Relativistic Approach to ‘Climate Justice’ in the Paris Agreement

The Paris Agreement is the first international climate agreement using the term ‘climate justice’ (13th preambular recital of the Paris Agreement). ‘Justice’ means ‘impartial adjustment of conflicting claims’, ‘conformity to truth, fact, or reason’ (Gove 1986, 1228), ‘morally right and fair’, and ‘fair and reasonable’ (Pearsall and Hanks 2001, 992–993). It refers to the moral foundations of conduct, political institutions, distribution, or minimum standards for individual rights (Beitz 1999, 270). Justice has a strong normative component that persists independently of individual convictions.

The idea of objective criteria that define justice has caused and continues to cause heated debates across disciplines, within and beyond the climate context (Gajevic Sayegh 2018; Murphy 2019, 80–82; Mi et al. 2019). This analysis seeks only to clarify the term ‘climate justice’ in the context of the Paris Agreement, not to review one of the biggest questions of the humanities. Still, it should be complex enough to capture the problem of justice in the broader climate context, covering the substantive (distributional) and procedural dimensions of justice.

The justice theory of Amartya Sen (2009) is well suited to understanding the ‘climate justice’ of the Paris Agreement, even though originally, Sen's approach is based on natural persons, not states. First, like the Paris Agreement, Sen recognizes more than one measure for justice (Sen 2009, 239–241, 272–290, 298, 395). Second, his approach does not depend on a final answer to universal justice questions; Sen rather provides orientation on how to increase justice in situations of incomplete information and uncertain weights of different measures of justice (Sen 2009, 259, 266–267, 398–400).

The concept of ‘stereotypes’ refers to generalisations that are made about the behaviour adopted and/or the characteristics possessed by the members of a particular group. Involving presumptions about human actions and attributes, a stereotype provides ready-made narratives as to how and why some events unfold as they do. Thus, stereotypes, especially when they operate ‘undetected’, hamper an objective analysis of the factual situation. In the courtroom, they tend to have a polluting effect on the assessment of evidence, leading to relevant pieces of evidence being ignored, irrelevant circumstances being given weight, and higher standards of proof being imposed than would have been the case in their absence. This chapter focuses on the approach of the CEDAW Committee in examining the impact of gender stereotypes on the evaluation of evidence performed by domestic courts. It provides an in-depth analysis of the views adopted by the Committee in selected individual communications.

Over time, United Nations human rights treaty bodies (UNTBs) have developed an admissibility requirement that individuals’ allegations be ‘sufficiently substantiated’ or ‘not manifestly unfounded’. Explanations of these terms have varied, but States, treaty body members and scholars have equated them with a prima facie threshold. Among international tribunals, prima facie is commonly understood to require the complainant to make a plausible claim. However, review of UNTB decisions indicates that application of this requirement clashes with the accepted meaning of prima facie by: (1) often requiring the complainant to present convincing allegations; (2) taking into account – or giving greater weight to – the state’s arguments and evidence at the admissibility stage; and 3) sometimes requiring the complainant to pre-emptively overcome the state’s possible defences. This chapter seeks to identify relevant trends in order to both better understand current UNTB practice and illuminate paths to greater consistency and clarity in admissibility determinations.

Before accessing the UN treaty bodies’ individual communications procedure, a complainant must have exhausted domestic remedies. This admissibility rule exists for good reasons, but it has limits. In particular, exemptions must be recognised in respect to domestic remedies which lack effectiveness, including accessibility. Regrettably, UNTBs are currently reverting to a formalistic and mechanical application of this admissibility rule. What justice requires, however, is the opposite: an expansive consideration of the plethora of barriers that prevent access to domestic justice, as well as a reflection about how each barrier can realistically be evidenced by a complainant. This can be achieved, this chapter argues, through an individual-centred, contextual approach, which achieves the aim of preventing the state from escaping international scrutiny, while highlighting the crucial role domestic justice should play in remedying human rights wrongs.

Over decades of reviewing individual communications, the Human Rights Committee (HRC) has developed greater consistency when shifting the evidentiary burden between the author and the state in its decisions on individual communications. The grounds on which this shift is made, including the nature of the allegations, the evidence used to corroborate the allegations, and the extent to which the state engages with the process, seem to impact the articulation of the shifted burden in certain cases. To effect this burden shift, the chapter explains that the HRC appears to follow three steps when assessing claims of a breach of the prohibition against torture: (1) the allegations must be corroborated by some level of evidence; (2) the HRC applies a rebuttable presumption that the author’s alleged facts are true; unless (3) the state offers evidence in direct response to the specific allegations of torture.

Human rights violations often form part of a pattern or practice of violations, rather than being purely isolated incidents. This context is not consistently taken into account by UNTBs during individual case consideration, however. This chapter explores several ways in which awareness of human rights violations’ embeddedness in wider contexts of violations should inform UNTB practice. In particular, the chapter considers the impact, or potential impact, of patterns and practices of violations on the manner in which UNTBs receive information, and the sorts of sources they recognize in their decisions; on UNTBs approaches to the exhaustion of domestic remedies and the burden of proof; on case structuring; and on findings, recommendations and follow-up procedures. The chapter ends by observing that UNTBs are not only receivers but also key disseminators of information, and suggests ways in which their findings as to the patterns and practices of violations may be more effectively disseminated.

Introduction

Climate change poses a formidable challenge in the 21st century, giving rise to complex issues of justice and equity within and between generations, as well as across global and economic divides (Doussa, Corkery, and Chartres 2007). Those least responsible for climate change often suffer the most from its impacts, with the world's poorest and lowest carbon-emitting countries facing heightened vulnerability. This exacerbates existing inequalities and disproportionately affects the poor, the disadvantaged, indigenous people, immigrants, and women—groups that are among the first to be impacted and the least equipped to adapt to a changing climate (Klein and Stefoff 2021; Kaur 2020).

The consequences of climate change manifest in more erratic and extreme weather patterns, resulting in chronic water, food, and financial insecurity for millions. This crisis further propels individuals into poverty, enflames conflict over depleting natural resources, forces migration, and compounds pre-existing gender discrimination (Matekair and Carey 2022).

Women, in particular, experience severe impacts on their livelihoods due to existing gender relations, including increased tensions within families and increased instances of gender-based violence. Droughts and flooding resulting from climate change contribute to food insecurity, pushing women and girls further into poverty and exposing them to transactional sex for goods, human trafficking for commercial sexual exploitation, and child and forced marriages (Njikho 2020).

Setting the Scene: Context in Snapshots from 2022, 2023, and 1900

Badin, Sindh, September 2022: She slaps her scrawny toddler across the face while she balances an infant on her frail hip. Tempers are running high in this building—sounds of shouting, slapping, screaming, and crying are recurring. It is a government school in the district of Badin, Sindh province, Pakistan. The school building serves as a shelter for flood affectees. Meals, medicines, and other aid are distributed sporadically by philanthropic initiatives, military men, political workers, religious groups, local landlords, or civil administrators. The food often arrives stale and causes illness. Approximately a thousand people seek refuge in a building whose sanitation facilities cannot keep pace. Some wish they had died instead of ending up here, while others choose to pick cotton from flooded fields, standing in toxic water for a higher wage, to try and escape this shelter.

Karachi, Sindh, August 2023: She works in the Korangi Industrial Area at a factory producing garments for a global clothing brand. She lives with her family in the Ibrahim Hyderi area of Karachi. Many of her neighbours are fisherfolk (Idrees, 2021). She also comes from a fishing community in Badin. Her family has not been fishing for over a generation. Water is either syphoned off by canals, barrages, and dams upstream, or polluted by untreated industrial waste. Fish are dying. Meanwhile, intimidation by Rangers, the Coast Guard (Shah 2005) and the Fisheries Department (Ahmad 2021) are thriving. In search of a livelihood, her family moved to Karachi years ago.

Pushbacks are designed to prevent people on the move from accessing procedural and/or substantive legal safeguards. States thus tend to deny practising them and actively erase evidence of their occurrence. The resulting acute evidentiary challenges in any subsequent human rights litigation require adjustments to be made to the evidentiary framework. This chapter offers a four-branch matrix of what can logically happen to facts disputed in litigation. It then proceeds to critically examine how evidentiary issues have been handled in UNTB pushback case law, concluding the right findings have been made, but on a generally weak reasoning. The chapter finally stresses that the burden of proof should be shifted from complainant to state when two conditions are met: a context-proven to a high standard, such that the state can be presumed to have violated human rights; the complaint is linked to this context – with this proven prima facie. If the linkage is evidenced to a higher standard, the factual allegations must be recognised as established on the strength of the evidence –without any shift being alluded to, so as to avoid an upward slippage in the purposefully low standard of proof applied.

This chapter addresses evidence-related recommendations for the consideration of the UN treaty bodies. Written by three practitioners from the civil society sector, with direct experience of the individual communication procedure before the UNTBs, it also benefited from input from all the contributors to the volume, which it concludes. Part I offers normative reflections. It deals with legal questions, including: What should the applicable standard be when determining human rights claims? How should this standard vary according to the type of claim and the stage of the proceedings? In what circumstances and under which conditions should the burden of proof be shifted from the complainant to the respondent state? Part II deals with organisational, and thus more mundane issues, but it highlights how proper identification and communication of the applicable evidentiary concepts and norms are essential to a transparent, accessible and fair system, therefore necessitating proper resourcing.