Stefan Newton, Guest Contributor
In her address to the 73rd Session of the United Nations General Assembly (UNGA), Prime Minister of Barbados, the Hon. Mia Mottley, abandoned a scripted speech and made a passionate appeal to United Nations (UN) Member states to make good on their commitments to climate change under the United Nations Framework on Climate Change (UNFCCC). She urged States to accelerate mobilizing the necessary funding for climate adaptation and mitigation under The Green Climate Fund.
In thinly veiled remarks, she criticized the current position of the United States of America (USA) by refusing to acknowledge the reality of climate change, noting “For us it is about saving lives. For others it is about saving profits”. It is well known by now that the USA has regrettably withdrawn from the Paris Climate Agreement: which builds upon the UNFCCC and for the first time brings all nations into a common cause to undertake ambitious efforts to combat climate change and adapt to its effects, with enhanced support to assist developing countries to do so.
Moreover, the Prime Minister pointed to the need for UN Member States to recognize that “mighty or small we must protect each other in this world”. In closing her speech, she appealed to the international community to exercise empathy and care for those States and their citizens who are most vulnerable to the effects of climate change. I humbly submit that this is perhaps the most significant speech given by a Barbadian leader to the United Nations, as it impinges on Barbados’ very survival as a nation State. Indeed, if climate change ambitions are not met, Barbados and its citizens will face very certain demise due to the effects of climate change.
Climate Change is a Human Rights Problem
While climate change is most often viewed as an environmental problem, it is also very much a human rights problem. Mary Robinson, the former president of Ireland and former High Commissioner for Human Rights, has described climate change as “probably the greatest human rights challenge of the 21st century”.
Explicit mention of human rights is now being made in international climate agreements. The Preamble to the Paris Agreement to the UNFCCC calls for all States, when acting to address climate change, to “respect, promote and consider their respective obligations on human rights”. The World Bank Report on Human Rights and Climate Change highlights the relevancy of international human rights law to climate change by linking particular social and human impacts of climate change to special human rights standards under international human rights treaties, thereby confirming human rights impacts. For example, the right to life is the most fundamental human right and well enshrined in the Universal Declaration on Human Rights and International Covenant on Civil and Political Rights.
A number of observed and projected effects of climate change will pose direct and indirect threats to the human right to life. The Intergovernmental Panel on Climate Change (IPCC) projects with high confidence an increase in people suffering from death, disease and injury from heat waves, floods, storms etc. Equally, climate change will affect the right to life through an increase in malnutrition, cardio- respiratory morbidity and mortality related climate change effects.
Despite the clear human rights implications of failure to act to combat climate change, the international community is not “grasping the baton firmly” enough through decisive policy actions to reach the ambitions of the climate change agenda. The USA- Trump led administration seems to be a lost cause with its view that climate change is a fiction. Heeding Prime Minister Mottley’s call to climate action will most likely be viewed by them as a mere courtesy, not an obligation. However, it can be soundly argued that Prime Minister Mottley’s urging of States to protect each other from the effects of climate change, are not merely aspirational or appeals to international consciousness, but are linked to and grounded in legally binding international human rights principles.
Legal Link between Human Rights and Climate Change
The Office of the High Commissioner for Human Rights (OHCHR) has set out the essentials of the legal dimensions link between Human Rights and Climate Change. International Human Rights principles to respect, protect and fulfill the human rights of all people without discrimination gives rise to a wide range of duties for State in acting on climate change. I will touch on three.
First, under these principles is the duty to mitigate climate change and to prevent its negative human rights impacts. Failure to take affirmative action to prevent human rights harms caused by climate change, including foreseeable long-term harms, breaches this obligation. Second is the duty to ensure that all persons have the necessary capacity to adapt to climate change. Falling under this duty States must ensure that appropriate adaptation measures are taken to protect and fulfil the rights of all persons, particularly those most endangered by the negative impacts of climate change e.g. small islands, riparian and low-lying coastal zones. Third, under core human rights treaties, States acting individually or collectively are obliged to mobilize and allocate the maximum available resources for the progressive realization of economic, social and cultural rights, as well as the advancement of civil and political rights and the right to development. The failure to adopt reasonable measures to mobilize available resources to prevent foreseeable climate change harm breaches this obligation.
Incorporating Human Rights into Climate Change Policy Discussions
Besides recognizing the legal implications of international human rights law as it pertains to climate change, Caribbean policy makers should also recognize the value added of incorporating human rights into discussions around climate change policy.
Among other things, a focus on human rights law may serve to locate policy within the framework of internationally agreed obligations and acceptance of certain goods, interests or goals as rights. This has the effect of establishing a hierarchy of importance among policy goals, helping to ensure that human rights are not traded off among interests lacking that status. Simply put, human rights place people before profits. This is critical as more firms and investors enter the Caribbean market whose activities may have climate and environmental impacts.
Additionally, human rights offer a normative and institutional framework for strengthened accountability and international co-operation for those responsible for adverse impacts of climate change. It may be argued that states should be encouraged to take climate action on this basis and do more in their capacity to assist and contribute to the financing of climate adaptation programs. This might be a useful bargaining chip in the realm of international relations and negotiations. For small developing states, such accountability can be used as a tool of moral suasion against large carbon emitting States like the USA which have retreated from global actions on climate change, or to spur States who are already implementing climate action targets to redouble their efforts.
Diagonal Environmental Rights
Further to policy, human rights law has an incredible potential to fill in a missing legal gap present in the international legal framework addressing climate change. The carbon emissions from large industrial States have a disproportionate impact on small lesser emitting States. Citizens of small developing States are thus marginalized and face aggravated vulnerability to human rights impacts from climate change. Yet currently there exists no formal legal mechanism for citizens to claim climate justice against large states responsible for impacting on and violating their human rights. This is referred to a Diagonal Environmental Rights; a term coined by John Knox the United Nations Independent on Human Rights relating to a safe, healthy and sustainable environment. Without going into the theory of a State’s extra-territorial human rights obligations, and proving causation, I submit that the ability to claim climate justice is well founded in the principles of international law.
As previously stated, no formal international diagonal environmental rights legal mechanism exists. Given the state of geo- political madness that has taken hold of multilateralism, I also do not see one being created and implemented by UN Member States. As the experience of the Paris Agreement has shown, it is a challenge just to get a critical mass of countries- let alone all countries- to participate in an international environmental agreement.
Therefore, the greatest hope is that existing international human rights mechanisms, such as the Inter-American Court on Human Rights (IACHR), and domestic courts are flexible enough to accommodate climate change litigation. There has been jurisprudence emerging from domestic courts that successfully incorporates rights-based arguments to climate change e.g. Pakistan in the case of Leghari v Federation of Pakistan.
Albeit these claims were made in the context of litigation by citizens against their own State for failing to respond to climate change. Nevertheless, such cases do much to add shape and contour to this emerging body of climate justice jurisprudence. They set precedents on which international, and broader litigation may find success.
Stefan Newton is a graduate of the University of the West Indies Faculty of Law. The views reflected here are entirely his own.