Master's Thesis, 2017
43 Pages, Grade: A
Chapter One: Theoretical Framework of Climate Change
I- What is Climate Change: Causes and Consequences
A- Climate change defined
B- The Causes of Climate change
C- Consequences of Climate Change
II- Climate change and Capitalism
Chapter Two: Human Rights Implications of Climate Change
I-The Linkage between Climate Change and Human Rights
II-The Impact of Climate Change on Specific Rights
A- The Right to Life
B- The right to health
C- The right to food
D- The right to water and sanitation
E- The Right to Adequate housing
F- Right to Self-Determination
Chapter Three: International Human Rights Duties Regarding the Global Effects of Climate Change
I- International Human Rights Duties of States in the ICCPR
II- International Human Rights Duties in the ICESCR
A- Duties to respect
B- Duties to protect
C- Duties to fulfill
III- Practical Difficulties to the Application of Human Rights Duties Extraterritorially
Chapter Four: Additional Suggestions to the Human Rights Approach to the Global Impacts of Climate Change
I- Basing International Human Rights Law Approach on International Cooperation
II- The Creation of “A Right to a Healthy Environment” As a Human Right
III- Creation of an International Treaty relating to the status of environmental refugees
This study seeks to address the issue of climate change through a human rights lens by focusing on the causes of climate change and its impacts on both the environment and human rights. It highlights the close link between capitalist industrialization and environmental degradation and explains how this consequently leads to human rights violations.
This research tackles human rights approach to climate change with a special focus on international human rights instruments mainly the two international covenants, the ICCPR and the ICESCR, it seeks to understand whether they impose international obligations on states to protect human rights from the adverse effects of climate change and how those imposed duties can be enforced to effectively protect people’s rights.
Unfortunately, this paper will reach to the conclusion that the existing human rights law does not adequately protect human rights from the lethal threat of climate change, due to the absence of a universally recognized right to a healthy environment, moreover, despite the possibility of the extraterritorial application of the ICESCR, the political will of states to cooperate under the provisions of the covenant to face the issue of climate change seems to be also absent.
Climate change is one of the most serious global issues facing humanity in the 21st century and threatening the well being of the next generations. As a result of their industrialization, many developed countries have been engaged since the nineteenth century in burning fossil fuel and emitting large amounts of green house gases (GHG) in the atmosphere, which caused a significant increase in the global temperature. If states do not take immediate action to reduce their GHG emissions, the intergovernmental panel on climate change (IPCC) expects a rise in the global temperature to 2oC by 2050, which will cause extreme environmental events such as storms, floods, hurricanes, droughts, cyclones and an important rise in sea levels that may lead to the disappearance of many small coastal low lying islands. And will, therefore, affect the lives of millions of peoples usually from developing countries who contributed less to climate change and are already suffering from poverty and deprivation, such as Sub-Saharan Africa, South Asia, and Latin America.
Climate change threatens the full enjoyment of fundamental human rights especially those guaranteed by the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Many people risk suffering from displacement, the spread of vector borne diseases, as well as food and water shortages. Recently, several international bodies including the United Nations Human Rights Council, have recognized human rights implications of climate change and insist on states’ duties to cooperate in order to protect human rights from the adverse impacts of climate change as well as taking into consideration the protection of people’s basic rights while applying measures to mitigate the effects of climate change. However, many developed countries, particularly the United States reject the idea of taking responsibility for human rights implications of climate change, claiming that there is no such a right to a healthy environment, some countries even refuse to cooperate with other states to protect human rights in countries that are most affected by climate change on the basis that they are not liable to prevent human rights violations outside their territory and out of their jurisdiction. This paper addresses the question of the effectiveness of international human rights mechanisms in protecting people’s rights from the global impacts of climate change, focusing mainly on the two international covenants in which the rights are mostly affected; the ICCPR and ICESCR. Part I of this paper will analyze the problem of climate change; its causes, consequences as well as the correlation between the capitalist system and environmental degradation. Part II draws the link between climate change and human rights and explores how climate change can negatively affect the realization of specific human rights. Part III discusses the obligations that international human rights law imposes on states through the ICCPR and ICESCR to protect people’s rights from climate change’s implications and explores the practical challenges to the application of human rights duties extraterritorially. Part IV suggests additional ways to approach the issue of climate change within the human rights framework.
Climate change can be characterized as a long term alteration of the climate in a particular region or even in the whole planet. This alteration can be measured by variations in features linked to the average weather, such as precipitation, temperature, and wind patterns. Climate change can be caused by natural processes such as volcanic eruptions, variations in the sun’s intensity, as well as long term shifts in ocean currents and land surfaces. Different anthropogenic activities which release large amounts of Greenhouse Gases such as industrial and agricultural activities, fossil fuel combustion, and waste decomposition can also lead to the acceleration of the phenomenon of climate change.
Water vapor, carbon dioxide (CO2), methane (CH4), and nitrous oxide are known as Greenhouse Gases. These gases exist in the atmosphere and are responsible for maintaining the warmth of the planet by reflecting back into space the solar energy that was not absorbed by the earth and the oceans. Without the Greenhouse effect, the earth would be 35oC colder making life impossible for all the species. Since the industrial revolution, huge amounts of fossil fuel (oil and coal) have been burnt and deposited in the atmosphere leading to an increase in the Greenhouse effect and therefore to global warming.
According to the UN Framework Convention on Climate Change (UNFCCC) climate change is the outcome of human activities, and was defined as: “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere which in addition to natural climate variability observed over comparable time periods.” A broader definition was adopted by the International Panel on Climate Change (IPCC), which besides human activities it also included natural forcings as another factor leading to climate change; stating that: “ climate change is statistically significant variation in either the mean state of the climate or in its variability persisting for an extended period (typically decades or longer). Climate change may be due to natural internal processes or external forcings, or to persistent anthropogenic changes in the composition of the atmosphere or in land use.”
Climate change can be attributed to several factors whether natural and human-made. Among the natural factors of climate change are:
Volcanic Eruptions: when it erupts, a volcano can release massive amounts of Sulphur Dioxide (SO2), water vapor, ash and dust into the atmosphere which can cause climate change by enhancing planetary reflectivity leading to atmospheric cooling.
Ocean Currents: alterations in ocean currents can cause climate change by moving large amounts of heat across the planet and therefore changing the concentration of CO2 in the atmosphere.
Solar Radiations: the sun is a fundamental source of energy for the earth’s climate system, any changes happening within the sun can cause climate to change by becoming warmer during stronger solar intensity, or cooler during weaker solar intensity.
Earth Orbital Changes: a small tilt of the earth can be responsible for climatic changes. While fewer tilts can lead to cooler summers and warmer winters, more tilts can lead to warmer summers and colder winters. These minor variations can cause important changes in the intensity of the seasons over tens of thousands of years.
Alongside with natural factors, human activities have largely affected the climate since the pre industrial era. According to the IPCC, economic and population growth have led to more atmospheric concentration of carbon dioxide, methane and nitrous oxide since 1750. About 40% of Anthropogenic Greenhouse gas emissions (GHG) still remain in the atmosphere, the rest was stocked on land (in plants and soils), and about 30% of GHG was absorbed by the ocean leading to ocean acidification. Despite the implementation of climate change mitigation policies, anthropogenic GHG emissions have largely increased between 2000 and 2010 because of fossil fuel combustion and industrial processes.
Deforestation is also a very important factor of climate change, not only it contributes to the warming of the planet, it poses a serious threat to animal and plant diversity, and therefore it may affect the lives of many groups of people across the world. Since forests are the major sinks of carbon, deforestation, especially through forest fires, is a considerable source of carbon dioxide emissions globally.
Extreme weather events: temperature has been increasing since 1950 according to the IPCC, and the frequency of heat waves has also been growing in big parts of Europe, Asia, and Australia. According to the IPCC, the temperature has been doubled by human influences in some regions, and heat-related human mortality will likely increase in the most affected locations. Moreover, an increase in heavy precipitation and rising sea levels have been observed as result of the changing climate leading to more floods, cyclones, droughts, and wildfires.
Melting glaciers: freshwater ecosystems are being affected by melting glaciers in mountainous regions, where these glaciers serve as an essential source of drinking water, sanitation, agriculture and hydroelectric power. In Polar Regions such as the Arctic and Antarctica, ice plays a major role in balancing the global climate by reflecting back the sun’s energy and regulating the global temperature. However, the average temperature in those regions has increased by 5oC putting in danger the habitat that polar bears and seals rely on, and causing drastic changes in the northern hemisphere.
Oceans: the ocean plays a crucial role in the absorption of carbon dioxide from the atmosphere; however growing levels of CO2 have resulted in more oceanic acidification and a rise in oceans temperature which made them less able to absorb CO2 surplus. Climate change has also resulted in sea level rise by 0.2cm/ year. The IPCC also predicts the sea to rise by 18 to 59 cm by the end of the 21st century.
The historical occurrence of the global capitalism and the transformation of the earth’s climate is no coincidence. Capitalism lies at the root of climate change, challenge and any serious effort to confront climate change must deal with global capitalism. It is well known that the capitalist system is based on the principle of production and selling of commodities in order to get the surplus value and accumulate money. To accumulate money the capitalist should own the means of production and purchase labor force to produce commodities that will be later sold for consumption, and the returned money will be then reinvested into the same process to encourage more accumulation. The incessant drive for capital accumulation makes capitalism a growth oriented system; a system that transforms the world into commodities by treating nature as an immense collection of resources and converting the planet into means of production. All this has negative ramifications on climate change; the best example is the growing concentration of CO2 in the planetary atmosphere which implies that our planet has limits to capitalism growth drive.
The commodification of nature has created what John Bellamy Foster called “the metabolic rift.” This term refers to a concept developed by Karl Marx on the basis of the German chemist Justus on Liebig’s argument that in 1859, the intensive capitalist agriculture in Britain, depleted the soil of its essential nutrients through the transport of food and nutrients from the country to the cities where they end up as waste, reducing the productive power of the land. For Marx, a vital “metabolic interaction” exists between humans and the earth. He believes that there is a dependent relationship between man and nature in which humans interact with nature through the process of labor where they exchange organic matter. Capitalism created an irreversible rift in the metabolic relationship between humans and the earth through the intensification of large scale agriculture and the increasing use of chemical fertilizers in the soil. The quest to maximize profit caused land degradation by despoiling the soil if its basic nutrients and creating pollution through the accumulation of waste in the cities.
The theory of metabolic rift could be extended to the carbon cycle and global climate change, the emergence of contemporary capitalism is tightly linked to the large scale exploitation and the use of fossil fuel, coal, oil, and lately natural gas on which our modern society’s production is very dependent. The successive inventions from the steam engine to the railways, mechanized agricultural and industrial production, the internal combustion machine, kept requiring a continual increase in the use of coal, oil, and gas. Total use of fossil fuel increased tenfold, from 200 joules to 1018 joules between 1900 and 1970 which resulted in four billion tons of carbon emissions per year from such fuels. The increase of such consumption was highly centered in the northern industrialized countries, which were responsible for 70% of global emissions in 1990 although they formed only 25% of world population.
Despite the scientific consensus that climate change is already happening, and it is happening because of the human economic activities, many corporations and right wing politicians such as American Republicans, still deny the reality of the already changing climate and refuse to reduce their GHG emissions, claiming that “climate change is a Trojan horse designed to abolish capitalism and replace it with some kind of green communitarianism” and “environmentalists are like Aztec priests, sacrificing countless people to appease the gods and change the weather.” Many scientists and think tanks have been employed to spread skepticism and denial of climate change, stating that some warming of the planet did occur as a result of the sun’s natural fluctuations, but it has nothing to do with greenhouse emissions. The geologist Patrick Michaels recognized that CO2 is rising global temperature, however, its effects are minor, and we have nothing to do about it. There are even scientists such as Matthew Kahn who insist that free market capitalism is the solution to the problem of climate change. And even the media played a major role in deflecting people’s attentions about the reality of climate change by covering less the issue, despite the increase in extreme weather events. A study directed by Harris Poll on the public opinion about climate change found that 71% of Americans in 2007 believed that the continued fossil fuel combustion would change the climate. By 2009 the number had declined to 51%, in June 2011 the figure went down to 44%. Comparable trends have been followed in the UK and Australia. It seems that liberal policymakers work hard to depoliticize the problem of climate change and influence people’s opinion about the real reasons lying behind this issue.
There is outrageousness in the idea that capitalist markets and making profit from pollution are the best solutions to climate change. In fact, not only markets are failing, but they seem to be intentionally set to fail in reducing GHG emissions, they even failed to stabilize them. With the advent of neoliberal capitalism, the rhetoric that the markets are a private domain subject to regulations different from the public sphere of politics has been promoted in the last three decades. The newly privatized areas which previously belonged to the state, today, they escape regulation and responsibility, and the so called “sovereign states” whose power is in reality in fatal decline came to be considered as the main actors in the global political economy, where in fact, they are the handmaidens of the market. Under capitalism, human rights are obliquely as well as directly violated by markets, and with the insufficient funding for adaptation and mitigation measures, as well as the lack of investment in cleaner technologies, there seems to be no genuine political will to seriously address the problem of climate change and protect human rights.
In June 2017 the American president Donald Trump announced the United States withdrawal from the Paris accords set to reduce global warming in which the Obama administration promised to curb the US greenhouse emissions to 28% by 2025, this promise is less likely to happen with Trump’s refusal of the Paris accords, claiming that the United States was unfairly treated in the agreements which negatively affected the American economy and promising to bring back jobs to the American people and “make America wealthy again.” In reality, the only beneficiaries from Trump’s decision are not the American people, but fossil fuel industry and coalminers who will get their jobs back again will cause enormous harms to the environment and will hurt the majority of American people by moving the economy backward, so it looks like something from the 19th century. Capitalistic drive and profit seeking attitudes and policies are assaulting the environment and will cause more dispossession and impoverishment of people particularly those living in the global south.
Despite international efforts to address the issue of climate change and mitigate its effects on the environment, human rights implications of climate change were less considered. In 2005 a human rights based approach to environmental injustice was successfully adopted by Nigerian communities who sued ExxonMobil, Chevron Texaco, the Nigerian National Petroleum Corporation, and the Nigerian government before the Federal High Court of Nigeria to stop gas flaring. Gas flaring is a process of unusable waste gas combustion used by oil refineries, oil wells, chemical plants, and landfills. This case’s main focus was on the ensuing air and water pollution making Nigeria the greatest GHG emitter in the sub-Saharan region. The Niger Delta communities claimed that this practice of gas flaring breached Nigerian gas flaring regulations and violated their basic rights by emitting large amounts of carbon dioxide and methane and therefore warming the environment. The court ruled in favor of the Niger delta communities claim stating that gas flaring must stop as it jeopardizes the community’s constitutionally protected right to life and dignity.
The link between climate change and human rights was not well established till 2005 when a petition was filed by the Inuit people before the Inter-American Court of Rights of Human Rights (IACHR). The petition claimed that the United States’ failure to respect its duty to reduce its GHG emissions violated the Inuit fundamental rights such as the right to life, the right to health, the right to traditional land, and their right to residence and movement.
Although the petition gained scholar and media attention about the impacts that climate change can have on human rights, it failed to get a positive decision from the IACHR who informed the petitioners that it will not be possible for the petition to be processed at present because the provided information does not allow to the court to decide that the claimed facts from a violation of guaranteed human rights.
In 2007 a more political and less confrontational process was followed by the Maldives in linking climate change to human rights. The so called alliance of the small island states released the Malé Declaration which recognized the immediate effects of climate change on the full enjoyment of human rights. The declaration requested the state parties to the UNFCCC, with the assistance of the secretariat under Article 7.2 (1) to cooperate with the Office of the United Nations High Commissioner for Human Rights and the United Nations Human Rights Council to assess the impacts of climate change on human rights.
In response to these nations’ call for urgent action, the United Nations Human Rights Council (UNHRC) issued resolution 7/23 in March 2008 which stated that climate change “has implications for the full enjoyment of human rights.” Although the 2009 study released by the Office of High Commissioner for Human Rights (OHCHR) avoided claiming that climate change violates human rights, it mentioned that global warming will have potential effects on human rights, such as the right to life, the right to food, the right to water, the right to adequate housing and the right to self-determination. The most vulnerable to climate change are developing countries and communities lacking adaptive capacities as well as certain groups within these countries such as women, children, and people with disabilities.
In 2010, state parties in the UNFCCC declared the Cancun agreements that members should respect human rights in all climate change related actions. One of the perambulatory provisions of the agreements explicitly mentions resolution 10/4 of the Human Rights Council, which acknowledged inter-institutional linkages between climate change and human rights.
Many scholars believe that approaching the issue of climate change through a human rights lens is more effective than international environmental law, human rights law focuses on climate change implications for human life and dignity rather than treating climate change as a merely environmental issue and focusing only on the effects that climate change can have on the nature. Moreover, thanks to its regional and international enforcement and monitoring instruments, human rights law offer better protection to the most affected rights. States can sue each other before the International Court of Justice (ICJ), ordinary people can resort to regional courts such as the European Court of Human Rights, and even the World Bank panel can be consulted by indigenous and displaced people. However, the human rights based approach has been criticized by many scholars because of the difficulty of drawing a causal link between climate change and rights infringement especially in the absence of an internationally recognized right to a clean and healthy environment, as well as many other practical difficulties raising to the enforcement of international human rights mechanisms that we will discuss in the next chapter.
The right to life is enshrined in the ICCPR and the CRC as well as in regional treaties such as; the European and American conventions, and the African Charter. In its general comment on the right to life under Article 6 of the ICCPR, the Human Rights Committee insisted on states’ duty to take positive measures to protect the right to life, and failure to provide such protection by state institutions would constitute a violation of the right to life.
On the basis of the 2007 IPCC assessment, the OHCHR issued a report in 2009 in which it recognized that climate change negatively affects the right to life and stated that:
“A number of observed and projected effects of climate change will pose direct and indirect threats to human lives. IPCC . . . 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.”
Communities like those living in the Arctic and coastal regions are the most affected by climate change and their right to life is at high risk. The Maldives is one of the most vulnerable regions to climate change, the right to life in these regions can be jeopardized due to global warming which raises sea levels and increases the risk of inundation and storm surges. Scientist warned that a rise of 0.5 meters in sea level would flood 15% of Malé the most populous island in the Maldives by 2025, and half of the island risks to be inundated by 2100, putting almost half of the Maldivian population in danger of displacement and life loss.
Many cases relied on the right to life as the basis of their environmental litigation, for example, the Yanumani Indians of Brazil filed a case before the IACHR against the Brazilian government who threatened the Yanomani’s right to life by building a highway through their territory. The highway construction caused severe environmental damage leading the IACHR to consider the government’s failure to take the necessary measures to avoid environmental harm as a violation of the Yanumani’s right to life, liberty, and personal security.
 P.R. Shukla, Climate Change and India: Vulnerability Assessment and Adaptation, Universities press, 2003, 4.
 Mark Maslin, climate change: A very Short Introduction, 3d edition, Oxford University press, 2014, 2.
 Thomas Tranner and Leo Horn-Phathanothai, Climate Change and Development, Routledge, 2014, 27.
 Intergovernmental Panel on Climate Change, https://www.ipcc.ch/ipccreports/tar/wg1/518.htm, Accessed on 02/06/2017
 What is climate change, http://www.conserve-energy-future.com/causes-and-effects-of-climate-change.php Accessed on 04/06/2017.
 Climate Change 2014 Synthesis Report Summary for Policy Makers, http://www.ipcc.ch/pdf/assessment-report/ar5/syr/AR5_SYR_FINAL_SPM.pdf Accessed on 04/06/2017.
 Ishta Haldar, Global warming: Causes and Consequences, Mind Melodies, 2011, P 20.
 Climate Change 2014 Synthesis Report Summary for Policy Makers, Supra note at 6.
 The Effects of Climate Change, https://www.wwf.org.uk/updates/effects-climate-change Accessed on 04/06/2017.
 Ishta Haldar, Global warming: Causes and Consequences, Supra note at 9, p 28,29.
 Joel Wainwright, Climate Change, Capitalism, and the Challenge of Transdisciplinarity, Annals of the Association of American Geographers, Vol. 100, No. 4, Climate Change (October 2010), p 988.
 John Bellamy Foster, Marx and the Rift in the Universal Metabolism of Nature, Monthly Review, Vol.65, Issue 07 (December2013)https://monthlyreview.org/2013/12/01/marx-rift-universal-metabolism-nature/
 Brett Clack and Richard York, Carbon Metabolism: Global Capitalism, Climate Change, and the Biospheric Rift, Theory and Society, Vol. 34, No. 4 (Aug., 2005), p 397, 398.
 Peter Newell and Matthew Paterson, Climate Capitalism: Global Warming and the Transformation of the Global Economy, 1st Edition, Cambridge University Press, 2010, P 13, 14.
 Naomi Klein, This Changes Everything, Capitalism vs. the Climate, Penguin Books, 2014, p 32, 33.
 Jonathan T. Park, Climate Change and Capitalism, the Journal of Sustainable Development, Vol.14, Issue.2, 2015, p, 197.
 Naomi Klein, This Changes Everything, Supra note at 16, p 35.
 Stephen Humphreys, Human Rights and Climate Change, Cambridge University Press, 2010, p 162-165.
 Michael D. Shear, Trump Will Withdraw U.S. From Paris Climate Agreement, June 1, 2017, https://www.nytimes.com/2017/06/01/climate/trump-paris-climate-agreement.html?mcubz=1 Accessed on 05/06/2017.
 Ewan Somerville, Trump’s Assault on Climate Change Is Capitalism at Its Worst: Civil Society Must Resist, http://www.huffingtonpost.co.uk/ewan-somerville/donald-trump-climate-change_b_15669418.html Accessed on 05/06/2017.
 Sara C. Aminzadeh, A Moral Imperative: The Human Rights Implications of Climate Change, Hastings International and Comparative Law Review, Vol. 30, Issue 2, 2007, p 237, 238.
 Andrea Schapper, Markus Lederer, Introduction: Human rights and Climate Change, Mapping Institutional Inter-linkages, Cambridge Review of International Affairs, 2014, Vol 27, No.4, p 668.
 The Inuits Petition to the Inter-American Commission on Human Rights, http://www.inuitcircumpolar.com/uploads/3/0/5/4/30542564/finalpetitionsummary.pdf
 John H. Knox, Linking Human Rights and Climate Change at the United Nations, Harvard Environmental Law Review, 2009, Vol 33, p 482.
 Zackary L Stillings, Human Rights and the New Reality of Climate Change: Adaptation’s Limitations in Achieving Climate Justice, Michigan Journal of International Law, Vol 35, 2014, p 638, 639.
 The Male Declaration, http://www.ciel.org/Publications/Male_Declaration_Nov07.pdf Accessed on 06/06/2017.
 Zackary L Stillings, Supra note at 28, p 639.
 Resolution 7/23 on Human Rights and Climate Change, Human Rights Council, http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_7_23.pdf Accessed on 06/06/2017.
 Andrea Schapper and Markus Lederer, Supra note at 23, p 668.
 Zackary L Stillings, Supra note at 24, p 650.
 Sara C. Aminzadeh, Supra note at 23, p 259-260.
 Siobhán Mclnerney-Lankford, Mac Darrow, and Lavanya Rajamani, Human Rights and Climate Change: A Review of the International Legal Dimensions, the World Bank, 2011, 12.
 Ibid, 13.
 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, 15 January 2009, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement Aceessed on 06/06/2017.
 Siobhán Mclnerney-Lankford, Mac Darrow, and Lavanya Rajamani, Supra note at 36, p 14.
 Sara C. Aminzadeh, Supra note at 23, p 250.
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