Human Rights and Climate Change

Von Doussa, John, Corkery, Allison, Chartres, Renee, Australian International Law Journal

Climate change, already affecting the lives of millions, is increasingly becoming one of the most urgent human rights challenges facing the global community. Yet government responses to climate change to date have tended to consider it an ecological problem or, more recently, an economic issue, with the social and human rights implications of climate change rarely featuring in policy debates about climate change. This article argues that human rights principles remain essential to effectively and equitably cope with the impacts of climate change. The paper explores how such a framework might apply in the context of climate change adaptation measures, aid for overseas adaptation, disaster management and in responding to 'climate change refugees'.

Introduction

Climate change will have significant impacts in both Australia and across the globe. Australia is one of the most arid continents in the world. It is vulnerable to risks such as disruptions to water supply; increases in the severity of storms, floods and droughts; coastal erosion due to sea level rise; and to negative human health impacts, for example through an increase in the range and spread of disease. (1) The impacts of climate change are also a particular concern in the Asia Pacific region. According to the fifth report from the Working Group on Climate Change and Development, Up in Smoke? Asia and the Pacific, which was released in November 2007, 'the human drama of climate change will largely be played out in Asia, where over 60 per cent of the world's population, around 4 billion people, live'. (2)

In responding to climate change, governments have traditionally approached it as an ecological problem or, more recently, as an economic one. To date, the social and human rights implications of climate change have received little attention. (3) Yet the human costs of climate change directly threaten fundamental human rights--rights to life, to food, to a place to live and work--rights that governments have an obligation to protect. As Kyung-wha Kang, the United Nations ('UN') Deputy High Commissioner for Human Rights has stated:

  Global warming and extreme weather conditions may have calamitous
  consequences for the human rights of millions of people ... ultimately
  climate change may affect the very right to life of various
  individuals ... [countries] have an obligation to prevent and address
  some of the direct consequences that climate change may reap on human
  rights. (4)

Equity issues also arise in the climate change context because of its disproportionate impact on already vulnerable people and communities. As articulated by the United Kingdom ('UK') Secretary of State for the Environment, 'socially, climate changes raises profound questions of justice and equity: between generations, between the developing and developed worlds; between rich and poor within each country. The challenge is to find an equitable distribution of responsibilities and rights' (5).

What then, if anything, does the modern human rights discourse offer or require from governments when developing appropriate responses to the impacts of climate change? The answer, it appears, is 'a lot'. As noted by the Deputy High Commissioner, States have a positive obligation to protect individuals against the threat posed to human rights by climate change, regardless of the causes. The most effective means of facilitating this is to adopt a 'human rights-based approach' to policy and legislative responses to climate change; an approach that is normatively based on international human rights standards and that is practically directed to promoting and protecting human rights.

Part 1 of this article considers the human rights dimensions of climate change. Specifically, it looks at how the rights contained in the key international instruments are threatened by the impacts of climate change. Part 2 then goes on consider what obligations are imposed on Australia, in both international and domestic law, to respond to these threats. Part 3 outlines how Australia may fulfill its human rights obligations in the context of climate change responses, arguing that a human rights-based approach is the most effective way to respond to climate change.

1. The Human Rights Dimensions of Climate Change

The modern human rights system is founded in international law. It traces back to, and is based upon, the Universal Declaration of Human Rights ('UDHR') which was adopted by the General Assembly of the United Nations on 10 December 1948. (6) The human rights enshrined in the UDHR have been further articulated in subsequent human rights treaties. Most relevantly, the International Covenant on Civil and Political Rights (7) ('ICCPR') and the International Covenant on Economic, Social and Cultural Rights (8) (ICESCR'). Australia is a party to both of these instruments. (9) However, as the major human rights treaties were developed before climate change was understood to be a looming threat to human security, the environmental dimension of these rights has not been extensively articulated and the precise connection between climate change and the international human rights law system is as yet undeveloped. (10)

Some commentators have criticised attempts to delineate the connection between climate change and human rights. Others argue that using rights language to describe broader social issues confuses and devalues the existing human rights framework. (11) Yet while it is important to maintain the integrity and credibility of traditional standards, these standards must also be understood in a manner that can respond to the emergence of new threats to human dignity and well-being. (12) How then, does climate change impact on human rights, as understood in the key international human rights instruments?

A. A Right to an Environment of a Particular Quality

In Australia, and elsewhere, there have been discussions about the existence of an internationally recognised human right to an environment of a particular quality. (13) The Advisory Council of Jurists ('ACJ') of the Asia-Pacific Forum on National Human Rights Institutions recently endorsed the idea that the protection of the environment is 'a vital part of contemporary human rights doctrine and a sine qua non for numerous human rights, such as the right to health and the right to life'. (14) However, the ACJ found that current legal instruments and trends in relation to environment law are insufficient to support the existence of a clear and specific right to an environment of a particular quality in international law. (15)

Even without the articulation of a specific right to the environment, there are many broad rights recognised in the UDHR, ICCPR and ICESCR, as well as in the Convention against Torture ('CAT'), (16) and the Convention on the Rights of the Child '(CRC'), (17) which are relevant to the situation of people whose way of life comes under thereat from climate change. States have a responsibility under these instruments to take action to remedy the direct and indirect threats to these rights posed by climate change.

B. The Right to Life

The right to life is protected in both the UDHR and the ICCPR. Article 3 of the UDHR provides 'everyone has the right to life, liberty and security of person'. 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'. The right to life of children also receives specific protection in article 6 of the CRC. (18) In its General Comment on the right to life, the UN Human Rights Committee warned against interpreting the right to life in a narrow or restrictive manner. It stated that protection of this right requires the State to take positive measures and that 'it would be desirable for state parties to take all possible measures to reduce infant mortality and to increase life expectancy'. (19)

As articulated by the Deputy High Commissioner for Human Rights, climate change can have both a direct and indirect impact on human life. The effect may be immediate, as in the aftermath of climate-change induced extreme weather, or may appear gradually, as deterioration in health, diminishing access to safe drinking water and susceptibility to disease increases.

C. The Right to Adequate Food

The right to adequate food is recognised in several international instruments, most comprehensively in the ICESCR. Pursuant to article 11(1), state parties recognise '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', while pursuant to article 11(2) they recognise that more immediate and urgent steps may be needed to ensure 'the fundamental right to freedom from hunger and malnutrition'. The UN Special Rapporteur on the Right to Food has defined the right as follows:

  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. (20)

There is little doubt that climate change will detrimentally affect the right to food in a significant way. Regional food production is likely to decline because of increased temperatures accelerating grain sterility; shift in rainfall patterns tendering previously productive land infertile, accelerating erosion, desertification and reducing crop and livestock yields; rising sea levels making coastal land unusable and causing fish species to migrate; and an increase in the frequency of extreme droughts are expected by 2030 and up to 80 percent more droughts by 2070 in south-Western Australia. (22)

D. The Right to Water

Although not expressly articulated in the ICESCR, the right to water is intricately related to the preservation of a number of rights; underpinning the right to health in article 12 and the right to food in article 11. The right to water is also specifically articulated in article 24 of the CRC and article 14(2)(h) of the Convention on the Elimination of Discrimination against Women ('CEDAW'). (23) In 2002 the UN Committee on Economic, Social and Cultural Rights recognised that water itself was an independent right. (24) Drawing on a range of international treaties and declarations it stated, 'the right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival.' (25)

As the earth gets warmer, heat waves and water shortages will make it difficult to access safe drinking water and sanitation. There will be lower and more erratic rainfall in the tropical and sub-tropical areas of Asia and the Pacific. This will be exacerbated by the recession of the Himalayan glaciers, which flow into the Ganges, Indus, Brahmaputra, Salween, Mekong, Yangtse and Yellow Rivers. (26) Violent conflicts over water are likely to become more severe and widespread. (27) In Australia, declining precipitation in water catchments is already creating competition between stakeholders over the appropriate use and sharing of remaining water. (28)

E. The Right to Health

Article 25 of the UDHR states that 'everyone has the right to a standard adequate for the health and well-being of himself and his family'. Article 12 (a) of the ICESCR recognises the right of everyone to 'the enjoyment of the highest standard of physical and mental health'. The right to health is also referred to in a number of …

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Publication information: Article title: Human Rights and Climate Change. Contributors: Von Doussa, John - Author, Corkery, Allison - Author, Chartres, Renee - Author. Journal title: Australian International Law Journal. Volume: 14. Publication date: Annual 2007. Page number: 161+. © 2007 University of Western Sydney, School of Law. COPYRIGHT 2007 Gale Group.

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