Non-regression in Climate action and the Rights of Present and Future Generations
By: Pranav Ganesan and Jose Rodriguez
Introduction
Grim projections highlighting the ineffectiveness of states’ active climate commitments are gaining mainstream attention. In this background, any backsliding or downgrading of states’ climate change targets or actions should be viewed as a matter of grave concern. Indeed, findings that most states have committed to emissions reductions that are far less than what ought to be their fair share arguably suffice to constitute a serious human rights issue, engaging the shared responsibility of those states. In this context, it was not surprising that Mexico and Brazil’s updated climate targets (communicated in the run-up to COP 26) drew heavy criticism from civil society and were challenged before courts. Litigants in both cases relied, among other legal grounds, on the ‘principle of non-regression.’ Non-regression is a principle that has solid foundations in human rights and labour laws- requiring that states abstain from going back on the current degree of protection of human rights, including the right to a healthy environment. In the context of environmental law, the principle would act as a countervailing force against decisions that hamper the existing levels or state of environmental protection.
In this blog-post we seek to unpack the principle of non-regression, clarifying its legal status under international environmental law and human rights law, and analyzing the potential of this principle in protecting the rights of present and future generations in the face of regressive climate policies.
Non-regression in international environmental law
In international environmental law, the non-regression principle does not have a long history. The first time it was explicitly recognised was in the Rio +20 outcome document “The future we want” (See [20]). Despite its growing recognition in several legal systems, reflecting a “world movement in favor of the non-regression principle,” its legal status as a general principle of law like that of precaution or prevention is not certain. The principle was included in the ‘Draft Global Pact for the Environment’- a proposed treaty of a constitutional nature, clarifying the legal status and content of environmental principles, and filling gaps in the area of international environmental law. However, given the insufficient support for such a treaty in the UN General Assembly, it remains to be seen how this principle develops in terms of its normativity and content. That said, its recognition in the 2015 Paris Agreement signals that it will become a new major principle of international environmental law in the future.
The Paris Agreement is the first multilateral treaty of a universal nature that recognises this principle, in a stronger form than articulated in the preceding paragraph. Article 4.3 of the Agreement creates a normative expectation that States successive climate targets (communicated in compliance with the Agreement’s core legal obligation under Article 4.2) will reflect a progression beyond its previous communication. This means that the Agreement expects states to increase (and not merely maintain) the ambitiousness of their targets over time. But Article 4.3 does not suffice as a standalone legal ground in challenging downgrading climate commitments. It is here that human rights law could serve to fill this accountability gap left by the Paris Agreement.
Non-regression in human rights law
The principle of non-regression (also known as non-retrogression) is a central component of the obligation on states to ensure the progressive realization of economic and social rights. Not only legislation, but also ‘strategies, policies and programmes’ must be enacted in a manner so as to not detract from established levels of enjoyment of human rights unless “justified by reference to the totality of [socio-economic] rights” (General Comment No. 3, Committee on Economic Social and Cultural Rights (‘CESCR’)). In addition, jurisprudence of the Inter-American Court of Human Rights (IACtHR) builds upon the CESCR’s interpretive work illustrates how the principle may be applied in assessing whether state action comports with human rights law (e.g. the Guatemalan government’s inactivity in providing direct health care to patients of HIV). Moreover, the connection between this principle and environmental protection is rather straightforward. As an unequivocal recognition of this connection, the 2018 Escazu Agreement explicitly identifies non-regression as a guiding principle in Parties’ protection of the substantive human right of individuals and groups to live in a healthy environment (Article 3, read with Article 4.1). Complainants in the Mexican case referred to above were successful in challenging the state’s regressive climate target on the basis of the non-regression principle. The district court’s approach in this case was similar to the approach of another Mexican court in a case involving the government’s policy which shifted its priority from renewable energy to carbon-based fuels which was adjudicated a violation of the human right to a healthy environment on account of the non-regression principle (National Electric System policy case).
Justifiable climate regression?
In the context of the climate emergency, a regressive measure can only be justified if it is taken with the purpose of protecting other human rights. However, given that climate change will severely affect the enjoyment of human rights of future generations, regressions in climate policy must take such rights into account. Here, it is not just the impacts of climate induced slow-onset events (like sea-level rise and water scarcity) and sudden on-set disasters (hurricanes and blizzards) that are relevant. Also relevant are the implications of the state’s climate change response measures as well.
Important judicial pronouncements such as Urgenda from the Netherlands and Neubauer from Germany have affirmed the existence of a duty to ensure that states’ individual commitments and actions reflect a fair share of global efforts to address climate change. Regressive climate action means that future generations will have to face tougher restrictions of the enjoyment of their human rights (particularly their liberties) (See Neubauer et. al. v. Germany). To put it simply, every state has a finite amount of greenhouse gas emissions that they can emit over the years (the emissions budget). And increasing the amount of emissions that will be generated now means that future populations will have to meet their needs with a lesser portion of the budget.
Therefore, an analysis of the proportionality of the regressive climate action or decision ought to go beyond weighing the immediate effects on the totality of human rights and necessarily include its effects on the rights of future generations. As the Mexican court in the National Electric System policy case pointed out- the regressive energy policy in question was capable of setting into motion several other public policies and actions in violation of the individual and collective human right to a healthy environment. Thus, should there be a need for the state to downgrade its climate commitments, applicable obligations under human rights law require that such a decision should, as a minimum, take into account intergenerational equity by assessing the impact of the regressive measure on the enjoyment of the human rights of generations to come.
Within the context of the climate crisis, the principle of non-regression is a safeguard to the enjoyment of human rights of the present and future generations. It creates a “strong presumption” that retrogressive measures are impermissible (General Comment No. 13, CESCR). At its core, it bars States from adopting measures that would be inconsistent with the current threshold of environmental protection without compelling scientific justification and an adequate proportionality assessment. Consequently, non-regression imposes a reasonable limit to regressive climate policies and NDCs. Despite its application in a few domestic cases, there is little jurisprudence on how exactly a court or tribunal should determine whether any retrogressive measure (let alone one relating to climate change) is impermissible. Therefore, it is all the more likely that in its advisory opinion on the obligation of states in protecting the rights of present and future generations from the adverse effects of climate change, the International Court of Justice’s contribution towards the development of this principle would be pathbreaking. Its proven success in domestic disputes, coupled with its centrality in international human rights law makes this principle a key aspect that the Court should address in its advisory opinion.
About the Authors:
Jose Daniel is a young Costa Rican lawyer who is passionate about enabling climate justice through international law. He holds an LLB with an emphasis in Environmental Law from the University of Costa Rica. Since 2017, he has worked as a Legal Assistant to the Merits Division of the Inter-American Court of Human Rights.
Pranav Ganesan is a Ph.D. candidate at the University of Zurich. His research relates to international environmental law and human rights.
Both Jose and Pranav are also part of the WYCJ Academic Taskforce.
