How does climate change and human rights intersect?
“File:Ice sculpture of a climate refugee (4029958664).jpg” by greens_climate is licensed under CC BY 2.0
Author: Alicia Haripershad
GHRD Intern – International Justice and Human Rights Team
LLM Candidate International Law and Global Governance (Tilburg University)
Global responses to climate change have undoubtedly been insufficient considering the rate of environmental degradation. As a result of climate change, many problems are being exacerbated or new ones are emerging. Climate change is not happening in isolation, but it can be rather understood to impact the daily lives of everyone. Measures to mitigate or adapt to the changing climate also undoubtedly impact people and their rights (Cullet, 2016). When considering the impact of climate change, it is often poor countries that are the most exposed to the negative effects.
This article aims to provide an overview of the intersection between climate change and human rights. The United Nations Framework Convention on Climate Change (UNFCCC) and Conference of Parties (COP) will be introduced before turning to climate migrants and refugees as well as to indigenous people and deforestation, two case studies which clearly show that climate change is inextricably linked to human rights.
What are some of the human rights that are most impacted by climate change?
From a legal perspective, on a national level, in order to establish a response to a violation, there should be a breach of a legal duty arising from a Human Rights legal instrument, such as a treaty (Pederson, 2010). However, there are instances when the law does not necessarily offer sufficient protection and as such, even though a right is being violated, there may not be any action that can be taken at a local level to address it.
Another issue relating to human rights violations is where they occur. Given that climate change transcends borders, it can create a barrier whether claims can be brought before courts, since establishing the country of jurisdiction for judging the violation might be unclear (Knox, 2009). Such barriers relate to an important point of justiciability and jurisdiction, making sure that the individual or group whose right has been violated can turn to a defined place to rectify the violation. Further, unlike the International Criminal Court for instance, there is no international court addressing environmental rights exclusively.
There is no specific right to the environment but given the consequences of environmental degradation, the following are some examples of rights that might be impacted:
- The right to health (as enshrined in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR));
- The right to food (per Article 2 of the ICESCR);
- The right to water (United Nations General Assembly Resolution 64/292).
Consider the scenario of a fossil-fuel power plant, causing pollution in the area where it operates. It will affect the health of the community on the short and long term, when considering the effects of pollution on climate change. Further, consider the long-term contamination of water and land, impacting drinkable water and farming land. This could result in water and food scarcity, leading to starvation and mass migration in search of resources to survive.
What is the UNFCCC and COP?
The UNFCCC is the key framework of all climate change related matters (Freestone, 2016). The treaty provides for binding protocols to be concluded amongst signing states and contains influential standards such as capping emissions (Kyoto Protocol, 1997). It is an international treaty, however, it is not legally binding.
In lieu of the Convention, an annual COP was established in order to make decisions regarding the implementation of the framework’s goals. COP meets on an annual basis and tasks include reviewing information submitted in terms of the Convention and Protocols to assess if the obligations are being met.
The 2021 United Nations Climate Change Conference, COP26, will be taking place in Glasgow from 1 to 12 November 2021. Due to the COVID-19 pandemic, no meeting took place in 2020 and so this year’s will be even more important for evaluating the extent to which states have met their nationally determined obligations for addressing climate change for example, by reducing emissions.
What are climate migrants and refugees?
Climate change is undoubtedly contributing to increasing natural disasters and worsening environmental issues impacting people’s lives. As a result, people may be forced to move, whether within the borders of their country (internal displacement) or on to another country because their homes are no longer possible to occupy (McAdam, 2016). Further, in consideration of rising sea levels as a result of climate change, island states are arguably at a higher risk of becoming uninhabitable. Climate change can be understood to aggravate other issues that already influence migration, such as politics but it can be more extreme for certain locations such as islands or low-lying states.
The United Nations Guiding Principles on Internal Displacement tackles the issue of internal displacement, and although not legally binding, they provide guidance on internally displaced people due to climate change. States need to develop the necessary policies and initiatives before internal displacements materialize as a critical problem (McAdam, 2016). States developing policies on internal displacement as a result of climate change can link to the state’s obligation to address climate change within its borders proactively, as a means to mitigate future displacement. The Kampala Convention is a binding treaty that pertains to internal displacement due to climate change. This Convention is a positive step in acknowledging the seriousness of the issue of climate change related displacement.
Pacific islanders have already begun attempts to migrate to Australia and New Zealand as a result of climate change (McAdam, 2016). However, the cases have been unsuccessful on the basis of timing, as will be explained bellow. In the case of Kiribati, the New Zealand authorities found that a Kiribati citizen and his family’s lives were not currently in jeopardy, referencing the timing of the case – since they may be in danger in a future perspective but not at the current moment –, should they return to their homes on the island. This is a clear demonstration that existing migration laws are not adequately contemplating the long-term consequences of climate change. They are arguably only allowing for migration when it is “too late” for these individuals.
There should also be a need for neighbouring countries or countries in close proximity to those that are vulnerable to consider establishing some form of migration scheme. This can be seen in the example of Australia and New Zealand and being able to assist the Pacific Islanders who are in a more vulnerable position to rising sea levels. This could assist in facilitating future migration as a result of climate change. However, on a positive note, statements of the United Nations Refugee Agency in the case of Teitiota earlier this year saw the committee admit that ‘people who flee the effects of climate change and natural disasters should not be returned to their country of origin if essential human rights would be at risk on return’ (Mahecic, 2021). The Committee confirmed the need for urgent action by states, before the effects of climate change unduly impact their citizens.
“Climate change = more climate refugees. #Melbourneclimatestrike IMG_5187” by John Englart (Takver) is licensed under CC BY-SA 2.0
How is deforestation affecting indigenous groups?
Looking specifically at indigenous communities who live in and are dependent on forests, the impact of deforestation is palpable and can have a significant impact on their human rights. The necessity to address deforestation in order to mitigate climate change had been featured at previous UN Climate Change Conferences of the Parties’ meetings until the culmination of COP 15 in 2009 where countries were encouraged to develop national strategies in order to take action (UNFCCC Decision 4/CP.15).
The creation of the Reducing Emissions from Deforestation and Forest Degradation (REDD+) is a voluntary framework that states can choose to use in order to meet their emission reduction responsibilities. Despite being voluntary, REDD+ has been increasingly used as states realise the significance of reforestation. REDD+ is linked with a financial incentive in addition to countries ensuring that their national laws are compliant with the REDD+ prerequisites and requirements.
What has distinguished REDD+ from previous reforestation efforts by the UNFCCC was the potential that the programme seemed to have in terms of being able to go further than merely addressing climate change, alluding to possible societal benefits (Takacs, 2014). The initial phase for REDD+ was readiness, followed by implementation and lastly the results-based payment phase. The UNFCCC does not impose an international system through which REDD+ should be implemented but rather provides guidelines that give countries the freedom to implement a system relevant to their domestic context while still complying with internationally binding instruments.
REDD+ could potentially be a beneficial solution with the aim of sustainably improving the current state of the environment by investing in trees through reforestation. However, implementing an approach that excludes the very people most affected, such as indigenous and forest-dwelling people, would pose further problems. In the event that these groups of people are excluded from the decision-making process they could, for example, risk losing security of tenure as a result of REDD+ (Dehm, 2016).
The loss of traditional knowledge and practices could be considered to be at risk if participation of these indigenous communities is not fully realised. For example, these communities preserve their traditional knowledge, which could arguably help in creating ways to make forest conservation and reforestation more sustainable, in light of local factors. Traditional knowledge in the case of Ecuador has been proven to be an asset to the REDD+ process, adding unique insights given that these groups have lived in these areas for generations and know the ecosystems better (Paudel and others, 2013).
In understanding the right of local communities such as indigenous peoples to participate in the decision-making when it comes to REDD+ implementation, Free, Prior and Informed Consent (FPIC) can be considered. It is enshrined in but not limited to the UNDRIP as well as the International Labour Organization Covenant 169. The UN-REDD Programme has also issued specific guidelines on what constitutes FPIC and how to make the decision-making process more inclusive. Importantly, the right to consent includes the right not to give consent. FPIC can be understood to go hand in hand with the right to participate. The Cancún Safeguards that followed acknowledged probable clashes between environmental concerns and local communities by providing guidance on how to ensure “transparency” and “effectiveness” (UNFCCC Decision 1/CP.16). Arguably this framework didn’t create new obligations but rather provided certain steps that participating REDD+ states would need to take before being eligible for funding. For a relevant example of a safeguard:
“The full and effective participation of relevant stakeholders, in particular indigenous peoples and local communities” (UNFCCC Decision 1/CP.16, Annex, para 2).
This quoted safeguard acknowledges the implication that reforestation can have on indigenous communities and, therefore, in order to avoid CO2lonisation, a concept several indigenous communities have put forward where a new form of colonisation of forests can take place (Cabello and Gilbertson, 2012), participation and communication is key with the implementation of REDD+. This example illustrates that measures to address climate change, such as REDD+ with reforestation, cannot operate in insolation and require further measures to ensure that other human rights violations do not occur when addressing the impact of climate change.
“Deforestation” by crustmania is licensed under CC BY 2.0
Please feel encouraged to read through some of the treaties, frameworks and protocols mentioned in order to better understand the legal landscape pertaining climate change:
- International Covenant on Economic, Social and Cultural Rights: https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx
- United Nations Framework Convention on Climate Change: https://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf
- Kyoto Protocol to the United Nations Framework Convention on Climate Change: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-a&chapter=27&clang=_en
- The United Nations Guiding Principles on Internal Displacement: https://www.unhcr.org/protection/idps/43ce1cff2/guiding-principles-internal-displacement.html
- Reducing Emissions from Deforestation and Forest Degradation and Warsaw Framework for REDD+: https://unfccc.int/topics/land-use/resources/redd-documents
- Cancun Safeguards: https://info.undp.org/docs/pdc/Documents/MMR/Myanmar%20National%20Clarification%20of%20Cancun%20Safeguards%202019_Final%20Eng.pdf
AF (Kiribati)  NZIPT 800413, New Zealand: Immigration and Protection Tribunal, 25 June 2013
Cabello, J. and Gilbertson, T. (2012). A colonial mechanism to enclose lands: A critical review of two REDD+-focused special issues. Ephemera Theory and Politics in Organisation, Vol. 12, 162-180.
Cullet, P. (2016) Human Rights and Climate Change: Broadening the Right to Environment. The Oxford Handbook of International Climate Change Law, Oxford University Press, 2018.
Dehm, J. (2016) Indigenous peoples and REDD+ safeguards: rights as resistance or as disciplinary inclusion in the green economy? Journal of Human Rights and the Environment, Vol. 7 No. 2.
Freestone, D. (2016) The United Nations Framework Convention on Climate Change – The Basis for the Climate Change Regime. The Oxford Handbook of International Climate Change Law, Oxford University Press, 2018.
Ioane Teitiota v. New Zealand, CCPR/C/127/D/2728/2016, UN Human Rights Committee (HRC), 7 January 2020
Knox, J.H. (2009) Human Rights Principles and Climate Change. The Oxford Handbook of International Climate Change Law, Oxford University Press, 2018.
Mahecic, A. (2021) World Leaders Must Act to Reverse the Trend of Soaring Displacement. United Nations High Commissioner for Refugees.
McAdam, J. (2016) Climate Change-related Displacement of Persons. The Oxford Handbook of International Climate Change Law, Oxford University Press, 2018.
Paudel, N.S. and others (2013) The Context of REDD+ in Nepal, Drivers, agents and institutions. Occasional Paper CIFOR, Bogor, Indonesia, 81.
Pederson, O.W. (2010) The Janus-Head of Human Rights and Climate Change: Adaptation and Mitigation, 80 Nordic J. Int’l L. 403.
Takacs, D. (2014). Environmental Democracy and Forest Carbon (REDD+). Envtl L 71, 44.
UN General Assembly, The human right to water and sanitation : resolution / adopted by the General Assembly, 3 August 2010, A/RES/64/292
FCCC/CP/2010/7/Add.1, Framework Convention on Climate Change, Report of the Conference of the Parties on its fifteenth session, Methodological guidance for activities relating to reducing emissions from deforestation and forest degradation and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries, Decision 4/CP.15
FCCC/CP/2010/7/Add.1, Framework Convention on Climate Change, Report of the Conference of the Parties on its sixteenth session, Decision 1/CP.16