Atmospheric Trust Litigation

Atmospheric Trust Litigation

Climate Change, Biodiversity, and Human Rights:

Impact, Synergy, and Confluence

Professor, Dr. Svitlana Kravchenko, University of Oregon[1]

………………………………………………………………………………………………………………………………………..

I. Climate Change Impact on Biodiversity. 2

A. Climate change is a major cause of biodiversity loss. 2
B. Climate change impact on World Heritage sites. 3
C. Climate change and ocean acidification. 3

II. Impacts of mitigation measures on biodiversity. 3

A. Hydro power and impact of dams on biodiversity. 3
B. Ocean iron fertilization and moratorium on geo-engineering. 3
1. Ocean fertilization: pros and cons. 3
2. Legal Issues: the London Dumping Convention and Protocol 3
3. The Convention on Biological Diversity. 3

III. Synergy between biodiversity and climate change legal regimes. 3

A. Integration of biodiversity considerations in implementation of the UNFCCC and the Kyoto Protocol 3
B. Integration of climate change impacts on biodiversity in implementation of the Convention on Biological Diversity. 3
C. Using the U.S. Endangered Species Act to combat climate change. 3

IV. Confluence between climate change, biodiversity, and human rights. 3

A. Climate change impacts the enjoyment of fundamental human rights. 3
B. Why a human rights approach to climate change and biodiversity?. 3
1. Strong human rights treaties related to climate change. 3
2. Established human rights institutions and their jurisprudence. 3
C. REDD-plus: climate change, biodiversity and indigenous peoples’  rights. 3
D. Procedural rights in UNFCCC framework. 3

V.     Conclusions. 3

Because of the profound threats to the climate, to biodiversity, and to human rights in the world today, the world can no longer afford to leave the legal regimes and mechanisms governing these three areas separate from one another.  This paper examines some impacts of climate change on biodiversity, and on human rights and synergies between legal instruments addressing these areas, and then proposes concrete steps to integrate the existing legal regimes and make each more effective for the protection of all.

I. Climate Change Impact on Biodiversity

A. Climate change is a major cause of biodiversity loss

Climate change primary impacts include increasing temperatures, sea level rise,  ocean acidification, glacial retreat, land and forest degradation, and loss of biodiversity Scientists have recorded species’ responses to climate change including for example shifts in geographic ranges and in the timing of life cycles.  Rapid climate change changes, in part because of temperature increases,   pushes species geographically northward and forces them to climb to higher elevations.  According to the World Wildlife Fund (WWF), an animal known as the pika is the first mammal in North America that is likely to fall victim to global warming.[2]  It lives in areas with a cool, alpine climate. As temperatures rise due to increasing greenhouse gas (GHG) emissions, the pika moves to higher elevations or migrates northward in an attempt to find suitable habitat.  But there are limits on how far north or how high in altitude the pika can move.  Because its alpine habitat is shrinking and may disappear, this animal is at risk of extinction.  This is just one among many other examples.  Climate change also severely impacts coral reefs and forest ecosystems.  Loss of biodiversity of these ecosystems, furthermore, has an impact on people’s livelihoods.

The world’s landscapes are already moving and have already been fragmented by habitat destruction caused by climate change.  Current conservation strategies, focused on preserving biodiversity in place, are not designed to cope with impacts of climate change.  Conservation strategies should integrate climate change by modeling regional shifts due to climate change and adding new protected areas to compensate for climate change impacts.

The risk to biodiversity and ecosystems has been evident for decades.  For example, the objective of the 1992 United Nations Framework Convention on Climate Change (-UNFCCC) is “to achieve …. stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system… within a time frame sufficient to allow ecosystems to adapt naturally to climate change…”.[3]  As another example, the impact of climate change on biodiversity is one of the major concerns of the 1992 Convention on Biological Diversity.  The Executive Secretary of the Convention on Biological Diversity has stated that “while designing activities aimed at mitigating the impacts of climate change, biodiversity considerations are essential.”[4]  As I will show, however, recognizing the problem and dealing with it are quite different things.

B. Climate change impact on World Heritage sites

Climate change is affecting and is expected to further affect biodiversity in natural heritage sites.  According to a 2008 UNESCO Policy Document, climate change will force species to shift their ranges, but in heavily fragmented landscapes such movement will become difficult or impossible.  In addition, climate change “exacerbates the incidents of pests, pathogens and fires.  Warmer temperatures in deserts could threaten species that now exist near their heat tolerance limit, and desertification will increase.[5]  The projected declines in glaciers, permafrost and snow cover will affect soil stability and hydrological systems . . . . and [i]ncreased coral bleaching and mortality would profoundly affect the productivity of reef ecosystems.”[6]

The UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), contains a definition of natural heritage as “natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty”.[7]  Many of the natural heritage properties contain significant ecosystems, host rare species, and are important components of the world’s biodiversity.

The UNFCCC and the Kyoto Protocol[8] contain a number of provisions that are relevant to addressing the concerns of the World Heritage Convention, including how to ensure adaptation to the adverse impacts of climate change on World Heritage sites.  Most of the States Parties to the World Heritage Convention are also Parties to the UNFCCC. Therefore collaboration between with the UNFCCC Secretariat and the World Heritage Committee could be fruitful in addressing the effects of climate change on World Heritage sites.

The issue of the impacts of climate change on World Heritage natural and cultural properties was brought to the attention of the 29th session of the World Heritage Committee in 2005 by a group of concerned organizations and individuals who filed petitions with the World Heritage Committee.  These petitions sought to include Sagarmatha National Park (Nepal), Huascaran National Park (Peru), the Great Barrier Reef (Australia) and the Belize Barrier Reef Reserve System (Belize) on the List of World Heritage Sites in Danger (the “List”).[9]  Inclusion on the List requires an increased level of protection.  A fifth petition was filed in 2006 by twelve conservation organizations from the United States and Canada to include Waterton-Glacier International Peace Park on the List of World Heritage Sites in Danger.  This petition argues that climate change is causing the rapid disappearance of the Waterton-Glacier International Peace Park’s glaciers, as well as significant damage to the Park’s vegetation and wildlife and therefore the Waterton-Glacier International Peace Park should be included on the List.[10]

In response to these petitions, the World Heritage Committee requested the World Heritage Centre of UNESCO, in collaboration with the Advisory Bodies, interested States Parties and the petitioners, to convene a broad working group of experts on the impacts of Climate Change on World Heritage. The World Heritage Committee took a decision noting “that the impacts of Climate Change are affecting many and are likely to affect many more World Heritage properties, both natural and cultural in the years to come”.[11]  The Committee therefore encouraged “all States Parties to seriously consider the potential impacts of climate change within their management planning, in particular with monitoring, and risk preparedness strategies, and to take early action in response to these potential impacts.”[12]  The authority of the World Heritage Committee is to establish a “list of World Heritage Sites in Danger” is based on Article 11.4 of the World Heritage Convention.[13]  The only result of the petitions seems to be that in 2007 UNESCO published a publication entitled “Case Studies on Climate Change and World Heritage” and in 2009 UNESCO reprinted the publication.[14]  The petitions for listing may have accomplished some publicity on the seriousness of climate change, but nothing more.

In January 2009 EarthJustice presented a Petition “The Role of Black Carbon in Endangering World Heritage Sites Threatened by Glacial Melt and Sea Level Rise” to the World Heritage Committee.[15]  In its petition, EarthJustice is arguing that the World Heritage Committee has the unique opportunity to advance actions to reduce black carbon emissions until the strategies negotiated by the UNFCCC process can be realized.  The Petition has been forwarded to States Parties’ delegations for review, and the status as of early 2011 is that a State Party must raise the issues presented in the Petitionin order for them to be placed on the agenda for the World Heritage Committee’s annual meeting.  EarthJustice is planning on approaching a few State Parties to encourage one or more of them to pursue the issue within the Committee.

C. Climate change and ocean acidification

Leading experts at the 2009 Aspen Environment Forum called ocean acidification caused by high levels of CO2 emissions a “planet changer”, and predicted that all coral in the ocean would be in danger of dying off by mid-century if we continued to burn fossil fuel at our current rate.[16]  According to Miyoko Sakashita, a Senior Attorney and Oceans Director with the Center for Biological Diversity, “Ocean acidification is likely the greatest threat to the health of our oceans and is occurring at a frightening rate.”[17]  Acidification harms all marine animals with a shell—not only corals.

The Center for Biological Diversity has identified research that describes the changes as “irreversible” on human timescales.[18]  Ocean acidification is caused by an increase in CO2 absorption by the oceans, which then reduces pH and carbonate ion concentrations, and thus the calcium carbonate saturation of the waters.[19]  Calcium carbonate is essential to the balance of marine ecosystems; it is absorbed by many marine species to produce their shells and it is essential to the growth of coral reefs.  Ocean acidification is also believed to affect non-skeletal creatures’ metabolic, reproductive, immune, and respiratory functions,[20] and to hinder the development of plankton which is a major food source for many marine species.  Recent research suggests that “conditions detrimental to high-latitude ecosystems could develop within decades, not centuries as suggested previously.”[21]

A 2008 study published by the Proceedings of the National Academy of Sciences indicated that ocean pH levels decline as atmospheric CO2 increases, and the pH decline is occurring “substantially faster” than predicted by current models.[22]  Oceans have absorbed about 50% of the CO2 released from the burning of fossil fuels, which has caused an increase of in ocean acidity of about 30% since the start of the industrial age.[23]  It is forecast that by 2100, CO2 emissions will result in a decrease of ocean pH of 0.4 units, and if action is not taken until those changes occur, it will be “too late to effectively mitigate the damage.”[24]

Leading ocean acidification scientists warn that a 0.20 pH change will have adverse impacts on marine life.[25]  The Intergovernmental Panel on Climate Change (IPCC) 4th Report indicates that acidification differs according to ocean depth and to ocean latitudes.[26]  Species of marine life therefore may be affected by acidification differently, depending on their habitats.  And, as ocean pH levels drop, species may shift habitats, be unable to cope with environmental changes, perish, and cause the unraveling of existing food webs.

What is being done to address ocean acidification?  In 2007,The Center for Biological Diversity formally requested that pursuant to section 304 of the Clean Water Act (33 U.S.C. §1251 – 1376) the United States Environmental Protection Agency (EPA) publish revised water quality criteria and information taking into account new scientific information about ocean acidification.[27]  The Center for Biological Diversity’s petition marks the first step towards creating a national approach to preventing carbon dioxide pollution from degrading the water quality of our oceans.[28]

The Center for Biological Diversity petitioned the U.S. EPA to impose stricter pH standards for ocean water quality and to publish guidance for states to help protect U.S. waters from further acidification under the Clean Water Act.  The federal Clean Water Act requires states to identify impaired waters, which under the Clean Water Act are those water bodies failing to meet established water-quality standards. The Clean Water Act also requires the EPA  oversee the states’ impaired waters lists, approve or disapprove state-submitted lists, and add any waters failing to attain water-quality standards to the impaired list when those waters are omitted by a state.

In late 2008, the state of Washington submitted a list of impaired waters to the EPA that failed to include ocean waters degraded by ocean acidification.  The Center for Biological Diversity informed EPA of its duty to add ocean waters not attaining pH standards when reviewing Washington’s impaired waters list.  On January 29, 2009, the EPA approved Washington’s list without adding ocean waters affected by ocean acidification.  In May 2009 the Center for Biological Diversity filed a lawsuit in U.S. District Court in Seattle, seeking to compel the EPA to amend Washington’s impaired waters list to include any ocean waters that are failing to attain water-quality standards as a result of ocean acidification.  The Center for Biological Diversity is represented in the suit by Crag Law Center.[29]

In response to the Center for Biological Diversity’s Clean Water Act section 304 petition, the EPA began a public process to consider whether its water-quality criteria should be updated to reflect the impacts of ocean acidification.  In April 2009 the EPA published a “Notice of Data Availability” and in November 2010 the EPA recommended that coastal states begin addressing ocean acidification under the Clean Water Act by reporting waters as “impaired” under the Clean Water Act.[30]  The EPA therefore invoked the Clean Water Act to evaluate ocean acidification and water quality criteria in response to the petition from the Center for Biological Diversity seeking stricter pH criteria for ocean water quality and guidance from the EPA for states to help protect U.S. waters from further acidification.[31]  National guidance on tracking ocean acidification is expected to be helpful to states as they further develop their own ocean acidification monitoring.  In the U.S., the Clean Water Act is relevant and a potentially powerful climate change adaptation tool.

In 2010 at the 16th Conference of the Parties to the UNFCCC meeting in Cancun, Mexico, the United Nations Environment Program (UNEP) issued a report and recommended certain actions to mitigate the effects of ocean acidification, and further study of the issue.[32]  The UNEP report called the future impact of rising emissions on the health of seas and oceans as “more wide-ranging and complex than was previously supposed.”[33]  The UNEP Report tied ocean acidification to food security, which is an important connection to make in order to raise international awareness of the consequences of not addressing the issue.  Ocean acidification falls under the regimes of climate change and biodiversity, as well as ocean law.  Addressing it from these various perspectives may provide an integrated approach to protecting the health of the ocean and the life it supports.

II. Impacts of mitigation measures on biodiversity

A. Hydro power and impact of dams on biodiversity

Alternative energy is one of the mitigation solutions to reduce GHG emissions but the impact of hydro power projects and dams on biodiversity can be significant.

As an example, HidroAysйn project is a $3 to $4 billion hydroelectric scheme that, if fully realized, would build five massive dams by 2020 in the Aysйn region of the Chilean Patagonia.[34] The project’s effect on biodiversity would be devastating because thousand miles of forest would be clear-cut.  It would impact 14 protected areas and would divide endangered forests and some of Chile’s most spectacular national parks.[35]  The project would also have an impact on 64 local communities which make their living from land.  They would suffer because of flooding, displacement, and destruction of their style of life.[36]

A second example is that of Belize.  In 2004, the Privy Council of the United Kingdom dismissed an appeal from the Belize Alliance of Conservation Non-governmental Organizations, allowing Belize’s government to proceed with the construction of the Chalillo Dam on the Macal River.  The riparian habitat along the Macal River, so biologically unique, was relegated to the bottom of an artificial lake extending 20 kilometers up the Macal River and 10 kilometers up the Raspaculo River.[37]  According to the Judgment of the Lords, “The area has the highest density of the surviving big cats (Jaguar, Puma and Ocelot) in Central America.  Morelet’s Crocodile (a rare species) lives in the rivers.  Shy and secretive tapirs lumber through the woods.  Gorgeous Scarlet Macaws, of which only about 1000 still exist anywhere in the world, nest in the trees by the river banks.”[38]  The Lords’ decision also indicated that this is “one of the most biologically rich and diverse regions remaining in Central America”.[39]

The Chalillo dam aroused strong opposition from environmentalists not only in Belize but throughout the world.  The dam will flood nearly 10 square kilometres of land on the border between the Mountain Pine Ridge Forest Reserve and the Chiquibul National Park.  These are areas which Belize has previously designated for preservation as national environmental resources on account of the importance of the plants and animals which are found there.[40]

The Belize Alliance of Conservation Non-governmental Organizations, as appellants, alleged the environmental impact assessment (EIA) put forth by the Belize Electric Company and approved by the Belize Department of Environment was deficient for various reasons.  The most glaring deficiency was that “[t]he EIA contained a geological error.”[41]  As to plants and wildlife, the EIA included a report from the London Museum of Natural History that stated, “It is absolutely clear that constructing a dam at Chalillo would cause major, irreversible, negative environmental impacts of national and international significance – and that no effective mitigation measures would be possible.”[42]  The report continued, “The project would destroy the vast majority of a critical and unique habitat, threatening the last viable population of many vulnerable and endangered wildlife species in Belize.”[43]  Appellants contend that the government violated the law by not addressing these concerns further in the EIA.

Despite the above observations, the Privy Council framed the appeal around procedural issues and allowed the dam’s construction to continue. The Privy Council deferred substantive considerations to the Belizean government.  It held, “[T]he government of Belize has decided to give its approval to the construction of the dam.  It considers that the losses are outweighed by the advantages to the community in being able to generate more of its own electricity.”[44]  The issue, in the view of the Privy Council, was whether “the department of the Belize government which approved the construction of the dam did not comply with the procedures required by law to be observed before such approval could be given.”[45]  Consequently, the Privy Council only examined whether the EIA procedure was consistent with Belizean law.  The Privy Council concluded the EIA procedures were satisfactory.

Finally, the Privy Council addressed allegations of bias and that a public hearing should have been held.  Despite the vigorous dissent by two of the five justices, the majority concluded that the appeal should be dismissed.  Therefore, unique habitat and vulnerable and endangered wildlife species will be drowned when the dam is built.

A third example concerns the Ukraine.  In Ukraine, the governmentallocated27 hectares of valuable lands situated within the specially protected area “Granitno-Stepove Pobyzhzha”, along the riverof Pivdennuj Bug for a permanent use of the nuclear company “Energoatom”.  Energoatom used these lands for the water reservoir which is necessary for normal operation of Tashlytska hydro-accumulative electrical facility.  As a result, unique rifts of Pivdennuj Bug River vanished, and endemic plant species listed in the Red Book of Ukraine (thereby providing nationally protected status) were destroyed.

In response, in 2006 the Ukrainian public interest environmental law organization Environment-People-Law (EPL) started a case against the Cabinet of Ministers of Ukraine requiring annulment of the Decree of the Cabinet of Ministers  № 841 “On allocation of lands into permanent use”.[46] This decision withdrew 27 hectares of valuable in terms of high biodiversity land of the regional landscape park “Granitno-Stepove Pobuzhyzha” and allocated for permanent use to Energoatom for the construction of Oleksandrivskyi water reservoir of South-Ukrainian Nuclear Power Plant.   The case was pending in Ukranian courts of different levelsfor several years.  By the decision of the High Administrative Court of Ukraine the case was sent back for the reconsideration to the district court in 2009.  Judges of the district court gave thorough consideration to plaintiff’s arguments that allocation of specially protected lands to Energoatom’s use is violation of the Land Code of Ukraine.   On November 9, 2010, the panel of judges of District Administrative Court of Kiev City supported EPL’s claims and ruled that the governmental decision was illegaland returned the case back to the Odessa Administrative Appeal Court for reconsideration of the case.[47]  The defendant-Energoatom has filed an appeal.  Decision from November 9, 2010 was cancelled by the appeal court.[48] Meanwhile, Energoatom in 2006 raised the level of water of Oleksandrivsky reservoir up to 14,7 meters that threatened biodiversity of the park “Granitno-Stepove Pobuzzya”.[49]

All three examples show that biodiversity suffers from dam constructions and when economic interests prevail.

The Inter-American Commission on Human Rights (IACHR) at its 141st regular session from March 21 to April 1, 2011, expressed concern about the forced displacements taking place in many countries of the region as a result of the construction of mega-dams and the exploitation of natural resources in indigenous territories, which in many cases jeopardizes the survival of peoples.  The IACHR urged the States to take steps to overcome the obstacles that stand in the way of the full exercise of the right to prior, free, and informed consultation of indigenous populations over decisions that affect their territories.[50]

B. Ocean iron fertilization and moratorium on geo-engineering

1. Ocean fertilization: pros and cons

Iron fertilization is the process of inducing phytoplankton blooms through the addition of ferrous compounds to the ocean’s surface.  Iron fertilization generally targets high nitrogen, low chlorophyll regions of the ocean, in which relative iron scarcity limits the natural growth of phytoplankton blooms.[51]  Phytoplankton blooms act as carbon sinks, by removing carbon dioxide from the atmosphere through the process of photosynthesis.  As phytoplankton blooms decay and eventually sink, captured carbon is carried to the ocean floor, and away from the ocean’s surface.[52]

Research on iron fertilization has suggested a number of potential benefits.  First, iron fertilization has proven to be effective at creating large-scale phytoplankton blooms at relatively low cost.  Iron fertilization experiments have caused rapid growth in phytoplankton biomass.[53] The National Research Council released a report estimating that phytoplankton blooms could sequester 2 gigatons of carbon for less than $1 billion annually.[54]  One model has suggested that each atom of iron added to the ocean could pull out between 10,000 and 100,000 atoms of carbon from the atmosphere.[55]

Second, iron fertilization could potentially remove carbon from the atmosphere in amounts sufficient to significantly mitigate climate change.  By some estimates, large-scale iron fertilization in the South Ocean alone could absorb approximately 15 percent of all carbon dioxide buildup in the Earth’s atmosphere.[56]

However, iron fertilization has some drawbacks.  Recent research has raised questions about the efficacy and feasibility of iron fertilization as a carbon sequestration method.  First, phytoplankton blooms may be less effective at sequestering carbon than earlier studies estimated.  Effective fertilization is not the same as effective sequestration; rather, fertilization is only a necessary first step towards sequestration.  Researchers have suggested that effective carbon sequestration is only 10 to 25 percent of carbon export through fertilization.[57]  As decomposing plankton sinks from the surface to the ocean floor, up to 50 percent of carbon particles may be remineralized within the first 150 meters of settling, near enough to the ocean’s surface that they are likely to reenter the atmosphere.[58]

Iron fertilization also raises significant ecological concerns.  Ecosystems are complex, and altering their composition risks a range of possible consequences.  Consequences of widespread iron fertilization could include changes to pH levels and productivity in affected regions, reduced oxygen content in the deeper ocean, and an increase in nitrogen oxide emissions from oceans into the atmosphere.[59]  The relationship between marine processes and the carbon cycle is complex, and attempting to alter these processes on a large scale risks a number of unknown outcomes.[60]

In addition to these more general, unknown ecological concerns, recent research has indicated that iron fertilization may raise levels of domoic acid, a neurotoxin that occurs naturally in some species of phytoplankton.[61]  While domoic acid does not occur naturally at levels that pose a danger to most marine organisms, at least one phytoplankton species that produces domoic acid, Pseudonitzschia, has proven very responsive to iron fertilization.[62]  Consequently, iron fertilization could raise levels of domoic acid in environments where the effects of long-term exposure to low levels of domoic acid are unknown, potentially disrupting complex ecosystems.[63]

2. Legal Issues: the London Dumping Convention and Protocol

The London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (“London Dumping Convention”) is an international agreement to which 86 countries are parties.[64]  It is in force since 1975. The Protocol to the London Dumping Convention (“London Protocol”), in force since 2006, aims to modernize and eventually replace the London Dumping Convention.  In 2007, in response to concerns of the London Dumping Convention’s scientific advisory group, representatives from 35 member countries agreed to a moratorium on iron fertilization, pending the adoption of rules to govern iron fertilization activities.[65]

In 2008, the Parties to the London Dumping Convention adopted a non-binding resolution that the Convention applied to iron fertilization of the ocean (the “2008 Resolution”).  The 2008 Resolution states that ocean fertilization activities, other than those for legitimate scientific research, should not be allowed and it “should be considered as contrary to the aims of the Convention and Protocol and do not currently qualify for any exemption from the definition of dumping”.[66]  The 2008 Resolution required the development of an Assessment Framework by the Scientific Groups under the London Dumping Convention and Protocol(LC-LP.1(2008))[67] and the Assessment Framework guides Parties as to how proposals they receive for ocean fertilization research should be assessed to determine whether they are for scientifically legitimate purposes. The Parties agreed to further consider a potential legally binding resolution or an amendment to the London Protocol at their next session in 2009.[68]  The Parties also decided to prepare a document, for the information of all Contracting Parties, summarizing the current state of knowledge on ocean fertilization, including the knowledge relevant to assessing impacts on the marine environment, and taking into account the work done on this issue in other fora.[69]

3. The Convention on Biological Diversity

In 2008, the United Nations Convention on Biological Diversity (CBD) met at Bonn, and adopted a de facto moratorium on iron fertilization, urging governments “to act in accordance with the decision of the London Convention” while further studying the effects of iron fertilization.[70]  At Nagoya in 2010, the CBD took the additional step of adopting a moratorium on geoengineering projects generally.[71]  Both moratoria explicitly reference the precautionary principle, reflecting the Convention’s assessment that the risks to, and uncertain consequences for, biodiversity that iron fertilization and other geoengineering projects pose outweigh the benefits.

III. Synergy between biodiversity and climate change legal regimes

A. Integration of biodiversity considerations in implementation of the UNFCCC and the Kyoto Protocol

Synergy between biological diversity and climate change legal regimes would include integration and coordination of biodiversity considerations into implementation of the UNFCCC and the Kyoto Protocol, and integration and coordination of climate change impacts on biodiversity into implementation of the CBD.  The UNFCCC objective is the stabilization of greenhouse gas concentrations within a timeframe sufficient to allow ecosystems to adapt to climate change.  Biodiversity management can contribute to climate change mitigation and adaptation by conservation and enhancement of terrestrial, coastal and marine ecosystems as carbon sinks.  Slowing deforestation and forest degradation can be beneficial for both biodiversity and mitigation of climate change.

UNFCCC policy approaches now include positive incentives on issues relating to reducing GHG emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries.[72]  At the 2010 Conference of the Parties of UNFCCC in Cancun, the Ad Hoc Working Group on Long-term Cooperative Action recognized the need to strengthen international cooperation and expertise to understand and reduce loss and damage associated with the adverse effects of climate change, including impacts related to extreme weather events Including sea level rise, increasing temperatures, ocean acidification, glacial retreat and related impacts, land and forest degradation, and loss of biodiversity.[73]

A discussion paper prepared by the European Union (EU) Ad Hoc Expert Working Group on Biodiversity and Climate Change highlights the linkages between the policy areas and emphasizes the importance of promoting synergy between them.[74]

Conserving biodiversity also helps mitigate climate change, by protecting the natural carbon capture and storage capacity of ecosystems.  In order to ensure that biodiversity becomes resilient to the impacts of climate change, it will be necessary to ensure healthy ecosystems and habitats.  Conserving and protecting biodiversity can also help adapt to the impacts of climate change.[75]  On the other hand, biodiversity objectives can suffer with increased climate change.   Some suggested forms of renewable energy – a strong tool for mitigating climate change – may not meet the objectives of biodiversity policies, for example.  Wind turbines are often cited as posing threats to the migration patterns and natural habitats of protected species.  Unsustainable production of bio-energy also poses a risk to biodiversity in terms of habitat conversion.[76]

B. Integration of climate change impacts on biodiversity in implementation of the Convention on Biological Diversity

Biodiversity management can contribute to climate change mitigation and adaptation by conservation and enhancement of terrestrial, coastal and marine ecosystems as carbon sinks. Slowing deforestation and forest degradation can be beneficial for both biodiversity and mitigation of climate change.  The European Union’s political commitment to climate policy integration in the biodiversity sector is recently developing.[77]  In 2006 the European Commission adopted a Biodiversity Action Plan and  had the ambitious target of halting biodiversity loss in the EU by 2010.  The Action Plan outlined ten priority objectives to achieve this goal.  The ninth objective is “supporting biodiversity adaptation to climate change.”[78]

Recognizing the potential impact of climate change on global biodiversity, the EU Biodiversity Action Planendorses ambitious measures and calls on Member States and the European Community to:

Recognise the central role biodiversity and ecosystems can play in reducing the impact of, and adapting to, climate change, for instance in helping to reduce floods, prevent erosion or absorb greenhouse gases etc.;

Ensure that any mitigation or adaptation measures adopted to combat climate change do not impact negatively on biodiversity . . .

Ensure that the relationship between climate change and biodiversity is fully recognised.[79]

This ambitious target has failed.  What is next?  In January 2010, the European Commission released options for a post-2010 biodiversity policy framework in the EU that highlighted the importance of ensuring synergies between climate and biodiversity objectives since “biodiversity loss jeopardizes climate objectives” and outlined next steps.[80]  These steps include: “significantly” reducing “the rate of loss of biodiversity and ecosystem services in the EU by 2020”, halting the loss of biodiversity and ecosystem services in the EU by 2020 and restoring them “insofar as possible…”.[81]

Arresting climate change will help to slow down biodiversity loss.  Synergy between the UNFCCC and the CBD can and should create an opportunity to implement mutually beneficial activities.

C. Using the U.S. Endangered Species Act to combat climate change

At the national level, in the U.S., the Endangered Species Act (16 U.S.C. § 1531 -1544) has been used as a tool to stop or reduce climate change. The Center for Biological Diversity filed several petitions using the Endangered Species Act to put political pressure on the government, legislature, and companies to take appropriate measures to protect species affected by climate change.  The Center for Biological Diversity’s petitions target the polar bear, the American pika, and the white-tailed ptarmigan.

The first petition requested that the U.S. Fish and Wildlife Service (FWS) include the polar bear on the endangered species list.  In 2008, the FWS  classified the polar bear as “threatened” but not “endangered”, and the FWS refused to increase the protections available to the polar bear to “endangered” status.  In a December 22, 2010 court filing the FWS justified its decision to list the polar bear as “threatened” on the grounds that the polar bear does not qualify as an endangered species because its range and its numbers “were relatively constant”.[82]

The U.S. government on November 24, 2010 designated “critical habitat” for polar bears living in Alaska.  The greatest threat to the polar bear is the melting of its sea ice habitat caused by human-induced climate change.  The Fish and Wildlife Service set aside 187,000 square miles off Alaska as the threatened polar bears’ habitat.  A “criticial habitat” designation means any federal project that could affect the polar bear must undergo careful review.  This decision to designate critical habitat for the polar bear could affect new oil and gas drilling projects in the Arctic.  It does not prohibit any drilling or other activity in the area, but identifies “specific areas within the geographical area occupied by the species … on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections.”[83]      The critical habitat designation, however, “[e]xcept in those circumstances determined by the Secretary … shall not include the entire geographical area which can be occupied by the threatened or endangered species.”[84]  The Fish and Wildlife Service acknowledged that the polar bear critical habitat designation, which includes swaths of the Beaufort and Chukchi Seas off northern Alaska, encompass[es] “areas where oil and gas exploration activities are known to occur.”[85]

In 2008 the Center for Biological Diversity (represented by EarthJustice) filed a second petition to the U.S. Fish and Wildlife Service  to list the American pika as a threatened species and to give the pika federal protection under Endangered Species Act.[86]  The U.S. FWS stalled in addressing the petition.    After initially finding that a listing may be warranted for the pika, the U.S. FWS concluded on February 4, 2010 that the pika could adapt to climate change and denied the Center for Biological Diversity’s petition.[87]  The FWS declined to list American pika as threatened but then announced a 12-month finding on a petition to list the American pika as threatened or endangered under the Endangered Species Act and ask the public to submit any new information that becomes available concerning the threats to the American pika.[88]

The Center for Biological Diversity also battled for protected status of the pika at the state level and sought to have the pika listed as a protected species under the California Endangered Species Act due to threats from global warming.  The California State Fish and Game Commission twice rejected the Center for Biological Diversity’s petition, but in October 2010 a  San Francisco judge ordered the California Fish and Game Commission to reconsider its decision denying state endangered species protection to the pika.[89]

Similarly, climate change is the greatest threat to the survival of the white-tailed ptarmigan due to a loss of its alpine habitat which is shrinking in hotter temperatures caused by GHG emissions.  The birds’ plumage is mottled grey, brown and black in the summer and pure white in the winter that helps them to camouflage and survive.  With winters getting shorter and summers longer, their plumage is not changing in accord with seasons thereby exposing them to dangers.  Warmer winter temperatures and the movement of tree line upslope to higher elevations, until there’s no more room to rise, will cause white-tailed ptarmigan habitat to become unsuitable for its survival.  In August 2010, the Center for Biodiversity filed a Scientific Petition with the FWS to obtain federal protection for the white-tailed ptarmigan as threatened under the Endangered Species Act.[90]

IV. Confluence between climate change, biodiversity, and human rights

A. Climate change impacts the enjoyment of fundamental human rights

Climate change impacts the enjoyment of fundamental human rights – to life, health, culture, subsistence, water, food, and shelter.  Those human rights are recognized in the main human rights treaties and the regional human rights conventions.  The strong language of human rights treaties can be used for combating climate change and protecting biodiversity.  There are already examples of this approach being put into practice, and yielding positive results.

The 2005 Inuit Petition against the United States and filed with the Inter-American Commission on Human Rights (IACHR) was a landmark attempt to establish the connection between climate change and violation of human rights.[91]  Although the Petition was dismissed without prejudice, the petitioner requested and was granted the opportunity to address the IACHR on 1 March 2007.[92]

In 2008, the UN Human Rights Council adopted by consensus Resolution 7/23 “Human Rights and Climate Change (Resolution).”[93]  The Resolution was co-sponsored by 69 countries.  The Resolution recognizes that climate change poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.  The Resolution requests that the Office of the United Nations High Commissioner for Human Rights (OHCHR) conduct a detailed study on human rights and climate change.[94] The OHCHR conducted the requested study, and its 2009 Report on the relationship between climate change and human rights outlined several significant impacts of climate change on the enjoyment of specific human rights.  It concluded that States have duties to protect the human rights of those affected by climate change (including those who have been displaced) regardless of whether or not they are ‘responsible’ for the problem (e.g. regardless of their level of GHG emissions).[95]

The most recent version of the draft negotiating text of the UNFCCC Ad-hoc Working Group on Long-term Cooperative Action (AWG-LCA) adopted during COP 16 in Cancun stated:

Noting resolution 10/4 of the United Nations Human Rights Council on ‘human rights and climate change’, which recognizes that the adverse effects of climate change have a range of direct and indirect implications for the effective enjoyment of human rights and that the effects of climate change will be felt most acutely by those segments of the population that are already vulnerable owing to geography, gender, age, indigenous or minority status and disability. (italics original) [96]

The shared vision for long-term cooperation mentions the need to respect human rights… “Emphasizes that Parties should, in all climate change-related actions, fully respect human rights;”[97]

B. Why a human rights approach to climate change and biodiversity?

Climate change is not only an environmental but also a human rights issue for the millions of people and communities around the world experiencing rising sea levels, severe floods and storms, melting glaciers, and other adverse impacts.  Human rights considerations must be taken into account when considering possible negative consequences of measures taken in response to climate change, which may cause violation of human rights.

With respect to adaptation and mitigation, UNFCCC Parties have existing obligations to respect, protect and promote full and effective enjoyment of human rights to safeguard the most vulnerable from the adverse impacts of climate change.

Procedural rights (access to information, full and effective participation in decision making, and access to justice) are important tools in protecting human rights,[98] reinforcing Articles 4 and 6 of the UNFCCC, and Principle 10 of the Rio Declaration.

1. Strong human rights treaties related to climate change

Major human rights treaties – the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the American Convention on Human Rights, the European Convention on Human Rights and Fundamental Freedoms, the African Charter on Human and People Rights – were developed before environmental degradation and climate change were recognized as threats to humanity.[99]  Nevertheless, they capture a range of concerns related to climate change.  A primary example of which is found in Article 1 of the ICCPR: “[i]n no case may a people be deprived of its own means of subsistence”.[100]  This is clearly relevant to climate change affecting access to basic subsistence needs such as water, food, shelter, and health which are provided for in Article 25 of the UNDHR.

Article 3 of the UNDHR states that “everyone has the right to life, liberty and security of person.”[101]  Similarly, Article 6 of the ICCPR provides that “every human being has the inherent right to life.  This right shall be protected by law.  No one shall be arbitrarily deprived of his life.”[102]  These provisions have been interpreted to require States to take positive measures, including reducing infant mortality and increase life expectancy.[103]

Climate change may have a direct and indirect impact on human life: for example, through climate induced disasters, deterioration in human health due to climate-borne diseases, and limited access to safe drinking water.  Climate change therefore has an impact on the rights to health, culture, self-determination, indigenous peoples’ rights.[104]

The Inter-American Commission on Human Rights has recognized that the enjoyment of cultural rights and the survival of indigenous communities are dependent on the physical environment.[105]  This is particularly relevant for small island states that are facing the real threat of extinction.  If indigenous communities are forced to migrate as a result of rising sea levels, their cultural rights would very likely be violated.[106]

The UN Declaration on the Rights of Indigenous Peoples (2007) recognizes the rights of indigenous communities to practice and revitalize their cultural practices, customs and institutions.  It emphasizes the intrinsic link between culture and land.[107]  Climate change impacts upon land can also fundamentally affect rights to practice traditional ways of living.

2. Established human rights institutions and their jurisprudence

Human rights institutions are well-established and can be used to protect human rights violated by climate change.  On a global level these institutions are: the United Nations Human Rights Council, and the Human Rights Committee under the ICCPR.  On regional level, the relevant institutions are the Inter-American Commission and Court of Human Rights, the European Court of Human Rights, and the African Commission and Court of Human Rights.  These institutions have not been used for defending human rights caused by climate change (except for the unsuccessful attempt of Inuit Petition to Inter-American Commission of Human Rights) and have most frequently been used to protect the right to culture.  However, creative interpretation of human rights in the case law of those institutions can be used to defend human rights affected or violated by climate change

On March 28, 2011, the Inter-American Commission on Human Rights during its 141st  regular session discussed inter alia climate change and its impacts on access to freshwater in the Americas.  As a result of this hearing, the Inter-American Commission took an important step in recognizing that climate change and its impacts affect the most fundamental human rights.   The Inter-American Commission stated:

The Commission also received alarming information on the already serious impact of anthropogenic climate change on the enjoyment of human rights, especially in mountain regions where the widespread loss of glaciers and snow pack and rising temperatures are diminishing access to water, harming food production, and introducing new diseases.  The Commission urges States to keep human rights at the forefront of climate change negotiations, including in designing and implementing measures of mitigation and adaptation.[108]

Human rights institutions have been used to defend human rights of victims that are caused by environmental degradation.  Regional human rights courts have developed case law creatively interpreting human rights that are violated by degradation of the environment.  The European Court of Human Rights has found violation of the right to life,[109] and the right to privacy and family life,[110] related to degradation of the environment in several cases.  The Inter-American Courts of Human Rights has found violation of the land rights of indigenous people in the landmark Awas Tingni v. Nicaragua case.[111]

C. REDD-plus: climate change, biodiversity and indigenous peoples’  rights

The United Nations’ Reducing Emissions from Deforestation and Degradation (REDD) program is an area where human rights issues such as indigenous peoples’ rights, and environmental issues such as protection of the forest and biodiversity, are best known but they are poorly addressed. LL.M

The Kyoto Protocol focuses primarily on the reduction of greenhouse gases, but also recognizes the importance of strategies to minimize the loss of carbon sinks.[112]  The subsidiary Body for Scientific and Technological Advice (SBSTA), created under UNFCCC, requested that the IPCC prepare a special report on land use and carbon sequestration, as applied to the Kyoto Protocol.[113]  The subsequent Special Report highlighted the importance of carbon sequestration through proper forest management.[114]  It also highlighted issues of sustainability, including biodiversity and impact on local populations.[115]

After the IPCC issued the Special Report, the role of forest management by developing countries in reducing carbon in the atmosphere was in limbo until 2005, when Papua New Guinea requested the UNFCCC Secretariat add “Reducing emissions from deforestation in developing countries: approaches to stimulate action” as a topic to the provisional agenda of the COP at its 11th Session.[116]  Papua New Guinea, along with Costa Rica and with the support of many developing nations, also submitted a report with the same title.[117]  The Special Report described the importance of biodiversity in these two countries.[118]  It emphasized the important role forests play in atmospheric carbon levels.[119]  And it requested the Conference of the Parties (COP) to include forest management in its reviews and deliberations.[120]  The COP did take up this agenda item at the 13th Conference of the Parties in 2008.  The Parties agreed to the “Bali Action Plan”, which included, amongst other things, “positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries”.[121]  Importantly, this decision also recognized that the needs of “local and indigenous communities should be addressed when action is taken.”[122]

The Bali Action Plan was followed by the COP 14 in Poznan, Poland in 2008 when during the meeting of SBSTA, “REDD-plus” came into existence.[123]

The Ad Hoc Working Group on Long-Term Cooperative Action (AWG-LCA) under the UNFCCC prepared a draft negotiation text for COP 15 in Copenhagen in 2009.[124] This 200-page text includes various alternatives for many of the suggested paragraphs and was unmanageable for negotiation and for reaching a consensus.  For example, paragraphs 108 and 109 propose text on biodiversity and the rights of indigenous peoples.  Paragraph 108 has four (4) alternative paragraphs; Paragraph 108 refers to biodiversity as an “environmental co-benefit” (Paragraph 108 and Alternatives 1, 2, 3, and 4 Option 1).[125]  Alternative 4, Option 2 does not refer to biodiversity as a “co-benefit” but simply as an “environmental benefit[].[126]  All versions of the text say that biodiversity should be “promoted”, while some of the versions say it should also be “taken into account”.[127]  Paragraph 109.1 states that REDD-plus actions should be “consistent …  with the Convention on Biodiversity[.]”[128]  Paragraph 109 also concerns indigenous people and local communities: “there should be full and effective engagement” with them in designing and implementing REDD-plus plans and that their “rights” should be respected.[129]  Paragraph 109, Alternative 1, states that these groups should be “engaged”, but only in “accordance with national legislation and appropriate international law.”[130]  All three versions of Paragraph 109 mention indigenous peoples’ “rights” and that these people’s rights should be “respected”.[131]

At the COP 15 in Copenhagen in 2009, Decision 4/CP.15 mandated further work on the REDD-plus initiative in lines with Decisions 1/CP.13 and 2/CP.13.[132]  It “[e]ncourages, as appropriate, the development of guidance for effective engagement of indigenous peoples and local communities in monitoring and reporting”.[133]

At the COP 16 in Cancun, in the “Outcome of the work of the AWG-LCA” the Parties reaffirmed their commitment to REDD-plus.[134]  The parties stated that implementation of REDD-plus initiatives should take “into account the need for sustainable livelihoods of indigenous peoples and local communities and their interdependence on forests in most countries …”.[135]

A culmination of development of REDD-plus objectives at the UN level is the UN Collaborative Program on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (UN-REDD+).  The constitutive document for the REDD Program[136] states that the “application of UNDP, UNEP and FAO rights-based and participatory approaches will also help ensure the rights of indigenous and forest-dwelling people are protected and the active involvement of local communities and relevant institutions in the design and implementation of REDD plans.”[137]

According to REDD-plus, countries will be rewarded for improved protection and management of forests using carbon stocks.  However, to produce carbon credits the project must be able to demonstrate that its activities have reduced the rates of emissions from degradation and deforestation compared to the baseline.[138]

One of the important components of the connection between human rights of indigenous people and REDD-plus is free prior and informed consent (FPIC).  FPIC means for ”people [to] exercise their fundamental right to negotiate the terms of the externally imposed policies, programs, and activities that directly affect their livelihoods of well-being, and to give or withhold their consent to them.”[139]

The legal framework for free, prior, and informed consent is a rather new aspect of international law and policy.  However, its elements were established in the International Labor Organization Convention 169,[140] the Convention on Biological Diversity[141], and the United Nations Convention on Climate Change.[142]

As part of REDD-plus, the UN-REDD Programme has adopted ”Operational Guidance: Engagement of Indigenous Peoples &  other forest dependent communities”[143] that is fully based on the UNDIPR and FPIC principles..

In addition, according to the Article 29 of UDIPR, “[I]ndigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources.  States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection…This provision can be interpreted as a connection between biodiversity and right of indigenous peoples to participate in the protection of the environment through their involvement into management of natural resources, including national parks and other protected areas.

In developing reporting systems at both the international and national levels, Parties should create opportunities for non-Parties to submit information on how the REDD+ safeguards are being addressed and respected.  Such participation will ensure that individuals, communities or peoples whose rights may be impacted by REDD-related actions have a forum that will hear their concerns.[144]

D. Procedural rights in UNFCCC framework

According to Article 4.1 of the UNFCCC, Parties are obligated to “cooperate in education, training and public awareness related to climate change” and to “encourage the widest participation” in the UNFCCC framework.[145]  To fulfill this commitment, Parties must, among other things, promote and facilitate “public participation in addressing climate change and its effects and developing adequate responses” at the national, subregional and regional levels.[146]

The Cancun Agreements recognize the value of public participation in the UNFCCC framework.  Paragraph 8 of the LCA decision provides that “Parties should, in allclimate change-related actions, fully respect human rights[,]”[147] which includes the rights of affected individuals and peoples to participate in decision-making processes.  To fulfill the Parties’ existing human rights obligations, rights considerations should guide the development, implementation and monitoring of UNFCCC processes and mechanisms.

The Cancun Agreements also describe the need to consider “information from those affected, and evidence of actual impacts” of mitigation or response measures, and require Parties to consider existing channels, such as national communications and possible submissions of supplementary information, as a means for “those affected” to provide such information.[148]  The Parties will consider the impacts of the implementation of response measures at the upcoming forum to be held at the thirty-fourth and thirty-fifth sessions of SBSTA and SBI.  In these negotiations, the Parties will work to develop modalities for operationalization of the work program and a possible response measure mechanism to be adopted at COP17.[149]

To promote the full and effective participation of affected peoples and communities, the Parties should establish a response measures mechanism with a mandate to consider and address communications from those affected by the implementation of response measures.  This mechanism should assess the human rights impacts of the response measures in question, and make recommendations to avoid or minimize these impacts.

Access to information and public participation are important part all parts of UNFCCC framework including adaptation, reporting and implementation of REDD-plus safeguards, measurement, reporting, and verification.

At CMP 5 (in Copenhagen), the Parties requested the Clean Development Mechanism Executive Board (CDM EB) to “establish, following consultation with stakeholders, procedures for considering appeals that are brought by stakeholders directly involved, defined in a conservative manner, in the design, approval or implementation” of CDM projects.[150]  At CMP6 (in Cancun), Subsidiary Body for Implementation (SBI) was requested to make recommendations to the Parties with a view to adopting a decision on procedures, mechanism and institutional arrangements to allow for appeals against CDM ED decisions at CMP7 (in Durban).  The EU expressed interest in exploring an “expansion of the right of appeal.”[151]  Standing to appeal must not be limited to project participants and national authorities of involved Parties, but must extend more broadly to project-affected peoples and communities, and the public concerned.

During the sixth meeting of the Task Force on Public Participation in International Forums, established by the Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention),[152] held in Geneva on February 23, 2011, challenges were analyzed and recommendations were made how to enhance public participation in the UNFCCC.[153]  The Secretariats of the UNFCCC and other UN Economic Commission for Europe Conventions, international financial institutions, academia, and civil society participated and made a number of recommendations on how the involvement of civil society in the UNFCCC process might be enhanced, including inter alia direct participation of representatives of civil society by allocating speaking slots during negotiations.[154]

At its thirty-second session, the Subsidiary Body for Implementation (SBI) under UNFCCC welcomed the continued interest of observer organizations, affirmed the value of the engagement of observer organizations as contained in Article 7, paragraph 2(l), of the UNFCCC, and acknowledged the important role of civil society representation in the intergovernmental process.[155]

The SBI, at its twenty-sixth session, took note of the experience gained from current arrangements for the participation of observer organizations and from relevant developments of good practice within the United Nations system, including the Almaty Guidelines of the Aarhus Convention.  The SBI requested that the secretariat monitor and incorporate into its current practices any relevant development of good practices within the United Nations system in order to further enhance the participation of observer organizations.[156]

SBI has started to recognize speaking rights (interventions) of civil society.  Discussing the possibility of observers’ intervention, the Synthesis Report highlighted the Aarhus Convention process, in which NGOs have the same speaking rights as Parties and form part of drafting groups producing negotiating text during meetings of the Parties.[157]  It also suggests written submissions by civil society on all substantive issues.

It is probably too early to suggest access to justice for NGOs or those who are affected not only in CDM Executive Board but also to the Executive Branch of the Kyoto Protocol Compliance Committee (an Aarhus Convention-like approach)?  As a first step, NGOs and civil society may be allowed to submit information about non-compliance to the UNFCCC Secretariat and the Secretariat will decide whether to forward this information to the Compliance Committee of the Kyoto Protocol.

V.     Conclusions

The impacts of climate change on biodiversity are multiple and proven by scientists.  The climate change problem impacts not only animals and landscapes. It impacts human health, causes water shortages, contributes to extreme weather conditions and results in human suffering.

The protection of biodiversity can be part of the solution of climate change, e.g. oceans or forests serving as carbon sinks.  Mitigation and adaptation to the inevitabilities of climate change will benefit from using human rights institutions and tools.  Synergy between climate change, biodiversity and human rights grows and contributes to their confluence.

[1] Professor of the University of Oregon, LL.M. Program Director, Vice Chair of the United Nations Economic Commission for Europe the Aarhus Convention Compliance Committee (Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, signed in Aarhus on June 25, 1998).. Author expresses appreciation to research assistants, LL.M. students, Allen Rodney, Hood Alex, Westfall Robert and special thanks to Holmes Elisabeth for her contribution and editing.

[2]American Pika, World Wildlife Fund, http://www.worldwildlife.org/species/finder/americanpika/americanpika.html (last visited June 2, 2011).

[3]United Nations Framework Convention on Climate Change [hereinafter UNFCCC], Art. 2, opened for signature June 12, 1992 and entered into force March 21, 1994, available at unfccc.int/essential_background/convention/background/items/1349.php (last visited June 2, 2011).

[4]Ahmed Djoghlaf, Executive Secretary, Convention on Biological Diversity, Statement delivered to the World Heritage and Climate Change Expert Meeting held at United Nations Educational, Scientific and Cultural Organization [hereinafter UNESCO], Paris, (March 16-17, 2006) (transcript available in Climate Change and World Heritage:  Report on predicting and managing the impacts of climate change on World Heritage and Strategy to assist States Parties to implement appropriate management responses), available at http://whc.unesco.org/documents/publi_wh_papers_22_en.pdf (last visited June 2, 2011).

[6] UNESCO World Heritage Convention, Policy Document on the Impacts of Climate Change on World Heritage Properties, at 3 (2008), available at whc.unesco.org/uploads/activities/documents/activity-393-2.pdf (last visited June 2, 2011).

[7]UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, Art. 2, adopted Nov. 16, 1972, available at http://whc.unesco.org/archive/convention-en.pdf (last visited June 2, 2011).

[8] Kyoto Protocol to the UNFCCC, opened for signature March 16, 1998 [hereinafter Kyoto Protocol], available at http://unfccc.int/resource/docs/convkp/kpeng.pdf and see http://unfccc.int/kyoto_protocol/items/2830.php (last visited June 2, 2011).

[9]UNESCO danger-listing petitions presented, Climate Justice Programme, 17 November 17, 2004,  available at http://climatelaw.org/cases/country/intl/unesconepal/2004Nov17 (last visited June 2, 2011).

[10]Groups petition to list Waterton-Glacier International Peace Park ‘in danger’, Climate Justice Programme, February 16, 2006, available at http://www.climatelaw.org/media/2006Feb16/ (last visited June 2, 2011).

[11]Threats to World Heritage Properties, World Heritage Committee Decision 05/29 COM 7B.a, Para. 5 – Sept. 9, 2005.  available at http://whc.unesco.org/archive/2005/whc05-29com-22e.pdf (last visited June 2, 2011).

[12]Id., para. 6.

[13]UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, Art. 11.4, adopted Nov. 16, 1972, available at http://whc.unesco.org/archive/convention-en.pdf (last visited June 2, 2011).

[14]See Climate Change Threatens World Heritage Sites, UNESCO World Heritage (Apr. 10, 2007)  available at http://whc.unesco.org/en/news/319 (last visited June 2, 2011); see also Case Studies on Climate Change and World Heritage, UNESCO World Heritage (2009) available at http://whc.unesco.org/uploads/activities/documents/activity-473-1.pdf (last visited June 2, 2011).

[15] Petition to the World Heritage Committee from Earthjustice and Australian Climate Justice Program, The Role of Black Carbon in Endangering World Heritage Sites Threatened by Glacial Melt and Sea Level Rise, Jan. 29, 2009, available at http://whc.unesco.org/uploads/activities/documents/activity-393-4.pdf (last visited June 2, 2011).

[16] Derek Markham, Experts Say Ocean Acidification is a  ‘Planet Changer’, Planetsave (Mar. 29, 2009), available at http://planetsave.com/2009/03/29/experts-say-ocean-acidification-is-a-planet-changer/ (last visited June 2, 2011).

[17] Miyoko Sakashita, EPA Evaluates Ocean Acidification as a Threat to Water Quality Under Clean Water Act,  Environmental News Network (Apr. 15, 2009) available at http://www.enn.com/wildlife/article/39681# (last visited June 2011).

[18] Petition to U.S. Environmental Protection Agency [hereinafter EPA] for Revised Ph Water Quality Criteria under Section 304 of the Clean Water Act, 33 U.S.C. § 1314, to Address Ocean Acidification (hereinafter Ocean Acidification Petition) at 7, Dec. 18, 2007, available at http://www.biologicaldiversity.org/campaigns/ocean_acidification/pdfs/section-304-petition-12-18-07.pdf, citing Kleypas, J.A., et al., Impacts of Ocean Acidification on Coral Reefs and Other Marine Calcifiers (2006) (last visited June 2, 2011).

[19] James C. Orr, et al. Anthropogenic ocean acidification over the twenty-first century and its impact on calcifying organisms, 437 Nature 681 September 29, 2005, available at http://iehost.net/pdf/Orr_OnlineNature04095.pdf (last visited June 2, 2011).  See also Hoegh-Guldberg, et al., Coral Reefs Under Rapid Climate Change and Ocean Acidification, 318 Science1737-1742 (2007).

[20] See, e.g., Jessica W, Ocean Acidification:  The Untold Stories, Oceana Blog (Dec. 3, 2010) available at http://na.oceana.org/en/blog/2010/12/ocean-acidification-the-untold-stories (last visited June 2, 2011).

[21] Orr, supra note 21.

[22] J. Timothy Wootton et al. Dynamic patterns and ecological impacts of declining ocean pH in a high-resolution multi-year dataset. Proceedings of the National Academy of Sciences of the United States of America, Vol. 105, No. 48 (Dec. 2, 2008). available at http://www.pnas.org/content/105/48/18848.full (Last visited June 2, 2011).

[23] Bindoff, N.L. et al. Intergovernmental Panel on Climate Change [hereinafter IPCC] 4th Report, “Observations:  Oceanic Climate Change and Sea Level” in Climate Change 2007:  The Physical Science Basis.  Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change.  Cambridge University Press, Cambridge, United Kingdom and New York, NY USA at 405-406 (2007) available at http://www.ipcc.ch/publications_and_data/publications_ipcc_fourth_assessment_report_wg1_report_the_physical_science_basis.htm (Last visited June 2, 2011); See also  State of the Science FACT Sheet:  Ocean Acidification,National Oceanic and Atmospheric Administration (May 2008) available athttp://www.nrc.noaa.gov/plans_docs/2008/Ocean_AcidificationFINAL.pdf  (last visited June 2, 2011).

[24] Ocean Acidification Petition, supra note 20 at 7, citing K. Caldeira & M.E. Wickett, Anthropogenic Carbon and Ocean pH,  425 Nature, 365 (2003), and R.A. Feely et al., Carbon Dioxide and Our Ocean Legacy,  The Pew Charitable Trust Science Brief. (2006) available at http://www.ocean-acidification.net/OAdocs/PewFactSheet.pdf (last visited June 4, 2011), and R.A. Feely et al, Impact of Anthropogenic CO2 on the CACO3 System in the Oceans,  305 Science ___, 362-366 (2004).

[25] Ocean Acidification Petition, supra note 20 at 9, citing K. Caldeira et al., Comment on Modern-age buildup of C02 and its effects on seawater acidity and salinity, by Hugo A. Loaiciga, Geophysical Research Letters 34:  L18608 (2007).

[26]See IPCC 4th Report at 406.

[27]See Ocean Acidification Petitionsupra note 20.

[28] A comprehensive analysis of the Ocean Acidification Petition and can be found in Robin Kundis Craig, Climate Change Comes to the Clean Water Act: Now What?1 Wash. & Lee J. Energy, Climate, & Env’t9 (2010).

[29] Press Release, Center for Biological Diversity, Lawsuit Filed Against Environmental Protection Agency for Failure to Combat Ocean Acidification, (May 14, 2009) available at http://www.biologicaldiversity.org/news/press_releases/2009/ocean-acidification-05-14-2009.html (last visited June 2, 2011).

[30]Ocean Acidification, Center for Biological Diversity  available at http://biologicaldiversity.org/campaigns/ocean_acidification/index.html (last visited June 2, 2011);  see also EPA Memorandum from Denise Keehner, Director, Office of Wetlands, Oceans and Watersheds to Water Division Directors Regions 1-10, Integrated Reporting and Listing Decisions Related to Ocean Acidification.  (Nov. 15, 2010) [hereinafter EPA Memorandum] available at water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/upload/oa_memo_nov2010.pdf) (last visited June 2, 2011).

[31] Supra, EPA Memorandum.

[32] United Nations Environment Program [hereinafter UNEP] Report, Emerging Issues:  Environmental Consequences of Ocean Acidification:  A Threat to Food Security.  (2010) available at http://www.unep.org/dewa/pdf/Environmental_Consequences_of_Ocean_Acidification.pdf (last visited June 2, 2011).

[33] UNEP Abstract ‘Acidification’ May Push Already Over-Stressed Oceans Into the Red at 1.  (Dec. 2, 2010) available at http://www.rona.unep.org/documents/news/20101202_ocean_acidification_PR_English.pdf (last visited June 2, 2011).

[34]The Struggle, ЎSin Represas! (2009), available at http://sinrepresas.com/struggle.htm (last visited June 2, 2011).

[35]Id.

[36]Id.

[37] United Kingdom Privy Council Appeal No. 47 of 2003 from the Court of Appeal of Belize,Belize Alliance of Conservation Non-Governmental

Organizations v .The Department of the Environment and Belize Electric Company Limited, p. 2-3. (Jan. 29, 2004) available at www.privy-council.org.uk/files/other/bacongo.jud.rtf (last visited June 4, 2011).

[38]Id., at 3.

[39]Id.para.

[40]Id. para.

[41]Id. at 11.

[42]Id. at 16-17, quoting Lieutenant Colonel Alastair Rogers.

[43]Id.

[44]Id.  at 3.

[45]Id. at 4.

[46]epl.org.ua/en/lawnbspnbspnbsp/public-participation/cases/tashlytska-pumped-storage-hydro-station/

[47]Id

[48]http://reyestr.court.gov.ua/Review/13948410

[49]Supra note 46

[50] Press Release, IACHR Concludes Its 141st Regular Session, Organization of American States, No. 28/11, Para. 6 (April 1, 2011) available at http://www.cidh.oas.org/Comunicados/English/2011/28-11eng.htm (last visited June 4, 2011).

[51] John H. Martin & Steve E. Fitzwater, Iron Deficiency Limits Phytoplankton Growth in the North-East Pacific Subarctic, 331 Nature 341, 342-3 (1988).

[52] Quirin Scheirmeier, Iron Seeding Creates Fleeting Carbon Sink in Southern Ocean, 428 Nature 788 (2004).

[53]See Kenneth H. Coale et al., A Massive Phytoplankton Bloom Induced by Ecosystem-Scale Iron Fertilization Experiment in the Equatorial Pacific Ocean, 383 Nature 495, 499 (1996).

[54] Rachel Petkewich, Fertilizing the Ocean with Iron, 86 Chem. & Eng’gNews 30, 31 (2008).

[55] Schiermeier, supra note 53 at 788.

[56]Id.

[57]See R.E. Zeebe & D. Archer, Feasibility of Iron fertilization and its Impact on Future Atmospheric CO2 Levels, 32 Geophys. Res. Lett. 4 (2005).

[58]Id. at 3.

[59] Petkewich, supra note 55, at 3.

[60] Schiermeier, supra note 53, at 788.

[61] Sid Perkins, Iron Fertilization in Ocean Nourishes Toxic Algae, Science News (Mar. 15, 2010), available at http://www.sciencenews.org/view/generic/id/57318(as reprinted at http://www.cacoastkeeper.org/news/iron-fertilization-in-ocean-nourishes-toxic-algae- (last visited June 4, 2011).

[62]Id.

[63]Id.

[64] Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter [hereinafter London Convention] adopted Nov. 13, 1972, entry into force August 30, 1975). Summary available at http://www.imo.org/About/Conventions/ListOfConventions/Pages/Convention-on-the-Prevention-of-Marine-Pollution-by-Dumping-of-Wastes-and-Other-Matter.aspx (last visited June 4, 2011).

[65] 1996 Protocol to the London Convention adopted Nov. 7, 1996, entry into force March 24, 2006.  Summary available at http://www.imo.org/About/Conventions/ListOfConventions/Pages/Convention-on-the-Prevention-of-Marine-Pollution-by-Dumping-of-Wastes-and-Other-Matter.aspx (last visited June 4, 2011). See also Quirin Schiermeier, Convention Discourages Iron Fertilization, Nature (Nov. 12, 2007)http://www.nature.com/news/2007/071112/full/news.2007.230.html (last visited June 4, 2011).

[66]Input to the FCCC/AWGLCA/2008/16 – The Assembly Document, Annex III, Para. 8 at 19. Note by the International Maritime Organization,Ocean Fertilization and C02 sequestration in sub-seabed geological formations.  “Outcome Of the 30th Consultative Meeting of Contracting Parties to the London Convention/3rd Meeting Of Contracting Parties to the London Protocol (27 – 31 October 2008)”,     available at http://unfccc.int/resource/docs/2008/smsn/igo/026.pdf (Last visited June 4, 2011).

[67]Id.  para. 4, 5 and 7 at 19.

[68]Id., para. 4, at16.

[69]Id., para. 5.1, at16.

[70] Convention on Biodiversity, Bonn, Germany, May 19-30, 2008, Biodiversity and Climate Change, Para. 2, Ocean Fertilization Decision IX/16C.  available at http://www.cbd.int/decision/cop/?id=11659 (last visited June 5, 2011).

[71] Convention on Biodiversity, Nagoya, Japan, Oct. 18-29, 2010, Biodiversity and Climate Change, Draft decision submitted by the Chair of Working Group, Para. 8(w), UNEP/CBD/COP/10/L.36,  (Inviting Parties and Governments to “[e]nsure . . . that no climate-related geo-engineering activities (footnote omitted) that may affect biodiversity take place, until there is an adequate scientific basis on which to justify such activities and appropriate consideration of the associated risks for the environment and biodiversity and associated social, economic and cultural impacts, with the exception of small scale scientific research studies . . . ”) available at http://www.cbd.int/cop10/insession/ (last visited June 5, 2011).

[72]See UNFCCC, Negotiating text prepared by Ad Hoc Working Group on Long-term Cooperative Action

under the Convention, Twelfth Session, Tianjin,  October 4-9, 2010, AWGLCA/2010/14, available at http://unfccc.int/resource/docs/2010/awglca12/eng/14.pdf (last visited June 5, 2011).

[73]  See UNFCCC,Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Advance unedited version – Draft decision -/CP.16 [hereinafter Cancun LCA Decision] available at http://unfccc.int/files/meetings/cop_16/application/pdf/cop16_lca.pdf (last visited June 5, 2011).

[74]Towards a Strategy on Climate Change, Ecosystem Services and Biodiversity: A Discussion Paper Prepared by the EU Ad Hoc Expert Working Group on Biodiversity and Climate Change. Working with Nature (2009) available at http://ec.europa.eu/environment/nature/pdf/discussion_paper_climate_change.pdf (last visited June 5, 2011).

[75]Id. at 5.

[76] For more information on this issue, see the nature and biodiversity pages of DG Environment of the European Commission.  available at

http://ec.europa.eu/environment/nature_biodiversity/index_en.htm

[77] See, e.g. Claire Dupont, Political Commitment to Climate Policy Integration at EU Level: The Case of Biodiversity  Policy, Edinburgh Europa Paper Series, 2010/05 (Oct. 13, 2010) (finding that political commitment to climate policy integration in the biodiversity sector is slowly developing, but it is a particularly recent phenomenon) abstract available at SSRN http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1691610 (last visited June 5, 2011).

[78] European Commission, The EU Biodiversity Action Plan:  Halting the loss of biodiversity by 2010 – and beyondat 22, (2008) available at http://ec.europa.eu/environment/nature/info/pubs/docs/brochures/bio_brochure_en.pdf (last visited June 5, 2011).

[79]Id. at 23.

[80]Communication from the Commission to the European Parliament, The Council, the European Economic and Social Committee and the Committee of the Regions:  Options for an EU vision and target for biodiversity beyond 2010.  COM (2010) 4 final at 3 (Jan. 19, 2010) available at http://ec.europa.eu/environment/nature/biodiversity/policy/pdf/communication_2010_0004.pdf (last visited June 5, 2011).

[81]Id. at 7-8.

[82] In re:  Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation. (D.D.C.  ____), No. 08-764, U.S. FWS response to remand filed 12/22/10.  (WHERE IS THIS CITATION FROM?  THE LAST DOCUMENT IN WESTLAW FOR THIS CASE IS NOV. 4, 2010. CASE WAS THEN REMANDED TO FWS, BUT THE FWS RESPONSE IS NOT ON FWS WEBSITE AND NOT ON CBD’S WEBSITE).

[83] 16 U.S.C. § 1532(5)(A).

[84] 16 U.S.C. § 1532(5)(C).

[85]See Polar Bear Proposed Critical Habitat Questions and Answers, Fish and Wildlife Service (Alaska Division) Para. 34 at 10, available at alaska.fws.gov/fisheries/mmm/polarbear/pdf/PB%20PropCH.QsAs.FINAL.pdf (last visited June 5, 2011).

[86] See Todd Woody, Ruling Favors the Pint-Size Pika.  The New York Times.  (Oct. 21, 2010) available at http://www.biologicaldiversity.org/news/center/articles/2010/new-york-times-10-21-2010.html (last visited June 5, 2011).

[87]Id.

[88]Id.

[89]Id.

[90] Petition to the U.S. Secretary of the Interior to List the White-Tailed Ptarmigan, (Lagopus leucura) as a Threatened Species Under the Endangered Species Act.  Center for Biological Diversity, Petitioner.  (Aug. 24, 2010) available at http://www.biologicaldiversity.org/species/birds/white-tailed_ptarmigan/pdfs/WTP_Petition.pdf (last visited June 5, 2011).

[91] Petition to the Inter-Am. Comm’n H.R. Seeking Relief from Violations resulting from Global Warming caused by Acts and Omissions of the United States [hereinafter Inuit Petition] (Dec. 7, 2005) available at http://www.inuitcircumpolar.com/files/uploads/icc-files/FINALpetitionICC.pdf (last visited June 5, 2011).

[92] Letter from Ariel E. Dulitzky, Assistant Executive Secretary, IACHR to Shelia Watt-Cloutier, Petitioner (Inuit Petitioner) (Feb. 1, 2007) http://www.ciel.org/Publications/IACHR_Response_1Feb07.pdf (last visited June 5, 2011); see also Press Release, Inter-American Commission on Human Rights to Hold Hearing on Global Warming, EarthJustice (Feb. 6, 2007) http://www.earthjustice.org/library/legal_docs/inter-ameri- can-commission-on-human-rights-inuit-invite.pdf (last visited June 5, 2011).

[93] UN General Assembly, Human Rights Council, 41st Meeting, Human Rights and Climate Change’  A/HRC/7/L.21/Rev.1 (Mar. 28, 2008) available at http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_7_23.pdf (last visited June 5, 2011).

[94]Id. Para. 1 at 3.

[95] UNHCR, Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights, UN Doc A/HRC/10/61 at 28 (2009) available at www2.ohchr.org/english/issues/climatechange/study.htm (last visited June 5, 2011).

[96]  Cancun LCA Decision, supra note 74 at 1.

[97]Id. Para. 8 at 2.

[98] See Svitlana Kravchenko, Procedural Rights as a Tool to Combat Climate Change, 38 Ga. J. of Int’l. & Comp. L. 3,(2010).

[99] UDHR approved Dec. 10, 1948, ICCPR adopted and opened for signature Dec. 16, 1966 and entry into force Mar. 23, 1976, ICESCR adopted and opened for signature Dec. 16, 1966 and entry into force Jan. 13, 1976, American Convention adopted Nov. 22, 1969 and entry into force Jul. 18, 1978, European Convention opened for signature Nov. 4, 1950 and entry into force Sept. 3, 1953, and African Charter adopted Jun. 27, 1981 and entry into force Oct. 21, 1986.  Environmental degradation and climate change were not recognized as threats to humanity until approximately ________.  (SVITLANA – Perhaps this would be helpful info to put the statement into context?  And need a citation to support this statement).

[100] Art. 1, ICCPR.

[101] Art. 3, UNDHR.

[102] Art. 6, ICCPR.

[103] SVITLANA – IS THERE SPECIFIC SUPPORT FOR THIS STATEMENT?  IF SO, IT SHOULD BE FOOTNOTED.

[104] See, e.g., Inuit Petition, supra, notes 94-95.

[105] See, e.g. Maya Indigenous Communities of the Toledo District , Case 12.053, Inter-Am. Comm’n H.R., Report No. 40/04, Para. 120 and n. 127 (Oct. 12, 2004), available at http://www.cidh.oas.org/annualrep/2004eng/Belize.12053eng.htm#_ftn127 (last visited June 5, 2011).

[106] “HumanRights and Climate Change,” paper produced by the Legal Response Initiative at 3, 13.July 19, 2010 (unpublished manuscript)(on file with author)  also available at http://www.legalresponseinitiative.org/download/BP17E%20-%20Briefing%20Paper%20-%20Human%20rights%20and%20climate%20change%20(19%20July%202010).pdf (last visited June 5, 2011).

[107] See, e.g. “Recognising the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures from their culture, spiritual traditions, histories and philosophies, especially their rights to lands, territories and resources.” (Para. 7) and  “Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs.” (Para. 10).  United Nations Declaration on the Rights of Indigenous Peoples, Adopted by General Assembly Resolution 61/295 (Sept. 13, 2007)  available at http://www.un.org/esa/socdev/unpfii/en/drip.html (last visited June 5, 2011).

[108]See IACHR Press Release at Para. 5, supra note 51.

[109]Onerildiz v.Turkey, Application No. 48939/99, ECHR 2004-XII, (2005) 41 Eur. Ct. H.R. 20

(Nov. 30, 2004), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (enter a search by application number) (Last visited June 7, 2011).

[110]See, e.g., Lopez Ostra v. Spain; Application No. 16798/90, Series A No. 303-C, (1995) 20 Eur. Ct. H.R. 277

(Dec. 9, 1994), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (enter a search by application number) (Last visited June 7, 2011); Case of Guerra and others v. Italy; Application No. 14967/89, Reports of Judgments and Decisions 1998-I 26 Eur. Ct. H.R. 357 (Feb. 19, 1998), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (enter a search by application number) (last visited June 7, 2011); Fadeyeva v. Russia, Application No. 55723/00, ECHR 2005-IV, (2007) 45 Eur. Ct. H.R. 10, (Nov. 30, 2005), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (enter a search by application number) (last visited June 7, 2011), and other cases.

[111]Caso de la Comunidad Mayagna (Sumo) Awas Tingni v. Nicaragua, Inter-Am. Ct. H.R. (Ser. C) No. 79 (August 31, 2001), available at http://www.corteidh.or.cr/docs/casos/articulos/Seriec_79_esp.pdf (in Spanish) (last visited June 7, 2011).

[112] Kyoto Protocol, Article 2(1)(a)(ii), which reads: “Protection and enhancement of sinks and reservoirs of greenhouse gases … promotion of sustainable forest management practices, afforestation and reforestation” and Article 3(3), which reads: “net changes in greenhouse gas emissions… resulting from … afforestation, reforestation and deforestation… shall be used to meet the commitments under this Article.” (Available at unfccc.int/essential_background/kyoto_protocol/items/1678.php) (Last visited June 6, 2011).

[113] IPCC, IPCC Special Report: Land Use, Land-Use Change and Forestry, Forward (Approved May 2000) available at http://www.ipcc.ch/pdf/special-reports/spm/srl-en.pdf (last visited June 7, 2011).

[114]Id. at Part II, §3.1, Para. 13-30.

[115]Id. at Part III, §9. Para. 84 states “Consideration would need to be given to … (i) biodiversity … (iv) … human health, poverty and equity”.

[116] UNFCCC, Reducing Emissions from deforestation in developing countries:  approaches to stimulate action, 11th Session, Montreal (Nov. 28-Dec. 9, 2005) FCCC//CP/2005/Misc1, available at http://unfccc.int/resource/docs/2005/cop11/eng/misc01.pdf (last visited June 7, 2011).

[117]Id. at  11 (listing  all of the supporting countries).

[118]Id.at 2.

[119]Id. .at 3-5.

[120]Id. at 10.

[121] UNFCCC, Bali, Dec. 3-15, 2007, Report of the Conference of the Parties on its thirteenth session, FCCC/CP/2007/6/Add.1*, Decision 1/CP.13 “Bali Action Plan”, Art 1(b)(iii), (Mar. 14, 2008) available at http://unfccc.int/resource/docs/2007/cop13/eng/06a01.pdf#page=3 (last visited June 6, 2011).

[122]Id., 2/CP.13, Preamble Reducing emissions from deforestation in developing countries:  approaches to stimulate action.

[123] UNFCC, Reducing emissions from deforestation in developing countries: approaches to stimulate action, FCCC/SBSTA/2008/L.23 (2008), available at unfccc.int/resource/docs/2008/sbsta/eng/l23.pdf (last visited June 6, 2011).  At this 2008 meeting, due to changes requested by India and other countries, the initiative’s name was changed from “REDD” to “REDD-plus”.  See The History of REDD Policy, Carbon Planet White Paper (Dec. 4, 2009), at 14. available at http://unfccc.int/files/methods_science/redd/application/pdf/the_history_of_redd_carbon_planet.pdf (last visited June 6, 2011).

[124] UNFCCC, Ad Hoc Working Group on Long-Term Cooperative Action Under the Convention, 6th Session, Bonn (June 1-12, 2009) FCCC/AWGLCA/2009/INF.1, available at http://unfccc.int/resource/docs/2009/awglca6/eng/inf01.pdf (last visited June 7, 2011).

[125]Id. at 113.

[126]Id. at 113.

[127]Id. at 114, Alternative 1.

[128]Id. at 114.

[129]Id. at. 113, 114.

[130]Id. at 114.

[131]Id.

[132] UNFCCC, Methodological guidance for activities relating to reducing emissions from deforestation and forest degradation and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries, Report of the Conference of the Parties on its fifteenth session, held in Copenhagen from Dec. 7-19, 2009, FCCC/CP/2009/11/Add.1, 4/CP.15 at 11 (Mar. 30, 2010) available at http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf#page=11 (last visited June 6, 2011).

[133] Id. para. 3.

[134] Cancun LCA Decision, supra note 74,  Para. 36, 46(d) and 68-79; see also Annexes 1 and 2.

[135]Id. at Annex I, n 1 at 25.

[136] UN Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries.  (June 20, 2008)  available at http://www.un-redd.org/AboutUNREDDProgramme/tabid/583/Default.aspx (last visited June 6, 2011).

[137] Id. at 7.

[138]Free, prior, and informed consent in the REDD+: Principles and approaches for policy and project development.  The Center for People and Forests and et al. (Feb. 2011). at 7, available at http://www.recoftc.org/site/uploads/content/pdf/FPICinREDDManual_127.pdf (last visited June 6, 2011).

[139]Id. at 15.

[140] International Labour Organization Convention 169, Article 6.1.(b) required Parties to “establish means by which these peoples can freely participate … at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them[]”. “Convention Concerning Indigenous and Tribal Peoples in Independent Countries” adopted June 27, 1989)( available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169 (last visited June 7, 2011).

[141]  Convention on Biological Diversity, adopted May 22, 1992 and entry into force Dec. 29, 1993, Article 8 (j) (requiring”…respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity…” l (Available at www.cbd.int/doc/legal/cbd-en.pdf (last visited June 7, 2011).

[142] Cancun LCA Decision, supra note 74, Annex 1, Para. 2(c) calls for ‘promoting’ and ‘supporting’ safeguards for indigenous peoples and local community rights, noting the adoption of the UN Declaration of the Rights of Indigenous Peoples (UNDRIP).  Article 10 of UNDRIP uses FPIC regarding relocation of indigenous peoples: “No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.” available at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (last visited June 7, 2011). However, it can also be used in REDD-plus.

[143]See UN-REDD Programme Operational Guidance:  Engagement of Indigenous Peoples & other forest dependent communities.  (Mar. 23, 2009) available at http://www.un-redd.org/Portals/15/documents/events/20090309Panama/Documents/UN%20REDD%20IP%20Guidelines%2023Mar09.pdf (last visited June 7, 2011).

[144] Opportunities for Parties to Consider and Address Non-Party Communications in the UNFCCC Framework, draft paper of the Working Group of Human Rights and Climate Change, May 27, 2011, (on file with the author- ___.  .

[145] UNFCCC, Art. 4.1(i).

[146] UNFCCC, Art. 6(a)(iii).

[147] Cancun LCA decision, supra note 74, Para. 8.

[148]Id. para. 92.

[149] CaId. para. 93.

[150] UNFCCC, Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its fifth session, Decision 2/CMP.5, “Further guidance relating to the clean development mechanism,”  para. 42, UNFCCC CMP, 5th Sess., U.N. Doc. FCCC/KP/CMP/2009/21/Add.1 (2010), available at http://unfccc.int/resource/docs/2009/cmp5/eng/21a01.pdf#page=4 (last visited June 7, 2011).

[151] UNFCCC, Views on procedures, mechanisms and institutional arrangements for appeals against the decisions of the Executive Board of the clean development mechanism, UNFCCC SBI, 34th Sess.,U.N. Doc. FCCC/SBI/2011/MISC.2, Para. 22. (April 21, 2011), available athttp://bit.ly/lXquoy (last visited June 7, 2011).

[152] The Aarhus Convention is not legally binding for all Parties to the UNFCCC. It is a regional treaty, with 44 Parties to the UNFCCC also being Parties to the Aarhus Convention. According to Article 3, Para. 7 of the Aarhus Convention all Parties “shall promote the application of the principles of this Convention in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment.”  Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark, adopted June 25, 1998 and entry into force Oct. 30, 2001, available at http://www.unece.org/env/pp/documents/cep43e.pdf (last visited June 7, 2011).

[153] See, e.g. Report on the sixth meeting of the Task Force on Public Participation in International Forums, UN ECE Meeting of the Parties to the Aarhus Convention, 4th Session, Chisinau, June 29 – July 1, 2011 (provisional agenda) available at http://www.unece.org/env/pp/mop4/Documents/ece_mp_pp_2011_6_e.pdf (last visited June 7, 2011).

[154] Synthesis report on ways to enhance the engagement of observer organizations, FCCC/SBI/2010/16,  33rd Session October 19, 2010, Cancun(available at http://www.unece.org/env/pp/ppif/6meeting/SBI%20synthesis%20report%20on%20observer%20participation.pdf (last visited June 7, 2011).

[155]Id. and UNFCCC, Art. 2(l).

[156] UNFCC, Report of the Subsidiary Body for Implementation on its twenty-sixth session, held at Bonn from May 7-18, 2007, FCCC/SBI/2007/15 (June 20, 2007), para. 135, available at http://unfccc.int/resource/docs/2007/sbi/eng/15.pdf (last visited June 7, 2011); see also Synthesis Report, supra note 162 at , para. 14.

[157]See Synthesis Report, Supra note 164 at para. 20, 22.see also, e.g. Presentation of Margreet Wewerinke, Nord-Sud XXI, “Copenhagen… and Beyond?  Evaluating Public Participation in the UNFCCC Process.” Promoting the Principles of the Aarhus Convention in the Lead up to, during and after the United Nations Climate Change Conference 2009, Copenhagen. Excerpt from the Chair’s Summary of the Workshop on “Experiences of promoting the application of the principles of the Aarhus Convention in international forums.”  29 June 2010, II.6.iv and III.v, available at http://www.unece.org/env/pp/ppif.htm (last visited June 7, 2011).