HUMAN RIGHTS AND CLIMATE CHANGE-I

RIGHT TO LIFE  

A number of observed and projected effects of climate change will pose direct and indirect threats to human lives. IPCC AR4 projects with high confidence an increase in people suffering from death, disease and injury from heat-waves, floods, storms, fires and droughts. Equally, climate change will affect the right to life through an increase in hunger and malnutrition and related disorders impacting on child growth and development; cardio-respiratory morbidity and mortality related to ground-level ozone.

Climate change will exacerbate weather-related disasters which already have devastating effects on people and their enjoyment of the right to life, particularly in the developing world. For example, an estimated 262 million people were affected by climate disasters annually from 2000 to 2004, of whom over 98 per cent live in developing countries. Tropical cyclone hazards, affecting approximately 120 million people annually, killed an estimated 250,000 people from 1980 to 2000. Protection of the right to life, generally and in the context of climate change, is closely related to measures for the fulfilment of other rights, such as those related to food, water, health and housing.

RIGHT TO ADEQUATE FOOD 

As a consequence of climate change, the potential for food production is projected initially to increase at mid to high latitudes with an increase in global average temperature in the range of 1-3° C. However, at lower latitudes crop productivity is projected to decrease, increasing the risk of hunger and food insecurity in the poorer regions of the word. According to one estimate, an additional 600 million people will face malnutrition due to climate change, with a particularly negative effect on sub-Saharan Africa. Poor people living in developing countries are particularly vulnerable given their disproportionate dependency on climate-sensitive resources for their food and livelihoods. The realization of the right to adequate food requires that special attention be given to vulnerable and disadvantaged groups, including people living in disaster prone areas and indigenous peoples whose livelihood may be threatened.

(Based on the Report Office of the United Nations High Commissioner for Human Rights A/HRC/10/6, 15 January 2009)

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UNDERSTANDING CLIMATE CHANGE AND ITS IMPACT

The detection of climate change is the process of demonstrating that an observed change is significantly different from what can be explained by natural variability. It does not necessarily imply that its causes are understood. The climate change can be attributed to anthropogenic causes and at the same time there are non-climate drivers such as land use, land degradation, urbanisation and pollution, affect systems directly and indirectly through their effects on climate.

The socio-economic processes that drive land-use change include population growth, economic development, trade and migration, which are proceeding at an unprecedented rate in India. Land-use changes hamper range-shift responses of species to climate change, leading to an extra loss of biodiversity. Additional land-use changes have been linked to changes in air quality and pollution taht affect the greenhouse process itself. It can also strongly magnify the effects of extreme climate events, e.g., heat mortality, injuries/fatalities from storms, and ecologically mediated infectious diseases.

There are also a large number of socio-economic factors that can influence, obscure or enhance the observed impacts of climate change and that must be taken into account when seeking a climate signal or explaining observations of impacts and even adaptations. For example, the noted effects of sea-level rise and extreme events are much greater when they occur in regions with large populations, inadequate infrastructure, or high property prices. The observed impacts of climate change on agriculture are largely determined by the ability of producers to access or afford irrigation, alternate crop varieties, markets, insurance, fertilisers and agricultural extension, or to abandon agriculture for alternate livelihoods. Demography (e.g., the elderly and the very young), poverty (e.g., malnutrition and poor living conditions), preventive technologies (e.g., pest control and immunisation), and healthcare institutions influence the impacts of climate change on humans.

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HUMAN RIGHTS FRAMEWORK AND CLIMATE CHANGE

(Based on the Report Office of the United Nations High Commissioner for Human Rights A/HRC/10/6, 15 January 2009)

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.

Irrespective of whether or not climate change effects can be construed as human rights violations, human rights obligations provide imprtant protection to the individuals whose rights are affected by climate change or by measures taken to respond to climate change.

Under international human rights law, individuals rely first and foremost on their own States for the protection of their human rights. In the face of climate change, however, it is doubtful, for the reasons mentioned above, that an individual would be able to hold a particular State responsible for harm caused by climate change. Human rights law provides more effective protection with regard to measures taken by States to address climate change and their impact on human rights.

For example, if individuals have to move away from a high-risk zone, the State must ensure adequate safeguards and take measures to avoid forced evictions. Equally, several claims about environmental harm have been considered by national, regional and international judicial and quasi-judicial bodies, including the Human Rights Committee, regarding the impact on human rights, such as the right to life, to heath, to privacy and family life and to information.

Similar cases in which an environmental harm is linked to climate change could also be considered by courts and quasi-judicial human rights treaty bodies. In such cases, it would appear that the matter of the case would rest on whether the State through its acts or omissions had failed to protect an individual against a harm affecting the enjoyment of human rights. In some cases, States may have an obligation to protect individuals against foreseeable threats to human rights related to climate change, such as an increased risk of flooding in certain areas.

While international human rights treaties recognize that some aspects of economic, social and cultural rights may only be realized progressively over time, they also impose obligations which require immediate implementation. First, States parties must take deliberate, concrete and targeted measures, making the most efficient use of available resources, to move as expeditiously and effectively as possible towards the full realization of rights. Second, irrespective of resource limitations, States must guarantee non-discrimination in access to economic, social and cultural rights. Third, States have a core obligation to ensure, at the very least, minimum essential levels of each right enshrined in the Covenant.

In sum, irrespective of the additional strain climate change-related events may place on available resources, States remain under an obligation to ensure the widest possible enjoyment of economic, social and cultural rights under any given circumstances. Importantly, States must, as a matter of priority, seek to satisfy core obligations and protect groups in society who are in a particularly vulnerable situation.

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LEGAL DISCOURSE ON CLIMATE CHANGE

While the final outcome of the international negotiation on climate change is still being debated and anticipated, the impacts have started affecting millions of people in developing and least developed countries and extremely vulnerable countries. The government of Tuvalu is looking to settle its entire population to save them from submergence due to impacts of climate change. It is also contemplating legal action against Australia and other developed countries to claim compensation. Even in the developing countries, the change in precipitation patterns and increased frequency of extreme climatic events is severely affecting a range of rights of people including the right to life, for which there does seem to be absolutely no responsibility on the part of the state or the international community. The UNFCCC and Kyoto Protocol which are the main architecture of climate change law, does not provide any binding commitments on part of developed countries or developing countries to protect their populations from impacts of climate change. There is absolute dearth of legal entitlements even in the national and domestic legal framework of countries. This forms the major handicap in taking up legal action against the state of developed countries making them own the impacts of climate change.

However, despite the minimal legal framework there is an increasing number of actions in the realm of climate change being brought in courts of different countries against the national governments or foreign governments and even against non state actors. These legal actions are aimed at compelling the national governments to reduce GHG emissions; they are also seeking to hold state, foreign country and non state actors liable for the impacts, nuisance and negligence and rights violations. While in one large case victims of hurricane Katrina have brought action against oil and coal companies and chemical manufacturers for exacerbating climate change impacts, in Mss. vs. EPA a US Court admitted an action against the EPA and ruled that “harms associated with climate change are well recognized” and “causal connection between manmade GHGs and global warming” (Massachusetts, et al. v. Environmental Protection Agency, et al). In Canada, Friends of the Earth Canada has launched a landmark lawsuit against the Government of Canada for abandoning its international commitments under the Kyoto Protocol. Filed in Federal Court in Ottawa by Canada’s foremost environmental law organization, Sierra Legal, the lawsuit alleges that the federal government is violating Canadian law by failing to meet its binding international commitments to reduce greenhouse gas emissions. In Argentina, after the 2003 Santa Fe floods in Argentina which killed many people and caused millions of dollars of damage, citizens have successfully used Article 6 of the UN Framework Convention on Clima te Change to reveal official failure to adapt to climate change. The legal action has so far revealed that infrastructure changes needed to protect people had been drawn up but not acted upon by the authorities (Stuart M. Feinblatt and Monique Cofer, New Jersey Law Journal, March 13, 2007). In Nigeria, Communities in the Niger Delta region of Nigeria are suing the Nigerian Government and multinational oil companies (Shell, Exxon, Agip, Chevron and Total) over the continuous flaring of gas for over 40 years.

It is estimated that more than 250 cases related to climate change and global warming are lying in different courts in the US. While there are still obstacles of causation and attribution in bringing legal action against the state; the increasing number of legal actions show that there are a number of provisions which can be invoked against the state to bring an end to its inaction on climate change, identify climate cange as a policy imperative and take initiatives to address violations of rights due to climate change impacts.

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PEOPLE’S JURISPRUDENCE ON CLIMATE CHANGE

The National People’s Tribunal will develop Peoples jurisprudence on climate change. Despite the deficient legal framework on climate change laws, increasing number of action in courts in different countries prove that there are enough provisions in the Public and private international law and domestic legislations to attempt bring accountability on the national governments to protect people from the climate change impacts. The most popular case in point is Inuit’s case where indigenous people bordering USA and Canada brought an action in American Commission on Human Rights (Petition to the Inter American Commission on Human Rights seeking relief from violations resulting from global warming caused by acts and omissions of the United States, ICC Petition, 7 December 2005). The petition sought relief from violations of the human rights of Inuit resulting from global warming caused by greenhouse gas emissions from the United States. Many similar actions on climate change might not succeed in the absence of proof of causation; however, they show a rising public and juridical opinion to seek legal redress to impacts of climate change. In the circumstances, it is only desirable that more such actions are brought to judicial, quasi judicial and peoples forum.

In this regard a National Peoples' Tribunal is being organized collectively by a number of organizations under the coordination of Pairvi, CECOEDECON, Oxfam India, SADED and Beyond Copenhagen. The National Peoples' Tribunal will develop peoples' jurisprudence on climate change by exploring legal spaces available to generate state accountability to mitigate and protect people from climate change impacts. Besides, it would also send a strong message to the developed countries to conclude a fair and just climate deal. While the Tribunal will assert the rights of developing countries to seek assistance from developed countries on account of their historical role in bringing about climate crisis, it will also look into the possibility of invoking existing legal provisions and statute for restitution of critical rights of people in the national framework and advocate for an improved legal and regulatory mechanism on climate change.

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