Climate Change: Catastrophic Impacts and Human Rights by John von Doussa
Whilst there is now plenty of discussion about the responses that governments should be making to address the predicted consequences of climate change, the focus seems to have been largely on the economic, trade and security issues. The social and human rights implications rarely rate a mention. Tonight I take the opportunity to look at climate change through a human rights lens; and then discuss whether, in responding to the change, human rights principles have a role.
When climate change is viewed through a human rights lens, the picture looks very different from the scientific statistics and economic forecasts we generally hear. The human rights lens shows populations becoming increasingly vulnerable to poverty and social deprivation as large tracts of previously fertile land become useless. We can anticipate violent conflicts over limited water supplies becoming more severe and frequent. We see problems in controlling infectious diseases, which are also spreading wider. We see rising sea-levels submerging low-lying atoll countries and delta regions, or making them uninhabitable by inundating their fresh water tables.
These are scenarios which directly threaten fundamental human rights; rights to life, to food, to a place to live and work.
Whats more, the human rights lens brings into focus the reality that the world’s poor and marginalised, all too often women and children, will be disproportionately affected by climate change they are more exposed to disasters and have much lower capacity to cope with them exacerbating existing social inequity at both the local and international level.
Within Australia, it has been predicted that northern Aboriginal communities will bear the brunt of climate change, with more than 100,000 people facing serious health risks from malaria, dengue fever and heat stress, as well as loss of food sources from floods, drought and more intense bushfires. In the Torres Strait Islands, at least 8000 people will lose their homes if sea levels rise by 1 metre.
The UNDP’s Human Development Report 2007/2008 argues that mass environmental displacement, the loss of livelihoods, rising hunger, and water shortages have the potential to unleash national, regional and global security threats.
According to the fifth report from the Working Group on Climate Change and Development, Up in Smoke? Asia and the Pacific, which was released in November 2007, the human drama of climate change will largely be played out in Asia, where over 60 per cent of the world’s population, around 4 billion people, live.
With climate change becoming a key topic in national and global politics, the first response has been to pursue measures to mitigate its rate of acceleration, for example by curbing green-house gas omissions. We are presently in the midst of further discussions on an agreement to replace the Kyoto Protocol once it expires in 2012.
And recognising that climate change will continue, even with successful mitigation measures, governments have also moved to encourage adaptation by providing financial support to affected communities so that they can cope with changing conditions. The notion of sustainable development has become part of the new mitigation and adaptation vocabulary, along with concepts like contraction and convergence.
Australia and other developed nations have accepted obligations under the United Nations Framework Convention on Climate Change to help developing nations implement regional adaptation programs. However, to date delivery through these programs has been limited. The total international contribution has amounted to around US$26 million. For the purposes of comparison; this is equivalent to one weeks worth of spending under the United Kingdom flood defence program.
Archbishop Desmond Tutu has argued that we are drifting into a world of adaptation apartheid with the world’s poor left to sink or swim through a problem that is not of their making, while citizens of the rich world are protected from harm.
An example of the way this differential impact could arise within our community illustrates the point. The focus on shifting energy sources to low carbon alternatives is likely to mean the more widespread introduction of minimum energy performance standards, for electrical appliances, cars and buildings, all of which have the potential to increase costs for users. Pricing carbon into energy means unit costs will rise. The most disadvantaged will struggle to live with increased costs.
Overseas, however, climate change catastrophes are already happening that are beyond mitigation and adaptation remedies. Displacement of communities has started. As displacement increases, so will the movement of people not only within the boundaries of their countries, but across borders and across oceans.
There is growing consensus amongst experts that by as soon as 2050 the number of people displaced by climate change will be in the order of 150 million and there are many higher estimates ranging up to 1 billion.
Australian Federal Police Commissioner Mike Keelty has said publicly that the potential security issues from climate change are enormous and should not be underestimated. He argues that in their millions, people could begin to look for new land and they will cross oceans and borders to do it.
All of these scenarios must attract government responses. What then, if anything, does the modern human rights discourse offer or require from governments when developing appropriate responses? I think the answer is a lot.
But, as the precise connection between human rights and climate change is still developing, I need to say a little by way of background about the notion of human rights, and why it is justifiable to assert that human rights principles establish normative benchmarks that governments should comply with.
The modern notion of human rights is one founded in international law. It traces back to, and is based upon the Universal Declaration of Human Rights which was adopted by the General Assembly of the United Nations on 10 December, 1948; 59 years ago yesterday. The Declaration builds from the premise in the first Article that All human beings are born free and equal in dignity and rights.
The human rights enshrined in the Declaration have been further articulated in subsequent human rights treaties; most relevantly, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which entered into force internationally in 1976.
The values that inspired the drafters of the Declaration provide a powerful point of reference in the climate change context. The Declaration established a set of entitlements and rights – civil, political, cultural, social and economic for all members of the human family to prevent the disregard and contempt for human rights that have resulted in barbarous acts which have outraged the conscience of mankind.
The major human rights treaties were developed before climate change was understood to be a looming threat to human security. However, there are many broad rights recognised in the ICCPR and ICESCR, as well as in the Convention Against Torture, and the Convention on the Rights of the Child which are relevant to the situation of people whose way of life comes under threat from climate change. These broad rights establish international norms for the protection of the right to life, to personal security, and to the basic necessities for life – clean water, food, shelter, minimum health care and so on. Further, the fundamental concept that all are equal before the law and are entitled without discrimination to equal protection under the law, which underpins these human rights treaties, is particularly relevant in developing responses to the impacts of climate change.
However, the legal force of these rights in Australia is not clear cut. On the one hand, by signing up to international law treaties Australia has made an undertaking to the international community to ensure people within its jurisdiction enjoy the recognised human rights.
On the other hand, while international human rights law establishes these broad rights, in Australia international law has no binding force until the parliament enacts the provisions of a treaty into domestic law. And while Australia has enacted a number of international human rights norms, the broad range of rights most likely to be under threat from the impact of climate change, including those rights set out in ICESCR, have not been incorporated into Australian law.
Nevertheless, the fact that these rights have been acknowledged by Australia to the international community is still significant. In the now famous case of Teoh the High Court of Australia in 1995 held that in decisions made under domestic laws by the executive arm of government, people in Australia had a legitimate expectation that bureaucrats would act in accordance with Australia’s international treaty obligations, even when the treaty had not been enacted into Australian law.
It seems reasonable therefore to argue, and hopefully expect, that in developing policy and legislative responses to climate change Australia will respect its international human rights obligations.
Whether particular climate change responses relate to local communities in Australia; to immigration policies for people seeking to come to Australia to escape environmental catastrophes in their homeland; or to funding for adaptation measure overseas, a human rights-based approach to policy development could and I would urge should be developed as a benchmark against which policy and resource allocation is evaluated.
At a procedural level, a human-rights based approach would encourage transparent and participatory processes for decision-making, implementation, monitoring and evaluation. By focusing on individuals as rights-holders the responsibility is placed on government to allow for participation and input from affected members of society.
Beyond these process issues, a human rights-based approach would also guide policy makers on the substantive elements of adaptation measures.
A human rights-based approach would apply the principle of non-discrimination and substantive equality. So, when a climate change policy is put forward, decision-makers would need to identify the impact it would have on the most disadvantaged or vulnerable, as far as possible using data disaggregated according to the prohibited grounds of discrimination, e.g., race, colour, sex, national or geographic origin. If the result of an adaptation measure is, for instance, that indigenous people are going to be disproportionately impacted, the measure would require adjustment.
Under a human rights-based approach the substantive elements of any new measure would need to ensure that the fundamental rights of everyone affected by the measure were taken into account. Those rights should of necessity incorporate minimum standards of political and civil rights, including personal security, and economic social and cultural rights. Water, food, and housing would be the most basic and important rights to ensure that the right to life was meaningful. Human rights standards would guide policymakers and legislators when weighing competing demands on limited resources; helping to ensure, for example, that budget allocations prioritise the most marginalized and disadvantaged.
The authoritative General Comments of the Human Rights Treaty Bodies are a useful articulation of the content of some of the key human rights affected by climate change and provide a basis for developing the standards and measures to apply when evaluating whether a particular policy meets its human rights requirements. To take but one example, the relocation of a community would have to ensure that the minimum requirements of fresh water (currently calculated by the World Health Organisation at 7.5 litres per day) would be physically and financially available to every adult and child, and that it would be accessible to all without discrimination on the grounds of sex, age, or economic or social standing, and that personal security is not threatened when having to physically access to water. Similar core obligations resting on governments have been specified in other General Comments in relation to the rights to food, health and adequate housing.
A human rights-based approach could be applied through a process that required the introduction of new legislative based policies to be accompanied by a human rights compliance statement. Where either the policy or enabling legislation does not meet recognised human right norms, the statement would have to identify and explain the reasons for the shortcoming. This type of policy formulation process would be analogous to the processes enacted into the Human Rights Charters now in place in the United Kingdom, New Zealand, the Australian Capital Territory and Victoria.
The human rights issues for Australia that will arise where displaced populations cross their national boundaries raise additional issues. As others have observed, desperate hungry and homeless people are likely to cross boarders, even oceans.
In the past two decades Australia has experienced movement across the seas of people seeking refuge from persecution. Australia’s legislative response to these so called unlawful non-citizens has included indefinite detention for failed asylum seekers and, until yesterday, the Pacific solution. These measures are generally acknowledged to fall short of well-established international human rights norms.
The flow of this human traffic in the past may turn out to be a trickle of what may occur in the future.
One of the international treaties that followed the Declaration was the Refugees Convention made in 1951. We hear a lot today about a class of climate or environmental refugees, but the Refugees Convention in fact offers no protection to these new classes of asylum seekers. The Refugees Convention was developed to protect people fleeing from persecution, and applies only to people who owing to a well foundered fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion are outside the country of their nationality, and are unable or unwilling to return.
Climate refugees, generally speaking, will not fit within the definitions of the Refugees Convention. But people cannot be returned to their island state if the island no longer exists.
Furthermore, international law is clear that a non-citizen must not be returned to a border of another country where the safety of that person is at risk of torture, cruel or inhumane treatment. Plainly, to return people to a country that still exists, but is so ravaged by the elements that food, water and housing cannot be provided by its government would be to expose them to cruel and inhumane treatment. However, it can be anticipated that there will be endless arguments whether those fleeing particular countries could be resettled somewhere in their country of nationality – either immediately, or in the foreseeable future.
How Australia will treat unauthorised arrivals that really are in desperate need of protection from starvation and death is a pressing question. At this point in time international law offers no precise answer. Solutions will require inventive and creative thinking, and much goodwill on the part of developed nations. Plainly a new international treaty is needed to deal with the obligation of States to people in need of either temporary protection from drought, storm or salt water devastation, or a new permanent home because their nation state has disappeared or can no longer support them. Hopefully Australia will take a leadership role in UN fora to hammer out a solution which equitably shares the emerging burden of climate change-induced catastrophes in particular countries across the world.
In the meantime, the formulation of domestic laws to regulate the unauthorised arrival of climate refugees should respect the human rights of the individuals involved, and in so far as those rights are to be compromised on the ground of nation security, or public order, public health or the economic capacity of the Australian community, the compromise should be transparently one that is proportionate to the situation and impinges on the basic human rights of everyone to the minimum degree necessary.
Temporary protection visas in Australia have attracted much criticism, but some form of temporary protection is likely to be part of the international solution as a means of giving short term accommodation in situations of sudden emergency until long term durable solutions are established in the home state, or negotiated between nation states to share the burden of displaced communities that have no prospect of being repatriated.
I conclude with a dismal observation about human nature. On issues of resource and financial allocations inevitably policy development encounters the reality that governments are influenced by the attitudes of their electorate, and electors are influenced by self interest. It is fine for others to be accorded their human rights, so long as to do so does not take anything from those who already enjoy their rights. As a New Zealand professor recently observed at a World Health Organisation meeting to address climate change: The most difficult change of all is a change of will. A human rights based framework for change would provide a rational, defensible benchmark for policy development as well as the justification for the measures ultimately proposed.
 Friends of the Earth International, Climate Change: voices from communities affected by climate change (November 2007) at pp.5-6. Available at: http://www.foei.org/en/publications/pdfs/climate-testimonies  United Nations Development Programme, Human Development Report 2007/2008 Fighting climate change: Human solidarity in a divided world (November 2007) at p.186. Available at: http://hdr.undp.org/en/reports/global/hdr2007-2008/chapters/  Working Group on Climate Change and Development, Up in Smoke Asia and the Pacific (November 2007) at p.3. Available at: http://www.iied.org/pubs/pdf/full/10020IIED.pdf  United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 107 (entered into force on 21 March 1994)  UNDP, Human Development Report 2007/2008, note 2 at p.189  UNDP, Human Development Report 2007/2008, note 2 at p.166  Justin Sherrard and Alan Tate, Equity in Response to Climate Change: an Australian snapshot (paper for the Equity in Response to Climate Change Roundtable, Melbourne, 26 March 2007). Available at: http://www.bsl.org.au/main.asp?PageId=4732  See for example The Stern Review on the Economics of Climate Change (2006). Available at: http://www.hm-treasury.gov.uk/independent_reviews/stern_review_economics_climate_change/stern_review_report.cfm  Commissioner Mick Keelty, 2007 Inaugural Ray Whitrod Oration (Speech delivered at the Adelaide Convention Centre, 24 September 2007) Available at: http://www.afp.gov.au/media/national_media/national_speeches/2007/inaugural_ray_whitrod_oration  Universal Declaration of Human Rights, GA Resolution 217A(III); UN DocA/810 at 71  International Convention on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976, except for art 41, which entered into force on 28 March 1979)  International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976)  Australia ratified the ICESCR on 10 December 1975 and the ICCPR on 13 August 1980.  UNDP, Human Development Report 2007/2008, note 2 at p.4  Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 12 October 1984, 1465 UNTS 85 (entered into force 16 June 1987)  Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)  See for example, the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and parts of the Workplace Relations Act (Cth) and the Evidence Act 1995 (Cth)  Minister for Immigration and Ethnic Affairs v Teoh (1995) CLR 273  Although various governments have attempted to overturn the effect of Teoh, in more recent times the Liberal Government made formal statements to the effect that Australia sees it as its obligation to meet its human rights treaty obligations and encouraged other States to do likewise. There is no indication the new Labor Government will adopt any different approach.  This figure is for total consumption (i.e. drinking water plus water for foodstuffs preparation): Howard and Bartram, Domestic Water Quantity, Service Level and Health, WHO, (2003) at p.9. Available at: http://www.who.int/water_sanitation_health/diseases/en/WSH0302.pdf  CESCR, General Comment No. 15 The right to water (2002) at para.37  See for example, CESCR, General Comment No.12 The Right to Adequate Food (1999); CESCR, General Comment No.4 The Right to Adequate Housing (1991); and CESCR, General Comment No.14 The Right to the Highest Attainable Standard of Health (2006). General Comments available at: http://www2.ohchr.org/english/bodies/cescr/comments.htm  Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)  Professor Alistair Woodward, Keynote Address (Speech delivered at the 58th Session of the WHO Regional Committee for the Western Pacific, Jeju, Republic of Korea, 11 September 2007). Available at: http://www.wpro.who.int/NR/rdonlyres/52F7E3A4-71A7-4DD2-BE79-7D43E234B9AD/0/RC58report.pdf (At p.111)