 Good evening, everyone. Welcome. My name's Steve Bennell. I'm the director of the College of Sustainability here at Delhousie, and it's my pleasure to welcome you to the Environment Sustainability and Society Lectures. Before we begin, I would like to acknowledge that we gather here tonight on the unceded and traditional territory of the Big Maw people and remind us that we are all treaty people here. Tonight is one of our special occasions where the College of Sustainability and the Lecture series hosts a lecture that is an important lecture for one of our groups of fellow travelers on campus. In this case, the Marine and Environmental Law Institute. And we have enjoyed this collaboration. It's brought a number of great speakers over the years who bring perspectives from the legal international law and marine law and environmental law perspectives to our understanding of sustainability and the ways we can move forward towards making a sustainable future. This lecture is offered in memory of Douglas Johnston, and I'd like to introduce David Vandersweg, who's currently the Associate Director of the Marine Environmental Law Institute, and holds the Canada Research Chair in Ocean Law and Governance here at the Schulich School of Law at Delhousie. He'll tell us a bit about this tradition. Thank you. Just to start out with a few words about Douglas Johnston, he basically made great contributions, not only to the world of scholarship, but also to Delhousie. He taught for 15 years here at Delhousie from 1972 to 1987. He founded the Law School's Marine Environmental Law Program in 1974. And it still flourishes today as the Marine Environmental Law Institute and its research program. And basically, he also introduced the first interdisciplinary oceans program at Delhousie, the Ocean Studies Program in the 1980s into 1990s with one of the largest Shirt Grants granted back in the 1980s. Dr. Johnson is still known as one of the world's greatest scholars in law of the sea and international environmental law. He published over 30 books and close to 100 articles in international law field, including a classic book in 1965, International Law of Fisheries, one of the first international fisheries books. And he actually did it as part of his Yale Law School doctoral dissertation. He wrote a couple books on marine boundary delimitation theory and practice. And he finally, in 2008, published one of his greatest works. I carry it everywhere I go. It's about 800 pages. And it's called the Historical Foundations of World Order, The Tower and the Arena. And it goes all the way back in history of international law. And it's one of the comprehensive books on international law you'll ever find anywhere. It actually was posthumously awarded by the American Society of International Law as one of its major book prizes as well. Professor Johnson also, I think, made Dalhousie famous around Asia Pacific. He found what was called C-Paw, the Southeast Asian program in ocean law, policy, and management, based in Bangkok, Thailand. And it held training programs, workshops, around Asia from the 1980s into 1990s. Now tonight, we also have our speaker here. And I could go on one hour about Professor Alan Boyle, but we only have a minute or so, so I'll just make a few points about our speaker. Basically, he is emeritus professor of public international law at Edinburgh University. He's also a practicing barrister lawyer. And he's been involved in at least 10 cases before international tribunals, including the World Court and international tribunal on the law of the sea. I looked at his resume. And it seemed to me about three of the major famous cases are the Paltmills case. Basically bought by Argentina against Uruguay. Basically decided by the World Court in 2010. He was legal counsel there for Uruguay. And that involved really the whole question of can Uruguay go ahead and build a couple of Paltmills on a shared river that might pollute Argentina. He's also involved with the Japanese whaling case, decided by the World Court in 2014. He represented Japan, where the question there was, was Japan's whaling really scientific or not? Was it really valid under the International Whaling Convention? And then finally, he also represented the Philippines in the famous South China Sea arbitration. And again, Philippines there was challenging China's exertion of jurisdiction over a number of the reefs in the region, for example, and also building artificial islands damaging the marine environment. Professor Boyle's also one of the leaders in international environmental law and law of the sea writing. And I just will hold up one of his major publications among many. It's called International Law on the Environment, third edition, with Patricia Burney, himself, and Catherine Reggwell. It's the leading text in international environmental law around the globe. And he's undertaken his fourth edition. I'll stop there and leave it to our speaker then. And we welcome you here to Halifax and look forward to your lecture. Can I start by expressing my pleasure of being here and welcoming you to come here to listen to me on this rather cold and windy evening in Halifax? I think I should also thank both David and Steven for the invitation, the College of Sustainability and the Marine Environmental Law Institute for inviting me here. They have certainly looked after me very well today. And it's been a pleasure to come here. I've never been to Halifax before. I look forward to seeing a little bit of it tomorrow. Douglas Johnson was a pioneer in international environmental law on the law of the sea. My own publications do cite his works. And he was one of the key authors that I read as a young academic. Unfortunately, young was an increasingly long time ago. It's therefore a particular honor to give this lecture today. And it is a pleasure finally to visit Dalhousie. I've known, I think, all of the Marine Environmental Lawyers here, or at least most of them for quite some time. We bump into each other at conferences. And this is a university whose reputation for scholarship and research on the marine environment is well established. And as far as I can see, we'll continue to be well established in the future. My lecture today is not however going to be about the marine environment as such, but about climate change and human rights. Climate change, however, is not a subject that anyone with an interest in the sea can ignore. Nor, as will become obvious, is it a subject that human rights lawyers can ignore, although some of them do. And they can't ignore it because climate change is a threat to human life on earth as we know it today. If you take reports, including the most recent one, from the Intergovernmental Panel on Climate Change, they conclude that evidence of changes in the climate system, they say, is unequivocal with the atmosphere and the oceans getting warmer, with glaciers and the polar ice caps melting, sea levels rising, and atmospheric greenhouse gas concentrations at levels unprecedented in the past 800,000 years. 800,000 years, President Trump might want to take note. The oceans have mitigated climate change. They have absorbed at least 30% of the anthropogenic CO2 emissions. That has made them warmer, it's made them more acidic. The Kyoto Protocol that I'm sure you've all heard of, which was adopted in 1997 as a first step towards stabilizing the climate, has been ineffective in reducing the increased concentration of atmospheric greenhouse gases. Canada didn't help by parting company with the protocol. On present trends, even if the 2015 Paris Agreement is fully implemented by all parties, it may be difficult to keep the increase in global temperatures below two degrees centigrade, let alone achieve the target of 1.5 degrees. Already, we can see that global warming is causing desertification, extreme weather, flooding, loss of biodiversity, changes in the distribution and abundance of fish stocks. Various human rights are potentially affected. The right to life itself, to private life, to property, the right to water, to food, to an adequate standard of living. Indigenous peoples, inhabitants of low-lying islands and coastal areas, nomadic people, subsistence farmers, fishermen, may all be particularly vulnerable to the effects of climate change. And so obviously, will the polar bear, the penguin and other wildlife species. But everyone, every one of you, particularly anyone significantly less than 65, will be vulnerable to climate change if attempts to control and mitigate its causes and effects do not succeed. This, if you want one, is a vision of unsustainable development over the long term. Thus, the fundamental challenge that climate change poses to human rights is not so much to those rights here and now, but rather to future generations and humanity itself. Short of nuclear war, there is simply no bigger challenge facing sustainability of life on Earth. More than 30 years since it was, it's more than 30 years since it was first articulated, but the concept of sustainable development remains infinitely malleable. There are some who've argued that it's a principle of international law or even customary international law. But the ICJ in the International Court is rather more cautiously simply referred to it as an international objective. However defined, its implementation obliges governments to think in different terms from those to which they're accustomed. Social, political, and economic choices abound. What weight should we give to natural resource exploitation over nature protection? To industrial development over air and water quality? To land use development over conservation of forests and wetlands? To energy consumption over the risks of climate change? The sustainable development goals adopted a few years ago by the United Nations recognized that it is for each state to make these choices. That freedom may result in wide diversities of policy and interpretation, as different governments and international organizations pursue their own policies or their own priorities and make their own value judgments. And those judgments may be moderated but only to some extent by international agreements on matters such as climate change and the conservation of biodiversity. The term sustainable development is used throughout the 1992 Rio Declaration and Agenda 21. But it was not until the 2002 World Summit on environment and on sustainable development that anything approaching a United Nations definition could be attempted. Three interdependent and mutually reinforcing pillars were identified, economic development, social development, and environmental protection. In 2015, the UN adopted its set of sustainable development goals as part of an agenda for sustainable development. That agenda focuses on economic and social development, on reduction of poverty. Oops, I think I've managed to switch this. There we are. On reduction of poverty, sorry, let me begin that again. That agenda focuses on economic and social development. Reduction of poverty and hunger are the preeminent objectives. But the goals do cover almost every aspect of international policy. But while the preamble to the agenda fully recognizes the seriousness of the environmental challenge, only three of the 17 sustainable development goals, and you can see the three on screen now, are of particular relevance to the environment. The first, of course, as you can see, commits states to take urgent action to deal with climate change. And at least in form, they've now done so by adopting the 2015 Paris Agreement. The second one, as you see, deals with conservation and sustainable use of the oceans. And the third addresses marine terrestrial ecosystems, sorry, terrestrial ecosystems, forests, wetlands, and biodiversity. None of this adds anything new to international environmental policy or law, but it does serve to reaffirm existing commitments within the context of a process whose outcomes the UN will continue to keep under review. And the expectation is that the process of reporting will engender peer pressure, leading states to deliver on their promises. Sadly, President Trump hasn't quite understood that point. Now, it is undoubtedly true that the sustainable development goals have given the concept of sustainable development some concrete content. But they may also have underestimated the seriousness of the environmental problems the world continues to generate. This is the point made cogently by one of the leading environmental economists, Dieter Helm at Oxford, who observes and I'll quote, it's not hard to make the case, he says, that the process of destruction of natural capital has gone too far and that renewable natural capital as a whole is already well below the optimal level. The state of core ecosystem services, he says, from climate to fresh water and soils is already a serious cause for concern. And last week's IPCC report on the consequences of not meeting the 1.5 degrees target on the Amplify Helm's conclusion. The key argument in this critique of the UN's conception of sustainability is that natural capital is not infinitely substitutable by manmade capital. We can't keep chopping down forests and building supermarkets. And that some natural capital, including the oceans and the global climate must be preserved in order to meet the needs of future generations and prevent ultimate catastrophe. Helm argues that international policy has therefore been overly focused on present generations and that we need a much stronger focus on the inheritance of future generations, which basically is most of you and you're as yet unborn and unconceived children. Climate change and the consequences for global biodiversity in the oceans and water supplies illustrate his point. Put simply, long-term environmental problems have been given not nearly enough weight in the balance of environment and development. I have to say I can only agree with Helm that the emphasis of UN policy is still on short-term economic growth, although some states have tried to push for something better. So that is the contested, so in summary, that is the contested policy background against which we can now view the most recent agreement on climate change, the 2015 Paris Agreement. And I've given you the key elements of article two there. The Paris Agreement, and it's interesting that is its title, it is not. Treaties normally tell you what they're about. This one doesn't say anything at all. It sets out, however, a new agenda for implementing the UN Framework Convention on Climate Change and the UN Sustainable Development Goals, post-KEO2. Firstly, it really does two key things. Firstly, it seeks to hold global temperature increases to well below, those are the words it uses, two degrees C and if possible, below 1.5 degrees. Now it tries to achieve this objective principally by committing all states parties to, and I'll quote, prepare, communicate, and maintain successive nationally determined contributions to reducing greenhouse gas emissions. So it's not like Kyoto, which actually set out specific emissions reductions for each party. Here, each state decides for itself. Secondly, the Paris Agreement seeks also to enhance adaptation and climate resilience by promoting low carbon emissions development. And it tries to achieve this objective mainly through provision for cooperation and capacity building and by reiterating the UN Framework Convention's provisions on financing. So there's an implicit assumption in the agreement that sustainable development requires low carbon development and a cap on global temperature increases. The agreement retains the controversial concept of common but differentiated responsibility on which the climate regime has so far been based. The idea in other words that developing states do rather less than developed states. But the key point about Paris, which differentiates it from Kyoto and the UN Convention crucially is that all parties, not just the developing states, are expected to prepare some level of contribution to ensuring that greenhouse gas emissions peak as soon as possible and thereafter reduce rapidly in this second half of the century. So the Chinese and the Indians have to do something. They're involved as much as the rest of us. The precise contribution of each state will, as I said, be determined unilaterally by each party in accordance with its capabilities. But the understanding is that reductions are in greenhouse gas emissions are to increase progressively in so far as each country's circumstances lie. But, and these are the words that are used on the basis of equity and in the context of sustainable development and efforts to eradicate poverty. So developed states will still take the lead under Paris but developing states are no longer exempt from making any emissions reductions as they were under Kyoto. Although exemption may have been an understandable policy choice in 1992 or 1997, you do have to realize that by 2012 China was by far the world's biggest greenhouse gas emitter and today it's even more the world's biggest greenhouse gas emitter and India is now the world's third largest greenhouse gas emitter. Together they're combined emissions even in 2012 and it's worse today are nearly 20% more than those of the US. If climate change is to be tackled successfully then China and India and other developed sort of other industrialized developing states like for example Brazil have to be brought into the greenhouse gas emissions reduction regime. Paris reflects that reality. It recognizes that climate change is not caused only by developed states and that it cannot successfully be addressed by simplistic ideas of historic responsibility. So this evolution in the UN regime is the most important milestone and the most important achievement of the Paris agreement. That leads us to the obvious question. Will Paris be more successful than Kyoto at reducing greenhouse gas emissions? On the positive side, all of the principal greenhouse gas emitters now share a common commitment to a verifiable objective defined by reference to specific global temperatures. On the negative side, global temperatures will continue to rise well beyond two degrees centigrade unless all states progressively and significantly start and continue to reduce their greenhouse gas emissions. The agreement therefore could work if states deliver what they've promised or it could fail by a very large margin if they fail to deliver at all. That means that those who want to influence the outcome, who want to drive states to deliver on their promises can still do so. And that includes, this is where human rights comes in, that includes the human rights community. So let's move on to human rights and the environment. Why should environmental protection be treated as a human rights issue? Well, there are several possible answers to that question. Most obviously, a human rights perspective directly addresses environmental impacts on the life, health, private life and property of individuals like you and me. Rather than on states or the global environment, which is what most of international environmental law has historically been concerned with. Secondly, it may serve to secure higher standards of environmental quality based on the obligation of states to take measures to control pollution, affecting health and private life and other human rights. Air pollution is the obvious example. If air pollution is bad enough, it will kill you. Try going to Delhi or Beijing or even frankly to London where air pollution is getting worse and worse and it's a real health problem. Human rights also provides, human rights law also provides a framework in which detrimental impacts on food and water security can be addressed. Governments become directly accountable for their failure to regulate and control environmental nuisances, including those caused by corporations, including the emission of greenhouse gases. They become accountable too for facilitating access to justice and enforcing environmental laws and judicial decisions. And lastly, the broadening of economic and social rights to embrace elements of the public interest in environmental protection has given new life to the idea that there is or should be a right to sustainable or ecologically signed environment. An early attempt to adopt a UN declaration on human rights and the environment terminated in 1994 when an ambitious but politically controversial draft failed to secure the backing of states. And then nothing happened for another 20 years, well, 15 years. And then in 2009, the Office of the High Commissioner for Human Rights in Geneva returned to the problem and a report from that office emphasized that while human rights treaties do not refer to a specific right to a safe and healthy environment, the United Nations Human Rights Treaty bodies, all recognize the supervisory bodies, all recognize the intrinsic link between the environment and the realization of a range of human rights. And they went on to identify what they described as three theoretical approaches. At the first, they said, saw the environment as a precondition to the environment of human rights. If you haven't got an environment that will sustain life, well, you're not gonna have many human rights. The second saw human rights as tools to address environmental issues procedurally and substantively. And the third sought to integrate human rights in the environment under the concept of sustainable development. And their report is quite interesting on all of those topics. It's worth reading. As a result of that, in 2012, the UN Human Rights Council, which is a political body composed of states. And if any of you read newspapers still, you will realize that not everybody that sits on it is necessarily terribly good at protecting human rights. Some of these are ace torturing places. However, the Human Rights Council appointed an independent special rapporteur on the substantive and procedural dimensions of human rights obligations related to the environment. He's an American professor called John Knox. He used to be one of the most conservative international environmental lawyers I'd ever encountered that he is an American. But actually, he's done an extremely good job. And his output has not been at all conservative. And we'll look at what he's done in a moment or two. His reports, and there have been at least four of them. I had the most recent last December and he's now retired from that role. But his reports have focused, among other things, on the procedural rights enshrined in the Orhus Convention, on the obligation to assess environmental impacts, on the obligation to ensure a reasonable balance between economic development and environmental protection. He notes that there is no global agreement setting out an explicit right to a healthy or satisfactory environment, although that concept is in the African Convention and indeed in a protocol to the Inter-American Convention. But he also notes the later conferences on sustainable development in Johannesburg in 2002 and in Rio in 2012. I did not proclaim a right to a healthy environment either. So it is a very notable development then that his final report in 2018 does advocate that the UN should recognize a right to, and these are his words, a safe, clean, healthy and sustainable environment. And he derives that largely from a study of existing human rights law, both national and international. That leads on to the obvious question. Does human rights law have any role in the process of tackling global climate change? The Office of the High Commissioner in Geneva believes that it does and it made some submissions to the Paris Conference. If you look at its website, its current policy asserts a number of things. It says that it's critical to apply a human rights-based approach to guide global policies and measures designed to address climate change. In its submission to the Paris Conference, it set out 10 considerations. In Chiralia, these include preventing negative effects on human rights, ensuring accountability and effective remedy, guaranteeing equality, non-discrimination and informed participation in decision-making. It goes on to talk about cooperation to ensure an equitable outcome that delivers a low-carbon, climate-resilient and sustainable development. The policy asserts finally that only by integrating human rights in climate actions and policies and empowering people to participate in policy formulations can states promote sustainability and ensure the accountability of all duty-bearers for their actions. And there's some of what they say in summary. The human rights community is a very late arrival at the climate change ball. They must have found it very difficult finding a taxi or even a carriage. But if climate change is the problem, is the High Commissioner's vision of the role of human rights law either plausible or realizable? Now I'm going to suggest that for several reasons it's far from clear that it's either of those things. First, the whole substance of the High Commissioner's submissions to the Paris negotiations is anthropocentric insofar as it focuses only on the harmful impact of climate change on the rights of humans rather than on the environment as such. This is precisely the approach which ecological theorists have opposed because they believe not unreasonably that it's insufficiently comprehensive and inconsistent with ecological and biological reality. By looking at the problem in moral isolation from other species in the natural world, we simply reinforce the assumption that the environment and its natural resources exist only for immediate human benefit. And as we saw earlier, we cannot afford to ignore the fundamental value of natural capital, the climate, biodiversity, ecosystems, the marine environment and so on in sustaining life on earth. And the preamble to the Paris Agreement recognizes that point. So while it might be tempting to describe the Office of the High Commissioner's vision of human rights as conceptually imperialist, a kinder view, and I usually prefer the kinder view, is that it's simply myopic. There is no inherent reason why a human rights perspective on climate change should not over the long term seek to reconcile human rights and environmental values. Existing human rights law already recognizes that environmental protection is a legitimate aim of public policy that in some cases may constrain or limit the exercise of the right of possessions and property and other human rights. There is plenty of case law in regional human rights decisions to that effect. So the Office of the High Commissioner is really setting up here an exclusivity from the human rights perspective that is really not one shared by human rights courts or by the Paris Agreement. Secondly, and I think that's perhaps the more important point, beyond the dogmatic reiteration of the fundamental centrality of human rights law, no attempt is made by the Office of the High Commissioner to explore or explain in any detail how its emphasis on fulfilling human rights is supposed to save the climate from excessive warming in decades to come. Stopping torturing people is a good thing, but it won't save the climate. I wasn't aware that torture instruments contributed a great deal of greenhouse gas emissions, although maybe we should have some scientific evidence on that, but you get my point. The submissions do not go into any detail and not surprisingly, those who drafted the Paris Agreement evidently didn't share. The Office of the High Commissioner's conception of human rights centrality to the problem. That's right from the start. We have a relationship that's poorly thought out and on which only a very limited consensus exists. So what does the Paris Agreement say about human rights? Well, that's the sum total. You can read the paragraph for yourself. It certainly acknowledges that climate change is a common concern of human rights and that the parties should, these are the key words I think, respect, promote, and consider their respective obligations on human rights. You can read the rest of that. Despite attempts to achieve more during the negotiations, this is all that the agreement says on the subject. As Levanya Rajamani, one of the leading scholars on climate law has observed however, she says this recital, that's the preamble, carefully circumscribes the impact of an explicit reference to human rights. Human rights law is neither incorporated into the Paris Agreement by the wording, nor does it explicitly constitute a standard by which the adequacy of efforts taken by the parties to implement Paris might be judged. And there are several indicators in this of a downgrading of the human rights perspective. The key paragraph is in the preamble. It's not in the body of the treaty, which is where you would expect it to be if it was placing any obligations on states. It uses the word should rather than shall, which the lawyers is a bit of a giveaway. You don't necessarily have to do this. Might be a nice idea, but that's about all. The phrase respect, promote, and consider further minimizes any sense that the agreement is reiterating a commitment to fulfill or protect human rights. And those are the words that human rights treaties normally use, not respect or consider. And that choice of words was entirely deliberate. At best, it's little more than a recognition that as the preamble does say, states should take into account their human rights obligations when dealing with climate change. And to suggest as some scholars have done that it brings about a true incorporation of human rights into the Paris Agreement is very wide of the mark indeed. It does absolutely nothing of the kind. This preamble is not a triumph for the human rights lawyers. And then finally, there's the list of rights referred to in the preamble. It's a rather curious catalog. Obviously, the right to health is relevant. But there's no mention of the right to private life, which involves displaced people from flooded coastal areas or the right to life or the right to property or to any of the social and economic rights that are also relevant except the right to development. And the word sustainable is noticeably absent here. Overall, this wording looks like a list of categories designed to satisfy special interest groups rather than a serious attempt to address the relationship between human rights law and climate change. So it's easy to conclude with a skeptical position about Paris and human rights. Essentially, the agreement says nothing meaningful on the subject. Does this matter? Yes, it does. Governments obviously have a responsibility to protect their own inhabitants from the harmful effects of climate change. Canada has to do something to protect its own indigenous population in the Arctic, for example. Regardless of which states may have caused the problem. In this context, the rights to life, health, water, food, respect for private life and property entail more than a simple prohibition on government interference. Governments have a positive duty under human rights law to take appropriate action to secure the rights in question. And we can see all of that from human rights cases on environmental harm, which you've made precisely those points. These are cases in which the problems are mainly a failure on the part of government to regulate the activities of corporations or to legislate on environmental matters or to enforce existing law. So at this level, it's worth emphasizing that human rights obligations towards those most affected by climate change will, at the very least, require governments to take appropriate steps to mitigate the risk of harm within their own borders. And human rights treaty bodies have addressed the implications of climate change mainly from that perspective. And they've stressed the obligation of states parties to protect vulnerable communities. And the Inuits would be the most obvious example in Canada. And if that's what the Office of the High Commissioner had in mind, then it's an entirely safe ground. But on the other hand, it will have achieved very little to save the climate. In the climate change context, where the impacts are global, the key question is not whether greenhouse gas emitting states of the obligation to mitigate harm to their own citizens or whether other states have that obligation, but whether they also have a responsibility to protect people in other states from the harmful effect of their unregulated greenhouse gas emissions. The inhabitants of sinking islands in the South Pacific may justifiably complain of human rights violations. All the evidence is there. But who is responsible? Is it those states like the United Kingdom and Germany who led the Industrial Revolution and whose historic emissions over 200 years certainly started to cause the problem? Are they the people to blame? Or is it states like China and India whose current emissions are forcibly making matters much worse? Or is it states like the United States or Canada, which opted out of Kyoto and which you've failed to take adequate measures to limit further emissions so as to stabilize greenhouse gas emissions at 1990 levels? Or is it perhaps, and this is an awkward question, is it perhaps the governments of the Association of Small Island States who signed on to the UN Convention on Climate Change and the Kyoto Protocol and the Paris Agreement, perhaps they conceded far too much when ratifying the Kyoto Protocol or the Paris Agreement or the UN Convention. Perhaps they should have jumped up and down and said, no, this is not good for us or for the planet. But they did sign up and they are parties to these treaties and they now have a problem. Now, the Office of the High Commissioner for Human Rights takes the view that all states have an obligation to refrain from interfering with the enjoyment of human rights in other countries and to take steps through international assistance and cooperation to facilitate fulfilment of human rights, including through provision of disaster relief, emergency assistance and assistance to refugees and displaced persons. I'm hard to disagree with any of that. It's all perfectly sensible and good stuff. But again, the problem with this answer is that it evades the fundamental question of how we deal with climate change. It's addressing only its effects. Human rights treaties generally only require a state party to secure the relevant rights and freedoms for those within its territory or subject to its jurisdiction. The extraterritorial application for human rights law has therefore normally only arisen when the state exercises jurisdiction or control over persons or territory abroad. But those precedents on extraterritoriality and human rights law bear little resemblance to trans-boundary pollution, where the state only exercises control over harmful activities located within its own boundary, not over the victims abroad. And the precedents are even further removed from climate change. Here, the obvious problems are the multiplicity of states contributing to the problem and the difficulty of showing any direct connection to the victims. It's much harder to frame such a problem in terms of jurisdiction or control over persons or territory required by the human rights case law. There may, however, be a contrary view. In 2017, the Inter-American Court of Human Rights advised that in cases of trans-boundary harm, and I'll quote, actually, I can actually give you, there's the quotation, they basically said that people injured extraterritorially are subject to the jurisdiction of the state of origin if there's a causal connection between, as it were, the cause and the violation of human rights. So they do seem to take in the view that extraterritorial environmental harm can be pinned on the state where the activities occur. And the court's opinion refers in particular to environmental impact assessment, to facilitating access to information, public participation, and access to justice. At the very least, this suggests that trans-boundary claimants in Latin America now have the same procedural rights as those in Europe under the Orhus Convention. Whether the court's opinion is intended to be any wider than that, I think remains to be seen. But it may have taken the Inter-American Convention some way towards the position that was adopted by Ecuador in the aerial spraying case, when Ecuador argued that a state has an obligation to protect human rights of anyone affected by trans-boundary pollution for which that state is responsible. So it may be that there's an evolution in the trans-boundary application of international human rights law. That's a distinct possibility. But even if we accept that, it will still be hard to show that it has any real relevance for climate change. Cause it's going to be hard to show that the parties to the UN climate regime, including the major greenhouse gas emitters have failed to strike the right balance between their own state's economic development and respect for human rights in other states. And unless you can show that, you will not show a violation of human rights law. Given the terms of the Kyoto Protocol and the essentially voluntary character of the key provisions of the Paris Agreement, any state that's complying with those treaties and it doesn't require a great deal to comply with them is probably going to be immune from challenge under human rights law. To put it another way, it's far from clear that taking inadequate measures to control climate change violates human rights. And from this perspective, the high commissioners focus on rights holders and duty bearers is fundamentally misplaced and essentially incoherent in the context of climate change. Its approach fails adequately to capture a global perspective on the problem. Is there another view? Well, this brings me back to Professor John Knox, the UN Special Rapporteur. He sensibly observes that whether or not climate change legally violates human rights norms is not the dispositive question. That's the question posed by the High Commissioner of Human Rights. He says it's the wrong question. I must say, I think he's right. Let me explain why. He takes, in my view, a much more insightful approach than the one adopted by the High Commissioner. His report emphasizes the global character of the threat that global climate change poses for the enjoyment of all human rights. He focuses on the need for global cooperation to tackle climate change effectively in order to avert serious harm to global human rights. He argues that obligations to protect human rights in the context of domestic environmental harm can also inform the content of the duty of international cooperation in respect of climate change. On his view of human rights law, all states, he says, have a duty to work together to address climate change but the particular responsibilities necessary and appropriate for each state will depend in part on its situation. Building on the 2015 Paris Agreement, Professor Knox reiterates, therefore, the obligation of states to assess climatic effects of activities within their jurisdiction to control the activities of business and industry when they cause climate change to facilitate public participation in decision-making. All of this reflects existing human rights based environmental jurisprudence, but he goes further, and this is the important point. His most important conclusion is that by itself, the Paris Agreement will not prevent disastrous consequences for human rights if states merely meet the commitments they've undertaken so far. And he goes on. It follows that from a human rights perspective, it's necessary not only to implement the current intended contributions under Paris, but also to strengthen those contributions to meet the target set out in Article Two of the Paris Agreement. Knox's perspective on human rights is considerably more focused and persuasive than the submissions made by the High Commissioner. And the logic of his arguments, I would suggest, leads to two possible conclusions about human rights, sustainable development, and climate change. And you'll have heard the word conclusions there. First, human rights treaty bodies could use their existing powers of oversight to focus attention on how states' parties respond or fail to respond to the commitments and objectives set out in the Paris Agreement. This would represent a significant contribution to the debate. And to some extent, it is already happening. For example, the Committee on Economic, Social and Cultural Rights has begun to address the failure of some states to reduce greenhouse gas emissions, to preserve carbon sinks, and to promote renewable energy. Australia springs to mind. That committee has also taken the view that the Convention on Climate Change and the Paris Agreement are relevant to interpreting the UN Convention on Economic, Social and Cultural Rights. And similarly, the Universal Periodic Review for Human Rights established by the UN General Assembly in 2006 could take this development rather further and on a more systematic basis. In addition to assessing compliance with established human rights obligations, this review process permits the UN Human Rights Council to monitor compliance with voluntary pledges and commitments made by states. It requires no imagination to regard the Paris Agreement as falling within this category, given the potential impact of climate change on human rights. So the important point here is that human rights commitments can be defined and expanded by reference to environmental commitments, including those adopted at Paris. Moreover, insofar as economic and social rights are generally concerned with encouraging governments to pursue policies which ensure the minimum essential levels of each of the rights, making the Paris Agreement a success is vital for that purpose. So despite its weakness, the reference to human rights in the preamble to the Paris Agreement reinforces their significance. Paris may not require states to comply with human rights commitments, but human rights commitments could and should require states to implement Paris. And their record in doing so can and should be monitored and assessed by human rights treaty bodies in the same way that they would monitor and assess any other policies that affect, adversely, international human rights law. Secondly, this is the alternative and not necessarily alternative, one could take both approaches simultaneously, but Knox's final report has given the debate on climate change and human rights a renewed focus on environmental quality and sustainability. Despite the efforts of the UN and Human Rights Treaty Bodies, existing human rights law including the Covenant on Economic, Social and Cultural Rights does still fall short of giving environmental quality recognition as a significant public interest. There's no right to a healthy, sustainable or ecologically signed environment in the Covenant. And the trouble is that lacking the status of the human right means that the environment can be trumped and whether I should use that word nowadays I'm not altogether sure, it may acquire a new meaning, that the environment can be trumped by those values that have human rights status. The environment is not a human right, then the right to development which is, can trump it. This is an emission that does need to be addressed if the sustainability of the global environment as a public good is to receive the weight it deserves in the balance of economic, social and cultural rights. The key question there is what values we think a Covenant on Economic and Social Rights should recognize in the modern world? Is the protection of the global environment including the climate system a sufficiently important public good to merit economic and social rights status comparable to economic development? Well the answer to that surely has to be yes. The UN has repeatedly endorsed the promotion of sustainable development as the core principle of international economic policy for all states and that's reflected in the Paris Agreement's references to sustainable development. Is it surely not time to ensure that it's also reflected in human rights law? For political reasons this was a perspective wholly absent from the High Commissioner's vision of the role of human rights law in the Paris negotiations. Yet as a matter of international law the International Court has referred to quote the need to reconcile economic development with the protection of the environment which is aptly expressed in the concept of sustainable development. The essential point is that while recognizing that the right to pursue economic development is an attribute of the state's sovereignty over its resources and its territory that right cannot lawfully be exercised without due regard for the detrimental impact on the sustainability of the global environment or on human rights. And the Paris Agreement I would suggest is important precisely because it provides a clearer yardstick by which to measure that detrimental impact than previous climate agreements have done. Even if we succeed in keeping global warming below the target of 1.5 degrees C there will be considerable damage to the planet. Above 2 degrees C the damage becomes progressively more unsustainable. A right to a sustainable and ecologically sound environment would frankly be meaningless above that degree of climate change. So making such a right part of existing human rights law would give human rights bodies and courts much more clearly the power to assess whether states are meeting their commitments and objectives with respect to climate change including the obligation to cooperate for that purpose and to deliver on what they promised in the Paris Agreement. So that does bring me to my conclusions. As I've argued already the response of human rights law to climate change if it's to have one has to be in global terms. Treating the global environment and climate as the common concern of humanity and climate change as a threat to human rights as a whole. The value of Professor Knox's reports and of the evolving practice of a number of human rights treaty bodies is that they have begun to sketch out a more meaningful role for the international human rights community with respect to climate change than the one that the Office of the High Commissioner managed to do in its preparations for Paris. And Professor Knox has also pointed to the need for some evolution in the corpus of human rights law but one firmly based in national law and entirely consistent with existing human rights law. Focusing in that context on climate change within the corpus and institutional structures of economic, social and cultural rights does make sense even if it means giving a broader interpretation to those rights than currently or indeed amending the 1966 Covenant. There are of course, and the human rights lawyers will no doubt make this point, there are of course well known objections to any expansion of the corpus of international human rights law. Problem is if you talk to a human rights lawyer they seem to think the subject ossified circa 1967 and they don't want any new international human rights. But a right to a healthy, sustainable or ecologically signed environment should not be confused with the procedural innovations of the Orhus Convention or with the case law on the right to life, health or private life. To do so would simply confuse climate change with the greening of human rights law. The ample jurisprudence of human rights courts I think shows that to be misconceived, to be meaningful, such a right to a sustainable, to a healthy, sustainable and signed environment has to address the environment as a public good in which form it bears little resemblance to the existing catalog of civil and political rights. So the human rights lawyers do have to do something new here. It remains a remarkable how contested the issue of climate change is within the human rights community. That in part accounts for the, like an only describer's confused, arrogant and ineffective approach that the High Commissioner adopted at Paris. But we should not be surprised through their now extensive jurisprudence human rights courts have contributed far more to the greening of human rights law than the UN human rights bodies have ever done. And given this unpromising background, I can only conclude by saying that it remains to be seen how far the UN human rights institutions in Geneva will take either of the approaches that Professor Knox has advocated as one means of assisting the process of tackling climate change. Do not hold your breath. Thank you, ladies and gentlemen. Thank you. We have plenty of time for questions. We'll start with some questions from students. So the question is, why is it that the Paris Agreement does not address human rights in the body of the treaty but only in the preambles? Yeah. Well, they didn't want to. It's superlatively controversial. I mean, think about it. You've got states that don't really want to be signing up to the Paris Agreement at all and that don't really want to be delivering policies that would tackle climate change and that are doing their utmost to ensure that the process doesn't really constrain them. Why would they want to sign up to a human rights process that would potentially constrain them? That's the problem. Now, the human rights treaty bodies have a degree of independence here. They don't have to do what the Office of the High Commission in Geneva tell them because that's essentially a political body. But that's the core problem. What I'm trying to do is to provide a mechanism and what Professor Knox is trying to do is to provide a mechanism by which more pressure can be put through quasi-semi-independent human rights treaty bodies on states to deliver on their promises. States were trying their utmost to ensure that that didn't happen. But you can also see, and I think that's the core problem, but there is another more fundamental problem. I don't know whether any human rights lawyers here, but if there are, they're prepared to be offended. I mean, the difficulty with the human rights law is quite honestly, they're arrogance. They think there is nothing else in the world and that they are the saviours of humanity and that only their conception of human rights law will do. And they don't want other kinds of international lawyers telling them that there are problems that they need to grapple with. So they're extremely reluctant to deal with environmental issues in general and with climate change in particular. Pick up a book on international human rights law. You'll be very lucky indeed if you find the word environment mentioned in it anywhere. That tells you a lot. Okay, have you seen improvement in the last 10 years? Well, I think if you look at the IPCC reports, you will see that greenhouse gas emissions continue to rise. There was a moment, I think it was two years ago when they stabilized and we thought, whew, we finally got there. But they started going back up again. It is certainly true that there is evidence of improvement, particularly in Europe where greenhouse gas emissions undoubtedly have come down. Now that's partly because we outsourced industrial production to China and India and so on. But there have been real world reductions. In the UK, as I got to the point when there are a significant portion of the year when our electricity is entirely generated by renewable sources, we no longer burn coal to generate electricity. We will be carbon free in electricity generation within the foreseeable future. And there are other European countries which have also made substantial improvements. I can't speak for Canada, I don't know what you've done. But even the United States has actually made substantial progress in reducing its greenhouse gas emissions. It's a, if the United States had actually been a party to Cuba, they would probably have met whatever target they'd been given because they have, they've become far more efficient. I mean, the key point which anyone, which any economist will point out to you and there's an excellent program on the BBC World Service last week exploring this point. Why would you want to burn coal or oil in order to generate electricity when you can get it for free from the wind or the sun or the waves? And it's just so much cheaper to produce electricity from renewables now that it makes no economic sense to produce it in the way that President Trump would like to make it. And I think that's what in the end will drive even the Americans to abandoning the coal industry because it's economically crazy. But having said all that, it really doesn't matter what Europe and Japan and even the Americans and Canada do on climate change. We cannot possibly do enough to address the problem. We need China and India in particular to come on board. Their share of greenhouse gas emissions is now so overwhelmingly huge that the rest of us could stop breathing and there'd still be a problem. Even if we generate no carbon at all in the developed world, we will not solve the problem of climate change. It is vital that China and India start pulling their weight and they're still building coal-fired power stations. So I think that's the real source of potential risk for the future. I'm gonna have to ask Steve. The comment, following up on your point, that the willingness of those two key states, India and China to remain in things like the Paris Agreement, gets undermined by something like the US pulling out or other countries not meeting those commitments. And the question is really about the influence of non-government actors in choices around international policy, like the lobbying industry and others. Well, I mean, China and India have not pulled out and they've been important players in the Paris Agreement. And it's also true that the Chinese are the world's biggest producers of wind turbines and solar power equipment and the Indians are making substantial progress as well. So I would not give up on those states. I think we need to keep pushing them. I think they grasp that there's a problem. Because they will be seriously hit, both of them, by climate change if they're not careful. So I think they do in the end have a vested interest to deliver here. So I wouldn't give up on them. On the other hand, it's not at all helpful if the United States then pulls out. The reason the Chinese stayed in was because President Obama did a deal with them. I think President Trump's not interested in doing deals on climate change with anybody. So this isn't helpful. There's equally no doubt that, depending on the country, that lobbying from business and industry in certain cases is extremely effective. I mean, if you look at the Australians, they're in a lamentable position. It's no longer, in the United, I don't know about Canada, but in the United Kingdom, the simplest way of finding out whether somebody's losing their memory is to ask them who the Prime Minister is. Well, I gather in Australia you can no longer do that because they have so many new Prime Ministers. But they keep falling over climate change. I mean, that was one of the reasons I decided to act for the Japanese because I thought the Australians were actually being profoundly in the willing case because the Australians were being profoundly hypocritical. They were bringing the willing case in order to conceal their own failure to deliver on climate change. And that continues to between us because the coal industry in Australia is so dominant and has such political influence combined with Rupert Murdoch and the press. That's also true up to a point in the United States. I think it's true, undoubtedly, in other countries. It's also true that environmentalist NGOs haven't really managed to counter those pressures sufficiently. But I'm not sure that that's necessary. I think the scientists are trying to do their utmost here. And I think in the end, the science and the economics will do the trick. At least, that's what I hope. So, the question, to repeat the question, it's if India and China are the crux of the problem, but a huge portion of their emissions are basically the consequence of our consumption, is there a framework in which to address that in a meaningful way? Well, your point is a very good one. And in understanding the predicament in which we now find ourselves, it is important historically to understand the relationship between the WTO agreement and the climate change agreement. The WTO agreement came only two years after the climate change agreement. And, of course, the WTO agreement opened up the WTO to China, facilitated free trade between China and the rest of the world, and India. And that enabled the West essentially to transfer its greenhouse gas-admitting industries to China and India because they had no obligations of greenhouse gas control under the convention or under the Kyoto Protocol. Absolutely not. So, we in the West have been able to meet our very modest commitments under Kyoto simply by transferring, or at least mainly by transferring production to other countries and in the UK by closing down the coal mines. So, what is this part of the solution? Well, okay, but what exactly do we do? Do we stop buying goods from China and India? Well, we could try. Obviously, I suppose if we had to produce those goods today, we would be doing so using more renewables. So, it may be that indeed. And it may be that as renewables increase in proportion and the proportion of electricity that they provide in the West, that it will become cheaper to produce things in the West than it currently is in China if the Chinese and the Indians are relying on coal. I don't know. I'm not sure what the answer to that is. I think that it is true that part of the answer may well lie in international trade law. And President Trump has his own arguments for addressing some of what he sees as the problems of trade law. And he's not completely wrong here. But it doesn't really matter so long as the Chinese and Indians take the problem seriously. And the mechanism for reducing greenhouse gas emissions is there and they could use it. All they need to do is stop building coal-fired power stations and they've gone a long way to addressing the problem. Now, that doesn't solve it entirely. We may well have to stop eating hamburgers and things like that because cows generate methane. So the next time you have a hamburger, just think about it. It might be worth having something else. And the next time you buy a car, well, just ask yourself is going by bicycle perhaps a better answer to the answer to the problem. And I suppose I've contributed by flying here but there isn't any other way to get to Halifax, at least not within my lifespan. I might be dead by the time I got here in Roinburt. So yeah, there's no easy answer to that. It's certainly part of the larger problem. In itself, I don't think it's the core of the problem so long as China and India take it seriously. On the other hand, if they don't take it seriously, then we have leverage over. If we wanted to, we could rip up the WTO agreement. In fact, we don't even need to rip it open. I rip it up because Article 20 of the WTO agreement provides for states unilaterally to restrict imports where those imports are damaging to the health of the global environment. That's an easy one. That's a very easy one. So if we wanted to unilaterally rewrite the WTO agreement and to cut out trade with China and India if they're not delivering on Paris, we could. Whether we could then make up the shortfall in goods is another question. It does pose an interesting extension of the case law you were talking about earlier on though about the jurisdiction around the consequences of trans-border pollution from industrial production. The WTO law explicitly allows you to address trans-border. Which is kind of like a law suited to the 19th century when economies were based on industry. But in a way, could one extend that back to then, can the consequences of consumption be seen as, so Western consumption having negative consequences for the human rights? Yes, yes. But I mean, it's worth understanding that if you compare the Uzon Convention, the Uzon Convention has been a great success. Although there is recent evidence showing that China has been illegally allowing CFCs to be produced which may undermine the Uzon Convention. But until recently, it's been regarded as a great success. Now, the climate regime is very similar to the Uzon regime and it's a great failure. So what's the difference? Well, there's one key difference. The Uzon regime addresses production and consumption of Uzon depleting substances. You've got to stop consuming them as well as stop producing them. The climate regime only addresses the production of greenhouse gases, not the consumption of them. So there's nothing to stop you from buying goods from somebody else that are being produced by emitting carbon, whereas there is in the Uzon regime. So the question is about a specific focus on women's rights and gender equity within the co-developments or conjoining that we've talked about between human rights and climate protection. That's an interesting question because it picks up on what's in the preamble. Being blunt, I'm not sure there's any connection between gender and climate change. I don't see higher focus on women's rights, on children's rights, on the rights of the disabled or the rights of indigenous peoples or any particular human right helps address climate change to any extent, whatever. The fundamental point I'm making is that climate change is a threat to everybody's human right, whatever gender we are, and whichever human right you're talking about. I want the human rights treaty bodies to take that view because I think that might get them somewhere. I don't think that taking a gendered approach to this will make any difference of any kind, but if somebody wants to write an article and tell me that I'm wrong and explain how I take a gendered approach to reducing greenhouse gas emissions will save the planet, I'd be delighted, but it's not obvious to me what that would be. Okay, so what is the structure for implementation or achievement of this understanding of a healthy climate as a fundamental thing? Well, it's a very good question. And obviously it's something I haven't really addressed in this lecture, although I've addressed it in some of my writing. Well, I'm trying to, I suppose the points that I've been trying to make, not just in this lecture, but overall. On the whole, climate change has been addressed within the existing structure of the UN Framework Convention on Climate Change, and that is the overarching structure which also includes the Q2 protocol, the Paris Agreement. And that's the right structure for addressing a multilateral negotiations on measures to reduce greenhouse gas emissions and measures to ensure compliance with those agreements. And I think that is the most central structure there is. But it's not the only one and it shouldn't be the only one. Now, the UN itself has created a process for reviewing the attainment of the Sustainable Development Goals, as you will recall. Goal 14 includes measures to tackle climate change. So the UN more generally in that context will also be reviewing implementation of Paris. And not just leaving it to the structures created under the Paris Agreement or by the UN Climate Change Convention. What I'm saying is that the human rights treaty bodies should make it their business to see high-far states have implemented Paris and should be jumping up and down and putting pressure on them to do so as they do in so many other ways. That's part of their job. That's part of their normal function. I've also argued that it should be part of the function of the International Maritime Organization to deal, for example, with greenhouse gas emissions from ships. So my view is that, yes, the climate regime institutions are the key ones, but they're not the only ones. And the rest of the system should be starting to focus on the central problem, which is complying with Paris. Now, you suggested, I mean, it's a mention of an International Environmental Court. Well, I think that's the way we shouldn't go because I think that's a diversion reactivity. There are those who think we need to create a world environment organization. And if only we did that, all would be well. Again, I think that's a diversion activity. It would take years to negotiate. It would be inadequately funded. It wouldn't, it almost certainly wouldn't have enough power. And at the end of the day, we've wasted 10, 15, 20 years achieving nothing. The institutions are already there. If we give them enough power, we put enough pressure on them, we give them the resources, they can do the job. We don't need to create new ones. There are other arguments against an environmental court, which I will not go into because it would take too much time. I've set them out in an article. But the most obvious one is that really, you can't disassemble the environment from everything else. I've done at least 10 cases that are environmental, but they're also about other things. You can characterize them as environmental cases or other cases about international rivers or other cases about state responsibility or other cases about the law of treaties. The environment isn't a category that you can separate out. It's not quite like human rights or trade. And there isn't a specific body of environment law in the way that there's a specific body of human rights law. And it does seem to me that the better way to approach these questions is through general international law, through existing institutions, through the international court, through the tribunal of the sea. Their case law on these issues has done an extremely good job. I'm hoping that one of my next cases may be a case about compliance with the Paris Agreement. If it does take off, it'll either be in the ICJ or the IT loss. I don't see any problem with going to those courts. They've handled environmental cases perfectly well. They can deal with treaty compliance issues perfectly well. We don't need to invent a new court for the purpose. Let's get on and do the job. Let's not play diversionary activities. Okay. Any questions from non-students out there in the audience? So there's maybe a start of an answer to the previous question. Yes, absolutely. Thank you very much. In fact, I... So let me just repeat that. That's in my footnote, so I'd forgotten that specific point, but you're absolutely right. And that is a good example to see it all. Yeah, so the... Ah, sorry. I think the point was that the people... Okay, do you want to...? It's in your footnotes. The point that was raised was simply that the Committee or the Convention... The Implementation Committee for the Convention on the Elimination of Discrimination Against Women has addressed Norway's failure to deal with its own greenhouse gas emissions and suggested that there's a disproportionate impact on women in the global south. I think that was the point, wasn't it? Yes. So greenhouse gas emissions, climate change, disproportionate effects women in the global south. I'm not... I mean, you're absolutely right to bring up the seed oil point. I'm a wee bit skeptical of the disproportionate effect on women in the global south. This was the point I made about the preamble to the Paris Agreement. I think really it's a rather tendentious selection of special categories. It does seem to me that climate change, frankly, will affect all of us. I don't think... I don't think women in the global south are particularly strongly affected. I think we're all going to be affected. All women, all men, everybody, even those of transgender, I think climate change is entirely indifferent to our gender or indeed anything else. It will just wreck everything if we're not careful. Okay. But you do make my point that all of these committees should be jumping up and down. Even the women's one. That's right. So the... Especially the women's one. Right. Do we have a last question? So the question is that given the perception that the United States and China are both sources of delay and impasse on climate and other issues, is the fact that they both have seats on the Security Council a cause for concern in the specific areas you're concerned with? Climate change and human rights? Well, they can stop the Security Council doing anything about climate change. And the Security Council could, because this is obviously an issue of international peace and security. And the Security Council has actually discussed climate change. It was the British who brought it up. And it's certainly my view that if necessary, they could take appropriate action against say individual states that are refusing to do things to address greenhouse gas emissions. Obviously China and the United States are not going to encourage the Security Council to take action against China and the United States. So they can certainly block measures that would affect themselves. On the other hand, if they were willing to do something serious, then I think there is a power here that the P5 could use to deal with other countries. Saudi Arabia might be one example. They've been particularly difficult in the climate negotiations. And they are obviously a major source of carbon through their oil production. Clearly if we're going to address climate change adequately, we're going to have to burn less oil in the future, not more oil. And the Saudis seem to want to burn more oil. So Saudi Arabia is going to have to come on board at some point, and the Security Council could have necessarily deal with that if they had to. I hope they won't have to. But you're right, the implication is that the Security Council has no use if the problem is China and India. Sorry, China and the United States. Well, on behalf of the Marine Environmental Law Institute and the College of Sustainability, thank you very much, Professor Boyle. Thank you. Thanks so much. And we're going to slightly increase your carbon footprint return. Oh my goodness, heaven's above. Thank you very much. Thanks very much, good night. Thank you.