Unequal Protection - A Critical Analysis Of Human Rights Law In The Face Of Climate And Development Challenges

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T21:39:08.309921+00:00

Updated: 2026-08-26T17:05:10.359+00:00

UNEQUAL PROTECTION? A CRITICAL ANALYSIS OF

HUMAN RIGHTS LAW IN THE FACE OF CLIMATE AND

DEVELOPMENT CHALLENGES

Kushal Morey1, LL.M. (Human Rights Law), University of Bristol, United Kingdom.

ABSTRACT

This paper argues that there are significant connections between human rights, development, and climate change. While international human rights law provides a comprehensive framework for addressing challenges related to development, its effectiveness in tackling issues arising from climate change is comparatively limited. To explore this, the paper examines the concepts of human rights and development, and the interconnectedness of human rights with both development and climate change. It also critically evaluates the effectiveness of international human rights law in addressing these challenges by analyzing relevant cases. Keywords: Human Rights, Development, Climate justice, Sustainable development.

1 Author is LL.M (Human Rights Law) student at University of Bristol, United Kingdom.

1) HUMAN RIGHTS AND DEVELOPMENT

To understand the linkage between Human Rights and Development it is important to understand their concepts and evolution, which is discussed below:

1.1) Human Rights

Contemporary international human rights practices began after World War II, with the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. The principles of Human Rights are enshrined in UDHR. It states All human beings are born free and equal in dignity and rights. 2 Everyone has the right to life, Liberty and security of person. 3 Human rights protect our capacity for normative agency, which defines personhood. This capacity involves three key elements: autonomy, the ability to reflect and decide on a meaningful life; welfare, resources and support needed to pursue this life; and liberty, freedom to exercise autonomy without interference and these rights ensure both the capacity for and the exercise of normative agency. 4 From all this it can be summed up that Human Rights are the basic rights which live life with Liberty and Justice.

To analyse the links between it and development, it is essential to understand the concept of development, which is discussed next.

1.2) Development

Development is a process of expanding the real freedoms that people enjoy. This includes the freedom to access education, healthcare, and economic opportunities, as well as the ability to participate in political and social decisions. Development should focus on removing the various barriers such as poverty, inequality, and lack of opportunities that prevent people from realizing their potential and enjoying a life of dignity and choice.5 Development comprises a set of “knowledge, interventions and world views” although it is neither a “benign nor innocent” vision.6 “Development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and

2 Universal Declaration of Human Rights, art. 1, G.A. Res. 217A (III), U.N. Doc. A/810 (1948).

3 Ibid 3.

4 James Griffin, On Human Rights (Oxford University Press 2008) 117.

5 Amartya Sen, Development As Freedom, (Oxford University Press, 2001: 3)

6 J. D. Sidaway, ‘Post-Development’ in V. Desai & R.B.Potter (eds) The Companion to Development Studies (3rd edition, Abingdon and New York: Routledge, 2014), 227

in the fair distribution of benefits resulting therefrom”7. A comprehensive analysis of linkage of Development and Human Rights is discussed hereafter.

1.3) Development and Human Rights

A) Declaration on Right to development

The Declaration on the Right to Development (1986), adopted by the United Nations General Assembly, connects the right to development with the broader international human rights framework through its preambular recitals and articles. A detailed look at how this Declaration relates to key human rights principles is discussed below: The Declaration opens by recognizing that the right to development is an inalienable human right. It emphasizes that development is about improving the well-being of individuals, which ties directly to human rights. It states that the right to development is ”indivisible from the human rights and freedoms of the individual”, and that it should be achieved through the active participation of all people.

8 This connects closely with the Universal Declaration of Human Rights (UDHR, 1948), which affirms the inherent dignity and equality of all people,9 and highlights the right to participate in government and decisions that impact one’s life. 10 The necessity for international cooperation for ensuring the right to development, stressing that all nations must work together to eradicate poverty and inequality. 11 It cites the UN Charter and the International Covenants on Civil and Political Rights (ICCPR), as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR), documents that affirm the selfdetermination of peoples and their right to development. This connects with ICESCR12 and ICCPR,13 both of which recognize the right of peoples to self-determination and to freely pursue their economic, social, and cultural development.

The right to development with human dignity, emphasizing that development must respect human rights and promote fundamental freedoms for all people. 14 The recital draws from the Universal Declaration of Human Rights, 7 United Nations, ‘Declaration on the Right to Development’ (adopted 4 December 1986) Preamble Recital 2.

8 Ibid 1

9 UDHR (n2), art 1.

10 Ibid 21.

11 Declaration on the Right to Development (n7), Preamble Recital 3.

12 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3, art 1. 13 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March

1976) 999 UNTS 171, art 1.

14 Declaration on the Right to Development (n7), Preamble Recital 4.

which focuses on the right to social security and the realization of economic, social, and cultural rights,15 as well as the right to a standard of living adequate for health and well-being16. This reflects the connection between development and human dignity, which is a core aspect of the UDHR. The right of person to development, directly connecting the right to development with self-determination. It highlights the central importance of participation in the development process, both for individuals and communities. 17 This aligns with ICCPR,18 and ICESCR19, both of which affirm that peoples have the right to self-determination and the freedom to determine their political status and pursue their economic, social, and cultural development. The development must respect human rights and fundamental freedoms.

It reinforces the idea that all individuals have the right to actively participate in their development, which ties the right to development with the UN human rights system. 20 It echoes UDHR, which grants the right to participate in government and in decisions affecting one’s life,21 and ICESCR,22 which recognizes the right to work. This further connects development with participation in political, social, and cultural life, as laid out in UDHR. 23 The economic, social, cultural, and political development must be participatory and inclusive, and that it should support the full realization of human rights for everyone. 24 It aligns with both the ICESCR and ICCPR, which highlight the right of people to take part in development processes that shape their social, economic, and cultural realities.

Relevant human rights frameworks, such as ICESCR,25 emphasize the right to adequate living conditions, health, education, and cultural participation. Further it outlines that development must be equitable and just, ensuring that it benefits individuals and supports the realization of all human rights. 26 It draws on principles found in the UDHR and ICESCR, particularly concerning equitable distribution of resources and the right to address inequalities as has been discussed previously. This ties to ICESCR, which recognizes the right to adequate food, housing, and the continuous improvement of living conditions. 27 From the above analysis

15 UDHR (n2), art 22.

16 Ibid 25.

17 Declaration on the Right to Development (n7), art 1.

18 ICCPR (n 12), art 1.

19 ICESCR (n12), art 1.

20 Declaration on the Right to Development (n7), art 2.

21 UDHR (n2), art 21.

22 ICESCR (n12), art 6.

23 UDHR (n2), art 27.

24 Declaration on the Right to Development (n 16), art 3.

25 ICESCR (n12), art 2-15.

26 Declaration on the Right to Development (n 16), art 4.

27 ICESCR (n12), art 11.

it can be concluded that the right to develop has strong links with human rights. An analysis of Millennium Development goals with Human Rights is done next.

B) Millennium Development Goals

The Millennium Development Goals (MDGs), adopted by the United Nations in 2000, were crafted with the aim of addressing global challenges such as poverty, hunger, gender inequality, and access to education and health. These goals are not isolated targets but are deeply connected to the principles of the international human rights framework. By focusing on fundamental human needs and the dignity of individuals, the MDGs align with key human rights documents, such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Rights of the Child (CRC). Below is an exploration of how the specific goals of the MDGs are closely linked to these foundational human rights principles.

Goal 1: Eradicate Extreme Poverty and Hunger The first goal of eradicating extreme poverty and hunger emphasizes ensuring that every individual has access to a decent standard of living, which includes food, shelter, and clean water. This is directly aligned with human rights, particularly the right to an adequate standard of living. The UDHR28 and the ICESCR29 recognize this right, making it clear that access to food, clothing, and housing is fundamental to human dignity. Additionally, the CRC stresses the importance of nutrition for children, ensuring that their survival and development are safeguarded. 30 Goal 2: Achieve Universal Primary Education. Universal primary education is a critical element of development and human rights. The right to education, as enshrined in the UDHR, mandates that primary education be both free and compulsory.

31 Similarly, the ICESCR reaffirms the obligation of states to provide free, compulsory primary education. 32 The CRC also echoes this commitment, ensuring that every

28 UDHR (n2), art 25.

29 ICESCR (n12), art 11.

30 Convention on the Rights of the Child, art 24, UNGA Res 44/25, 20 November 1989.

31 UDHR (n2), art 26.

32 ICESCR (n12), art 13.

child has the right to free education, with an emphasis on primary education. 33 Goal 3: Promote Gender Equality and Empower Women Gender equality is central to the realization of human rights, as it ensures that all individuals, regardless of gender, can equally enjoy their rights. The MDGs’ third goal stresses the importance of eliminating gender disparities and empowering women. The UDHR guarantees equality and non-discrimination,34 and the CEDAW provides a detailed framework for ending gender-based discrimination. Furthermore, ICESCR mandates equal rights for men and women in the enjoyment of economic, social, and cultural rights, reinforcing the goal’s alignment with human rights. 35 Goal 4: Reduce Child Mortality This goal aims to reduce the number of children who die before reaching the age of five.

This objective is inextricably linked to the CRC, which recognizes every child’s inherent right to life and development. 36 Moreover the ICESCR guarantees the right to the highest attainable standard of health, which includes measures to ensure children’s health and survival. 37 Goal 5: Improve Maternal Health Improving maternal health is a matter of upholding the right to health, particularly for women. The MDG target aligns with the UDHR, which emphasizes the right to health and well-being,38 and ICESCR, which recognizes the right to healthcare, including maternal health services. 39 The CEDAW, also specifically addresses the need to eliminate discrimination in access to maternal healthcare, reinforcing the importance of maternal health within the human rights framework. 40

33 CRC (n30), art 28.

34 UDHR (n2), art 2.

35 ICESCR (n12), art 3.

36 CRC (n30), art 6.

37 ICESCR (n12), art 12.

38 UDHR (n2), art 25.

39 ICESCR (n12), art 12.

40 Convention on the Elimination of All Forms of Discrimination Against Women, art 12, UNGA Res 34/180,

18 December 1979.

Goal 6: Combat HIV/AIDS, Malaria, and Other Diseases Fighting diseases like HIV/AIDS and malaria is fundamental to the right to health. The UDHR ensures access to medical care,41 while ICESCR calls for measures to improve public health and prevent disease. 42 Ensuring that individuals can access treatment and prevention for these diseases is a direct application of the human right to health, emphasizing the role of international cooperation and public health systems in achieving these goals. Goal 7: Ensure Environmental Sustainability Environmental sustainability is closely tied to the right to health and a clean environment. The ICESCR asserts the right to an adequate standard of living, which includes access to clean water and a healthy environment.

43 Furthermore, The ICESCR ties the right to health with environmental factors, reinforcing the importance of maintaining a sustainable environment for the well-being of individuals and communities. 44 The UDHR also ties adequate living conditions with health and well-being, highlighting the need for sustainable development. 45 C) Agenda 2030 for sustainable development.

"Transforming Our World," envisions a future free from poverty and inequality, promoting peace, dignity, and sustainability.46 This vision resonates with the Universal Declaration of Human Rights (UDHR) preamble, which emphasizes the inherent dignity and equal rights of all individuals. It also aligns with the right to self-determination recognized in the ICCPR47 and ICESCR, empowering people to shape their own development.48 "Leave No One Behind," is a commitment to prioritize the most vulnerable and marginalized.49 This directly supports the principle of non-discrimination enshrined in UDHR50 as well as similar provisions in the ICESCR51 and the CRC.52 It reflects the duty to ensure equitable access to resources,

41 UDHR (n2), art 25.

42 ICESCR (n12), art 12.

43 Ibid 11.

44 Ibid 12

45 UDHR (n2), art 25.

46 Transforming our world: the 2030 Agenda for Sustainable Development, Preamble, Recital 1, UNGA Res 70/1, 25 September 2015.

47 ICCPR (n 12), art 1.

48 ICESCR (n12), art 1.

49 2030 Agenda for Sustainable Development.

50 UDHR (n2), art 2.

51 ICESCR (n12), art 2(2).

52 CRC(n30), art 2.

opportunities, and protections, addressing systemic inequalities that perpetuate marginalization. It ensures its goals apply to all nations and individuals.53 This commitment mirrors the universality of human rights, articulated in UDHR54 which states that all humans are born free and equal in dignity and rights. By integrating economic, social, and environmental priorities, the Agenda ensures that no aspect of human development is overlooked. From the above analysis it can be concluded that MDGs too have strong links with Human Rights. Thus overall, the concept of development is strongly linked to Human Rights. A brief overview of some case laws is exhibited next to analyse whether the framework of

international human rights law is adequate for addressing challenges related to development.

2) INTERNATIONAL HUMAN RIGHTS AND DEVELOPMENT

The Endorois case is a landmark example of how the international human rights framework upholds the right to development. In 2010, the African Commission on Human and Peoples’ Rights ruled that the Kenyan government violated the rights of the Endorois community by forcibly evicting them from their ancestral lands around Lake Bogoria without proper consultation, compensation, or access to the benefits of development in the region. The Commission emphasized that the right to development, guaranteed under Article 22 of the African Charter on Human and Peoples’ Rights, is a collective right. It requires the participation of affected communities, equitable sharing of development benefits, and the safeguarding of cultural and spiritual connections to land.

The ruling also upheld the rights to property, culture, religion, and natural resources, highlighting the close link between development and human rights. This decision set an important precedent, demonstrating that development must be inclusive, just, and respectful of indigenous communities’ rights and dignity. 55 The Ogiek case (African Commission on Human and Peoples’ Rights v. Republic of Kenya) is a landmark ruling that affirmed the right to development within the international human rights framework. In 2017, the African Court on Human and Peoples’ Rights found that Kenya’s eviction of the Ogiek people from the Mau Forest violated several provisions of the African Charter on Human and Peoples’ rights, including Article 22, which guarantees the right to

53 Transforming our world: the 2030 Agenda for Sustainable Development, art 1, UNGA Res 70/1, 25

September 2015.

54 UDHR (n2), art 1.

55 Centre for Minority Rights Development (Kenya) and Minority Rights Group International (on behalf of Endorois Welfare Council) v Kenya (2009) AHRLR 75 (ACHPR 2010).

development. The Court stressed that true development must involve the meaningful participation of affected communities, equitable sharing of benefits, and respect for cultural and spiritual ties to land. It also underscored the importance of safeguarding the rights of indigenous peoples, particularly their rights to land, natural resources, and consultation in decisions affecting their lives. This case is a powerful reminder that development, under international human rights law, must be inclusive, equitable, and respectful of the rights of marginalized communities.56 The Sentencia C-175/09 of Colombia’s Constitutional Court upheld the importance of prior consultation as a fundamental right for indigenous and Afrodescendant communities. The Court ruled that Colombia’s Statute on Rural Development (Law

1152 of 2007) was unconstitutional due to the government’s failure to consult these

communities as required under ILO Convention 169. This decision reinforced that development efforts must include meaningful participation, equitable benefit-sharing, and respect for cultural identities, aligning with international human rights principles. 57 From the above analysis of cases it is pertinent that International human rights frameworks play a key role in addressing development challenges by advocating for dignity, equality, and participatory approaches. Cases such as the Endorois and Ogiek rulings highlight how these frameworks can protect marginalized groups, ensuring they benefit from development while respecting their cultural and environmental rights. Foundational texts like the UDHR and ICESCR prioritize access to education, healthcare, and basic living standards, forming a strong basis for action.

And it can be concluded that the framework of international human rights is quite effective in addressing challenges related to development. As the links between development and Human Rights were discussed previously in this paper, similarly links between climate and human rights are discussed next.

3) HUMAN RIGHTS AND CLIMATE

As the concept of Human Rights has already been discussed above, it’s important to take look at the vulnerabilities and impact of Climate on Human lives to understand the linkage between them, which is accordingly discussed below: The framework of International Human Rights Law and Climate Rights has evolved in parallel

56 African Commission on Human and Peoples’ Rights v Republic of Kenya, Application No 006/2012,

Judgment (26 May 2017) African Court on Human and Peoples’ Rights.

57 Sentencia C-175/09 (Corte Constitucional de Colombia, 2009).

throughout decades. 58 Climate change impacts the enjoyment of a wide range of human rights, such as the rights to life, health, food, and water. 59 This is also reflected in Paris Agreement. 60 These impacts disproportionately affect vulnerable groups, particularly in developing countries. Right to Life is affected by Climate change-induced disasters (e. g. , floods, heatwaves) pose direct threats to human life. 61 Groups like women, children, and indigenous peoples face amplified risks due to existing inequalities. 62 Climate change is harming and infringing upon the rights of individuals, particularly affecting vulnerable groups such as the poor, women, children, persons with disabilities, Indigenous Peoples, and other marginalized communities. Its effects are compounded by factors like race, gender, age, and socioeconomic status.

63 The international human rights framework offers comprehensive protection for civil and political, socio-economic, and cultural rights through instruments like the ICCPR and ICESCR. It also includes specialized treaties and monitoring bodies for climate-vulnerable groups, such as CEDAW for women's rights, CRC for children's rights, and CRPD for the rights of persons with disabilities. Additionally, there are strong connections between human rights and procedural climate justice, particularly in affirming rights to political participation, anti-discrimination, and access to effective remedies. 64 This is evident enough to conclude that Human Rights are connected with the rights of climate. Now to see whether an adequate framework for addressing challenges related to climate change is provided by framework of international human rights law, a few case laws are discussed next.

4) INTERNATIONAL HUMAN RIGHTS AND CLIMATE CHALLENGES

The UN report on climate change and Human Rights outlines the obligations of states under human rights law to mitigate climate impacts and ensure that response measures (e.g., relocation) align with human rights principles.65 Human rights law offers stronger protection in relation to the actions taken by States to tackle climate change and their effects on human rights. In certain situations, States may be obligated to safeguard individuals from predictable

58 Symonides Janusz , Human Rights: New Dimensions and Challenges (UNESCO ISBN 92-3-103582-7)

59 United Nations Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights (15 January 2009) UN Doc A/HRC/10/61, 7.

60 Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) art 2.

61 United Nations Human Rights Council, Report on climate change and human rights (n 59), 9.

62 Ibid 15-18.

63 United Nations General Assembly, Report of the Special Rapporteur on the Promotion and Protection of Human Rights in the Context of Climate Change, Ian Fry (28 July 2023) UN Doc A/78/255, 3. 64 Alice L Venn, Laying the Foundations of Climate Justice for Vulnerable States & Peoples: Developing a Human Rights Approach for the South Pacific (2015) 108-109.

65 United Nations Human Rights Council, Report on climate change and human rights (n 59), 23-27.

human rights risks associated with climate change. 66 In Daniel Billy and others v Australia complaint was filed by eight Australian nationals from the Torres Strait Islands and six of their children, claiming violations of their rights to life, family, privacy, effective remedy, and their rights as Indigenous Peoples to enjoy their culture. The climate impacts cited included rising sea levels, storm surges, and destruction of family graves, land degradation, and impacts on food security, traditional fishing, and farming. The complaint challenged the Australian government's failure to implement sufficient mitigation and adaptation measures to address climate change. The Committee recognized their deep spiritual connection to ancestral lands and dependence on healthy ecosystems, and found violations of their rights to culture, private life, family, and home.

67 Whereas, in Sachi et al v Argentina et al sixteen young petitioners challenged Argentina, Brazil, France, Germany, and Turkey for failing to take sufficient action to address climate change, which they argued was affecting their rights both now and in the future. They claimed violations of their rights to life, health, culture, and the prioritization of children's best interests. The petition cited various impacts, including asthma from wildfire smoke, heat-related pollution, increased risks of malaria and dengue fever, mental health effects, water scarcity, and exposure to extreme weather. The case was rejected as inadmissible due to failure to exhaust domestic remedies, but it notably recognized the extraterritorial responsibilities of countries for greenhouse gas emissions. 68 The case of Öneryıldız v.

Turkey dealt with a tragic incident in Ümraniye, Istanbul, where a methane explosion at a municipal rubbish tip on April 28, 1993, caused the deaths of 39 people, including several of the applicant’s relatives. Despite earlier warnings from experts in 1991 about the risk of such an explosion due to the accumulation of methane gas, the Turkish authorities failed to take any preventive measures or properly inform the nearby residents, who lived in a slum area adjacent to the site. The European Court of Human Rights found that Turkey had violated Article 2 of the European Convention on Human Rights, which guarantees the right to life. The Court held that the state had a duty to prevent foreseeable risks to life by implementing effective safety regulations and acting on known hazards, which it failed to do in this case.

Moreover, the legal remedies offered to the victims' families were found to be inadequate. 69 The case of Budayeva and Others v. Russia concerned a devastating mudslide that struck the town of Tyrnauz between July 18 and 25, 2000, claiming eight lives, including

66 United Nations Human Rights Council, Report on climate change and human rights (n 59), 24.

67 Daniel Billy and others v Australia, UN Human Rights Committee Communication No 3624/2019 (2021).

68 Sachi et al v Argentina et al, Communications Nos 104/2019, 105/2019, 106/2019, 107/2019, 108/2019.

69 Öneryıldız v Turkey (2004) ECHR 657, 48939/99.

that of Vladimir Budayev, the husband of the first applicant. The applicants argued that the Russian authorities had failed to take appropriate measures to mitigate the known risks of natural disasters, thereby breaching their right to life under Article 2 of the European Convention on Human Rights (ECHR). The European Court of Human Rights found that the authorities had not put in place sufficient legislative or administrative frameworks to protect against such risks, nor had they carried out an effective investigation into the circumstances of the deaths. The Court held that Russia had violated Article 2 in its substantive aspect by failing to meet its positive obligations to protect citizens from foreseeable natural hazards and to provide an adequate judicial response to the tragic loss of life. 70 In the case of Carême v. France, the applicant, Mr.

Damien Carême, a French national and former mayor of Grande-Synthe, claimed that the French government had failed to take sufficient action to combat climate change, thereby violating his rights under Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR). He argued that his home in Grande-Synthe was at risk of flooding due to climate change and that his health had deteriorated because of environmental factors. However, the European Court of Human Rights ruled that Mr. Carême had not demonstrated sufficient victim status, noting that he had moved to Brussels and no longer owned property in Grande-Synthe, severing any concrete and personal link to the alleged risks.

The Court determined that the risks he faced were hypothetical rather than serious, real, and imminent, and therefore found his complaints under Articles 2 and 8 inadmissible. 71 Form the above discussion of cases it can be summed up that International Human Rights framework offers valuable tools for addressing climate-related issues, particularly when risks to individuals or communities are direct and immediate. Agreements like the Paris Agreement and treaties such as the ICESCR connect climate justice to fundamental rights like health, life, and adequate living conditions. Cases such as Daniel Billy v. Australia illustrate how these frameworks can provide remedies for affected communities. Yet, there are significant gaps when addressing global or long-term climate challenges.

While the framework is effective in some contexts, its ability to address broader systemic issues, such as state accountability for cross-border emissions, remains limited and requires further development. Additionally, when risk or threat if climate is direct and immediate which affects the rights of people then the framework of international human rights

70 Budayeva and Others v Russia (2008) ECHR 15339/02.

71 Carême v France (Application no 7189/21, ECHR, 12 December 2023).

law is adequate enough to address those challenges but when the risk or threat is not of direct nature it lacks to protect the rights.

5) CONCLUSION

In conclusion, this paper highlights the deep connection between human rights, development, and climate change, built on principles of dignity, equality, and participation. While international human rights frameworks have proven effective in tackling many development challenges, their ability to address climate-related issues is less comprehensive, especially when dealing with indirect or systemic threats. Cases like Endorois and Daniel Billy v. Australia illustrate the frameworks’ capacity to protect vulnerable groups, but significant enforcement gaps persist. To ensure sustainable development and climate justice, these frameworks must be strengthened, becoming more inclusive, participatory, and responsive to the complex challenges of today’s world.