It’s time to start talking about a human right to a just transition

It's time to start talking about a human right to a just transition

The Neurath Power Station in Grevenbroich, North Rhine-Westphalia, Germany, photographed in December 2018.

(AFP/Christoph Hardt)

In August 2021, the Intergovernmental Panel on Climate Change (IPCC) Working Group published its most recent report, deemed by the UN Secretary General António Guterres to be a “code red for humanity”. It found that global warming will continue until at least mid-century under “all emissions scenarios” and warned of the increased intensity and frequency of extreme heat, droughts, and heavy precipitation.

As the ILO (International Labour Organization) Commission on the Future of Work explained, global warming, as well as the actions needed to mitigate it, are likely to be deeply disruptive for all workers, from those in carbon-intensive industries to those whose jobs are threatened by the impacts of warming. So, how do we save our planet and do so equitably so as not to reinforce existing hierarchies around race, gender and sexual orientation, and indeed dismantle them?

For trade unions, the answer is a just transition.

The concept of a just transition is not new. However, the concept continues to evolve and, as yet, has no precise legal definition. Even among labour advocates, the ambitions of a just transition can range from a narrow one that focuses on the need for the state to support workers and communities (for example, with social protection and job retraining) to a broad, transformational one based on a fundamental reorganisation of the roles of state, capital and labour. This brief article doesn’t intend to settle on any one version. Rather, our interest here is to demonstrate that the core elements of any conceptualisation of a just transition is already well rooted in international human rights law. As such, we argue that we should stop talking about just transition as merely an abstract public policy concept but instead as a human right. So framed, it would give workers the ability to hold governments and employers to account over climate inaction and impacts on their livelihoods.

So, what constitutes such a right?

A just transition is explicitly reflected in a preambular recital to the 2015 Paris Agreement. However, as the Vienna Convention on the Law of Treaties provides, a preamble is an integral part of the text of a treaty, and critical for interpretation as they indicate context as well as the object and purpose of a treaty. While the preamble to the Treaty may not be capable of creating a right per se, the relevance of the recital for the interpretation of the Paris Agreement is sacrosanct. Ratifying states must comply with their human rights obligations when carrying out climate mitigation measures under the Agreement.

The content of the just transition concept was further elaborated by the ILO constituents in 2015, who adopted unanimously the Guidelines for a just transition towards environmentally sustainable economies and societies for all. The Guidelines set out the key policy areas to address environmental, economic and social sustainability, which include macro-economic policies, fundamental labour rights, occupational safety and health, and social protection, among other areas. A right to a just transition would necessarily entail state obligations to ensure these policy areas are addressed in a holistic manner. Let’s look at just a few of them.

The right to work
Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) enshrines the right of every individual to freely chosen or accepted work without distinction of any kind. For states, this means the obligation to adopt, as quickly as possible, “measures aiming at achieving full employment,” including by adopting a national policy and a detailed plan to realise it. The obligation to pursue an active policy designed to promote full, productive and freely chosen employment is also enshrined in ILO Convention 122 (Employment Policy). Recommendation 169, the companion to Convention 122, explicitly refers to the right to work. If this is to have any meaning in a climate crisis, it must also mean that states have an obligation to adopt mitigation and adaptation policies that at the same time ensure that people are both able to access employment and provide the mean to obtain such work through active labour market policies.

Social dialogue
Essential to a just transition is the negotiation of national, sectoral and firm level mitigation and adaptation measures with workers and trade unions to best ensure that such measures are sufficiently ambitious while at the same time providing a basis for workers and communities to adapt and indeed prosper under those measures. States are already required to ensure that all workers without distinction, including those most affected by climate change but most often excluded from labour protections, have the right to form trade unions and to negotiate over mitigation and adaptation measures. The right to bargain binding agreements over climate-related issues is well established under international law (and there are in fact some examples). The ILO has repeatedly recognised that the scope of collective bargaining is broad and should not be restricted by the authorities. As we have previously explained, the right to take collective action, including to strike, over climate matters, is also clearly established in international law. As if to underscore these points, Clément Voule, the UN special rapporteur on the right to peaceful assembly and association, recommended in his most report to the UN General Assembly that states must “ensure that all workers are guaranteed the right to associate, including the right to strike, and to bargain collectively at all levels, including over matters related to climate change and just transitions.”

The right just and favourable conditions of work
This right is rooted in the Universal Declaration of Human Rights and the ICESCR, as well as an array of ILO conventions. Fundamentally, all work must be decent work, which respects the fundamental rights of the person as well as the rights of workers in terms of conditions of work safety and remuneration. Specifically, states need to “adopt laws, policies and regulations on non-discrimination, a non-derogable minimum wage, occupational safety and health, compulsory insurance coverage, minimum standards for rest, leisure, limitations on working hours, paid annual and other leaves, as well as public holidays”. In a climate crisis, this must mean that the jobs we hope to create through mitigation and adaptation measures, the ‘green’ jobs, must be good, well-paid jobs. It also means that the state must ensure that working conditions in a warming world are safe, which itself requires action necessary to mitigate and adapt to increasingly higher temperatures and more intense storms.

Enterprise policies
Business and employers will also have a significant role to play in implementing a human right to a just transition. States will inevitably have to put in place laws at the national level requiring employers to, among other things, ensure social dialogue on climate mitigation and adaptation measures, anticipate and plan the transition to net zero, and prioritise upskilling workers. From a corporate accountability perspective, businesses will also need to confront the environmental footprint of their global supply chains. Human and environmental rights due diligence processes will necessarily require enterprises to avoid causing or contributing to adverse rights impacts relating to a green transition in their own activities or being linked to it through their business relationships.

Other important legal initiatives
Earlier this month, the 48th Session of the Human Rights Council adopted a resolution on the recognition and implementation of a human right to a clean, safe, healthy and sustainable environment. To be fulfilled, a right to a just transition must be part of the equation as a necessary safeguard for workers and communities.

This approach would also build on the Aarhus Convention (Europe) and, most recently, the Escazú Agreement (Americas) which include provisions on public participation in environmental decision-making, the right of everyone to receive environmental information that is held by public authorities, and access to justice and regarding acts or omissions by the state which impact the environment.

Litigation at the national level, rooted in human rights law, will also necessarily shape the scope of a just transition. Most recently, a court in Belgium found that the government violated Belgian law and the European Convention on Human Rights because its climate mitigation policies are insufficient to address the effects of climate change adequately. This decision follows previous decisions in the Netherlands, France and Germany which all found national policies inadequate to address the climate crisis. The Dutch court went so far as to order the state to reduce is greenhouse gas emissions by 25 per cent by 2020.

A just transition towards a low carbon economy is not only possible, but an urgent necessity. Climate change will continue to impact workers worldwide, and such impacts are likely to be significant and disruptive unless workers are an integral part of the solution. The development of a right to a just transition couched in international labour standards and international human rights law can help propel the concept into the statute books and hasten progress toward sustainable economic growth and social progress.