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Title of the Dissertation
Human Rights-Based Approach to Climate Change
Through Existing Human Rights Regimes
Module Supervisor: Dr. Cliff Snaith
Module Name: International Law Dissertation
Module Code:LLPP30N
Student Number:08036864
Dissertation Submitted for Completion of LLM in International Law.
Academic Year: 2008-2009
Department of Law, Governance & International Relations
London Metropolitan University
London
Acknowledgements
The realisation of the linkage between climate change and human rights has not been
achieved as an individual pursuit without valuable insight and input from others.
Many persons have contributed their time and expertise to this dissertation, all of
which are gratefully acknowledged.
I am especially indebted to Dr Cliff Snaith, my distinguished supervisor and course
leader for LLM International Law at London Metropolitan University. His lectures on
“international environmental law; does it ever work, can it ever work” and
“enforcement through carbon trading” first triggered me to develop my interest on
climate change issues. He literally opened up a new and exciting world for me.
Subsequent discussion with him inspired me to research on climate change especially
on human dimensions of climate change. This dissertation “Human Rights-Based
Approach to Climate Change Through Existing Human Rights Regimes” is the result
of that research.
Last, but not least, I would like to thank my parents, my brothers, my wife and little
son for their help and support as I toiled my way to the completion of this
dissertation.
Abstract
Climate change is considered to be a critical global challenge and recent events have
demonstrated the world’s growing vulnerability to climate change. The impacts of climate
change range from affecting agriculture to further endangering food security, to rising sealevels and the accelerated erosion of coastal zones, increasing intensity of natural disasters,
species extinction and the spread of vector-borne diseases. 1
However over the past two decades climate change has only been viewed as a scientific
projection. The international community has largely failed to translate the important and
hard-won scientific consensus into an equally compelling vision of how the consequences of
global warming are being felt by people and communities around the world. 2
This paper will argue that the impacts of climate change are now threatening basic human
rights such as the right to life, to food, to shelter, to water and to health and that although
economical or scientific perspectives of climate change remain necessary, it is also essential
that we focus on the people who are most immediately affected by climate change and most
in need of support.
Human rights dimension of climate change is now drawing attention of international
communities. On March 25, 2009, the United Nations Human Rights Council adopted
resolution 10/4, unequivocally recognizing that “climate change-related impacts have a range
of implications, both direct and indirect, for the effective enjoyment of human rights
including, inter alia, the right to life, the right to adequate food, the right to the highest
attainable standard of health, the right to adequate housing….”3
Recognising the effect of climate change on the enjoyment of human rights, this paper will
try to find out answers of some key questions; (a) how is the impact of climate change a
human rights issue? ; (b) how is the concept of ‘human rights-based approach to climate
change’ developing in human rights arena? ; (c) should existing human right law be expanded
to encompass climate change impacts? ; (d) what human rights are threatened by the impacts
of climate change? ; (e) how will human rights courts respond to the violation of human
rights caused by the impact of climate change? ; (f) and what are the advantages of human
rights-based approach to climate?
This paper will argue that international human rights regimes is potentially well placed to
address and highlight some of these human dimensions of climate change from the human
rights perspective. It will also assert that the application of human rights principles and norms
will bring a range of benefits to international and national efforts to respond to the impacts of
climate change on vulnerable people.
1
An Overview of Climate Change by United Nations Department of Economic and Social Affairs.
Available at: http://www.un.org/esa/socdev/unpfii/documents/Climate_change_overview.doc
2 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review , vol. 33, no.2 page 451.
3 Resolution 10/4 (March 25, 2009) of the United Nations Human Rights Council. Available at:
http://www2.ohchr.org/english/issues/climatechange/docs/resolution10_4.doc
Table of Contents
Page No
Acknowledgement
Abstract
i
ii
Introduction:
1
Chapter 1: Overview of Climate Change and its Effects
4
1.1 What is Climate Change?
1.2 Effects of Climate Change on Atmosphere
1.3 Effects of Climate Change on Mankind
1.3.1 Agricultural Productivity Would Be Reduced
1.3.2 Heightened Water Insecurity
1.3.3 Increased Exposure to Coastal Flooding and Extreme Weather Events
1.3.4 The Collapse of Ecosystems
4
6
Chapter 2: Human Rights-Based Approach to Climate Change
7
7
7
8
9
10
2.1 Whether the Impacts of Climate Change are Severe Enough to
Become a Human Rights Issue?
10
2.2 History and Development of the Linkage Between Climate
Change and Human Rights
12
2.3 Positioning Climate Change within the Framework of
International Human Rights Regime
17
2.3.1 Historical Development and Theories of Human Rights
17
2.3.1.1 Classification of Human Rights in International Law
19
2.3.2 Human Rights and The Environment
20
2.3.3 Development and Current Status of the Right to Healthy Environment
21
2.3.4 International and Regional Court’s Inclination to the Right to Healthy
Environment
25
2.3.5 Can the Existing Human Rights be Extended to Include Climate
Change Protection?
28
Chapter 3: Human Rights Affected by Climate Change
29
3.1 Right to Life
3.1.1 Legal Basis of the Right to Life in International Human Rights Law
3.1.2 Current and Projected Impacts of Climate Change on the Right to Life
29
30
3.2 Right to Food
3.2.1 Legal Basis of the Right to Food in International Human Rights Law
3.2.2 Current and Projected Impacts of Climate Change on the Right to Food
31
32
3.3 Right to Water
3.3.1 Legal Basis of the Right to Water in International Human Rights Law
33
3.3.2 Current and Projected Impacts of Climate Change on the Right to Water 34
3.4 Right to Health
3.4.1 Legal Basis of the Right to Health in International Human Rights Law
35
3.4.2 Current and Projected Impacts of Climate Change on the Right to Health 36
3.5 Right to Development
3.5.1 Legal Basis of the Right to Development in International
Human Rights Law
3.5.2 Current and Projected Impacts of Climate Change on the Right to
Development
3.6 Right to Property
3.6.1 Legal Basis of the Right to Property in International Human Rights Law
3.6.2 Current and Projected Impacts of Climate Change on the Right to
Property
3.7 Right of Indigenous People
3.7.1 Legal Basis of the Right of indigenous people in International
Human Rights Law
3.7.2 Current and Projected Impacts of Climate Change on the Right
of indigenous people
3.8 Climate Change Refugees
36
37
38
39
39
41
42
Chapter-4: Direct and Indirect Endorsement of Human Rights-Based
Approach to Climate Change in International Frameworks and Regional
Human Rights Courts
4.1 The United Nations Framework Convention on Climate
Change (UNFCCC)
4.2 The Kyoto Protocol
4.3 The International Court of Justice
4.4 European Court of Human Rights
4.5 Inter-American Commission and Court of Human Rights
4.6 African Commission of Human and Peoples' Rights
4.7 Propensity of National Courts to Recognise Human Rights
Approach to Climate Change
4.8 Possible Effective Role of the United Nations in Protecting
Human Rights Threatened by the Effects of Climate Change
Chapter 5: Advantages of Human Rights-Based Approaches
to Climate Change
5.1
5.2
5.3
5.4
5.5
5.6
5.7
Adaptive Measures are humane, Fair and Equal
Encouraging International Co-operation
Pathway for International Assistance
Recognition of Procedural Human Rights
Recognition of the Right to Self-Determination
Reformulation of Existing Human Rights
Vocalization of Affected People’s Concern
44
46
47
48
51
52
54
56
59
59
61
63
64
66
67
67
Chapter 6: Criticisms of Human Rights-Based Approach to Climate Change
and Its Response
6.1 Problem of Subjective Valuation of Some Rights Over Others
6.2 Impractical and Unwise Approach
6.3 Anthropocentric Attitude to Environmental Problems
6.4 Undermining UNFCCC and IPCC
6.5 Uncertainty of Post-Kyoto Agreement
6.6 Impairing Serious Human Rights Issues
68
69
70
70
71
72
Chapter 7: Conclusion
73
Bibliography:
Textbooks
Journals and Articles
Online Sources
International Official Reports Related to Climate Change
Human Rights Instruments, Conventions and Declarations of
the United Nations and other International and Regional Organisations
List of International and Regional Cases
74
76
82
88
90
93
Introduction:
Climate change has been identified as one of the major crisis in the 21st century.4It
poses an enormous global challenge and will have significant impacts on mankind.5
Even conservative forecasters predict that climate change will have dramatic effects
to environment, economies, and social condition of the people all over the world.6
Although climate change is already understood as an environmental problem, and
increasingly as an economic one,7 consideration of the human rights impact of climate
change has generally been minimal.8 The particular question of whether climate
change can be addressed as a human rights issue has only recently drawn attention.9
Now human rights scholars have agreed that climate change directly threaten
fundamental human rights such as rights to life, to food, to health, to water and to
shelter.10 Impacts of climate change also raises important challenges related to
4
Margot Wallstrom. (2003) Meeting the Long Term Challenge of Global Warming: A European
Perspective, in David Michel,( ed.) Climate Policy for the 21st Century: Meeting the Long-term
Challenge of Global Warming. Center For Transatlantic Relations, Johns Hopkins University,
Washington, D.C. Page 17-25. 36-47.
5
‘Climate Change Context – International and Domestic’ in Native Title Report ( 2008 ) Australian
Human Rights Commission. Chapter four, Page-91. Available at:
http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/pdf/chap4.pdf
6 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’.
Hastings International and Comparative Law Review vol. 30, page 231.
7 The last two major reports released on climate change, were largely environmental and economic.
First, The Arctic Climate Impact Assessment Report was released in 2004 by the Arctic Council and
the International Arctic Science Committee (IASC), to evaluate and synthesize knowledge on climate
variability, climate change, and increased ultraviolet radiation and their consequences. Report
available at http://www.acia.uaf.edu/pages/scientific.html and Second, Nicholas Stern Report on
Economic Impacts on climate change released by the United Kingdom in 2006 was largely focused on
financial impact of climate change. Report available at: http://www.hmtreasury.gov.uk/stern_review_report.htm
8 Climate Change and Human Rights: A Rough Guide. (2008) Published by International Council on
Human Rights Policy, Versoix, Switzerland. Page 12-14. Available at:
http://www2.ohchr.org/english/issues/climatechange/docs/submissions/136_report.pdf
9 Mary Robinson. (2006) ‘Climate Change and Justice’. Former Irish President and United Nations High
Commissioner for Human Rights Ms Mary Robinson at the Barbara Ward Lecture series, at Chatham
House in London (11 December 2006) argued that “we can no longer think of climate change as an
issue where we the rich give charity to the poor to help them cope. Rather, this has now become an
issue of global injustice that will need a radically different approach.” In her lecture she advocated
human rights-based approach to climate change .Available at:
http://www.realizingrights.org/pdf/Barbara_Ward_Lecture_12-11-06_FINAL.pdf
10 John Von Doussa, Allison Corkery, Renee Chartres.(2007) ‘ Human Rights and Climate Change.’
equality, non-discrimination, access to information, access to justice and other core
principles of human rights.11 Climate change threatens the human rights of all people
living in the affected communities.12
Human rights-based approach to climate change helps us to understand that climate
change is not solely an environmental, technical or economical issue, but an issue of
global social justice which requires social response from human rights perspective.13
Human rights approach persuades us to refocus our attention more directly to the
vulnerable communities and to the effects of climate change on their lives. By holding
governments and other duty-bearers accountable to reducing the vulnerability of the
people to climate change and assisting them in adapting to the consequences, human
rights approach encourages to introduce an accountability framework which is an
important foundation for the promotion and protection of human rights. Human
rights approach persuades to take the views of those who will be disproportionately
affected by climate change such as the poor, vulnerable and marginalized
communities, into account in responses devised to address the causes and
consequences of climate change. 14
This dissertation aims to explore issues related to human rights-based approach to
climate change and argue that human rights principles remain important and essential
to effectively cope with the impacts of climate change.
Australian International Law Journal vol.14, page161.
Ms. Kyung-wha Kang. (2007) ‘Climate Change and Human Rights.’ A paper by Ms. Kyung-wha
Kang, Deputy High Commissioner for Human Rights, Office of the United Nations High
Commissioner for Human Rights. Available at:
http://www.unhchr.ch/huricane/huricane.nsf/view01/013DC0FAA475EC87C12573B10074796A?opend
ocument
12 Sara C. Aminzadeh.(2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’.
Hastings International and Comparative Law Review vol. 30, page 231.
13 Dan Chong and Simon Nicholson.( 2008) ‘From Knowledge to Action: Applying a Rights-Based
Approach to Global Climate Change.’ International Studies Association. Page-1-17
Available at:
http://www.allacademic.com/one/prol/prol01/index.php?cmd=prol01_search&offset=0&limit=5&multi
_search_search_mode=publication&multi_search_publication_fulltext_mod=fulltext&textfield_submit
=true&search_module=multi_search&search=Search&search_field=title_idx&fulltext_search=From+Kn
owledge+to+Action%3A+Applying+a+Rights-Based+Approach+to+Global+Climate+Change
14 Ms. Kyung-wha Kang. (2007) ‘Climate Change and Human Rights.’ A paper by Ms. Kyung-wha
Kang, Deputy High Commissioner for Human Rights, Office of the United Nations High
Commissioner for Human Rights. Available at:
http://www.unhchr.ch/huricane/huricane.nsf/view01/013DC0FAA475EC87C12573B10074796A?opend
ocument
11
This dissertation is divided into seven chapters.
Chapter one will provide an overview of climate change and its impacts on the world.
It will show that global temperature is increasing which is affecting agricultural
productivity and water security and causing extreme weather event such as cyclone,
floods and droughts frequently.
Chapter two will discuss various aspects of human rights issues related to climate
change. First, it will find out whether impacts of climate change are severe enough to
become a human rights issue? Second, it will provide a brief overview of the history
and development of the linkages between climate change and human rights. Third, it
will discuss about the existing human rights regimes and will argue that existing
human rights regimes can be expanded to encompass climate change impacts on
human rights.
Chapter three will look at how the human rights enshrined in the key international
human rights instruments are threatened by the impacts of climate change.
Chapter four will explore the position and acceptance of ‘human rights-based
approach to climate change’ in international framework including international and
regional human rights instruments and human rights courts.
Chapter five will explain advantages of human rights-based approach to climate
change.
Chapter six will examine some possible criticisms of human rights-based approach to
climate change and provide response to these.
Finally chapter seven will draw conclusion on human rights-based approach to
climate change.
Chapter 1: Overview of Climate Change and its Effects.
Climate change is the greatest environmental threat for humanity.15 The
Intergovernmental Panel on Climate Change 16 (IPCC) reported in 2007 in its fourth
assessment report 17 on climate change that the impacts of climate change are already
being felt, particularly in the poorest communities all over the world who have in fact
the least historical responsibility for causing climate change.18
1.1 What is Climate Change?
Article 1 (2) of the United Nations Framework Convention on Climate Change 1992
(UNFCCC ) 19 defines climate change as “a change of climate which is attributed
directly or indirectly to human activity, that alters the composition of the global
atmosphere and which is in addition to natural climate variability observed over
comparable time periods.” 20
15
‘Climate Change 2007: Synthesis Report’. (2007) A Report by Intergovernmental Panel on Climate
Change. Available at: http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf
16 The Intergovernmental Panel of Climate Change (IPCC) is the leading body for the assessment of
climate change, established in 1988 by the United Nations Environment Programme (UNEP) and the
World Meteorological Organization (WMO) to provide the world with a clear scientific view on the
current state of climate change and its potential environmental and socio-economic consequences. It
reviews and assesses the most recent scientific, technical and socio-economic information produced
worldwide relevant to the understanding of climate change.
17 Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) 2007 (AR4)
Available at:http://www.ipcc.ch/publications_and_data/publications_and_data_reports.htm#1
18 ‘Human Rights and the Climate Crisis: Acting Today to Prevent Tragedy Tomorrow.’ (2008) A
Briefing Paper by Greenpeace. Page 2 Available at:
http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Greenpeace_HR_ClimateCrisis.
pdf
19 The United Nations Framework Convention on Climate Change (UNFCCC) was adopted at the
United Nations Conference on Environment and Development (UNCED) (which is also known as the
Earth Summit) held in Rio de Janeiro from 3 to 14 June 1992. The treaty is aimed at stabilizing
greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous
anthropogenic interference with the climate system. At the UN Summit in Rio de Janeiro in 1992, 154
countries signed the UNFCCC. Today, 192 countries have ratified the convention. It entered into force
on March 21, 1994.
20 Article 1(2) of the United Nations Framework Convention on Climate Change, 1992.
Available at: http://unfccc.int/resource/docs/convkp/conveng.pdf
This change in climate21occurs because of the release of greenhouse gases over a
period of time. This is also known as greenhouse gas emissions or carbon emissions.
There are six main greenhouse gases: Carbon dioxide, Methane, Nitrous oxide,
Hydrofluorocarbons, Perfluorocarbons, Sulphur hexafluoride. 22
Climate change is the consequences of both natural and human causes. Naturally the
Earth's climate changes as a result of interactions between the ocean and the
atmosphere, variations in the Earth's orbit, fluctuations in energy received from the
sun and volcanic eruptions. On the other hand the main human influence on global
climate is likely to be emissions of greenhouse gases such as carbon dioxide (CO 2) and
methane.23 This is because people are continuing to use fossil fuels for electricity and
power to provide heating, transportation, and for industry which are releasing a large
amount of carbon dioxide to atmosphere. The Intergovernmental Panel on Climate
Change (IPCC) has asserted that because of human activities global emissions of
greenhouse gases increased by 70 percent between 1970 and 2004. 24
At present, about 6.5 billion tonnes of CO2 is emitted globally each year, mostly
through burning coal, oil and gas for energy.25
However, the greenhouse effect is a natural phenomenon without which life on Earth
would be impossible, as the Earth would be 30°C cooler. The Earth is kept warm by
the greenhouse effect. Certain gases in the atmosphere (known as greenhouse gases)
absorb energy that is radiated from the Earth’s surface, and so warm the atmosphere.
However, our modern lifestyles have resulted in us releasing large amounts of
greenhouse gases – like carbon dioxide and methane – into the atmosphere,
enhancing the greenhouse effect and so pushing up temperatures globally. 26
21
Climate refers to the average weather experienced in a region over a long period, typically at least 30
years. This includes temperature, wind and rainfall patterns. The climate of the Earth is not static, and
has changed many times in the past in response to a variety of natural causes. Source: UK Climate
Impacts Programme. Available at :
http://www.ukcip.org.uk/index.php?id=19&option=com_content&task=view
22 ‘Climate Change Context – International and Domestic’ in Native Title Report ( 2008 ). Australian
Human Rights Commission. Chapter four, Page-93 Available at:
http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/pdf/chap4.pdf
23 ‘Understanding Climate Change.’ UK Climate Impacts Programme. Available at
http://www.ukcip.org.uk/index.php?option=com_content&task=view&id=73&Itemid=186
24 ‘Climate Change Context – International and Domestic’ in Native Title Report ( 2008 ). Australian
Human Rights Commission. Chapter four, Page-93 Available at:
http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/pdf/chap4.pdf
25 Spencer Weart. (2009) The Discovery of Global Warming. Available at:
http://www.physicists.net/history/climate/
26 Dr Emily Shuckburgh. (2008) ‘Climate Change – Global Issues’ Cambridge University.
1. 2 Effects of Climate Change on Atmosphere
The scientific consensus is now clear. We are already beginning to feel the effects of
climate change. 2005 was the hottest year on record. Of the 21 hottest years ever
measured since they started keeping records in 1860, 20 have occurred in last 25
years. 27
NASA‘s top climate scientists asserts that “we are nearing a ―tipping point. If
emissions of GHGs continue at their current pace for even just another decade, we
may reach point of no return—a point at which feedback loops have been triggered
and avoiding ―devastating consequences becomes impossible.” 28
The Intergovernmental Panel of Climate Change (IPCC) in its Fourth Assessment
Report has provided further confirmation that climate change will have serious
impacts on atmosphere. 29 It reports that
“The global average surface temperature has increased, especially since about 1950.
The updated 100-year trend (1906–2005) of 0.748C + 0.188C is larger than the 100year warming trend at the time of the (1901– 2000) of 0.68C + 0.28C due to additional
warm years. The total temperature increase from 1850–1899 to 2001–2005 is 0.768C +
0.198C. The rate of warming averaged over the last 50 years (0.138C + 0.038C per
decade) is nearly twice that for the last 100 years.”30 The IPCC also projects that
temperatures will continue to rise.
The IPCC warns that if the world continues a fossil fuel-intensive energy path during
the 21st century, current concentrations of greenhouse gases could be more than
Page -7, Available at:
http://www.atm.damtp.cam.ac.uk/shuckburgh/general/Climate_Press_Pack.doc
27 Amy Sinden. (2007) ‘Climate Change and Human Rights.’ Journal of Land Resources and
Environmental Law vol.27, no 2, page 255.
28 James Hansen, Makiko Sato, Reto Ruedy, Ken Lo. (2007) ‘Temperature Analysis.’ Nasa’s top climate
scientists conducted a joint research in 2007 in which they observed that global temperature was
reaching dangerous level and commented that ‘we are nearing a tipping point’. Available at:
http://www.columbia.edu/~jeh1/mailings/2007/20071210_GISTEMP.pdf
29 Simon Caney. (2008) ‘Human Rights, Climate Change, and Discounting’. Environmental Politics vol.
17, no. 4, page 536.
30 Climate Change 2007: Synthesis Report. (2007) The Intergovernmental Panel on Climate Change
(IPCC). Page 30. Available at:
http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf
quadruple by the year 2100. As a result global-average surface temperature will
increase 4.0º Celsius (7.2º Fahrenheit) by the end of the 21st century.31
1.3 Effects of Climate Change on Mankind
If climate change continues on present course the coming decades will bring higher
temperature, increasing drought and severe storms. Tropical diseases will spread
rapidly and massive human dislocation would be a common feature as low-lying
coastal areas around the globe would be flooded by rising seas. 32
Main effects of climate change on earth would be the following;
1.3.1 Agricultural Productivity Would Be Reduced: Climate change is likely to
have a significant impact on agricultural productivity because agriculture is highly
sensitive to climate variability and extreme weather events such as droughts, floods
and severe storms.
Although higher minimum temperatures may be beneficial to some crops, it will
generally be detrimental to numerous crops and their productivity all over the world.
Droughts, floods and severe storms will also reduce agricultural productivity.33
By reducing agricultural productivity climate change could leave an additional 600
million people facing acute malnutrition by the 2080s over and above the level in a
no-climate change scenario.34
1.3.2 Heightened Water Insecurity: Scientists predict that exceeding the 2°C
threshold of temperature will fundamentally change the distribution of the world’s
31
James B. Martin-Schramm. (2008) ‘Human Rights and Climate Change.’ Available at:
http://www.elca.org/What-We-Believe/Social-Issues/Journal-of-Lutheran-Ethics/Issues/February2009/8-Human-Rights-and-Climate-Change.aspx#_edn8
32 Amy Sinden. (2007) ‘Climate Change and Human Rights.’ Journal of Land Resources and
Environmental Law vol.27, no 2, page 256
33 Assessment Reports on Agriculture and Food Security of intergovernmental panel on climate change
(IPCC). (2007)Available at:
http://www.ipcc.ch/ipccreports/tar/wg2/index.php?idp=32
34 Human Development Report 2007/2008. Fighting Climate Change: Human Solidarity in a Divided
World. Published by the United Nations Development Programme. New York, USA.
Page 27. Available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Complete.pdf
water resources.35 Many semi-arid and arid areas such as the Mediterranean Basin,
western USA, southern Africa and northeastern Brazil are particularly exposed to the
impacts of climate change and are projected to suffer a decrease of water resources
due to climate change.36
Because of climate change water supplies stored in glaciers and snow cover are
projected to decline in the course of the century, thus reducing water availability
during warm and dry periods in regions supplied by melt water from major mountain
ranges, where more than one-sixth of the world’s populations currently live. 37
By 2080, climate change could increase the number of people facing water scarcity
around the world by 1.8 billion. 38
1.3.3 Increased Exposure to Coastal Flooding and Extreme Weather Events:
Scientific evidences clearly show that the climate is warming which is causing more
extreme weather events such as drought, flooding, cyclones, precipitation variability,
storms, snow, storm surges, temperature variability, and wildfires. On average around
262 million people were affected each year between 2000 and 2004 by violent tropical
cyclones, droughts and floods. Over 98 percent of them were living in developing
countries.39
Scientists of IPCC have proved that sea level is rising because of climate change. From
1961 to 2003, the average rate of sea level rise was 1.8 ± 0.5 mm yr–1.40 Rising sea
levels would increase the number of people experiencing coastal flooding by between
180 million and 230 million. This would cause the widespread displacement of people
in countries such as Bangladesh, Maldives, Tuvalu Island, Marshall Islands and other
low-lying coastal area.. 41
35
Ibid-page 27
Bates, B.C., Z.W. Kundzewicz, S. Wu and J.P. Palutikof, Eds., 2008: Climate Change and Water.
Technical Paper of the Intergovernmental Panel on Climate Change, IPCC Secretariat, Geneva. Page 3. Available at:
http://www.ipcc.ch/pdf/technical-papers/climate-change-water-en.pdf
37 Ibid-page 3.
38 Human Development Report 2007/2008. Fighting Climate Change: Human Solidarity in a Divided
World. Published by the United Nations Development Programme. New York, USA.
Page 27. Available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Complete.pdf
39 Ibid-page 30.
40 The Fourth Assessment Report of the Intergovernmental Panel on Climate Change. Available at:
http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1-chapter5.pdf
41 Human Development Report 2007/2008. Fighting Climate Change: Human Solidarity in a Divided
World. Published by the United Nations Development Programme. New York, USA.
Page 30. Available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Complete.pdf
36
1.3.4 The Collapse of Ecosystems: Scientists predict that the effect of climate
change is very likely to change the ecosystems on earth. They claim that if the
temperature on earth increases 2°C, 20–30 percent of species would be at ‘high risk’ of
extinction. 42
Tropical and boreal forests, deserts and semi-deserts, low-lying islands, arctic regions,
mountain systems, wetlands, peatbogs and coastal marshes, and coral reefs would be
the most vulnerable ecosystems affected by the climate change.43
Changes in climatic variables such as rainfall, sunshine, cloud cover, and the
frequency of extreme weather events will influence these vulnerable ecosystems.
Some ecological systems may not reach a new tranquility for several centuries after
the climate achieves a new balance. Some species within such ecosystems may
become extinct. 44
42
Human Development Report 2007/2008. Fighting Climate Change: Human Solidarity in a Divided
World. Published by the United Nations Development Programme. New York, USA.
Page 27. Available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Complete.pdf
43 Joe Buchdahl. (2002) ‘Climate Change’. Atmosphere, Climate & Environment Information
Programme, Aric Manchester Metropolitan University, Chester Street, Manchester. UK.
Page- 71. Available at:
http://www.ace.mmu.ac.uk/Resources/Fact_Sheets/Key_Stage_4/Climate_Change/pdf/Climate_Change.
pdf
44 Ibid-page 73
Chapter 2: Human Rights-Based Approach to Climate Change
It is now widely accepted that climate change threatens basic human rights such as
the right to life, to food, to shelter, to water and to health. These rights are already
protected in existing human rights regime.45 So it can be argued that this regime could
be used to protect those who are vulnerable to the effects of climate change. 46
Human rights-based approach to climate change can bring the impacts of climate
change within the framework of existing human rights obligations47 and pursue
national and international communities to give remedies to the affected communities.
The following sections will explore all these human rights issues related to climate
change
2.1 Whether the Impacts of Climate Change are Severe Enough to Become
a Human Rights Issue?
In order to find out the answer of this question, this paper will follow an approach
introduced by environmental law scholar Hari M. Osofsky.48 This approach suggests
to consider geographic scope, duration and severity of the environmental damage and
its impacts on humanity to evaluate whether the effects of climate change constitute a
human rights issue. 49
45
Doyle, Michael and Ann Marie Gardner, (2003) Introduction: Human Rights and International Order
in Jean-Marc Coicaud, Michael W. Doyle, and Ann Marie Gardner, (eds.), The Globalization of Human
Rights, United Nations University, Tokyo, Japan. Page 89.
46 James Peter Louviere and Donald A. Brown. (2008) ‘The Significance of Understanding Inadequate
National Climate Change Programs as Human Rights Violation.’ Climate Ethics. Available at:
http://climateethics.org/?p=39
47 Bridget Lewis. (2008) ‘Climate Change and Human Rights : Perspectives of Environmental and
Indigenous Rights.’ Journal of The Australasian Law Teachers Association vol.1, no.1 & 2, page 154
Available at:
http://www.alta.edu.au/pdf/JALTA/JALTA%20Volumes/2008%20Vol%201%20No%201&2.pdf
48 Hari Osofsky is an associate professor at Washington and Lee University School of Law. She is
specialist in environmental law.
49 Hari M. Osofsky. (2005) ‘Learning from Environmental Justice: A New Model for International
Environmental Rights.’ Stanford Environmental Law Journal vol.24,no1,page 91
Now if we analyze the effects of climate change, we can see that the geographic scope
of climate change is truly global. It is affecting the Arctic, ocean currents and
ecosystems, weather systems, agricultural productivity and water security of the
whole world, 50
The duration of climate change is extensive. The severity of climate change will
depend largely on GHG emissions over the next 50 years. 51 Scientists warn that even
if GHG emissions stabilized today, temperatures and sea levels would continue to rise
for another century or more because of the time lag in the ocean's response to
atmospheric temperature change. 52
Climate change is likely to cause an increase in the severity and frequency of extreme
events and weather disasters, including storms, tropical cyclones, and droughts.53
Floods and droughts will increase diarrhoea and cholera. Over 150,000 people are
currently estimated to die each year from diarrhoea, malaria, and malnutrition caused
by climate change. 54
Increasing intensity and frequency of heat waves, floods, storms, and droughts are
projected to lead to more deaths.55 For example Europe’s 2003 heat wave – induced
by climate change – resulted in 27,000 extra deaths. 56
50
Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’.
Hastings International and Comparative Law Review vol.30 page 242
51 Bob Holmes. (2005) ‘Ocean Heat Store Makes Climate Change Inevitable.’ NewScientist.
Available at: http://www.newscientist.com/article.ns?id=dn7161
52 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’.
Hastings International and Comparative Law Review vol. 30, page 242.
53 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’.
Hastings International and Comparative Law Review vol. 30, page 243.
54 Daniel A. Farber.(2008) ‘ The Case for Climate Compensation : Justice for Climate Change Victims in
a Complex World.’ Utah Law Review no. 2, 2008. page 377-397
55 Human Rights and the Climate Crisis: Acting Today to Prevent Tragedy Tomorrow. (2008) A
Briefing Paper by Greenpeace. Page - 4 Available at:
http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Greenpeace_HR_ClimateCrisis.
pdf
56 Purple Romero. (2008) ‘Wealthy Nations’ Failure to Mitigate Climate Change Violates
Rights in Developing Countries.’ ABS -CBNNEWS. Available at:
http://www.abs-cbnnews.com/special-report/09/15/08/wealthy-nations%E2%80%99-failure-mitigateclimate-change-violates-rights-developing-
Projected climate change is expected to put close to 50 million more people at risk of
hunger by 2020, and an additional 132 million people by 2050.57
So from the above analysis it can be argued that the effects of climate change are so
global, severe and human that the impacts of climate change can easily be regarded as
a human rights issue and existing human rights regime can appropriately encompass
the issue of the effects of climate change.
2.2 History and Development of the Linkage Between Climate Change and
Human Rights.
Though the concept of climate change has been evolved from the early 1800s58 and
the earlier discussion of human rights obligations in the context of climate change can
be traced to the well-established body of literature connecting human rights and the
right to healthy environment, 59 international interest in the linkages between climate
change and human rights is a relatively recent phenomenon.60
A group of Small Island states, indigenous people and some non-government
organizations first begun to raise the issue of human rights-based approach to climate
change. They claim that to date the focus of consequences of climate change have
57
Nicholas Stern Report on Climate Change. (2006) [Known as Stern Review] Published by the
United Kingdom.
Available at: http://www.hm-treasury.gov.uk/stern_review_report.htm
58 The history of the scientific discovery of climate change began in the early 1800s when natural
changes in paleoclimate were first suspected and the natural greenhouse effect first quantified. In the
late 1800s, scientists first argued that human emissions of greenhouse gases could change the climate,
but the calculations were disputed. In the 1950s and 1960s, scientists increasingly thought that human
activity could change the climate on a timescale of decades, but were unsure whether the net impact
would be to warm or cool the climate. During the 1970s, scientific opinion increasingly favored the
warming viewpoint. In the 1980s the consensus position formed that human activity was in the process
of warming the climate, leading to the beginning of the modern period of climate change science
summarized by the Intergovernmental Panel on Climate Change. Source: Wikipedia. History of
climate science. Available at: http://en.wikipedia.org/wiki/History_of_climate_change_science
59 Siobh´an McInerney-Lankford .(2009) Climate Change and Human Rights : An
Introduction to Legal Issues.’ Harvard Environmental Law Review vol. 33, no.2 page 431-432.
60 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no.2, page 440.
Available at: http://www.law.harvard.edu/students/orgs/elr/vol33_2/Limon.pdf
been largely on the economic, trade and security issues. The social and human rights
impacts of climate change have rarely drawn attention.61
They argue that when climate change is viewed through a human rights lens, the
picture looks very different from the scientific statistics and economic forecasts we
generally hear.62
The human rights lens shows that climate change is threatening the right to life, food,
water, shelter and health of the vulnerable communities of the world.63
They argue that it is time to shift the debate onto the victims of the problem —
namely individual people and communities around the world who are most affected
by climate change. 64
However climate change and human rights were first formally and explicitly linked
in December 2005, when an alliance of Inuit from Canada and the United States, led
by Sheila Watt-Cloutier, filed a petition with the Inter-American Commission on
Human Rights.65
The petition66alleged that the effects of climate change had violated human rights of
Inuit people for which the United States is responsible because largely the United
States had failed to curb its greenhouse gas emissions.67
The Inuit case68was first to introduce the idea that global climate change is in fact a
very human process with demonstrable human cause and effect. Like any other aspect
61
John Von Doussa. (2007) ‘Climate Change: Catastrophic Impacts and Human Rights.’ Australian
Human Rights Commission. Available at:
http://www.humanrights.gov.au/about/media/speeches/speeches_president/2007/20071211_Climate_C
hange.html
62 Ibid.
63 John Von Doussa. (2008) ‘Human Rights and Climate Change: A Tragedy in the Making.’ The
University of New South Wales Law Journal vol. 31, no. 3, page 954.
64 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no.2 page 440.
65 Ibid-page 441.
66 This Petition was submitted on December 7 2005 to the Inter-American Commission on Human
Rights Seeking Relief from Human Rights Violations Resulting from Global Warming Caused by Acts
and Omissions of the United States. Available at http://www.inuitcircumpolar.com/files/uploads/iccfiles/finalpetitionicc.pdf
67 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no.2, page 441.
68 Although the petition was rejected without prejudice in November 2006, the Commission
subsequently invited, in February 2007, the Inuit Alliance together with representatives of the Center
of human interaction, climate change could be placed within a human rights
framework of responsibility, accountability, and justice.69 As Mary Robinson, a former
UN high commissioner for human rights said during a lecture at Chatham House,
London that: “Climate change has already begun to affect the fulfilment of human
rights, and our shared human rights framework entitles and empowers developing
countries and impoverished communities to claim protection of these rights.” 70
After the first formal expression of the linkage between climate change and human
rights in Inuit case, international communities 71 have gradually began to recognize
the impacts of climate change on human rights.
In November 2007, the Mal´e Declaration 72 on the Human Dimension of Global
Climate Change explicitly stated that “climate change has clear and immediate
implications for the full enjoyment of human rights” and called on the United Nations
human rights system to address the issue as a matter of urgency. 73
In December 2007, in Thirteenth Conference of Parties to the United Nations
Framework Convention on Climate Change (COP 13) in Bali, Kyung-wha Kang,
Deputy U.N. High Commissioner for Human Rights also recognized the relationship
between climate change and human rights. She stated that “indeed, climate change
poses a direct threat to a wide range of universally recognized human rights, such as
for International Environmental Law (CIEL) and Earthjustice to provide testimony on the link
between global warming and human rights. [Source: Marc Limon. (2009) ‘ Human Rights and Climate
Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no.2,
page 441.]
69 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no. 2, page 441-442.
70 Mary Robinson. (2006) ‘Climate Change and Justice’. A lecture of Former Irish President and United
Nations High Commissioner for Human Rights Ms Mary Robinson at the Barbara Ward Lecture series,
at Chatham House in London (11 December 2006) .Available at:
http://www.realizingrights.org/pdf/Barbara_Ward_Lecture_12-11-06_FINAL.pdf
71 A number of international organizations also began to explore the interface between climate change
and human rights, including the International Council on Human Rights Policy (ICHRP), the
Organization of American States, Oxfam International, Mary Robinson’s realizing Rights, Kofi Annan’s
Global Humanitarian Forum. Source: Marc Limon. (2009) ‘ Human Rights and Climate Change:
Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no. 2, page 443.
72 In November 2007, the Maldives convened a Small Island States Conference in Mal´e to address the
effects and the implications of climate change. This declaration was adopted in this conference on 14
November 2007. This declaration was the first an international agreement on climate change impacts
on human rights. This declaration is available at:
http://www.ciel.org/Publications/Male_Declaration_Nov07.pdf
73 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no.2, page 442.
the rights to life, food, adequate housing or water. Procedural human rights,
including access to information or justice and participation in decision-making
processes may also become increasingly relevant in a context of climate change,
particularly for those being affected by it. Any strategy to deal with climate change,
whether in terms of adaptation or mitigation, must incorporate the consequences for
humans, as individuals and communities, and the human rights framework is the
most effective way to do so.” 74
In 2008, the United Nations Development Programme in its 2007/2008 Human
Development Report, argued that climate change represents “a systematic violation of
the human rights of the world’s poor and future generations, and a step back from
universal values.” 75
On January 15, 2009, the Office of the United Nations High Commissioner for Human
Rights (OHCHR) published an analytical study Report on the relationship between
climate change and human rights.76 This Report77firmly recognized the linkage
between climate change and human rights and stated that observed and projected
impacts of climate change will inevitably affect the enjoyment of human rights,
safeguarding of human rights should be a key consideration in efforts to address the
impact of climate change.
74
Ms. Kyung-wha Kang. (2007) ‘Climate Change and Human Rights.’ A paper by Ms. Kyung-wha
Kang, Deputy High Commissioner for Human Rights, Office of the United Nations High Commissioner
for Human Rights. Available at:
http://www.unhchr.ch/huricane/huricane.nsf/view01/013DC0FAA475EC87C12573B10074796A?opend
ocument
75 Human Development Report 2007/2008. Fighting Climate Change: Human Solidarity in a Divided
World. Published by the United Nations Development Programme. New York, USA.
Available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Complete.pdf
76 Report of the Office of the United Nations High Commissioner for Human Rights on the relationship
between climate change and human rights. (2009) report number: A/HRC/10/61-15 January 2009.
Available at:
http://daccessdds.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement
77 This report was submitted pursuant to Human Rights Council resolution 7/23 (March 28, 2008) in
which the Office of the United Nations High Commissioner for Human Rights (OHCHR) was
requested to conduct a detailed analytical study of the relationship between climate change and human
rights, taking into account the views of States and other stakeholders.
Written submissions were received from States, intergovernmental organizations, national human
rights institutions, non-governmental organizations, and individual experts. OHCHR also organized a
one-day open-ended consultation on the relationship between climate change and human rights, held
on 22 October 2008 in Geneva. The inputs received during the consultation process have informed the
preparation of this report.
This report outlined main aspects of the relationship between climate change and human rights.
Source:Office of the United Nations High Commissioner for Human Rights.Availableat
http://daccessdds.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement
Finally on March 25, 2009, the United Nations Human Rights Council adopted78
resolution 10/4, unequivocally recognizing that “climate change-related impacts have
a range of implications, both direct and indirect, for the effective enjoyment of
human rights including, inter alia, the right to life, the right to adequate food, the
right to the highest attainable standard of health, the right to adequate housing, the
right to self-determination and human rights obligations related to access to safe
drinking water and sanitation, and recalling that in no case may a people be deprived
of its own means of subsistence.”79
So from the above discussion, it can be claimed that international scholars, human
rights advocates, international organisations and state parties are now recognising the
linkage between climate change and human rights and the impacts of climate change
on human rights.
Further, following the publication of the OHCHR Report and adoption of resolution
10/4 it can also now be argued beyond any doubt, legal or otherwise, that climate
change has serious and widespread implications for the full enjoyment of human
rights.80
2.3 Positioning Climate Change within the Framework of International
Human Rights Regime
78
After considering the analytical study report of the Office of the United Nations High Commissioner
for Human Rights (OHCHR) on the relationship between climate change and human rights the United
Nations Human Rights Council adopted this resolution 10/4 on March 25, 2009.
79 Resolution 10/4 (March 25, 2009) of the United Nations Human Rights Council. Available at:
http://www2.ohchr.org/english/issues/climatechange/docs/resolution10_4.doc
80 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no. 2, page 447.
In order to bring the issues of climate change within the framework of international
human rights regime, we need to examine how far human rights have evolved to
recognise the need for a clean and healthy environment as a precondition for the
right to life and other established human rights 81 and how the issue of climate change
fits within existing human rights jurisprudence. 82
In order to do so, we can begin with an examination of the development of human
rights and the recognition of the right to healthy environment to investigate how this
area can be expanded to include the issues of climate change. 83
2.3.1 Historical Development and Theories of Human Rights:
Human rights law and its practice are contributing to change the global attitude to
humanity. The concept of human rights is a very powerful and a major social force
today. Even in the late 18th and 19th Century, it became a crucial implement of social
change.84
‘The words “human rights” denote individual rights against oppression, in particular
the rights to life, to freedom of thought, religion, speech and assembly, and to a fair
system of justice.”85
Human rights have been defined as “basic moral guarantees that people in all
countries and cultures allegedly have simply because they are people. Calling these
guarantees “rights” suggests that they attach to particular individuals who can invoke
them”.86
81
Meinhard Doelle. (2004) ‘Climate Change and Human Rights: The Role of the International Human
Rights in Motivating States to Take Climate Change Seriously’. Macquarie Journal of International and
Comparative Environmental Law, vol.1, no-2, page 182, page (179-216)
82 Bridget Lewis. (2008) Climate change and human rights : perspectives of environmental and
indigenous rights. Journal of The Australasian Law Teachers Association vol.1, no.1 & 2, page-155.
83 Ibid-Page 155.
84 Jan Gorecki. (1987) ‘Human Rights: Explaining the Power of a Moral and Legal Idea’. The
American Journal of Jurisprudence vol. 32, page 153
85 Ibid.page153
86 Nickel, James. (1987) Making Sense of Human Rights: Philosophical Reflections on the Universal
Declaration of Human Rights. Berkeley; University of California Press. Page 561-2.
Human rights refer to a wide continuum of value claims ranging from the most
justiciable to the most aspirational. They represent both the 'is' and the'ought' of
social interaction. 87
The idea of human rights law has been developed from the concept of natural rights
and this concept has been derived from the doctrine of natural law.88 17th century
philosopher John Locke (1632-1704) clarified this issue in his Two Treatises of Civil
Government. He explained that individual possess natural rights and natural rights
flowed from natural law. 89 In his view, each individual had natural rights to life,
liberty and property, and the enjoyment of private rights and happiness. Each
individual had to be free from threats to life and liberty.90 These are very important
elements of human rights law.
Scholars of legal positivism base their justification of human rights law on the
doctrine of positive law.91 To them human rights law is apparently positivist idea
because “human rights law finds its sources in the human rights treaties, and in a
wide range of other treaties which have been signed by states under the auspices of
human rights standard setting and monitoring”.92
87
B H Weston. (1986) 'Human Rights' Human Rights Quarterly vol.6, page 257, 262.
The doctrine of natural law has been developed by a number of philosophers. Jurisprudential analysis
suggests that Philosopher St Thomas Aquinas (1225-74) in his Summa Theologiae more fully developed
the concept of natural law. Natural law has been defined in many ways but “the best description of
natural law is that it provides a name for the point of intersection between law and morals. The
principal claim of natural law is that what naturally is, ought to be.
[ Source: Russell Hittinger.
(1994) ‘Natural Law and Virtue : Theories at Cross Purposes’ published in Natural Law Theory
Contemporary Essays edited by Robert p George. Clarendon press, Oxford. Page 63 and Raymond
Wacks. (2005) Understanding Jurisprudence : an Introduction to Legal Theory. Oxford University
Press. Page 15 ]
89 The doctrine of natural law provides a sound understanding of principles of human rights law. “This
natural law understanding of human rights is connected with a particular account of human dignity.
Under this account, the natural human capacities for reason and freedom are fundamental to the
dignity of human beings—the dignity that is protected by human rights. The basic good of human
nature are the goods of a rational creature—a creature who, unless impaired or prevented from doing
so, naturally develops and exercises capacities for deliberation, judgement and choice.
[Source:
George, Robert P. (2008) ‘Natural Law’. Harvard Journal of Law and Public Policy vol. 31, no. 1, page
171-96. ]
90 Raymond Wacks. (2005) Understanding Jurisprudence : an Introduction to Legal Theory. Oxford
University Press. Oxford. Page 23-24
91 “Positive Law is law made by human persons—in treaties, conventions, courts, parliaments and so
on”. [Source: Anthony J Langlois. (2004) ‘The Elusive Ontology of Human Rights’. Global Society vol.
18, no.3, page 245]
92 Anthony J Langlois. (2004) ‘The Elusive Ontology of Human Rights’. Global Society vol. 18, no.3,
page 245
88
However, it is considered that the Universal Declaration of Human Rights (1948) (the
declaration) is the foundation of the contemporary doctrine of human rights law. The
declaration is actually a list of rights derived from the principles of natural law which
form the basis of modern human rights law.
The rights the declaration articulates form the basis for the major human rights
treaties and conventions drafted since 1948. The Convention for the Protection of
Human Rights and Fundamental Freedoms (also known as the "European Convention
on Human Rights" and "ECHR") (1950), The International Covenant on Civil and
Political Rights (1966), The International Covenant on Economic, Social and Cultural
Rights (1966), The Convention against Torture and other Cruel, Inhuman or
Degrading Treatment of Punishment (1984), The International Convention on the
Suppression and Punishment of the Crime of Apartheid (1973), The Convention on
the Rights of the Child and these kinds of all other treaties and conventions found
their philosophical aspiration from the Universal Declaration of Human Rights.
Taken together these various declarations, conventions, treaties and covenants
comprise the contemporary doctrine of human rights law and incorporate both the
belief in the existence of a universally valid moral order and a belief in all human
beings’ possession of fundamental and equal moral status, enshrined within the
concept of human rights.
2.3.1.1 Classification of Human Rights in International Law
Human rights are considered by some to have evolved in three generations of rights.
The first generation rights 93 of civil and political rights derive from seventeenth and
eighteenth century reformism and the political philosophy of liberal individualism
and economic laissez-faire. These rights are negative "freedoms from" rather than
more positive "rights to." 94
93
Many of these rights are set out in Articles 2-21 of the Universal Declaration and include: the right to
life, liberty and security of person; freedom from slavery or involuntary servitude; freedom from
torture; the right to a fair and public trial; freedom of thought, conscience and religion; the right to
own property and not be arbitrarily deprived of it. They are also the subject of the ICCPR. The core
concept is liberty of the individual, which is to be protected against the abuse and misuse of state
authority. [Source: Prudence E Taylor. (1998) ‘From Environmental to Ecological Human Rights: A
New Dynamic in International Law? Georgetown International Environmental Law Review vol.10,
page 317-318 ]
94 Prudence E Taylor. (1998) ‘From Environmental to Ecological Human Rights: A New Dynamic in
International Law? Georgetown International Environmental Law Review vol.10, page 317-318.
The second generation rights of economic, social and cultural rights95 primarily
originate in the socialist and human welfare traditions. Conceived of more as positive
"rights to" rather than "freedoms from," they require state intervention to ensure
equitable distribution and participation in the values prescribed. 96
The third generation of rights is commonly referred to as "solidarity rights." Although
still in the process of formation, scholars suggests that third generation rights include:
the right to political, economic and cultural self-determination; the right to economic
and social development; the right to participate in and benefit from the common
heritage of mankind; the right to peace; the right to a healthy environment; and the
right to humanitarian relief. Their primary characteristics are that they are essentially
collective in dimension and require international cooperation for their achievement.97
2.3.2 Human Rights and The Environment
In any analysis of international human rights issues, the starting point remains the
fundamental expressions of human rights as found in the Universal Declaration of
Human Rights (UDHR), the International Covenant on Economic, Social and Cultural
Rights (ICESCR), and the International Covenant on Civil and Political Rights
(ICCPR). 98
Within these instruments, there is no explicit mention of a human right to a healthy
environment. Instead, there are references to rights which have some indirect bearing
on a healthy environment, such as: Article 11 of the ICESCR, which recognizes the
right of all people to an adequate standard of living and a continuous improvement in
95
Articles 22-27 of the Universal Declaration and the ICESCR contain the primary statements of
second generation rights, including: the right to social security, the right to work and to protection
against unemployment, the right to a standard of living adequate for health and well-being, and the
right to education. They are essentially claims to social equality.
96 Prudence E Taylor. (1998) ‘From Environmental to Ecological Human Rights: A New Dynamic in
International Law? Georgetown International Environmental Law Review vol.10, page 318.
97 Ibid-page 318.
98 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a
Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of
Environmental Law vol. 25, page 305.
living conditions; 99 Article 6 of the ICCPR, which recognizes a universal right to life;
100
and Article 25 of the UDHR, which recognizes the right of all people to a standard
of living adequate for health. 101 However connections between the rights to life and
health and the environment have been developed further in more recent Declarations
of UN Entities, Conventions and judicial decisions.102
2.3.3 Development and Current Status of the Right to Healthy
Environment
The main theme of the right to healthy environment is that every human being has a
right to live in a healthy environment.
In 1972, Principle one of the Declaration of the United Nations Conference on the
Human Environment103 ( known as Stockholm Declaration) was first to pronounce a
clear global expression of something close to a human right to a healthy environment.
Principle one states in part that humans have the right to live 'in an environment of a
quality that permits a life of dignity and well being', and that humans bear 'a solemn
99
Article 11(1) of ICESCR states that "The States Parties to the present Covenant recognize the right of
everyone to an adequate standard of living for himself and his family, including adequate food,
clothing and housing, and to the continuous improvement of living conditions...." Available at:
http://www2.ohchr.org/english/law/cescr.htm
100 Article 6(1) of ICCPR states that "Every human being has the inherent right to life....".Available at:
http://www2.ohchr.org/english/law/ccpr.htm
101 Article 25 of UDHR states that "Everyone has the right to a standard of living adequate for the
health and well-being of himself and of his family, including food,....".
Available at: http://www.un.org/en/documents/udhr/index.shtml#a25
102 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a
Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of
Environmental Law vol. 25, page 305.
103 Declaration of the United Nations Conference on the Human Environment was adopted in the
United Nations Conference on the Human Environment which was held at Stockholm, June 5-16,
1972, and was attended by 113 nations. This Declaration included 26 Principles regarding the
relationship between humans and the natural environment, as well as an exhaustive list of over 100
recommendations of how to put those principles into action. The Declaration of the United Nations
Conference on the Human Environment is available at United Nations Environment Programme.
Website:
http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503
responsibility to protect and improve the environment for present and future
generations'. 104
The Declaration further explores the responsibility of humans to protect and preserve
as well as share the benefits of all natural resources, again, pointing to a human right
to a healthy environment and an equitable share of access to and benefits from the
resources it provides. 105
Ten years after the Stockholm Declaration, the United Nations General Assembly
adopted the World Charter for Nature by Resolution 37/7, of 28 October 1982.
The 1982 World Charter for Nature imposes obligations on states to protect and
preserve nature and natural resources much in the same way as the Stockholm
Declaration aimed to achieve. The Charter does not make specific reference to a
human right to a certain level of environmental quality, but its provisions are
generally consistent with an existence of such a right. 106
In 1992 the Rio Declaration on Environment and Development 107 (known as Rio
Declaration) fails to make any specific reference to a given standard of environmental
health as a human right.
However, principle 1 of this declaration has a very significant impact on the concept
of the right to healthy environment. 108
Principle 1 of Rio Declaration states that "human beings are... entitled to a healthy
and productive life in harmony with nature." While the Rio Declaration, like the
104
Meinhard Doelle. (2004) ‘Climate Change and Human Rights: The Role of the International Human
Rights in Motivating States to Take Climate Change Seriously’. Macquarie Journal of International and
Comparative Environmental Law vol.1, no.2, page 208.
105 Ibid-page 209.
106 Ibid-page 209.
107 Rio Declaration on Environment and Development (known as Rio Declaration) was adopted in the
United Nations Conference on Environment and Development which was held at Rio de Janeiro from
3 to 14 June 1992 and was attended by 178 nations and 100 heads of state. Reaffirming the Declaration
of the United Nations Conference on the Human Environment, adopted at Stockholm on 16 June 1972,
the Rio Declaration aimed to achieve international agreements which will respect the interests of all
and protect the integrity of the global environmental and development system. This declaration
included 27 principles.
Available at United Nations Environment Programme. Website:
http://www.unep.org/Documents.Multilingual/Default.asp?documentID=78&articleID=1163
108 Meinhard Doelle. (2004) ‘Climate Change and Human Rights: The Role of the International Human
Rights in Motivating States to Take Climate Change Seriously’. Macquarie Journal of International and
Comparative Environmental Law vol.1, no.2, page 209.
Stockholm Declaration, is a set of legally non-binding principles, Principle 1, which
was accepted without reservation by almost every nation, captures the ideals of a
human right to a healthy environment.109
The language of Principle 1 of the Rio Declaration was reproduced verbatim, and
accepted without reservation by 179 nations at the 1994 U.N. Conference on
Population and Development; by 186 nations at the 1995 World Summit for Social
Development; by 175 nations at the 1996 Second Conference on Human Settlements
(Habitat II); and by 17 nations at the OAS-sponsored 1997 Hemispheric Summit on
Sustainable Development.110
For the purposes of international human rights regime, this reaffirmation of the
language agreed upon in Principle 1 of the Rio Declaration is very significant. While
each of these reaffirmations is legally non-binding, the fact that almost every nation
made this reaffirmation without reservation is evidence of a widespread and
consistent state practice. Such practice can contribute to the creation of a right to a
healthy environment as a principle of international human rights order. 111
Other sources which have directly or indirectly mentioned about human rights to
healthy environment would include Regional Human Rights initiatives, the ILO
Convention 169 on Indigenous and Tribal Peoples,112 United Nations Declaration on
the Rights of Indigenous Peoples and the Draft Declaration of Principles on Human
Rights and the Environment 1994 113
109
John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a
Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of
Environmental Law vol. 25, page 308.
110
John Lee.(2000)‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy
Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law
vol. 25, page 309. ]
111 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a
Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of
Environmental Law vol. 25, page 309.
112 Article 7 of the ILO Convention 169, recognizes indigenous peoples' right to environment.
113 On 16 May 1994, an international group of experts on human rights and environmental protection
convened at the United Nations in Geneva and drafted the first-ever Declaration of Principles on
Human Rights and the Environment.
Most importantly Principle 2 of the Draft Declaration of Principles on Human Rights and the
Environment states that “all persons have the right to a secure, healthy and ecologically sound
environment. This right and other human rights, including civil, cultural, economic, political and
social rights, are universal, interdependent and indivisible.”
The Draft Declaration of Principles on Human Rights and the Environment is available at:
On a regional level, right to a healthy environment has been recognized in several
multilateral instruments. The African Charter on Human and People's Rights114(
known as Banjul Charter) explicitly recognizes a right to a healthy environment.
Article 24 of Banjul Charter clearly states that "all peoples shall have the right to a
general satisfactory environment favorable to their development." 115
The Additional Protocol to the American Convention on Human Rights in the Area
of Economic, Social, and Cultural Rights 116 (known as the Protocol of San Salvador)
also explicitly recognizes a right to a healthy environment in Article 11 of Protocol of
San Salvador which states that “everyone shall have the right to live in a healthy
environment and to have access to basic public services." No reservations were taken
concerning art.11. 117
The Declaration of Santa Cruz 118 which was adopted at the Hemispheric Summit on
Sustainable Development, in Bolivia on December 7-8, 1996 also reaffirms that
human beings are entitled to a healthy and productive life in harmony with nature.119
http://fletcher.tufts.edu/multi/www/1994-decl.html
114 The African Charter on Human and People’s Rights was adopted on June 27, 1981, and went into
force on October 21, 1986. By March, 2007, 52 African states were parties to the Charter. Almost every
nation in Africa is a party to the Banjul Charter. The Banjul Charter gives a listing of the rights and the
duties of the African people. Under Chapter I (Human and People's Rights), Article 24, the right of all
peoples to a general satisfactory environment favorable to their development has been recognized
which says that “all peoples shall have the right to a general satisfactory environment favorable to their
development.” No reservations were taken concerning Article 24. This Charter is available at:
http://www.achpr.org/english/_info/charter_en.html
115 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a
Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of
Environmental Law vol. 25, page 306.
116 The Additional Protocol to the American Convention on Human Rights in the Area of Economic,
Social, and Cultural Rights (known as the Protocol of San Salvador) was adopted on November 17,
1988, and entered into force on November 16, 1999. As of March, 2000, 18 countries had signed the
Protocol. Article 11 of this Protocol states that “everyone shall have the right to live in a healthy
environment and to have access to basic public services" In addition, states party are required to
promote the "protection, preservation and improvement of the environment. This Protocol is available
at Organisation of American States. Website: http://www.oas.org/juridico/English/treaties/a-52.html
117 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a
Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of
Environmental Law vol. 25, page 306.
118 The Declaration of Santa Cruz, a legally non-binding document, was adopted at the Hemispheric
Summit on Sustainable Development, which was organized by the OAS and held in Bolivia on
December 7-8, 1996. The Summit was attended by 34 member states, and reaffirms the commitments
set forth in both the Rio Declaration and Agenda 21. The Declaration of Santa Cruz stated that "we
reaffirm that human beings are entitled to a healthy and productive life in harmony with nature and,
So from the above analysis it can be asserted that internationally, there are indications
that we are moving towards recognising a right to a healthy environment as a
separate human right. International and regional efforts such as the Stockholm
Declaration, the World Charter for Nature, the Rio Declaration, the San Salvador
Protocol, and regional efforts in Africa, point in this direction, as do international and
regional court’s rulings. 120
2.3.4 International and Regional Court’s Inclination to the Right to
Healthy Environment
In international and regional courts, such as the International Court of Justice (ICJ),
the European Court of Human Rights (ECHR), and the Inter-American Commission
on Human Rights (IACHR) have inclination to a right to a healthy environment.
For example, in Lopez Ostra v. Spain-(16798/90) ECHR [9 December 1994]121 the
ECHR found a link between the environment and the right to enjoy private and
family life as expressed in Article 8 of the European Convention on Human Rights.
In Yanomani Indians v. Brazil, Inter-Am. C.H.R. 7615, OEA/Ser.L.V/II/66 doc. 10
rev. 1 (1985). The Inter-American Commission on Human Rights found that Brazil
had violated the Yanomani Indians' right to life, liberty and personal security by not
as such, are the focus of sustainable development concerns." The Declaration of Santa Cruz is available
at Organisation of American States. Website: http://www.summit-americas.org/boliviadec.htm
119 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a
Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of
Environmental Law vol. 25, page 306.
120 Meinhard Doelle. (2004) ‘Climate Change and Human Rights: The Role of the International Human
Rights in Motivating States to Take Climate Change Seriously’. Macquarie Journal of International and
Comparative Environmental Law vol.1, no. 2, page 213.
121 Lopez-Ostra v. Spain-(16798/90) ECHR [9 December 1994]. Available at:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Lopez%20
%7C%20Ostra%20%7C%20v.%20%7C%20Spain&sessionid=28908871&skin=hudoc-en
taking measures to prevent the environmental damage that resulted in the loss of life
and cultural identity among the Yanomani 122
In Gabcikovo-Nagymaros Projects case 123 1997 (a case between Hungary and
Slovakia,) although the ICJ did not explicitly recognize a human right to a healthy
environment, the majorities recognized 124 that new environmental norms were
developing and that they must be taken into account for the future recognition of a
human right to a healthy environment by the ICJ. 125
There have been several national tribunals that have explicitly given recognition to a
right to a healthy environment.
In Fundepublico v. Mayor of Bugalagrande and Others, the Constitutional
Court of Colombia held in favor of the right to a healthy environment as a
fundamental human right. In its decision, the court made reference to rights
contained in the Colombian Constitution and also to "recent developments in
international law." Subsequently, decisions made by the Constitutional Court in July
1995 and June 1996 reaffirmed Colombia's acceptance of the right to a healthy
environment. 126
A right to a healthy environment was affirmed in South Africa in Wildlife Society of
Southern Africa and Others v. Minister of Environmental Affairs and Tourism of the
122
John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a
Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of
Environmental Law vol. 25, page 311-12.
123 Gabcikovo-Nagymaros Project case (Hungary v. Slovakia.), International Court of Justice. Report
No- 7. Judgment Delivered on 25th September 1997.
Available at: http://www.icj-cij.org/docket/files/92/7375.pdf
124 Vice President Weeramantry, in an unjoined separate opinion explaining his vote in GabcikovoNagymaros, stated that "the protection of the environment is... a vital part of contemporary human
rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the
right to life itself." The judge stated that the people of Hungary and Slovakia are "entitled to the
preservation of their human right to the protection of their environment. While the separate opinion
is not legally binding, it shows that a leading member of the ICJ has accepted the convergence of
environmental issues and human rights.
125 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a
Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of
Environmental Law vol. 25, page 312.
126 Ibid- page 318.
Republic of South Africa and Others. Here the Court ruled that everyone has a right to
live in a healthy environment 127
In the absence of a specific multilateral treaty or convention on a right to a healthy
environment, it can now be argued that the above analysis and rulings of the courts
manifest that the right to a healthy environment is attaining the status of a rule of
customary international human right law. 128
It can also be insisted that internationally accepted human right to a healthy
environment will provide the most effective and consistent legal basis to human
rights violation caused by climate change. 129
Scholars suggest that in the context of climate change, human rights should be
interpreted with regard to general principles of the right to healthy environment
Environmental lawyers and human rights scholars also recommend that since human
rights instruments in relation to the right to healthy environment are not precise
enough to be implemented, 130 the most viable strategies for constructing a human
rights-based approach to climate change are to re-interpret the existing human rights
law in the context of the principles of the right to healthy environment 131 which
asserts that humans have the right to live 'in an environment of a quality that permits
a life of dignity and well being.132.
127
John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a
Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of
Environmental Law vol. 25, page 319
128 Ibid- page 339
129 Ibid- page 339
130 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’.
Australian International Law Journal vol.14, page 161-180
131Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’.
Hastings International and Comparative Law Review vol. 30, page 245.
132 Principle one of the Declaration of the United Nations Conference on the Human Environment
1972 ( known as Stockholm Declaration)
2.3.5 Can the Existing Human Rights be Extended to Include Climate
Change Protection?
Some critics claim that that climate change is not a human rights issue because it is
not globally recognised.133
However regarding this claim it can be argued that the question that should be
examined is whether interference with the right amounts to an infringement of basic
human dignity, not whether the right is currently universally recognized. The fact
that such protections are not currently recognized is not the final determinant of
whether the rights should be acknowledged. That is, according to the well accepted
ethical maximum, the “is-ought dichotomy,” what “is” cannot define what “ought” to
be. So the appropriate question for extending human rights regime into climate
change debate is whether the impacts of climate change prevents enjoyment of basic
human right and human dignity. 134
It is now established that climate change is preventing the enjoyment of well
recognised basic human rights such as right to life, to food, to water, to health and to
shelter which are already acknowledged as entitled to universal human rights.
So from the above analysis it can be argued that the present human rights regime can
be extended to include climate change protection. There are many broad rights
recognised in the UDHR, ICCPR, ICESCR, and other international and regional
human rights instruments which are relevant to the situation of people whose way of
life comes under threat from climate change. States have a responsibility under these
human rights instruments to take action to remedy the direct and indirect threats to
these rights posed by climate change. 135
133
John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’.
Australian International Law Journal vol.14, page 161-180
134 James Peter Louviere and Donald A. Brown. (2008) ‘The Significance of Understanding Inadequate
National Climate Change Programs as Human Rights Violation.’ Climate Ethics. Available at:
http://climateethics.org/?p=39
135 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’.
Australian International Law Journal vol.14, page 161-180
Chapter 3: Human Rights Affected by Climate Change
Human rights scholars suggest that in order to decide whether the effects of climate
change infringe human rights of people under current human rights regimes, it is
important to investigate whether the sufferings caused by the impacts of climate
change interfere with rights expressly recognized by these existing regimes.136
In order to find out which rights have been affected by the climate change, this paper
would adopts this approach arguing that existing human rights law should be
expanded to encompass climate change impacts 137
The following section will analyse the effects of climate change on human rights
which have been identified in human rights regimes as relevant to sufferings caused
by climate change.138 This section will also highlight other links between human
rights and climate change, such as the concept of climate change refugees.
3.1 Right to Life
3.1.1 Legal Basis of the Right to Life in International Human Rights Law:
Article 3 of the UDHR139 and article 6(1)140 of the ICCPR clearly declare that everyone
has the right to life, liberty and security which are inherent and shall be protected by
law. Article 6 of the Convention on the Rights of the Child (CRC) also provides
136
James Peter Louviere and Donald A. Brown. (2008) ‘The Significance of Understanding Inadequate
National Climate Change Programs as Human Rights Violation.’ Climate Ethics. Available at:
http://climateethics.org/?p=39
137 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate
Change’. Hastings International and Comparative Law Review vol. 30, page 245
138 James Peter Louviere and Donald A. Brown. (2008) ‘The Significance of Understanding Inadequate
National Climate Change Programs as Human Rights Violation.’ Climate Ethics. Available at:
http://climateethics.org/?p=39
139 Article 3 of the UDHR provides ‘everyone has the right to life, liberty and security of person’
140 Article 6(1) of the ICCPR provides ‘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’
specific protection about the right to life of children.141 The UN Human Rights
Committee in its General Comment142 on the right to life warned against interpreting
the right to life in a narrow or restrictive manner. It also insists that protection of this
right requires the State to take positive measures 143
When a nation fails to take reasonable measures to prevent environmental damage,
and the result of such non-action is climate change, those harmed may seek redress
for violations of their right to life.144
3.1.2 Current and Projected Impacts of Climate Change on the Right to
Life: Directly or indirectly Climate change is already affecting the enjoyment of the
right to life of the people of the affected communities. Their standard and quality of
life are degrading because of severe storms, catastrophic weather-induced flooding ,
rising sea level, expanding deserts and heat waves caused by climate change. Those
who live in an area affected by climate change will suffer from bad health, lack of
nutrition, lack of access to clean drinking water. They are also in a higher exposure to
disease. Their quality of life would be affected form every aspect because of climate
change. 145
The World Health Organisation has estimated that since the 1970s deaths caused by
the impacts of climate change amount to 150,000 every year.146 Increasing intensity
141
Article 6 (1) (2) of states that state parties recognise that every child has the inherent right to life
and that state parties shall ensure to the maximum extent possible the survival and development of the
child.’
142 UN Human Rights Committee, General comment No. 6 - the Right to Life (1982). Paras. 1 and 5.
Available at the Office of the United Nations High Commissioner for Human Rights. Website:
http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3
143 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’.
Australian International Law Journal vol.14, page161-180
144 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate
Change’. Hastings International and Comparative Law Review vol. 30, page 251.
145 Human Rights and Climate Change Study (2008) A Submission to the OHCHR by Environmental
Law Committee, Human Rights Committee of New South Wales Young Lawyers. Page-11. Available
at:
http://www2.ohchr.org/english/issues/climatechange/docs/submissions/NSW_Young_Lawyers_HR_Cli
mateChange.pdf
146 Nicholas Stern Report on Climate Change. (2006) [Known as Stern Review]
Published by the
United Kingdom.
Available at: http://www.hm-treasury.gov.uk/stern_review_report.htm
and frequency of heat waves, floods, storms, and droughts caused by climate change
are projected to lead to more deaths. 147
Heat waves caused by climate change are likely to increase deaths among elderly or
chronically sick people, young children, and the socially isolated people. Europe’s
2003 heat wave – induced by climate change – resulted in 27,000 extra deaths. 148
3.2 Right to Food
3.2.1 Legal Basis of the Right to Food in International Human Rights Law:
Article 11(1) & (2) of the ICESCR149 clearly recognise the right to food of all human
beings. It states that everyone has a right to adequate food and to be free from hunger.
The UN Special Report on the Right to Food has recognised the right to food as an
inherent human rights which states150 that the right to adequate food is a human
147
Human Rights and the Climate Crisis: Acting Today to Prevent Tragedy Tomorrow. (2008) A
Briefing Paper by Greenpeace. Page --4 Available at:
http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Greenpeace_HR_ClimateCrisis.
pdf
148 Purple Romero. (2008) ‘Wealthy nations’ failure to mitigate climate change violates
rights in developing countries.’ ABS -CBNNEWS. Available at:
http://www.abs-cbnnews.com/special-report/09/15/08/wealthy-nations%E2%80%99-failure-mitigateclimate-change-violates-rights-developing149
Article 11(1) of the ICESCR states that “the States Parties to the present Covenant recognize the
right of everyone to an adequate standard of living for himself and his family, including adequate food,
clothing and housing, and to the continuous improvement of living conditions. The States Parties will
take appropriate steps to ensure the realization of this right, recognizing to this effect the essential
importance of international co-operation based on free consent.” Article 11(2) of the ICESCR states
that “The States Parties to the present Covenant, recognizing the fundamental right of everyone to be
free from hunger, shall take, individually and through international co-operation, the measures,
including specific programmes, which are needed: (a) To improve methods of production,
conservation and distribution of food by making full use of technical and scientific knowledge, by
disseminating knowledge of the principles of nutrition and by developing or reforming agrarian
systems in such a way as to achieve the most efficient development and utilization of natural resources;
(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure
an equitable distribution of world food supplies in relation to need.”
150
The UN Special Report on the Right to Food states that the right to adequate food is a human right,
inherent in all people to have regular, permanent and unrestricted access, either directly or by means
of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to
the cultural traditions of people to which the consumer belongs, and which ensures a physical and
mental, individual and collective fulfilling and dignified life free of fear.
right, inherent in all people.151 The right to food includes four components; Food
availability; Access to food; Stability of food supply; and Utilisation of food. 152
3.2.2 Current and Projected Impacts of Climate Change on the Right to
Food: The impacts of climate change on the right to food are clearly evident. The
Food and Agriculture Organisation of the United Nations (FAO) at the recent HighLevel Conference on Food Security : The Challenges of Climate Change and
Bioenergy (the High-Level Conference) identifies that climate change will affect the
right to food in the following way:
Availability of food: Availability of food will be reduced by a drop in food
production caused by extreme events, changes in the suitability or availability of
arable land and water, and the unavailability or lack of access to crops, crop varieties
and animal breeds that can be productive in conditions have lead to changes in pests
and diseases; 153
Access to food: Access to food will be worsened by climate change events that lead
to damages in infrastructure and losses of livelihood assets as well as loss of income
and employment opportunities; 154
Stability of food supply: Food supply could be influenced by food price
fluctuations and a higher dependency on imports and food aid; 155
Utilisation of food: Utitisation of food can be affected indirectly by food safety
hazards associated with pests and animal diseases as well as the increased presence of
human diseases such as malaria and diarrhea. 156
151
Jean Ziegler, The Right to Food (Report by the Special Rapporteur on the right to food to the
Commission on Human Rights 57th session, 2001) UN Doc E/CN.4/2001/53 at p. 2. Available at:
http://daccessdds.un.org/doc/UNDOC/GEN/G01/110/35/PDF/G0111035.pdf?OpenElement
152 Conference paper of ‘the High Level Conference on Food Security: The Challenges of Climate
Change and Bioenergy’. Rome 3-5 June 2008. The Food and Agriculture Organisation of the United
Nations (FAO). Page-2 & 3 Available at:
ftp://ftp.fao.org/docrep/fao/meeting/013/ai782e.pdf
153 Ibid-page 2.
154 Ibid-page 2.
155 Conference paper of ‘the High Level Conference on Food Security: The Challenges of Climate
Change and Bioenergy’. Rome 3-5 June 2008. The Food and Agriculture Organisation of the United
Nations (FAO). Page-3 Available at:
ftp://ftp.fao.org/docrep/fao/meeting/013/ai782e.pdf
‘Around 800 million people are currently at risk of hunger. Projected climate change
is expected to put close to 50 million more people at risk of hunger by 2020, and an
additional 132 million people by 2050.157 According to the Stern Review, if global
temperatures are permitted to increase by 3°C, 250-550 million additional people may
be at risk of hunger – over half in Africa and Western Asia.158
‘In Africa, shrinking arable land, shorter growing seasons, and lower crop yields will
exacerbate malnutrition. In some countries, yields from rain-fed agriculture could fall
by 50 per cent as soon as 2020. In parts of Asia, food security will be threatened due
to water shortages and rising temperatures. Crop yields could fall by up to 30 per cent
in Central and South Asia by 2050.’ 159
3.3 Right to Water
3.3.1 Legal Basis of the Right to Water in International Human Rights Law:
Though the right to water has not been expressly mentioned in the original UN
human rights documents, the Economic and Social Council (ESC) in General
Comment 15 on the Right to Water, asserts that the right to water is inherent in
many other explicitly mentioned rights such as such as the right to health (art 12,
paragraph 1 of ICESCR160), adequate housing and adequate food (art 11, paragraph 1 of
ICESCR 161), as well as the right to life as set out in the UDHR.162 ESC insists that “the
right to water clearly falls within the category of guarantees essential for securing an
156
Ibid-page 3.
Human Rights and the Climate Crisis: Acting Today to Prevent Tragedy Tomorrow. (2008) A
Briefing Paper by Greenpeace. Page --4 Available at:
http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Greenpeace_HR_ClimateCrisis.
pdf
158 Ibid-page 5
159 Purple Romero. (2008) ‘Wealthy nations’ failure to miti gate climate change violates
rights in developing countries.’ ABS -CBNNEWS. Available at:
http://www.abs-cbnnews.com/special-report/09/15/08/wealthy-nations%E2%80%99-failure-mitigateclimate-change-violates-rights-developing160 Article 12(1) of ICESCR states that “the States Parties to the present Covenant recognize the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health.”
161Article 11(1) of ICESCR states that “the States Parties to the present Covenant recognize the right of
everyone to an adequate standard of living for himself and his family, including adequate food,
clothing and housing, and to the continuous improvement of living conditions. The States Parties will
take appropriate steps to ensure the realization of this right, recognizing to this effect the essential
importance of international co-operation based on free consent.”
162 Article 25 of the Universal Declaration of Human Rights of 1948 guarantees all people the “right to a
standard of living adequate for the health and well-being of himself and of his family.”
157
adequate standard of living, particularly since it is one of the most fundamental
conditions for survival.”163
The right to water is also explicitly mentioned in two other conventions; the
Convention on the Rights of the Child (CRC) at article 24 164 and the Convention on
the Elimination of All Forms of Discrimination against Women (CEDAW)165 at article
14. 166
WHO, the High Commissioner for Human Rights, Water Aid, COHRE and the
Committee on Economic and Social Rights (Right to Water Coalition) also recognise
that access to sufficient safe water is a human right and fresh water is a legal
entitlement.167
3.3.2 Current and Projected Impacts of Climate Change on the Right to
Water:
The major impact of climate change on the right to water is the lack of access of fresh
water which may even trigger the violation of other human rights and degrade the
quality of life.
Changes in water quantity and quality due to climate change are expected to increase
vulnerability of poor rural farmers, especially in the arid and semi-arid tropics and
Asian and African megadeltas.168
163
Economic and Social Council, General Comment 15 (2002), The right to water (arts 11 and 12 of the
International Covenant on Economic, Social and Cultural Rights). Paragraph 3. Available at:
http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94?Opendocument
164 Article 24(2) (c) of the CRC insists that clean drinking water is the right of the child and state parties
will ensure this for children.
165 On 18 December 1979, the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW) was adopted by the United Nations General Assembly. It entered into force as an
international treaty on 3 September 1981 after the twentieth country had ratified it.
166 Article 14(2)(h) of (CEDAW) asserts that woman has a right to water and states parties will ensure
that woman will enjoy adequate water supply.
167 Human Rights and Climate Change Study (2008) A Submission to the OHCHR by Environmental
Law Committee, Human Rights Committee of New South Wales Young Lawyers. Page-21. Available
at:
http://www2.ohchr.org/english/issues/climatechange/docs/submissions/NSW_Young_Lawyers_HR_Cli
mateChange.pdf
168 Bates, B.C., Z.W. Kundzewicz, S. Wu and J.P. Palutikof, Eds. (2008) Climate Change and Water.
Technical Paper of the Intergovernmental Panel on Climate Change, the Intergovernmental Panel on
Climate Change (IPCC) Secretariat, Geneva, Page-3.
Available at: http://www.ipcc.ch/pdf/technical-papers/climate-change-water-en.pdf
‘Higher water temperatures is projected to affect water quality and exacerbate many
forms of water pollution – from sediments, nutrients, dissolved organic carbon,
pathogens, pesticides and salt, as well as thermal pollution, with possible negative
impacts on ecosystems, human health, and water system reliability and operating
costs.’ 169
In addition, ‘sea-level rise is projected to extend areas of salinisation of groundwater
and estuaries, resulting in a decrease of freshwater availability for humans and
ecosystems in coastal areas.’ 170
‘Adverse effects of climate change on freshwater systems aggravate the impacts of
other stresses, such as population growth, changing economic activity, land-use
change and urbanization.’ 171
3.4 Right to Health
3.4.1 Legal Basis of the Right to Health in International Human Rights
Law: Article 25 of the UDHR and article 12 (1) of the ICESCR clearly recognise the
right to health stating that“everyone has the right to a standard of living adequate for
the health and well-being of himself and his family. The Convention on the Rights of
the Child (CRC)172 and the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) 173 contain similar provisions for the right
to health. 174
169
Ibid-page 3.
Ibid-page 3
171 Ibid-page 3
172 Article 24 of CRC states that parties must ensure that every child enjoys the “highest attainable
standard of health.”
173 Article 12 of the CEDAW provides for equality for women in relation to issues concerning health
and health care provision.
174 Human Rights and Climate Change Study (2008) A Submission to the OHCHR by Environmental
Law Committee, Human Rights Committee of New South Wales Young Lawyers. Page-17. Available
at:
http://www2.ohchr.org/english/issues/climatechange/docs/submissions/NSW_Young_Lawyers_HR_Cli
mateChange.pdf
170
3.4.2 Current and Projected Impacts of Climate Change on the Right to
Health:
Climate change poses significant risks to the right to health. A 2003 joint study
conducted by the World Health Organisation and the London School of Hygiene and
Tropical Medicine state that global warming may be responsible for more than
160,000 deaths a year from malaria and malnutrition; a number that could double by
2020.175
Increasing floods and droughts will lead to more cases of diarrhoea and cholera. Over
150,000 people are currently estimated to die each year from diarrhea and cholera and
malnutrition caused by climate change. Child malnutrition will increase, damaging
growth and development prospects for millions of children. 176
Climate change affects the intensity of a wide range of diseases – vector-borne, waterborne and respiratory. Changing temperatures will cause some infectious diseases to
spread into new areas. It is estimated that 220–400 million more people will be at risk
of malaria. The risk of dengue fever is estimated to reach 3.5 billion people by 2085
due to climate change. 177 In the Pacific, changes in temperature and rainfall will make
it harder to control dengue fever.
3.5 Right to Development
3.5.1 Legal Basis of the Right to Development in International Human
Rights Law
The concept of the Right to Development is a new addition to the international
human rights arena.178
175
Background Paper on Climate Change and Human Rights (2008) Published by Human Rights and
Equal Opportunity Commission (HREOC) Australia. Page- 6, Available at:
http://www.humanrights.gov.au/pdf/about/media/papers/hrandclimate_change.pdf
176 Purple Romero. (2008) ‘Wealthy nations’ failure to mitigate climate change violates
rights in developing countries.’ ABS -CBNNEWS. Available at:
http://www.abs-cbnnews.com/special-report/09/15/08/wealthy-nations%E2%80%99-failure-mitigateclimate-change-violates-rights-developing177 Ibid.
178 L. A. Obiora. (1996) ‘Beyond the Rhetoric of a Right to Development.’ Law and Policy vol. 18, page369
“The right to development is the right to a process of development, consisting of a
progressive and phased realization of all the recognized human rights, such as civil
and political rights, and economic, social and cultural rights (and other rights
admitted in international law) as well as a process of economic growth consistent
with human rights standards.” 179
Article 1 of the Declaration on the Right to Development 180 states that ‘the right to
development is an inalienable human right by virtue of which every human person
and all peoples are entitled to participate in, contribute to, and enjoy economic,
social, cultural and political development, in which all human rights and fundamental
freedoms can be fully realized.’
The Declaration recognises that the human person is the central subject of
development181 and each person is responsible in ensuring the full realisation of the
right to development.182
3.5.2 Current and Projected Impacts of Climate Change on the Right to
Development
This paper has already analysed that climate change is threatening all the basic
human rights such as right to life, to food, to water, to health, to property etc. Full
enjoyment of all these rights are pre-conditions for human development as it was also
recognised by UNDP, Human Development Report 2007/2008, Fighting climate
change: Human solidarity in a divided world.
179
Arjun Sengupta. (2004) ‘The Human Right to Development.’ Oxford Development Studies vol. 32,
No. 2, page-182.
180 The Declaration on the Right to Development (the Declaration) was adopted by the United Nations
General Assembly in 1986. Further, the World Conference on Human Rights, held in Vienna in 1993,
reaffirmed by consensus the right to development as a universal and inalienable right and an integral
part of fundamental human rights.
181 Article 2 (1) of the right to development states that The human person is the central subject of
development and should be the active participant and beneficiary of the right to development
182 Article 2 (2) of the right to development states that All human beings have a responsibility for
development, individually and collectively, taking into account the need for full respect for their
human rights and fundamental freedoms as well as their duties to the community, which alone can
ensure the free and complete fulfilment of the human being, and they should therefore promote and
protect an appropriate political, social and economic order for development.
Since the right to development is an inalienable human right which requires
acknowledgement and enjoyment of all human rights, any one of human rights
violation will impair the right to development.
Climate change can affect the right to development by threatening food security
water security; causing a decrease in the earth’s landmass through rising sea levels;
causing drastic weather patterns such as cyclones, floods and drought; altering the
biological balance of our planet, resulting in the destruction of ecosystems and the
extinction of many species; and impacting upon human health through the outbreak
of disease and epidemics. 183
Because of the above effects of climate change on the right to development, the
attainment of the right to development by developing countries will be severely
impaired and the advances made in human development in both developing and
developed countries may be reversed. 184
3.6 Right to Property
3.6.1 Legal Basis of the Right to Property in International Human Rights
Law
Article 17 of the UDHR clearly affirms that ‘everyone has the right to own property
alone as well as in association with others and no one shall be arbitrarily deprived of
his property.’ Some other regional human rights organs such as Protocol No. 1 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms( known as the European Convention on Human Rights) 185 and the
American Convention on Human Rights have also recognised the right to property.186
183
Human Rights and Climate Change Study (2008) A Submission to the OHCHR by Environmental
Law Committee, Human Rights Committee of New South Wales Young Lawyers. Page-12. Available
at:
http://www2.ohchr.org/english/issues/climatechange/docs/submissions/NSW_Young_Lawyers_HR_Cli
mateChange.pdf
184. Ibid-page12.
185 Article 1 of Protocol No. 1 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms ( the European Convention on Human Rights) states that “every natural or
legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the conditions provided for by law and by the
general principles of international law. The preceding provisions shall not, however, in any way impair
3.6.2 Current and Projected Impacts of Climate Change on the Right to
Property
It is already proved that the major impacts of climate change are rising sea level,
severe storms and flooding. These impacts of climate change will cause the
deprivation of property in affected communities, especially in island states and costal
area, without any compensation. This deprivation of property also leads into further
problems involving displaced persons and refugees. The effects of climate change can
also impair the use and enjoyment of property 187
3.7 Rights of Indigenous Peoples
3.7.1 Legal Basis of the Right of indigenous people in International Human
Rights Law
Indigenous peoples often live in some of the world's most vulnerable ecosystems and
suffer from some of the worst effects of environmental degradation.188 That is why
indigenous peoples are internationally recognised as holding unique human rights in
relation to their way of life and developing their own political, religious, cultural and
educational institutions.189
the right of a State to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other contributions or
penalties.”
This
protocol
is
available
at
Council
of
Europe.
Website:
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/EnglishAnglais.pdf
186 Article 21of the American Convention on Human Rights states that “everyone has the right to the
use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of
society. No one shall be deprived of his property except upon payment of just compensation, for
reasons of public utility or social interest, and in the cases and according to the forms established by
law.”
Available
at
Organization
of
American
States.
Website:
http://www.oas.org/juridico/English/treaties/b-32.html
187 John H. Knox. (2009) ‘Linking Human Rights and Climate Change at the United Nations.’ Harvard
Environmental Law Review vol.33, page 477-498.
188 Prudence Taylor.(1998) ‘From Environmental to Ecological Human Rights: A New Dynamic in
International Law.’ Georgetown International Environmental Law Review vol. page 309, 324
189 Jessie Hohmann. (2009) ‘Igloo as Icon: A Human Rights Approach to Climate Change for the Inuit?’
Transnational law & Contemporary Problems vol. 18, no. 2, page 296-316
These unique rights have been recognised internationally. Indigenous rights were
first recognised by article 27 of the ICCPR which protects the rights of minorities,
including indigenous minorities, to enjoy their own culture, religion and languages.
190
Article 1 of International Covenant on Civil and Political Rights (ICCPR), and article
1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
also guarantees indigenous peoples the right to self-determination and the right to
control their own natural wealth and resources. 191
In addition Article 5 of the Convention (No. 169) concerning Indigenous and Tribal
Peoples in Independent Countries, article 8(j) of the Convention on Biological
Diversity,192 Principle 22 of The Rio Declaration on Environment and Development
193 and Chapter 26 of Agenda 21 194 and the United Nations Declaration on the Rights
of Indigenous Peoples 195 clearly recognise the rights of indigenous people with
respect to their environment.
Since indigenous communities have been among the first to feel the effects of climate
change, it should be both feasible and appropriate that the above international
framework of human rights can be expanded to include indigenous rights with regard
to climate change. 196
190
Bridget Lewis. (2008) Climate change and human rights : perspectives of environmental and
indigenous rights. Journal of The Australasian Law Teachers Association. vol.1, no.1 & 2. Page-158.
191 Ibid-page 158
192 The Convention on Biological Diversity was opened for signature 5 June 1992 and entered into force
29 December 1993 which stresses that indigenous peoples are entitled to contribute to environmental
management and sustainable development. Available at:
http://www.cbd.int/convention/convention.shtml
193 Principle 22 of the Rio Declaration requires that states recognise and support indigenous peoples’
identity, culture and interests, and enable their effective participation in the achievement of
sustainable development. [ Source: Ibid- Bridget Lewis.Page-158 ]
194 Chapter 26 of Agenda 21 states that “indigenous people and their communities have an historical
relationship with their lands and are generally descendants of the original inhabitants of such lands
and shall enjoy the full measure of human rights and fundamental freedoms without hindrance or
discrimination.” Available at: United Nations Department of Economics and Social Affairs. Website:
http://www.un.org/esa/dsd/agenda21/res_agenda21_26.shtml
195 United Nations Declaration on Rights of Indigenous Peoples was adopted in 13 September 2007. The
United Nations Declaration on the Rights of Indigenous Peoples recognises that respect for indigenous
cultures and knowledge contributes to sustainable development and proper management of the
environment. It also guarantees to indigenous communities the right to manage and develop their own
territories, and the right to conservation of their environment. [Source: Ibid-Bridget Lewis. Page 158 ]
196 Bridget Lewis. (2008) Climate change and human rights : perspectives of environmental and
indigenous rights. Journal of The Australasian Law Teachers Association vol.1, no.1 & 2. page-158.
3.7.2 Current and Projected Impacts of Climate Change on the Rights of
Indigenous Peoples
The rights of indigenous populations are often vulnerable to climatic changes because
of indigenous peoples’ close relationship with the environment, a reliance on the land
and sea for subsistence purposes. 197
Due to lower socioeconomic conditions and less access to quality health care
services198 indigenous peoples can have a restricted capacity to adapt to rapid changes
in the environment.199 For this reason, indigenous communities are often more
vulnerable to the effects of environmental degradation, making them more at risk of
human rights violations caused by the effect of climate change.200
Indigenous people completely depend on nature for everything. Their right to life, to
food, to water, to health, to property, all would be severely affected by the climate
change. Even some scholars are more worried about their existence in a particular
native land.
Since these communities have long-established customs that are tied directly to their
homelands, if they are forced out of their land as a result of inundation caused by
climate change, they will not only lose their place in the world but also a direct link
to their culture and identity.201
197
Human Rights and Climate Change Study (2008) A Submission to the OHCHR by Environmental
Law Committee, Human Rights Committee of New South Wales Young Lawyers. Page-15.
198 Christopher Furgal and Jacinthe Seguin. (2006) ‘Climate Change, Health, and Vulnerability in
Canadian Northern Aboriginal Communities’ Environmental Health Perspectives vol.114,page 1964,
1968.
199 Wolfgang Sachs. (2004) ‘Environment and Human Rights’ Development vol. 47(1), page 42, 43.
200 Bridget Lewis. (2008) Climate change and human rights : perspectives of environmental and
indigenous rights. Journal of The Australasian Law Teachers Association. vol.1, no.1 & 2. page 159.
201 Human Rights and Climate Change Study (2008) A Submission to the OHCHR by Environmental
Law Committee, Human Rights Committee of New South Wales Young Lawyers. Page-15. Available
at:
http://www2.ohchr.org/english/issues/climatechange/docs/submissions/NSW_Young_Lawyers_HR_Cli
mateChange.pdf
3.8 Climate Change Refugees
Another major human rights issue of climate change is climate change refugees. The
large influx of refugees created by the problems of climate change is so crucial human
rights issue that it needs to be addressed. 202 Though the present definition of refugees
203
does not include climate change refugees, environmentalists and international
human rights lawyers have begun to recognise that climate change is creating climate
change refugees.204 The IPCC warns that rising sea levels will not only inundate lowlying territories, but will foul freshwater supplies for millions of people and spur mass
migrations. 205 Migration in response to environmental degradation is fast becoming
the most pervasive form of forced migration to occur in the 21st century.206
Oxford academic Norman Myers has predicted that by 2050 up to 150 million people
may be forced to migrate because of the impacts of global warming. 207 The
predictions of the Stern Review on the Economics of Climate Change echo this
concern, estimating that the scale of migration will reach 200 million by 2050. 208
Although the term 'climate change refugees' has often been used to describe the
situation of populations displaced due to the impacts of climate change, this does not
accurately reflect the status of these populations in international law and there has
202
Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate
Change’. Hastings International and Comparative Law Review vol. 30, page 257
203 Article 1(A)(2) of The 1951 United Nations Convention Relating to the Status of Refugees (Refugee
Convention) defines a refugee as any person who, "owing to a well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular social group or political opinion, is
outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself
of the protection of that country. Available at The Office of the United Nations High Commissioner for
Refugees (UNHCR) Website: http://www.unhcr.org/3b66c2aa10.html
204 A climate refugee is one who leaves his or her home and seeks refuge elsewhere, and does so for
reasons relating the environment. In the face of environmental problems such as drought,
desertification, and floods, affected people feel that they have no alternative but to leave their homes in
order to survive. [Source: Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights
Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page
256 ]
205 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate
Change’. Hastings International and Comparative Law Review vol. 30, page 256.
206
Jessica B. Cooper.(1988) ‘Environmental Refugees: Meeting the Requirements of the Refugee
Definition.’ New York University Environmental Law Journal vol.6, page 480, 484-485.
207 Norman Myers. (1993) 'Environmental Refugees in a Globally Warmed World' BioScience vol.
43(11), page 752.
208 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’.
Australian International Law Journal vol.14, page 161-180.
been no coordinated response from the international community to address their
situation 209
Since there are no universal human right instruments recognizing and protecting
climate change refugees, they are becoming more vulnerable to degrading behavior.
Climate change refugees are becoming victims of human rights violation in two ways;
first, they are loosing their country and right to self determination. Second as a
climate change refugees they are more likely to be the victim of degrading treatment
in country where they get shelter.
From the above discussion of this chapter it is now clear that the effects of climate
change is threatening basic human rights such as the right to life, to food, to water, to
health and to shelter.
209
Ibid-page161-180
Chapter-4: Direct and Indirect Endorsement of Human Rights-Based
Approach to Climate Change in International Frameworks and Regional
Human Rights Courts.
In this chapter this paper will analyse the role of international and regional bodies in
human rights-based approach to climate change.
4.1 The United Nations Framework Convention on Climate Change
(UNFCCC): The United Nations Framework Convention on Climate Change
(UNFCCC) is at the core of international efforts to address climate change. It was
adopted at the United Nations Conference on Environment and Development
(UNCED) (which is also known as the Earth Summit) held in Rio de Janeiro from 3 to
14 June 1992. The treaty is aimed at stabilizing greenhouse gas concentrations in the
atmosphere at a level that would prevent dangerous anthropogenic interference with
the climate system. At the UN Summit in Rio de Janeiro in 1992, 154 countries signed
the UNFCCC. Today, 192 countries have ratified the convention. It entered into force
on March 21, 1994.210
Main goals of the Convention211 are to stabilise the amount of greenhouse gases in the
atmosphere in such a way as to give ecosystems the opportunity to adapt naturally.
Food safety must not be compromised, and the potential to form sustainable social
and economic development must not be endangered.212
The Conference of the Parties (COP) is the supreme body of the Convention which is
in charge of keeping the international efforts to tackle climate change on target. A
210
The United Nations Framework Convention on Climate Change (UNFCCC) at Copenhagen Climate
Council. Available at:
http://www.copenhagenclimatecouncil.com/get-informed/climate-negotiations-updates/what-is-theunfccc.html
211 Governments under the convention bring together and share information on greenhouse gas
emissions, national policies and best practices. They cooperate in preparing national strategies for
reducing greenhouse gas emissions and adapting to the expected effects of climate change, including
bestowing financial and technological support to developing countries. [ Source:The United Nations
Framework Convention on Climate Change (UNFCCC) at Copenhagen Climate council.]
212 The United Nations Framework Convention on Climate Change (UNFCCC) at Copenhagen Climate
Council. Available at:
http://www.copenhagenclimatecouncil.com/get-informed/climate-negotiations-updates/what-is-theunfccc.html
central task of the COP is to examine the national communications and emission
accounts submitted by parties. 213
Though the UNFCCC does not expressly mention about the climate change impacts
on human rights, some environmental lawyers and human rights scholars argue that
UNFCCC impliedly mention about the human rights issues of cliamte chnage.
They refer to preamble,214 article 2,215 article 3(2)216 (3) (4),217 article 4(1)(e)(f)218 (g),
article 4(2)(a) article 4(4)219 article 5(a)(c), article 7(c) and article 12(7) of the
UNFCCC and argue that all these articles must be interpreted in accordance with the
principles in articles 31 (1) of the Vienna Convention of the Law of Treaties 1969 220
which says that “a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the
light of its object and purpose.”
They also argue that the main purpose of the UNFCCC is to tackle the impacts of
climate change. Since the climate change is now affecting human rights, the
provisions of UNFCCC also have some persuasive force from human rights
perspective.
They assert that “as we read through this extensive list of obligations subscribed to by
signatories, by certain states (primarily polluter states) to mitigate impacts, and ensure
that vulnerable states and impacted communities have the financial means, technical
capacity and necessary adaptation projects to address the impacts the polluters have
213
Ibid.
Preamble of UNFCCC states that “States have … the responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the environment of other States or of areas beyond
the limits of national jurisdiction”
215 Article 2 of UNFCC insists that
stabilization of greenhouse gas concentrations … should be
achieved … to ensure that food production is not threatened and to enable economic development to
proceed in sustainable manner
216 Article 3(2) of UNFCCC asserts that “the Parties shall be guided by, … the specific needs and special
circumstances of developing country Parties, especially those that are particularly vulnerable to the
adverse effects of climate change, and of those Parties, especially developing country Parties”
217 Article 3 (4) states that “the Parties have a right to, and should, promote sustainable development.”
218 Article 4, 1(f) of UNFCCC insists that [The Parties shall:] “take climate change considerations into
account … and employ appropriate methods, for example impact assessments, … with a view to
minimize adverse effects on the economy, on public health and on the quality of the environment, of
projects or measures undertaken by them to mitigate or adapt to climate change”;
219 Article 4 (4) of UNFCCC asserts that “the developed country Parties and other developed Parties …
shall also assist the developing country Parties that are particularly vulnerable to the adverse effects of
climate change in meeting costs of adaptation to those adverse effects.”
220 Roda Verheyen. (2007) ‘The Climate Change Regime After Montreal.’ The Yearbook of European
Environmental Law vol. 7, page 237-38 (2007).
214
caused, and as we think through this list with a human rights framework in mind, we
can clearly see that the UNFCCC is recognizing the effects of climate change on
vulnerable communities from human rights perspective. It is also indicating to adopt
human rights-based approach to climate change.”221
4.2 The Kyoto Protocol: The Kyoto Protocol is an international agreement linked
to the United Nations Framework Convention on Climate Change. The Kyoto
Protocol was adopted in Kyoto, Japan, on 11 December 1997 and entered into force
on 16 February 2005. 184 Parties of the Convention have ratified its Protocol to date.
The detailed rules for the implementation of the Protocol were adopted at COP 7 in
Marrakesh in 2001, and are called the “Marrakesh Accords.”222
The major feature of the Kyoto Protocol is that it sets binding targets for 37
industrialized countries and the European community for reducing greenhouse gas
(GHG) emissions .These amount to an average of five per cent against 1990 levels over
the five-year period 2008-2012. 223
Significantly, the Kyoto Protocol does not directly or indirectly mention about the
human rights issues of climate change. It does not truly involve grassroots
communities and peoples who are worst-affected. It has grossly neglected the severe
damage to their livelihoods, well-being and welfare.224
However, some scholars argue that since Kyoto Protocol is directly linked with the
United Nations Framework Convention on Climate Change (UNFCCC), it has also
implied purposes to reduce the impact of climate change from human rights
perspective.
221
Jorge Daniel Taillant.( 2007) ‘Human Rights, Development and Climate Change Negotiations.’
Centre for Human Rights and Environment. ( CEDHA ) Page-24. Available at:
http://www.cedha.org.ar/en/initiatives/climate_change/docs/human_rights.pdf
222 The Kyoto Protocol to the United Nations Framework Convention on Climate Change. Available at:
http://unfccc.int/kyoto_protocol/items/2830.php
223 Ibid
224 Statement on the Kyoto Protocol and Cliamte Change. (2008) Asia-Pacific Research Network
(APRN). Available at:
http://www.aprnet.org/index.php?option=com_content&view=article&id=68:statement-on-the-kyotoprotocol-and-climate-change&catid=50:issues-a-concerns
4.3 The International Court of Justice
The International Court of Justice (ICJ) has not an extensive role in promoting the
rights related to environment and climate change. Since ICJ was established in 1945,
there have been only four environmental cases in the ICJ's jurisprudence to date.
In Corfu Channel case 225 which was concerned with a dispute between United
Kingdom and Albania.226 In this case, ICJ first considered environmental harm and
recognized that environmental harm is an offence. Even it is an offence against
sovereignty.
In Nuclear Testing Case 227 which was concerned with a dispute between New
Zealand and France over some atomic tests carried out by France at the Mururoa and
Fangataufa Atolls in the Pacific 2,500 miles from New Zealand. New Zealand, in
short, claims that atomic tests were detrimental for environment.
Although the ICJ dismissed New Zealand's claims without ruling on this issue for
technical point, Justice Weeramantry, in his dissenting opinion asserted that welfare
of environment is securing increasing support as part of the international law of the
environment.
In Gabcikovo-Nagymaros Project case 228 which was concerned with a dispute
between Hungary and Slovakia over building two dams on the Danube River.
ICJ in this case indicated that where environmental damage is concerned,
international communities have obligations to co-operate to prevent that damage.
Most importantly the ICJ in its Advisory Opinion on the Legality of the Threat or Use
of Nuclear Weapons recognized a principle which is more relevant to a climate
change issue. ICJ observed that it is a general obligation of states to ensure that
activities within their jurisdiction and control respect the environment of other states
225
Corfu Channel case (United Kingdom v Albania). International Court of Justice. Judgment
Delivered on 9th April 1949.
Available at: http://www.icj-cij.org/docket/files/1/1645.pdf
226 In 1946 two British warships struck mines in Albanian water in the Corfu Channel and many British
sailors were killed.
227 Nuclear Tests case (New Zealand
v. France ), International Court of Justice. Available at:
http://www.icj-cij.org/docket/files/97/7187.pdf
228 Gabcikovo-Nagymaros Project case (Hungary v. Slovakia.), International Court of Justice. Report
No- 7. Judgment Delivered on 25th September 1997.
Available at: http://www.icj-cij.org/docket/files/92/7375.pdf
or of areas beyond national control.229 This principle of international environmental
law was also expressed in the Stockholm Declaration230 and the Rio Declaration.231
Scholars argue that ICJ’s Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons will clearly apply to climate change. As we know that climate
change is mostly the consequences of global human activities. Climate change has no
boundaries. Every state is liable for climate change and every state has responsibility
to minimize the effect of and climate change.
4.4 European Court of Human Rights
Though the European Court of human rights is regional, it is very influential in the
field of human rights all over the world, as it was the first human rights court. It has
produced a large amount of jurisprudence on human rights.232
Though the European Convention on the Protection of Human Rights and
Fundamental Freedoms ( known as the European Convention on Human Rights)
which is the main legal instrument of the European Court of human rights, does not
have any express provisions about the human rights on environment or climate
change, the European Court of human rights has interpreted article 2 (right to life)
and article 8 (right to private and family life ) in a way that these articles can be
applied to human rights violation caused by environmental degradation or climate
change. 233
229
Advisory Opinion of International Court of Justice on Legality of the Threat or Use of Nuclear
Weapons, 8th July 1996. Available at: http://www.icj-cij.org/docket/files/95/7495.pdf
230 Principle 21 of Declaration of the United Nations Conference on the Human Environment
(Stockholm Declaration) and principle 2 of Rio Declaration on Environment and Development, states
in same word that “States have……… responsibility to ensure that activities within their jurisdiction
or control do not cause damage to the environment of other States or of areas beyond the limits of their
national jurisdiction.”
231 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law vol 9, page 522.
232 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a
Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of
Environmental Law vol. 25, page 299.
233 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law, vol-9, page 529
Some Case Law Examples of This Attitude
Lopez Ostra v. Spain-(16798/90) ECHR [9 December 1994]. 234 This is the first and
landmark environmental case of the European Court of Human Rights. Applicant
Gregoria Lopez Ostra of Spain alleged that a leather processing waste treatment plant
near her home, which released fumes, smells, and contamination generated severe
environmental pollution. This environmental pollution caused health problems and a
nuisance violating her right to privacy and family security under article 8 of the
European Convention on Human Rights. The Court observed that “naturally, severe
environmental pollution may affect individuals’ well-being and prevent them from
enjoying their homes in such a way as to affect their private and family life
adversely.”235 The Courts finally found that the government failed to protect the
applicant's effective enjoyment of her right to respect for her home and her private
and family life and accordingly there has been a violation of article 8.236
Fadeyeva v. Russia,-(55723/00) ECHR. [11 November 2005].237 In this case, the
applicant Ms. Nadezhda Mikhaylovna Fadeyeva of Russia who lived about 450 meters
from Russia's largest iron smelter, alleged that the extent of environmental air
pollution at her place of residence was seriously detrimental to her health and
wellbeing and the government failed to protect her private life and home under
article 8 of ECHR. The Court observed that “over a significant period of time the
concentration of various toxic elements in the air pollutes the environment. The air
pollution becomes potentially harmful to the health and well-being of those exposed
to it. 238
The court ruled that over a significant period of time the concentration of various
toxic elements in the air near the applicant's house seriously caused environmental
damage which affected the applicant's effective enjoyment of her right to respect for
234
Lopez-Ostra v. Spain-(16798/90)
ECHR
[9 December 1994]. Available at:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Lopez%20
%7C%20Ostra%20%7C%20v.%20%7C%20Spain&sessionid=28908871&skin=hudoc-en
235 Lopez-Ostra v. Spain-(16798/90) ECHR [9 December 1994]. Para-51.
236 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law, vol-9, page 530
237 Fadeyeva v. Russia-(55723/00) ECHR. [11 November 2005]. Available at:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Fadeyeva%
20%7C%20v.%20%7C%20Russia&sessionid=28908871&skin=hudoc-en
238 Fadeyeva v. Russia-(55723/00) ECHR. [11 November 2005]. Para- 87.
her home and her private life and accordingly there has been a violation of article 8 of
ECHR.239
Taskin and Others v. Turkey-(46117/99)ECHR [30 March 2005].240 In this case
the applicants alleged that Turkish government had permitted to use sodium cyanide
for gold mining which was very detrimental for the surrounding environment for the
people who lived near by. The court observed that “permission for using sodium
cyanide for mining was detrimental for the applicants’ effective enjoyment of the
right to life and the right to a healthy environment and concluded that the permit did
not serve the public interest” 241 Finally the court ruled that the mining for gold using
sodium cyanide violated the right to respect for private and family life in breach of
article 8. 242
Guerra and Others v. Italy-( 116/1996/735/932 ) ECHR [19 February 1998]243 In
this case forty applicants lived in the town of Manfredonia, approximately one
kilometer from a "high risk" chemical factory that produced fertilizers and other
highly toxic chemicals. In the course of its production cycle the factory was releasing
highly toxic substances such as sulphur dioxide, nitric oxide, sodium, ammonia, metal
hydrides, benzoic acid and arsenic trioxide into the atmosphere. Because of the
factory’s geographical position, emissions from it into the atmosphere were often
channelled towards Manfredonia where one hundred and fifty people were admitted
to the hospital with acute arsenic poisoning.
Further applying the principle established in Lopez Ostra v. Spain-(16798/90) ECHR
[9 December 1994] the Court points out that Article 8 applies to severe environmental
pollution which may affect individuals’ well-being and prevent them from enjoying
their homes in such a way as to affect their private and family life adversely. Since
239
Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law, vol-9, Page 530
240 Taskin and Others v. Turkey-(46117/99)ECHR [30 March 2005] Available at:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Taskin%20
%7C%20v.%20%7C%20Turkey&sessionid=28908871&skin=hudoc-en
241 Taskin and Others v. Turkey-(46117/99)ECHR [30 March 2005] Para-117
242 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law, vol-9, page 530
243 Guerra and Others v. Italy-( 116/1996/735/932 ) ECHR [19 February 1998] Available at:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Guerra%20
%7C%20v.%20%7C%20Italy&sessionid=28908871&skin=hudoc-en
environmental pollution affected the victim’s well-being the court ruled that article 8
had been violated.244
Analyzing the above cases, it can be said that decisions and observations of the
European Court of Human Rights on environmental pollution are very significant in
regard to the impacts of climate change. One of the major impacts of climate change
is the environmental pollution which has dramatic and adverse impacts on life and
health both of which are central concerns of human rights regimes.
The above decisions and observations also indicate that human rights courts are ready
to consider human rights-based approach to climate change and there are potential
for bringing a claim in Europe concerning violation of human rights caused by
human-induced climate change.245
4.5 Inter-American Commission and Court of Human Rights
The Inter-American Commission and Court of Human Rights are very influential
bodies for human rights regime. The American Convention on Human Rights and the
Additional Protocol to the Convention (known as the Protocol of San Salvador) are
the main legal instruments of these bodies which clearly recognizes that everyone
shall have the right to live in a healthy environment.246 This principle is very
important for the protection of human rights violated by the impacts of climate
change.
This paper has already discussed in second chapter that in 2005 human rights-based
approach to climate change was first officially introduced in the Inuit case247 in the
Inter-American Commission on Human Rights. In this case Inuit people of Alaska
244
Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law, vol-9, page 531
245 Ibid- page 533.
246 Ibid-page 533
247 This Petition was submitted on December 7 2005 to the Inter-American Commission on Human
Rights Seeking Relief from Human Rights Violations Resulting from Global Warming Caused by Acts
and Omissions of the United States. Available at http://www.inuitcircumpolar.com/files/uploads/iccfiles/finalpetitionicc.pdf
and Canada alleged that the effect of climate change is threatening their basic human
rights. The petition asked the commission to declare the United States in violation of
rights affirmed in the 1948 American Declaration of the Rights and Duties of Man
because the United States is one of the largest emitters of GHGs.248
Although Inter-American Commission on Human Rights rejected the petition on
technical ground stating that …..the information provided does not enable them to
determine whether the alleged facts would tend to characterize a violation of rights
protected by the American Declaration249 the commission subsequently held a hearing
on March 1, 2007, on connection between human rights and climate change 250 in
which the commission recognized a link between climate change and human rights.
This recognition could have a powerful impact on worldwide efforts to address
climate change. 251
4.6 African Commission of Human and Peoples' Rights
The African Commission on Human and Peoples' Rights (ACHPR)252 is very powerful
quasi–judicial body for promoting and protecting human rights throughout the
African continent.
In the commission Social and Economic Rights Action Center v. Nigeria is a
landmark case on the right to healthy environment which is indicating the
commission’s inclination to recognize human rights-based approach to climate
change.
248
Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law, vol-9, page 535
249 Ibid-page 535
250 Press Release, EarthJustice, Inter-American Commission on Human Rights to Hold Hearing on
Global Warming, (Feb. 6, 2007) Available at: http://www.earthjustice.org/news/press/007/interamerican-commission-on-human-rights-Hearing-on-Global-Warming.html
251 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law, vol-9, page 536
252 The African Commission on Human and Peoples' Rights (ACHPR) is a quasi –judicial body for
promoting and protecting human rights throughout the African continent. It came into force on 21
October 1986. The Commission interprets the African Charter on Human and Peoples’ Rights and
considers individual complains of the violations of the Charter
In Social and Economic Rights Action Center v. Nigeria 253the Action Center alleged
“that the Nigerian government has exploited oil reserves in Ogoniland with no regard
for the health or environment of the local communities, disposing toxic wastes into
the environment and local waterways in violation of applicable international
environmental standards.”254 They also argued that the Nigerian government violated
the right to health and the right to clean environment as recognized under Articles 16
and 24 of the African Charter 255 by failing to fulfill the minimum duties required by
these rights. 256
The commission found that Nigeria has violated articles 2, 4, 14, 16, 18(1), 21 and 24
of the African Charter on Human and Peoples' Rights 257 and appealed to the
government of Nigeria "to ensure protection of the environment, health and
livelihood of the people of Ogoniland.258
The findings of the commission in Social and Economic Rights Action Center v.
Nigeria case is very significant in this sense that where a government violates human
rights by not fulfilling its duty to protect the environment, health, and livelihood of
people from the negative consequences of climate change, this case could be an
important precedent to show that judicial body is already recognizing the human
rights-based approach to environmental damage.259
253
Soc. & Econ. Rights Action Ctr. v. Nigeria, No. 155/96 (Afr. Comm'n H. & Peoples' R., May 27,
2002), Available at http://www.escr-net.org/usr_doc/serac.pdf
254 Soc. & Econ. Rights Action Ctr. v. Nigeria, No. 155/96 (Afr. Comm'n H. & Peoples' R., May 27,
2002), Available at http://www.escr-net.org/usr_doc/serac.pdf
255 Most importantly article 24 of the African Charter on Human and Peoples' Rights (African Charter)
says that all peoples shall have the right to a general satisfactory environment favorable to their
development. African Charter on Human and Peoples' Rights. (known as Banjul Charter) Adopted on
June 27, 1981 and entered into force Oct. 21, 1986. OAU Doc. CAB/LEG/67/3. Available at:
http://www.achpr.org/english/_info/charter_en.html
256 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law, vol-9, page 536.
257 The commission found that ‘despite its obligation to protect persons against interferences in the
enjoyment of their rights, the Government of Nigeria facilitated the destruction of the Ogoniland.
Contrary to its Charter obligations and despite such internationally established principles, the Nigerian
Government has given the green light to private actors, and the oil Companies in particular, to
devastatingly affect the well-being of the Ogonis. By any measure of standards, its practice falls short of
the minimum conduct expected of governments, and therefore, is in violation of Article 21 of the
African Charter. [Source: Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human
Rights Approaches to Climate Change’. Vermont Journal of Environmental Law vol. 9, page 537. ]
258 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law vol-9, page 537
259 Ibid-page 537
4.7 Propensity of National Courts to Recognise Human Rights BasedApproach to Climate Change
In addition to the above regional human rights court’s positive attitude to human
rights approach to climate change, rulings of some national courts also show that they
are ready to adopt human rights approach to environmental degradation and climate
change.
In the Philippines,
260
in Minors Oposa v. Department of Environment and
Natural Resources case261the Supreme Court, recognizing the right to healthy
environment, observed that right to a balanced and healthful ecology is very
important for humanity. This right is so important that it can be claimed on behalf of
future generations based on the concept of ‘intergenerational responsibility’. 262
In India, the Supreme Court in Subhash Kumar v. State of Bihar263 declared that
the right to a wholesome environment was an integral part of the "right to life"
proclaimed in Article 21 of the Indian Constitution. 264
In Nigeria the Federal High Court of Nigeria in Jonah Gbemre v. Shell Petroleum
Development Company Nigeria Ltd and Others. No. FHC/B/CS/53/05, (Nov. 14, 2005)
265 found that multinational oil companies, by flaring gas during exploration and
260
Minors Oposa v. Department of Environment and Natural Resources, 33 I.L.M. 173 (1994).
Available at: http://www.elaw.org/node/1343
261 In this case the plaintiffs sought an order that the government discontinue timber licensing
agreements, alleging that deforestation was causing environmental damage. The claim was based in
part on a section of the Philippine Constitution which recognized the right of the people to a "balanced
and healthful ecology in accord with the rhythm and harmony of nature. A unique feature of the claim
is that it was brought on behalf of the "plaintiffs'" generation and "generations yet unborn
262 John Lee.(2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a
Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of
Environmental Law vol. 25, page 318.
263 Subhash Kumar v. State of Bihar, (1991) 1 S.C.R. 5, 13 (India), Available at
http://www.elaw.org/node/2751
264 John Lee.(2000)‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy
Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law
vol. 25, page 319.
265 Jonah Gbemre v. Shell Petroleum Development Company Nigeria Ltd and Others. No.
FHC/B/CS/53/05, (Nov. 14, 2005) Federal High Court of Nigeria, available at
http://www.climatelaw.org/cases/case-documents/nigeria/ni-shell-nov05-judgment.pdf
production activities, violated the "fundamental rights to life including healthy
environment and dignity of human person guaranteed by Sections 33(1) and 34(1) of
the Constitution of the Federal Republic of Nigeria, 1999 and reinforced by Arts 4, 16
and 24 of the African Charter on Human and Peoples Rights." The court also ordered
the respondents to take immediate steps to stop further flaring of gas in the
community. 266
In Hungary, the right to healthy environment was considered very seriously by the
Constitutional Court. The Court overturned a national legislation which was
intending to privatize natural forests on the basis of a constitutional right to a
"healthy environment.267
In Bangladesh, in Farooque v. Gov't of Bangladesh, 17 B.L.D.1997, (also known
asFlood Action Plan Case) 268 the supreme of Bangladesh observed that every person
has a right to live in a healthy environment. They also ruled that the government will
ensure that environmental condition is not degraded by human activities.269
The above analysis shows that the national courts are also recognizing that
environmental degradation can sometimes affect the enjoyment of human rights. This
recognition is very important for vulnerable victims of the effects of climate change.
Because environmental degradation is one of the major impacts of climate change
which inevitably threaten the full enjoyment of all basic human rights. So it can be
argued that since the national courts are recognizing the impacts of degrading
environment on the enjoyment of human rights, they are also ready to recognise the
impacts of climate change on the full enjoyment of basic human rights. In other word,
they are likely to recognise human rights-based approach to climate change.
It is time to hope and believe that jurisprudence of environmental rights could be
enlisted in the fight against the violation of human rights caused by the impacts of
climate change. 270
266
Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law vol.9, page 538
267 Alkotmanybirosag Constitutional Court, No. 28/1994 (V.20), ABH. (1994) Available at
http://www.elaw.org/node/2423.
268 Farooque v. Gov't of Bangladesh, 17 B.L.D. (AD) 1, 1997, 1 B.L.C. (AD) 189 (1996) (Flood Action
Plan Case), Available at http://www.elaw.org/node/1300.
269 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law. vol.9, page 540
270 Ibid-page 540
4.8 Possible Effective Role of the United Nations in Protecting Human
Rights Threatened by the Effects of Climate Change
It has already been analysed that the effects of climate change threaten basic human
rights enshrined in United Nations human rights instruments such as the
International Covenant on Civil and Political Rights (ICCPR) 1966 and the
International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966.
Referring to article 26 of the Vienna Convention on the Law of Treaties-1969 which
states that ‘every treaty in force is binding upon the parties to it and must be
performed by them in good faith’271, human rights lawyers argue that these two
covenants are legally valid 272 —that is, enforceable—with regard to the countries that
ratified it. 273
Article 2(2) 274 and 2(3)(a) of the ICCPR, imposes obligations on states parties to adopt
such measures as may be necessary to give effect to the rights recognised in the
ICCPR itself.275 Article 2(1) 276 of the ICESCR also imposes obligations on state parties
to implement or enforce rights enshrined in ICESCR.
Following the above study, it is clear that the above mentioned provisions of ICCPR
and ICESCR impose obligations on states to take all measures to ensure the full
enjoyment of human rights.
271
This obligation is also known as “Pacta sunt servanda”
Publication of American Association for the Advancement of Science. ‘An Overview of the
International Bill of Rights.’ Available at: http://shr.aaas.org/escr/handbook/chap01.htm
273 152 states are parties to the Covenant on Economic, Social and Cultural Rights, (66 signatories):155
states are parties to the Covenant on Civil and Political Right(67 signatories).
274 These articles state that “each State Party to the present Covenant undertakes to take the necessary
steps, in accordance with its constitutional processes and with the provisions of the present
Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights
recognized in the present Covenant.”
275 Justice Ronald Sackville, Judge, Federal Court of Australia (2004). Keynote Speech on ‘Homelessness,
Human Rights and Law.’ Available at :
http://www.fedcourt.gov.au/aboutct/judges_papers/speeches_sackvillej12.rtf
276 Article 2(1) of the ICESCR states that “Each State Party to the present Covenant undertakes to take
steps, individually and through international assistance and co-operation, especially economic and
technical, to the maximum of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate means, including
particularly the adoption of legislative measures.”
272
It is obvious that human rights such as the right to life, to food, to water, to health
and rights of indigenous people are enshrined in ICCPR and ICESCR and they are
threatened by the impacts of human-induced climate change.
In this situation, it can be argued that states are obliged under the provisions of
ICCPR and ICESCR to take all measures to ensure the full enjoyment of the above
mentioned human rights and accordingly if they do not take any measure to prevent
or reduce the impacts of climate change on the enjoyment of these human rights,
they are more likely to be liable for human rights violations under United Nations
human rights regime.
In addition, under the First Optional Protocol to the International Covenant on Civil
and Political Rights 1976 (ICCPR) and the Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights 2008 277 (ICESCR) an individual,
after exhausting all available domestic remedies, may complain to the United Nations
Human Rights Committee or the Committee on Economic, Social & Cultural Rights
278 that his or her rights under the ICCPR or ICESCR have been breached.
The
Committee then investigates the matter and gives the opinion. These opinions of the
committee are much like judicial decisions and the governments concerned is agreed
to be legally bound by these decisions.279
In Ivan Kitok v Sweden 280 the Human Rights Committee considered a complaint
by an indigenous person from Sweden relating to the right to carry out reindeer
husbandry. The Committee found the violation of article 27 of ICCPR and Sweden
followed this decision.
277
On December 10th, 2008, on the 60th anniversary of the Universal Declaration of Human Rights,
the United Nations General Assembly adopted the Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights (ICESCR). Optional Protocol has been opened for signature in
March 2009.
278 Article 2 and 5(2)(b) of First Optional Protocol to ICCOR and article 2 and 3 of the optional protocol
to ICESCR.. The provisions of these two protocols state that individuals who claim that any of their
rights enumerated in these Covenants have been violated and who have exhausted all available
domestic remedies may submit a written communication to the Committee for consideration
279 Kevin Donegan. (2009) ‘What is the new UN Optional Protocol on Economic, Social and Cultural
Rights?’ Center for Economic and Social Justice: social justice through human rights. Available at:
http://www.cesr.org/article.php?id=321
280United Nations Human Rights Committee, Report of the Human Rights Committee, Communication
No 197/1985, UN Doc CCPR/C/33/D/197/1985 (1988).
In Ominayak v Canada, 281 the Human Rights Committee found a Canadian
Government lease over Indian land violated article 27, where the lease was to be used
for commercial timber activities, on the grounds that this could destroy the
traditional life of the Lubicon Lake group.282 Canada also followed the decision of the
committee.
Form the above analysis it can be asserted that though the concern of human rights
violation caused by the effects of climate change is a new phenomenon in
international human rights regime, there is a possibility that human rights violations
caused by the impacts of human-induced climate change can be remedied by the
United Nations frameworks very soon.
281
United Nations Human Rights Committee, Report of the Human Rights Committee, Communication
No 167/1984, UN Doc A/45/40 (1990)
282 Gillian Triggs.( 1999 ) ‘Australia’s Indigenous Peoples and International Law: Validity of the Native
Title Amendment Act 1988 (CTH). Melbourne University Law Review, vol. 16, page 75.
Chapter 5: Advantages of Human Rights-Based Approach to Climate
Change
Climate change impacts on human rights are not something that will occur, but
rather they are already occurring, and severe human victims of climate change
already exist, making the predicament of human populations of climate change of the
uttermost importance to treat today; 283
Human rights-based approach to climate change284can help shift the focus of
international debate on climate change more directly onto individuals and the effects
of climate change on their lives.285
Main advantageous of human rights-based approach to climate change have been
discussed below:
5.1 Adaptive Measures are Humane, Fair and Equal: A human rights-based
approach to climate change provides a conceptual framework for climate change
policies which is normatively based on international human rights standards and
practically directed to promoting and protecting human rights.286
Accordingly if any measure is adopted to deal with the impacts of climate change,
under human rights-based approach to climate change, adaptation measures would be
focused on protecting human rights.
For example, human rights-based approach will ensure that homes are resistant to
extreme weather conditions to protect the right to life and that alternative water
access is offered, when the effects of climate change reduce water supply, to protect
the right to water. This approach will also persuade government to offer health-
283
Jorge Daniel Taillant.( 2007) ‘Human Rights, Development and Climate Change Negotiations.’
Centre for Human Rights and Environment. ( CEDHA ) Page-14. Available at:
http://www.cedha.org.ar/en/initiatives/climate_change/docs/human_rights.pdf
284 Mary Robinson. (2008) Climate Change Is an Issue of Human Rights, INDEPENDENT (London),
Dec. 10, 2008, available at http://www.independent.co.uk/opinion/commentators/mary-robinsonclimate-change-is-an-issue-of-human-rights-1059360.html
285 Marc Limon. (2009) ‘Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no-2, page 451
286 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’.
Australian International Law Journal vol.14, page 161-180
related information and education on climate change and to provide proper sanitation
to protect the right to health. 287
By focusing on individuals as rights-holders, this approach places obligations on
governments to include participation of the poorest and most marginalized groups in
the community with sensitivity to social and cultural context, into the development
of transparent climate change policies. For example, if it is necessary to forcibly
relocate communities in disaster or flood-prone areas, a human rights-based approach
to such policy would require a thorough and proper consultation with the affected
communities to ensure that its impact was tolerable and proportionate. 288
Regarding adaptation measures, considering competing demands on limited resources,
human rights approach provide thresholds of minimum acceptability and ensure that
the impacts of adaptation and mitigation measures on individuals are equal and fair.289
For example if the result of an adaptation measure is that indigenous people are going
to be disproportionately affected, human rights-based approach to climate change will
assert that the adaptation measure is unfair and required to be readjusted. 290
This approach also pressurizes government291to use all means available to it to prevent
and address the threats to human rights caused by climate change and to provide
access to remedies when these rights are violated.292
In addition, under a human rights-based approach the substantive elements of any
new adaptation measure would need to ensure that the fundamental rights of
everyone affected by the measure were taken into account. Human rights standards
would guide policymakers and legislators when weighing competing demands on
287
John Von Doussa. (2008) ‘Human Rights and Climate Change: A Tragedy in the Making.’ The
University of New South Wales Law Journal vol.31, no.3, page 959.
288 John von doussa. (2008) ‘Climate Change and Human Rights’ centre for policy development, Sydney
, Australia. Available at:
http://cpd.org.au/article/climate-change-and-human-rights
289 John Von Doussa. (2008) ‘Human Rights and Climate Change: A Tragedy in the Making.’ The
University of New South Wales Law Journal vol 31, no.3, page 960.
290 Ibid-page 961.
291 UN Human Rights Committee, General comment No. 31 – Nature of the General Legal Obligation
imposed on State Parties to the Covenant (2004) CCPR/C/21/Rev.1/Add.13, at Para 15. Available at:
http://www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f?Opendocument
292 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’.
Australian International Law Journal vol.14, page 161-180
limited resources; helping to ensure, for example, that budget allocations prioritize
the most marginalized and disadvantaged.293
‘The authoritative General Comments of the Human Rights Treaty Bodies are a useful
articulation of the content of some of the key human rights affected by climate
change and provide a basis for developing the standards and measures to apply when
evaluating whether a particular policy meets its human rights requirements. For
example under Economic and Social Council General Comment No. 15 – The right to
water, the relocation of a community would have to ensure that the minimum
requirements of fresh water (currently calculated by the World Health Organisation
at 7.5 litres per day294) would be physically and financially available to every adult
and child, and that it would be accessible to all without discrimination on the grounds
of sex, age, or economic or social standing, and that personal security is not
threatened when having to physically access to water.295 Similar core obligations
resting on governments have been specified in other General Comments 296 in relation
to the rights to food, health and adequate housing such as CESCR, General Comment
No.12 – The Right to Adequate Food (1999); CESCR, General Comment No.4 – The
Right to Adequate Housing (1991); and CESCR, General Comment No.14 – The Right
to the Highest Attainable Standard of Health (2006).’297 Under human rights
approach, the above human rights obligations of human rights instruments will help
to mitigate the impacts of climate change on vulnerable communities.
5.2 Encouraging International Co-operation: Some scholars argue that since
climate change does not yet have adequate legal support in international arena, the
effects of climate change on vulnerable communities can only be effectively addressed
through cooperation of all members of the international communities.298
293
John Von Doussa. (2008) ‘Human Rights and Climate Change: A Tragedy in the Making.’ The
University of New South Wales Law Journal vol. 31, no. 3, page 961
294 This figure is for total consumption i.e. drinking water plus water for foodstuffs preparation.
[Source: Howard and Bartram.(2003) Domestic Water Quantity, Service Level and Health, WHO, at
Page 9. Available at: http://www.who.int/water_sanitation_health/diseases/en/WSH0302.pdf
295 Economic and Social Council General Comment No. 15 – The right to water (2002) at Para.37.
Available at:
http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94?Opendocument
296 General Comments of Committee on Economic, Social and Cultural Rights. Office of the United
Nations High Commissioner for Human Rights Available at:
http://www2.ohchr.org/english/bodies/cescr/comments.htm
297 John Von Doussa. (2008) ‘Human Rights and Climate Change: A Tragedy in the Making.’ The
University of New South Wales Law Journal vol.31, no. 3, page 961-962.
298 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no. 2 page 452
Human rights-based approach to climate change has this potential to deal with the
human dimensions of climate change by emphasizing international cooperation.
Human rights frameworks such as the U.N. Charter299 the International Bill of Human
Rights300 and other human rights instruments contain languages that emphasize
international cooperation.301
For example, the Committee on Economic, Social and Cultural Rights, in General
Comment 3 302 states that:
‘in accordance with Articles 55 and 56 of the Charter of the United Nations303, with
well-established principles of international law, and with the provisions of the
Covenant304 itself, international cooperation for development and thus for the
realization of economic, social and cultural rights is an obligation of all States.’ 305
While this General Comment was not written with climate change in mind, the
obligations that it identifies are clearly applicable to the case of climate change, at
299
Article 1(3) of United Nations Charter states that the purposes of the United Nations are “to achieve
international co-operation in solving international problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or religion. Available at
http://www.un.org/en/documents/charter/chapter1.shtml
300 The Universal Declaration of Human Rights, the International Covenant on Economic, Social and
Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) are
together called International Bill of Human Rights.
301 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no-2, page 452
302 UNCESCR General Comment 3: The Nature of States Parties Obligations, (Art. 2, para. 1 of the
Covenant U.N. Doc. E/1991/23 (Dec. 14, 1990). Available at:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+3.En?OpenDocument
303 International cooperation to promote and protect human rights lies at the heart of the Charter of the
United Nations. The importance of such cooperation is explicitly stated in provisions of the
International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the
Child, the Convention on the Rights of Persons with Disabilities, and in the Declaration on the Right
to Development. [Source: Marc Limon. (2009) ‘Human Rights and Climate Change: Constructing a
Case for Political Action.’ Harvard Environmental Law Review vol. 33, no. 2 page 453 ]
304It is worth recalling that each state that has ratified the ICESCR has a duty to respect, protect, and
fulfil the rights laid down in that treaty for those coming within their jurisdiction, and these duties
have their own specific scope under the treaty. The obligation to respect a right means the state must
take no steps that would violate that right; the obligation to protect requires states to act to ensure that
other actors, including private and international actors, are not permitted to violate the right; the
obligation to fulfil requires that states take steps over time to progressively realize citizens’ rights to
food, shelter, health, and so on. [Source: The State Obligation to Respect, Protect and Fulfill ICESCR
Rights. International Commission of Jurists, Available at: http://www.icj.org/IMG/pdf/7.pdf ]
305 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no. 2, page 454
least in the case of international cooperation on adaptation (i.e., a positive obligation
to render assistance) and, quite probably, on mitigation (i.e., a negative obligation to
reduce emissions). 306
OHCHR analytical report on climate change and human rights also suggests that all
states that are party to the ICESCR have a legal obligation through international
cooperation (i.e., the UNFCCC process) to reduce emissions to levels consistent with
the full enjoyment of human rights (i.e., safe levels) in all other countries (especially
vulnerable countries), to fund adaptation measures in vulnerable countries
(depending on the availability of resources), and to ensure that the international
climate change agreement due to be penned at COP 15 in Copenhagen is consistent
with those human rights obligations and, at the very least, does not adversely impact
human rights. 307
5.3 Pathway for International Assistance: Poor vulnerable communities have
very weak social and economic condition. So they cannot easily adapt or mitigate the
types of impacts caused by climate change and they are more affected by the impacts
of climate change308when they have contributed the least to this problem.309
In this situation human rights approach to climate change will help draw attention to
such predicaments, and create more leverage for vulnerable states to gain
international development assistance and political agenda priority310 to help
underwrite the cost of climate-change-related weather damage (e.g., the cost of
building seawalls) or establish special funds to build coastal defenses, protect fresh
water supplies, and develop new forms of agriculture.311
306
Ibid-page 454
Ibid-page 455
308 Jorge Daniel Taillant.( 2007) ‘Human Rights, Development and Climate Change Negotiations.’
Centre for Human Rights and Environment. ( CEDHA ) Page-14. Available at:
http://www.cedha.org.ar/en/initiatives/climate_change/docs/human_rights.pdf
309 Bridget Lewis. (2008) Climate change and human rights : perspectives of environmental and
indigenous rights. Journal of The Australasian Law Teachers Association. vol.1, no.1 & 2. page154
310 Jorge Daniel Taillant.( 2007) ‘Human Rights, Development and Climate Change Negotiations.’
Centre for Human Rights and Environment. ( CEDHA ) Page-14. Available at:
http://www.cedha.org.ar/en/initiatives/climate_change/docs/human_rights.pdf
311 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate
Change’. Hastings International and Comparative Law Review vol. 30, page 260
307
Thus human rights approaches to climate change will help to protect and prevent
future violations of human rights that shall occur amongst vulnerable because of
climate change; 312
5.4 Recognition of Procedural Human Rights: Human rights based approach
to climate change recognizes procedural human rights in regard to the effects of
climate change. This procedural human rights also includes the right to access to
information and the right to participate in decision making and the right to have
access to justice in environmental matters.
These procedural human rights were first formulated in principle 10 of the Rio
Declaration.313 They can be a powerful tool for combating climate change through
litigation. 314
Procedural rights are also included in the U.N. Framework Convention on Climate
Change. Article 6 315 requires Parties to promote and facilitate at the national and, as
appropriate, subregional and regional levels . . . public access to information on
climate change and its effects; and public participation in addressing climate change
and its effects and developing adequate responses.316
312
Jorge Daniel Taillant.( 2007) ‘Human Rights, Development and Climate Change Negotiations.’
Centre for Human Rights and Environment. ( CEDHA ) Page-14. Available at:
http://www.cedha.org.ar/en/initiatives/climate_change/docs/human_rights.pdf
313 Principle 10 of Rio Declaration on Environment and Development 1992 states that Environmental
issues are best handled with participation of all concerned citizens, at the relevant level. At the
national level, each individual shall have appropriate access to information concerning the
environment that is held by public authorities, including information on hazardous materials and
activities in their communities, and the opportunity to participate in decision-making processes. States
shall facilitate and encourage public awareness and participation by making information widely
available. Effective access to judicial and administrative proceedings, including redress and remedy,
shall be provided. Available at:
http://www.unep.org/Documents.Multilingual/Default.asp?documentID=78&articleID=1163
314 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law. vol.9, page 541
315 Article 6 of UNFCCC states that “State arties shall promote and facilitate at national level (i) public
access to information on climate change and its effects (ii) Public participation in addressing climate
change and its effects and developing adequate responses.”
Available at: http://unfccc.int/resource/docs/convkp/conveng.pdf
316 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law vol.9, page541.
The procedural human right to information 317 may well have an important future in
disputes where access to information related to climate change is denied to the public.
318
Public access to information on climate change and its effects is very important to
assess the actions or inactions of governments and the emissions of polluting
industries. 319
Procedural human rights to public participation also open the door to citizens for
lobbying governments for the adoption of needed regulations and measures to combat
climate change. 320
The U.N. Framework Convention on Climate Change requires public participation in
addressing climate change and its effects and developing adequate responses. This
provision of the Convention can be used in various ways, including to demand
participation in the environmental assessment of certain projects and activities that
emit GHGs contributing to climate change. 321
Under this right the public will have an opportunity to participate in assessment of
the impact of climate change of any project and raise comments. The resultant public
outcry may halt a project which is detrimental to climate and communities. In
addition where institutions ignore requirements for public participation in decisions
317
Public access to information has already been recognized as basic human rights. In Europe. in 1996
the Parliamentary Assembly of the Council of Europe (PACE), with the passage of the Resolution of
1087, took an important step in the recognition of the right to information as a human right.
Resolution 1087 on the Consequences of the Chernobyl Disaster stated that "the Assembly believes that
public access to clear and full information on this subject--and many others for that matter--must be
viewed as a basic human right.
In Europe, the Aarhus Convention on Access to Information, Public Participation in Decision-Making,
and Access to Justice in Environmental Matters recognizes not only the right of the public to receive
information upon request (article 4), but also the duty of the government to collect and disseminate
information (article 5). [Source: Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life
:Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law, vol. 9, page
542 ]
318 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law vol. 9, page 545.
319 Ibid-page 541
320 Ibid-page 541
321 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law vol. 9, page 545
that may affect the climate, court actions challenging the decisions as illegal may give
this procedural right an important role in overturning them. 322
Right to have access to justice for citizens and nongovernmental organizations
ensures that if governments or industries fail to comply with measures that are
adopted, the violations can be brought to the attention of the courts. 323
5.5 Recognition of the Right to Self-determination Because of the effects
climate change, many island states in the world may be wiped out of world map. But
the two major international frameworks on climate change the UNFCCC and the
Kyoto Protocol both consciously ignore issues pertaining to the potential loss of
sovereignty or statelessness caused by climate change-related impacts. 324
Such an omission is extremely serious, especially when one considers that the citizens
of many small island states, including Tuvalu, Vanuatu, the Maldives, and the
Marshall Islands, are facing this possibility of becoming environmental refugees
during the present century.325
Human rights approaches can potentially help fill this important gap in the existing
international climate change regime.326
For example, article 1 of both ICCPR and ICCESCR clearly recognize the right to self
determination. In addition, the Human Rights Committee in its General Comment 12
327 and Article 2 of the ICCPR imposes an obligation on the international community
to take positive action toward the realization of the right to self-determination,
regardless of whether a people are located within the territory or jurisdiction of a
particular state. This is suggestive of a positive obligation upon industrialized
322
Ibid-page 547
Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to
Climate Change’. Vermont Journal of Environmental Law vol. 9, page 541
324 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review , vol. 33, no.2, page 455
325 Ibid-page 456
326 Ibid-page 455
327 OHCHR, Human Rights Committee [CCPR], General Comment 12: The Right to SelfDetermination of Peoples, (Mar. 13, 1984), available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f3c99406d528f37fc12563ed004960b4?Opendocument.
323
countries to protect the sovereignty of Small Island States by taking meaningful action
to cut greenhouse gases before such states are rendered uninhabitable.328
5.6 Reformulation of Existing Human Rights Customary international law
principles which originated before environmental problems such as climate change
entered the legal discourse, has been largely ineffective in addressing the mitigation
of, and adaptation to, climate change impacts on human life. Even current
international environmental law does not adequately protect human life and dignity
from the threats associated with the impacts of climate change and environmental
degradation. 329
In this situation victims of the effects of climate change can benefit from a human
rights-based approach to climate change because reformulating existing human rights
obligations in the context of the impacts of climate change and environmental
degradation would garner more effective environmental protection by taking
advantage of existing international and regional monitoring and enforcement
mechanisms, which are more developed in the human rights arena than they are in
the environmental arena. 330
Thus we may be able to establish a legal basis for holding states responsible for
damage caused by the effect of climate change and equally states may be held liable
for damage to the environment caused by inadequate regulation of greenhouse gas
emissions.
5.7 Vocalisation of Affected People’s Concern: Using a human rights
framework helps amplify the voices of those who are disproportionably affected by
climate change — the poor, marginalized, and vulnerable people including women,
children, indigenous groups, and the old who might otherwise not be heard and who,
if empowered to do so, could make an important contribution to improving climate
change policy.331
328
Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no. 2, page 456.
329 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate
Change’. Hastings International and Comparative Law Review. vol. 30, page 259
330 Ibid- page 259
331 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no. 2, page 451
Chapter 6: Criticisms of Human Rights-Based Approach to
Climate Change and Its Response
6.1 Problem of Subjective Valuation of Some Rights Over Others: Some
critics claim that one of the majors theoretical problems to a human rights-based
approach to climate change is that it may require subjective valuation of some rights
over others. 332
Comparing the conditions between Inuit, Maldives, Marshall Island and Russia,
Iceland and Canada, they argue that climate change may threaten the basic human
rights of some individuals and groups but at the same time it may be beneficial for
others.333
They mention that though it is true that melting of sea ice raises the sea level and
threatens the lives and livelihoods of the Inuit and Small Island States such as the
Maldives, Tuvalu and Marshall Island, the melting of sea ice also could open up new
sea routes for Russia, Iceland, and Canada, and parts of Russia might benefit from an
increase in crop yields. 334
Critics question if the Inuit and Small Island States have a human right to life, shelter,
food, water and health, do not the people of Russia and Iceland have an equal right to
development? 335
However in response to the above argument it can be argued that highlighting the socalled ‘benefits’ of climate change is cunning.
Melting sea ice and higher temperature may increase crop yields in some part of
Russia, Canada and Iceland but this increase in yields could be more than offset by
decreases in yields in some part of those countries caused by drought and higher
temperatures. In addition, in Africa, South East Asia and some tropical areas, higher
temperature will reduce agricultural productivity because temperatures there are
already almost as high as many crop plants can tolerate and as a result crop yields in
332
Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate
Change’. Hastings International and Comparative Law Review. vol. 30, page 262 -263
333 Ibid-page 262 -263
334 Ibid-page 262-263
335 Ibid-page 262 -263
those areas will decrease disastrously putting million of people at risk of hunger and
malnutrition and accordingly threatening their basic human rights to food and life. 336
Scholars also argue that dangerous climate change is attributed directly or indirectly
to human activities on all over the world. The effect of climate change is global as
well. In this situation, it is very inhuman to suggest that using the effect of climate
change some part and communities of the world will improve their condition and
enjoy the right to development whereas some part and communities of the world will
struggle to survive and their basic human rights to life, to food, to shelter, to water
and to health would be jeopardized by the impacts of climate change.
So globally any "benefit" of climate change will be offset by an equal or greater harm.
337
6.2 Impractical and Unwise Approach: Critics claim that climate change is a
highly complex environmental issue, characterized by a long chain of steps between
the initial human activities that produce greenhouse gas emissions and the eventual
physical impacts that may result from those emissions. They argue that a complex
global environmental problem with these characteristics does not lend itself to human
rights-based solutions and any movement “toward a human rights-based approach to
climate protection are both impractical and unwise.338
Though these arguments have some merit, they are not yet conclusive. They reflect a
one-dimensional view of the potential conceptual linkages between climate change
and human rights. 339
They are based on the premise that a central purpose of human rights law is to
provide remedies for the victims of specific rights violations.340 This framework
requires identifiable violations, and identifiable harms attributable to the violations 341
336
Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate
Change’. Hastings International and Comparative Law Review vol. 30, page 262 -263.
337 Ibid-page 262 -263.
338 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no. 2, page 457
339 Ibid- page 457
340 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review , vol. 33, no.2, page 457
341 Ibid-page 457.
However, human rights should not only be seen as a way of seeking redress for what
has happened, but as a forward-looking means of encouraging the evolution of, and
providing a qualitative contribution to, robust, effective, and sustainable policy
responses at both the national and international level, across mitigation and
adaptation. As Kyung-wha Kang has noted, ‘human rights supply not only legal
imperatives, but also a set of internationally agreed values around which common
action can be negotiated and motivated.’342
It is in this progressive sense that the contemporary value of linking human rights and
climate change is to be found and the various benefits of a human rights approach,
come to the fore. 343 Seen in the broader sense as a set of values and norms from which
to draw inspiration, a human rights-approach can potentially add much value to the
existing politico-scientific climate change discourse. 344
6.3 Anthropocentric Attitude to Environmental Problems: Critics claim that a
human rights approach could lead to an anthropocentric attitude to environmental
problems, instead of looking at the aggregate impacts on species and the
environment.345 They insist that the environment itself also possesses inherent rights
derived from its own value, distinct from human use of the environment. 346
However their claim has no real merit. Even from human rights perspective if a real
progress is made on the problem of climate change, it will also inevitably benefit
humans, other species, and the environment. How the problem is viewed and
progressed are somewhat irrelevant.347
6.4 Undermining UNFCCC and IPCC: Critics claim that the climate change
response process, led by the IPCC and the UNFCCC, is dominated in general by
experts in the physical sciences. Consequently, there is an almost complete lack of
understanding of human rights systems and their potential value within the IPCC
342
Ibid-page 458
This is not to say that human rights should not also eventually be used as an accountability
framework for addressing harm, responsibility, and redress. However, at present, human rights law,
which is overwhelmingly understood as a national contract between citizen and state, is not geared to
this utility.
344 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review , vol. 33, no-2, page 458
345 Prudence E Taylor. (1998) ‘From Environmental to Ecological Human Rights: A New Dynamic in
International Law? Georgetown International Environmental Law Review vol.10, page 309-397.
346 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate
Change’. Hastings International and Comparative Law Review. vol. 30, page 263
347 Ibid-page 263
343
and, more importantly, within the UNFCCC process.348 Critics claim that if human
rights based approach to climate change is adopted, the international human rights
machinery might replace or undermine the UNFCCC process which was established
to reduce the green house gas emission. So undermining the role of UNFCCC in fact
will undermine the efforts to reduce the impact of climate change on human being.
Instead of doing something effective to reduce the impact of climate change, human
rights might be used as some kind of political or legal football between North and
South.349
However this is not the case, it is clear that human rights thinking have the potential
to strengthen and complement the IPCC and UNFCCC processes, rather than
undermine, endanger, or replace them. As the OHCHR notes in its report,
“international human rights law complements the UNFCCC by underlining that
international cooperation is not only expedient but also a human rights obligation and
that its central objective is the realization of human rights, and, in the context of
those negotiations, “human rights standards and principles should inform and
strengthen policy-making . . . promoting coherence and sustainable outcomes.” 350
6.5 Uncertainty of Post-Kyoto Agreement: Critics raised a more tactical concern
that because of human rights approach to climate change, most polluter countries are
less likely to sign up the post-Kyoto climate change framework to strict emission
reduction targets for fear that, if they were to fail to reach those targets, they might
leave themselves open to litigation. 351 The developed countries may fear that
individuals or even countries that have suffered or will suffer harm could use any
officially recognized linkages between human rights and climate change as a political
or legal weapon against them.352
However this criticism is not reasonable because even the people of rich and polluter
country are also victim of climate change. So the leader of these countries would also
be concerned about the effects of climate change and accordingly they are very likely
to sign up post-Kyoto agreement to reduce greenhouse emission.
348
Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no.2, page 459.
349 Ibid-page 462
350 Ibid-page 462
351
Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review , vol. 33, no. 2 page 460
352 Ibid-page 461
6.6 Impairing Serious Human Rights Issues: Some critics argue that labeling
certain climate change impacts as human rights issues may impair the importance of
the protection of "serious" human rights issues such as genocide and crimes against
humanity.353
However now it is established by scientific evidence that climate change has
catastrophic impacts on human life. So human rights related to climate change are
also a serious human rights issue. In addition utilizing the human rights framework to
address climate change would not undermine other human rights efforts rather by
encouraging debate on this issue it will help to develop the jurisprudence of human
rights law.354
However finally it can be said that although the various theoretical or practical
arguments has been put forward to argue against action on linking climate change
with human rights, they are most likely to be invalid because they have no merit.
Moreover they are based on a fundamental misconception of the potential value and
utility of human rights. 355
353
Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate
Change’. Hastings International and Comparative Law Review. vol. 30, page 263
354 Ibid-page 263
355 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’
Harvard Environmental Law Review vol. 33, no.2, page 462
Chapter 7: Conclusion
Though climate change is a real threat to humanity, to date it has been regarded only
as a scientific problem. Human rights discourse is an attempt to convert climate
change from a scientific problem into a substantial and actionable humanistic
problem.
In this regard human rights regime can be seen as a promising avenue for addressing
the social effects of climate change. Human rights provide both a language and
specific legal mechanisms through which climate actions can be analyzed and
implemented.
International human rights regime can be used by marginalized and vulnerable
groups to make moral and legal claims that would force industrialized nations to limit
their own carbon emissions and provide assistance for marginalized and vulnerable
groups to adapt to climate change. 356
However uncertainty and ambiguity may pose problems in human rights-based
approach to climate change. In this regard, human rights scholars states that most
human rights confronted similar hurdles in the early articulation of these rights,
particularly economic, social, and cultural rights. These problems also plagued early
debates on the right to environment, which has since gained increasing support and
legitimacy. The field of human rights must evolve, and the innovation and pioneering
of new idea of human rights and theories will always suffer from initial skepticism. 357
356
Dan Chong and Simon Nicholson.( 2008) ‘From Knowledge to Action: Applying a Rights-Based
Approach to Global Climate Change.’ Page-1-17. Conference paper of International Studies
Association.
Available
at:
http://www.allacademic.com/one/prol/prol01/index.php?cmd=prol01_search&offset=0&limit=5&multi
_search_search_mode=publication&multi_search_publication_fulltext_mod=fulltext&textfield_submit
=true&search_module=multi_search&search=Search&search_field=title_idx&fulltext_search=From+Kn
owledge+to+Action%3A+Applying+a+Rights-Based+Approach+to+Global+Climate+Change
357 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate
Change’. Hastings International and Comparative Law Review. vol. 30, page 264
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(arts 11 and 12 of the International Covenant on Economic, Social and
Cultural Rights). Paragraph 3. Available at:
http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94?Op
endocument
15. The Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW). It was adopted by the United Nations General Assembly.
It entered into force as an international treaty on 3 September 1981 after the
twentieth country had ratified it. Available at:
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article14
16. Protocol No.1 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms ( known as the European Convention on
Human Rights). This protocol is available at Council of Europe. Website:
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/EnglishAnglais.pdf
17. The European Convention for the Protection of Human Rights and
Fundamental Freedoms (known as the European Convention on Human
Rights). This Convention is available at Council of Europe. Website:
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/EnglishAnglais.pdf
18. The American Convention on Human Rights. This Convention is available at
Organization of American States. Website:
http://www.oas.org/juridico/English/treaties/b-32.html
19. The Convention on Biological Diversity. It was opened for signature 5 June
1992 and entered into force 29 December 1993. Available at:
http://www.cbd.int/convention/convention.shtml
20. The United Nations Declaration on the Rights of Indigenous Peoples. United
Nations.
Available at: http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
21. The United Nations Convention Relating to the Status of Refugees ( known as
Refugee Convention). Available at The Office of the United Nations High
Commissioner for Refugees (UNHCR) Website:
http://www.unhcr.org/3b66c2aa10.html
22. The Kyoto Protocol to the United Nations Framework Convention on Climate
Change. 1998.Available: http://unfccc.int/resource/docs/convkp/kpeng.pdf
23. UN Human Rights Committee, General comment No. 31 – Nature of the
General Legal Obligation imposed on State Parties to the Covenant (2004)
CCPR/C/21/Rev.1/Add.13, at Para 15. Available at:
http://www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f?Ope
ndocument
24. Charter of the United Nations. Available at:
http://www.un.org/en/documents/charter/chapter1.shtml
25. UNCESCR General Comment 3: The Nature of States Parties Obligations, (Art.
2, Para. 1 of the Covenant) U.N. Doc. E/1991/23 (Dec. 14, 1990). Available at:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+3.En?
OpenDocument
26. OHCHR, Human Rights Committee [CCPR], General Comment 12: The Right
to Self-Determination of Peoples, (Mar. 13, 1984). Available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f3c99406d528f37fc12563ed00496
0b4?Opendocument.
International and Regional Cases:
1. Lopez-Ostra v. Spain-(16798/90) ECHR [9 December 1994]. Available at:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=htm
l&highlight=Lopez%20%7C%20Ostra%20%7C%20v.%20%7C%20Spain&sessi
onid=28908871&skin=hudoc-en
2. Corfu Channel case (United Kingdom v Albania). International Court of
Justice. Judgment Delivered on 9th April 1949.
Available at: http://www.icj-cij.org/docket/files/1/1645.pdf
3. Nuclear Tests case (New Zealand v. France ), International Court of Justice.
Available at: http://www.icj-cij.org/docket/files/97/7187.pdf
4. Gabcikovo-Nagymaros Project case (Hungary v. Slovakia.), International Court
of Justice. Report No- 7. Judgment Delivered on 25th September 1997.
Available at: http://www.icj-cij.org/docket/files/92/7375.pdf
5. Advisory Opinion of International Court of Justice on Legality of the Threat or
Use of Nuclear Weapons, 8th July 1996. Available at: http://www.icjcij.org/docket/files/95/7495.pdf
6. Fadeyeva v. Russia-(55723/00) ECHR. [11 November 2005]. Available at:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=htm
l&highlight=Fadeyeva%20%7C%20v.%20%7C%20Russia&sessionid=28908871
&skin=hudoc-en
7. Taskin and Others v. Turkey-(46117/99)ECHR [30 March 2005] Available at:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=htm
l&highlight=Taskin%20%7C%20v.%20%7C%20Turkey&sessionid=28908871&
skin=hudoc-en
8. Guerra and Others v. Italy-( 116/1996/735/932 ) ECHR [19 February 1998]
Available at:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=htm
l&highlight=Guerra%20%7C%20v.%20%7C%20Italy&sessionid=28908871&sk
in=hudoc-en
9. Soc. & Econ. Rights Action Ctr. v. Nigeria, No. 155/96 (Afr. Comm'n H. &
Peoples' R., May 27, 2002), Available at: http://www.escrnet.org/usr_doc/serac.pdf
10. Minors Oposa v. Department of Environment and Natural Resources, 33 I.L.M.
173 (1994). Available at: http://www.elaw.org/node/1343
11. Subhash Kumar v. State of Bihar, (1991) 1 S.C.R. 5, 13 (India), Available at
http://www.elaw.org/node/2751
12. Jonah Gbemre v. Shell Petroleum Development Company Nigeria Ltd and
Others. No. FHC/B/CS/53/05, (Nov. 14, 2005) Federal High Court of Nigeria,
Available at http://www.climatelaw.org/cases/case-documents/nigeria/ni-shellnov05-judgment.pdf
13. Alkotmanybirosag Constitutional Court, No. 28/1994 (V.20), ABH. (1994)
Available at http://www.elaw.org/node/2423.
14. Farooque v. Gov't of Bangladesh, 17 B.L.D. (AD) 1, 1997, 1 B.L.C. (AD) 189
(1996) (Flood Action Plan Case), Available at http://www.elaw.org/node/1300.
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