|Author:||Stephen L. Kass|
|Position::||Partner at the New York City law firm of Carter Ledyard & Milburn|
I. Summary. II. The Current Environmental Crisis. A. Water Scarcity. B. Oceans. C. Deforestation/Desertification. D. Urban Migration. E. Energy. F. Food Deficiency. G. Refugees; Warfare. III. Climate Change Impacts and Responses. A. Accelerating the Current Crisis. B. International Climate Change Responses. C. Implications for Developing Countries. D. Implications for Human Rights. IV. Applicable ... (see full summary)
Stephen L. Kass is a partner at the New York City law firm of Carter Ledyard & Milburn, LLP, adjunct professor of international environmental law at Brooklyn Law School, and an Emeritus Director of Human Rights Watch. The views expressed here are his own and not those of any organization. Judith Wallace, an associate at Carter Ledyard & Milburn, LLP, assisted in the preparation of this article.
The human rights community in the United States has remained largely silent on the human rights implications of climate change, the most far-reaching change in the Earth's environment since the end of the last ice age 10,000 years ago.1 Many U.S. human rights organizations have also ignored or treated as background the growing numbers of people living or dying in extreme poverty in the developing world. Yet climate change is certain to exacerbate the severe environmental and economic conditions already faced by billions of people. These conditions contribute to widespread violations of civil, political, economic, social, and cultural rights that are the central concern of human rights organizations. This Article outlines a role that human rights organizations in the United States and elsewhere can play in linking environmentally irresponsible conduct by governments and corporations to the violation of basic human rights. In addition, this Article identifies rights-based remedies for those violations. The goal is neither to assert a new right to a clean (or cooler) environment nor to prescribe specific climate change policies to governments or others. However, climate change and related environmental decisions made by governmental and corporate authorities must now take into account both procedural and substantive human rights and the impact of those decisions on the world's poor. For the same reason, organizations committed to overcoming poverty, defending the environment, and protecting human rights should revise their tendency to view challenges, in developing nations and elsewhere, through a single lens and should pursue, either together or on parallel paths, an integrated vision of justice that takes into account economic equity, human rights, and respect for the natural and urban environment. I. Summary 1. Independent of climate change, developed and developing nations face increasingly severe threats to economic and social well-being of their citizens as a result of (a) increasing scarcity of fresh water for personal consumption, hygiene, and irrigation; (b) pollution and depletion of the oceans; (c) deforestation and desertification; (d) accelerating urbanization; (e) energy shortages; (f) widespread food shortages; (g) inadequate or corrupt government institutions; and (h) warfare. 2. Climate change will exacerbate all of these conditions throughout the developing world, leading to increased urban and cross-border migration, particularly in Africa. An increase in cross-border migration will be met with increasingly harsh restrictions on migration itself and on migrants. Increased urban migration will overwhelm many coastal and river valley cities' capacity to deliver basic urban services such as safe drinking water, sanitation, health care, education, and housing. Increased urban migration will also expose millions of recent arrivals to the loss of their homes from flooding and increased governmental efforts to relocate communities from vulnerable flood plains. 3. The human rights implications of these conditions will be as severe as the economic impacts. In cities, demonstrations or riots over food and water scarcity (as well as localized environmental hazards) will be met with police brutality and other government abuses of civil and political rights. These abuses will likely include mass arrests, neighborhood quarantines for the purpose of controlling both disease and dissent, and involuntary relocation of flood-prone households with little or no compensation. The underlying conditions sparking demonstrations will themselves represent serious violations of economic, social, and cultural (ESC) rights, specifically the rights to adequate food, shelter, health, education, and (though less well established) water. 4. These violations of civil and political rights are within the mandate of most human rights organizations, which seek, among other things, (a) to protect the lives and free expression of environmental advocates; (b) to assure that citizens are free from unlawful discrimination by government; (c) to protect the rights of individuals to receive reasonable compensation for expropriation of their homes; (d) to participate in legally required environmental reviews; (e) to access relevant governmental information, and (f) to seek review of unlawful governmental action in an independent court system. 5. ESC rights, in the context of climate change, will pose important challenges for responsible human rights organizations. Such organizations should (like Human Rights Watch), seek to identify not only a rights violation, but also the parties responsible for that violation and a remedy that does not simply instruct governments to reorder their economic priorities. There are, however, cases where the climate-change induced ESC rights violations are attributable to (a) corruption, (b) impermissible forms of discrimination, or (c) governmental policies that are either (i) counterproductive or (ii) irrational in terms of the "progressive realization" of ESC rights within a country's available resources. In each of these cases, it should be possible to identify both the responsible violator of, and a feasible remedy for, the ESC rights violation in question. 6. There will also be circumstances in which identified international actors can fairly share responsibility for the ESC rights violation represented by water, food, health, education, or housing scarcity that has been exacerbated by climate change. Neighboring states that share a critical water source have a duty under international law to do so equitably and reasonably, and developed countries have a duty to try to reduce their total greenhouse gas (GHG) emissions below 1990 levels and to cooperate in the provision of food to countries whose environmental conditions do not permit them to meet their citizens' basic nutritional needs. All states must avoid exacerbating the corruption and institutional abuses that undermine effective governance in many developing countries and must also take steps to curb the flood of small arms that facilitate the civil wars that destroy the lives of millions of refugees and undermine both the economies and the environments of developing countries. 7. The United States and EU countries that have contributed to these impacts on vulnerable populations should share responsibility for curing the resulting ESC rights violations. Appropriate remedies may include the following: (a) reducing GHG emissions; (b) ending domestic farm and biofuel subsidies; (c) lifting bans on genetically modified seeds; (d) taking affirmative action to deter corruption; and (e) curbing the small arms trade. Beyond these remedial steps, developed nations should also begin to provide large-scale financial and technical assistance to cities and rural areas that are particularly vulnerable to flooding and drought and otherwise take steps to help developing countries adapt to the inevitable climate-accelerated environmental and economic impacts in the developed world. 8. Corporate actors, especially transnational companies, should be expected to avoid complicity in governmental abuses of civil, political, and ESC rights. They should also be expected to operate so as to avoid exacerbating climate-related environmental and economic impacts, particularly with respect to water scarcity, deforestation, fisheries, refugees, and urban services. 9. By pursuing such an integrated approach to the environmental, economic, and human rights implications of climate change, the U.S. and other human rights organizations can, in addition to building a broader base of support for their efforts, overcome the tendency to segment (and thus to fail to address effectively) the broad implications of climate change for those most vulnerable to the profound changes already underway on our planet. II. The Current Environmental Crisis While climate change is undoubtedly the largest environmental challenge facing the Earth, it is not the most urgent environmental threat for billions of people around the world. Potable water scarcity, destruction of marine life, deforestation and desertification, accelerating urban migration, growing food shortages, governmental abuses, and civil wars all pose survival threats in Africa and Asia that are far more immediate than the longer-term effects of climate change. These threats are summarized briefly below. A. Water Scarcity As is now well-known, at least 1.1 billion people (approximately 17 percent of the world's population) lack even minimal access to clean drinking water in quantities sufficient to meet personal needs for survival, minimum health, and personal hygiene.2 Nearly 2.6 billion people (approximately 40 percent of the world's population) lack even the most basic sanitation facilities (including pit latrines).3 These estimates are based on a widely-used U.N. daily potable water standard of 20 liters per person. They would be far higher under South Africa's minimum standard of 50 liters per day,4 or if "reasonable access" to water were not defined as any source within one kilometer (not an easy walk for young girls carrying 40 pounds of water), or if contaminated or unreasonably priced water were excluded. In any event, water scarcity is widely expected to increase in the coming decades as the world population increases to 9 billion people and the Earth's potable water supply continues to decline through pollution and unsustainable drawdown of major aquifers. Today, 700 million people in 43 countries in Africa, Asia, and the Middle...
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