Climate Change and the Regional Human Rights Systems

AuthorMegan S. Chapman
PositionJ.D. candidate, May 2011, at American University Washington College of Law
Pages37-38
37 SUSTAINABLE DEVELOPMENT LAW & POLICY
CLIMATE CHANGE AND THE REGIONAL HUMAN
RIGHTS SYSTEMS
by Megan S. Chapman*
* Megan S. Chapman is a J.D. candidate, May 2 011, at American University
Washington College of Law.
In last year’s Climate Law Reporter, Staff Writer Anne Par-
sons laid out the fundamental case for using a human rights
framework to shift the burden for protecting individuals from
the negative impacts of climate change to the state.1 The impetus
for that piece was the UN Human Rights Commission’s adoption
of Resolution 7/23.2 In the last year, with the f‌lurry of preparation
for the December 2009 round of UN Framework Convention on
Climate Change negotiations in Copenhagen (“UNFCCC COP-
15”), a number of institutions have joined the call for developing
the nexus between human rights and climate change.3 The nexus
is meaningful because demonstrating climate change’s numerous
negative impacts on human rights, particularly for already vulner-
able populations, is a way of measuring the harm.4 It is also mean-
ingful because it connects this harm to obligations which the state
has already undertaken.5 Thus, it reveals the potential for using
developing supranational human rights legal systems to impose
a duty on states to prevent further climate change and protect
individuals from its negative impacts.6 This piece aims to brief‌ly
explore this latter angle on the human rights-climate change nexus:
the likelihood that international human rights bodies, particularly
the regional human rights systems, will in the foreseeable future
hold states accountable for climate change.
International environmental law and climate change negotia-
tions tend to be based on notions of state-to-state consensus and
cooperation.7 However, there is nothing like the build-up of hopes
and ultimate disappointment of the most recent UNFCCC COP-
15 negotiations8 to leave individuals wishing for some club to
hold over the heads of states. Aside from democratic processes or
domestic legal remedies, where they exist, regional human rights
systems may offer the best forum for individuals to confront states
that fail to come to consensus or otherwise take steps to combat
climate change.
This is not to say that regional human rights systems have
been perfected. The European Court of Human Rights, the Inter-
American Court of and Commission on Human Rights, and the
African Commission on and newly operational Court of Human
and Peoples’ Rights each face their own challenges: certain states
that accept only limited jurisdiction or no jurisdict ion at all;9
absence of regional enforcement mechanisms other than diplo-
matic or political pressure;10 and consequent reliance on states
for compliance with recommendations and execution of binding
judgments. Nevertheless, each regional system has developed a
mechanism by which individuals may bring complaints against
states for failing to respect, protect, or fulf‌ill regionally guaranteed
human rights.11
In evaluating the potential fate of a petition based on human
rights violations resulting from climate change, each of the three
established systems has its own strengths. Unlike the founda -
tional documents of the other two systems, the African Charter
on Human and Peoples’ Rights actually recognizes a right to envi-
ronment.12 Moreover, the African Commission on Human and
Peoples Rights (“ACHPR”) has entertained petitions based on vio-
lations of this right and found states in violation of their associated
obligations.13 In a resolution on human rights and climate change
issued just prior to COP-15, the ACHPR referenced this “right of
all peoples to an environment favourable to their development”
under the Banjul Charter, along with other international instru-
ments binding of member states of the African Union (“AU”).14
Using this right as a basis, it expressed concern that the COP-15
negotiations would unlikely incorporate human rights consider-
ations and urged the heads of AU member states to ensure that
human rights standards, particularly protections for vulnerable
populations, be included in any climate change agreement result-
ing from the negotiations.15 The only indication of the ACHPR’s
inclination to hold states accountable for climate change, however,
was in noting that “climate change is principally the result of emis-
sions of greenhouse gases, which remain relatively high in devel-
oped countries.”16
The Inter -American Co mmission on Human Ri ghts
(“IACHR”) is the only of the regional bodies that has squarely
faced a petition based on the human rights consequences of climate
change. In 2005, Sheila Watt-Cloutier of the Inuit Circumpolar
Conference f‌iled a petition with the IACHR on behalf of “all Inuit
of the arctic regions of the United States of America and Canada
who have been affected by the impacts of climate change.”17 The
petition alleged that the United States, the leading greenhouse gas
(“GHG”) emitter in the world, is the greatest contributor to cli-
mate change, which threatens the enjoyment of numerous human
rights guaranteed by the American Declaration of the Rights and
Duties of Man18 to the Inuit living in the arctic regions.19 The spe-
cif‌ic rights identif‌ied include their rights “to the benef‌its of culture,
to property, to the preservation of health, life, physical integrity,
security, and a means of subsistence, and to residence, movement,
and inviolability of the home.”20 The petitioners argued that U.S.
government should be held accountable for these violations to the
extent that they result from both its acts—enabling or contributing
disproportionately to GHG emissions—and its omissions—failing
to take meaningful steps to reduce GHG emissions and otherwise
counteract climate change.21
38WINTER 2010
This petition faced several notable challenges. First, because
the United States has not accepted the jurisdiction of the Inter-
American Court of Human Rights, the petition could only be
brought before the IACHR, which may issue recommendations
but not binding judgments.22 Secondly, as would be the case
with any lawsuit relating to responsibility for climate change, it
faced the tremendous burden of proving legally suff‌icient causa-
tion between the harm resulting from climate change and the acts
and omissions of the U.S. government. The petition did an admi-
rable job of laying out the scientif‌ic evidence for the connection
between GHG emissions and climate change, the U.S. contribu-
tion to GHG emissions, the effects of climate change on the arctic
environment, and the complete dependence of Inuit peoples on the
arctic environment.23
Despite these efforts, the IACHR dismissed the petition with-
out prejudice on November 16, 2006.24 Nevertheless, the IACHR
did invite the petitioners, along with the Center for International
Environmental Law (“CIEL”) and Ear thjustice to a thematic
hearing on the issue of global warming and human rights in the
Americas on March 1, 2007.25 This hearing offers perhaps the
best indication of the challenges that future litigation over human
rights violations as consequence of climate change will face before
a regional human rights body. The questions from three commis-
sioners addressed (1) how to attribute or divide responsibility
among states in the region or even states that are not members
of the OAS;26 (2) how the rights violations suffered by the Inuit
could be tied more closely to concrete acts or omissions of spe-
cif‌ic states;27 (3) whether the petitioners had exhausted domestic
remedies, a requirement for admissibility in any of the regional
human rights systems;28 and (4) what examples of good prac-
tices undertaken by states could guide the Commission in making
recommendations.29
Counsel for the three organizations responded to each of the
questions deftly. To the f‌irst, they explained the principle of “com-
mon but differentiated responsibility,” as a key component of state
responsibility under international economic law.30 To the third, the
question of exhaustion of domestic remedies, they explained why
there is no comparable legal remedy available in the United States
or Canada that would require the government to pay compensation
for human rights violations associated with climate change.31 To
the fourth question, counsel from CIEL pointed to good practices
to counteract global warming in several states in the Americas,
particularly Brazil.32
The second question, as articulated by Commissioner Victor
Abromovich, seemed to remain most unresolved at the end of the
hearing:
Is there a precise form in which the impact you have
described very well on fundamental rights can be tied
to the actions or omissions of the particular states? . . .
[I]n all cases . . . considered by the Inter-American sys-
tem, there have existed direct actions . . . or the failure
to act by the state in the face of a concrete situation, for
example . . . forestry in an indigenous territory. Now,
the problem you are laying out, without doubt, links to
state and non-state actors, but the relationship is much
. . . less direct. So, I would like clarif‌ication about how
there can be a relationship—not just any relationship, a
legal relationship, a relationship of responsibility—of
the states for violations of the rights that you have very
clearly described.33
This causal connection question presents the greatest gap
between precedent cases on environmental damage that have been
accepted by the regional human rights bodies and the issue of
climate change and resulting human rights violations. Like other
current frontiers in regional human rights law, resolution of this
question might require either meeting a nearly impossible quan-
tum of proof or bringing a petition against several or all states in
a region.
One possible way forward may lie in the approach taken by the
European Court on Human Rights (“ECtHR”) in a series of prec-
edents recently identif‌ied in a Council of Europe (CoE) report on
climate change and human rights. Although the European (Rome)
Convention on Human Rights does not aff‌irmatively guarantee a
right to the environment,34 the ECtHR has held states accountable
for human rights violations resulting from environmental dam-
age in a number of cases.35 Most often, these cases hold the state
accountable for failure to protect individuals from actions of third
parties, often corporations, and tie the environmental damage to
violations of Article 8 (right to family and private life), Article
2 (right to life), and Article 1 (right to property), although other
rights have also been implicated.36 As the CoE report pointed out,
these cases demonstrate a state’s positive obligation where “inac-
tion would exacerbate [a threat to human rights]” of which the
state is aware.37 This obligation could also attach in the climate
change context, even though the causal connection between GHG
emissions and human rights may be diff‌icult to prove.38
Endnotes: Climate Change and the Regional Human Rights Systems
1 Anne Parsons, Human Rights and Climate Change: Shifting the Burden to
the State?, SUSTAINABLE DEV. L. & POLY. Winter 2009, at 22.
2 UN Human Rights Council Res. 7/23, Human Rights and Climate
Change, Mar. 28, 2008, available at http://ap.ohchr.org/documents/E/HRC/
resolutions/A_HRC_RES_7_23.pdf.
3 See e.g. Council of Europe, T-PVS/Inf (2009) 4: Human Rights and Climate
Change, Document Presented at the 4th Meeting of the Group of Experts on
Biodiversity and Climate Change, Apr. 8, 2009 [hereinafter Council of Europe];
UN Human Rights Council Res. 10/4, Human Rights and Climate Change,
Mar. 24, 2009 (basing its recommendations on a report by the Off‌ice of the UN
High Commissioner for Human Rights on the relationship between climate
change and human rights); African Commission of Human and Peoples’ Rights,
ACHPR/Res153(XLVI)09: Resolution on Climate Change and Human Rights
and the Need to Study its Impact in Africa, Nov. 25, 2009 [hereinafter ACHPR
Resolution].
Endnotes: Climate Change and the Regional Human
Rights Systems continued on page 60

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