Human+fundamental rights and climate change

In this blogpost we will examine human rights and their protection under international law. During class we will also look at the constitutional protection of fundamental rights, taking the EU and its “Charter of Fundamental Rights” as an example (obviously the EU is not a state; it is a mix between an international organization and a federal state; however, in most aspects relevant for this course, the EU resembles federal states like the US; consequently, we will treat it as such, and describe it as a “quasi-federal” entity).

Sources of human+fundamental rights

The term “human rights” is typically employed in the context of international agreements. By contrast, the term “fundamental rights” (or “constitutional rights”) is employed in the context of national constitutions (the EU, which essentially is a mix between an international organization and a federal state, has a human rights document called the “Charter of Fundamental Rights”, EU-FRC). However, there is no difference in substantive terms: for example, the right to life is guaranteed by international human rights agreements (e.g. Article 6 ICCPR and Article 2 ECHR) as well as by all national constitutions.

International human rights agreements

After World War II, human+fundamental rights were codified in international treaties, most notably the

• (non-biding) Universal Declaration of Human Rights (1948),
• and the (binding) International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (both adopted in 1966, and entered into force in 1976).

Moreover, three regional human rights treaties were adopted:

• the European Convention on Human Rights (ECHR, drafted in 1948 and entered into force in 1953),
• the African Charter on Human and Peoples’ Rights (Banjul Charter, entering into force in 1986),
• and the American Convention on Human Rights (entering into force in 1978)

Human rights treaties from a substantive perspective

Many human rights treaties protect the same rights, though they may be phrased differently. However, important differences exist; typically, three generations of human rights treaties are distinguished.

• The post-war treaties, such as the ECHR, protected the so-called “first-generation” human rights. These are “civil and political rights”, such as the right to life and to a fair trial, freedom of speech, of religion and of assembly.
• The treaties from the 1960s and 1970s often included “second-generation” human rights. These are “socio-economic rights”, which often include a right to food, housing, education, healthcare, work and unemployment benefits.
• Treaties concluded in subsequent decades may include “third-generation” rights, a diverse set of rights that might loosely be grouped together as “collective rights”. Examples include the right to self-determination, and the right to a healthy environment.

Rights explicitly relating to climate are adressed in none of the human rights treaties listed in the previous section. Whether this matters is the subject of the home assignment. Please complete it before continuing to read the blogpost.

Home assignment — part 1

For the home assignment, you were assigned one of the above-mentioned human rights treaties. Please answer the following questions:

1. Which rights protected by the assigned treaty are affected by climate change?
2. Can it be argued that the failure of a state to adopt sufficient mitigation and adaptation measures is a violation of the rights protected by the treaty? If yes, which one(s)?
3. Some people argue that a new right should be codified, namely the “right to a stable climate”. Do you agree?

The procedural dimension of human+fundamental rights: enforcement

It is one thing to “have a right”; it is quite another to get it enforced. This depends on the “enforcement mechanisms” that the relevant treaty provides for. Whether these mechanisms are “strong” or “weak” depends on a number of procedural factors, such as the following:

• “Standing” — who can file a complaint? Can individuals file a complaint? Can NGOs file complaints, either for a group of affected individuals, or for the general public?
• Who hears the complaint? Is it a committee of state representatives, or is it a court? Is the body required to rule on each complaint that is filed?
• Is the ruling binding? Can a state be ordered to cease the violation? Can it be ordered to pay damages?
• Do states usually comply with the decisions of the committee/court?

Generally speaking, enforcement mechanisms of human rights on the international level are much weaker than enforcement mechanisms of fundamental rights on the national level.

• The International Covenant on Economic Social and Cultural Rights (ICESCR) requires states to submit regular reports to the Committee on Economic, Social and Cultural Rights, which issues recommendations to the states in response. A number of states have ratified the “optional protocol”, which enables individuals to address direct complaints to the Committee.
• The American Convention on Human Rights is monitored by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. After exhausting domestic judicial means, individuals and NGOs can petition the Commission, which can issue a report, or refer the case to the Court, which may award damages.
• The African Charter on Human and Peoples’ Rights (Banjul Charter) is monitored by the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights. The Banjul Charter grants standing e.g. to NGOs.
• The European Convention on Human Rights (ECHR) is monitored by the European Court of Human Rights (ECtHR). Individuals who have exhausted domestic judicial means have the right to appeal to the ECtHR. The court’s judgments are binding and may also include the award of damages. State compliance is high. However, NGOs can usually not bring lawsuits because the ECtHR interprets the standing requirement narrowly.

The Ogoniland and the Inuit cases

We will now look at a number of examples of how claims under international human rights treaties relating to environmental issues play out in practice. In this section, we deal with cases decided under the African Charter on Human and Peoples’ Rights (Banjul Charter) and the American Convention on Human Rights, respectively. In the next section we look at the case law of the European Court of Human Rights (ECtHR).

The Ogoniland case

Shell has been exploiting oil reserves in the Niger delta since the 1950s. Frequent oil spills have led to massive environmental degradation, destroying both the land and the groundwater. This seriously affected the Ogoni people, who live in that region.

Ken Saro-Wiwa, a poet and leader of the non-violent protests by the Ogoni people, was executed by the Nigerian military government in 1995.

Shell, together with a government company, were allowed to operate by the military government of Nigeria without any oversight or regulation aimed at health, safety or environmental protection. Moreover, the government essentially put its military power at the disposal of the oil companies: the non-violent Ogoni protest movement was repressed, villages were attacked, and community leaders were executed. In total, the military government was responsible for the death and displacement of thousands of individuals. Two NGOs brought a complaint to the African Commission on Human and Peoples’ Rights, which found that Nigeria had breached human rights enshrined in the Banjul Charter, including the following:

• The right to health (Article 16) and the right to a satisfactory environment (Article 24): the Commission held that Article 24 “imposes clear obligations upon a government. It requires the state to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation”;
• the right of peoples to dispose of their resources (Article 21): the Commission held that this also requires the government to take sufficient steps to keep private parties (i.e., the oil companies) from further damaging the land.
• The Commission also found that the right to food (implicit in Articles 4,16 and 22, i.e., the rights to life, health, and economic and social development) was violated because the government did not prevent the environmental destructions.

Establishing the link between human rights and climate change: the Inuit Petition to the Inter-American Commission

An early attempt to mobilize human rights in relation to climate change-related objectives was the inuit petition to Inter-American Commission on Human Rights (IACHR) in 2005.

A current graphic shows the development of the global sea ice area over the past four decades.

The petition was submitted by Sheila Watt-Cloutier, the head of the Inuit Circumpolar Conference, and 62 other Inuit individuals from the arctic regions of the US and Canada. It drew from the2004 Arctic Climate Impact Assessment, which painted a stark picture of the effects climate change will have on the Arctic (see graphic on the left for the current situation). It asked the IACHR to declare the US, as the (then) largest emitter of CO2, responsible for breaches of human rights under the American Declaration of the Rights and Duties of Man. The summary of the petition is worth reading, as it illustrates the far-reaching impact that climate change had on Inuits already more than a decade ago. Human rights violations addressed by the petition include the following:

“Because Inuit culture is inseparable from the condition of their physical surroundings, the widespread environmental upheaval resulting from climate change violates the Inuit’s right to practice and enjoy the benefits of their culture. […]

The Inuit’s fundamental right to use and enjoy their traditional lands is violated as a result of the impacts of climate change because large tracks of Inuit traditional lands are fundamentally changing, and still other areas are becoming inaccessible. […]

The Inuit’s fundamental right to enjoy their personal property is violated because climate change has reduced the value of the Inuit’s personal effects, decreasing the quality of food and hides, and damaging snowmobiles, dog sleds and other tools. Their right to cultural intellectual property is also violated, because much of the Inuit’s traditional knowledge, a formerly priceless asset, has become frequently unreliable or inaccurate as a result of climate change. The Inuit’s fundamental rights to health and life are violated as climate change exacerbates pressure on the Inuit to change their diet, which for millennia has consisted of wild meat and a few wild plants. […]

The Inuit’s fundamental rights to residence and movement, and inviolability of the home are likewise violated as a result of the impacts of climate change because the physical integrity of Inuit homes is threatened.[…]

The Inuit’s fundamental right to their own means of subsistence has also been violated as a result of the impacts of climate change. […]”

Regarding the responsibility of the US, the petition held:

“The United States of America, currently the largest contributor to greenhouse emissions in the world, has nevertheless repeatedly declined to take steps to regulate and reduce its emissions of the gases responsible for climate change. […] United States has explicitly rejected international overtures and compromises, including the Kyoto Protocol to the U.N. Framework Convention on Climate Change, aimed at securing agreement to curtail destructive greenhouse gas emissions. With full knowledge that this course of action is radically transforming the arctic environment upon which the Inuit depend for their cultural survival, the United States has persisted in permitting the unregulated emission of greenhouse gases from within its jurisdiction into the atmosphere. Protecting human rights is the most fundamental responsibility of civilized nations. Because climate change is threatening the lives, health, culture and livelihoods of the Inuit, it is the responsibility of the United States, as the largest source of greenhouse gases, to take immediate and effective action to protect the rights of the Inuit.”

However, the IACHR decided that it would not consider the petition, arguing that the information that had been provided was insufficient (thereby obviously taking the “easy way out”, rather than having to decide on a politically contentious issue).

Environmental rights under the ECHR

Maybe the most robust international human rights regime on environmental issues has been developed on the basis of the ECHR. The ECHR was established in 1950, and therefore does not hold explicit rights relating to the environment. In this regard, the ECtHR has stated:

“neither Article 8 nor any of the other articles of the Convention are specifically designed to provide general protection of the environment as such” (Kyrtatos v Greece, 2003)

However, this did not keep the ECtHR from developing the rights granted by the ECHR. It views the ECHR as a

“living instrument which […] must be interpreted in the light of present-day conditions.” (Tyrer v UK, 1978)

From this perspective the ECtHR has interpreted the rights established by the ECHR as including rights relating to the environment. In particular, the ECtHR has found the following rights to have an environmental dimension:

• Article 2 (right to life)
• Article 8 (right to respect for private and family life)
• Article 1 of the First Protocol to the ECHR (right to property)

We will now look at a few cases that illustrate the ECtHR’s approach, and which might provide a basis for developing the case law further in relation to climate change.

Öneryildiz v Turkey (2004) : environment and the right to life + property

In Istanbul, a slum was located next to a garbage dumping ground. A methane explosion at the dumping ground killed several of its inhabitants. Despite knowledge about the significant and immediate danger posed by the site, the authorities had failed to act. The ECtHR ruled that the Turkish authorities were under a positive obligation to take preventive measures, which they had breached:

“[t]he positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.”

Moreover, Turkey was found to have acted in breach of the right to property, as it had not taken active steps to prevent the destruction of property. It is important to emphasize here that the states face a positive obligation to prevent harm.

Guerra v Italy (1998) and Fadeyeva (2005) — environment and the right to private and family life

The case Guerra deals with the following situation: people lived in proximity of a chemical plant that emitted toxic fumes, and which was classified as “high risk” by the authorities. However, the inhabitants of the area were not informed about the health risks associated with those fumes. According to the ECtHR, this amounted to a breach of the individuals’ right to private and family life. It held that

“severe environmental pollution may affect individuals’ well being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely”

Similarly to Öneryildiz, the ECtHR held that states face a positive obligation, i.e., an active duty to prevent harm.

Beyond such obligation to inform, the states also face an obligation to protect the rights of individuals through the regulation of pollution, as the ECtHR held in Fadeyeva (2005), a Russian case about people living in proximity to another industrial plant. Here, the ECtHR found that Russia had breached Article 8, as state responsibility

“may arise from a failure to regulate private industry’.”

Possible obstacles: Hatton v UK (2003)

However, the ECHR has, so far, shown significant restraint in scrutinizing broader policy choices made by governments. This is illustrated by the case Hatton v UK (2003). Here, residents living closeby Heathrow Airport had complained about the rise of night flights, which affected their health and homes. The ECHR rejected the claims, but also made the following, broader statement:

“[T]he Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions.”

The ECHR thereby seems to be uncomfortable with replacing governmental regulatory choices with its own evaluation. This might be a potential obstacle for climate change-related cases, where a court decision would probably affect public policy choices more than in cases that deal with e.g. the pollution of an individual industrial plant.

→ However, the situation might be different if it can be shown that governments have failed consistently to take the necessary measures to prevent dangerous climate change. Moreover, the clear and present danger posed by climate change cannot reasonably be denied, and thus may support a broader judgment of the ECtHR.

Home assignment — part 2

Could Articles 2 + 8 ECHR and Art 1 of the First Protocol be successfully mobilized against a government failing to take sufficient steps to curb CO2 emissions?

Procedural rights (Aarhus Convention + ECHR)

A look into the academic literature shows that legal commentators have been relatively cautious about the prospects of mobilizing international human rights regimes . However, many believe that procedural rights relating to the environment developed over the past decades may be important also in regard to climate change:

• According to the Aarhus Convention, which has been signed mostly by European countries, countries must enable public participation in environmental decision-making (Articles 6–8). This includes early access to information. → See, similarly, ECtHR on Article 8 ECHR e.g. in Guerra.
• Article 9 of the Aarhus Convention (“access to justice”) requires a broad right to judicial review to everybody who has a “sufficient interest.” This includes, most notably, NGOs, which can thus engage in public interest litigation. The provision requires states to provide adequate, fair and effective judicial remedies. Under the Aarhus Convention, individuals and NGOs may also address complaints to the Convention’s non-compliance committee, which is nominated independently from the states. → see also ECtHR on Article 8 ECHR e.g. in Taskin v Turkey

These procedural rights may be mobilized within a broader legal-political strategy. For example, environmental NGOs like Greenpeace or Client Earth frequently file for access to documents by the European Union as part of their work, thereby e.g. uncovering the influence of fossil fuel or car manufacture lobbyists on the European political process