Climate Change and Human Rights: A burning cause of concern
Updated: Aug 13, 2021
Climate and sea-level scientists were not surprised when the National Atmospheric and Oceanic Administration (NOAA) issued a review in 2010 stating the last decade (2000- 2009) was the warmest on record. More than 300 scientists in 48 countries contributed to a series of reports that conclude the Earth has been getting warmer for the past 50 years and that the sea level is rising as a consequence. Coastal states, in particular those with low-lying coastal areas, shall be effected by permanent loss of land through shoreline erosion caused by extreme weather events and sea-level rise. (1) Moreover, it has been recognized that by rendering some inhabited land incapable of sustaining human habitation, climate change will also result in the forced migration of some or all of a population from their lands which also emerges the concerns of “environmental refugees”.
The term “Environmental refugees” was first introduced in a 1984 ‘International Institute for Environment and Development’ briefing document. Environmental refugees are persons who no longer gain a secure livelihood in their traditional homelands because of environmental factors. (2) People have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affected the quality of their life. (3)
These definitions demonstrate three critical concepts for the definition of an ‘environmental refugee’ i.e. displacement, an environmental event, and its impact upon people. Environmental crises that generate environmental refugees are typically placed into three broad categories: (a) long-term environmental degradation, including global warming, deforestation, land erosion, salinity, siltation, water logging, and desertification; (b) sudden natural environmental disruptions, including earthquakes, droughts, floods, hurricanes, monsoons, tidal waves, tornadoes, and volcanic eruptions. (4)
"All human beings have the fundamental right to an environment adequate for their health and well-being." (5)
The Trail Smelter Arbitration Case dealt with a dispute between the United States of America and Canada over the latter’s emission of noxious fumes which subsequently had a detrimental impact on the bordering American State of Washington. The Tribunal stated that:
“No State has the right to use or to permit the use of its territory in such a manner as to cause injury . . . to the territory of another or the properties or persons therein.”(6)
There then followed a number of conferences and international resolutions dealing with such issues as conservation of the maritime environment, nuclear energy, atomic radiation, the dumping of radioactive waste, and maritime and atmospheric pollution, some of which subsequently led to the adoption of international instruments in these areas. (7)
In 1949, the decision of the International Court of Justice (ICJ) in the Corfu Channel Case provided another significant development in terms of the State responsibility, reaffirming every State’s obligation not to “allow knowingly its territory to be used for acts contrary to the rights of other States”. (8)
However, a specific right to an environment of a particular quality (hereafter ‘right to the environment’) has not been clearly articulated in the international human rights treaties. Neither the Universal Declaration of Human Rights nor the International Bill of Rights contains a right to the environment, notwithstanding that a number of rights in these instruments arguably rely, for their fulfillment, on an environment of a certain quality.
In 1981, the African Member States of the Organization of African Unity, adopted the "African Charter on Human and People’s Rights" to promote and protect human and people’s rights. The African Charter relevantly provides, at its Article 24 that:
“All peoples shall have the right to a general satisfactory environment favorable to their development”.(9)
Furthermore, Protocol 1 (additional) to the Geneva Conventions of 1949 contains a number of provisions that deal with the protection of the civilian population and the environment from harm. Article 35(3) provides that:
“It is prohibited to employ methods or means of warfare which are intended, or maybe expected, to cause widespread, long-term and severe damage to the natural environment”.(10)
The position is reinforced in Article 55, which provides that:
“Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare that are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population and attacks against the natural environment by way of reprisals are prohibited”.
The 1972 Stockholm Conference and Declaration was perhaps the first clear articulation of the relationship between human rights and the environment. The first principle of the Stockholm Declaration states:
“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, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated”.
The International Court of Justice has also addressed the issue of the environment in its ‘Advisory Opinion’ on the ‘Legality of the Threat or Use of Nuclear Weapons’. In this decision, the ICJ noted the importance for the environment and mentioned that:
“The environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. 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”.(11)
Also the ‘Right to Health’ is established under both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as in other conventions such as the Convention on the Rights of the Child (CRC). (12)
ICESCR relevantly provides, at its Article 12 that:
“The States Parties to the present Covenant should recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.
Also, the CRC provides, at its Article 24 that:
“States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health” . . . [and that] “States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures”.(13)
In furtherance, the “Social and Economic Rights Action Centre and the Centre for Economic and Social Rights Vs. Nigeria”, the African Commission held that its Article 24 obliges the States to:
“Take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources.”(14)
People are involuntarily forced to leave for survival, due to the action of industrial development. Environmental degradation has already generated 25 million environmental refugees as estimated by the World Bank in the year 1998 (15) and this number will continue to increase rapidly. Such large movements will constitute a major setback to be ever visited by humankind. Climate change affects us all, but it does not affect us all equally. Those who have done the least to cause the problem bear the gravest consequences. The International Court of Justice has held that the protection of the environment is a vital part of the right to health and the right to life itself.’ Numerous judicial decisions there ‘have expanded the right to life to include the right to a healthy and clean environment’. There is a country named Kenya where frequent floods and droughts remain predominated which directly or indirectly affects millions of people living there. There is a country named Vietnam, which is one of the most vulnerable countries in the world to face sea-level rise. The fish and rice production is badly injured. Vietnam is also extremely disaster-prone and the situation becomes worse every time as there are no control methods for the same. There is again a country named Bangladesh which is deeply vulnerable to cyclones intrusion. The unstoppable growing population is largely impacted. Similar will the conditions prevail where the lands are low lying and such island nations are under great threat.
1) Oliver A. Smith, ‘Climate Change and Population Displacement: Disasters and Diasporas in the Twenty-First Century’; Anthropology and Climate Change (Walnut Creek, California: Left Coast Press, Inc. 2009).
2) Richard Black, “Environmental refugees: myth or reality?”; University of Sussex Press, United Kingdom, March 2001, pp. 10-17.
3) In 1985, Essam el-Hinnawi of the United Nations Environment Programme (UNEP) used what is now the most commonly used definition of an ‘environmental refugee’.
4) 6 N.Y.U. Envt. 1. L.J. 480 1997-1998 as referred from www.heinonline.org.
5) World Commission Report, Summary of Proposed Legal Principles for Environmental Protection and Sustainable Development adopted by the WCED Experts Group on Environmental Law at p. 339.
6) Trail Smelter Arbitration (U.S. v. Can.).
7) See, for example, the 1993 Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water and the 1954 International Convention for the Preservation of Pollution of the Sea by Oil.
8) United Kingdom v Albania. 1949 ICJ Reports 4.
9) African Charter on Human and People's Rights; as adopted on 27 June 1981.
10) Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol 1), 8 June 1977. Entry into force on 7 December 1979.
11) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, pp 241-242 at para 29.
12) ICESCR-Art. 12(1), CRC- Art. 24.
13) Full text of Article 24(2)(c) provides that the States Parties, shall take appropriate measures “to combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution”.
14) SERAC case; as referred from http://www.escr-net.org/sites/default/files/serac.pdf.
15) Mark Townsend, “Environmental Refugees”, The Ecologist Magazine, USA, 1992, p. 28; as referred from http://www.theecologist.org.