A obrigação estatal de mitigação da mudança climática como uma obrigação de prevenir violações de direitos humanos: complementariedade ou incompatibilidade?

Abstract

This paper aims to understand whether the normative and jurisdictional framework of regional and international human rights protection systems can be used by individuals to demand from States more ambitious measures to reduce greenhouse gas emissions. To this end, it examines the feasibility of framing the obligation to mitigate climate change assumed by States through the United Nations Framework Convention on Climate Change and its protocols as an obligation to prevent violations of human rights protected by the UN Covenants and regional conventions on the matter. In the first chapter, the study focuses on the international climate change regime, exploring the content of the obligations contained in its instruments, its secondary rules of implementation and, especially, the abandonment of a classic paradigm of bilateralism in interstate relations for the protection of a common interest protected by erga omnes obligations. The second chapter presents an extensive overview of state human rights obligations, directing the analysis to the preventive dimension of positive obligations. It examines how an obligation of due diligence consisting of preventing a violation of human rights arises for the State, as well as the content of this obligation and its limits. Next, the criteria for establishing the status of victim of a human rights violation and the concept of jurisdiction within the regime and its extraterritorial application are presented. In the third and last chapter, the main question of this paper is answered by crafting solutions to the apparent incompatibilities between the regimes presented. The content of an obligation to mitigate to prevent human rights violations is presented, pointing to the existence of a common obrligation to all States and an individual, differentiated obligation to each of them. It is suggested that the problems of victims' status, jurisdiction and State-attribution of responsibility can be overcome through solutions tailored to the global and collective nature of the phenomenon, in an effort to observe the effet utile principle of human rights instruments without threatening their legitimacy or coherence. It is concluded that the State's obligation of climate change mitigation can be framed as an obligation to prevent human rights violations by adopting a deductive and modern approach to existing estructures, so that these regimes complement each other.