CONTENTS I INTRODUCTION II ACTION TO PREVENT FUTURE VIOLATIONS OF THESE HUMAN RIGHTS III LEGAL PROTECTION OF HUMAN RIGHTS IV SOVEREIGNTY V UNITED NATIONS SECURITY COUNCIL VI HUMAN RIGHTS COUNCIL VII AVENUES FOR POSSIBLE INTERNATIONAL LEGAL ACTION VIII PEOPLE DISPLACED BY CLIMATE CHANGE IX THE COMMON CONCERN OF HUMANKIND X A NEW INTERNATIONAL AGREEMENT XI CONCLUSION POSTCRIPT
The two areas of human rights and climate change are inextricably linked. They are both dependent upon the international cooperation of states and are part of the domain of the common concern of humankind. (1) As such, the protection of human rights and of the climate depends upon multilateral action on the part of the international community, particularly in circumstances where human rights are violated due to the adverse impacts of climate change. A key argument in this article is that there should be a focus on addressing the causes of climate change by developing international environmental law, because climate change forms a fundamental threat to the welfare of both humankind and the environment. This form of protection is likely to lead to more effective prevention of human rights violations that occur as a consequence of climate change, rather than relying solely upon the present legal framework for international human rights law.
This article commences with a brief summary of the relationship between climate change and human rights and then examines whether there currently exists any adequate legal means of protection against violation of the human rights occurring as a result of the adverse impacts of climate change. The second part of this article considers whether there are effective mechanisms available to deal with these violations of human rights at international law and the third part examines the predicament of people who are, and might in the future be displaced by climate change.
This article is timely not only because of the importance attached to the fundamental human rights of individuals, but also due to the fact that the principal existing international legal regime regulating climate change--established under the Kyoto Protocol to the United Nations Framework Convention on Climate Change ('UNFCCC') (2)--is due to be renegotiated at the Conference of Parties of the UNFCCC (COP15) in Copenhagen late this year. Indeed, a series of meetings leading up to the COP15 Meeting have already begun, and recent sessions in Bonn in June and August 2009 have highlighted how complex and difficult this process will be. It is certainly too early to have the confidence to predict how the international legal regime will develop at Copenhagen, and in the period thereafter.
Many state governments have been focusing on the economic and security aspects of climate change, without paying sufficient attention to the social and human rights implications. (3) However, a report issued by the Office of the United Nations Commissioner for Human Rights ('UNHCHR') in early 2009 has raised this relationship at the highest levels, by focusing on 'The Relationship between Climate Change and Human Rights' (the 'UNHCHR Report'). The UNHCHR Report set out to establish some of the key issues that characterise the relationship between human rights and climate change. It is apparent from the conclusions of the UNHCHR Report that the implications of this relationship are very serious. Many fundamental human rights will be affected by changes in the earth's climate--some of the main impacts on human rights are listed in the UNHCHR Report. They are highlighted in summary form below.
A The Right to Life (4)
Predictions by the United Nations Intergovernmental Panel on Climate Change ('IPCC') indicate that an increase in weather threats, such as heatwaves, floods, storms fires and droughts, will inevitably lead to an increase in human deaths. (5) These weather-related disasters are more likely to have an effect on the right to life of those in the developing countries, but will also have an impact upon other related human rights, such as the right to adequate food, due to the increase of people suffering from hunger. (6)
B The Right to Adequate Food (7)
It is likely that, in those locations in the mid to high latitudes of the world, food production will increase; however, it is predicted that food production will, conversely, decrease at lower latitudes, so that in many poorer regions, additional people will suffer from hunger due to the effects of climate change. This is likely to be particularly the case in areas such as sub-Saharan Africa. (8)
In addition to the problems of ensuring adequate food production, mitigation actions that seek to reduce the emissions of greenhouse gases might also have other impacts on the right to food. For example, agro-fuel production carried out to mitigate the impacts of climate change could affect the right to food in areas where arable land is scarce, because these fuels may be produced in priority to food, thus leading to an increase in the price of food due to a shortage in production. (9)
C The Right to Water (10)
There will be a loss of safe drinking water due to less snow cover and reductions in glaciers. The shortages resulting from these losses from the water supplies of mountain ranges are predicted to affect more than one sixth of the world's population. (11)
D The Right to Health (12)
There are likely to be serious adverse affects on the health of people throughout the world as a result of climate change. For example, there will be increases in malnutrition, in the spread of diseases and also increased injury, due to the consequences of more frequent severe weather events. (13) It is likely that these increases in adverse health effects will be more serious in the regions of sub-Saharan Africa, South Asia and the Middle East. (14)
E The Right to Adequate Housing (15)
Global warming will impact on the right to adequate housing, since in some areas such as the Arctic region, low-lying islands and mega-deltas, many people will lose their homes and may need to be relocated. Storm events and sea-level rise will directly lead to a loss of housing and the potential for the loss of livelihoods will result in an increase in those populations in urban areas and in slums, some of which are particularly vulnerable to severe climate events. (16)
Indeed, whole countries may eventually become uninhabitable. There have already been various discussions between the Governments of Tuvalu and Australia/New Zealand canvassing options to address the 'disappearance' of that country as a result of rising sea levels. We have now entered a phase of 'environmental refugees', a concept for which existing international law regulation is not well-equipped to deal with.
F The Right to Self-Determination (17)
The adverse effects of sea-level rise and serious weather events could lead to indigenous peoples being forced to leave their traditional homelands or being placed in a situation where they are no longer able to rely upon their traditional and essential sources of livelihood. (18)
II ACTION TO PREVENT FUTURE VIOLATIONS OF THESE HUMAN RIGHTS
The aim of the international community should be to prevent these impacts on human rights as far as is possible. In order to achieve this aim, there will need to be greater cooperation amongst states to take more drastic action to reduce greenhouse gas emissions. As noted, the levels required to be reduced are in the process of negotiation, but the signs are not positive. Clearly the levels agreed to under the Kyoto Protocol are inadequate:
Whilst there is much debate surrounding the level at which greenhouse gases can be considered dangerous the 2007 IPCC Fourth Assessment Report indicates that global emissions need to be reduced by somewhere in the order of 80 to 90 per cent by 2050 in order to stabilise atmospheric concentrations at 450ppm CO2-e. Since that report was released there have been many 'system wide' changes that have accelerated beyond IPCC expectations (including the worst ever loss of arctic sea ice in the northern summer of 2007). This suggests that the earth system is moving towards a "tipping point" for the occurrence of irreversible catastrophic impacts such as the total disappearance of the arctic sea ice, and the destabilisation of the Greenland and Antarctica ice sheets. (19)
There are reporting obligations under provisions of the UNFCCC and the Kyoto Protocol, including of matters such as inventories of greenhouse gases and of methodologies for the verification of this information. However, these international agreements provide for preliminary reductions of greenhouse gases by the international community and, in fact, in some cases as for Australia, an increase in emissions was ultimately permitted at the conclusion of the negotiations in Kyoto. (20) Clearly, the international negotiations leading to COP15 and beyond need to ensure that there are much greater reductions of greenhouse gas emissions in the future in order to contain climate change.
Compliance institutions have been established to support the environmental protection provisions of the Kyoto Protocol, (21) to monitor the carbon market and also to check the transparency of the accounting methods used by the parties to the treaty. (22) These compliance mechanisms should also be applied to future international agreements on emission reductions, particularly to the next international agreement currently in the process of negotiation, which is likely to account for greenhouse gas emission reductions after the first commitment period that concludes in 2012. (23)
However, the utility of these mechanisms is limited by the fact that they are established to assist states to meet their agreed levels of greenhouse gas emissions and obligations under the current regime--the Kyoto Protocol--rather than providing any means of redress for states or individuals who are adversely impacted by the effects of climate change. Moreover, many states are already having considerable difficulty in meeting their existing emission reduction requirements and it is as yet unclear how (and whether) they will agree (or be persuaded in some way) to commit to even greater reduction targets and any other more onerous obligations.
Other options for the international community to consider are to ensure financial and technological support for mitigation and adaptation programs, particularly in developing countries where large populations and their environment are threatened by the impact of sea-level rise and increased weather threats.
III LEGAL PROTECTION OF HUMAN RIGHTS
The legal protection and enforcement of human rights becomes a key question when considering the impacts of climate change on these human rights--to what extent are they likely to be protected?
According to UNHCHR Report:
The physical impacts of global warming cannot easily be classified as human rights violations, not least because climate change--related harm often cannot clearly be attributed to acts or omissions of specific States. Yet, addressing that harm remains a critical human rights concern and obligation under international law. Hence, legal protection remains relevant as a safeguard against climate change-related risks and infringements of human rights resulting from policies and measures taken at the national level to address climate change. (24)
The concern is that, in spite of the development of a more extensive legal regime and treaty system covering human rights issues, numerous violations of human rights continue to occur on a daily basis in many respects. (25) For example, one need only refer to the genocide in Darfur as a clear and current situation where fundamental human rights are being ignored and blatantly abused. One of the key problems is that the human rights legal system generally has a very limited capability to enforce the human rights obligations. (26) Donoho defines 'enforcement' in this context as,
[to] describe authoritative mechanisms that are designed and expected to compel direct consequences, such as changes in governmental policy, payment of civil compensation, or imposition of criminal penalties, under threat of meaningful sanction. (27)
It is often difficult to effectively enforce these human rights at international law and even in circumstances where human rights organisations may be able to intervene to assist in relieving the human rights concerns of the Darfur people, the underlying causes of the human rights violations would not be resolved, because these organisations are not equipped to remedy the causes of climate change. There may still be a failure to address the threat of climate change if the international environmental legal obligations of states to reduce greenhouse gas emissions are not substantially strengthened.
Another problem is that the effects of action to mitigate climate change are not always focused on environmentally sustainable outcomes. One of the dilemmas is that a hasty decision to take action to mitigate the effects of climate change may lead to other adverse consequences, as occurred in the case of the movement by governments and industry towards increasing the production of agro-fuels. Some of the adverse consequences of the rapid production of these fuels include impacts on 'land use, deforestation, water consumption, eviction and displacement of small farmers, and effects on food prices and food security.' (28)