Integrating human rights at the UNFCCC: The concept of vulnerability in Nationally Determined Contributions

Monika Mayrhofer

UN human rights bodies, in particular the Office of the High Commissioner for Human Rights (OHCHR) and the Human Rights Council (HRC), have repeatedly emphasised the importance of upholding human rights standards in climate policies and worked towards introducing human rights in climate action. For example, in the run-up to the Conference of the States in Paris in 2015 (COP 21) the HRC organised a full-day panel discussion with representatives from UN Member States, intergovernmental organisations, civil society organisation and academia. The results of the panel discussion including key messages on human rights and climate change were submitted to COP 21 by the OHCHR. The messages emphasise that climate change ‘will disproportionately affect individuals, groups and peoples in vulnerable situations including, women, children, older persons, indigenous peoples, minorities, migrants, rural workers, persons with disabilities and the poor.’[1] In addition, the OHCHR published specific Key Messages on the issue of human rights, climate change and migration highlighting that policies and negotiations on climate change and migration should ‘[p]rotect the human rights of people who are in particularly vulnerable situations’.[2] Until now, the OHCHR has worked towards integrating human rights at the UNFCCC by releasing statements, reports and other messages which aimed at highlighting the importance of human rights in climate policies.[3] In November 2022, a Toolkit for Practitioners on Integrating Human Rights in Nationally Determined Contributions (NDCs) was published. The toolkit was prepared by the OHCHR together with the Center for International Environmental Law (CIEL) with financial support of the German Federal Ministry for Economic Cooperation and Development and technical support by German Agency for International Cooperation GmbH (GIZ).

NDCs are a core instrument of the 2015 Paris Agreement. State Parties of the Paris Agreement are required to submit NDCs every five years laying down their efforts, achievements and objectives to reduce emissions and adapt to climate change. Against the background that the preamble of the Paris Agreement acknowledges that ‘[p]arties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’,[4] the toolkit aims at aiding ‘[s]tates, policymakers, development agencies, civil society, and other relevant stakeholders in integrating human rights in NDCs.’[5]

The Toolkit envisages three key steps for embedding human rights in NDCs: Firstly, the ‘planning process for the NDC should build on effective and inclusive public participation and be informed by the human rights obligations of the states’. Secondly, governments are advised to ‘communicate how human rights informed the domestic planning processes’. And, thirdly, the human rights obligations of States should be ‘reflected in and inform the implementation, monitoring, and evaluation of the NDC’.[6] The Toolkit consists of the following seven thematic sections: Human Rights Considerations Related to Ambition, Participatory Planning and Implementation of the NDC, Integrating Human Rights in the NDC, Mainstreaming Gender across the NDC, Integrating Indigenous Peoples’ Rights and Traditional Knowledge, Land Tenure and Community-Based Natural Resource Management and Aligning the NDC with the Imperative of a Just Transition. Each section consists of an introductory text and two to four recommendations and guiding questions which ‘can be applied and used as practical tools to inform the development and updating of NDCs in accordance with relevant international instruments.’[7] In addition, most sections also contain reference to key international instruments and examples of state practices in the form of excerpts from Nationally Determined Contribution submitted to the UNFCCC by different states.

The Toolkit uses the concept of vulnerability several times, however, mainly when quoting excerpts of NDCs of different states. In those parts, where vulnerability is mentioned, it is formulated as people or groups in vulnerable situations. The following observations regarding the use of the concept of vulnerability are noteworthy:

1) Lack of definition what is vulnerability and what are people and groups ‘in a vulnerable situation’ and association with certain groups

The document does not provide guidance how the concept of vulnerability is defined. The toolkit uses the phrase people or groups ‘in vulnerable situations’ instead of attaching the term of vulnerability directly to certain ‘vulnerable groups’. Yet, although the toolkit tries to avoid the reference to ‘vulnerable groups’ the concept ends up to be indirectly attached to certain groups. Such groups explicitly mentioned in association with vulnerability in the context of the toolkit are ‘peasants, women, youth, Indigenous Peoples, and local communities’.[8] The phrase ‘persons in vulnerable situations’ is also used as a residual category for people ‘disproportionately affected by climate change, including, inter alia, migrants, children, women and girls, Indigenous Peoples, and persons in vulnerable situations?’[9]

2) Victim/protection-frame and prioritisation of people in vulnerable situation

It has been repeatedly pointed out that people affected by climate change and in particular people moving in the context of climate change are portrayed as helpless and passive victims who are in need of protection.[10] Human rights approaches are said to play a crucial role in perpetuating this victim-protection narrative.[11] The discursive emphasis of this frame is on the suffering and abuses (of rights) of specific persons and groups and on policies and regulations that provide protection to affected individuals and groups. The concept of vulnerability is assumed to be an important part of this narrative.[12] Also the toolkit mobilises this narrative. For example, it supports ‘efforts to protect the rights of those in particularly vulnerable situations from the adverse effects of climate change and ensure that they are the primary beneficiaries of climate action.’[13] The latter also indicates that the toolkit envisages a priority treatment of ‘those in particularly vulnerable situations’ as they are suggested to be the ‘primary beneficiaries of climate action’. Yet, the toolkit fails to determine how this should be done and how this approach is compatible with the right to equality and non-discrimination.

3) Awareness that vulnerability frames individuals and groups as passive and as a problem that has to be addressed

In section 2 on participatory planning and implementation of the NDC, the concept of vulnerability is also used in the introductory text with reference to the Intergovernmental Panel on Climate Change (IPCC). The section points out that the IPCC has recognised ‘that inclusive and participatory climate policy planning results in greater social co-benefits and more resilient and effective climate action’ and points out that according to IPCC’s Sixths Assessment Report ‘risks from climate change can be reduced through rights-based approaches that focus on capacity building, meaningful participation of people in vulnerable situations, and their access to key resources, including financing, to reduce risk and adapt.’[14] However, one of the ‘Guiding Questions’ at the end of section 2 is formulated in the following way:

‘Is the role of different segments of society as agents of change identified and upheld by the NDC, as opposed to only addressing these populations as groups in vulnerable situations?’[15]

This question indicates that the authors are aware that ‘only addressing (…) populations as groups in vulnerable situations’ is in contrast with assigning these groups a proactive role and perceiving them as agents of change. It acknowledges that framing groups as vulnerable means to perceive them as a problem that has to be addressed and, thus, also is based on a hierarchal understanding of the addressor and the addressee of the problem rather than recognizing these groups as equal and proactive actors.

Sources:

• [1] OHCHR, Understanding Human Rights and Climate Change, Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework on Climate Change, 2015, accessed 19 August 2022 https://www.ohchr.org/Documents/Issues/ClimateChange/COP21.pdf.
• [2] OHCHR, OHCHR’s Key Messages on Human Rights, Climate Change and Migration, accessed 19 August 2022 https://www.ohchr.org/Documents/Issues/ClimateChange/Key_Messages_HR_CC_Migration.pdf.
• [3] For an overview, see https://www.ohchr.org/en/climate-change/integrating-human-rights-unfccc (last visited May 9, 2023).
• [4] United Nations, Paris Agreement, 2015, accessed 25 October 2022 https://unfccc.int/sites/default/files/english_paris_agreement.pdf.
• [5] Office of the High Commissioner for Human Rights et al., Integrating Human Rights in Nationally Determined Contributions (NDCs), 6, accessed 9 May 2023 https://www.ohchr.org/sites/default/files/documents/issues/climatechange/publications/2022-12-09/Integrating-Human-Rights-in-Nationally-Determined-Contributions_Toolkit-for-Practioners.pdf.
• [6] Office of the High Commissioner for Human Rights et al. ‘Integrating Human Rights in Nationally Determined Contributions (NDCs)’.
• [7] Office of the High Commissioner for Human Rights et al. ‘Integrating Human Rights in Nationally Determined Contributions (NDCs)’.
• [8] Ibid., 28.
• [9] Ibid., 16.
• [10] Hedda Ransan-Cooper et al., Being(s) framed: The means and ends of framing environmental migrants, 35 Global Environmental Change 106 (2015).
• [11] Robert Oakes, Soumyadeep Banerjee & Koko Warner, 9 Human mobility and adaptation to environmental change, 2020 World Migration Report (2020), https://onlinelibrary.wiley.com/doi/10.1002/wom3.19 (last visited Aug 11, 2022); Ransan-Cooper et al., supra note 15 at 254; Monika Mayrhofer, Victims, security threats or agents? – Framing climate change-related mobility in international human rights documents, 8 International Journal of Law, Language & Discourse 9 (2020).
• [12] Ransan-Cooper et al., supra note 15 at 109.
• [13] Ibid., 14.
• [14] Ibid., 10.
• [15] Ibid., 12.