth anniversary of the Paris Agreement on climate change, now more than never the human right to health should be the most urgent point on the climate agenda. Nevertheless, although climate change has been explicitly recognized as the greatest threat to humankind in the UN Framework Convention, climate law does not seem concerned with health and human rights, focusing mainly on the environmental and economic sides of the issue.
The breakthrough in Paris
Considered a breakthrough in climate governance, the Paris Agreement somehow attempted to move away from that approach. The ambitious goal to hold the global average temperature increase to well below 2°C above pre-industrial levels and the replacement of fixed emissions reduction quotas with the nationally determined contributions are not the only revolutionary changes adopted by COP21.
Articles 7, 8 and 9 are indeed fundamental to understand the innovation that the Agreement has apported to the climate regime. First, Article 7 shifts the attention from mitigation to adaptation, highlighting the urgent necessity for adaptive and resilient strategies in the most vulnerable countries; on this note, article 9 invites the wealthy States to financially support the planning and realization of such strategies, through their voluntary contributions to the Green Climate Fund. Finally, for the first time in a legally binding treaty on climate, article 8 is entirely dedicated to the concept of loss and damage in relation to the adverse effects of climate change, especially on Small Island States.
The acknowledgment of the damage suffered by most developing States and of their vulnerable position, together with the commitment to actively assist them in building more resilient societies, would suggest that the concern for human rights has finally entered the climate discourse. Unfortunately, this was not the case.
The vague reference to human rights
During the whole process of negotiation, supported by several NGOs, the Alliance of the Small Island States -the most affected and the most vulnerable parties– demanded the inclusion of a clear provision which would bind States to act in protection of the human right to health.
More specifically, this request came from the awareness of not being capable to provide appropriate responses -functioning healthcare structures, medicaments, vaccines- to the health emergencies deriving from climate change, like extreme weather events, epidemics and the ongoing diffusion of noncommunicable diseases linked to malnutrition or air pollution.
The final version of the Paris Agreement does indeed contain an explicit reference to human rights, inviting the Parties to respect, promote and consider their respective obligations on human rights, and among others, the right to health, to water and to food. Although this mention may be regarded as a step forward a further intersection between human rights law and climate law, some considerations must be done.
First, instead of being included in the operating body of the treaty, the reference to human rights can be found in the Preamble, which is not legally binding. Second, the Parties are called to ‘respect, promote and consider’ human rights rather than ‘respect, protect and fulfil’, which is the classical formula that would require specific actions from States.
Lastly, the Preamble only suggests that States should take into account human rights when planning measures against climate change, failing to mention that States should take affirmative actions to prevent human rights harms caused by climate change in the first place, as recommended by the OHCHR. Therefore, it seems evident that COP21 failed to adopt a human rights approach, missing the opportunity to finally recognize climate change as a human rights issue, especially concerning life and health.
Is the Paris Agreement a health agreement?
Nonetheless, the Paris Agreement has been described as the strongest health agreement of this century by Dr Tedros Adhanom Ghebreyesus, the Director-General of the World Health Organisation; similarly, Dr. Diarmid Campbell- Lendrum, the WHO Team Lead on Climate Change and Health, has called it a fundamental public health agreement.
As climate change severely damages the environmental determinants of health, in particular air quality, food security and water supply, any action aimed at mitigating and limiting those damages will automatically have positive effects on people’s health.
Therefore, it is undeniable that the objectives set in Paris, namely the goal to substantially cut greenhouse gasses emissions and to limit the temperature increase, the commitment of developed States to financially support the implementation of these measures in the vulnerable countries and, finally, the focus on adaptation strategies and on building climate resilient systems, can all be regarded as health co-benefits. Furthermore, almost two thirds of the intended nationally determined contributions submitted to the UNFCCC in advance of COP21 contained a direct reference to health, thus proving that public health has been recognized by the Parties as fundamental for the fulfilment of the Agreement.
Interestingly, health and public health were present in all the submissions from African, Asian, Latin American and Caribbean Parties, while only 13% of European countries integrated health in their NDCs and, not surprisingly, there was no explicit reference from the United States. This information proves that the most developed countries – the EU block and the US – have not given priority to health in their climate agenda, still perceiving health and climate as two separate independent matters.
Such perception is then reflected in their contributions to the Green Climate Fund: for there are not provisions requiring that States invest in the strengthening of the health sector, they have been directing their funds elsewhere.
On the basis of these considerations, it may appear that the only possible conclusion to draw is that the Paris Agreement is far from being a health agreement, and that the vague reference to the human right to health in the Preamble is simply a small concession given by the developed States to the most vulnerable Parties.
As a matter of facts, the potential co-benefits that health may derive from the Agreement are definitely not sufficient to address the damages that climate change has already caused.
Considering the severity of the matter, a vague reference is not and cannot be enough: there is an urgent need for an international treaty that links climate change to human health, and which establishes binding obligations on all States to take action to safeguard the human right to health of every individual.