Like oil and water: a sceptical appraisal of climate change and human rights.

• Author: Tully, Stephen

Abstract

The human rights paradigm can make a valuable contribution in appreciating the impacts of climate change upon individuals. While the rationale is attractive, the advantages should not be overstated. The paradigm is not without its own limitations, which in the climate change context include establishing violations, identifying perpetrators and overcoming their territorial application. A survey of US and Australian courts suggests that environmental protection approaches have to date proven more effective than human-rights-orientated litigation strategics. Furthermore, compensating individuals, relocating communities and abandoning territory are not wholly appropriate as human rights remedies. They do not adequately ensure justice for several reasons, particularly because they prioritise procedural rights and impair the enjoyment of several substantive human rights.

Introduction

In searching for solutions to the challenges posed by climate change, attention has recently been given to the effect of anticipated environmental conditions, particularly sea level rise, upon individuals. While such impacts can be appreciated in human rights terms with good reason, applying that discourse may present its own unique challenges. Part one of this article offers a critique of the contributions made by a human rights perspective, querying whether environmental impacts can be characterised as violations and whether responsibility can be attributed to perpetrators. Part two compares the utility of human rights-based litigation strategies against orthodox environmental protection approaches. Using specific human rights as examples, part three considers whether compensation and resettlement for affected communities are appropriate remedies within the human rights paradigm.

1. Climate Change and the Search for Solutions

   The environmental conditions associated with climate change are expected to be dramatic. Within the Pacific region, for example, residential dwellings in Papua New Guinea's Cataret Islands have already been washed away and rising sea levels may occasion further coastal erosion. (1) The 'environmental security' of other states including Nauru is threatened. (2) Climate change is 'seriously affecting the right of people within small island developing States to a future' (3) such that reducing carbon emissions is 'a matter of survival'. (4)

   The United Nations Framework Convention on Climate Change (UNFCCC) is 'a significant first step forward' in addressing such 'deep concerns'. (5) Small island developing states take the view that developed states 'have the primary responsibility' for mitigating climate change. (6) The UNFCCC recognises the particular vulnerability of lowlying states, solicits financial contributions from developed countries and embeds 'common but differentiated responsibilities and respective capabilities'. (7) However, recalcitrant developed states are not believed to be acting with sufficient urgency. Mandatory emission targets, for example, are only now being legislatively entrenched. (8) Developed states may take the view that they will not again undertake 'environmental appeasement' to accommodate the 'guilt-laden' arguments of developing countries as they did during the ozone layer negotiations. (9) Asymmetrical treatment concerning economic redistributions and pollution entitlements is also said to skew the climate change regime in favour of developing countries. (10) Nevertheless, effort is required to prompt developed states into action, either by reaffirming and enforcing their existing obligations or proposing novel legal solutions.

   International environmental law has traditionally been the preferred context for addressing questions concerning the natural environment. Its principles envisage the civil liability of states for trans-boundary air pollution. (11) Furthermore, the ''corpus' of that law includes the obligation upon states to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states. (12) Several states have organised themselves politically to enforce these principles. (13) However, existing environmental governance mechanisms are perceived to be unreceptive to their particular interests. The possibility of initiating legal proceedings against developed states has, therefore, been canvassed, (14) with liability for reparations assessed by reference to gross domestic product. (15) However, given the complexity of the issues involved, the doctrine of state responsibility is considered unsatisfactory, assuming relevant jurisdictional hurdles can also be surmounted. While suggestions have also been made to utilise the overly-celebrated Alien Tort Claims Act, (16) recourse to courts in the United States (US) is also an unlikely prospect. (17)

   Attention has increasingly turned to the position of individuals. Proposals have been made to re-conceptualise the refugee definition to accommodate environmental persecution. (18) A 'climate change refugee visa' has been suggested for individuals displaced because of a 'climate change induced environmental disaster'. (19) A second option secretes a legal regime around the notion of 'environmentally displaced persons', (20) notwithstanding the absence of a clear correlation between migration and environmental conditions. (21) Another alternative has been to invoke the obvious appeal of human rights.

2. A Critique of Human Rights Perspectives on Climate Change

   Climate change impacts can be readily appreciated in human rights terms. (22) Assuming projections hold true, the typical 'laundry list' of impacts attributed to climate change include more extreme weather events, natural disasters, hunger and malnutrition, infectious disease, loss of livelihoods and infrastructure, destroyed ecosystems and crops, poverty, saltwater intrusion, coastal erosion, social dislocation and degraded cultural sites. Sea level rise has received especial attention. In 1996, sea levels were predicted to rise 15 to 110 centimetres above current levels by 2100. (23) That assessment was confirmed in 2007, with a one metre rise potentially affecting 200 to 450 million individuals within the Asia-Pacific region. (24) The predicted effects of climate change implicate several human rights, (25) most prominently the rights to life, food, (26) water, health, (27) housing, work, culture and property. In short, climate change threatens overall human development. (28)

   There are several reasons for articulating a human rights-based approach to climate change. (29) First, a human 'right' protects individual autonomy and dignity against political expediency and arbitrary state power. The paradigm is considered, 'at least at a rhetorical level, the law's best response to [a] profound, unthinkable, far-reaching moral transgression' such as climate change. (30) The visibility of human rights would subject governments to greater scrutiny and revive stagnant environmental debates. Second, human rights and international environmental law could be complementary approaches. Environmental protection is 'a vital part of contemporary human rights doctrine' and the 'sine qua non for numerous human rights. (31) Enhancing individual participation in governance is an objective common to both discourses. Thus the human rights dimension to environmental activism could be developed by emphasizing climate change impacts upon individuals. Third, human rights standards are inalienable, universal and seek to promote equality. Human rights are inviolable whereas environmental regulations can be amended. (32) Finally, and at a practical level, an approach based on human rights provides a 'human face', embraces excluded or marginalised populations, encourages transparent or accountable decisions and provides sustainable outcomes. (33)

   The reach of human rights discourse can be illustrated by reference to the right to housing and the concept of forcible eviction. Individuals enjoy the right to live in security, peace and dignity and cannot be arbitrarily or discriminatorily evicted. (34) 'Forcible eviction' is defined as the involuntary removal, either temporary or permanent, of individuals, families or communities from their households and land. (35) Described as 'one of the most supreme injustices', (36) the practice is also incompatible with the rights to food and adequate living standards. (37) States have accordingly been called upon to eliminate forcible eviction and confer secure tenure. (38) When unavoidable, procedural safeguards include resettlement, legal remedies, consultation, reasonable notification and participation in decision-making. (39) Could the legal considerations pertaining to forcible eviction be analogised to climate change impacts upon individuals? Initial inquiries suggest that, since forcible eviction generally requires a 'taking' or compulsory acquisition of private property in the public interest by the territorial state, the 'global applicability' of a 'buy-out' option may be 'limited'. (40)

   The relationship between climate change and human rights is currently being studied by the Office of the High Commissioner for Human Rights. The enabling resolution recognised that the UNFCCC 'remains the comprehensive global framework to deal with climate-change issues'. (41) Several states making contributions to that study confirmed that climate change was appropriately addressed through UNFCCC processes. (42) For example, Australia reiterated that the UNFCCC is 'the primary international forum for addressing international climate change action', remains 'the most relevant multilateral mechanism and has the mandate of the international community'. The United Kingdom (UK) considers that the international community should demand financial accountability from recipient developing countries and that climate change 'is not a human rights violation'. The US similarly distinguished between impairing the enjoyment...