CLIMATE CHANGE AS CAUSING HUMAN RIGHTS VIOLATIONS, MUST A STATE BE HOLD RESPONSIBLE? REGIME THEORY ANALYSES
ABSTRACT
This paper sets out to outline the difficulties that individuals acting either on selves or on behalf of state, face in their attempts to seek redress and accountability as victims of human-induced climate change problems. In particular, the essay will explore the obstacles that result in establishing state responsibility for these acts. Within the time frame set for this work and for the purpose of reaching the goal of the essay, I have divided it into three parts
Part One of this papers will provide an overview of the climate change problem and will consider the importance of human rights regimes to climate change by providing a broad introduction to the content and scope of the international treaty regimes relevant to this paper and the various approaches that have been taken towards human rights and the environment. In addition, a section will be devoted to considering the scope for the extra-territorial application of the right to life in the relevant international human rights treaty regimes
Part Two will look at the establishment of state responsibility based on relevant articles in the International Law Commission (ILC) on state responsibility. It will also look at its applicability to climate change and the problem inherent in the attribution of responsibility for such damage. It is now an accepted rule of customary international law that ‘every internationally wrongful act of a state entails the international responsibility of that state’ (Crawford-International Law Commission’s articles on State Responsibility).The attribution of state responsibility for internationally wrongful acts is governed by relatively newly accepted rules on the international legal plain. In the context of this paper it is necessary to consider the difficulties associated with finding a breach of an international obligation in relation to the right to life and climate change, and to consider those difficulties associated with attributing the outcome of the breach to one or more states.
Part Three will look at each of the difficulties identified in parts one and two, and expand the analysis of them. In particular this part of the paper will look at breach of obligation, attribution and due diligence in relation to the paper’s subject matter. This section will end by summarizing these obstacles
INTRODUCTION
Although there had been conclusive and significant scientific evidence to the contrary, there is still some considerable skepticism over the nature, causes and consequences of climate change. However, it is becoming increasingly apparent that extreme weather events such as floods, droughts and cyclones, as well as retreating glaciers and melting sea ice at the North and South poles, are all indicative of a warming world. Some groups and governments across the world most seriously affected by the adverse consequences of climate change are beginning to pursue policies which aim to hold states accountable for the damage they have inflicted on their environment through the emission of greenhouse gases by establishing the international legal responsibility of these states for the harm suffered. Although human rights and the environment have been linked by international judicial bodies, there has been no formal recognition by any national or international body that global warming implicates human rights or that states have obligations to protect human rights from violations due to global warming.
A small number of these groups have included violations of human rights within their petitions or applications. For instance, the Inuit peoples of the Arctic filed a petition at the Inter-American Commission in 2005 against the United States which claimed that the failure of the US to control emissions of GHG violated a variety of the rights protected within the system. Another example is the tiny atoll nation of Tuvalu, which became a member of the United Nations in 2000 and has been pursuing since then a strategy which aims to draw the world’s attention to the climate change issue as a whole, and in particular to sea level rise and its consequences. Tuvalu, 400 miles north of Fiji in the Pacific Ocean, is a striking example of those states that face the likelihood of the disappearance of the whole or a significant part of their surface area for environmental reasons rendering the state uninhabitable and forcing its citizens and residents to leave. The government announced in 2005 that it was planning to sue corporations in Australia and the United States which produce GHG for damages, which followed its 2002 announcement of plans to take the two countries to the International Court of Justice (ICJ) for failing to reduce their GHG emissions. The aim of the action was to secure damages, and assurances from the government of Australia that it would permit entry to its territory by the so-called ‘environmental refugees’ from the islands.
It is submitted that international law is at present ill-equipped to deal with the adverse effects of climate change for the reasons which will be outlined. This is particularly true of international human rights law. As regards customary international law more state practice and jurisprudence would be needed before it could be accurately postulated that a rule allowing for the establishment of state responsibility for human rights violations occurring as a result of climate change has emerged. As regards treaty law, the judicial bodies attached to the various international human rights treaties need to become more willing to explore ways in which the difficulties surrounding evidence of wrongdoing on the part of the state, and attribution of acts harmful to the environment, can be mitigated in order to provide victims of such human rights violations with adequate means of apportioning responsibility.
AIM AND OBJECTIVES
The aim of this paper is to simply analyse what legal difficulties faced by individuals in their pursuit of accountability and redress for human rights violations resulting from climate change that is caused by human activities.
The objectives are to:
- examine the links between climate change and human rights issues
- suggest the need for the development of norms of a customary law character for the protection of the environment, since climate change is a unique problem
- outline the ill-equipped nature of international law to deal with the adverse effect of climate change
- identify rights in relevant human rights regimes that appear to be infringed by climate change
- raise the awareness of incorporating necessary changes in the international law that would remove the barriers placed in the way of victims in apportioning blame and seeking redress for right to life infringed upon by climate change that is greatly attributed to human activities
- provide insight for policy makers and future researchers in the field
SCOPE AND LIMITATION OF STUDY
It is a wide subject talking about Human Rights, Climate Change and International Law, but the scope of this paper is highly limited.This paper is not primarily concerned with the international legal routes pursued by states in order to access redress for climate change damage on their territory, but focuses instead on the routes open to individual victims through the framework of international human rights law. In this regard the paper seeks to analyze the legal difficulties faced by individuals in their pursuit of accountability and redress. The broad meaning of state responsibility denotes conferring responsibility for prevention, mitigation and minimization of damage onto a party, thereby going beyond the apportionment of reparations. This is the meaning used and expanded upon by the International Law Commission in their Articles on State Responsibility and will be the understanding of the concept used in this paper. There is an increased willingness on the part of some governments and representative of non-governmental organizations to make climate change damage a matter for international litigation. This paper does not seek to ascertain the likelihood of each case’s success, but seeks instead to identify and analyze the general difficulties associated with the establishment of state responsibility for climate change damage, which is the core purpose of the various petitions. In particular, this paper will focus on the difficulties associated with doing this in respect of breaches of the right to life that have occurred as a result of climate change. The unique nature of the climate change problem has led some commentators to suggest that ‘the development of new norms of a customary law character specifically tailored for the protection of the environment’ is called for. Its unique character is clear when one considers some of its most striking aspects: the cumulative nature of its causes; and the multiplicity of parties which contribute to the problem. Both of these aspects are at the core of the difficulties associated with establishing state responsibility and will be discussed in the final part of this work (part three). It is beyond the scope of this paper to consider the solutions to these difficulties. The aim is simply to identify and explore them using the internationally accepted definition and content of the law on state responsibility as a useful framework
LITERATURE REVIEW
While the problems associated with international legal disputes on climate change have been explored and discussed by a variety of authors, very few that the researcher is aware of in my findings have written specifically about the problems associated with international legal disputes arising out of the human rights implications of climate change damage.
Human rights are understood to be the “rights that exist because one is a human being (Donnelly, 2003, 10). They are understood to apply to everyone equally. They originate from the conviction that all humans should be able to enjoy a life of dignity. The Preamble of the Universal Declaration of Human Rights (Universal Declaration), the founding document of modern human rights legal regimes, declares that “the inherent dignity… of …all members of the human family is the foundation of freedom, justice and peace in the world.”
(UN, 1948).In a similar way, other human rights treaties acknowledge that the protection of basic human dignity is the foundational basis of human rights recognition. (Shue, 1980.13).The right to life places both positive and negative obligations on states. These obligations are commonly known as the duty to respect (the negative obligation) and the duty to protect (the positive obligation). The right to life is the supreme right from which no derogation is permitted even in time of public emergency and is protected by the following instruments: Article 3 of the Universal Declaration on Human Rights, Article 6 of the ICCPR, Article 2 of the ECHR, Article 4 of the American Convention and Article 4 of the African Charter.
Ramcharan, in The Right to Life in International Law, makes these basic observations about the right: that it ‘is an imperative norm of international law which should inspire and influence all other human rights’; and that ‘the right to life encompasses not merely protection against intentional and arbitrary deprivation of life, but also places a duty on the part of each government to pursue policies which are designed to ensure access to the means of survival for every individual within its country’. Ramcharan characterizes the problem of survival as a contemporary problem affecting the right to life and focuses specifically on ‘extinction as a result of … living conditions’. Although violations of the right to life are usually associated with arbitrary killings by state security officials, or other forms of arbitrary deprivation, such as the carrying out of the death penalty in the absence of all the requisite judicial safeguards, the right is not one which should be ‘interpreted narrowly. Along this line of thinking, the Human Rights Committee stated in its General Comment on the subject that ‘protection of this right requires that States adopt positive measures’ to ‘reduce infant mortality and to increase life expectancy’ This is in keeping with Ramcharan’s statements. It has also been stated that Article 27 of the Convention, which reads: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language’, should be read to mean that ‘culture manifests itself in many forms, including a particular way of life associated with the use of land resources’. The Committee was speaking in terms of indigenous people here, a group whose rights are implicated in climate change damage often more than most.
As a result of the absence of petition procedures within environmental treaties many cases which concern the impact that environmental harm has had have been brought to international human rights bodies, such as the Human Rights Committee. In Lubicon Lake Bank v Canada the Committee found a violation of Article 27 on the grounds ‘that historic inequities and more recent developments, including oil and gas exploration, were threatening the way of life and culture of the Band’. In the E.H.P. v Canada decision, the Committee found that the case raised ‘serious issues with regard to the obligation of states parties to protect human life’. The case involved an allegation by a group of Canadian citizens that ‘the storage of radioactive waste near their homes threatened the right to life of present and future generations’. These are clearly decisions which are of more particular relevance to the area of environmental law as a whole, but are of interest in the sense that they provide some insight into the current thinking of the human rights body concerning the broad area.
The European Court has dealt in a variety of cases both with the right to life in general and with the right to life and the environment in particular. However, the Court often opts to consider these sorts of issues under Article 8, which protects the right to private and family life. This was the case in the Lopez Ostra case, which exemplifies ‘the developing relationship between international environmental law and international human rights law’ at the European level. This case acts as an important ‘precedent for bringing other environmental violations before the Court’, especially given the fact that the ECHR ‘does not in express terms recognize a relationship between human rights and the environment’. The case conveys the notorious difficulty in proving environmental damage. Courts obliged to hear such cases will not usually be furnished with adequate technical or scientific expertise. The facts of this case ‘lent themselves to the relatively straightforward and uncontroversial conclusion’ that was reached by the Court. Other cases in this field are unlikely, in the view of Sands, to be as clear cut. Despite this the Court ‘did not provide any indication as to how it would proceed when faced with a genuine difficulty in establishing the extent of the environmental harm’, insight which may have been illuminating with regard to the climate change issue
The approach of the Inter-American system to the right to life is, in general, broader than that of the European system. For instance, emphasis has been placed on state omissions rather than on attempts to prove state acts, a fact that is bound to aid the Inuit in their petition. Additionally, the burden of proof rests on the state in the Inter-American system to prove the claimant(s) wrong. A joint UNEP-OHCHR expert seminar on human rights and the environment made the position clear. The authors provide examples of case law from Argentina, Colombia, Costa Rica and Guatemala which link the right to life to the environment by ‘moving the right to a healthy environment up the hierarchy of human rights by recognizing it as a fundamental right’. One example is the 1993 Argentinean case Irazu Margarita v Copetro S.A. in which the court asserted that ‘the right to live in a healthy and balanced environment is a fundamental attribute of people. Any aggression to the environment ends up … becoming a threat to life itself and to the psychological and physical integrity of the person
In the Inuit petition to the Inter-American Commission the ways in which global climate change has adversely affected the right to life of the group are set out. The authors cite the Yanomami case in which ‘the Commission established a link between environmental quality and the right to life’. Although this case concerned the construction of a highway through Yanomami territory and the consequent influx of non-indigenous peoples who brought contagious diseases resulting in the death of some members of the indigenous group, it is useful for the purposes of this paper because the Commission found that ‘the government’s failure to protect the integrity of Yanomami lands had violated the Yanomami’s right to life, liberty and personal security’. The petition goes on to say that ‘damage to the Inuit’s subsistence harvest violates their right to life’. On the issue of the Inuit, the US Congress is cited in the Petition as acknowledging that ‘no practical alternative means are available to replace the food supplies and other items gathered from fish and wildlife which supply rural residents depending on subsistence uses’. In more general terms the petitioners point to ‘the United States’ acts and omissions regarding global warming’ as evidence of ways in which the phenomenon violates the Inuit’s right to life. They conclude on this point by saying that, as ‘climate change has damaged the arctic environment to such an extent that the damage threatens human life … the United States has breached its duty under the American Declaration to protect the Inuit’s right to life and personal security’. The Inter-American system has linked environmental degradation and human rights together and has a history of taking innovative approaches to emerging international law issues. It is in this forum that progress towards establishing responsibility for human rights violations occurring as a result of climate change damage is most likely to be made
It is clear from the foregoing references that the right to life is not only of supreme importance and standing in international law, but is also still in a process of development and evolution. The case law and jurisprudence of both the UN human rights treaty monitoring bodies and the regional human rights courts shows that as the social context within which the instruments operate evolves, so do the instruments themselves. Therefore, despite the current lack of scope for victims of violations of the right to life as a result of climate change, the fact of this does not prejudice the emergence of greater scope for the inclusion of these types of violation into our understanding of the law in the future
The protection under the treaty regimes discussed here is open only to citizens of those states which have ratified the relevant treaty. The obligations of states towards their own citizens are clear and states must protect their own citizens from the adverse effects that global climate change has within its own territory. What is less clear is what obligations are owed by state parties to these treaties to persons outside their territory or jurisdiction, which will be discussed in this essay.
Leaving aside for the moment the human rights implications of global climate change, it is illustrative to consider the law of state responsibility as it applies to climate change damage more generally as it provides a useful framework within which to consider the difficulties which may arise when tackling human rights and climate change together in a judicial context. The origins and roots of today understand of state responsibility stem in part from the 1925 Spanish Zone of Morocco case, decided at the Permanent Court of International Justice. In this case the Permanent Court recognized a now generally accepted principle of international law that ‘responsibility is the necessary corollary of a right, and that all rights of an international character involve international responsibility. The Chorzow Factory case firmly established this rule ‘as generally applicable for all kinds of breaches of international law’ by stating that ‘reparation is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself’. This has been further recognized in more recent years by the International Court of Justice in the Gabcikovo-Nagymaros Project case in which it was stated that it is ‘well established that, when a State has committed an internationally wrongful act, its international responsibility is likely to be involved whatever the nature of the obligation it has failed to respect
.These pronouncements have contributed to the present position, codified in the 2001 Articles on State Responsibility, that ‘the responsibility of states is a rule of customary law and one of the fundamental principles of modern international law’. However, due in large part to the nature of the sovereign state system, there has been precious little international adjudication in which the fledgling law on state responsibility was tested. Of these, the Trail Smelter arbitration of 1941 and the Corfu Channel case at the International Court of Justice are the most famous for the precedents they created. In Trail Smelter the Tribunal applied the principle that in international law:
‘no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence’.
It is accepted generally by commentators that ‘territorial sovereignty confers a license on a state to exploit and enjoy the resources within its territorial confines’. However, this is predicated on the requirement that the ‘source states … respect equally the sovereignty of others and refrain from conduct that may be injurious to other states in a manner that is contrary to the rules of international law’. In the Corfu Channel case, the ICJ ‘held that it was a sufficient basis for Albanian responsibility that it knew, or must have known, of the presence of the mines in its territorial waters and did nothing to warn thirds States of their presence’
This rule has since been reaffirmed in a number of Declarations and also in treaty law. The UN Conference on the Human Environment, commonly known as the Stockholm Conference, took place in 1972. In addition to its contribution regarding our understanding of the international community’s views on when and for what reasons the responsibility of states in the environmental field is engaged it also tied human rights issues with environmental concerns by declaring: ‘Man has the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being’. The Rio Conference which followed twenty years later failed ‘to give greater explicit emphasis to human rights’, which commentators believe is ‘indicative of continuing uncertainty and debate about the proper place of human rights law in the development of international environmental law’, and which was also a huge disappointment to campaigners. However, in terms of state responsibility, Principle 2 of the 1972 Stockholm Declaration, Principle 21 of the 1992 Rio Declaration as well as Article 3 of the Convention on Biological Diversity all proclaim in very similar statements, that principle which was first recognized in the Trail Smelter case:
‘States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction’.
This principle is commonly known as the ‘no-harm rule’ and is recognized as a rule of customary international law. Under the no-harm rule ‘a State is obliged to ensure that actsunder its control and jurisdictiondo not harm another State’ or states. The rule has been re-stated in similar form more recently, in theNuclear Weaponsadvisory opinion delivered by the Court in 1997: ‘the existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment’.
This rule would be relatively straightforward to apply in cases similar toTrail Smelter, where the nexus between cause and effect is either obvious or is easily discernable using scientific evidence. However, as regards climate change, no such easily recognizable, traceable connection between polluter and polluted is available. Conversely, according to Verdean, ‘the fact that the emissions from the territories of all States contribute to the increased concentrations of greenhouse gases in the atmosphere and that one State might not be able to effectively reduce all of these emissions or actually prevent all damage cannot lead to a finding that the no-harm rule is inapplicableper se’. This remains a deeply problematic issue and one which will require the concerted efforts of both governments and courts to address and rectify.
An aspect of the UNFCCC which is important to consider in this context is Article 3(1), which reads:
‘In their actions to achieve the objective of the Convention and to implement its provisions, the Parties shall be guided, inter alia, by the following:
1. the Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof
The International Law Commission’s Articles on State Responsibility were adopted on 9th August 2001 and have been described as: ‘a good reflection of the status of international law on the various elements and preconditions for State responsibility’. The ILC’s project on state responsibility took forty-nine years and thirty-two major reportsto progress from its initial selection as a topic for consideration in 1948, following a review of the field of international law by Hersch Lauterpacht to determine those issues most key to fulfilling the General Assembly’s Charter mandate of ‘encouraging the progressive development of international law and its codification’, to final adoption in 2001
These varying, moderately disparate rules on state responsibility were brought together and considered as one body of law by the ILC between 1948 and 2001. This is what this paper will look at in analyzing the hypotheses stating that ‘Under current existing laws, a state cannot be held criminally accountable in the court of law for Human Rights violations resulting from global warming’.
Methodology
The study’s aim is to bring out the difficulties that are faced by people who seek to bring states to book for causing global warming which in turn violates their right to life. To bring out these problem, the study tends to look at the links between climate change and Human Rights and the laws that govern both phenomena, and also look at that aspect of international law that stipulates the responsibility of a state for crimes committed within and without it boarders. The methodology suited for this study therefore, is the Secondary Source investigation research method that is based on primary data that have been analyzed. Books borrowed from the library and online articles relevant to the topics are used in the study. After careful study, I came out with facts that are compiled in the body of the paper using what weaknesses I found to proffer some suggestions that would help future study in the field and also policy makers with options and alternatives.
Chapter One
OVERVIEW OF THE PROBLEM
This section will first provide an introduction to the problem of climate change, focusing in particular on how the effects of climate change are impacting on human rights in the Arctic and in Tuvalu. These areas are two of the worst effected and so serve as useful examples for the purposes of this paper.
Secondly, this section will consider the international treaty regime related to climate change, focusing on the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol as being the two major instruments of relevance in the area. Although it is clear that mere ratification, or even compliance, with these mechanisms would still be an inadequate response to the adverse effects of climate change, it remains the best first step currently available. The inadequacies of the present enforcement mechanism will be explored in order to illustrate the general problems facing the international community in this area
This part will also consider the scope and content of the right to life in the context of climate change damage.
1.2 – THE CLIMATE CHANGE PROBLEM
While the scientific community as a whole is in agreement that global climate change has an anthropogenic cause, there is a certain amount of divergence of opinion when it comes to the precise details of the consequences of climate change. The most reliable source of information, agreed upon by both scientists and governments through a process of intensive periodic negotiations, are the reports compiled by the Intergovernmental Panel on Climate Change (IPCC). Their February 2007 report ‘describes progress in our understanding of the human and natural drivers of climate change, observed climate change, climate processes and attribution, and estimates of projected future climate change’. In the report the authors point specifically to the widespread melting of snow and ice and rising global average sea levels as evidence to substantiate their claim that ‘warming of the climate system is unequivocal’. Extreme weather events such as droughts, floods, heavy precipitation, heat waves and intense tropical cyclones are also pointed to as evidence of the problem.
For the purposes of this paper the fact of the existence of climate change is only part of the issue. Much more problematic is the fact that ‘scientists can’t yet draw a straight line from emissions to a specific climate impact’. Although they are able to ‘characterize the extent to which greenhouse warming hiked the odds of a particular climate event’, they are as yet unable to prove connection between a particular outcome of such a climate event and a single specific polluting state. Given the severity of the consequences witnessed thus far it would appear prudent to explore the difficulties that flow from this lack of scientific certainty in order that affected parties might target their efforts in an efficient and productive manner.
In the 2005 petition submitted to the Inter-American Commission by the Inuit Circumpolar Conference (ICC), acting on behalf of all Inuit peoples in the Arctic regions, the view is taken that those states which have contributed the most to the problem ought to be the ones against which cases of this sort should be brought. The United States is the subject of this particular action because, in the reasoning of the petitioners, it is ‘by any measure, the world’s largest emitter of greenhouse gases, and thus bears the greatest responsibility among nations for causing global warming’, and also because ‘it refuses to join the international effort to reduce emissions’. This seems a logical first step, though not one, perhaps, that is particularly conducive to persuading that country to join the international treaty regime on climate change. The Arctic Climate Impact Assessment (ACIA) report of 2005 stated that ‘the increasingly rapid rate of recent climate change poses new challenges to the resilience of arctic life’. As regards the Inuit peoples, ‘warming is likely to disrupt or even destroy their hunting and food-sharing culture as reduced sea ice causes the animals on which they depend to decline, become less accessible, and possibly to become extinct’. Global climate change has already resulted in the relocation of some settlements, such as Shishmaref which is a town situated on an island near the Seward Peninsula in Alaska. The relevance of the melting sea ice to the human rights and climate change issue is clearest when considered in the context of the Inuit. The ice ‘is an essential element of the Inuit’s ability to use and enjoy their land. Both the shift in the freezing cycle and the depletion of the sea ice have made the Inuit’s territory not only less valuable but also dangerous’. The petitions, and subsequent submissions at hearings of the Commission, have referred to the Framework Convention on Climate Change, which will be considered below:
‘The petition urges the Commission to recommend that the United States adopt mandatory limits to its emissions of greenhouse gases and cooperate with the community of nations to “prevent dangerous anthropogenic interference with the climate system”, the objective of the UN Framework Convention’
Given the scale and importance of the issue, and the increasing numbers of people who are already adversely effected by climate change damage, it seems prudent to explore ways and means of attaching responsibility not only to the world’s largest emitters, but also, concurrently, to other emitters as well. As already said, there are provisions within the law on state responsibility, which provide for situations in which there are a multiplicity of responsible states, and a multiplicity of injured states.
1.3 – THE CLIMATE CHANGE TREATY REGIME
The current international treaty regime for dealing with climate change is not as well developed as that which deals with other sorts’ environmental damage. In the climate change field the 1992 UN Framework Convention on Climate Change is the principle mechanism. It sets out general principles and obligations; creates ‘basic institutional arrangements’; and provides ‘procedures for the adoption of detailed obligations in a subsequent protocol’. The original aim of the treaty was to impose binding emissions reduction targets on signatory states, but it became clear during the drafting process that such a formula would not meet with the approval of the United States or OPEC. However, as Article 2 states:
‘The ultimate objective of this convention and any related legal instrument that the Conference of the Parties may adopt is to achieve … stabilization of greenhouse gas concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure food production is not threatened and to enable economic development to proceed in a sustainable manner’
The phrase ‘ultimate objective’ is the key to understanding the drawbacks of this text. No specific emissions reduction targets are set within the Framework Convention, to which a total of 190 states are party in comparison with Kyoto’s 174 states party. This was a concession to certain states in order to secure their signature and ratification but renders the Convention itself rather weak. Despite these concessions the United States has refused to sign up to the Kyoto mechanism. Under the Vienna Convention on the Law of Treaties (1969) the principle ofpacta sunt servandais enshrined in Article 26: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’. This is an accepted rule of customary international law and is substantiated by numerous precedents. Another important rule for the purposes of this paper is contained in Article 18 of the Vienna Convention:
‘A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed’
According to the International Law Commission, ‘that an obligation of good faith to refrain from acts calculated to frustrate the object of the treaty attaches to a State which has signed a treaty subject to ratification appears to be generally accepted’. The objective of the UNFCCC is clearly stated in Article 2, above, and so it is clear that no state party should act in such a way as to jeopardize this aim
The Kyoto Protocol should be ‘regarded as a highly significant step in the elaboration of an effective legal regime to combat global warming’. The principle reason for this is the introduction of emissions reduction targets that are legally binding on developed states and which are designed to impose these targets according to an individual state’s level of emissions and capacity for mitigation and reduction of such emissions. The target for developed countries is ‘a total reduction of greenhouse gas emissions … of at least 5 per cent when compared to their 1990 emission levels’, a figure which is less than satisfactory to the environmental lobby.
The weak condition of the Kyoto regime necessitates a stronger enforcement mechanism at the international level. However, when compared with other environmental agreements, the Kyoto Protocol has a relatively strong enforcement mechanism. The Marrakesh Accords, which ‘provide detailed prescriptions for a compliance system’ for Kyoto, in the form of an Enforcement Branch, are ‘authorized to apply punitive consequences to countries that fail to comply with their Kyoto obligations’. Importantly, if a country fails to meet its specific reductions targets, it must cover the ‘deficit plus an additional 30 per cent in the next commitment period, and loses its eligibility to sell emission permits’. That such an enforcement mechanism even exists, leaving aside its flaws, is evidence of the increased importance given to the climate change issue on the international stage. The system is far from perfect however, and simply the fact that ‘the Marrakesh Accords do not include any enforcement provisions addressing failure by a non-compliant country to accept its punishment’ conveys the many difficulties still facing the international community in this area. Another obvious flaw is the political weakness of Kyoto, which stems from the lack of ratification by the Australian government and the notice given by the United States of its intention never to become a party.
In short, as there is no mandatory complaints mechanism under the Framework Convention, and the Kyoto system leaves a great deal to be desired, the role of international human rights law is all the more important in the context of climate change. There seems to be no other option for individual victims of climate change damage who have exhausted domestic remedies but to pursue their cases through these channels.
1.4 -HOW RELEVANT ARE THE EXISTING HUMAN RIGHTS REGIMES TO CLIMATE CHANGE
According to the consensus climate change science view as articulated by the Intergovernmental Panel on Climate Change, human-induced climate changes is already harming and will continue to harm with greater intensity human life, health, food security, plants, animals, and ecosystems upon which humans depend. Without doubt, climate change threatens not only human dignity but life itself especially to those most vulnerable to climate change.
To determine whether human-induced climate change triggers human rights violations under current human rights regimes it is helpful to examine whether the harms created by climate change interfere with rights expressly recognized by these existing regimes. Although there are additional legal issues that need to be examined to determine the applicability of existing human rights regimes to climate change, a strong claim can be made that inadequate climate change policies should trigger human rights violations provided climate change interferes with rights expressly identified by existing human rights regimes. The following rights are identified in the foundational international human rights regimes that are relevant to harms created by climate change.
The Universal Declaration of Human Rights recognizes the following rights which are jeopardized by the types of harms created by climate change:
- Life, liberty, and security of person. (Article 1)
- Right to an effective remedy by national tribunals for violations of fundamentalrights. (Article 8 )
- Full equality to a fair and public hearing by and independent and impartial tribunal, in the determination of rights and obligations. (Article 10)
- Freedom from arbitrary interference with privacy, family, home or correspondence. (Article 12)
- Freedom from being arbitrarily deprived of property. (Article 17)
- Right to a standard of living adequate for the health and well being of one’s self and one’s family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (Article 25)
- Rights to a social and international order in which the rights and freedoms can be fully recognized. (Article 28) (UN, 1948)…….
In addition to these international agreements on human rights, numerous regional human rights regimes exist that also expressly identify rights that are jeopardized by climate-change caused damages. And so, human-induced climate change can interfere with human rights expressly recognized by most human rights regimes, even though climate change is not expressly identified by these existing regimes as triggering human rights violations.
As mentioned above, the mere identification of these rights in relevant human rights regimes that appear to be infringed by climate change does not guarantee that these existing regimes can be used for climate change protection purposes. There are additional legal issues that need to be considered to determine whether these regimes provide a remedy for climate change damages; however, this legal analysis is beyond the scope of this post. There are, for instance, jurisdictional issues, questions of proof, and authority of the relevant forum that need to be considered before it can be determined whether any existing human rights regimes could provide a remedy for climate change damages.
However, a strong moral argument can be made that inadequate climate change policies trigger human rights violations even if it is determined that existing regimes do not provide an adequate legal remedy for climate change caused infringements of recognized rights once it is established that rights recognized by existing regimes are infringed by climate change
1.5 -APPLYING THE RIGHT TO LIFE ACROSS BOUNDARIES
As intimated above, the individual faces an increasing array of threats to their human rights, of which climate change is an increasingly pressing one. While ‘human rights were originally devised to protect the individual against the arbitrary exercise of power by authorities of the territorial state’, the threat of violations perpetrated by the state outside its jurisdiction or territory also presents difficulties for the protection of human rights. In some areas of law the extra-territorial application of treaty rules is relatively straightforward. Some human rights treaties are quite unproblematic on the subject. Others, such as the ICCPR, the American Convention and the ECHR, raise some difficult issues. Despite the strict wording in these treaties pointing to an undertaking by states parties to guarantee the human rights provided for in the treaties to persons ‘within their jurisdiction’, all the respective supervisory bodies agree that ‘the applicability of these treaties is not limited to a state party’s conduct on its own territory’. There are two different scenarios in which this may be said to be the case. The first is where ‘a state exercises effective control over foreign territory, for example as a result of military occupation’; and the second is where ‘a state exercises power and authority over persons by abducting or detaining them on foreign territory’. Further difficulties arise in situations where types of conduct are in evidence which do not fit clearly into either of the two foregoing examples. The issue of climate change damage appears to be one of these, although the literature tends to use the example of extra-territorial killings not preceded by arrest to illustrate the problem. By the production of GHG over and above those levels permitted by the international environmental treaty regime and that have effects outside the territory of the state of origin it cannot be said with any degree of logic that this state has effective control over the state in which the adverse effects of the pollution manifest themselves
Advances have also been made in the area by the ICJ. InDemocratic Republic of Congo (DRC) v Ugandathe Court ‘made it clear that human rights treaties might apply to a state’s conduct even where that state’s level of control falls short of that of an occupying Power’. It was also made clear by the Court that occupation is just one example of a situation in which human rights treaties apply extra-territorially.
What the preceding discussion has outlined are the negative obligations of States. The question of whether human rights treaties apply extra-territorially in terms of positive obligations is another area entirely.
Both the European Court and the Inter-American Court have explored the extent to which their respective treaties can be applied to extra-territorial conduct. The latter requires evidence of ‘control over the individuals whose rights have been violated’. The former has found that the European Convention applies ‘where a Contracting State exercises effective overall control of territory beyond its borders, as well as in certain other limited circumstances where agents of the state carry out a governmental function on the territory of another state’ The issue of extra-territorial application of human rights treaties represents one of the most problematic hurdles for any future litigation of the climate change damage issue in the field. As has been discussed, the different treaty regimes have developed their own thresholds of authority and control, or similar, beyond which the treaty may be applied extra-territorially. However, in each system evidence of moves towards lower thresholds is needed in the context of climate change if states are to be held directly accountable for human rights violations occurring in this manner
Chapter TWO
2.0 -ASCERTAINING STATE RESPONSIBILITY
The internationally accepted rules on state responsibility brought together and codified by the ILC rely heavily on a strong nexus between the act or omission of a state and the breach of the international rule in question. This is unsurprising, given that it is difficult to imagine a situation in which any entity, state or otherwise, would accept mechanisms whereby their responsibility could be engaged in the absence of sufficient evidential proof of culpability. In this area the lack of such an easily identifiable and scientifically certain nexus forms the primary difficulty in attributing state responsibility for climate change damage. The establishment of state responsibility can be usefully broken down into three steps, drawn from Article 2 of the ILC Articles, but related specifically to the subject matter of this paper:
- – The existence of obligation acting on states to protect the right to life in relation to climate change damage.
– The existence of a breach of this obligation.
– Proof that the breach is in some way attributable to a state or states.
It is increasingly apparent that states bear responsibility for violations of the right to life that have originated in environmental degradation, or as a result of transboundary air pollution. With regard to climate change damage the problems of attribution looms large in attempts to establish state responsibility. It is also important to draw attention to the due diligence issue and the time frame within which a state can be held responsible for a breach of an international obligation. These issues will be discussed in Part Three
Chapter Three
3.0 -ANALYSING THE OBSTACLES
This section of the paper will look in more detail at those issues identified above which represent the major difficulties facing individuals trying to hold states accountable for violations of the right to life occurring as a result of climate change damage. In the interests of clarity it is important to emphasize that the primary obligation under consideration here is the right to life and not violations of the principle mechanisms regulating climate change in international environmental law.
3.1 -BREACH OF OBLIGATION
Article 12 concerns the existence of a breach of an international obligation. The article reads: ‘there is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character’. The commentary states that ‘in the final analysis, whether and when there has been a breach of an obligation depends on the precise terms of the obligation, its interpretation and application, taking into account its object and purpose and the facts of the case’, the difficulty here is that there is at present insufficient evidence of an understanding of the scope and content of the right to life which specifically includes violations occurring as a result of the adverse effects of climate change. This would represent the first major difficulty to be encountered by individual victims.
3.3 -ATTRIBUTING RESPONSIBILITY
Another major difficulty has to do with the attribution of responsibility for the wrongful act. As stated by Xue, ‘the purpose of attribution is to establish the link between the wrongful act and its responsible author’. Tol and Verheyan describe the point in these terms: ‘to hold states responsible for climate change damages, it is either necessary to identify a legally relevant behavior by a state or to attribute the actions of private persons to the state’. Firstly, in terms of the state, it must have either allowed or failed to regulate emissions of greenhouse gases that were over and above a particular threshold. It also needs to be noted that, at least for polluting activities, international law stipulates that polluting acts must be ‘of serious consequence’ before state responsibility is engaged. In other words, a certain threshold of harm must be reached before state responsibility is engaged. It is also stipulated that ‘the injury must be established by clear and convincing evidence’, which put together amounts to a high threshold for the establishment of state responsibility. Louka suggests that policy makers ought to consider two issues with a view to clarifying the position:
‘1. The polluting activities must be “of serious consequence”. Because some form of pollution is part of everyday life, the amount and nature of pollution that is significant for the establishment of a strict liability claim under international law must be clearly established, and
2. There must be clear and convincing evidence of harm’
This is a difficult requirement to meet, as the Trail Smelter case itself demonstrates. Most of the damage to environment is hard to establish, as the scientific evidence is often inconclusive.
3.4 -DUE DILIGENCE
The vast majority of greenhouse gas emissions which contribute to the climate change problem are produced by ordinary citizens carrying out of lawful actions, such as through air travel or vehicle use. It is therefore necessary to employ some form of due diligence argument in order to link the state’s responsibility with these and other activities that are actually lawful. Tol and Verheyan identify two ways of exploring the due diligence issue: firstly, ‘a state has to violate a duty of care or a rule of international law to trigger responsibility’ and secondly, ‘the causal link between damage and activity attributable to the state is enough to trigger responsibility and compensation duties’. The first way is also found in the ILC Articles, in Article 1, which includes a due diligence test within its terms, as stated in the commentary. Therefore, ‘state responsibility can only occur if the respective state has not acted with the appropriate care’ According strict liability would mean determining ‘whether states should be liable for any damage caused by certain activities under their control regardless of negligence or fault’. In the absence of negligence or fault on the part of the state however, the ability of individual victims to access redress would probably be severely compromised.
3.5 -TIMING THE ACTION
Article 13 of the Articles on State Responsibility ‘codifies the prohibition of any retrospective assumption of responsibility’. In short the Article ‘indicates that the relevant period of time for determining whether an obligation exists is not when thedamageoccurs but when the climate-changingactivityoccurs’. In this context there is clearly a certain time-lag between the emissions taking place and the harmful effect which may amount to a wrongful act occurring. It is therefore necessary to consider the implications of this time frame difficulty. Any court considering this matter is likely to have to determine ‘when the breach begins and when it ends’, another area of scientific complexity
Finally, I would like to say that the problematic, complex issues of attribution and due diligence, among the others discussed above, present significant obstacles to individual victims of violations of the right to life occurring as a result of climate change. Notwithstanding these difficulties states ought to adopt certain principles in this area regardless of any proof of direct culpability. A widely accepted declaration of the precautionary principle can be found in the 1992 Rio Declaration:
‘where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’.
This principle ‘seeks to anticipate and avoid environmental damage particularly when human rights are involved’. It is important that continuing debate about the precise causes and consequences of climate change not result in a failure to act to stem the already serious threats to human life and to the global ecosystem at large that are either in incontrovertible evidence, or which are highly likely to occur.
Chapter Four
CONCLUSION
They researcher will conclude this work by submitting that the current state of international human rights law is ill-equipped for dealing with the human costs of climate change damage. As the ACIA has stated, ‘there is an international scientific consensus that most of the warming observed over the last 30 years is attributable to human activities’. Indeed, ‘the strength of the trends and the patterns of change that have emerged in recent decades indicate that human influences, resulting primarily from increased emissions of carbon dioxide and other greenhouse gases, have now become the dominant factor’ in global climate change. Despite the evident of anthropogenic cause, however the current globally accepted rules on state responsibility place barrier after barrier in the way of individual victims trying to apportion accountability and access redress. The seemingly intractable difficulty of causation is particularly problematic. Without this scientific evidence which would link a particular source state with a particular consequence of pollution it is doubtful whether the requisite standards of proof would be reached in some systems. It was beyond the scope of this paper to consider alternatives to the present system. In any case, any change in international law takes a great deal of time to institute itself and so it seems prudent to work for the moment with the mechanisms already in place. Significant changes need to be instituted, but as with all developments in international law, this will likely take a protracted period of time. It may be that as the problem becomes markedly worse, for instance when Bangladesh begins to lost significant portions of its territory, that the international political and the international legal communities will come to place greater emphasis on the needs and rights of the individual victims.
ABBREVIATIONS
BIBLIOGRAPHY
Books
Coomans, Fons and Kamminga, Menno T. (Eds)Extraterritorial Application of Human Rights Treaties(Oxford: Intersentia, 2004)
Crawford, James.The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries(Cambridge: CUP, 2005)
Ramcharan, B.G.The Right to Life in International Law(Lancaster: Martinus Nijhoff Publishers, 1985)
Edition(Cambridge: CUP, 2003)
Verheyan, Roda Climate Change Damage and International Law: Prevention Duties and State Responsibility (Leiden: Martinus Nijhoff, 2005)
Xue, Hanquin Transboundary Damage in International Law(Cambridge: CUP, 2003
Case law
Petition to the Inter-American Commission on Human Rights seeking relief from violations resulting from global warming caused by acts and omissions of the United States available at: http://inuitcircumpolar.com/files/uploads/icc-files/FINALPetitionIC
Journal Articles
Cerone, JohnOut of bounds considering the reach of international human rights lawCHRGJ Working Paper No.5, 2006.
Tol, Richard S.J. and Verheyan, RodaLiability and Compensation for Climate Change Damages- a legal and economic assessment viewed at: www.vulnerabilitynet.org/OPMS/getfile
Website Charter of the United Nations viewed at: http://www.un.org/aboutun/charter/
General information on the Inuit Circumpolar Conference viewed at: http://www.inuitcircumpolar.com/
General information on human rights and the environment viewed at the Centre for International Environmental Law viewed at: http://www.ciel.org/Climate/Climate_Inuit.html
United Nations Framework Convention on Climate Change viewed at: http://unfccc.int/resource/docs/convkp/conveng.