The environmental crisis and climate justice: putting human rights at the heart of the fight against climate change 

By  Keila McFarland Dias

 

In 2007, the pioneer Male’ Declaration on the Human Dimension of Global Climate Change  was adopted at a time where the invocation of human rights norms as tools to fight the environmental crisis seemed chimerical. Human rights treaty bodies had insufficient evidence to link human rights to environmental issues, much less with respect to climate change.  Notwithstanding, this groundbreaking declaration paved the way for Resolution 26/27, in which the UN Human Rights Council established the relationship between climate change and human rights, thus highlighting that the environmental crisis poses an immediate, far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.

Close to a decade after this declaration, the adoption of the Paris Agreement represented a new hope for the protection of human rights in the face of the climate crisis. Praised for being the first universal, legally binding climate change agreement to explicitly include human rights, it requires Parties to, when taking action to address climate change, respect, promote and consider their respective obligations on human rights. Nevertheless, in the aftermath of this landmark treaty, governmental inaction continues to infringe our most basic human rights.

 

“Climate change is an issue so vast and threatening to peace, prosperity, social justice and indeed life itself that it demands we seek solutions together, or face irreparable damage to humanity. Climate change is a threat multiplier, a force that intensifies the likelihood of poverty and deprivation of all kinds; conflict; and the precarious migration of people.” 

UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein (2015)

 

According to Amnesty International, it is estimated that climate change will account for 250.000 prematures deaths between 2030 and 2050, thus posing a grave threat to the right to life as enshrined in Article 3 of the Universal Declaration of Human Rights, and Article 6 of the International Covenant on Civil and Political Rights, amongst other international Treaties. Furthermore, the environmental crisis violates the right to adequate housing, under Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), given that 26.4 million people have been internally displaced yearly due to weather-related disasters since 2008. With regard to the right to food, it is predicted that global hunger and malnutrition will rise by 20% by 2050 if climate change is not tackled effectively. With an increase in the global average temperature, 1 billion people will see a severe reduction in water resources; the health of 23% of the population in central sub-Saharan Africa will be threatened;  and 62% of people in South Asia will face increased risk of death and poor health, therefore threatening the right to water, sanitation and health.

 

Fundamentally, climate change exacerbates gender, social, racial, ethnic injustices, as its inherently discriminatory nature disproportionately harms those who have contributed least to the problem. It is undeniable that “communities in the Global South as well as low-income communities in the industrialized North have borne the toxic burden of this fossil fuel extraction, transportation and production. Now these communities are facing the worst impacts of climate change – from food shortages to the inundation of whole island nations.” For instance, those hardest hit in North America have been residents of poor communities of colour. African Americans are more likely to reside in these communities, therefore they are three times more likely to die of airborne pollution than their white counterparts. Moreover, Indigenous communities are also more likely to be located on land that is extremely sensitive to physical changes, making the possibility of environmentally-induced displacement increasingly likely.  

Against this global reality permeated by injustice, how can human rights obligations become an instrument to mitigate the environmental crisis?

 

HUMAN RIGHTS AS AN INSTRUMENT TO STRENGTHEN CLIMATE CHANGE LITIGATION

The year of 2019 was closed with a groundbreaking judgement that accentuated the role of human rights as a basis for State obligations to tackle climate change: State of the Netherlands v Urgenda. More than 800 Dutch citizens joined the lawsuit, which prompted major political debate and served as an impetus for the issue of the environmental crisis to gain public attention. This case constitutes the first liability suit in history that relies on human rights to hold a State accountable for not living up to its promises on climate change, marking a significant advancement in international law.  As stated by the Urgenda director Marjan Minnesma, the case filed was “simply asking whether the state has the freedom to ignore what everyone knows is necessary,” referring to the 1992 climate change treaty, in which countries agreed to take action to avoid dangerous climate change. Heralded as the most successful milestone in public interest litigation, Urgenda thus represents an invaluable contribution to climate action.

Revolutionarily, the case relied on the UN Climate Convention and on the fundamental rights enshrined in the European Convention on Human Rights (the ECHR), namely, the rights to life under Articles 2 and 8 ECHR. In accordance with the case law of the European Court of Human Rights (hereinafter: ECtHR), these provisions oblige a contracting State to take urgent measures if a risk to human life exists and the State is aware of it. Nevertheless, the ECtHR never held that concrete positive obligations to mitigate harm extend to an entire national population, therefore the Dutch Supreme Court arrived at this judgment by sailing into uncharted waters and applying Articles 2 and 8 ECHR to types of disputes and legal questions that have never been dealt with before. In light of this, the interpretation of ECHR obligations consistently with environmental law and the precautionary principle is unprecedented, and highly distinct.

With a mere 7.4% of energy consumption coming from renewable energy sources, the Netherlands ranks lowest among all EU countries and is set to fail to meet its European obligations for 2020, despite stepping up its efforts. Due to the real and imminent threats posed by climate change, the human rights of the inhabitants of the Netherlands are breached, as the population will be confronted with loss of life or a disruption of family life or both, the Court reasoned. It therefore follows from Articles 2 and 8 ECHR that the State has a duty to protect residents from this real threat. The reduction of greenhouse gas emissions by 25% by the end of 2020 was at the core of the proceedings, thereby the Government was ordered to take more stringent measures to fulfil this. This highly anticipated legal development has the potential to usher in a new era of environmental justice legislations, strengthening legal frameworks that effectively mitigate the effects of the environmental crisis from a human rights law perspective.

 

WAYS FORWARD

It is important to note how this human rights-based verdict highlights the need and potential for Courts to take a proactive stance against governmental inaction in the face of climate change and human rights abuses. As elucidated by the Advocate-General of the Dutch Supreme Court: “Lawsuits may be the only way to break through the political apathy regarding climate change.” It is crucial for the judiciary to act as allies of the climate movement and take a leading role in holding governments and corporations responsible for their environmental impacts. The crisis entailed by climate change could become the biggest inter-generational human rights violation in history, but it’s not too late to make a stand. 

Climate change litigation has elucidated how human rights law imposes procedural and substantive obligations upon States with respect to environmental threats to human life. Their obligations include procedural duties to provide information about environmental hazards, to facilitate participation in environmental decision-making, and to provide effective remedies for harm. Importantly, States can never discriminate in developing and implementing environmental policies, and they have heightened duties to protect those who are most vulnerable to environmental degradation, thereby endorsing the principles of climate justice. As stated by the Mary Robinson Foundation, “climate Justice links human rights and development to achieve a human-centred approach, safeguarding the rights of the most vulnerable and sharing the burdens of climate change and its resolution equitably and fairly”.

Climate change is a human rights problem and a human rights framework must thus be part of the solution. Integrating a rights-based approach into environmental policy constitutes the most effective and equitable instrument for strengthening public support and promoting successful and fair mitigation efforts to limit temperature rises. Climate legislations ought to be strictly aligned with human rights and concerted with action by civil society. Most importantly, the approach must hold political leaders, business and industries accountable for the human rights violations they commit as a result of their environmental neglect. These elements can provide legal protections for securing climate justice, for the most vulnerable communities now and all future generations.

The time to act is now.

 

This article was written by Keila McFarland Dias

 

PICTURE: Victims of Climate Change and Sea Level Raise demand Justice for Climate Refugees on the occasion the Global Climate March in Kutubdia Island under Cox’s Bazaar District in Bangladesh on November 28, 2015.

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