Climate Change and Human Rights: Climate Justice and the Rights of Small Island States

This column by Sam Adelman is part of Global Policy’s e-book, ‘Climate Change and Human Rights: The 2015 Paris Conference and the Task of Protecting People on a Warming Planet’, edited by Marcello Di Paola and Daanika Kamal. Contributions from academics and practitioners will be serialised on Global Policy until the e-book’s release in November 2015. Find out more 0 or join the debate on Twitter using #GPclimatechange.

Low-lying, ‘sinking’ small island developing states (SIDS) are at risk of inundation from rising sea-levels. The human rights of their citizens are increasingly threatened by anthropogenic global warming. Climate justice requires these countries to be provided with resources to adapt to climate change and compensation for loss and damage from its impacts.

In the words of the Intergovernmental Panel on Climate Change (IPCC), the impacts of climate change will be ‘severe, pervasive and irreversible’. Climate change threatens the right to life, the precondition for all other rights. All human rights will be affected to some degree, especially socioeconomic rights. Until relatively recently, human rights were not prominent in mainstream literature on climate change despite the IPCC’s repeated warnings about threats to the rights to life, food, water and health. This is partly explained by procedural and evidentiary difficulties relating to jurisdiction, legal standing and causation that must be overcome. Such difficulties were demonstrated by one of the first attempts to link the erosion of human rights to liability for climate change, the 2005 Inuit petition to the Inter-American Commission of Human Rights. The petition was declared inadmissible but highlighted the links between climate change and human rights.

Human rights are not designed to prevent anthropogenic global warming, but framing climate change in this way links human dignity to personal suffering from greenhouse gas emissions. Such framing arouses compassion and empathy for victims who bear little or no responsibility for creating the problem and have relatively few resources to withstand it. Human rights have broad public appeal and enjoy greater legitimacy than other legal and political discourses. This enables them to be used to delegitimise the continued extraction of fossil fuels and impose moral obligations on states with the greatest historical responsibility for greenhouse gas emissions. The international divestment campaign against fossil fuels is one of the fastest growing movements in history, suggesting that extracting fossil fuels is unethical and should be regarded as a crime against humanity- against those suffering the impacts of climate change today and future generations.

Protecting human rights becomes more urgent with each failure of the Parties to the UN Convention on Climate Change (UNFCCC) to negotiate an agreement that limits global average temperature from increasing by more than 2 degrees Celsius. Government pledges ahead of the twenty-first Conference of the Parties (COP) in Paris in December 2015 are incompatible with achieving this target. The UNFCCC text does not specifically link climate change to human rights but, as Vanderheiden argues, a stable climate should be regarded as one of the most basic human rights.

Human rights dialogues have been used by SIDS to highlight the threat that rising sea-levels pose to their existence, and to justify their demands for compensation for climate-related loss and damage. As discussed in a review by the Alliance of Small Island States (AOSIS), the survival of islands such as Kiribati, Tuvalu and the Maldives depends upon limiting global temperature increase to no more than 1.5 degrees Celsius. The Maldives has argued that land is ‘a fundamental pre-cursor to the enjoyment of all other rights’. In 2007, SIDS adopted the Malé Declaration on the Human Dimension of Global Climate Change and requested the UN Human Rights Council to convene a debate on climate change and human rights. In March 2009, the Council adopted Resolution 10/4 on human rights and climate change, which recognises the adverse implications of climate change, ‘both direct and indirect, for the effective enjoyment of human rights’. The Resolution states that individuals may not be deprived of their own means of subsistence under international law, noting that climate change threatens the rights of individuals who are already vulnerable ‘owing to factors such as geography, poverty, gender, age, indigenous or minority status and disability’.

Each of the forty-four states in AOSIS have less than one per cent of the world’s territory, population and gross domestic product, accounting for approximately 0.003 per cent of global GHG emissions. Pacific region SIDS suffer annual losses from climate-related and weather events estimated to average US$284 million. Slow-onset sea-level rise threatens the basic subsistence, livelihoods, homes, property and homelands of islanders. Land loss from flooding affects, inter alia, the rights to life, health, property, housing, and water. Islanders will be forced to resettle elsewhere but have no legal protection under international law. Article 15 of the Universal Declaration of Human Rights provides the right not to be arbitrarily deprived of one’s nationality, but no right exists to the ground beneath one’s feet. They will not be protected under 1951 UN Convention Relating to the Status of Refugees - which does not recognise climate change as a ground for refugee status - there is no obligation on other countries to accept them, and little prospect of a protocol to the UNFCCC or a dedicated international agreement to protect their rights and interests. Climate change jeopardizes the right to development of SIDS, the individual human right to development, and possibly a human right not to be forcibly evicted.

For SIDS, linking human rights to climate change is a matter of survival. The language of rights strengthens their demands in the UNFCCC for climate justice in the form of restitution, compensation and rehabilitation. In 2013, through AOSIS, small island states were instrumental in the establishment of a mechanism that implicitly links the threat to their human rights to demands for compensation for climate-related loss and damage. The establishment of the Warsaw International Mechanism for Loss and Damage is an acknowledgement of the failure of mitigation and the limits of adaptation, indicating that vulnerable communities require additional resources to recuperate from loss and damage caused by sudden or slow-onset climate events. Its functions include the development of risk management strategies and support to enable less developed countries to address climate-related loss and damage, including insurance schemes. Conventional insurance is problematic because premiums are likely to be unaffordable for vulnerable individuals and SIDS, and provide limited coverage that may not include the costs of relocation and resettlement. A compensation fund is therefore a simpler and more effective way of recompensing SIDS.

AOSIS proposes that funding for the Warsaw Mechanism should mainly come from a Convention Adaptation Fund to which developed countries would contribute according to their current and historical emissions and ability to pay, international market-based instruments, and voluntary contributions from corporations. A solidarity fund of this type would promote climate justice in accordance with the principle of common but differentiated responsibilities and relative capacities in Article 3(1) of the UNFCCC. Further, it would be consistent with the three main principles of climate justice: historical responsibility (polluter pays), beneficiary pays, and ability to pay. It would enable states to pool resources to compensate for loss and damage– including the costs to SIDS of relocation and resettlement- according to clear criteria, and need not be based upon state responsibility or an admission of liability by developed countries. Compensation without liability is a matter of corrective justice and a way of providing SIDS with the means to protect the human rights of their citizens. Lyster makes an ethically appropriate proposal for the establishment of a climate disaster fund by the UNFCCC, comprising levies on the world’s top 200 fossil fuel companies.

SIDS are particularly vulnerable to the risks of anthropogenic warming but many other developing countries will suffer loss and damage from climatic impacts such as droughts, desertification and ocean acidification. A compensation mechanism would enable developed countries to discharge their ethical obligations without blame and provide a way for the UNFCCC to promote climate justice by transforming human rights from moral claims into legal entitlements.

Sam Adelman teaches law at the University of Warwick. His main areas of research are climate change, law and development and human rights. He has degrees from Harvard University, the University of Warwick and from the University of the Witwatersrand in South Africa – from which he was exiled after being banned and detained during the struggle against apartheid. He is the editor of the Research Handbook on Climate Justice and Human Rights (forthcoming, Edward Elgar)..