Human Rights and Article 6 of the Paris Agreement: Ensuring Adequate Protection of Human Rights in the SDM and ITMO Frameworks
Article 6 of the Paris Agreement recognizes the right of Parties to cooperate in the implementation of their nationally determined contributions (NDCs) through both market- and non-market-based approaches. One market-based approach is outlined in Article 6.2 which provides for “the use of internationally transferred mitigation outcomes [(ITMOs)] towards” NDCs. This is widely seen as establishing a “bottom-up” approach, whereby “mitigation outcomes,” representing emission reduction credits, can be transferred internationally and then become ITMOs. It can be contrasted with other market-based approaches that are “top-down,” involving centralized programs supporting emission reduction projects. One such program is created in Article 6.4 of the Paris Agreement which establishes a new “mechanism to contribute to the mitigation of greenhouse gas emissions and support sustainable development” (sustainable development mechanism or SDM). Under Article 6.2 of the Paris Agreement, in making use of ITMOs, Parties must “promote sustainable development and ensure environmental integrity.” Similarly, under Article 6.4, the SDM is intended to “support” and “foster” sustainable development. While that phrase is not defined in the agreement, several Parties have argued that it requires the protection and promotion of human rights, consistent with the 2030 Agenda for Sustainable Development. That argument is supported by the recognition, in the preamble to the agreement, that Parties should “respect, promote, and consider their respective obligations on human rights” when taking action to address climate change. This creates an overarching expectation that Parties will, in implementing the agreement, take steps to protect human rights. This paper identifies, describes, and explores different approaches to ensuring human rights are protected in the context of Article 6. We consider, as one possible approach, whether and how social and environmental safeguards could be incorporated into the rules governing ITMOs and the SDM. We find that there is a compelling policy rationale for incorporating safeguards into both the ITMO and SDM frameworks, not only to prevent human rights abuses, but also to ensure the success of ITMO and SDM programs and projects. However, the legal basis for incorporating safeguards is somewhat uncertain, particularly in the context of the ITMO regime. That issue, along with the scope, substance, and enforcement of safeguards, is explored in this paper.
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