HUMAN RIGHTS AND CLIMATE CHANGE
Submission to the Office of the United Nations
High Commissioner for Human Rights
September 30, 2008
Executive Summary
The Human Rights Council’s consideration of the relationship between climate change and human rights is extremely timely. The international community is currently negotiating a successor agreement to the Kyoto Protocol, aimed at stabilizing greenhouse gas (GHG) concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. It is expected that the successor to the Kyoto Protocol, to be adopted in Copenhagen in 2009, will not only renew GHG emissions reduction commitments for developed “Annex I” States, but will also establish appropriate mitigation actions by developing country Parties[1] in the context of sustainable development, address adaptation actions and response strategies, and provide financial and technological assistance to support action on mitigation and adaptation.
The negotiation process presents a unique opportunity to highlight the human rights implications of climate change and to ensure that the resulting agreements provide the greatest protection possible for those rights, both in mitigation and adaptation strategies. Given the expertise of the Officer of the High Commissioner for Human Rights (OHCHR) and the Human Rights Council in the field of human rights, the possibilities for synergy between the UNFCCC and the human rights framework, and the Bali Action Plan’s call for consideration of the “economic and social consequences of response measures,” there is an important role for these key human rights institutions to play throughout the Bali to Copenhagen process. However, these negotiations are targeted to be completed by the end of 2009. It is therefore crucial that the OHCHR and the Human Rights Council not delay in offering guidance to the international community as it contemplates action in response to the climate crisis.
According to the Intergovernmental Panel on Climate Change (IPCC), climate change is unequivocal and extremely likely to have significant adverse impacts on the enjoyment of human rights worldwide. The IPCC has warned that climate change impacts will impact human rights through harm to fresh water resources, ecosystems, food and other agricultural products, coastal systems and human health.[2] Many of these impacts will have a profound effect on human populations and will threaten the enjoyment of fundamental human rights. For example, the IPCC projects that climate change could cut yields from rain-fed crops in parts of Africa by 50% by as early as 2020 and put 50 million more people worldwide at risk of hunger. Almost half a million people today live on islands that are threatened with extinction by sea-level rise, and up to one billion people could face water shortages in Asia by the 2050s due to melted glaciers. As a result, climate change is likely to cause large-scale population displacement both within and across borders. These impacts threaten the human rights of millions of people, including the rights to life, health, water, food, a means of subsistence, and culture. Indeed, many of these impacts are already being experienced by communities around the world, and are disproportionately felt by vulnerable groups including indigenous peoples, the poor, and children.
In addition to the impacts that climate change will have on human rights, some of the mechanisms for reducing GHG concentrations currently under discussion at the post-Kyoto negotiations have the potential to negatively impact the rights of vulnerable persons. For example, competition for land from biofuels may create pressure on food prices, impacting the right to food. Among other topics, the negotiations will address adaptation assistance, incentives to reduce deforestation and preserve carbon sinks, and the issue of differentiated responsibility between developed and developing States. Without careful consideration of how proposed mitigation measures might themselves affect vulnerable communities, these measures also threaten to curtail the enjoyment of human rights.
The human rights implications of climate change and potential climate solutions give rise to certain obligations, both on the part of States by virtue of their international human rights obligations and on the part of the international institutions tasked with promoting the full realization of human rights worldwide. Human rights law imposes on States the obligation to “respect and ensure” the rights guaranteed in the human rights treaties, and to take the steps necessary to give effect to the rights recognized.[3] The obligation to respect and ensure human rights – including the rights to life, health and security, food, water, a means of subsistence, and culture – imposes on States the duties:
· to refrain from interfering with people’s enjoyment of human rights;
· to prevent human rights violations by third parties;
· to provide an effective remedy in the event that the guaranteed rights are violated;
· to guarantee a core minimum enjoyment of human rights, and to take action towards the full realization of these rights;[4]
· not to discriminate in the protection of human rights;
· to ensure participation in, and access to information relating to, the decision-making processes that affect people’s lives and well-being; and
· to cooperate internationally to prevent the infringement and promote the progressive realization of human rights.
Pursuant to these duties, the impact of climate change on human rights gives rise to a number of State obligations. The precise contours of the human rights obligations of any given State will depend on a number of factors, including rules of international environmental law specifically relevant to climate change such as the principle of common but differentiated responsibility, the precautionary principle, the prohibition against causing transboundary environmental harm, and the polluter pays principle. It is nevertheless useful to differentiate between the obligations of “major emitting” States (those that are the primary source of historical and current greenhouse gas emissions) and those States, predominantly developing States, that will be most impacted by climate change.
First, all States, both the major emitters and those likely to be severely impacted by climate change, have certain obligations under international human rights law, including the duty to prevent human rights violations resulting from the effects of climate change; the obligation to guarantee a core minimum level of human rights in the face of a changing climate; and the establishment of procedures for access to information relating to, and public participation in the development of, efforts to address climate change and the resulting human rights impacts. Moreover, all States have an obligation to cooperate internationally to conclude an international climate change agreement that achieves the maximum possible protection of human rights.
In addition to these fundamental human rights obligations, major emitting States have a duty to prevent transboundary environmental harm, the responsibility to regulate third party emitters within their jurisdiction or control in order to do so, and an obligation to remedy human rights violations that may result despite these efforts. Major emitting States also have the obligation to provide international support to developing States as they strive to achieve full realization of human rights and adapt to the challenges of climate change.
Although major emitting States have primary legal responsibility for global mitigation of GHGs and other climate forcing pollution and for assisting in adaptation to the effects of climate change, developing States may also be required to take feasible mitigation action in the context of sustainable development, and enabled by technology, financing and capacity-building assistance from developed countries. Impacted States also have the responsibility to devote resources to adaptation and assistance for citizens impacted by climate change in order to guarantee the core minimum level of human rights protection. Such adaptation assistance must be implemented according to the principle of nondiscrimination, and must allow for public participation in the development and execution of such measures.
The international human rights institutions, particularly the Human Rights Council and the OHCHR, have a vital role to play in contributing a rights-based perspective to the international efforts to address climate change and ensuring that States comply with the international law obligations generated by the human rights impacts of climate change. The ongoing climate negotiations present a unique opportunity to do so. The participation of the international human rights institutions in the negotiations would enable human rights experts to:
· Highlight the human rights impacts of climate change so that the negotiating Parties are fully aware of the human rights impacts of climate change and potential climate solutions and the obligations under international law that such human rights impacts give rise to;
· Encourage the negotiating parties to commit to emissions reductions stringent enough to keep atmospheric carbon concentrations at a level that will avoid the more severe climate change projections, thus preventing many potential human rights impacts;
· Promote the creation of mechanisms to provide relief to those whose human rights are threatened by climate change;
· Provide advice to negotiators concerning the inadvertent or unanticipated human rights impacts of proposed mitigation measures; and
· Advocate for inclusion of procedural safeguards guaranteeing rights of information and participation in compliance and enforcement mechanisms that are essential to ensuring an open, transparent, and just system for addressing the human rights impacts of climate change.
In the interest of accomplishing these goals, Earthjustice respectfully recommends that the OHCHR and the Council:
1. Formally recognize that climate change will have a dramatic impact on the enjoyment of human rights, particularly among vulnerable populations.
2. Appoint a Special Rapporteur on the issue of climate change and human rights.
3. Appoint a representative to the Bali to Copenhagen negotiations to represent human rights concerns.
4. Propose mechanisms for increased cooperation and communication between the UNFCCC and the UN human rights systems.
5. Call on all UNFCCC negotiators to be aware of the possibility that climate change mitigation measures might impact the enjoyment of human rights and to avoid such unintended consequences.
6. Call on all UN bodies, and in particular the international and regional human rights tribunals, to consider the human rights impacts of climate change.
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[1] The Bali Action Plan, which sets a roadmap for the negotiations, provides that the negotiating parties will consider “Nationally appropriate mitigation actions by developing country Parties in the context of sustainable development, supported and enabled by technology, financing and capacity-building, in a measurable, reportable and verifiable
manner.” UNFCCC, Revised Draft Decision CP.13, ¶ 1(b)(ii), FCCC/CP/2007/L.7/Rev.1 (Dec. 14 2007) [hereafter Bali Action Plan].
[2] The IPCC also reviews impacts to industry. Although damages to industry and infrastructure could have impacts on such human rights as the right to work, right to housing, and the right to an adequate standard of living, this category of impacts is beyond the scope of this report.
[3] A State’s responsibility for human rights violations is not limited to violations within its borders. International human rights tribunals and scholars recognize that “it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.” UN Committee on Civil and Political Rights, Saldias de Lopez v. Uruguay, UN GAOR, 36th Sess., Supp. No. 40, UN Doc. A/36/40 (1981), at 183. In the context of climate change, this principle is supported by the well-established prohibition on States permitting the use of their territory in such a way as to cause transboundary environmental harm.
[4] The principle of progressive realization of human rights recognizes that although many rights – such as the right to health, food, and a means of subsistence – are currently not fully enjoyed by many people around the world, States must “move as expeditiously and effectively as possible towards that goal” of full realization by taking steps including “the adoption of legislative measures” as well as “administrative, financial, educational, and social measures.” Committee on Economic, Social and Cultural Rights, General Comment 3, ¶ 9, U.N. Doc. E/1991/23 (Dec. 14, 1990).