Skip to main content
main-content
Top

Hint

Swipe to navigate through the chapters of this book

2020 | OriginalPaper | Chapter

8. Climate Change, Environmental Degradation, and Fundamental Human Rights

share
SHARE

Abstract

This chapter looks at the relationship between climate change and fundamental human rights. Through the examination of universal and regional human rights instruments and case law, it argues that an international state obligation to provide decent environmental conditions to individuals and communities has arisen in the last decades. Moreover, in view of anthropogenic climate change, the international community has started questioning how climate change-induced environmental alterations affect human rights. The chapter examines this topic, highlighting the need for international action to avert the negative effects on human rights caused by climate change. Since the enjoyment of basic human rights such as life, health, and access to livelihood can be infringed by global warming, it is possible to link human rights law with the issue of forced climate migrants: these become in fact such where there is the impossibility to enjoy fundamental human rights at home due to climate change.
Footnotes
1
Martin (2017). Toward an Extension of Complementary Protection? In Mayer & Crépeau (Eds.), Research Handbook on Climate Change, Migration and the Law. Cheltenham: Elgar, p. 449.
 
2
Van der Vliet (2018). “Climate Refugees”, a Legal Mapping Exercise. In Behrman & Kent (Eds.), “Climate Refugees” Beyond the Legal Impasse? New York: Routledge, p. 26, referring to Morel (2014). The Right Not to Be Displaced in International Law. Cambridge: Intersentia.
 
3
Ibid., p. 21.
 
4
The link between fundamental rights and climate change has been repeatedly acknowledged within the international community. There is no question that the negative effects of climate change can affect the individuals’ enjoyment of their most basic rights. In this regard, for example, the UN Human Rights Council has identified as possible causes of deprivation of fundamental rights the following environmental phenomena: coastal erosion; sea tides; floods; drought; sea-level rise; storms, hurricanes, cyclones. Through the destruction of the political, economic, institutional structures of a community, rights such as the right to life, to health, housing, work, to culture, access to, livelihoods, and even to self-determination are likely to be put at risk. See UN Human Rights Council (2009). Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship Between Climate Change and Human Rights. https://​documents-dds-ny.​un.​org/​doc/​UNDOC/​GEN/​G09/​103/​44/​PDF/​G0910344.​pdf?​OpenElement. Accessed 12 January 2020.
 
5
See for instance Poon on this subject: “The Pacific Islands are a group of 11 Pacific Island countries, such as Fiji, Marshall Islands and Papua New Guinea, which are most vulnerable to climate change displacement. The Pacific Islands face a serious threat to their social and political stability due to constant rise in sea levels as a result of impacts of climate change […]. Those who live on Pacific Islands will be forced to continue to relocate internally, if possible, or worse, across borders as a result of climate change displacement. In fact, based on 2009 estimates, it is projected that 1.7 million people will be affected by climate change displacement by 2050 from the Pacific Islands alone”. In Poon (2018). Drawing Upon International Refugee Law. The Precautionary Approach to Protecting Climate Change-Displaced Persons. In Behrman & Kent (Eds.), “Climate refugees” Beyond the Legal Impasse? New York: Routledge, p. 165.
 
6
For a detailed analysis, see Munari & Schiano di Pepe (2012). Tutela Transnazionale dell’Ambiente. Bologna: il Mulino, Chapter 3.
 
7
See in this sense: Francioni (2014). Comments on the Preamble and on Principle 1. In Viñuales (Ed.), The Rio Declaration on Environment and Development: A Commentary. Oxford: Oxford University Press. See also Picone (2013). Comunità Internazionale ed Obblighi Erga Omnes, Naples: Jovene Editore, pp. 18–19.
 
8
See in this regard: Nespor (2009). Il Governo dell’Ambiente. Milan: Garzanti. See also Zaccal & Lugen (2016). Common But Differentiated Responsibilities Against the Realities of Climate Change. In Papaux & Zurbuchen (Eds.), Philosophy, Law and Environmental Crisis. Stuttgart: Nomos.
 
9
The Hague Declaration on the Environment, adopted on 11 March 1989, 28 I.L.M. 1308.
 
10
UNGA Resolution (1990). Need to Ensure a Healthy Environment for the Well-Being of Individuals, UNGA Res 45/94, A/RES/45/94.
 
11
Draft Principles on Human Rights and the Environment, adopted 16 May 1994, E/CN.4/Sub.2/1994/9, Annex I.
 
12
Ibid., Principles 2 and 4. On the subject of intergenerational equity, the positions defended by the United States in occasion of the 1893 Bering Sea Fur Levels Arbitration case can be interesting: “The earth was designed as the permanent abode of man through ceaseless generations. Each generation, as it appears upon the scene, is entitled only to use the fair inheritance. It is against the law of nature that any waste should be committed to the disadvantage of succeeding tenants […]. That one generation may not only consume or destroy the annual increase of product of the earth, but the stock also, thus leaving an inadequate provision for the multitude of successors which it brings to life, is a notion so repugnant to reason as scarcely to need formal refutation”. Cit. in Spier (2016). Intergenerational Equity: An Aspiration or an Effective Weapon? In Papaux & Zurbuchen (Eds.), Philosophy, Law and Environmental Crisis. Stuttgart: Nomos, p. 69.
 
13
Draft Principles on Human Rights and the Environment, adopted 16 May 1994, E/CN.4/Sub.2/1994/9, Annex I., Principles 5 e 6.
 
14
For further information and considerations, referring in particular to the European context, see Pavoni (2014). Interesse pubblico e diritti individuali nella giurisprudenza della Corte europea dei diritti umani. Naples: Editoriale Scientifica.
 
15
Cf. Knox (2015). UN Human Rights Council’s Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy, and Sustainable Environment. Compilation of Good Practices (A/HRC/28/61). See also UN OHCHR (2014). Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy, and Sustainable Environment: Focus Report on Human Rights and Climate Change. Mapping Report. UNHCR. https://​www.​ohchr.​org/​EN/​Issues/​Environment/​SREnvironment/​Pages/​MappingReport.​aspx. Accessed 22 January 2019.
 
16
See Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001), point 52. See also point 58: “The [African] Commission notes that in the present case, despite its obligation to protect persons against interferences in the enjoyment of their rights, the Government of Nigeria facilitated the destruction of Ogoniland. Contrary to its Charter obligations and despite such internationally established principles, the Nigerian Government has given the green light to private actors and the oil companies in particular, to devastatingly affect the well-being of the Ogonis”.
 
17
Arab Charter on Human Rights, adopted 15 September 1994.
 
18
ASEAN Declaration on Human Rights, adopted 9 November 2012, para. 28.
 
19
Charter of Fundamental Rights of the European Union, Article. 37. Article 11 of the Treaty on the Functioning of the European Union is relevant in this subject matter. It establishes that environmental protection objectives and environmental concerns must be integrated into any other Union’s policy.
 
20
European Court of Human Rights, Öneryildiz v. Turkey, Application no. 48939/99, 30 November 2004.
 
21
European Court of Human Rights, Budayeva e al. v. Russia, Applications no. 15339/02, 21166/02, 20058/02, 11673/02 e 15343/02, 20 March 2008.
 
22
Respectively: (i) having allowed that some households lived on an underground garbage dump that eventually exploded due to excessive gas pressure, and (ii) having failed in taking measures to protect a population subject to the risk of a widely predicted landslide.
 
23
These are normative obligations, also of administrative nature, which imply both the adoption of substantial rules and standards aimed at limiting the risks of loss of human lives and the introduction of control and verification procedures on compliance, by the interested parties.
 
24
See in this sense the European Court of Human Rights, Kyrtatos v. Greece, Application no. 41666/98 (point 52), 22 Amy 2003; Fadeyeva v. Russia, Application no. 55723/00, 30 November 2005 (point 68); Di Sarno et al. v. Italia, Application no. 30765/08, 10 January 2012 (point 80).
 
25
European Court of Human Rights, Guerra v. Italia, Application no. 14967/89, 19 February 1998.
 
26
European Court of Human Rights, Fadeyeva v. Russia; Hatton v. United Kingdom, Application no. 36022/97, 10 July 2003; Moreno Gomez v. Spain, Application no. 4143/02; Faegerskioeld v. Sweden, Application no. 37664/04, 26 February 2008.
 
27
European Court of Human Rights, Giacomelli v. Italia, Application no. 59909/00, 19 October 2006.
 
28
Social and Economic Rights Action Centre (SERAC) and Another v. Nigeria (2001) AHRLR 60 (ACHPR 2001), para. 53.
 
29
Inter-American Court of Human Rights, Maya indigenous community of the Toledo District v. Belize, case 12.053, report no. 40/04, para. 193–197.
 
30
Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters, adopted 25 June 1998, entered into force 30 October.
 
31
Munari & Schiano di Pepe (2012). Tutela Transnazionale dell’Ambiente. Bologna: il Mulino, p. 128 (translation from Italian by this author). Please also refer to Chapters 3.2.4 and 3.2.5 of the aforementioned work for a more complete and in-depth examination of the procedural dimension of the right to a healthy environment, both at the international and European Union level.
 
32
Cf. Francioni & Quirico (2016). Untying the Gordian Knot. In Quirico & Boumghar (Eds.), Climate Change and Human Rights. New York: Routledge, p. 147. See also UNEP et al. (2014). Regional Consultation on the Relationship Between Human Rights Obligations and Environmental Protection, with a Focus on Constitutional Environmental Rights. See also Boyd (2012). The Environmental Rights Revolution. Vancouver: UBC Press.
 
33
Cf. Knox (2015) (op. cit.).
 
34
International Court of Justice, Gabcikovo-Nagymaros case (cit.), p. 7, para. 41. See also: International Court of Justice, Advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996, p. 226.
 
35
See in this regard Boyd (2012). The Constitutional Right to a Healthy Environment. Environment: Science and Policy for Sustainable Development, 4, p. 3 ff.
 
36
International Covenant on Economic, Social, and Cultural Rights, adopted on 16 December 1966, entered into force 3 January 1976.
 
37
UN High Commissioner for Refugees (UNHCR) (1998). Guiding Principles on Internal Displacement. ADM 1.1.PRL. 12.1, PR00/98/109.
 
38
See Atapattu (2016). Human Rights Approaches to Climate Change: Challenges and Opportunities. New York: Routledge, p. 68: “The rights affected include the right to life, right to property and the right to a livelihood, while those living on small island states are facing the risk of extinction as their island nations are threatened by submersion associated with sea-level rise. Other communities are facing the likelihood of losing their traditional way of life, their culture and their traditional lands”.
 
39
For a detailed explanation as to why this happened, see McInerney-Lankford (2013). Human Rights and Climate Change. In Gerrard & Wannier (Eds.), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate. New York: Cambridge University Press, pp. 229–230: “The international bill of rights is a product of the post-World War II era and is oriented toward preventing specific moral harms and preserving a set of substantive and procedural entitlements for all. The climate change regime for its part emerged much later, as the outcome of very different movements and awareness. It is aimed at tackling harms that were not contemplated in the design of human rights frameworks, which are therefore ill equipped to tackle them”.
 
40
See UN Human Rights Council Resolution 7/23 (2008). Human Rights and Climate Change. https://​ap.​ohchr.​org/​documents/​E/​HRC/​resolutions/​A_​HRC_​RES_​7_​23.​pdf. Accessed 15 March 2019.
 
41
UN Human Rights Council (2009). 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. https://​www.​refworld.​org/​docid/​498811532.​html. Accessed 7 September 2019.
 
42
Although not specifically referring to human rights, the Paris Agreement’ highlights this possibility as well in its Preamble: “Recognizing that Parties may be affected not only by climate change, but also by the impacts of the measures taken in response to it”.
 
43
In this regard, please also refer to Atapattu (2016) (op. cit.), p. 71.
 
44
According to OHCHR data, between 1980 and 2000 tropical cyclones have caused the death of approximately 250,000 individuals, while between 2000 and 2004 the lives of approximately 262 million people (98% of whom reside in developing countries) were affected negatively every year from disasters in whose manifestation climate change played a significant role. See UN OHCHR (2014). Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: Focus Report on Human Rights and Climate Change. Mapping Report. UNHCR. https://​www.​ohchr.​org/​EN/​Issues/​Environment/​SREnvironment/​Pages/​MappingReport.​aspx. Accessed 22 January 2019.
 
45
International Covenant on Economic, Social, and Cultural Rights, Article 6.
 
46
Tomuschat (2010). The Right to Life: Legal and Political Foundations. In Tomuschat, Lagrange, & Oeter (Eds.), The Right to Life. Leiden: Brill, p. 3.
 
47
UN Human Rights Committee (HRC) (2018). General comment no. 36: Article 6 (Right to Life), para. 62. https://​www.​refworld.​org/​docid/​5e5e75e04.​html. Accessed 7 May 2020.
 
48
Again, limiting ourselves to some cases in which the problem of a healthy environment and the exercise of the right to life has arisen, we can refer to the rulings of the Inter-American Court of Human Rights Yanomani Indians v Brazil, case no. 7615, 3 March 1985; Kawas-Fernandez v Honduras, 3 April 2009; Maya Indigenous Community of the Toledo District v Belize, case no. 12.053, 12 October 2004.
 
49
See the Ogoniland case (cit.). See also Norbet Zongo v. Burkina Faso, appl. 13/2011, March 2014.
 
50
UN Human Rights Council (2009). 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. https://​www.​refworld.​org/​docid/​498811532.​html. Accessed 7 September 2019, para. 70.
 
51
UN Human Rights Committee (HRC) (2020). Ioane Teitiota v. New Zealand (advance unedited version), CCPR/C/127/D/2728/2016, 7 January 2020. https://​www.​refworld.​org/​cases,HRC,5e26f7134.​html. Accessed 7 June 2020. On which see, ex multis, UNHCR (2020). UN Human Rights Committee Decision on Climate Change Is a Wake-Up Call, According to UNHCR, https://​www.​unhcr.​org/​news/​briefing/​2020/​1/​5e2ab8ae4/​un-human-rights-committee-decision-climate-change-wake-up-call-according.​html. Accessed 10 February 2020; Sinclair-Blakemore (2020). Teitiota v New Zealand: A Step Forward in the Protection of Climate Refugees Under International Human Rights Law?, Oxford Human Rights Hub Blog. https://​ohrh.​law.​ox.​ac.​uk/​teitiota-v-new-zealand-a-step-forward-in-the-protection-of-climate-refugees-under-international-human-rights-law/​. Accessed 13 March 2020; Amnesty International (2020). UN Landmark Case for People Displaced by Climate Change. https://​www.​amnesty.​org/​en/​latest/​news/​2020/​01/​un-landmark-case-for-people-displaced-by-climate-change/​. Accessed 16 February 2020.
 
52
See for instance Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment, decision of the High Court of New Zealand no. [2013] NZHC 3125 of 26 November 2013, para. 63.
 
53
For a dissenting opinion on the specific issue of water availability in Tarawa, please refer to the Individual opinion of Committee member Vasilka Sancin. UN Human Rights Committee (HRC) (2020). Ioane Teitiota v. New Zealand (cit.), Annex 1.
 
54
UN Human Rights Committee (HRC) (2020). Ioane Teitiota v. New Zealand (cit.), para. 9.6–10.
 
55
Ibid., para. 9.12.
 
56
Ibid.
 
57
Ibid., para. 9.11.
 
58
Ibid., para. 9.3.
 
59
Ibid., para. 9.4. Refer in this regard to UN Human Rights Committee (HRC) (2020). General comment no. 36: Article 6 (Right to Life) (op. cit.), para. 62.
 
60
See Goudarzi (2016). As Earth Warms, the Diseases That May Lie Within Permafrost Become a Bigger Worry Scientific American. https://​www.​scientificameric​an.​com/​article/​as-earth-warms-the-diseases-that-may-lie-within-permafrost-become-a-bigger-worry/​. Accessed 12 May 2019.
 
61
In this sense, see UN Committee on Economic, Social and Cultural Rights (CESCR) (2000), CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12). https://​www.​refworld.​org/​docid/​4538838d0.​html. Accessed 14 June 2019.
 
62
Please refer for a detailed analysis to Chapter 11 and, more specifically, European Court of Human Rights, MSS v. Belgium & Greece, Application no. 30696/09, 21 January 2011, para. 252–254. See also European Court of Human Rights, Sufi & Elmi v. United Kingdom, Applications no. 8319/07 and 11449/07, 28 June 2011, para. 282.
 
63
Poon (2018) (op. cit.). pp. 162–163.
 
64
For more information, see Franca (2016). Climate Change and Interdependent Human Rights to Food, Water, and Health: The Contest Between Harmony and Invention. In Quirico & Boumghar (Eds.), Climate Change and Human Rights: An International and Comparative Law Perspective. New York: Routledge, p. 89 ff.
 
65
Sobering to recall that approximately more than 800 million worldwide people suffer from malnutrition.
 
66
UN General Assembly Resolution (2015). Transforming Our World: The 2030 Agenda for Sustainable Development (A/RES/70/1).
 
67
UN Human Rights Council (2008). Report of the Special Rapporteur on the Right to Food, Jean Ziegler. Para. 5. https://​www.​refworld.​org/​docid/​47c3dbe82.​html. Accessed 15 January 2020.
 
68
See UN-Water, Climate Change adaptation Is Mainly About Water. https://​sustainabledevel​opment.​un.​org/​content/​documents/​UNWclimatechange​_​EN.​pdf. See also UN-Water (2017). Climate Change Adaptation. The Pivotal Role of Water. UN-Water (2019). Policy Brief CLIMATE CHANGE AND WATER. Final Draft. https://​www.​unwater.​org/​publications/​un-water-policy-brief-on-climate-change-and-water/​. Accessed 20 March 2020.
 
69
Cf. UN Committee on Economic, Social and Cultural Rights (CESCR) (2003). General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant). https://​www.​refworld.​org/​docid/​4538838d11.​html. Accessed 13 September 2019. Refer also to UN General Assembly Resolution (2010). The Human Right to Water and Sanitation, UN Doc. A/RES/64/292.
 
70
See in this sense Knox (2015) (op. cit.). See also Decision 1/CP.16, The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, UNFCCC COP 16.
 
Metadata
Title
Climate Change, Environmental Degradation, and Fundamental Human Rights
Author
Giovanni Sciaccaluga
Copyright Year
2020
DOI
https://doi.org/10.1007/978-3-030-52402-9_8

Premium Partner