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Human Rights and Climate Change

International Human Rights as an Instrument for Measures of Equalization?

Master's Thesis 2010 36 Pages

Law - Comparative Legal Systems, Comparative Law

Excerpt

Contents

Abstract

Chapter 1 Introduction
A. The Global Warming and its Causes
B. Effects and Consequences
C. Copenhagen’s 2 Degree Goal

Chapter 2 Climate Change as a Legal Matter
A. Human Rights Implications of Climate Change
B. Human Rights
I. The Human Rights System
II. Specific International Human Rights
in the Context of Climate Change
1. The Right to Life
2. The Right to Food
3. The Right to Water
4. The Right to Adequate Housing
5. The Right to Health
6. The Right to Self-Determination,
and Indigenous Rights
7. The Right to Information, Participation,
and Access to Decision Making
III. Human Rights-based Cases
on Environmental Issues
1. Lopez Ostra v Spain
2. Oneryildiz v Turkey
3. Budayeva v Russia
4. Hungary v Slovakia

Chapter 3 Systematic Analysis of the Human Rights Approach
A. Criticism and Evaluation on the
International Human Rights Approach
I. Legally Protected Goods and Legal Norms
II. Violating Actions
III. Causation and Accountability
IV. Compensation, Sentences, and Remedies
V. General Criticism on the
International Human Rights Approach
B. Alternative or Additional Approach:
The 1951 United Nations Convention
Relating to the Status of Refugees

Chapter 4 Conclusion
A. Conclusion on the International Human Rights
Approach - Synopsis of the Summarized Criticisms
and Potentials
B. Mutual Measures of Equalization and
Non-Claim-Based Remedies

Bibliography

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.

Chapter 1: Introduction

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 non-government organizations, begun to seriously address their concerns with regard to climate change and human rights to the public at large.[2] The dominating motive 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 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 greenhouse gases in the atmosphere.[8] The concentration of the main greenhouse gas, carbon dioxide, primarily produced from the combustion of carbonaceous fossil fuels for energy generation, is at its highest value since the last 800,000 years. And this rate of increase is under rising tendency.[9] Without effective counter-measures the Intergovernmental Panel on Climate Change (IPCC) estimates a temperature rise of up to 6.4 degrees Celsius by the end this century.[10] According to current knowledge the greenhouse gas emissions are already at the maximum to cause intensive and permanent changes according to the projections of the IPCC. Researchers increasingly warn that climate change is not gradual. When a certain temperature increase is exceeded, there may be abrupt and irreversible climate change, a so-called tipping point, overexerting the adaptability of human society.[11]

B. Effects and Consequences

Global warming has already had a variety of worldwide, regional and local effects on human health and the natural environment. Particularly affected are cold ecosystems, as glaciers, icecaps, permafrost and tundra areas, the melting of which will increase the sea level and is on long-term followed by further consequences, for example, the release of high levels of methane trapped in froze lakes. The number of extreme weather phenomena such as tropical cyclones, floods, local heavy rainfall, heat waves and droughts has increased, and the life cycles of flora and fauna has already partly changed.[12] Currently, approximately 325 million people are strongly affected by climate changes worldwide;[13] about 300,000 deaths each year can be traced back to global warming.[14] A further increase in temperature during this century will trigger changes in the climate system most likely far more significant than the contemporary concerns. Low-lying areas and less developed countries will be more affected by the consequences of climate change. Predicted impacts of climate change include a sea level rise by about one meter until the year 2100 as well as an increase and intensification of extreme weather phenomena.[15] These climatic changes have significant effects on human health and the natural environment.[16] For example, habitats, food production areas, and the water supply of millions of people are endangered by floods, droughts, erosions and subsequently affect international stability. Moreover, climate change threatens ecosystems and their species; it leads to imbalances in flora and fauna, and the extinction of more and more species. Moreover, human health risks such as cardiovascular and respiratory diseases, heat-related deaths and the spread of infectious diseases will increase.

As argued above, the impact on certain groups more vulnerable than others will continue to be magnified in effect.[17] Factors of this disproportional impairment include poverty, gender, age, indigenous or minority status, and disability.[18] A higher interference will also emerge from geographical factors as on small islands and low-lying states as well as desert areas.[19]

In addition, climate change will have major economic effects.[20] Developed countries will especially experience heavy economic loses. The associated global cost adapting to the impacts of warming up is estimated between 40 up to over 170 billion US dollars a year.[21]

C. Copenhagen’s 2 Degree Goal

A change in global climate cannot be wholly prevented, but its overall extent may be limited. The climate science considers it necessary to limit the temperature increase to a maximum of 1.5 to 2 degrees Celsius above the pre-industrial level within a narrow time frame of a few years.[22] Performing in accordance with this minimum aim, a goal to which now almost all countries in the world have committed, can prevent a dangerous climate change causing unbearable damages and unforeseeable risks. Even a warming of 2 degrees Celsius will have a significant impact. Beyond this limit, however, societies and ecosystems would be incapable of adapting to the impacts of climate change. This inability would increase exponentially, so that fundamental social and environmental changes have to be expected. Keeping in mind that the global average temperature has presently risen by 0.7 degrees and that the current carbon dioxide concentration has the potential to cause a warming of 2 to 2.4 degrees Celsius in the immediate future,[23] the requirement for radical adaptation and mitigation is obvious. To limit warming to a maximum of 2 degrees Celsius, carbon dioxide and other greenhouse gas emissions must be limited to a global average to 85 percent by the year 2050[24] and then, in the long term, reduced to a minimal amount. This emissions path is ambitious, but accessible, and more than that, necessary.

Chapter 2: Climate Change as a Legal Matter

Initially, in its development climate change appeared as a scientific matter; a phenomenon watched and measured by scientists. Over time, given the rising contemporary awareness, it broadened and shifted its focus to become an issue in political and social debates. Nationally and internationally, as climate change is currently an unavoidable issue globally. Even in the case of causation being traced back to a single national perpetrator, the consequences will not be limited to just a defined area. Effects are widely spread, although the chain of causation might not always be visible in first place. Environmental mechanisms, ecosystems, as well as cultural implementation and adaption to nature are linked and interconnected too closely and are too highly complex, to reduce climate change to a regional or national issue.

In line with becoming a political topic, climate change has also become a legal issue, for example, in regard to setting up binding obligations on reducing greenhouse gas emission rates. Furthermore, climate change is being presently viewed through the “human rights lens”[25]. The human rights perspective initiates the debate on a wider range of facets on climate change and its dealings, as will be discussed below[26].

[...]


[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) <http://www.ciel.org/Publications/COP10_Handout_EJCIEL.pdf> as well as the press release by CIEL “An Inuit Case” (2008) <http://www.ciel.org/Climate/Climate_Inuit.html>.

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 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) <http://www.ciel.org/Publications/MaleDeclarationNovO7.pdf> and Maumoon Abul Gayoom, President of the Maldives, addressing at 13th Session of the Conference of the Parties of the UNFCCC (2007) <http://www.maldivesniission.ch/fileadmin/Pdf/Environment/President-atBaliConference_2012122007_final_.pdf> as well as Kyung-wha Kang, Deputy United Nations High Commissioner for Human Rights (2007) <http://www.maldivesmission.ch/fileadmin/Pdf/Environment/DHCStatementBaliFinal.pdf>.

[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] <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf>.

[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.

[6] IPCC “Climate Change 2007: Synthesis Report” (2007) at [30] <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf>.

[7] World Meteorological Organization “2000-2009, The Warmest Decade” (2009) <http://www.wmo.int/pages/mediacentre/press_releases/pr_869_en.html>.

[8] IPCC “Climate Change 2007: Synthesis Report” (2007) at [37] <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf>.

[9] IPCC “Climate Change 2007: Synthesis Report” (2007) at [36] <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf>.

[10] IPCC “Climate Change 2007: Synthesis Report” (2007) at [45] <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf>.

[11] Umweltbundesamt “Hintergrundpapier: Kipp-Punkte im Klimasystem – Welche Gefahren drohen?“[transl.: Federale Bureau for Environmental Matters Germany “Background paper: Tipping points of the Climate System – Which are the Threatening Endangerments?”] (2008) at [4f] <http://www.umweltbundesamt.de/uba-info-presse/hintergrund/kipp-punkte.pdf>.

[12] IPCC “Climate Change 2007: Synthesis Report” (2007) at [30ff] <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf>.

[13] Global Humanitarian Forum, Human Impact Report Climate Change “The Anatomy of A Silent Crisis” (2009) at [9] <http://www.eird.org/publicaciones/humanimpactreport.pdf>.

[14] Global Humanitarian Forum, Human Impact Report Climate Change “The Anatomy of A Silent Crisis” (2009) at [11] <http://www.eird.org/publicaciones/humanimpactreport.pdf>.

[15] IPCC “Climate Change 2007: Synthesis Report” (2007) at [45f] <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf>.

[16] IPCC “Climate Change 2007: Synthesis Report” (2007) at [33ff] <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf>.

[17] 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].

[18] 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 [42].

[19] Siobhán McInerney-Lankford “Climate Change and Human Rights: An Introduction to Legal Issues” (2009) 33 HELR 431 at 436.

[20] The economists concluded that on the example of Washington State families, businesses and communities are likely to incur billions of dollars of annual economic costs if the United States and the other world nations fail to drive reductions in climate-changing greenhouse gas pollution. The report identifies the impacts to Washington’s economy as increased energy costs, reduced fish populations, coastal and storm damage, reduced food production, increased public health costs. These are only a few examples which are valid and exemplary for every other country. See Department of Ecology State of Washington, Impacts of Climate Change on Washington's Economy <http://www.ecy.wa.gov/climatechange/economic_impacts.htm>.

[21] Martin Parry “Costs of adapting to climate change significantly under-estimated” (2009) , International Institute for Environment and Development <http://www.iied.org/climate-change/key-issues/economics-and-equity-adaptation/costs-adapting-climate-change-significantly-under-estimated>.

[22] 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 [14].

[23] IPCC “Climate Change 2007: Synthesis Report” (2007) at [4] <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf>.

[24] IPCC “Climate Change 2007: Synthesis Report” (2007) at [4] <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf>.

[25] Mary Robinson “Climate Change is an Issue of Human Rights” (2 008) The Independent < http://www.independent.co.uk/opinion/commentators/mary-robinson-climate-change-is-an-issue-of-human-rights-1059360.html>.

[26] See in more detail Chapter 4.A.

Details

Pages
36
Year
2010
ISBN (eBook)
9783640801695
ISBN (Book)
9783640801381
File size
573 KB
Language
English
Catalog Number
v164748
Institution / College
University of Auckland – Law Faculty
Grade
B+
Tags
Climate Change Menschenrechte

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Title: Human Rights and Climate Change