human rights – Cabot Institute for the Environment blog

On 20th January this year the United Nations Human Rights Committee released a landmark decision on people seeking international protection due to the effects of climate change. The decision did not include specific guidance as to where the tipping point lies, but it nevertheless remains highly relevant to future similar potential cases around the world.

The case and the plot twist

The case deals with the individual communication made by Ioane Teitiota, a national from the South Pacific country of Kiribati, under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Based on this Protocol, he claimed that New Zealand had violated his right to life by rejecting his request for refugee status and returning him and his family home in 2015.

Flooded sea wall by a village on Tarawa, Kiribati (UN)

Teitiota argued in his case that the effects of climate change, such as sea-level rise, had forced him to migrate from Tarawa (the principle island in Kiribati) to New Zealand. He claimed that freshwater on Tarawa had become scarce due to salinization and that eroded inhabitable lands had resulted in not only a housing crisis but also land disputes. These, combined with social-political instability, created a dangerous environment for him and his family.

New Zealand’s judicial system did not find evidence that Teitiota had been involved in a land dispute or that he faced a real chance of being harmed in this context – that he was unable to grow food, find accommodation or access to potable water; that he faced life-threatening environmental conditions; and that his situation was materially different from other residents of Kiribati.

The Human Rights Committee supported the decision adopted by New Zealand and rejected almost all arguments brought by Teitiota. However, it specifically acknowledged that “without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under Article 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states […] given that the risk of an entire country becoming submerged under the water is such an extreme risk, the conditions of life in such country may become incompatible with the right to life with dignity before the risk is realized.” (Parag. 9.11)

This paragraph has caught international attention. To be clear, the Committee is not expressly banning the return home of someone requesting international protection due to the impacts of climate change. But it indicates that states, individually and/or collectively, could be prohibited from sending people back to life-threatening conditions if they don’t cooperate to tackle the adverse effects of climate change in those countries. If the conditions in those countries are not thoroughly analyzed before discarding risk, they could breach the powerful international obligation of non-refoulement.

Landmark decision or a passing storm?

Despite delivering an important message, the Human Rights Committee ruling does not provide explicit guidance for its implementation. Nevertheless, assumptions can be extracted from the document that shed light on its relevance and growing significance.

To begin with, it is the first-ever ruling adopted by a UN Committee regarding the claim of a person seeking refuge due to climate change. It also reinforces the idea that environmental degradation, climate change and unsustainable development can compromise effective enjoyment of the right to life, as stated previously in the General Comment No. 36 and the case of Portillo Cáceres et al. v. Paraguay.

Furthermore, despite not being legally binding, the decision is based on international legal obligations assumed by the 172 States Parties to the ICCPR, and almost 106 States Parties to the Optional Protocol. The latter allows individual claims against the ICCPR such as Teitiota’s.

Contrary to media reports, such as those by CNN and The Guardian, the Human Rights Committee did not address Teitiota as a climate refugee. Instead it considered him a person under the protection of the ICCPR whose life could be at risk of being exposed to cruel, inhuman or degrading treatment due to the impacts of climate change. This means that the Committee´s examination was based on factors and standards intended to consider if there was a threat to Teitiota’s life in Kiribati from the perspective of International Human Rights Law, which is wider and more inclusive than that of International Refugee Law.

Sandbags attempt to prevent village huts flooding on Tarawa, Kiribati (Brad Hinton)

The Committee established that individuals seeking refugee status are not required to prove that they would face imminent harm if returned to their countries, implicitly relaxing the probatory standard required for pursuing international protection under a human rights scope. It argued that individuals could be pushed to cross borders looking for protection from climate change-related harm, caused not only by sudden-onset events but also slow-onset processes (Parag. 9.11).

The Human Rights Committee has continually raised the standard of states’ analyses of protection requests. In this ruling, it recognised that New Zealand’s courts carried out a careful and in-depth examination of both Kiribati’s and Teitiota’s situations before proceeding to deport him. But alongside this it highlighted factors that must be considered in future similar cases: for example, the prevailing conditions in the person’s country of origin; the foreseeable risks; the time left for authorities and the international community to intervene; and the efforts already underway (Parag. 9.13).

In this way, the Committee’s ruling represents a significant step forward. It has established new standards that may lead to the eventual international protection of people impacted by climate change. From now on, states should examine in detail the climatic and environmental conditions of a migrant’s country of origin under the possibility of breaching the non-refoulement obligation. As the former UN Special Rapporteur on human rights and the environment, John Knox, said: “If the crisis continues to worsen, a similar case in a few years may reach a very different result.”

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This blog is written by Ignacio Odriozola, who is studying the MSc in Migration and Mobility Studies at the University of Bristol. He is a lawyer for the Universidad de Buenos Aires and a researcher for the South American Network for Environmental Migrations (RESAMA). This blog has been republished with kind permission from the Migration Mobilities Bristol. View the original blog.

Calin Tatu/Shuttestock.com

The international community has widely acknowledged the severe threats posed by the impacts of climate change to a series of human rights, including the rights to life, health, and an adequate standard of living. But a stark gap has emerged between this acknowledgement in global climate policy – evidenced by a non-binding clause in the preamble of the Paris Agreement – and their actions to meet promised targets.

How can we hold governments accountable to their human rights duties? A Dutch case recently upheld by the appeals court might hold the answer.

In June 2015, The Hague District Court and a group of 886 concerned citizens, united by the environmental interest group Urgenda Foundation, made history. This, the first successful climate change case brought on human rights and civil law grounds, saw the Dutch government ordered to reduce their greenhouse gas emissions by a minimum of 25% on 1990 levels by the year 2020.

Three years on – against a backdrop of intense scrutiny and after an appeal lodged by the government – The Hague Court of Appeal upheld this decision on October 9. Indeed, it has gone significantly further in affirming the duties of care owed by the state to its people. The court considered the weight of the scientific evidence presented by the Intergovernmental Panel on Climate Change (IPCC) and the recommendations of successive UN conferences to reach an informed conclusion on the required mitigation targets commensurate with the prevention of dangerous climate change.

Marjan Minnesma, director of environmental group Urgenda, arrives at court prior to the appeal. Jerry Lampden/EPA

Significantly, the judges reached this decision by applying the European Convention on Human Rights: the right to private and family life and the right to life more broadly. As such, this case reaffirms the existence of obligations on the part of the state to take concrete measures to prevent the infringement of these rights where the authorities are aware of the existence of a real and imminent threat.

These obligations were held to extend to industrial activities which threaten the rights of people within the state’s jurisdiction. Based on an analysis of the scientific evidence, the court concluded that climate change presents a real and imminent threat to the enjoyment of citizens’ rights as spelled out in the EU convention. They ruled that a 25% emissions reduction is the minimum required to fulfil the government’s duty of care.

Human rights alarm

The Urgenda appeal decision was handed down too early for the findings of the most recent IPCC report on global warming of 1.5ºC, which was published the day before the ruling, to be integrated into the judges’ reasoning. But these findings will significantly strengthen the evidential basis of future claims.

The IPCC report outlines the stark increase in the risks to human health, food and water security, and livelihoods associated with 2ºC of warming, when compared to 1.5ºC. The evidence presented on human health, including the increased risk of heat-related morbidity and mortality, projected with “very high confidence”, is particularly striking. The climate is currently 1ºC warmer than pre-industrial levels, and with the planet projected to reach 1.5ºC as early as 2030 if current trends continue, the alarm on the imminence of the threat to human rights has been sounded.

No legally binding human rights provisions or remedies are provided within the international climate change regime. And so we must turn to the courts to clarify state duties. The Urgenda case sets an encouraging precedent. And there are many more examples of rights-based claims being brought against governments in Belgium, Canada, Colombia, the UK, and even against the EU institutions. This marks a sea change in the use of human rights to hold policymakers to account for their inaction on climate change.

The decision by the Netherlands court of appeals in #Urgenda immediately becomes the most important judicial decision yet on the application of human rights law to climate change. 1/10 https://t.co/8ioKxFEjly

— John H Knox (@JohnHKnox) 9 October 2018

A new approach

In the face of the severity and imminence of the environmental risks we face, the approach to human rights protection adopted by the Urgenda judges is crucial. If courts focus on the imminent risks to human life and health, cases brought forward by particularly climate-vulnerable groups should be prioritised.

Individuals most at risk from rising temperatures and extreme weather events – including those whose livelihoods, socio-economic status, and geographic susceptibility result in them being disproportionately affected – would have the strongest claims. Civil society organisations have a crucial role to play in facilitating access to justice for such individuals, for whom entrenched structural barriers often mean that individual access to the courts remains out of reach.

To effectively accommodate climate risks of this nature the existing legal doctrine will need to be adapted, bringing together environmental principles and human rights. The role of the courts themselves is being called into question by climate litigation: the separation of powers between policymakers and the judiciary is embedded in legal systems around the globe, yet the protection of fundamental rights is intended to transcend this divide. It is the duty of the courts to act as a check on executive action and, in this case, inaction, where the enjoyment of rights is in jeopardy.

Never before has the role of the courts been so significant in influencing the path of global policy. In the face of inadequately ambitious action by policy-makers, civil society movements and the courts are the agents of change securing climate action.

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This blog was written by Cabot Institute member Alice Venn, a PhD Candidate in Environment, Energy & Resilience and Unit Coordinator in Environmental Law, University of Bristol. This article is republished from The Conversation under a Creative Commons license. Read the original article.

Alice Venn

Tag: human rights

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The case and the plot twist

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Human rights alarm

— John H Knox (@JohnHKnox) 9 October 2018

A new approach