Human Rights and Climate Change - 2

International Human Rights as an Instrument for Measures of Equalization?

Abstract

This paper deals with the linkage of international human rights and climate change. It focuses on the approach to deduce legal claims in the form of compensations and concrete measures from international human rights in the course of impairments through climate change.

This paper shall give a short overview on the issue climate change in general, including its causes, effects and the current political strategies. It furthermore provides a synopsis on how human rights are impaired by global warming and climate change effects.

Unfortunately, this essay will come to the conclusion that the international human rights approach struggles with functioning as a solitary legal basis in that context and with stepping beyond the just moral implication. Human rights’ legislative potential rather lies 'in the development of more encompassing and more inclusive legal and political strategies. Human rights may advisably be instrumentalized to strengthen political debates and be used as an incitement to set up enforceable and balanced agreements on reasonable measures of equalization and support.

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International  Human Rights as an Instrument for Measures of Equalization?  

Contents   

Abstract   2

Chapter 1  Introduction  5

A.  The Global Warming and its Causes  7

B.  Effects and Consequences  8

C.  Copenhagen’s 2 Degree Goal  10

Chapter 2  Climate Change as a Legal Matter  11

A.  Human Rights Implications of Climate Change  11

B.  Human Rights  13

I.  The Human Rights System  13

II.  Specific International Human Rights  

in  the Context of Climate Change  15

1.  The Right to Life  16

2.  The Right to Food  16

3.  The Right to Water  17

4.  The Right to Adequate Housing  17

5.  The Right to Health  18

6.  The Right to Self-Determination,  

and  Indigenous Rights  18

7.  The Right to Information, Participation,  

and  Access to Decision Making  19

III.  Human Rights-based Cases  

on  Environmental Issues  19

1.  Lopez Ostra v Spain  19

2.  Oneryildiz v Turkey  20

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International Human Rights as an Instrument for Measures of Equalization?

Chapter 3 Systematic Analysis of the Human Rights Approach 21

I. Legally Protected Goods and Legal Norms 22 II. Violating Actions 22 III. Causation and Accountability 22 IV. Compensation, Sentences, and Remedies 24 V. General Criticism on the International Human Rights Approach 24

Chapter 4 Conclusion 28

Bibliography 32

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International Human Rights as an Instrument for Measures of Equalization?

Climate change is gradually divorcing us from our land and eroding our subsistence way of life. Please think for a moment how you would react if climate change threatened your very existence as a distinct people.” 1

- Sheila Watt-Cloutier, Chair, Inuit Circumpolar Conference -Climate change, with its varied ecological, economic, and social consequences and impending dramatic effects all over the world, as hurricanes, floods, droughts, and stampedes, is already in the center of public awareness for several decades. The international focus regarding the connection between climate change and human rights, by contrast, is a fairly recent issue. Only since 2005, have a small number of communities, vulnerable states, indigenous groups, and nongovernment organizations, begun to seriously address their concerns with regard to climate change and human rights to the public at large. ² The dominating motive

¹ Sara C.Aminazadeh “A Moral Imperative: The Human Rights Implications of Climate

Change” (2007) 30 Hastings Int’l & Comp L Rev 231 at [243] referring to Informal Meeting

to Discuss the Arctic Climate Impact Assessment, Svalbard, Norway (August 6th, 2003)

“Climate Change in the Arctic: Perspectives of Indigenous Peoples”.

² In December 2005, an alliance of Inuit from Canada and the United States filed a petition

with the Inter-American Commission on Human Rights. The petition stated that the human

rights of the plaintiffs had been infringed and alleged that they were being further violated

due largely to the failure of the United States to curb its greenhouse gas emissions. Although

the petition was rejected in November 2006, the Commission subsequently followed up on the

issue. In February 2007, the Inuit alliance has been invited together with representatives of

the Center for International Environmental Law and Earthjustice to provide testimony on the

link between global warming and human rights at a hearing organized by the Inter-American

Commission on Human Rights. See Martin Wagner, Donald M. Goldberg “An Inuit Petition

to the Interamerican Commission on Human Rights for Dangerous Impacts of Climate

Change” (2004) as well as

the press release by CIEL “An Inuit Case” (2008)

.

Also, in November 2007, the Maldives convened a Small Island States Conference to

address the effects and implications of the climate change. The convention agreed on a

consented paper - the Malé Declaration on the Human Dimension of Global Climate Change -explicitly stating that “climate change has clear and immediate implications for the full

enjoyment of human rights". The Declaration hereby addressed to the United Nations human

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International Human Rights as an Instrument for Measures of Equalization?

for an amplification of concern with the issue was a general frustration on the part of vulnerable communities regarding the slow pace of progress by international and national authorities. This frustration was enhanced by the knowledge that those most likely to suffer from the impacts of climate change are nations and groups contributing least to the problem. ³ Undoubtedly, greenhouse gas emissions in developed countries take the major share of the problem. While the fifty least developed nations contribute less than 1 percent of global carbon emissions, ⁴ the three countries with the highest per capita emission are Canada, the United States and Australia, with almost double the average per capita emissions than other developed countries and 10 to 30 times the emissions of many developing nations. Even more unpleasant, while Australia finally ratified the Kyoto Protocol in 2007, to this day, the United States, although a signatory of the Protocol, still refuses to officially ratify it. The proclaimed reason for its behavior is potential economic hardship for the country caused under the execution of the Protocol. ⁵ Aiming to redress the present lack of mechanisms of influence and accountability, the aforementioned vulnerable communities are pressuring the leading industrial nations on the basis of existing human rights agreements. This paper will analyze on whether human rights in general can be used as an instrument in the discussion on implementing intensified measures of participation, adaptation and mitigation on climate change legislation and policies. It will also refer to the question whether the construct of international human

rights system. The Malé Declaration was finally presented at the Thirteenth Conference to the

United Nations Framework Convention on Climate Change in Bali and acknowledged by the

Deputy United Nations High Commissioner for Human Rights. See Small Island States

Conference, Male, Maldives “Declaration on the Human Dimension of Global Climate

Change” (2007) and

Maumoon Abul Gayoom, President of the Maldives, addressing at 13th Session of the

Conference of the Parties of the UNFCCC (2007)

as well as Kyung-wha Kang, Deputy United

Nations High Commissioner for Human Rights (2007)

.

³ United Nations “Report of the Office of the United Nations High Commissioner for

Human Rights on the relationship between climate change and human rights” A/HRC/10/61

(2009) at [10].

⁴ IPCC “Climate Change 2007: Synthesis Report” (2007) at [3]

.

⁵ Meinhard Doelle “Climate Change and Human Rights: The Role of the International

Human Rights in Motivating States to Take Climate Change Seriously” (2004) 1 MqJICEL

179 at 180.

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International Human Rights as an Instrument for Measures of Equalization?

rights is adequate to enforce not only actions on the macroscopic level, as setting up trans-national rules, for example, on carbon dioxide emissions, but also on the microscopic level by regulations as on granting citizenships or asylum in case of displacement caused by climate change impacts.

Firstly, this paper will provide an introduction and a rough statistical overview of the current effects and the future estimations of consequences caused through climate change. It will point out the areas of highest impact and the most vulnerable groups affected by its ramifications.

In the proceeding chapter, the linkage between climate change and law, with primary focus on international human rights, will be explored in depth. The goal will be to provide an overview of the existing set of rules and their direct and indirect references to the issue of climate change.

The third chapter critically analyses whether the catalogue of human rights is applicable to the enforcement of measures in regard to climate change effects in general and if so, which obstacles this approach has to face. This chapter will comment on the issue whether human rights can be instrumentalized to claim individual supporting measures, as well as technical and financial help for directly affected groups.

Penultimately, this paper summarizes the main points of criticism on the presented approach. Further on, it concludes on the importance and authority of human rights irrespective its actual legal obligation but rather from a political and ethical perspective. Finally, alternative approaches regarding the implementation of measures regarding international law, human rights, and climate change will be stated.

A. The Global Warming and its Causes

The global average temperature has increased by about 0.75 degrees Celsius in the past 100 years. ⁶ This trend has accelerated in the past 25 years; the last decade was the warmest globally since the beginning of temperature recordings. ⁷ This global warming is based on human influences; the main cause is the rapid rise of

6 IPCC “Climate Change 2007: Synthesis Report” (2007) at [30]

.

⁷ World Meteorological Organization “2000-2009, The Warmest Decade” (2009)

.