With reference to the UN Human Rights Commission’s adoption of Resolution 7/23.2 and the flurry of preparations for the December 2009 round of United Nations Framework Convention on Climate Change negotiations in Copenhagen (“UNFCCC COP-15”), several institutions had joined the call to develop the nexus between human rights and climate change. The nexus was meaningful because it demonstrated that climate change’s numerous negative impacts on human rights, particularly for already vulnerable populations, can be used as a way to measure the harm. It is also meaningful because it connects this harm to obligations which the state has already undertaken. Thus, it reveals the potential for using developing supranational human rights legal systems to impose a duty on states to prevent further climate change and protect individuals from its negative impacts. This piece aims to briefly explore this later angle on the human rights-climate change nexus: the likelihood that international human rights bodies, particularly the regional human rights systems, will in the foreseeable future hold states accountable for climate change.
International environmental law and climate change negotiations tend to be based on notions of state-to-state consensus and cooperation. However, there is nothing like the build-up of hopes and ultimate disappointment of the United Nations Framework Convention on Climate Change negotiations in Copenhagen (“UNFCCC COP-15”) negotiations to leave individuals wishing for some club to hold over the heads of states. Aside from democratic processes or domestic legal remedies, where they exist, regional human rights systems may offer the best forum for individuals to confront states that fail to come to a consensus or otherwise take steps to combat climate change.
This is not to say that regional human rights systems have been perfected. The European Court of Human Rights, the Inter-American Court of and Commission on Human Rights, and the African Commission on and newly operational Court of Human and Peoples’ Rights each face their own challenges: certain states that accept only limited jurisdiction or no jurisdiction at all; absence of regional enforcement mechanisms other than diplomatic or political pressure; and consequent reliance on states for compliance with recommendations and execution of binding judgments. Nevertheless, each regional system has developed a mechanism by which individuals may bring complaints against states for failing to respect, protect, or fulfil regionally guaranteed human rights.
In evaluating the potential fate of a petition based on human rights violations resulting from climate change, each of the three established systems has its own strengths. Unlike the foundational documents of the other two systems, the African Charter on Human and Peoples’ Rights actually recognizes a right to the environment. Moreover, the African Commission on Human and Peoples Rights (“ACHPR”) has entertained petitions based on violations of this right and found states in violation of their associated obligations. In a resolution on human rights and climate change issued just before COP-15, the African Commission on Human and Peoples Rights (“ACHPR”) referenced this “right of all peoples to an environment favourable to their development” under the Banjul Charter, along with other international instruments binding on member states of the African Union (“AU”). Using this right as a basis, it expressed concern that the COP-15 negotiations would unlikely incorporate human rights considerations and urged the heads of African Union (“AU”) member states to ensure that human rights standards, particularly protections for vulnerable populations, are included in any climate change agreement resulting from the negotiations. The only indication of the African Commission on Human and Peoples Rights’ (“ACHPR”) inclination to hold states accountable for climate change, however, was in noting that “climate change is principally the result of emissions of greenhouse gases, which remain relatively high in developed countries.”
The Inter-American Commission on Human Rights (“IACHR”) is the only regional body that has squarely faced a petition based on the human rights consequences of climate change. In 2005, Sheila Watt-Cloutier of the Inuit Circumpolar Conference filed a petition with the Inter-American Commission on Human Rights (“IACHR”) on behalf of “all Inuit of the arctic regions of the United States of America and Canada who have been affected by the impacts of climate change.” The petition alleged that the United States, the leading greenhouse gas(“GHG”) emitter in the world, is the greatest contributor to climate change, which threatens the enjoyment of numerous human rights guaranteed by the American Declaration of the Rights and Duties of Man to the Inuit living in the Arctic regions. The specific rights identified include their rights “to the benefits of culture, to property, to the preservation of health, life, physical integrity, security, and a means of subsistence, and to residence, movement, and inviolability of the home.” The petitioners argued that the United States of America(USA) government should be held accountable for these violations to the extent that they result from both its acts—enabling or contributing disproportionately to GHG emissions—and its omissions—failing to take meaningful steps to reduce GHG emissions and otherwise counteract climate change.
This petition faced several notable challenges. First, because the United States of America(USA) has not accepted the jurisdiction of the Inter-American Court of Human Rights, the petition could only be brought before the Inter-American Commission on Human Rights (“IACHR”), which may issue recommendations but not binding judgments. Secondly, as would be the case with any lawsuit relating to responsibility for climate change, it faced the tremendous burden of proving legally sufficient causation between the harm resulting from climate change and the acts and omissions of the United States of America(USA) government. The petition did an admirable job of laying out the scientific evidence for the connection between GHG emissions and climate change, the United States of America’s (USA) contribution to GHG emissions, the effects of climate change on the Arctic environment, and the complete dependence of Inuit peoples on the Arctic environment.
Despite these efforts, the Inter-American Commission on Human Rights (“IACHR”) dismissed the petition with-out prejudice on November 16, 2006. Nevertheless, the Inter-American Commission on Human Rights (“IACHR”) did invite the petitioners, along with the Center for International Environmental Law (“CIEL”) and Earth justice to a thematic hearing on the issue of global warming and human rights in the United States of America(USA) on March 1, 2007. This hearing offers perhaps the best indication of the challenges that future litigation over human rights violations as consequence of climate change will face before a regional human rights body. The questions from three commissioners addressed (1) how to attribute or divide responsibility among states in the region or even states that are not members of the organization Of American States (OAS); (2) how the rights violations suffered by the Inuit could be tied more closely to concrete acts or omissions of specific states; (3) whether the petitioners had exhausted domestic remedies, a requirement for admissibility in any of the regional human rights systems; and (4) what examples of good practices undertaken by states could guide the Commission in making recommendations.
Counsel for the three organizations responded to each of the questions deftly. To the first, they explained the principle of “common but differentiated responsibility,” as a key component of state responsibility under international economic law. To the third, the question of exhaustion of domestic remedies, they explained why there is no comparable legal remedy available in the United States or Canada that would require the government to pay compensation for human rights violations associated with climate change. To the fourth question, counsel from Center For International Environmental Law(CIEL) pointed to good practices to counteract global warming in several states in the United States of America(USA), particularly Brazil.
The second question, as articulated by Commissioner Victor Abromovich, seemed to remain most unresolved at the end of the hearing:
Is there a precise form in which the impact you have described very well on fundamental rights can be tied to actions or omissions of the particular states? . . .[I]n all cases . . . considered by the Inter-American system, there have existed direct actions . . . or the failure to act by the state in the face of a concrete situation, for example . . . forestry in an indigenous territory. Now, the problem you are laying out, without doubt, links to state and non-state actors, but the relationship is much. . . less direct. So, I would like clarification about how there can be a relationship—not just any relationship, a legal relationship, a relationship of responsibility—of the states for violations of the rights that you have very clearly described.
This causal connection question presents the greatest gap between precedent cases on environmental damage that have been accepted by the regional human rights bodies and the issue of climate change and resulting human rights violations. Like other current frontiers in regional human rights law, resolution of this question might require either meeting a nearly impossible quantum of proof or bringing a petition against several or all states in a region.
One possible way forward may lie in the approach taken by the European Court on Human Rights (“ECtHR”) in a series of precedents identified in a Council of Europe (CoE) report on climate change and human rights. Although the European (Rome) Convention on Human Rights does not affirmatively guarantee a right to the environment, the European Court on Human Rights (“ECtHR”) has held states accountable for human rights violations resulting from environmental damage in a number of cases. Most often, these cases hold the state accountable for failure to protect individuals from actions of third parties, often corporations, and tie the environmental damage to violations of Article 8 (right to family and private life), Article 2 (right to life), and Article 1 (right to property), although other rights have also been implicated. As the Council of Europe (CoE) report pointed out, these cases demonstrate a state’s positive obligation where “inaction would exacerbate [a threat to human rights]” of which the state is aware. This obligation could also attach in the climate change context, even though the causal connection between Green House Gas(GHG) emissions and human rights may be difficult to prove.
Copyrights ©️
OBSERVERTIMES GLOBAL NEWSNETWORK PRIVATE LIMITED reserves the rights to all content contained within its official website https://observertimes.in /Online Magazine/ Publications