Climate engineering through the lens of human rights law
Authored by: Ben Howkins and Julie Vinders
Reviewed by:Corinna Pannofino and Anaïs Resseguier
Technological innovation can both enhance and disrupt society in various ways. It often raises complex legal questions regarding the suitability of existing laws to maximise the benefits to society, whilst mitigating potential negative consequences. Some emerging technologies even challenge us to rethink the ways in which our fundamental rights as human beings are protected by law. For example, how do your rights as an individual stack up if your local environment is affected by climate engineering activities aimed at addressing global climate change?
Whilst aimed at tackling climate change, climate engineering may in itself impact human rights in a variety of ways, typically either by way of enhancement or interference. Human rights relevant to climate engineering can be split between substantive rights – which are freestanding rights possessed by individuals (such as the right to life, or health) – and procedural rights, which relate to administrative procedure and enforcement of substantive rights (such as the right to be informed or have access to legal remedies).
Substantive human rights
The substantive rights most relevant in the context of climate engineering include the right to life, the right to a healthy environment, the right to health, the right to access food, and the right to water. Climate engineering is intended to mitigate the harms of climate change and may therefore enhance some of these substantive rights. However, it could also in itself result in serious environmental harms affecting human lives and their environment. The right to life encompasses threats to the quality and dignity of life, including those related to human health and access to food and water. Climate engineering activities have the potential to, albeit unintentionally, adversely, and potentially irreversibly affect the climate in some locations. This may affect precipitation patterns, possibly inducing drought conditions and reducing food and water security, which can either directly or indirectly affect the right to life, a healthy environment, health, food and water.
Rights related to scientific researchA subset of substantive rights relevant to climate engineering pertains to scientific research. States are required to respect the freedom indispensable for scientific research and everyone has the right to benefit from scientific research. Additionally, research participants are protected by various rights, including the general prohibition on torture and cruel, inhuman or degrading treatment. Thus, whilst researchers are freely able to develop climate engineering technologies, any testing is subject to obtaining free and informed consent from all impacted individuals. In the context of real-world climate engineering testing, however, any resultant effect to the Earth’s climate system is unlikely to be contained within a specific area, due to its global scale. This means that communities worldwide may essentially become research participants. It follows that the practical difficulties of obtaining consent from prospective research participants, as well as the adequate protection of intellectual property rights related to innovation and research, are two of the main legal challenges in relation to climate engineering technologies.
Public participation and procedural rightsOn the issue of obtaining consent for climate engineering activities from all impacted individuals, procedural human rights offer a set of participation rights, which include the right to information, the right to participate in public affairs, and the right to access legal remedies. Information about climate engineering activities, particularly from public bodies, falls within the remit of the right to information. The European Court of Human Rights has assessed the right to environmental information in relation to the right to respect for private and family life, as well as the right to freedom of expression, and observed that these rights may be violated if a State fails or refuses to provide information. Furthermore, everyone has the right to engage in public affairs, including public debate and decision-making in relation to climate engineering. States should give citizens the possibility to participate in public affairs and exert influence through public debate and dialogue. In addition, the right to access legal remedies seeks to ensure individuals have access to legal recourse in the event of alleged human rights violations. This means that, according to international and EU law, individuals should have legal recourse if they were not adequately informed, involved in public dialogue, or their informed consent was not obtained in relation to climate engineering activities. Individuals also have a right to recourse if their substantive rights are violated by climate engineering.
Next in TechEthos – is there a need to expand human rights law?
The study highlights the importance of bringing a human rights law perspective into the development of new and emerging technologies, including climate engineering. The human rights impact assessment helps to ensure that such technologies develop in a manner that respects human rights, while also enabling the identification of potential gaps and legal uncertainties early on in the development stage. The analysis also raises the question as to whether further legislation may be required to address these gaps. Crucial to this question is the need to strike a balance between ensuring technological development does not interfere with fundamental human rights protections, and avoiding overregulating emerging technologies at an early stage, and thereby stifling further development.