The Human Rights Claim in Climate Justice: An Argument for Reintroducing the Principle of Anti-Discrimination and Strengthening the Anti-Domination Principle When Children Go to Court
25 J. Gender, Race & Just. 439 (2022)
Human rights, identity constructions, and climate justice come together in the Paris Agreement. This Agreement gave rise to an unprecedented level of treaty-based individual claims. These claims have been filed in national, regional, and international forums across the world. This result was the intention of the drafters of the Paris Agreement: to generate a bottom-up force to motivate States to take action to address climate change.
One unfortunate aspects of the Paris Agreement, however, is that it is the only human rights treaty without a formal protection from discrimination. The article begins with an original retracing of the history of the climate justice regime. By following this evolution, it becomes clear that human rights and environmental justice were originally joined together, and it was in the moment of separation the anti-discrimination protection was lost, a loss that carried over into the climate justice regime. For the climate justice movement to not include a formal discrimination protection in the Paris agreement is to forget its history by leaving out the very group of people that provided the link between rights and the environment in the first place. This link between rights and the environment come out of Black peoples’ struggle in a postcolonial fight for liberty against apartheid and colonial domination, and a civil rights struggle in the USA. On a positive note, this article sees that children have unprecedented individual access to the arena of international human rights law through the Paris Agreement. This is also what makes the Paris Agreement a treaty of mixed messages: it grants rights to children while at the same time it eliminates the discrimination protection of the people that provided the link between rights and the environment in the first place. This internal tension of the treaty needs to be further explored if we are to understand its full potential and its severe weakness.
To better understand how identity is argued in human rights climate change litigation this article relies on the data base of the Columbia Climate School Sabin Center for Climate Change for its textual analysis on human rights climate change cases. The material reviewed here is selected from fifty petitions. Out of the fifty petitions, twenty cases were selected based on two criteria: they were composed in, or translated into, English and they were filed by non-state actors. The result was surprising; half of the petitions identified being a child as a legal ground for their claim.