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Assimilating the Interplay between Climate Change and Human Rights

By: Abhiraj Das and Nihal Deo |




Introduction-


Climate change is variations in the normal weather of a place. This can be differences in how much precipitation a place generally receives in a year or it could be a change in the temperature of a place in a season.[1] Human rights express the entitlement of all people to be treated equally, to live their lives in safety and freedom, and to be protected by their government. Human Rights are the rights that must be equally available with every human being for the sole reason of them being human. The idea of human rights is not very new, though the expression ‘Human Rights’ is relatively new. It is largely believed that human rights developed from natural rights, which derives its origin from natural law. The notion of forms of human rights has been constantly evolving and will continue to evolve. Although there cannot be an exact definition or description as to what all comes under human rights, there are certain features that are widely accepted and associated with the expression ‘Human rights’, some of them being inalienability, interdependence and indivisibility. Each and every human right is connected to the other and cannot be completely understood in isolation since all the aspects of life, whether it be social, economic or political, are connected and have an effect on each other. With the society undergoing constant change, the understanding and horizon of human rights are also changing and every such change in the society not only changes the scope of human rights but also puts different types of challenges to it.


The Relationship-


The relationship between climate change and human rights can be understood at two different levels. Firstly, the extent to which climate change per se causes human rights violations, and secondly, the correlation between climate change mitigating measures and human rights.


Human rights as has been recognised by international conventions and guaranteed under national Constitutions, get affected by climate change both directly and indirectly.[2] It also affects fundamental of all human rights, right to life. One of the direct effects of global warming is drought which impacts food security. Irregular rainfall and salination of lakes and rivers take toll on drinking water supplies. Island states are threatened of being wiped out by rising sea levels. It is estimated that by 2030 around 700,000 deaths would be caused just because of the climate change.[3] Climate change has led to increased incidences of respiratory and cardiovascular disease, malnutrition, stunting, wasting, allergies, injuries and mental illness. FAO has stated that“Climate variability and extremes are among the key drivers behind the recent uptick in global hunger and one of the leading causes of severe food crises.”[4]


UNEP report[5] has stated that climate change has prominent effects on freshwater resources, ecosystems, and human settlements. Access to shelter, food, clean water, and other basic human needs are being damaged by the changing climate. Displacing people and interfering with their livelihood are also the impacts of climate change. “Even if we remain within the international goal of 2° C of global warming, these impacts will expand dramatically in the coming decades” the report further says. Mitigation, adaptation, and geoengineering measures can also adversely affect the exercise of human rights. For example, hydroelectric and biofuel projects have led to human rights violations. There is also a high risk of human rights violations resulting from the implementation of resettlement programs for those who are displaced or at risk of displacement due to climate change.[6]


Impacts of Climate Change on Human Rights


Climate change poses several humanitarian problems and challenges. Due to climate change, resources such as water, food, land, clean air etc. get affected and become scarce. This leads to the exercise of fundamental human rights, such as the rights to life, health, water, food, housing, and an adequate standard of living getting seriously impinged. Over 2 billion people live in those countries which are facing a severe water crisis. It is being apprehended that the situation will more likely deteriorate as climate change intensifies and with an ever-increasing population, the demand for water will grow as well.[7]


Higher temperature results in an increase in the microbial decomposition of organic matter which severely affects the fertility of the soil in the long run.[8] With a continuous increase in global population, the pressure on agriculture produce is always increasing and if the production reduces then it will certainly deprive many of their Right to Food.


The recent Australian Bushfire is one such grave result of climate change. Although such things are a natural phenomenon, the scientists believe that the intensity of the fire was certainly due to climate change. This year itself saw a new temperature record in Australia where the average maximum of 41.90C was recorded on 18 December.[9] This is subsequent to a prolonged period of drought. Scientists always warn that the hotter and drier climate will result in an increase in frequency and intensity of such fires. Such fires are a threat to the most basic human rights, i.e., Right to Life, since the experts believe that lasting impact is with respect to air quality and people may die as well, especially those who are at the edge of lung capacity.[10]


It also results in displacement among people. Climate-related displacement and migration is set to be the biggest challenge of our generation.[11] There has been a view that displacements and migrations are not the same.


Climate-induced migrations, either permanent, long term or seasonal, are responses to ‘extensive climate risks’, as reported in many studies on individuals and households that migrated due to risks related to rainfall variability and livelihood insecurity[12]. While climate-induced displacements happen when people move suddenly and temporarily in the face of hydrological natural disasters (intensive climate risks) which make up for 90% of all-natural disasters[13]. Nevertheless, it is often the case that due to the perception of likely future risks, people’s displacements become permanent.[14]


Around 16.1 million people were displaced last year itself owing to the climate-related threats, including storms, cyclones, floods, droughts, wildfires and landslides.[15] It has been estimated that by 2050, about 150-200 million people will get permanently displaced because of droughts, floods and hurricanes.[16]


While the forced displacement and migration is per se violation of fundamental human rights to a peaceful settlement, etc., displacement and migration also often leads to deprivation of effective enjoyment of their human rights, including, inter alia, 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 the right to safe drinking water and sanitation. Besides these, migrants in an unusual condition have probabilities of being unduly susceptible to discrimination, exploitation and marginalization. Migrants more often than not have to live and work in the shadows. They are frightened to complain and bring to the knowledge of the concerned authorities regarding violations of their human rights and fundamental freedoms, as most of the time the authorities also are indulged in such incidences.


Human rights infringements against migrants can additionally comprise of a denial of economic, social and cultural rights such as the rights to health, housing or education, also civil and political rights like arbitrary confinement, torture, or absence of due process. The denial of migrants’ rights is every so often closely related to discriminatory laws and to entrenched mindsets of preconception or xenophobia.[17]


When it comes to policymaking aimed at mitigating climate change, human rights have become one of the factors which are kept in consideration. In Cancun 2010, the Parties to the UN Framework Convention on Climate Change agreed in Cancun decided that the “Parties should, in all climate change-related actions, fully respect human rights.”[18] On December 10, 2014, all 78 UN human rights mandate-holders came together to issue a joint statement underscoring the threat climate change poses to human rights, and unanimously called on States “to make sure that human rights are at the core of climate change governance.”[19]


SDGs & Human Rights-


The UN GA in 2015 adopted and launched the 2030 Agenda for Sustainable Development with 17 goals and 169 targets.[20] This the document pertains to the global and national policies relating to sustainable development. The goals and targets therein are unequivocally associated with human rights standards. The Preamble of the Agenda states that to realize the human rights of all is one of the aims.


Further, if the 17 Goals themselves are observed closely, the principles of human rights could be found to be innate to them. For instance, the SDGs looks into the availability, accessibility, affordability and quality of education, health, water and other amenities associated with those rights. Under para 19, it has been expressly mentioned that the importance of the Universal Declaration of Human Rights and other international instruments relating to human rights are reaffirmed. Goal 13 of the agenda is pertaining to climate action and talks about taking urgent action to combat climate change and its impacts. The human rights which can be said to be related are Right to health including the right to the safe, clean, healthy and sustainable environment[21], Right to adequate food & right to safe drinking water[22], Right of all peoples to freely dispose of their natural wealth and resources[23], inter alia.


Judicial Development in Cases Pertaining to Environment Related Human Rights Violations-


Whereas the relation between the environment and human rights is irrefutable, the role and obligations of the states in this regard and to prevent the tragic effects thereof are not so lucid. Courts of law have been approached with regards to actions of the state concerning climate change. The Urgenda case of the Netherlands could be referred to here. It was brought by citizens’ platform Urgenda, which endeavors for a swift shift towards a sustainable society[24] and has gained global attention. In 2015, the Hague District Court ordered the Dutch State to decrease greenhouse gas emissions by 25% by 2020.[25] It has been upheld by the Court of Appeals of The Hague.[26] In December 2019, the Dutch Supreme Court also held the previous decisions as valid and upheld the reasoning as well.[27]


The Court of Appeals has decided that the present steps taken by the Dutch government to battle climate change are inadequate in the light of the obligations that State has under Articles 2 (Right to life) and 8 (Right to respect for private and family life) of the European Convention on Human Rights (‘ECHR’). The Court of Appeals had invoked the duty of care by citing different facts and scientific evidences, and held that “it is appropriate to speak of a real threat of dangerous climate change, resulting in the serious risk that the current generations of citizens will be confronted with the loss of life and/or a disruption of family life”.[28] The court took note that the European Court of Human Rights (ECtHR) has recognized the precautionary principle in the 2009 case of Tâtar v. Romania.[29]The focus on procedural protection has also been made by ECtHR that the decision-making process resulting in activities which would adversely impact the environment should include apposite facts and studies so as to predict this effect and strike a fair balance between the conflicting interests involved.[30]


ECtHR looks into matters where individuals or groups of individuals claim that there has been an impediment with their rights. This is in consonance with the ‘interpretative hurdles’ which has been recognized by ECtHR in the case of Fadeyeva v. Russia, wherein it was decided that ‘complaints relating to environmental nuisances have to show, firstly, that there was an actual interference with the applicant’s private sphere, and secondly, that a level of severity was attained’.[31] There have been cases wherein large-scale and future-oriented protection has been offered like in the 2019 case of Cordello and Others v. Italy, where 180 applicants complained about the risks of toxic emissions of a nearby steelwork for their health and the environment,[32]


‘Climate litigation’ has become a worldwide phenomenon. For example, in New Zealand, while appealing against the refusal of refugee status, it was also contended that in deportation there is the risk that negative impact of climate change would be suffered.[33] In one of the Pakistani case concerning farmer, it was held that the fundamental rights of the citizens are being violated due to the delay on the government’s part in effecting national climate change policies.[34] Inter-American Commission on Human Rights is also seeing cases regarding the rights of Arctic Athabaskan peoples being violated because of rapid Arctic warming resulting from Canada’s carbon, and similarly, the expansion of the Heathrow International Airport has been challenged before a UK court citing insufficient consideration of State’s climate change commitments.[35]


Irish High Court is dealing with a case by Friends of the Irish Environment (FIE), wherein the government’s consent to a National Mitigation Plan in 2017 has been challenged for being violative of, besides national law, its obligations under the ECHR.[36] In 2018, a case was initiated in France by four NGOs relating to the question of ‘whether the State’s failure to take further climate action violates its duty to act (also) in light of the ECHR’.[37] Similar litigations could be found around the globe, like in the Philippines [38], Germany[39], Canada,[40] Belgium,[41] and pending before the European Court of Justice.[42] In Juliana v. the United States, it was explicitly held that young people could pursue constitutional claims to compel climate action.[43]


A variety of human rights entitlements are being prayed in climate litigations, and jurisdictions vary significantly with respect to their standing requirements and how they are interpreted.


Interpretation by Indian judiciary-


As early as in 1996, the Supreme Court of India in Vellore Citizens Welfare Forum vs.UOI,[44]had the opportunity to determine whether the right to fresh air is a constitutional right. The court held that a person’s right to fresh air, clean water, and the pollution-free environment is to be protected by the Constitutional and statutory provisions. However, it was further added that the source of these rights is the inalienable common law right of a clean environment. Article 21 of the Constitution guarantying protection of life and personal liberty was interpreted to include within itself the right to fresh air. Supreme Court, besides this, declared that absolute liability under “polluter pays” principle would include both the compensation to the victims and the cost of restoring the environmental degradation, reversing the damaged ecology is part of ‘sustainable development’, the court had held.

In the case of Bombay Dyeing Co. v. Bombay Environmental Action Group [45], SC expanded the purview of judicial review of any statute when the statute appears to be infringing upon environmental aspect resulting to the application of article 14 and 21. Where the question concerns enforcement of human rights or environmental aspects, Court takes recourse to “creative interpretation which leads to the creation of new rights”. Article 21 can be interpreted to include the right to environmental protection.


SC firmly stated in Enviro Legal Action v. UOI [46] that while economic development should not take place at the cost of ecology or by causing widespread environmental destruction and violation; at the same time the inevitability to preserve ecology and environment should not impede economic and other developments. The development and environment necessarily go together, i.e., there should not be development at the cost of environment and vice versa, but in consonance with each other.



Conclusion and Recommendations-


The effects of climate change and the degrading environment on human rights has grown many folds. Both direct and indirect impacts have been reported by international organisations. Government’s actions and steps aimed at mitigating the effects on human rights itself sometimes end up to be going against the human rights standards. The ‘climate litigation’ has increased around the world which seeks the court’s direction to governments for better and effective implementation of measures, and which meet the universal standards of human rights.


To formulate more sound policies in this regard besides the international reports, every individual state should also carry out more quantitative research and analysis should be done of the impacts of every aspect of climate changes on human rights at the micro-level. Every nation must strive for efficient implementation of Sustainable Development Goals. There should be no international boundaries in the enforcement/implementation of these climate change policies since the impact is also connected. States should cooperate with each other in dealing with the issue of Climate Change and Human Rights. At the national level, supervisory power should be given to the judiciary. The tribunals should be mandatorily set up and it should be given more powers to keep a check and penalize the actors who harm the environment, not just from an environmental perspective, but also for other harms it causes, such as human rights violations. Establishment of an independent system which would evaluate the measures taken by the states or the private actors and assess human rights effects in this regard may go a long way. The UN bodies or COP could ensure its operation. Global organisations may release guidelines and declarations requiring countries to include in their UPRs climate-associated considerations to ensure human rights accountability.


***

Authors are the students of Gujarat National Law University, Gandhinagar.


[1]What Is Climate Change?, NASA (May 14, 2014), https://www.nasa.gov/audience/forstudents/k-4/stories/nasa-knows/what-is-climate-change-k4.html [2]Human Rights Council A/HRC/RES/18/22 (Oct. 17, 2011). https://www.ohchr.org/Documents/Issues/ClimateChange/A.HRC.RES.18.22.pdf [3]DARA and the Climate Vulnerable Forum, Climate Vulnerability Monitor: A Guide to the Cold Calculus of a Hot Planet17 (2nd ed. 2012), https://daraint.org/wp-content/uploads/2012/09/CVM2ndEd-FrontMatter.pdf [4]FAO, IFAD, UNICEF, WFP and WHO, The State of Food Security and Nutrition in the World 2018. Building climate resilience for food security and nutrition(FAO, Rome), http://www.fao.org/3/i9553en/i9553en.pdf [5]Climate Change and Human Rights (UNEP2015),https://wedocs.unep.org/bitstream/handle/20.500.11822/9530/-Climate_Change_and_Human_Rightshuman-rights-climate-change.pdf.pdf?sequence=2&amp%3BisAllowed= [6]Id. [7]United Nations, Sustainable Development Goal 6: Synthesis Report on Water and Sanitation (2018), SDG6_SynthesisReport2018_WaterandSanitation_04122018 [8]Impact of Climate Change on Crop Production,http://www.ciesin.org/TG/AG/cropprod.html [9]How did Australia fires start and what is being done? A very simple guide, BBC News (Jan. 7, 2020) https://www.bbc.com/news/world-australia-50980386 [10]Alyx Gorman, Doctors warn people may die as public health impact from Australian fire pollution bites, The Guardian (Jan. 3, 2020), https://www.theguardian.com/australia-news/2020/jan/04/doctors-warn-people-may-die-as-public-health-impact-from-australian-fire-pollution-bites [11]Maram Ahmed,How climate change exacerbates the refugee crisis – and what can be done about it,World Economic Forum (June 20, 2019),https://www.weforum.org/agenda/2019/06/how-climate-change-exacerbates-the-refugee-crisis-and-what-can-be-done-about-it/ [12]Wilkinson A.et al., Climate-induced migration and displacement: closing the policy gap(London, Overseas Development Institute (ODI) 2016)cited in Miletto, M., et al., Migration And Its Interdependencies With Water Scarcity, Gender And Youth Employment 11(WWAP. Paris, UNESCO. 2017), https://www.womenforwater.org/uploads/7/7/5/1/77516286/migration_and_its_interdependencies_with_water_scarcity_gender_and_youth_employment_unesco_wwap_2017.pdf [13] WWAP (World Water Assessment Programme). The United Nations World Water Development Report 2012: Managing Water under Uncertainty and Risk (Paris, UNESCO). [14] Warner, K. 2010 Global Environmental change and migration: Governance challenges. Global Environmental Change, 20(3): 402 –413. doi.org/10.1016/j.gloenvcha.2009.12.001 [15]UNHCR warns of growing climate-related displacement in Somalia,UNHCR India (June 4, 2019), https://www.unhcr.org/news/briefing/2019/6/5cf61d304/unhcr-warns-growing-climate-related-displacement-somalia.html [16]UNCCD (United Nations Convention on Combat Desertification), Migration and desertification. UNCCD thematic fact sheet series No. 3(2012), www.unccd.int/Lists/SiteDocumentLibrary/Publications/Desertificationandmigration.pdf [17]Migration and Human Rights, UN Human Rights Office of the High Commissioner,https://www.ohchr.org/EN/Issues/Migration/Pages/MigrationAndHumanRightsIndex.aspx [18]Climate Change and Human Rights vii (UNEP 2015),https://wedocs.unep.org/bitstream/handle/20.500.11822/9530/-Climate_Change_and_Human_Rightshuman-rights-climate-change.pdf.pdf?sequence=2&amp%3BisAllowed= [19]Id. [20]UN GA Res. A/RES/70/1, Transforming our world: the 2030 Agenda for Sustainable Development (Oct. 21, 2015). [21] UDHR art. 25(1); ICESCR art. 12. [22] UDHR art. 25(1); ICESCR art. 11. [23] ICCPR, ICESCR art. 1(2). [24]See www.urgenda.nl. The name Urgenda is the result of merging the words ‘urgent’ and ‘agenda’. [25]District Court The Hague, 24 June 2015, ECLI: NL: RBDHA:2015:7196. [26]Court of Appeals The Hague, 9 October 2018, ECLI: NL: GHDHA:2018: 2610 (Urgenda). [27]Landmark Decision by Dutch Supreme Court, Urgenda, https://www.urgenda.nl/en/themas/climate-case/ [28]Urgenda (n 4), ¶ 45. [29]Tâtar v. Romania, App.No. 67021/01 (ECtHR 27 January 2009). [30]Taşkin&Ors.v. Turkey, App.no. 46117/99 (ECtHR 30 March 2005). [31]Fadayeva v. Russia, pg. 21, ¶ 103. [32]Cordella&Ors. v. Italy, App. nos. 54414/13 and 54264/15 (ECtHR 24 January 2019). [33]Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107. [34]Leghari v. Federation of Pakistan, W.P. No 25501/2015 (Lahore High Court, 4 September 2015). [35]Plan B Earth v. Secretary of State for Transport, Claim no CO/3149/2018. [36]Friends of the Irish Environment v. Ireland. [37]Notre Affairs à Tous and Others v. France. [38]In re Greenpeace Southeast Asia and Others (Philippines), Case No CHR-NI-2016-0001. [39]Friends of the Earth Germany, Association of Solar Support and Others v. Germany. [40]Environnement JE Unesse v. Canada, No 500-06. [41]VWZ Klimaatzaak v. Kingdom of Belgium and Others. [42]Armando Ferrão Carvalho and Others v The European Parliament and the Council, Case T-330/18 [2018]. [43]Juliana et al. v. USA, Case No. 6:15-cv-01517-TC, [United States District Court for the District of Oregon, 10 November 2016]. [44]Vellore Citizens Welfare Forum v. UOI &Ors., AIR 1996 SC 2715. [45]Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC 434. [46]Enviro Legal Action v. UOI, (1996) 5 SCC 281.

Image source- United Nations Development Programme in Europe and CIS

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